Portions of this exhibit have been redacted pursuant to a request for
confidential treatment under Rule 24B-2 of the General Rules and Regulations
under the Securities Exchange Act. Omitted information, marked "[*]" in this
exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.
MASTER SERVICES AGREEMENT
BETWEEN
COORS BREWING COMPANY
AND
EDS INFORMATION SERVICES, L.L.C.
TABLE OF CONTENTS
Page No.
--------
ARTICLE 1 DEFINITIONS
...................................................................... 1
1.1 Certain Definitions
........................................................... 1
1.2 Other Definitions
............................................................. 6
ARTICLE 2 TERM
.............................................................................
6
2.1 Term
.......................................................................... 6
2.2 Renewal Term
.................................................................. 6
ARTICLE 3 SERVICES
......................................................................... 7
3.1 General
....................................................................... 7
3.2 Resources
..................................................................... 7
3.3 Recipients of Services
........................................................ 7
3.4 Migration of Service Locations
................................................ 8
3.5
[***].........................................................................
8
3.6 EDS Services to Others
........................................................ 9
3.7 Transition Services
........................................................... 9
ARTICLE 4 SERVICE LEVELS
................................................................... 9
4.1 Initial Service Levels
........................................................ 9
4.2 Review of Service Levels
...................................................... 9
4.3 Measurement and Monitoring Tools
.............................................. 10
4.4 Failure to Meet Service Levels
................................................ 10
4.5 Additional Performance Requirements
........................................... 10
ARTICLE 5 TRANSFERS OF EQUIPMENT, FACILITIES AND THIRD PARTY CONTRACTS
..................... 11
5.1 Transfer of Equipment
......................................................... 11
5.2 Golden Data Center and Equipment
.............................................. 11
5.3 Third Party Contracts
......................................................... 12
ARTICLE 6 PERSONNEL
........................................................................ 15
6.1 Terms of Employment; Retention Bonuses; 401(k) and Vacation Matters
........... 15
6.2 Key Transferred Employees
..................................................... 16
6.3 Key EDS Positions
............................................................. 17
6.4 Removal of EDS Employees from Coors Account
................................... 17
6.5 Excessive Turnover
............................................................ 18
6.6 No Employment Offers
.......................................................... 18
6.7 Security
...................................................................... 18
6.8 Safety
........................................................................ 18
ARTICLE 7 INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS
..................................... 19
7.1 Coors Software
................................................................ 19
7.2 EDS Software
.................................................................. 19
7.3 Third Party Software
.......................................................... 19
7.4 Other Intellectual Property
................................................... 20
7.5 Residual Rights
............................................................... 21
7.6 Non-Infringement
.............................................................. 22
7.7 Disabling Code
................................................................ 22
7.8 EDS Software Warranty
......................................................... 22
i
Page No.
--------
ARTICLE 8 CONFIDENTIALITY
.................................................................. 22
8.1 Definitions
................................................................... 22
8.2 Rights, Restrictions and Obligations of the Receiving Party
................... 23
8.3 Return/Destruction of Confidential Information
................................ 25
8.4 Nondisclosure Agreements
...................................................... 25
ARTICLE 9 CONTRACT MANAGEMENT
.............................................................. 26
9.1 Project Executives
............................................................ 26
9.2 Steering Committee
............................................................ 26
9.3 Use of Coors Facilities
....................................................... 26
9.4 Coors Office Space at Data Center
............................................. 27
9.5 Meetings
...................................................................... 27
9.6 Reports
....................................................................... 27
9.7 Procedures Manual
............................................................. 27
9.8 Technical Change Control
...................................................... 28
9.9 Contract Change Control
....................................................... 28
9.10 Benchmarking
................................................................. 29
9.11 Subcontracting
............................................................... 30
ARTICLE 10 AUDITS
.......................................................................... 32
10.1 Audit Rights
................................................................. 32
10.2 Payments
..................................................................... 32
10.3 EDS and External Audits
...................................................... 32
10.4 Survival
..................................................................... 32
ARTICLE 11 INSURANCE; RISK OF LOSS
......................................................... 33
11.1 Required Insurance Coverages
................................................. 33
11.2 General Insurance Provisions
................................................. 33
11.3 Risk of Loss
................................................................. 34
ARTICLE 12 CHARGES
......................................................................... 34
12.1 Charges in Exhibit C
......................................................... 34
12.2 Managed and Pass-Through Expenses
............................................ 34
12.3 Taxes
........................................................................ 35
12.4 Charges Pursuant to Change Control Procedures
................................ 36
12.5 Significant Events
........................................................... 37
12.6 Recordkeeping
................................................................ 38
12.7 Coors Payment
................................................................ 39
12.8 Hyperinflation Protection
.................................................... 39
12.9 Gainsharing
.................................................................. 40
12.10 Monthly Current Asset Payment
............................................... 40
ARTICLE 13 INVOICING AND PAYMENT
........................................................... 41
13.1 Invoices
..................................................................... 41
13.2 Payment; Late Charges
........................................................ 41
13.3 Proration
.................................................................... 41
13.4 Refunds
...................................................................... 42
13.5 Setoff and Withholding
....................................................... 42
ARTICLE 14 CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
............................... 42
14.1 Mutual Representations and Warranties
........................................ 42
ii
Page No.
--------
14.2 Coors Representations and Warranties
......................................... 43
14.3 EDS Representations and Warranties
........................................... 43
14.4 Mutual Covenants
............................................................. 44
14.5 EDS Covenants
................................................................ 44
ARTICLE 15 INDEMNIFICATION
................................................................. 44
15.1 Indemnification by EDS
....................................................... 44
15.2 Indemnification by Coors
..................................................... 45
15.3 Mutual Indemnification
....................................................... 47
15.4 Infringement
................................................................. 47
15.5 Indemnification Procedures
................................................... 47
15.6 Subrogation
.................................................................. 48
ARTICLE 16 LIMITATIONS ON LIABILITY
........................................................ 48
16.1 General Intent
............................................................... 48
[***]...........................................................................
... 49
[***]...........................................................................
... 49
16.4 Force Majeure
................................................................ 49
16.5 Actions of Other Party
....................................................... 50
16.6 Uninterruptible Power Supply
................................................. 51
ARTICLE 17 TERMINATION
..................................................................... 51
17.1 Termination for Cause
........................................................ 51
17.2 Termination for Convenience
.................................................. 52
17.3 Termination Upon Change in Control
........................................... 53
17.4 Termination for Insolvency
................................................... 53
17.5 Termination Upon Force Majeure Event
......................................... 54
17.6 Extension of Expiration/Termination Effective Date
........................... 54
17.7 Effect of Termination
........................................................ 55
17.8 Expiration/Termination Assistance
............................................ 55
17.9 Purchase of Equipment
........................................................ 56
17.10 EDS Software License
........................................................ 57
17.11 Third Party Contracts
....................................................... 57
17.12 Offers to EDS Employees
..................................................... 58
17.13 Return of Confidential Information
.......................................... 58
Article 18 DISPUTE RESOLUTION
.............................................................. 58
18.1 General
...................................................................... 58
18.2 Informal Dispute Resolution
.................................................. 58
18.3 Arbitration
.................................................................. 59
18.4 Continued Performance
........................................................ 60
18.5 Applicable Law
............................................................... 60
18.6 Jurisdiction and Venue
....................................................... 60
18.7 Fees and Costs
............................................................... 61
18.8 Remedies
..................................................................... 61
Article 19 MISCELLANEOUS
................................................................... 61
19.1 Interpretation
............................................................... 61
19.2 Binding Nature and Assignment
................................................ 62
19.3 Expenses
..................................................................... 62
19.4 Amendment and Waiver
......................................................... 62
iii
Page No.
--------
19.5 Further Assurances
........................................................... 63
19.6 Publicity
.................................................................... 63
19.7 Severability
................................................................. 63
19.8 Entire Agreement
............................................................. 63
19.9 Notices
...................................................................... 64
19.10 Survival
.................................................................... 65
19.11 Independent Contractor
...................................................... 65
19.12 No Third Party Beneficiaries
................................................ 65
19.13 Counterparts
................................................................ 65
iv
EXHIBITS
--------
Exhibit A Services
Exhibit B Service Levels
Exhibit C Charges
Exhibit D Termination Assistance
Exhibit E Environmental Health, Safety and General Policies
Exhibit F CBC Supplier Toolkit
SCHEDULES
---------
Schedule 1.1(m) Certain Coors Application Software
Schedule 1.1(q) Certain Coors Systems Software
Schedule 3.1 Coors' Information Technology Operating and Capital
Budgets
Schedule 5.1(a) Transferred Equipment
Schedule 5.1(b) ▇▇▇▇ of Sale
Schedule 5.2(c) Golden Data Center Assignment
Schedule 5.3(a)(i) Third Party Software Responsibility Matrix
Schedule 5.3(a)(ii) Third Party Service Contracts
Schedule 5.3(b) Prepayments under Assigned Contracts
Schedule 5.3(d) Cancellable Third Party Contracts
Schedule 6.1(a) Coors Employees to Receive EDS Employment Offers
Schedule 6.2 Key Transferred Employees
Schedule 6.3 Key EDS Positions
Schedule 9.5 Meetings
Schedule 9.11 Approved EDS Subcontractors
Schedule 12.6 Coors Records Retention Policy
Schedule 17.2 Fees for Termination for Convenience
v
MASTER SERVICES AGREEMENT
THIS
MASTER SERVICES AGREEMENT is entered into effective as of August
1, 2001 (the "Commencement Date") between Coors Brewing Company, a
Colorado
corporation ("Coors"), and EDS Information Services, L.L.C., a Delaware limited
liability company ("EDS").
BACKGROUND
A. Coors and its Affiliates (as defined below) are in the business of
manufacturing, distributing and selling beer and other malt-based beverages. EDS
is an independent systems consulting firm which offers systems integration,
network and systems operations, data center management, applications
development, field services, and management consulting.
B. Coors desires to obtain from EDS, and EDS desires to provide to
Coors, certain information technology services, all subject to and in accordance
with the provisions of this Agreement (as defined herein).
AGREEMENT
Coors and EDS hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions
In this Agreement, the following terms shall have the indicated
meanings:
(a) "Affiliate" means, with respect to any specified person or
entity, any other person or entity that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by, or is under common Control
with, the specified person or entity.
(b) "Agreement" means this
Master Services Agreement and all
Schedules.
(c) "Applications Software" means those programs and
programming (including the supporting documentation and media) that perform in
the conduct of the Services specific user related data processing and
telecommunications tasks.
(d) "Assigned Contracts" has the meaning given in Section
5.3(a).
(e) "Benchmarker" has the meaning given in Section 9.10(c).
(f) "Business Day" means any day other than a Saturday, Sunday
or legal holiday in the State of
Colorado.
(g) "Change Control Procedures" has the meaning given in
Section 9.9(a).
1
(h) "Commencement Date" has the meaning given in the preamble
of this Agreement.
(i) "Confidential Information" has the meaning given in
Section 8.1.
(j) "Confidential Materials" has the meaning given in
Section 8.1.
(k) "Contract Year" means each period during the Term
beginning on August 1 and ending on the next July 31; provided, however, that
the first Contract Year begins on the Commencement Date and the last Contract
Year ends on the effective date of the expiration or termination of the Term.
(l) "Control" and its derivatives means the possession, direct
or indirect, of at least 50% of the aggregate of all voting equity interests in
an entity or equity interests having the right to at least 50% of the profits of
an entity or, in the event of dissolution, to at least 50% of the assets of an
entity and, in the case of a partnership, also includes the holding by an entity
(or one of its Affiliates) of the position of general partner.
(m) "Coors Applications Software" means Applications Software
owned by Coors or its Affiliates (specifically excluding Third Party Software)
and used to provide the Services. A partial list of Coors Applications Software
as of the Commencement Date is provided in Schedule 1.1(m).
(n) "Coors Competitor" means any person or entity who directly
or indirectly, at any time during the Term, has as its primary business the
manufacturing and/or distribution of beer and other malt-based beverages, and
any Affiliate of such person or entity.
(o) "Coors Data" means all information entered in Software or
Equipment by or on behalf of Coors its Affiliates or any third party described
in Section 3.3 and information derived from such information. The term Coors
Data specifically excludes EDS Software, EDS Confidential Information, and Third
Party Software licensed by a third party to EDS and used by EDS in performing
the Services hereunder.
(p) "Coors Software" means Coors Systems Software and Coors
Applications Software.
(q) "Coors Systems Software" means Systems Software owned by
Coors or its Affiliates (specifically excluding Third Party Software) and used
to provide the Services. A partial list of Coors Systems Software as of the
Commencement Date is provided in Schedule 1.1(q).
(r) "Critical Service Level" has the meaning given in
Section 1 of Exhibit B.
(s) "Data Center" means (i) the Golden Data Center and (ii)
subject to Coors written consent as provided in Section 3.4, any other data
center which EDS uses to provide any Services.
2
(t) "Disaster Recovery Plan" means the Coors disaster recovery
plan, as it exists on the Commencement Date and is modified or replaced
thereafter in accordance with the Change Control Procedures.
(u) "Dispute Resolution Committee" has the meaning given in
Section 18.2(a).
(v) "EDS Applications Software" means Applications Software
owned by EDS or its Affiliates (specifically excluding Third Party Software) and
used to provide the Services.
(w) "EDS Personnel" means employees of EDS or EDS
Subcontractors assigned to perform Services.
(x) "EDS Systems Software" means Systems Software owned by EDS
or its Affiliates (specifically excluding Third Party Software) and used to
provide the Services.
(y) "EDS Software" means EDS Applications Software and EDS
Systems Software.
(z) "EDS Subcontractor" means any contractor or subcontractor
of EDS (including, without limitation, individuals engaged as independent
contractors) used by EDS to provide any Services.
(aa) "Environmental Laws" means any Federal, state or local
law, order, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof as of the Commencement Date
and as may be amended or modified after the Commencement Date, including,
without limitation, any judicial or administrative order, consent decree, or
judgment, relating to the environment, health or safety.
(bb) "Equipment" means the computer and telecommunications
equipment owned or leased by Coors, EDS or their respective Affiliates and used
to provide the Services. Equipment includes, without limitation, (i) computer
equipment and all associated accessories and peripheral devices, and (ii)
telecommunications equipment, including multiplexors, modems, hubs, bridges and
routers.
(cc) "Force Majeure Events" has the meaning given in
Section 16.4.
(dd) "Golden Data Center" means the real property and
improvements commonly known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
(ee) "Golden Data Center Lease" means the Denver West Office
Building Lease between Denver West Office Building No. 26 Venture, as Landlord,
and Coors, as Tenant, dated February 1, 1994.
(ff) "Hazardous Substance" means (i) any petroleum or
petroleum products or fractions thereof, radioactive materials, friable
asbestos, urea formaldehyde, foam insulation, radon gas and transformers or
other equipment that contains dielectric fluid containing
3
polychlorinated biphenyls, and (ii) any chemicals, materials or substances
defined as or included in the definition of "hazardous substances," "extremely
hazardous substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "universal hazardous wastes,"
"toxic substances," "toxic pollutants," or words of similar import under any
applicable Environmental Law.
(gg) "Intellectual Property" means all patentable subject
matter, copyrights, trademarks, service marks, trade secrets, confidential
information and similar subject matter and attendant rights, to the extent
protectable by law, whether or not in written form or reduced to practice.
(hh) "Key EDS Positions" has the meaning given in Section 6.3.
(ii) "Key Transferred Employees" has the meaning given in
Section 6.2.
(jj) "Losses" means all losses, liabilities, damages and
claims, and all related costs and expenses (including any and all reasonable
legal fees and reasonable costs of investigation, litigation, settlement,
judgment, appeal, interest and penalties) incurred by an indemnified party
hereunder in connection with an indemnified claim.
(kk) "Managed Expenses" means the actual invoiced amounts
(excluding any EDS administrative fee or overhead charges) charged to Coors by
third parties that Coors has agreed to pay, after the accuracy of such invoiced
amount is first validated by EDS.
(ll) "Parties" means Coors and EDS, and "Party" means either
one of them.
(mm) "Pass-Through Expenses" means the actual invoiced amounts
(excluding any EDS administrative fee or overhead charges) charged to EDS by
third parties for which Coors has agreed to reimburse EDS.
(nn) "Procedures Manual" has the meaning given in
Section 9.7(a).
(oo) "Project" has the meaning given in Section 8.1 of
Exhibit A.
(pp) "Project Executive" has the meaning given in
Section 9.1.
(qq) "Retention Bonus" has the meaning given in
Section 6.2(b).
(rr) "Schedules" means any schedule, exhibit, agreement or
other document either (i) attached to this
Master Services Agreement, (ii)
executed by the Parties concurrently with this
Master Services Agreement or on
the Commencement Date, or (iii) executed by the Parties at any time hereafter,
if such document states that it is a Schedule to this
Master Services Agreement.
(ss) "Service Credit" has the meaning given in Section 1 of
Exhibit B.
(tt) "Service Level" has the meaning given in Section 1 of
Exhibit B.
4
(uu) "Service Level Termination Event" has the meaning given
in Section 1 of Exhibit B.
(vv) "Service Tower" has the meaning given in Section 1.3 of
Exhibit A.
(ww) "Services" has the meaning given in Section 3.1.
(xx) "Software" means Applications Software and Systems
Software.
(yy) "Steering Committee" has the meaning given in
Section 9.2.
(zz) "Systems Software" means (i) those programs and
programming (including the supporting documentation and media) that perform in
the conduct of the Services tasks basic to the functioning of the Equipment and
which are required to operate and maintain the Applications Software, and (ii)
all other programs and programming that do not constitute Applications Software,
including without limitation mainframe/midrange operating systems, LAN
server/desktop operating systems, network operating systems, systems utilities,
development and testing environments, and tools, data security software and
telecommunications monitors.
(aaa) "Term" has the meaning given in Sections 2.1 and 2.2.
(bbb) "Termination Assistance" has the meaning given in
Section 17.8(a).
(ccc) "Third Party Applications Software" means Applications
Software licensed pursuant to a Third Party Applications Software License.
(ddd) "Third Party Applications Software Licenses" means,
collectively, (i) the licenses pursuant to which a third party licenses to Coors
or an Affiliate immediately before the Commencement Date or during the Term
Applications Software used to provide any Services and (ii) the licenses
pursuant to which a third party licenses to EDS before or during the Term
Applications Software used to provide any Services, including in each case any
associated maintenance, support, upgrade, subscription and similar agreements.
(eee) "Third Party Consents" has the meaning given it in
Section 5.3(e).
(fff) "Third Party Contracts" means, collectively, Third Party
Applications Software Licenses, Third Party Systems Software Licenses and Third
Party Service Contracts.
(ggg) "Third Party Service Contracts" means, collectively, (i)
the agreements between Coors or its Affiliate and a third party pursuant to
which the third party is providing to Coors or its Affiliate immediately before
the Commencement Date or, with respect to Managed Contracts listed on Schedule
5.3(a)(ii), during the Term) any goods or services included within the Services
and (ii) the agreements between EDS and a third party pursuant to which the
third party is providing to Coors or EDS at any time during the Term any goods
or services included within the Services. Third Party Service Contracts
specifically includes Equipment leases and telecommunications agreements, and
specifically excludes Third Party Applications Software Licenses Third Party
Systems Software Licenses and the Golden Data Center Lease.
5
(hhh) "Third Party Software" means, collectively, Third Party
Applications Software and Third Party Systems Software.
(iii) "Third Party Systems Software" means Systems Software
licensed pursuant to a Third Party Systems Software License.
(jjj) "Third Party Systems Software Licenses" means,
collectively, (i) the licenses pursuant to which a third party licenses to Coors
or an Affiliate immediately before the Commencement Date (or, with respect to
Systems Software identified as a Managed Contract on Schedule 5.3(a)(i), during
the Term) Systems Software used to provide any Services and (ii) the licenses
pursuant to which a third party licenses to EDS before or during the Term
Systems Software used by EDS to provide any Services, including in each case any
associated maintenance, support, upgrade, subscription and similar agreements.
(kkk) "Transferred Employees" has the meaning given in
Section 6.1.
(lll) "Transferred Equipment" has the meaning given in
Section 5.1(a).
(mmm) "Transition Services" has the meaning given in
Section 3.7.
(nnn) "Unidentified Third Party Contract" has the meaning
given in Section 5.3(f).
1.2 Other Definitions
Other terms used in this Agreement are defined where they first appear
and have the respective meanings there indicated.
ARTICLE 2
TERM
2.1 Term
The term of this Agreement (the "Term") shall begin at 12:01 a.m.
Colorado time on the Commencement Date and shall end at 11:59 p.m.
Colorado time
on July 31, 2006, unless earlier terminated or extended in accordance with the
provisions of this Agreement.
2.2 Renewal Term
Coors shall have the option to extend the Term for an additional one
(1) year, to July 31, 2007, by delivering written notice of such extension to
EDS at least one hundred eighty (180) days before the fifth (5th) anniversary of
the Commencement Date. If Coors has exercised such option, Coors shall have the
additional option to extend the Term for a second one (1) year period, to July
31, 2008, by delivering written notice of such extension to EDS at least one
hundred eighty (180) days before the sixth (6th) anniversary of the Commencement
Date. All of the terms of this Agreement shall continue to apply without change
during any extension
6
period(s), and "the Term" as used in this Agreement shall refer to both the
original five (5) year term of this Agreement and any extension(s) thereof.
ARTICLE 3
SERVICES
3.1 General
Throughout the Term, EDS shall provide and perform (i) the services,
functions and responsibilities described in this Agreement (including without
limitation Exhibit A), as it may be amended and supplemented from time to time
pursuant to the Change Control Procedures; (ii) the services, functions and
responsibilities provided or performed at any time during the twelve (12) months
immediately preceding the Commencement Date by the personnel who were displaced
or whose functions were displaced as a result of this Agreement (provided that
those services, functions and responsibilities were not discontinued by Coors
during such period with the intent that such discontinuation be permanent);
(iii) except as expressly provided otherwise in this Agreement, the services,
functions and responsibilities which, prior to the Commencement Date, are
documented as being funded by the Coors' Information Technology Operating Budget
and/or the Coors Information Technology Capital Budget which budgets are
attached hereto as Schedule 3.1; and (iv) any services, functions or
responsibilities not specifically described in clauses (i) (ii) or (iii) but
inherent in or necessary for the proper provision and performance of such
services, functions and responsibilities (the services, functions and
responsibilities described in clauses (i), (ii) (iii) and (iv) are referred to
collectively as the "Services"). Pursuant to Section 9.9 (Contract Change
Control), EDS shall be responsive to the current and future information
technology requirements of Coors. EDS shall provide, and Coors shall receive,
the Services in accordance with all of the terms of this Agreement.
3.2 Resources
Except as otherwise expressly provided in this Agreement, EDS shall
provide, [***] all of the facilities, personnel, Equipment, Software, services
and other resources necessary to provide the Services. Subject to the approval
rights granted to Coors in this Agreement, EDS shall maintain, expand, extend,
upgrade and replace [***] all such resources (including, without limitation, any
resources sold, transferred or assigned to EDS pursuant to this Agreement) as
necessary to provide the Services.
3.3 Recipients of Services
EDS shall provide the Services, throughout the Term, to Coors, its
present and future Affiliates, and such other third parties as Coors may
authorize from time to time in the ordinary course of business to receive
Services. Coors acknowledges and agrees that the foregoing is not intended to
permit Coors to resell or wholesale the Services to non-Affiliate third parties.
Coors and EDS shall each have all of the same rights and obligations with
respect to Services provided to Coors Affiliates and other authorized third
parties as they do with respect to Services provided to Coors. EDS is authorized
to deal exclusively with Coors in connection with any Services to be provided
to Coors' Affiliates or other authorized third parties. EDS' provision of the
Services
7
to entities that are not receiving the Services as of the Commencement Date will
be subject to Sections 9.9 and 12.4.
3.4 Migration of Service Locations
(a) Except as set forth in Attachment A-12 to Exhibit A and in Section
2.1 of Exhibit A, throughout the Term EDS shall provide the Services from the
locations from which each of such Services is currently provided unless Coors
approves the migration of such Services to one or more other locations.
(b) Each migration of Services to another location shall be conducted
by [***] pursuant to a written migration plan prepared by EDS and approved by
Coors. Each migration plan shall describe in detail how EDS shall perform the
migration and any assumptions and dependencies relating to EDS' performance of
such migration, including any obligations of Coors. Any breach of such migration
plan by EDS shall constitute a breach of this Agreement. Unless otherwise
expressly provided in this Agreement, each Party's obligations contained in this
Agreement, including, without limitation, EDS' obligation to meet Service
Levels, shall continue to apply during and after each such migration. [***] and,
provided further, that any migration of Services to a new platform and/or any
change to or addition of Applications Software shall be done pursuant to the
Change Control Procedures.
3.5 [***]
[***] Any exercise by Coors of the rights granted in the preceding
sentence shall not affect any applicable Minimum Revenue Commitment set forth in
Exhibit C. Coors shall have no obligation to obtain from EDS any services which
do not fall within the definition of Services. EDS shall cooperate with Coors
and Coors' contractors to allow the proper performance of any services (whether
or not included within the definition of Services) being provided internally by
Coors or by such third party contractors. Such cooperation shall include,
without limitation, providing access to any Services reasonably necessary for
Coors or such contractors to perform their work, and providing (subject to
Section 14.5) such information regarding the operating environment, system
constraints and other operating parameters reasonably necessary for the work
performed by Coors or such contractors to be compatible with the Services
provided by EDS. Under no circumstances shall EDS be obligated to provide such
third party contractors with access to, or use of, any information of EDS' other
clients.
8
3.6 EDS Services to Others
Subject to the other provisions of this Agreement, including, without
limitation, Section 6.3(d) (Key EDS Positions), Article 7 (Intellectual Property
Rights) and Article 8 (Confidentiality), EDS shall have the right to provide
services (including services that are the same as or similar to the Services) to
third parties during the Term.
3.7 Transition Services
EDS shall complete the Services summarized in Attachment A-12 to
Exhibit A (the "Transition Services") by the dates set forth therein. Within
fifteen (15) days after the Commencement Date, EDS shall deliver to Coors for
review and comment a draft of a plan (the "Transition Plan") describing in
detail how EDS shall perform the Transition Services and any assumptions and
dependencies relating to EDS' performance of the Transition Services, including
any obligations of Coors. The Transition Plan shall describe the activities EDS
proposes to undertake in order to provide the Transition Services. EDS shall
incorporate any reasonable comments and suggestions made by Coors and shall
deliver a revised Transition Plan within five (5) days after EDS' receipt of
Coors' comments. The final Transition Plan shall be subject to Coors' approval.
Any breach of the Transition Plan by EDS shall constitute a breach of this
Agreement. Unless otherwise expressly provided in this Agreement, all of EDS'
obligations contained in this Agreement, including, without limitation, the
obligation to meet Service Levels, shall continue to apply during implementation
of the Transition Plan. [***]
ARTICLE 4
SERVICE LEVELS
4.1 Initial Service Levels
Exhibit B establishes Service Levels for certain specified Services and
groupings of Services. With respect to each Service or groupings of Services
which has an associated Service Level, EDS shall provide such Service or
groupings of Services throughout the Term (except as otherwise provided in
Exhibit B) in a manner which meets or exceeds such associated Service Level.
4.2 Review of Service Levels
Six (6) months after the Commencement Date and at least annually
thereafter, the Parties shall jointly review the Service Levels and adjust them
to reflect any improved performance capabilities associated with advances in the
technology and methods used to perform the Services. The Parties acknowledge
that they will reasonably attempt to continuously improve the Service Levels
identified in Exhibit B throughout the Term, by mutual agreement, and that they
will reasonably attempt to jointly identify and add to Exhibit B additional
Service Levels and associated Service Credits during the Term. Throughout the
Term, EDS shall identify and notify Coors of commercially reasonable methods of
improving the Service Levels.
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4.3 Measurement and Monitoring Tools
EDS shall implement any measurement and monitoring tools and procedures
necessary to measure its performance of the Services and compare such
performance to the Service Levels. Upon Coors' request, EDS shall provide Coors
or its auditors with any information and access to the measurement and
monitoring tools reasonably necessary to measure EDS' performance against the
Service Levels.
4.4 Failure to Meet Service Levels
(a) EDS acknowledges that its failure to meet one or more Service
Levels may have a material adverse effect on the business and operations of
Coors and that the actual amount of damage sustained by Coors because of such
failure would be impracticable or extremely difficult to fix. Accordingly, each
time EDS fails to meet a Service Level for reasons other than those specified in
Section 4.4(c), Coors shall have the option, but not the obligation [***]
Regardless of whether Coors exercises its option to [***] with respect to any
failure, Coors shall also have any [***] remedies available to Coors under this
Agreement, at law, or in equity.
(b) Each time EDS fails to meet a Service Level, EDS shall: (i)
investigate the root cause(s) of the failure and deliver to Coors a written
report identifying such root cause(s) within the applicable time frame specified
in Section 4(b) of Exhibit B; (ii) use its best efforts (with respect to
failures to meet Critical Service Levels) or commercially reasonable efforts
(with respect to failures to meet Standard Service Levels, as defined in Exhibit
B) to correct the problem and to begin meeting such Service Level as soon as
practicable; and (iii) at Coors' request, advise Coors of the status of such
corrective efforts.
(c) EDS shall not be liable for [***] to the extent that EDS can
demonstrate that its failure to meet a Service Level is attributable to (i) a
Force Majeure Event, or (ii) actions or omissions of Coors or its agents,
employees or contractors (excluding agents, employees or contractors of EDS),
provided that EDS has provided Coors with notice of such actions or omissions
and the consequences thereof immediately after becoming aware of them and has
used reasonable efforts to perform notwithstanding such actions or omissions.
4.5 Additional Performance Requirements
(a) With respect to any Service or obligation which does not have an
associated Service Level, EDS shall perform such Service or obligation with a
level of accuracy, quality, completeness, timeliness and responsiveness which
meets or exceeds the higher of (i) the level of performance generally achieved
by Coors in the six (6) months immediately before the
10
Commencement Date or (ii) generally accepted industry standards for services
that are similar in scope and price to the Services. EDS shall perform all
Services and obligations promptly, diligently, and in a workmanlike and
professional manner, using qualified individuals. Each time Coors notifies EDS
that Coors believes EDS has failed to meet the applicable standard set forth in
the preceding sentence, EDS shall: (A) investigate the root cause(s) of the
failure and deliver to Coors a written report identifying such root cause(s)
within the applicable time frame specified in Section 4(b) of Exhibit B; (B) use
commercially reasonable efforts to correct the problem and to begin performing
such obligation in the required manner as soon as practicable; and (C) at Coors'
request, advise Coors of the status of such corrective efforts.
(b) As one of several ways of measuring EDS' compliance with
this Section, on the six (6) month anniversary of the Commencement Date and
every twelve (12) months thereafter during the Term, EDS shall conduct the
survey described in Section 10.15.2 of Exhibit A. [***]
ARTICLE 5
TRANSFERS OF EQUIPMENT, FACILITIES AND THIRD PARTY CONTRACTS
5.1 Transfer of Equipment
(a) On the Commencement Date, Coors shall transfer or cause to
be transferred to EDS, and EDS shall receive from Coors or its Affiliates, the
equipment, leasehold improvements and fixtures listed and/or described on
Schedule 5.1(a) (the "Transferred Equipment"). Except as set forth in Section
14.2(a) (Coors Representations and Warranties), Coors and its Affiliates are
transferring the Transferred Equipment, and EDS is receiving the Transferred
Equipment, "AS IS, WHERE IS," WITHOUT WARRANTIES OF ANY KIND, AND SPECIFICALLY
WITHOUT ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
On the Commencement Date, Coors shall also assign to EDS, and cause its
Affiliates to assign to EDS, their respective rights under any manufacturer
warranties relating to the Transferred Equipment, to the extent such an
assignment is permitted by such warranties.
(b) On the Commencement Date Coors shall deliver to EDS or its
designee one or more bills of sale in the form attached as Schedule 5.1(b), and
EDS shall deliver to Coors, via wire transfer, [***]
5.2 Golden Data Center and Equipment
(a) On the Commencement Date, Coors shall assign to EDS, and
EDS shall assume from Coors, Coors' interest in the Golden Data Center Lease and
the Golden Data Center. Except as set forth in Section 14.2(c) (Coors
Representations and Warranties), Coors is assigning the Golden Data Center Lease
and its interest in the Golden Data Center, and EDS is assuming the Golden Data
Center Lease and Coors' interest in the Golden Data Center, "AS IS, WHERE IS,"
WITHOUT WARRANTIES OF ANY KIND, AND SPECIFICALLY WITHOUT
11
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EDS
acknowledges that, subject to Section 15.2(a) (Indemnification by Coors) and
Section 15.3 (Mutual Indemnification): (i) it is relying solely upon its own
inspections, investigations and analyses of the Golden Data Center, including,
without limitation, regarding the use, storage, treatment, or disposal of
Hazardous Materials (as defined in the Golden Data Center Lease) thereon; (ii)
Coors has granted it appropriate access and opportunity to conduct such
inspections, investigations and analyses of the Golden Data Center; and (iii) it
is not relying in any way upon any representations, statements, agreements,
warranties, studies, reports, descriptions, guidelines, or other information or
material of Coors or its representatives, whether oral or written, express or
implied, of any nature whatsoever regarding the Golden Data Center Lease or the
Golden Data Center, including, without limitation, regarding the use, storage,
treatment, or disposal of Hazardous Substances thereon, except as expressly set
forth in Section 14.2(c) (Coors Representations and Warranties).
(b) Coors shall allow EDS to use [***], on an "AS IS WHERE IS"
basis, the furniture located at the Golden Data Center on the Commencement Date
during such time as EDS is providing Services to Coors from the Golden Data
Center. During such time period, EDS shall maintain such furniture at its
expense in the same condition it is in on the Commencement Date, reasonable wear
and tear excepted, and shall not remove such furniture from the Golden Data
Center. Coors shall remove such furniture from the Golden Data Center upon
expiration of such time period.
(c) On or before the Commencement Date, Coors and EDS shall
each execute and deliver to the other an Assignment of Lease and Consent to
Assignment of Lease in the form of Schedule 5.2(c) attached to this Agreement
(the "Golden Data Center Assignment"), and on or before the Commencement Date
the Parties shall cause the lessor under the Golden Data Center Lease to execute
and deliver to Coors the Golden Data Center Assignment. Any amounts paid by
Coors pursuant to the Golden Data Center Lease and attributable to the period on
or after the Commencement Date shall be handled in the manner described in
Section 5.3(b).
5.3 Third Party Contracts
(a) Subject to EDS having received any Third Party Consents,
as of the Commencement Date Coors shall assign to EDS, and EDS shall assume from
Coors, the following (collectively, the "Assigned Contracts"):
(i) the Third Party Software Licenses and Third Party
Software listed on Schedule 5.3(a)(i) for which EDS is identified as the
licensee; and
(ii) the Third Party Service Contracts used by Coors
immediately before the Commencement Date to provide any services included within
the Services, as such contracts are listed on Schedule 5.3(a)(ii), excepting
therefrom those contracts identified on Schedule 5.3(a)(ii) as "Managed
Contracts."
Regardless of whether EDS has obtained a Third Party Consent with respect to any
Assigned Contracts, on and after the Commencement Date (i) with respect to
Assigned Contracts listed on Schedule 5.3(a)(i), each Party shall have the
obligations described in Section 7.3(a) relating to
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periods on or after the Commencement Date, and (ii) with respect to Assigned
Contracts listed on Schedule 5.3(a)(ii), EDS shall fulfill all of the payment
and other obligations formerly imposed on Coors relating to periods on and after
the Commencement Date. EDS shall have operational, administrative and financial
responsibility for all Assigned Contracts listed on Schedule 5.3(a)(ii). EDS
shall have operational and administrative responsibility and Coors shall have
financial responsibility for Third Party Service Contracts identified on
Schedule 5.3(a)(ii) as "Managed Contracts." If EDS is unable to obtain any such
Third Party Consent, it shall identify and adopt, [***] subject to Coors' prior
approval, such alternative approaches as are necessary to provide the Services
without such Third Party Consent.
(b) Beginning in September 2001 and continuing each month
thereafter through August 2002, EDS shall pay to Coors by wire transfer on the
first Business Day of the month the amount set forth in Exhibit C-7 for such
month in consideration of payments made by Coors under the contracts listed on
Schedule 5.3(b) attributable to the period on or after the Commencement Date.
(c) Subject to EDS having received any Third Party Consents,
as of the Commencement Date Coors shall grant to EDS, for the sole purpose of
providing the Services (and to the extent necessary for EDS to provide the
Services), rights of access to, and use of:
(i) the Third Party Software Licenses and Third Party
Software listed on Schedule 5.3(a)(i) for which Coors is identified as the
licensee; and
(ii) the Third Party Service Contracts identified on
Schedule 5.3(a)(ii) as "Managed Contracts."
If EDS is unable to obtain any such Third Party Consent, it shall identify and
adopt, at its expense, subject to Coors' prior approval, such alternative
approaches as are necessary to permit EDS to provide the Services without such
Third Party Consent or otherwise to eliminate the need for such Third Party
Consent.
(d) Schedule 5.3(d) lists contracts which, at Coors' option,
Coors may cancel, or otherwise deal with. EDS shall provide the Services without
the benefit or use of such contracts.
(e) Subject to clause (f) below, on or before the Commencement
Date EDS shall obtain: (i) from each third party to an Assigned Contract any
required consent by such third party to the assignment to and assumption by EDS
of such Assigned Contract; and (ii) from each third party to a Third Party
Contract for which a right of access and use is granted to EDS in Section
5.3(c), any required consents by such third party to EDS' access to and use of
such Third Party Contract (collectively, the "Third Party Consents"). EDS shall
use commercially reasonable efforts to minimize the cost of any Third Party
Consents and shall identify to Coors any practical ways to eliminate the need
for such Third Party Consents. In connection with each Assigned Contract, EDS
shall use commercially reasonable efforts to obtain a complete release of Coors
with respect to all obligations arising under the related Assigned Contract on
or after the Commencement Date. [***]
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[***]
(f) With respect to any Third Party Contract which is not
listed on Schedule 5.3(a)(i), 5.3(a)(ii), or 5.3(d) (an "Unidentified Third
Party Contract"), the following shall apply:
(i) if the Unidentified Third Party Contract is a
Third Party Service Contract, such Unidentified Third Party Contract shall be
retained or cancelled by Coors unless the Parties mutually agree that such
contract be assigned to EDS on terms and conditions mutually agreeable to the
Parties, in which case the Unidentified Third Party Contract shall be added to
the appropriate portion of Schedule 5.3(a)(ii), as agreed by the Parties;
(ii) if the Unidentified Third Party Contract is a
Third Party System Software License or a Third Party Applications Software
License: (A) EDS shall, at Coors' request, obtain any applicable Third Party
Consent (either a consent to assignment of the contract to EDS (with respect to
Third Party System Software Licenses), or (with respect to Third Party
Applications Software Licenses), a consent to EDS' access to and use of the
Third Party Applications Software subject to such Third Party Applications
Software License during the Term); (B) EDS shall use commercially reasonable
efforts to minimize the cost of any required Third Party Consent (including
identifying to Coors any practical ways to eliminate the need for such Third
Party Consents), (C) as soon as such Third Party Consent has been obtained, or
determined to be unnecessary, the Third Party Systems Software License or the
Third Party Applications Software licensed pursuant to the Third Party
Applications Software License shall be added to the appropriate section of
Schedule 5.3(a)(i) (in the case of unidentified Third Party Applications
Software Licenses to the "Managed Contracts" section of such Schedule, and in
the case of unidentified Third Party Systems Software Licenses to such Schedule,
but not as "Managed Contracts"); (D) on Schedule 5.3(a)(i) EDS shall be
designated as the licensee of any unidentified Third Party Systems Software
License added to Schedule 5.3(a)(i) pursuant to clause (C) and Coors shall be
designated the licensee of any unidentified Third Party Applications Software
License added to Schedule 5.3(a)(i) pursuant to clause (C); (E) on Schedule
5.3(a)(i) EDS shall be assigned operational and administrative responsibility
and Coors shall be assigned all financial responsibility for any unidentified
Third Party Software License added to Schedule 5.3(a)(i) pursuant to clause (C);
and (F) [***] If EDS is unable to obtain any such Third Party Consent, it shall
identify and adopt [***], subject to Coors' prior approval, such alternative
approaches as are necessary to permit EDS to provide the Services without such
Third Party Consent or otherwise to eliminate the need for such Third Party
Consent.
[***]
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ARTICLE 6
PERSONNEL
6.1 Terms of Employment; Retention Bonuses; 401(k) and Vacation Matters
(a) On or before the Commencement Date, EDS shall have offered
at-will employment to each Coors employee listed on Schedule 6.1(a). Each such
offer shall be in writing, shall be contingent upon execution of this Agreement,
and shall offer (i) a base salary equal to or greater than the base salary paid
by Coors immediately before the Commencement Date, and (ii) a total compensation
package (excluding any applicable Retention Bonus) comparable to the total
compensation package provided by Coors immediately before the Commencement Date.
Schedule 6.1(a) specifies the adjustment that shall be made to the base salary
offered to each Coors employee listed on Schedule 6.1(a) in order to provide
such employee with a total compensation package (excluding any applicable
Retention Bonus) comparable to the total compensation package provided by Coors
immediately before the Commencement Date, and the Parties acknowledge and agree
that no other adjustments shall be necessary for EDS to comply with the
requirements of Section 6.1(a)(ii). EDS shall give each such employee who
accepts such offer (a "Transferred Employee") full credit under all EDS
seniority-based benefits plans (including, without limitation, vacation, 401(k)
and other retirement plans, severance and employee stock purchase plans) for
years of service at Coors or elsewhere to the same extent that Coors had given
credit for that employee's years of service, and shall permit the Transferred
Employees to participate in all benefit plans in which similarly situated EDS
employees participate. Any pre-existing condition limitations for conditions
covered by EDS' health benefits plans and waiting periods under EDS benefit
plans shall be waived for all Transferred Employees. EDS shall grant each
Transferred Employee the same rights and opportunities for advancement, and the
same increases in compensation, as are provided to similarly situated employees
currently employed by EDS.
(b) Coors shall pay to each Transferred Employee his or her
accrued vacation obligation, in accordance with Coors' standard policies and
procedures for such payments, and subject to standard tax withholding
requirements. On the Commencement Date, EDS shall grant to each Transferred
Employee paid vacation leave for the remainder of the 2001 calendar year in an
amount equal to: (i) the total yearly amount of paid vacation leave each such
Transferred Employee accrued at Coors on January 1, 2001, multiplied by (ii) the
percentage of calendar year 2001 remaining after the Commencement Date.
Beginning on January 1, 2002, each Transferred Employee shall accrue vacation in
accordance with generally-applicable EDS policies based on such Transferred
Employee's years of service; provided, however, that for so long as any
Transferred Employee continues to work on the Coors account such Transferred
Employee shall accrue vacation at an annual rate not less than the annual rate
at which he or she had accrued vacation as of the day before the Commencement
Date.
(c) On the Commencement Date, or as soon after the
Commencement Date as is reasonably practicable, Coors shall cause the Coors
Savings and Investment Plan (the "Coors Plan") to transfer to the EDS 401(k)
Plan (the "EDS Plan") an amount in cash and in promissory notes (to the extent
participant loans have been made from the Coors Plan) equal to the account
balances in the Coors Plan of those Transferred Employees who elect to transfer
their balances to the EDS Plan (the "Plan Transfer"), valued as of the most
recent valuation date preceding the
15
date the transfer is made to the EDS Plan (but no earlier than the Commencement
Date). The Plan Transfer shall be accomplished in full compliance with the
applicable provisions of ERISA, the Internal Revenue Code, and the regulations
and rules promulgated thereunder with respect to elective transfers and each
Party shall cooperate fully to effect the Plan Transfer. To the extent
practicable, the Plan Transfer shall be accomplished by way of a single transfer
of plan assets (either cash or promissory notes) and shall not occur until the
Transferred Employees' account balances under the Coors Plan have been
determined, except to the extent that subsequent transfers between the two
trusts are required to reconcile any errors in the calculations or data. EDS
shall collect loan repayments through regular payroll deduction for those
Transferred Employees who have loans from the Coors Plan outstanding as of the
Commencement Date, and EDS shall administer the collection, accounting and
transmission of such monies as directed by the EDS Plan. Transferred Employees
shall not accrue any benefits under the Coors Plan as of any date after the
Commencement Date (unless reemployed by Coors or its ERISA affiliates). EDS
agrees that once the Plan Transfer has been made, the sole and exclusive
responsibility for providing benefits accrued by the Transferred Employees under
the Coors Plan as of the transfer date and transferred to the EDS Plan shall be
that of the EDS Plan and EDS. Transferred Employees shall be required to sign
new salary deferral agreements with respect to the EDS Plan.
(d) Coors shall be responsible for all claims with respect to
Transferred Employees and their dependents incurred prior to the Commencement
Date to the extent provided under Coors' applicable benefit plans. EDS shall be
responsible for all claims with respect to Transferred Employees and their
dependents incurred on or after the Commencement Date to the extent provided
under EDS' applicable benefit plans.
(e) Nothing in this Agreement shall be deemed to create an
employment contract with any Coors employee or to grant any such employee any
rights under this Agreement as a third party beneficiary.
6.2 Key Transferred Employees
(a) EDS acknowledges that the Transferred Employees identified
in Schedule 6.2 (the "Key Transferred Employees") are critical to providing the
Services during the initial portion of the Term. EDS shall not, for the period
set forth next to such Key Transferred Employee's name in Schedule 6.2, without
Coors' prior written approval: (i) transfer such Key Transferred Employee from
the Coors account to another position within EDS or an EDS Affiliate, or (ii)
provide any Service performed by such Key Transferred Employee from a facility
other than the facility at which such Key Transferred Employee worked on the
date immediately preceding the Commencement Date. [***} For purposes of the
foregoing sentence, the term "cause" means (1) breach of any agreement entered
into between the employee and EDS; (2) misconduct; (3) failure to follow EDS'
policies, directives or orders applicable to EDS employees holding comparable
positions; (4) intentional destruction or theft of EDS property or
falsification of EDS documents; (5) failure or refusal to faithfully,
diligently, and competently perform the usual and
16
customary duties associated with the employee's position; (6) conviction of a
felony or any crime involving moral turpitude; or (7) violation of the EDS Code
of Conduct.
(b) EDS shall pay on the three (3), six (6), nine (9) and
twelve (12) month anniversaries of the Commencement Date to each Key Transferred
Employee identified in a side letter between EDS and Coors dated as of July 23,
2001 who (i) remains employed by EDS on such date, (ii) has been dedicated to
the Coors account between the Commencement Date and such date, and (iii) has
performed his or her responsibilities at a satisfactory level during such
period, the amount set forth in such side letter (the "Retention Bonus"). EDS
shall pay when due to the appropriate government authority any payroll taxes
applicable to the Retention Bonuses, and shall make any other deductions
required by law or approved by the Key Transferred Employee.
6.3 Key EDS Positions
(a) EDS acknowledges that the personnel filling the positions
identified in Schedule 6.3 (the "Key EDS Positions") are critical to providing
the Services throughout the Term. Coors may change or add to the Key EDS
Positions from time to time during the Term with EDS' consent. EDS shall cause
the personnel filling the Key EDS Positions to devote to the provision of the
Services the time and effort described in Schedule 6.3.
(b) The individuals who will fill the Key EDS Positions on the
Commencement Date are listed in Schedule 6.3. EDS shall not, from the date an
individual first fills a Key EDS Position until completion of the period set
forth next to such Key EDS Position in Schedule 6.3, without Coors prior written
approval, transfer any individual from such Key EDS Position to another position
within EDS or an EDS Affiliate.
(c) Before assigning an individual to fill a Key EDS Position,
EDS shall notify Coors of the proposed assignment, shall introduce the
individual to appropriate Coors representatives, and shall provide Coors with a
resume and such other information as Coors may reasonably request. If Coors
objects in good faith to the proposed assignment within fifteen (15) days after
being notified thereof, EDS shall discuss such objections with Coors and attempt
to resolve them on a mutually agreeable basis. If Coors continues to object to
the proposed assignment, EDS shall not assign the individual to that position
and shall propose another individual to fill the Key EDS Position. Nothing in
this Section shall be deemed to prevent EDS from hiring such individual or to
require EDS to terminate the employment of such individual.
(d) EDS acknowledges that the personnel filling the Key EDS
Positions are particularly likely to have access to sensitive Coors Confidential
Information which is critical to Coors' global competitiveness. EDS shall not
use any personnel filling the Key EDS Positions from time to time during the
Term to provide any services (whether similar or dissimilar to the Services) to
any Coors Competitor at any time while they fill such Key EDS Position or for
two (2) years thereafter.
6.4 Removal of EDS Employees from Coors Account
Coors shall have the right to notify EDS if Coors determines in good
faith that the continued assignment to the Coors account of any EDS Personnel is
not in the best interests of
17
Coors. Upon receipt of such notice, EDS shall have a reasonable time period to
investigate the matters stated therein, discuss its findings with Coors and
attempt to resolve such matters in a manner acceptable to Coors. If Coors
continues to request the replacement of such individual after such period, EDS
shall remove the individual from the Coors account. Nothing in this Section
shall be deemed to require EDS to terminate the employment of such individual.
6.5 Excessive Turnover
The Parties agree that it is generally in the best interest of both
Parties to keep the turnover rate of the EDS employees providing the Services to
a reasonably low level. On each anniversary of the Commencement Date EDS shall
provide Coors with such data as Coors may request regarding the turnover rate of
such employees in the preceding one (1) year and the turnover rate of all EDS
employees in the preceding one (1) year. If Coors notifies EDS that Coors
believes the turnover rate of EDS employees providing the Services is
unreasonably high, the appropriate EDS officials shall meet with Coors to
discuss the reasons for the rate of turnover and possible remedies, and EDS
shall develop and implement a plan reasonably anticipated to reduce such
turnover to a reasonable level.
6.6 No Employment Offers
Except as set forth in Section 17.12 (Offers to EDS Employees), during
the Term Coors shall not extend offers of employment to, or directly or
indirectly solicit the employment of, any EDS employee who provided the Services
during the three (3) months preceding such offer or solicitation. During the
Term, while EDS is providing any Termination Assistance, EDS shall not extend
offers of employment to, or directly or indirectly solicit the employment of,
any Coors employees providing information technology services.
6.7 Security
EDS shall, upon Coors' reasonable request, inspect and search the
employees, agents and representatives of EDS and EDS Subcontractors, and their
respective vehicles or belongings, on a non-routine basis to ensure compliance
with Coors' security policies. EDS shall ensure (or with respect to EDS
Subcontractors cause such subcontractors to ensure) that any of the employees,
agents and representatives of EDS and EDS Subcontractors who will be on the
Coors' premises will have given their consent to the inspections and/or searches
contemplated by this Section.
6.8 Safety
EDS shall ensure (and with respect to EDS Subcontractors shall cause
such subcontractors to ensure) that each employee, agent and representative of
EDS or an EDS Subcontractor shall comply with the terms and conditions set forth
in "Environmental Health, Safety and General Policies" attached hereto as
Exhibit E.
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ARTICLE 7
INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS
7.1 Coors Software
As of the Commencement Date, Coors grants to EDS a worldwide, royalty
free, nonexclusive license during the Term to use the Coors Software for the
sole purpose of providing the Services pursuant to this Agreement. EDS shall
not use Coors Software for any other purpose, and EDS shall not have the right
to grant sublicenses without Coors' consent, which may be withheld in Coors'
sole discretion. EDS shall cease all use of Coors Software upon expiration or
earlier termination of the Term. Except for the foregoing license, Coors retains
all right, title and interest in and to the Coors Software.
7.2 EDS Software
EDS shall install, operate and maintain at its expense any EDS
Software needed to provide the Services. EDS shall not use in performing the
Services any EDS Software unless such EDS Software is available to Coors
following the Term without charge and upon reasonable terms. As of the
Commencement Date, EDS grants to Coors, its Affiliates, the third parties
described in Section 3.3 and their respective contractors and subcontractors, a
worldwide, royalty free, nonexclusive license during the Term to use EDS
Software for the benefit of Coors and its Affiliates. Except for the foregoing
license, EDS retains all right, title and interest in and to the EDS Software.
7.3 Third Party Software
(a) With respect to Third Party Software Licenses, each Party
shall be the licensee of any Third Party Software License for which it is the
designated licensee pursuant to Schedule 5.3(a)(i) and each Party shall have the
operational, financial and administrative obligations allocated to it on
Schedule 5.3(a)(i) (in each case, as such Schedule is amended from time to time
pursuant to Section 5.3(f)(ii), subsections (b) or (c) of this Section 7.3, or
Section 9.9). Notwithstanding the preceding sentence and the Parties'
obligations set forth in Schedule 5.3(a)(i), when EDS acquires refresh
Equipment, or additional Equipment for which Coors is charged an ARC, EDS shall
have operational, financial and administrative responsibility for the OEM
license for the operating system for such Equipment.
(b) With respect to Third Party Systems Software Licenses
entered into by EDS after the Commencement Date: (i) such Third Party Systems
Software Licenses shall be added to Schedule 5.3(a)(i) (but not as "Managed
Contracts);" (ii) EDS shall be the designated licensee under any such Third
Party Systems Software Licenses so added to Schedule 5.3(a)(i) (and shall comply
with all obligations imposed on the licensee thereunder); and (iii) EDS shall
be allocated operational, administrative and all financial responsibility for
any such Third Party Systems Software Licenses so added to Schedule 5.3(a)(i).
EDS shall not introduce any Third Party Systems Software unless such Third
Party Systems Software is generally available to Coors or a successor provider
of the Services on commercially reasonable terms from a recognized provider of
software.
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(c) EDS shall install, operate and support additional Third
Party Applications Software designated by Coors from time to time during the
Term in accordance with the Change Control Procedures. Unless otherwise agreed
in the Change Control Procedures, with respect to Third Party Applications
Software Licenses entered into after the Commencement Date: (i) such Third Party
Applications Software Licenses shall be added to Schedule 5.3(a)(i) (but not
under "Managed Contracts"); (ii) Coors shall be the designated licensee under
any such Third Party Applications Software Licenses so added to Schedule
5.3(a)(i); and (iii) EDS shall be allocated operational, administrative and all
financial responsibility for any such Third Party Applications Software Licenses
so added to Schedule 5.3(a)(i). EDS shall obtain [***] from each party to a
Third Party Applications Software License entered into by Coors after the
Commencement Date any required consent by such third party to EDS' access to and
use of the associated Third Party Applications Software during the Term. If EDS
is unable to obtain the consent of any such third party, it shall identify and
adopt, [***] by mutual agreement of the Parties, such alternative approaches as
are necessary to permit EDS to provide the Services without such consent or
otherwise to eliminate the need for such consent. EDS shall not introduce any
Third Party Applications Software which will be used or accessed by Coors
end-users without Coors' prior written consent.
(d) Subject to any applicable obligations of Coors set forth
in Schedule 5.3(a)(i) and to Section 9.8, EDS shall, to the extent necessary or
appropriate to provide the Services: (i) maintain Third Party Software used by
Coors on the Commencement Date; (ii) upgrade, enhance, expand the scope of
licenses for, and implement new versions of Third Party Systems Software and, at
Coors' request, Third Party Applications Software; and (iii) replace or add to
Third Party Systems Software and, pursuant to the Change Control Procedures,
Third Party Applications Software.
7.4 Other Intellectual Property
(a) Each Party shall be the sole owner of all Intellectual
Property owned by it as of the Commencement Date or developed by it during the
Term independent of the Services and this Agreement.
(b) Coors shall be the sole and exclusive owner of all trade
secret rights and copyrights in any reports, diagrams, charts and illustrative
graphics, run books, manuals (including the Procedures Manual) and other works
prepared by EDS for use by or on behalf of Coors pursuant to this Agreement and
in any enhancements to and modifications of Coors Software created by EDS and/or
implemented in the course of providing Services under this Agreement, and EDS
shall retain and be the sole owner of all patent rights therein (except to the
extent that such patent rights relate specifically to manufacturing,
distributing and selling beer or other malt-based beverages (as opposed to
generic process control, data processing and data communications), in which case
such patent rights shall be owned solely by Coors). In the case of such works
that are derivative from EDS Software ("EDS Enhancements"), EDS shall continue
to own all Intellectual Property rights in the EDS Enhancements and EDS shall be
deemed to have granted to Coors a perpetual, non-exclusive, royalty-free right
and license to copy and use as part of the EDS Enhancements the items of EDS
Software underlying such EDS Enhancements. All works described in this Section
7.4(b) (other than EDS Enhancements) and fixed in any tangible medium shall be
considered as "works for hire" commissioned by Coors
20
under the copyright laws of the United States. If any such tangible work is not
considered a work for hire under applicable law, EDS hereby irrevocably assigns
to Coors, effective immediately on the creation of such work, all of EDS' right,
title and interest in and to copyright and trade secret rights embodied in such
tangible work, subject to EDS' continuing ownership of EDS Software underlying
EDS Enhancements and the corresponding license thereof to Coors as set forth
above. EDS shall provide on a timely basis all assistance (including without
limitation the execution and delivery of all required documents and instruments)
to Coors reasonably requested by Coors for the reflection of the ownership by
Coors of the Intellectual Property rights Coors owns pursuant to this Section
7.4(b).
(c) EDS grants to Coors during the Term and thereafter a
perpetual, non-exclusive, royalty-free, worldwide right and license to copy,
distribute, make, use and otherwise exploit all Intellectual Property owned by
EDS used in providing any of the Services during the Term, solely for use by
Coors, Coors Affiliates and the other entities described in Section 3.3 (or by
any third party service provider) for the benefit of Coors and its Affiliates in
the performance of activities encompassed within the scope of the Services or
activities that are reasonable extensions or expansions of such activities.
Coors acknowledges and agrees that in the event that during the Term any EDS
Software is modified pursuant to this Agreement by Coors, any Affiliate of Coors
or any third party described in Section 3.3, EDS will not be required to support
or maintain such modifications and EDS shall be relieved of any obligation
hereunder to the extent that such modifications adversely affect EDS' ability to
perform the Services or meet the Service Levels.
(d) EDS shall be the sole and exclusive owner of all
Intellectual Property in any enhancements to and modifications of Third Party
Software developed by EDS in the ordinary course pursuant to this Agreement to
the extent such enhancements and modifications are not owned by the licensor of
such Third Party Software; provided, however, that, to the extent EDS is the
owner of such enhancements and modifications, EDS hereby grants to Coors a
perpetual, non-exclusive, royalty-free, worldwide license to use, modify, create
derivative works from, and sublicense any such enhancements and modifications,
as well as the right to practice all patents, if any, required to permit such
use, modification and creation of derivative works. To the extent EDS has the
right to do so, EDS shall provide to Coors at Coors' request during the Term or
within one (1) year thereafter all source code, object code and documentation
reasonably required to make full use of the foregoing licenses.
(e) Neither EDS nor Coors shall use any trademarks,
servicemarks, tradenames, logos or other indicia of the other Party without such
other Party's prior written consent, which may be withheld in such other Party's
sole discretion.
7.5 Residual Rights
Nothing in this Agreement shall restrict a Party from the use of any
ideas, concepts, know-how, methods or techniques not fixed in a tangible medium
during the term of this Agreement ("Residual Subject Matter") relating to data
processing that such Party, individually or jointly, develops or discloses under
this Agreement, except to the extent such use (a) infringes the other Party's
patent rights and is not otherwise authorized under this Agreement or (b)
involves a disclosure of the Other Party's Confidential Information. EDS
specifically
21
acknowledges that any information relating to the manufacturing of beer or other
malt-based beverages learned by EDS Personnel during the course of (and as a
result of) providing Services is not Residual Subject Matter under this Section.
7.6 Non-Infringement
Each Party shall perform its obligations under this Agreement in a
manner that does not infringe, or constitute an infringement or misappropriation
of, any patent, copyright, trademark, trade secret or other proprietary rights
of any third party.
7.7 Disabling Code
EDS shall not insert into any Software any code which would have the
effect of disabling any Software, Equipment or portion of the Services. With
respect to any disabling code that may be part of the Software, EDS shall not
invoke such disabling code at any time (whether during or after the Term) for
any reason.
7.8 EDS Software Warranty
EDS warrants that all EDS Software used to provide Services and all
Software developed by EDS pursuant to this Agreement (i) shall display, print
and transmit dates in a format which represent the dates accurately and
unambiguously and (ii) shall perform all date arithmetic in a fashion such that
the days between two specified dates calculated by such Software are accurate
regardless of the month and/or year in which either of the two dates occurs.
ARTICLE 8
CONFIDENTIALITY
8.1 Definitions
(a) "Disclosing Party" means the Party furnishing Confidential
information and "Receiving Party" means the Party receiving the Confidential
Information disclosed by the Disclosing Party.
(b) "Confidential Information" means information designated as
confidential or which ought to be considered as confidential from its nature or
from the circumstances surrounding its disclosure. EDS Confidential Information
includes, without limiting the generality of the foregoing, EDS Software. Coors
Confidential Information includes, without limiting the generality of the
foregoing, Coors Software and information relating to manufacturing,
distributing and selling beer or other malt-based beverages. The Disclosing
Party's Confidential Information includes, without limiting the generality of
the foregoing, the terms of this Agreement, and information:
(i) relating to the Disclosing Party's or its
Affiliates' software or hardware products or services, or to its or its
Affiliates' research and development projects or plans;
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(ii) relating to the Disclosing Party's or its Affiliates'
business, policies, strategies, operations, finances, plans or
opportunities, including the identity of, or particulars about, the
Disclosing Party's or its Affiliates' clients or suppliers; and
(iii) marked "Official Business Use Only," "Confidential,"
"Highly Confidential" or otherwise identified as confidential, restricted,
secret or proprietary, including, without limiting the generality of the
foregoing, information acquired by inspection or oral disclosure provided
such information was identified as confidential at the time of disclosure
or inspection and is confirmed in writing within ten Business Days after
the disclosure or inspection.
Notwithstanding the foregoing, Confidential Information does not
include information which the Receiving Party can establish:
(A) has become generally available to the public or
commonly known in either Party's business other than as a result of a
breach by the Receiving Party of any obligation to the Disclosing Party;
(B) was known to the Receiving Party prior to
disclosure to the Receiving Party by the Disclosing Party by reason other
than having been previously disclosed in confidence to the Receiving Party;
(C) was disclosed to the Receiving Party on a
non-confidential basis by a third party who did not owe an obligation of
confidence to the Disclosing Party with respect to the disclosed
information; or
(D) was independently developed by the Receiving Party
without any recourse to any part of the Confidential Information.
(c) "Confidential Materials" means the part of any tangible media
upon or within which any part of the Confidential Information is recorded
or reproduced in any form, excluding any storage device which forms a part
of computer hardware.
8.2 Rights, Restrictions and Obligations of the Receiving Party
(a) During the Term, the Receiving Party may:
(i) disclose Confidential Information received from the
Disclosing Party only to its subcontractors, equipment lessors, agents,
representatives, advisors, employees, officers, directors and Affiliates
who have a need to know such information exclusively for the purpose of
executing its obligations or exercising its rights under this Agreement;
(ii) reproduce the Confidential Information received from
the Disclosing Party only as required to execute its obligations or
exercise its rights under this Agreement; and
(iii) disclose Confidential Information as required by law,
provided the Receiving Party gives the Disclosing Party prompt notice prior
to such disclosure to allow
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the Disclosing Party to make a reasonable effort to obtain a protective
order or otherwise protect the confidentiality of such information.
(b) Except as otherwise specifically provided in this Agreement,
the Receiving Party shall not during the Term and after expiration or
earlier termination hereof:
(i) disclose, in whole or in part, any Confidential
Information received directly or indirectly from the Disclosing Party; or
(ii) sell, rent, lease, transfer, encumber, pledge,
reproduce, publish, transmit, translate, modify, reverse engineer, compile,
disassemble or otherwise use the Confidential Information in whole or in
part.
(c) The Receiving Party shall exercise the same care in
preventing unauthorized disclosure or use of the Confidential Information
that it takes to protect its own information of a similar nature, but in no
event less than reasonable care. Reasonable care includes, without limiting
the generality of the foregoing:
(i) informing the Receiving Party's subcontractors, agents,
representatives and Affiliates who have access to the Confidential
Information, and, where applicable, their respective advisors, directors,
officers and employees, of the confidential nature of the Confidential
Information and the terms of this Agreement, directing them to comply with
these terms, and, if the circumstances warrant, or upon the Disclosing
Party's reasonable request, obtaining their written acknowledgment that
they have been so informed and directed, and their written undertaking to
abide by these terms; and
(ii) notifying the Disclosing Party immediately upon
discovery of any loss, unauthorized disclosure or use of Confidential
Information, or any other breach of this Article by the Receiving Party,
and assisting the Disclosing Party in every reasonable way to help the
Disclosing Party regain possession of the Confidential Information and to
prevent further unauthorized disclosure or use.
(d) The Receiving Party acknowledges that:
(i) the Disclosing Party possesses and will continue to
possess Confidential Information that has been created, discovered or
developed by or on behalf of the Disclosing Party, or otherwise provided to
the Disclosing Party by third parties, which information has commercial
value and is not in the public domain;
(ii) unauthorized use or disclosure of Confidential
Information is likely to cause injury not readily measurable in monetary
damages, and therefore irreparable;
(iii) in the event of an unauthorized use or disclosure of
Confidential Information, the Disclosing Party shall be entitled, without
waiving any other rights or remedies, to such injunctive or equitable
relief as may be deemed proper by a court of competent jurisdiction;
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(iv) subject to the rights expressly granted to the
Receiving Party in this Agreement, (A) the Disclosing Party and its
licensors retain all right, title and interest in and to the Confidential
Information, including without limiting the generality of the foregoing,
title to all Confidential Materials regardless of whether provided by or on
behalf of the Disclosing Party or created by the Receiving Party, and (B)
at no time during or after the Term shall the Receiving Party have, and the
Receiving Party hereby waives, any interest in or statutory or common law
lien, claim or encumbrance on the Confidential Information of the
Disclosing Party; and
(v) any disclosure by the subcontractors, agents,
representatives, advisors, directors, officers, employees and Affiliates of
the Receiving Party and, where applicable, their directors, officers and
employees shall be deemed to be disclosure by the Receiving Party and the
Receiving Party shall be liable for any such disclosure as if the Receiving
Party had disclosed the Confidential Information.
8.3 Return/Destruction of Confidential Information
(a) Subject to the rights expressly granted to Coors in this
Agreement with respect to EDS Confidential Information, immediately upon
the Disclosing Party's request, and at the expiration or earlier
termination of this Agreement, the Receiving Party shall unconditionally:
(i) return all Confidential Materials, including, without
limitation, all originals, copies, reproductions and summaries of
Confidential Information; and
(ii) destroy all copies of Confidential Information in its
possession, power or control, which are present on magnetic media, optical
disk, volatile memory or other storage device, in a manner that assures the
Confidential Information is rendered unrecoverable.
Upon completion of those tasks an officer of the Receiving Party shall
provide written confirmation to the Disclosing Party that the requirements
of this Section have been complied with.
(b) The Disclosing Party may visit the Receiving Party's
premises, upon reasonable prior notice and during normal business hours, to
review the Receiving Party's compliance with the terms of this Section.
8.4 Nondisclosure Agreements
EDS shall require each of its employees and each Subcontractor to be
bound by a confidentiality agreement with confidentiality restrictions that
are no less restrictive than those set forth herein.
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ARTICLE 9
CONTRACT MANAGEMENT
9.1 Project Executives
On or before the Commencement Date, and from time to time thereafter
during the Term, Coors and (subject to Section 6.3 (Key EDS Positions)) EDS
shall each designate an individual as its project executive (the "Project
Executive"). EDS' Project Executive shall be the executive account manager
for the Coors account and shall devote substantially full time and effort
to the Coors Account. A Party's Project Executive shall be authorized to
act as the primary contact for such Party with respect to all matters
relating to this Agreement.
9.2 Steering Committee
On or before the Commencement Date, the Parties shall form a joint
committee (the "Steering Committee"), consisting of three (3) members
selected from time to time by Coors and three (3) members selected from
time to time by EDS. The Steering Committee shall meet monthly until the
Transition Services have been completed, and quarterly thereafter. The
Steering Committee shall (i) review monthly performance reports for the
period since its last meeting, (ii) review the overall performance of EDS
in providing the Services, (iii) attempt to resolve any outstanding issues,
(iv) discuss long-term strategies for ensuring Coors receives the
information technology services it requires, and (v) such other matters as
the Parties desire.
9.3 Use of Coors Facilities
(a) On the Commencement Date and continuing throughout the Term,
Coors shall make available to EDS [***] on an "AS IS WHERE IS" basis
furnished space in Coors' facilities in Golden,
Colorado, Memphis,
Tennessee, and Shenandoah, West Virginia, for use by Transferred Employees
(or their respective replacements) and other EDS Personnel as reasonably
necessary to provide the Services (excluding Services to be provided from
the Data Center and/or the Sacramento Service Management Center). Coors
shall determine in its reasonable discretion the space to be provided to
such EDS Personnel; provided, that such space shall, if available, be
comparable to the space provided to similarly situated Coors employees.
Coors shall also provide at each of such locations, on an "AS IS WHERE IS"
basis (i) a staging area for deployment of desktop and notebook computers,
and (ii) a secure storage area for storage of spare equipment used to
provide the Services. [***] shared office equipment and services such as
photocopiers, mail service, janitorial service, heat, light, and air
conditioning as reasonably required by the EDS Personnel, to provide the
Services, up to but not exceeding the level provided by Coors for the
Transferred Employees immediately before the Commencement Date.
(b) After the migration of the Services provided from the Golden
Data Center on of the Commencement Date to EDS' Sacramento Service
Management Center, Coors shall also make available to EDS [***] on an "AS
IS WHERE IS" basis space at the appropriate Coors facility(ies) as is
reasonably necessary to house equipment that was not moved
26
as part of the migration to EDS' Sacramento Service Management Center and
is used to provide the Services.
(c) EDS shall: (i) use the space provided to EDS pursuant to this
Section for the sole purpose of providing the Services; (ii) comply with
the leases and other agreements applicable to such space; (iii) comply with
all policies and procedures governing access to and use of such space; and
(iv) at the end of Term or on such earlier date that EDS ceases to use
such space return such space to Coors in the same condition it was in on
the Commencement Date (or on the date such space was first occupied by
EDS, if such date is after the Commencement Date), ordinary wear and tear
excepted.
9.4 Coors Office Space at Data Center
EDS shall provide to Coors [***] on a nonexclusive basis furnished
office space at any Data Center used to provide Services for the occasional
use of the Coors Project Executive or his or her designees when visiting
such Data Center. The Coors Project Executive or his or her designees shall
comply with all policies and procedures governing access to and use of such
Data Centers and shall leave such space in the same condition it was in
immediately before they used the space, ordinary wear and tear excepted.
9.5 Meetings
Throughout the Term, the Parties shall hold the meetings set forth in
Schedule 9.5 at the frequency set forth therein. Each Party shall bear the
cost of its participation in such meetings. EDS shall distribute an agenda
sufficiently before each meeting to enable the participants to prepare for
it. EDS shall distribute minutes of each meeting within seven days after
its conclusion, and the Parties shall sign such minutes once they have been
approved.
9.6 Reports
EDS shall prepare and deliver to Coors the reports described in
Attachment A-5 to Exhibit A by the respective deadlines specified elsewhere
in this Agreement or, if not so specified, within five (5) Business Days
after the end of each calendar month. Such reports shall be in such format
and medium and shall include such information as Coors may reasonably
request.
9.7 Procedures Manual
(a) Within one-hundred twenty (120) days after the Commencement
Date, EDS shall deliver to Coors for review and comment a draft of a manual
(the "Procedures Manual") describing in detail how EDS shall perform the
Services, the Equipment and Software used to provide the Services, the
documentation (such as operations manuals, user guides, and forms of
Service Level reports and requests for approvals or information) which
provides further information regarding the Services, and the interfaces
between EDS and Coors. The Procedures Manual shall describe the activities
EDS proposes to undertake in order to provide the Services, including,
where appropriate, those direction, supervision, monitoring, quality
assurance, staffing, reporting, planning and oversight activities normally
undertaken at facilities that provide services of the type EDS shall
provide under this Agreement, and further including
27
acceptance testing and quality assurance procedures approved by Coors. EDS
shall incorporate any reasonable comments and suggestions made by Coors
within 30 days following Coors' receipt of EDS' draft of the Procedures
Manual and shall deliver a revised Procedures Manual to Coors within one
hundred eighty (180) days after the Commencement Date. The final Procedures
Manual shall be subject to Coors' approval.
(b) EDS shall update the Procedures Manual throughout the Term to
reflect changes in the Services and the procedures and resources used to
provide the Services. Updates to the Procedures Manual shall also be
provided to Coors for review, comment and approval.
(c) EDS shall perform the Services in accordance with the
then-existing Procedures Manual. In the event of a conflict between the
provisions of this Agreement and the Procedures Manual, the provisions of
this Agreement shall control.
9.8 Technical Change Control
EDS shall implement any changes in the technical environment and
systems used to provide the Services in accordance with Section 10.13 of
Exhibit A and with the Procedures Manual. Until such Procedures Manual is
finalized, EDS shall follow Coors' existing procedures for the
implementation of technical changes. Notwithstanding anything to the
contrary in the Procedures Manual or Coors' existing procedures:
(a) EDS shall not make any change that would have a material
effect on the Services (including, without limitation, changes in
Equipment, Software and systems configurations, changes that would affect
the remigration of the Services back to Coors or to a third party service
provider, system-architecture changes, or changes that would affect end
users), Service Levels, the amounts payable to EDS under this Agreement or
other Coors costs and expenses without Coors' prior written consent, which
consent may be withheld in Coors' sole discretion. Notwithstanding the
foregoing, EDS may make temporary changes required by an emergency but
shall, if reasonably practicable, contact appropriate Coors personnel to
obtain prior approval. EDS shall promptly document and report such
emergency changes to Coors.
(b) EDS shall move programs from development and test
environments to production environments in a controlled and documented
manner, and shall not permit any changes to be introduced into such
programs during such move without first obtaining Coors' approval.
9.9 Contract Change Control
(a) From time to time during the Term Coors or EDS may propose
changes in or additions to the Services or other aspects of this Agreement.
Subject to clause (d) below, all such changes shall be implemented pursuant
to the procedures set forth in this Section (the "Change Control
Procedures").
(b) If Coors desires to propose a change in or addition to the
Services or other aspects of this Agreement, it shall deliver a written
notice to the EDS Project Executive describing the proposal. EDS shall
respond to such proposal as promptly as reasonably possible by preparing at
EDS' expense and delivering to the Coors Project Executive a written
document
28
(a "Change Control Document"), indicating: (i) the effect of the proposal,
if any, on the amounts payable by Coors hereunder (which effect shall be
determined in the manner set forth in Section 12.4 (Charges Pursuant to
Change Control Procedures)) and the manner in which such effect was
calculated; (ii) the effect of the proposal, if any, on Service Levels;
(iii) the anticipated time schedule for implementing the proposal; and (iv)
any other information requested in the proposal or reasonably necessary for
Coors to make an informed decision regarding the proposal, including,
without limitation, the effect of the proposal on Coors' costs and expenses
relating to its human resources, Equipment and Software. If EDS desires to
propose a change in or addition to the Services or other aspects of this
Agreement, it may do so by preparing at its expense and delivering a Change
Control Document to the Coors Project Executive. A Change Control Document
shall constitute an offer by EDS to implement the proposal described
therein on the terms set forth therein, and shall be irrevocable for a
minimum of thirty (30) days.
(c) No change in or addition to the Services or any other aspect
of this Agreement shall become effective without the written approval of
both the Coors Project Executive and the EDS Project Executive. If Coors
elects to accept the offer set forth in the Change Control Document, as
evidenced by the written approval of the Coors Project Executive, any
changes in or additions to the Services described in the Change Control
Document shall thereafter be deemed "Services," any other changes described
in the Change Control Document shall be deemed to have amended this
Agreement, and the Parties shall agree on any further modifications to the
Agreement required to reflect the Change Control Document.
(d) Routine changes made in the ordinary course of EDS' provision
of the Services that are performed within the then-existing chargeable
resources used to provide the Services and that do not affect Service
Levels (such as changes to operating protocols, schedules and Equipment
configurations) [***] shall be made and documented in accordance with the
Procedures Manual.
9.10 Benchmarking
(a) Each time, if any, that EDS initiates a material change in
the operating environment in which EDS is operating Software (a "System
Change"), EDS shall perform a comparison, at a reasonable and mutually
agreed level of detail, between the amount of resources required by that
Software to perform a representative sample of the data processing then
being performed for Coors immediately prior to the System Change and
immediately after the System Change. [***] Any such demonstration shall
utilize the same representative sample as used in the comparison above.
This clause (a) shall not apply to changes in the operating environment
made at Coors' request.
(b) Coors may, at its option and expense, measure from time to
time during the Term, Service Levels being achieved by EDS and other
indicia of the quality, effectiveness and efficiency of the Services
performed by EDS. EDS shall cooperate with Coors and any third party
retained by Coors to conduct such measurements. EDS shall cooperate with
Coors to
29
investigate unfavorable findings and the Parties shall mutually agree upon
any necessary corrective action.
(c) At Coors' option, exercised in its sole discretion, from time
to time during the Term (but no earlier than thirty (30) months following
the Commencement Date and no more frequently than every thirty (30) months
thereafter, except in accordance with Section 12.5(b)), the Parties shall
jointly engage the services of The Gartner Group or Compass America, Inc.
(as determined by Coors in its sole discretion), or any other independent
benchmarking service mutually agreeable to the Parties (collectively, the
"Benchmarker"), to review the amounts charged by EDS for the Services and
to compare such amounts to the amounts charged by EDS and other similar
service providers to other customers for services similar in scope, volume
and quality of the Services as determined by the Benchmarker after input
from both Coors and EDS. In making such comparison, the Benchmarker shall
make appropriate adjustments necessary to normalize the Services to the
services provided to the comparison group of other customers. [***]
9.11 Subcontracting
(a) EDS shall not delegate or subcontract any of its obligations
under this Agreement without Coors' prior written consent, which may be
withheld in Coors' sole discretion. Notwithstanding the preceding sentence,
but subject to clauses (c) and (d) below, EDS may, in the ordinary course
of business: (i) enter into umbrella-type subcontracts (i.e., those that
apply to Coors as well as other EDS clients) with third parties to provide
support services which will not cause such third parties to directly
interact with Coors personnel or end users (such as umbrella software
licenses, equipment purchase agreements, and agreements for janitorial or
plumbing services); and (ii) subcontract with third parties to provide
services that are specific to Coors (including subcontracts which might
cause such third parties to directly interact with Coors personnel or end
users) provided that each such subcontract (together with any related
subcontracts) [***] Schedule 9.11 lists each EDS subcontractor, for which
Coors' approval would otherwise be required pursuant to this Section
9.11(a), that has been pre-approved by Coors as of the Commencement Date
and the scope of services for which such approval has been granted. All
subcontracts that are Assigned Contracts shall be deemed to be approved by
Coors.
(b) If EDS desires to delegate or subcontract any of its
obligations under this Agreement in circumstances under which Coors'
approval is required pursuant to clause (a), it shall submit to Coors in
writing a proposal specifying (i) the specific tasks EDS proposes to
subcontract, (ii) the reason for having a subcontractor perform such tasks
instead of EDS, (iii) the identity and qualifications of the proposed
subcontractor and (iv) any other information reasonably requested by Coors
or relevant to Coors' approval of the subcontractor.
30
(c) If EDS delegates or subcontracts any of its obligations under
this Agreement (regardless of whether Coors' prior written consent to such
delegation or subcontracting is required pursuant to clause (a) of this
Section 9.11), EDS shall include in such subcontract provisions (A)
substantially similar to Article 8 (Confidentiality), Article 10 (Audits),
Sections 18.3 through 18.8, inclusive (Dispute Resolution) and (B) any
other provisions necessary for EDS to fulfill its obligations under this
Agreement (including without limitation, the obligation and restrictions
set forth in Sections 6.7, 6.8, 8.4 and clause (d) below). With respect to
any subcontract entered into on or after the Commencement Date, for which
Coors' consent is required pursuant to clause (a) of this Section 9.11,
EDS shall, in addition to including the clauses identified in the
preceding sentence, use commercially reasonable efforts to include in such
subcontract a provision naming Coors as an intended third-party beneficiary
of such subcontract. In addition, EDS shall not disclose any Coors
Confidential Information to any subcontractor until such subcontractor has
agreed in writing to assume the obligations described in Article 8
(Confidentiality).
(d) Coors may revoke approval of a subcontractor previously
approved, or object to EDS' use of a subcontractor for which Coors'
approval was not required pursuant to clause (a), if the subcontractor's
performance has been materially deficient, good faith doubt exists
concerning the subcontractor's ability to render future performance, or
there have been material misrepresentations by or concerning the
subcontractor. Coors may, in its discretion, allow EDS up to thirty (30)
days to convince Coors that such revocation or objection is unwarranted.
Upon such revocation or objection, EDS shall remove such subcontractor
from performing the Services.
(e) EDS shall remain liable for obligations performed by
subcontractors to the same extent as if an EDS employee had performed such
obligations, and for purposes of this Agreement such work shall be deemed
work performed by EDS.
(f) EDS acknowledges that it supports and recognizes the need to
utilize small, small disadvantaged minority and/or women-owned business
enterprises ("SDWBEs"). In support of such initiative within the U.S., EDS
as a corporation has set a goal of spending nine percent (9%) of its
dollars with SDWBEs. EDS' "Supplier Diversity Database" contains hundreds
of certified SDWBEs, and EDS will use reasonable efforts to use these
entities when appropriate as EDS Subcontractors to perform the Services.
EDS uses national associations and councils, state and federal government
agencies, and local chamber organizations to gain access to SDWBEs. The
EDS Supplier Diversity team is active in local, regional and national
organizations. EDS also participates in trade shows, vendor fairs, and
annual commemorative events. EDS designs and facilitates classes, seminars
and site visits to educate, share and enhance minority and women suppliers.
In furtherance of the foregoing goals and commitments, EDS shall comply
with the "CBC Supplier Toolkit" attached hereto as Exhibit F, including,
without limitation, by submitting a report to the Coors Project Executive,
in the form, and at the frequency specified in such Exhibit F. If Coors
notifies EDS that Coors believes that EDS' use of minority-owned
subcontractors is unreasonably low, the appropriate EDS officials shall
meet with Coors to discuss the reasons for the low usage, and EDS shall
develop and implement a plan reasonably anticipated to increase such usage
as practicable given the nature and scope of the Services and the quality
requirements of Coors.
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ARTICLE 10
AUDITS
10.1 Audit Rights
EDS shall maintain at all times while this Article survives (as
specified in Section 10.4 (Survival)) a complete audit trail of all
financial and non-financial transactions under this Agreement for the
preceding three (3) complete calendar years in accordance with good
practice in its industry and generally accepted accounting principles,
consistently applied. EDS shall provide to Coors, Coors' internal and
external auditors, inspectors, regulators and such other representatives as
Coors may designate from time to time access at reasonable times and after
reasonable notice (unless circumstances reasonably preclude such notice) to
(i) the parts of any facility at which or from which EDS is providing the
Services (subject to compliance with EDS' safety and security policies),
(ii) EDS Personnel providing the Services, and (iii) all relevant data and
records relating to the Services, for the purpose of performing audits and
inspections of Coors and its business, to verify the integrity of Coors'
data, to examine the systems that process, store, support and transmit that
data, and to examine EDS' charges and performance of the Services under
this Agreement. The foregoing audit rights shall include, without
limitation, audits (A) of practices and procedures, (B) of systems, (C)of
general controls and security practices and procedures, (D) of disaster
recovery and backup procedures, (E) of the efficiency (in accordance with
Section 9.10 (Benchmarking) and costs (to the extent that the amounts
payable by Coors are cost-based) of EDS in performing the Services, (F) of
EDS' charges under the Agreement and (G) necessary to enable Coors to meet
applicable regulatory requirements. EDS shall provide full cooperation
to such auditors, inspectors, regulators and representatives, including the
installation and operation of audit software.
10.2 Payments
If an audit reveals that EDS has overcharged Coors for Services during
the audited period, EDS shall reimburse Coors for (i) such overpayment and
(ii) the cost of the audit up to (but not exceeding) the amount of the
overpayment. EDS shall pay such amount to Coors within thirty (30) days
after Coors' written request (which shall include the relevant portions of
the audit report).
10.3 EDS and External Audits
EDS shall promptly report to Coors any material issues or problems
discovered by EDS as a result of any internal or external review or audit
conducted by EDS, its Affiliates, or their respective contractors, agents
or representatives relating to this Agreement or the Services, including
reports of corrective actions taken as a result of such review or audit.
EDS shall make available promptly to Coors each year upon request an
external audit complying with SAS 70 (or any successor standard approved by
Coors) of EDS' practices and procedures.
10.4 Survival
This Article shall survive the expiration or earlier termination of
the Term and shall continue to the third (3rd) anniversary of the last day
EDS provides any Termination Assistance.
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ARTICLE 11
INSURANCE; RISK OF LOSS
11.1 Required Insurance Coverages
Throughout the Term EDS shall maintain in force the following
insurance coverages:
(a) Commercial General Liability Insurance, including
Products/Completed Operations and Advertising Injury coverage, with a
minimum combined single limit of Ten Million Dollars ($10,000,000) per
occurrence;
(b) Worker's Compensation Insurance, including occupational
illness or disease coverage, disability insurance (or other similar social
insurance in accordance with the laws of the country, state or territory
exercising jurisdiction over EDS Personnel providing the Services) and
Employer's Liability Insurance with a minimum limit of One Million Dollars
($1,000,000) per employee by accident/ One Million Dollars ($1,000,000) per
employee by disease/ One Million Dollars ($1,000,000) policy limit by
disease;
(c) Professional Liability (Errors and Omissions Liability
Insurance) in an amount of at least Ten Million Dollars ($10,000,000) per
occurrence;
(d) Automotive Liability Insurance covering use of all owned,
non-owned and hired automobiles with a minimum combined single limit of One
Million Dollars ($1,000,000) per occurrence for bodily injury and property
damage liability;
(e) "All Risk" Property Insurance, including, without limitation,
coverage against damage by earthquake or flood, in an amount equal to the
replacement value of the Equipment; and
(f) Crime Insurance (including Computer Fraud Insurance) in a
minimum amount of Ten Million Dollars ($10,000,000) per loss.
11.2 General Insurance Provisions
All insurance policies EDS is required to carry pursuant to this
Article shall: (i) be primary as to EDS' negligence and non-contributing
with respect to any other insurance or self-insurance Coors may maintain;
(ii) for the policies described in Sections 11.1(a) and 11.1(d), name
Coors, its Affiliates and their respective officers, directors and
employees as additional insureds, as such parties' interests may appear
with respect to this Agreement; (iii) for the policies described in
Sections 11.1(e) and 11.1(f), name Coors, its Affiliates and their
respective officers, directors and employees as "Loss Payee;" (iv) be
provided by reputable and financially responsible insurance carriers with a
Best's minimum rating of "A-" (or any future equivalent); and (v) require
the insurer to notify Coors in writing at least thirty (30) days in advance
of cancellation or material modification. In addition, the insurance
policies EDS is required to carry pursuant to clauses, 11.1(a), 11.1(b),
11.1(d), and 11.1(e) shall be endorsed to provide for a waiver of
subrogation against Coors, its Affiliates and their respective officers,
directors, employees, agents, successors and assigns. EDS shall cause its
insurers to issue to Coors on or
33
before the Commencement Date and each policy renewal date certificates of
insurance evidencing that the coverages and policy endorsements required by
this Article are in effect.
11.3 Risk of Loss
Each Party shall be responsible for risk of loss of, and damage to,
any Equipment, Software or other materials in its possession or under its
control.
ARTICLE 12
CHARGES
12.1 Charges in Exhibit C
Subject to the other provisions of this Agreement, Coors shall pay to
EDS the amounts set forth in Exhibit C as payment in full for the Services
and all other obligations performed by EDS during the Term. Except as
otherwise expressly set forth in this Agreement, Coors shall not be
obligated to pay any amounts to EDS for its performance of the Services and
its other obligations under this Agreement other than the amounts set forth
in Exhibit C. [***] If the Term is extended pursuant to Sections 2.2 or
17.6, the amounts and terms set forth in Exhibit C and in this Agreement
for the fifth (5th) Contract Year shall continue to apply during the
extension period(s) except as provided in Schedule 17.2. Throughout the
Term, and consistent with its other obligations pursuant to this Agreement,
EDS shall use commercially reasonable efforts to perform the Services in a
manner which minimizes its charges to Coors, including without limitation
through the efficient use of resources.
12.2 Managed and Pass-Through Expenses
(a) EDS shall promptly (i) review for accuracy the third party
invoice for any Managed Expenses, (ii) use commercially reasonable efforts
to resolve with the invoicing third-party any discrepancy or inaccuracy in
such invoice, and (iii) send the original third party invoice (together
with all relevant information regarding any disputed items on such invoice)
to the Coors Project Executive not more than ten (10) Business Days prior
to the date such invoice is payable; provided, that voice and
telecommunications invoices shall be sent directly to Coors by the
invoicing party and EDS shall not have the responsibilities set forth in
clauses (i), (ii) and (iii) above with respect thereto. Notwithstanding the
foregoing sentence, if (A) EDS receives such invoice from the invoicing
third party within such ten (10) day period, or (B) EDS' compliance with
clause (iii) above will not afford it sufficient time to comply with
clauses (i) and (ii) above, EDS shall immediately upon receipt forward a
copy of such invoice to the Coors Project Executive via facsimile with a
clear notation stating that the invoice has not yet been reviewed by EDS,
and EDS shall promptly thereafter perform the functions described in
clauses (i) and (ii) above. [***] EDS shall use commercially reasonable
efforts to minimize the amount of
34
Managed Expenses. Coors shall have the right, in its sole discretion to
revise, terminate or replace any contract resulting in Managed Expenses, in
each case without additional charge by EDS; provided, however, that any
revision, termination or replacement of any Third Party Contract identified
as a "Managed Contract" on Schedules 5.3(a)(i) or 5.3(a)(ii) shall be
subject to the Change Control Procedures specified in Section 12.4.
(b) EDS shall review for accuracy the third party invoice for any
Pass-Through Expenses and shall pay when due to such third party all valid
amounts set forth on such invoice. EDS shall include the amount of such
payment on its next invoice to Coors and shall include with such invoice a
copy of the third party invoice. [***] EDS shall use commercially
reasonable efforts to minimize the amount of Pass-Through Expenses. With
respect to materials or services paid for on a Pass-Through Expenses basis,
Coors shall have the right to: (i) obtain such materials or services
directly from a third party, (ii) designate the third party source for such
materials or services; (iii) designate the particular materials or services
EDS shall obtain; (iv) require EDS to identify and consider multiple
sources for such materials or services; and (v) review and approve the
Pass-Through Expenses for such materials or services before EDS enters into
a subcontract for such materials or services. Coors shall not require EDS
to incur obligations for Pass-Through Expenses beyond the then-remaining
portion of the Term.
12.3 Taxes
(a) Each Party shall pay any real property taxes on real property
it owns or leases.
(b) Each Party shall pay any personal property taxes on property
it owns or leases; provided, however, that Coors shall pay (or reimburse
EDS for its proper payment of) any personal property taxes on (i) the
Transferred Equipment (excluding personal property taxes on personal
computers, monitors and printers used by the Transferred Employees, which
taxes shall be paid by EDS); and (ii) on any refresh Equipment acquired by
EDS pursuant to Section 1.5.1 of Exhibit A exclusively to provide the
Services.
(c) EDS shall pay any sales, use, excise, gross receipts,
value-added, services, consumption, and similar taxes and duties imposed on
any goods and services acquired, used or consumed by EDS in the performance
of the Services; provided, that Coors shall pay (or reimburse EDS for its
proper payment of): (i) any such taxes applicable to the acquisition of the
Transferred Equipment by EDS from Coors or the lease entered into by EDS
and its third party equipment lessor on the Commencement Date with respect
to the Transferred Equipment; provided in each case that EDS enters into
such lease on or about the Commencement Date, is on standard financing
lease terms, is for a closed term not exceeding 30 months, does not include
an escape clause allowing EDS to terminate the lease without making the
required payments, and requires a nominal payment in order for the lessee
to purchase the Transferred Equipment at the end of the lease term; (ii)
any such taxes applicable to additional licenses of Third Party Software
for which Coors has "Growth" financial responsibility pursuant to Schedule
5.3(a)(i); (iii) Managed Expenses and Pass-Through Expenses; (iv) any taxes
described in clause (d) below allocated to personal computers, monitors and
printers acquired by EDS and used exclusively by
35
Coors personnel, and (v) any taxes described in clause (d) below allocated
to maintenance of such personal computers, monitors and printers and any
software operating thereon. Coors shall pay any sales, use, excise, gross
receipts, value-added, services, consumption and similar taxes and duties
imposed on its acquisition of Equipment from EDS on the expiration or
earlier termination of the Term pursuant to Section 17.9 (Purchase of
Equipment).
(d) Coors shall pay (or reimburse EDS for its proper payment of)
when due any sales, use, excise, gross receipts, value-added, services,
consumption, or similar tax imposed by any taxing jurisdiction on the
provision of the Services or the charges for such Services; provided,
however, that EDS shall pay any such taxes, or any net increase in such
taxes, imposed as a result of any migration of the Services (excluding the
migration of the help desk and the Data Center to the Sacramento Service
Management Center).
(e) The Parties shall cooperate with each other to enable the
Parties to determine accurately their respective tax liabilities and to
reduce such liabilities to the extent permitted by law. EDS' invoices or
the accompanying tax reports shall separately state the amount of any taxes
EDS is collecting from Coors, the type of tax being collected, and the
taxing jurisdiction imposing such tax. Each Party shall provide to the
other any resale certificates, exemption certificates, information
regarding out-of-state or out-of-country sales or use of Equipment and
services, and such other similar information as the other Party may
reasonably request.
(f) At Coors' request, where permissible by the applicable taxing
authority, audits of the taxes payable by Coors pursuant to this Agreement
shall be handled as part of EDS' U.S. state and local sales and use tax
audits.
(g) In the event either Party fails to pay when due any tax
payable by such Party, such Party shall also pay any interest, penalty or
fine associated with such failure; provided, however, that if Coors is
required to pay any tax for which the statement is sent to EDS by the
taxing authority and Coors makes such payment (or reimburses EDS for its
payment) within thirty (30) days after receipt from EDS of the tax
statement or EDS' invoice therefor, EDS shall pay such interest, penalty or
fine.
12.4 Charges Pursuant to Change Control Procedures
(a) If either Coors or EDS proposes a change in or addition to
the Services pursuant to the Change Control Procedures, the price for such
change or addition shall be determined in the manner set forth in this
Section.
[***]
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(c) [***]
([***]
12.5 Significant Events
(a) The charges provided for in this Article and Exhibit C and
the termination fees provided for in Schedule 17.2 (Fees for Termination
for Convenience) shall be equitably adjusted in the manner described in
this Section if a "Significant Event" occurs. A Significant Event shall
mean any event or series of related events which results in Coors paying
[***]
(b) If Coors notifies EDS of the occurrence of a Significant
Event (which notice shall be accompanied by an explanation by Coors of the
basis for its determination of such occurrence), the relevant Baseline
Resource Level (as defined in Exhibit C) shall be adjusted to reflect
Coors' anticipated resource usage during the remainder of the Term in the
following manner:
(i) [***]
(ii) [***]
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(iii) If, after the Benchmarker's determination, the Parties
still disagree over the adjustments to be made to the items described in
clause (b) of this Section 12.5, such adjustments shall be determined
pursuant to Article 18 (Dispute Resolution) based on the criteria set forth
in this Section 12.5(b).
(c) Each Party shall make available to the other, or if
necessary, to the Benchmarker or arbitrator(s), the information
reasonably necessary to determine the equitable adjustments described in
this Section; [***]
(d) Prior to a determination of the equitable adjustments to be
made to the items described in clause (b) of this Section 12.5 (whether by
mutual agreement, the Benchmarker or through the dispute resolution
process), Coors shall continue to pay EDS for Services rendered at the
rates applicable thereto prior to the occurrence of the Significant Event
[***] If, subsequent to a determination of the equitable adjustments, it is
determined that Coors has under- or over-paid EDS for Services rendered
after the occurrence of the Significant Event, Coors shall remit the amount
of the underpayment to EDS, or EDS shall remit the amount of the
overpayment to Coors, [***]
12.6 Recordkeeping
EDS shall maintain complete and accurate records of, and supporting
documentation for, the amounts billed to and payments made by Coors under
this Agreement and the chargeback allocation of such amounts. EDS shall
retain such records in accordance with Coors' records retention policy in
effect from time to time. A copy of such records retention policy in effect
on the Commencement Date is attached hereto as Schedule 12.6. EDS shall
provide Coors, at Coors' request, with paper and electronic copies of
documents and information reasonably
38
necessary to verify EDS' compliance with this Agreement. Coors and its
authorized agents and representatives shall have access to such records for
audit purposes during normal business hours during the Term and thereafter
for the period during which EDS is required to maintain such records.
12.7 Coors Payment
On the Commencement Date Coors shall pay to EDS, by wire transfer, the
one-time implementation charge set forth in Exhibit C-1.
12.8 Hyperinflation Protection
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
39
[***]
[***]
[***]
12.9 Gainsharing
[***]
[***]
12.10 Monthly Current Asset Payment.
During each of the first thirty (30) months during the Term, Coors
shall pay to EDS the amount described as the "Monthly Current Asset
Payment" in Exhibit C-3 (the "Monthly Current Asset Payment"). The first
Monthly Current Asset Payment shall be invoiced by EDS on the Commencement
Date, and subsequent Monthly Current Asset Payments shall be invoiced on
the first Business Day of each of the twenty-nine (29) months thereafter.
Each Monthly Current Asset Payment shall be due and payable to Coors (or,
at EDS' direction, directly to EDS' lessor of the Transferred Equipment)
thirty (30) days after it is invoiced. [***] Disposition of the Transferred
Assets upon the expiration or any termination of this Agreement is
addressed in Section 17.9 (Purchase of Equipment).
40
ARTICLE 13
INVOICING AND PAYMENT
13.1 Invoices
EDS shall issue to Coors, on a monthly basis in arrears, one (1)
consolidated invoice for all amounts due under this Agreement with respect
to Services rendered in the previous month. Each invoice shall separately
state charges for each category of Service (broken down by Base Charge,
ARCs and RRCs, Pass-Through Expenses, taxes payable, and Service Credits
and Service Credit Earn-Backs (as defined in Exhibit B), if any, and shall
otherwise be in such detail as Coors may reasonably request for its
internal accounting needs (including, without limitation, the chargeback
information described in Section 10.4 of Exhibit A). Each invoice shall
include any calculations used to establish the charges. EDS shall deliver
each invoice to the Coors Project Executive. If any invoice issued by EDS
to Coors is for Services rendered or Pass-Through Express incurred more
than ninety (90) days prior to the issuance of such invoice, EDS shall also
deliver to the Coors Project Executive a written explanation regarding the
late delivery of such invoice.
13.2 Payment; Late Charges
(a) Subject to Section 13.5 (Setoff and Withholding), any amount
due under this Agreement for which a payment date is not otherwise
specified, including, without limitation, each invoice delivered pursuant
to Section 13.1, shall be due and payable (30) days after such invoice is
received by the Project Executive of the Party that owes such amount.
(b) Unless otherwise expressly provided in this Agreement, to the
extent that Coors is entitled to a credit pursuant to this Agreement, EDS
shall provide Coors with such credit on the first invoice delivered after
such credit is earned. If the amount of any credit on an invoice exceeds
the amount owing to EDS reflected on such invoice, EDS shall pay the
balance of the credit to Coors within thirty (30) days after the invoice
date. If no further amounts are payable to EDS under this Agreement, EDS
shall pay the amount of the credit to Coors within thirty (30) days after
the credit is earned.
(c) Any amount owed by one Party to the other and not paid or
credited when due [***]
13.3 Proration
All periodic charges under this Agreement (excluding charges based
upon actual usage or consumption of Services) shall be computed on a
calendar month basis, and shall be prorated for any partial month.
41
13.4 Refunds
If either Party should receive a refund, credit or other rebate for
goods or services paid for by the other Party, the recipient of such
refund, credit or rebate shall promptly notify the other Party and shall
pay such amount to the other Party (or, if applicable, provide a credit on
the next delivered invoice) within thirty (30) days after receipt thereof.
13.5 Setoff and Withholding
(a) Each Party shall pay when due, without withholding or setoff,
any undisputed amounts owed to the other Party pursuant to the terms of
this Agreement; provided, however, that Coors may, in its sole discretion,
but subject to clause (b) below, withhold from or set off against any
amounts invoiced by EDS pursuant to this Agreement (i) any amount Coors
believes in good faith is payable to Coors by EDS, and (ii) any amount that
Coors disputes in good faith, in each case pending resolution of the
dispute by mutual agreement or pursuant to Article 18 (Dispute Resolution).
(b) If Coors intends to withhold from or setoff against any
amount otherwise payable to EDS, Coors shall notify EDS on or prior to the
date the payment would have otherwise been due of (i) Coors' intention to
setoff or withhold, and (ii) the specific basis for such setoff or
withholding. [***] Such payment shall not constitute a waiver or in any
other way prejudice Coors' right to later dispute the payment and seek a
refund of any such amounts by mutual agreement or pursuant to Article 18
(Dispute Resolution). Any amount withheld or set off by Coors as a result
of EDS' failure to pay or credit to Coors the amounts described in Sections
5.1(b) or 5.3(b) hereof shall not count towards any dollar limitation in
this clause (b).
ARTICLE 14
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
14.1 Mutual Representations and Warranties
Each Party represents and warrants that, as of the Commencement Date:
(a) It is a corporation duly incorporated (or, in the case of EDS, it
is a limited liability company duly organized), validly existing and in
good standing under the laws of the state in which it is incorporated (or,
in the case of EDS, organized), and in good standing in each other
jurisdiction where the failure to be in good standing would have a material
adverse affect on its business or its ability to perform its obligations
under this Agreement.
42
(b) It has all necessary company power and authority to own, lease and
operate its assets and to carry on its business as presently conducted and as it
will be conducted pursuant to this Agreement.
(c) It has all necessary company power and authority to enter into this
Agreement and to perform its obligations hereunder, and the execution and
delivery of this Agreement and the consummation of the transactions contemplated
by this Agreement have been duly authorized by all necessary company actions on
its part.
(d) This Agreement constitutes a legal, valid and binding obligation of
such Party, enforceable against it in accordance with its terms, subject only to
the effect of bankruptcy laws or equitable relief which a court may grant.
(e) It is not a party to, and is not bound or affected by or subject
to, any instrument, agreement, charter or by-law provision, law, rule,
regulation, judgment or order which would be contravened or breached as a result
of the execution of this Agreement or consummation of the transactions
contemplated by this Agreement, excluding only (with respect to Coors) any Third
Party Consents required for the assignment to EDS of Third Party Contracts or
the grant to EDS of access to and use of Third Party Contracts.
14.2 Coors Representations and Warranties
Coors represents and warrants to EDS that, as of the Commencement Date:
(a) Coors or its Affiliates own the Transferred Equipment free and
clear of all liens, mortgages, pledges and security interests, and each has the
right to transfer the Transferred Equipment owned by it to EDS.
(b) To the actual knowledge of the Coors manager with direct
operational responsibility for administering the Third Party Contracts: (i) each
Third Party Contract existing on the Commencement Date is in full force and
effect, and (ii) there is no material default under any such Third Party
Contract by Coors or the other parties thereto.
(c) To the actual knowledge of the Coors property manager with direct
operational responsibility for the Golden Data Center: (i) the Golden Data
Center Lease is in full force and effect, and (ii) there is no material default
under the Golden Data Center Lease by Coors or the lessor thereunder.
(d) It has as of the Commencement Date, and shall have throughout the
Term, the right and authority to use the Coors Software and to grant to EDS the
licenses to Coors Software and other Coors Intellectual Property described in
this Agreement, and that the use of such Coors Software and other Coors
Intellectual Property does not and will not infringe upon the propriety rights
of any third party.
14.3 EDS Representations and Warranties
EDS represents and warrants to Coors that:
43
(a) As of the Commencement Date, it has not violated any applicable
laws or regulations or any Coors policies regarding the offering of unlawful
inducements in connection with this Agreement.
(b) it is appropriately skilled, experienced and trained to perform the
Services.
(c) It has as of the Commencement Date, and shall have throughout the
Term, the right and authority to use the EDS Software to provide Services and to
grant to Coors the licenses to EDS Software and other EDS Intellectual Property
described in this Agreement, and that the use of such EDS Software and other EDS
Intellectual Property does not and will not infringe upon the propriety rights
of any third party.
14.4 Mutual Covenants
(a) Each Party shall perform its obligations under this Agreement in
compliance with all applicable laws, rules, regulations, ordinances, treaties
and orders. EDS shall obtain all permits, certificates, approvals, export
licenses and inspections required in connection with the provision of the
Services. Each Party will be responsible for making any reasonable accommodation
required under the Americans with Disabilities Act with respect to the
facilities that it owns or leases.
(b) Whenever this Agreement requires or contemplates any action,
consent or approval, each Party shall act reasonably and in good faith and
(unless the Agreement expressly allows exercise of a Party's sole discretion)
shall not unreasonably withhold or delay such action, consent or approval.
14.5 EDS Covenants
EDS shall cooperate with Coors' third party auditors, contractors and
service providers, provided that such third parties comply with EDS' reasonable
security and confidentiality requirements and, to the extent the third parties
are performing work on EDS-owned, -licensed or -leased Software or Equipment,
comply with EDS' reasonable work standards, methodologies and procedures.
ARTICLE 15
INDEMNIFICATION
15.1 Indemnification by EDS
EDS shall indemnify, defend and hold harmless Coors, its Affiliates and
their respective officers, directors, employees, agents, contractors, successors
and assigns, from and against all Losses arising from, in connection with or
relating to, third party allegations of any of the Following:
(a) EDS' failure to perform any of its obligations with respect to any
of the Third Party Contracts on or after the Commencement Date (or, with respect
to any Unidentified
44
Third Party Contract, on or after the date EDS assumes responsibility for it
under Section 5.3(f) hereof);
(b) EDS' failure to perform any of the obligations of the "Tenant"
under the Golden Data Center Lease (as such Golden Data Center Lease may be
amended from time to time) on or after the Commencement Date or attributable to
the period on or after the Commencement Date, including, without limitation, the
obligation to comply with all applicable laws, including Environmental Laws;
(c) tortious acts or omissions of EDS Personnel and contractors located
at any Coors facility committed against the alleging third party, but excluding
therefrom (i) allegations arising solely from EDS' alleged breach of this
Agreement, and (ii) allegations to which, if asserted in an action between Coors
and EDS, EDS' compliance with its obligations under this Agreement would be a
complete defense;
(d) any claims of infringement of any patent, trade secret, copyright
or other proprietary rights alleged to have occurred because of (i) Equipment,
Software or other resources provided to Coors by or on behalf of EDS (excluding
claims which both (A) relate to any Equipment, Software or other resources
transferred or assigned to EDS by Coors and (B) are attributable to acts or
omissions which transpired prior to such resources being transferred or assigned
to EDS), or (ii) performance of the Services or other activities by EDS under
this Agreement;
(e) EDS' failure to obtain any Third Party Consent it is required to
obtain pursuant to this Agreement, unless arising as a result of Coors' failure
to pay for such Required Consent;
(f) EDS' breach of its obligations with respect to Coors' Confidential
Information; and
(g) any claims relating to violation by EDS of federal, state, local,
foreign, or other laws or regulations or any common law protecting persons or
members of a protected class or category, including laws or regulations
prohibiting discrimination or harassment on the basis of a protected
characteristic, including: (1) liability arising or resulting from a Transferred
Employee's employment with EDS after the Commencement Date, (2) payment of wages
that become due and owing to any Transferred Employee from and after such
Transferred Employee's employment date with EDS, (3) employee pension or welfare
benefits of any Transferred Employee that accrued from and after such
Transferred Employee's employment date with EDS, (4) other aspects of any
Transferred Employee's employment relationship with EDS or the termination of
such relationship, including claims for breach of an express or implied contract
of employment, and (5) liability resulting from representations by EDS to the
employees to be transitioned to EDS, except to the extent resulting from the
representations or actions of Coors.
15.2 Indemnification by Coors
Coors shall indemnify, defend and hold harmless EDS, its Affiliates and
their respective officers, directors, employees, agents, contractors, successors
and assigns, from and against all
45
Losses arising from, in connection with or relating to, third party allegations
of any of the following:
(a) Coors' failure to perform any of its obligations under the Golden
Data Center Lease before the Commencement Date or attributable to the period
before the Commencement Date, including, without limitation, the obligation to
comply with all applicable laws, including Environmental Laws;
(b) Coors' failure to perform any of its obligations (i) with respect
to any Third Party Contracts, before the Commencement Date (or, with respect to
any Unidentified Third Party Contract, before the date on which EDS assumes
responsibility for it under Section 5.3(f) hereof) and (ii) with respect to
Third Party Software Licenses or Third Party Service Contracts identified as
"Managed Contracts" on Schedule 5.3(a)(i) or Schedule 5.3(a)(ii) respectively,
on or after the Commencement Date;
(c) tortious acts or omissions of Coors employees and contractors
located in any EDS facility committed against the alleging third party, but
excluding therefrom (i) allegations arising solely from Coors' alleged breach of
this Agreement, and (ii) allegations to which, if asserted in an action between
EDS and Coors, Coors' compliance with its obligations under this Agreement would
be a complete defense;
(d) any claims of infringement of any patent, trade secret, copyright
or other proprietary rights alleged to have occurred (A) because of Equipment,
Software or other resources provided to EDS by or on behalf of Coors, and (B)
attributable to acts or omissions which transpired prior to such resources being
transferred or assigned to EDS (but specifically excluding claims arising from
EDS' failure to obtain any Third Party Consents it is required to obtain
pursuant to this Agreement unless such failure is a result of Coors' failure to
pay for such Required Consent);
(e) Coors' breach of its obligations with respect to EDS' Confidential
Information;
(f) any claims relating to violation by Coors of federal, state, local,
foreign, or other laws or regulations or any common law protecting persons or
members of a protected class or category, including laws or regulations
prohibiting discrimination or harassment on the basis of a protected
characteristic, including: (1) liability arising or resulting from a Transferred
Employee's employment with Coors prior to the Commencement Date, (2) payment of
wages that become due and owing to any Transferred Employee before such
Transferred Employee's employment date with EDS, (3) employee pension or welfare
benefits of any Transferred Employee that accrued before such Transferred
Employee's employment date with EDS, (4) other aspects of any Transferred
Employee's employment relationship with Coors or the termination of such
relationship, including claims for breach of an express or implied contract of
employment, and (5) liability resulting from representations by Coors to the
employees to be transitioned to EDS, except to the extent resulting from the
representations or actions of EDS; and
46
(g) Coors' failure to comply with any bulk sales laws applicable to the
sale by Coors to EDS of the Transferred Equipment.
15.3 Mutual Indemnification
Each Party shall indemnify, defend and hold harmless the other Party,
the other Party's Affiliates and their respective officers, directors,
employees, agents, successors and assigns, from and against all Losses arising
from, in connection with or relating to, third party allegations of any of the
following: (i) death of or injury to any agent, employee, customer, invitee,
visitor or other person to the extent caused by the conduct of the indemnitor,
its Affiliates, or their respective agents, employees or contractors; (ii)
damage to, or loss or destruction of, any real or tangible personal property to
the extent caused by conduct of the indemnitor, its Affiliates, or their
respective agents, employees or contractors; and (iii) any violation of law by
the indemnitor, its Affiliates or their respective agents, employees or
contractors, whether before, on or after the Commencement Date.
15.4 Infringement
(a) If any item provided by EDS in connection with the Services
becomes, or in EDS' reasonable opinion is likely to become, the subject of an
infringement or misappropriation claim or proceeding, EDS shall, in addition to
indemnifying Coors as provided in this Article and to the other rights Coors may
have under this Agreement, promptly take the following actions at no additional
cost to Coors and in the listed order of priority: (i) either secure the right
to continue using the item or replace or modify the item to make it
non-infringing, provided that any such replacement or modification will not
degrade the performance or quality of the affected component of the Services; or
(ii) if (i) is not reasonably available, then remove the item from the Services
and equitably adjust the charges to reflect such removal.
(b) If any item provided by Coors in connection with the Services
becomes, or in Coors' reasonable opinion is likely to become, the subject of an
infringement or misappropriation claim or proceeding, Coors shall, in addition
to indemnifying EDS as provided in this Article and to the other rights EDS may
have under this Agreement, promptly take the following actions in the listed
order of priority: (i) either secure the right to continue using the item or
replace or modify the item to make it non-infringing, provided that if any such
replacement or modification would degrade the performance or quality of the
affected component of the Services, Service Levels will be adjusted accordingly;
or (ii) if (i) is not reasonably available, then direct EDS to remove the item
from the Services with the charges and Service Levels to be equitably adjusted
to reflect such removal.
15.5 Indemnification Procedures
(a) Promptly after receipt by an indemnitee of any written claim or
notice of any action giving rise to a claim for indemnification by the
indemnitee, the indemnitee shall so notify the indemnitor and shall provide
copies of such claim or any documents relating to the action. No failure to so
notify an indemnitor shall relieve the indemnitor of its obligations under this
Agreement except to the extent that the failure or delay is prejudicial. Within
thirty (30) days following receipt of such written notice, but in any event no
later than ten (10) days before
47
the deadline for any responsive pleading, the indemnitor shall notify the
indemnitee in writing (a "Notice of Assumption of Defense") if the indemnitor
elects to assume control of the defense and settlement of such claim or action.
(b) If the indemnitor delivers a Notice of Assumption of Defense with
respect to a claim within the required period, the indemnitor shall have sole
control over the defense and settlement of such claim; provided, however, that
(i) the indemnitee shall be entitled to participate in the defense of such claim
and to employ counsel at its own expense to assist in the handling of such claim
and (ii) the indemnitor shall obtain the prior written approval of the
indemnitee before entering into any settlement of such claim or ceasing to
defend against such claim. After the indemnitor has delivered a timely Notice of
Assumption of Defense relating to any claim, the indemnitor shall not be liable
to the indemnitee for any legal expenses incurred by such indemnitee in
connection with the defense of such claim; provided, that the indemnitor shall
pay for separate counsel for the indemnitee to the extent that conflicts or
potential conflicts of interest between the Parties so require. In addition, the
indemnitor shall not be required to indemnify the indemnitee for any amount paid
by such indemnitee in the settlement of any claim for which the indemnitor has
delivered a timely Notice of Assumption of Defense if such amount was agreed to
without the prior written consent of the indemnitor, which shall not be
unreasonably withheld or delayed in the case of monetary claims. An indemnitee
may, in its sole discretion, withhold consent to settlement of claims of
infringement affecting its proprietary rights, and settlements involving
consents to injunctive or other equitable relief against the indemnitee.
(c) If the indemnitor does not deliver a Notice of Assumption of
Defense relating to a claim within the required notice period, the indemnitee
shall have the right to defend the claim in such manner as it may deem
appropriate, at the cost and expense of the indemnitor. The indemnitor shall
promptly reimburse the indemnitee for all such costs and expenses upon written
request therefor.
15.6 Subrogation
In the event an indemnitor indemnifies an indemnitee pursuant to this
Article, the indemnitor shall, upon payment in full of such indemnity, be
subrogated to all of the rights of the indemnitee with respect to the claim to
which such indemnity relates.
ARTICLE 16
LIMITATIONS ON LIABILITY
16.1 General Intent
Subject only to the limitations set forth in this Article, a Party who
breaches any of its obligations under this Agreement shall be liable to the
other for any damages actually incurred by the other as a result of such breach.
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[***]
[***]
[***]
[***]
[***]
[***]
[***]
16.4 Force Majeure
(a) Subject to clause (d) below, neither Party shall be liable for any
failure or delay in its performance under this Agreement, if and to the extent
such failure or delay both (i) is caused without fault of such Party by fire,
flood, earthquake, elements of nature or acts of God, acts of war, terrorism,
riots, civil disorders, rebellions, quarantines, embargoes or other similar
governmental action or similar causes that are beyond its reasonable control and
(ii) could not have been prevented by reasonable precautions and cannot
reasonably be circumvented by the non-performing party through the use of
work-around plans or other means (an event meeting the criteria in both clauses
(i) and (ii) is referred to as a "Force Majeure Event"). EDS acknowledges that,
pursuant to Section 9.11, the subcontracting by EDS to a third party of any
49
obligation of EDS under this Agreement shall not make such obligation "beyond
EDS' reasonable control" for purposes of this Section.
(b) Subject to clause (c) below, upon the occurrence of a Force Majeure
Event, the non-performing Party shall be excused from any further performance of
the affected obligations for as long as both the Force Majeure Event continues
in effect and such Party uses its best efforts to recommence performance
whenever and to whatever extent practicable without delay. The Party unable to
perform its obligations shall notify the other Party of such Force Majeure Event
immediately by telephone (with written confirmation to follow within two
Business Days).
(c) (i) If a Force Majeure Event causes a material failure or delay in
the performance of any Services for which EDS has disaster recovery
responsibility pursuant to Exhibit A for more than three (3) consecutive days,
Coors may, at its option, and in addition to any rights Coors may have pursuant
to Section 17.5 (Termination Upon Force Majeure Event), procure, or cause EDS to
procure, such Services from an alternate source until EDS is again able to
provide such Services (if so requested by Coors, EDS shall procure such Services
as quickly as practicable after request by Coors). Regardless of whether Coors
procures such Services from an alternate source, or requests that EDS do so,
[***] at which time Coors shall again obtain such Services from EDS (subject to
Coors termination rights pursuant to Sections 17.1(a)(i) and 17.5). Coors shall
continue to pay to EDS, subject to Section 13.5, the charges established
hereunder during such period, but EDS shall not be entitled to any additional
payments as a result of the Force Majeure Event.
(ii) If a Force Majeure Event causes a material failure or delay in
the performance of any Services for which EDS does not have disaster recovery
responsibility pursuant to Exhibit A for more than three (3) consecutive days,
Coors may, at its option, and in addition to any rights Coors may have pursuant
to Section 17.5 (Termination Upon Force Majeure Event), procure such Services
from an alternate source until EDS is again able to provide such Services. [***]
Regardless of whether Coors procures such Services from an alternate source,
Coors shall not be required to pay to EDS for the affected Services (and any
Minimum Revenue Commitments shall be equitably adjusted for such period), during
any period when such Services are not being provided by EDS as a result of a
Force Majeure Event.
(d) Nothing in this Section shall (i) relieve EDS of its obligation,
upon the occurrence of a disaster, to successfully implement that portion of
Coors' Disaster Recovery Plan for which EDS has responsibility pursuant to
Section 9.2 of Exhibit A within the timeframe(s) specified in such Disaster
Recovery Plan or (ii) affect Coors' right of termination pursuant to Section
17.5.
16.5 Actions of Other Party
Neither Party shall be liable for any failure or delay in the performance
of its obligations under this Agreement if and to the extent such failure or
delay is caused by the actions or
50
omissions of the other Party or of the other Party's agents, employees or
contractors (excluding agents, employees or contractors under the supervision of
the non-performing Party); provided, that the Party which is unable to perform
has provided the other Party with reasonable notice of such non-performance
immediately after becoming aware of such actions or omissions and has used
commercially reasonable efforts to perform notwithstanding the actions or
omissions of the other Party or such agents, employees or contractors.
16.6 Uninterruptible Power Supply
EDS shall not be liable for any failure or delay in the performance of its
obligations under this Agreement if and to the extent such failure or delay is
caused by a failure of the uninterruptible power supply existing at the Golden
Data Center as of the Commencement Date, provided that EDS has taken reasonable
steps to maintain such uninterruptible power supply. Coors acknowledges that EDS
does not have an obligation to upgrade such uninterruptible power supply.
ARTICLE 17
TERMINATION
17.1 Termination for Cause
(a) Coors shall have the option, but not the obligation, to terminate
for cause this Agreement or one or more Service Towers, without payment of a
termination fee:
(i) if EDS fails to successfully implement that portion of the
Coors Disaster Recovery Plan for which EDS has responsibility pursuant to
Section 9.2 of Exhibit A within the timeframe(s) specified in such plan after
the occurrence of any disaster; or
(ii) if there occurs a Service Level Termination Event (as
defined in Section 5 of Exhibit B (Service Level Termination Event)); or
(iii) if EDS materially breaches any of its other obligations
or responsibilities under this Agreement (including, without limitation, EDS'
obligation to complete the Transition Services no later than January 31, 2002,
and either (A) EDS fails to cure such breach within thirty (30) days after
written notice thereof or (B) such breach is not reasonably curable within
thirty (30) days after notice thereof; or
(iv) if EDS repeatedly breaches its obligations under this
Agreement and such pattern of repeated breaches constitutes a material breach of
this Agreement even though the individuals breaches have been cured by EDS.
(b) Coors shall exercise its termination option by delivering to EDS
written notice of such termination identifying the scope of the termination and
the termination date.
(c) Except as provided in Section 17.4, EDS shall have the option, but
not the obligation, to terminate this Agreement only if:
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(i) Coors fails to pay when due undisputed amounts Coors owes
to EDS under this Agreement, [***]
(ii) [***]
(iii) Coors materially breaches its obligations under Article
8 (Confidentiality);
and Coors fails to cure such failure (with respect to clauses (i) and (ii)
above) or such breach (with respect to clause (iii) above) within thirty (30)
days after receipt from EDS of written notice thereof; provided, however, that
such notice must: (A) be delivered in the manner described in Section 19.9 to
Coors' Chief Information Officer in addition to the addressees set forth in
Section 19.9; (B) with respect to clauses (i) and (ii) above, specify the exact
amount required to be paid to EDS or into the Escrow Account, as applicable, and
the calculation thereof; (C) state EDS' intention to terminate this Agreement;
and (D) specify (subject to Section 17.6(a)) the date on which such termination
will become effective if the amount indicated is not paid (with respect to
clauses (i) and (ii) above) or if the breach of Article 8 (Confidentiality) is
not cured (with respect to clause (iii) above), which date shall be at least
thirty (30) days after the date such notice is delivered to Coors; and provided
further, that EDS may not terminate this Agreement if, within thirty (30) days
after receipt from EDS of the foregoing written notice, (X) with respect to
clause (i) above, Coors pays the undisputed amounts, if any, then owing, and
notifies EDS that it disputes the balance of the amounts claimed by EDS, (Y)
with respect to clause (ii) above, Coors pays the disputed amount into the
Escrow Account or to EDS, pursuant to Section 13.5(b), or (Z) with respect to
clause (iii) above, Coors cures the breach of Article 8 (Confidentiality).
(d) EDS hereby waives any rights it may have under this Agreement, at
law or in equity to terminate this Agreement for any reason other than that set
forth in clause (c) above and Section 17.4.
17.2 Termination for Convenience
(a) Coors shall have the option, but not the obligation, to terminate
for convenience, this Agreement or the Application Maintenance and Enhancements
Service Tower. Coors' option to terminate the remainder of the Agreement shall
survive the exercise of its option to terminate the Application Maintenance and
Enhancements Service Tower. Coors shall exercise its termination option by (i)
delivering to EDS written notice of such termination identifying the scope of
the termination and the termination date (which shall be at least one-hundred
and twenty (120) days after the date of such notice) and (ii) paying to EDS on
or before such termination date the applicable amount set forth on Schedule
17.2.
(b) If a purported termination by Coors under Section 17.1 (Termination
for Cause), Section 17.3 (Termination Upon Change in Control), Section 17.4
(Termination for Insolvency) or Section 17.5 (Termination Upon Force Majeure
Event) is determined pursuant to Article 18 (Dispute Resolution) not to be a
proper termination pursuant to such Sections, such
52
termination shall be deemed a termination for convenience subject to this
Section. Coors shall pay to EDS, and Coors' liability to EDS in consideration of
such termination shall not exceed the greater of: (A) the termination for
convenience fee that would have been applicable if Coors had instead delivered a
notice of termination of this Agreement pursuant to Section 17.2(a) at the time
of Coors' delivery of its notice of purported termination under any Section
described in the preceding sentence, and [***] Such payment shall be in lieu of
any other remedies EDS may have under this Agreement, at law or in equity with
respect to the matters described in this Section, and EDS expressly waives all
such remedies.
17.3 Termination Upon Change in Control
Coors shall have the option, but not the obligation, to terminate this
Agreement in its entirety if, directly or indirectly, in a single transaction or
series of transactions, (i) a change in Control of EDS occurs, or (ii) all or
substantially all of the assets of EDS are acquired. EDS shall notify Coors that
any such event will or has occurred as soon as EDS is legally permitted to do
so. Coors shall exercise its termination option by delivering to EDS, within one
(1) year after the last to occur of such events, written notice of such
termination identifying the termination date (which shall be at least one
hundred twenty (120) days after the date of such notice), [***]
17.4 Termination for Insolvency
Either Party shall have the option, but not the obligation, to
terminate this Agreement in its entirety without payment of a termination fee if
the other Party (i) becomes insolvent or is unable to meet its debts as they
mature, (ii) files a voluntary petition in bankruptcy or seeks reorganization or
to effect a plan or other arrangement with creditors, (iii) files an answer or
other pleading admitting, or fails to deny or contest, the material allegations
of an involuntary petition filed against it pursuant to any act of Congress
relating to bankruptcy, arrangement or reorganization, (iv) shall be adjudicated
a bankrupt or shall make an assignment for the benefit of its creditors
generally, (v) shall apply for, consent to or acquiesce in the appointment of
any receiver or trustee for all or a substantial part of its property, or (vi)
any such receiver or trustee shall be appointed and shall not be discharged
within thirty (30) days after the date of such appointment. A Party may exercise
its termination option pursuant to this Section by delivering to the other party
written notice of such termination identifying the termination date.
Notwithstanding the foregoing, EDS shall not have the right to terminate this
Agreement if Coors continues to pay pursuant to this Agreement for Services
during the pendency of any such bankruptcy or such other specified event.
53
17.5 Termination Upon Force Majeure Event
(a) Coors shall have the option, but not the obligation, to terminate
this Agreement or, from time to time, one or more affected Service Towers,
without payment of a termination fee, if EDS fails to perform any Services
(excluding EDS' obligation to successfully implement that portion of the Coors
Disaster Recovery Plan for which EDS has responsibility pursuant to Section 9.2
of Exhibit A within the timeframe(s) specified in such plan, the breach of which
obligation is subject to Section 17.1(a)(i)) in any material respects because
of the occurrence of a Force Majeure Event and:
(i) subject to clause (ii) below, EDS does not cure such
failure within thirty (30) days after the occurrence of the Force Majeure Event;
or
(ii) such failure is not reasonably curable within thirty (30)
days after such occurrence.
(b) Coors shall exercise its termination option by delivering to EDS
written notice of such termination identifying the termination date, within
ninety (90) days after Coors' termination option becomes exercisable pursuant to
clause (a) above.
17.6 Extension of Expiration/Termination Effective Date
(a) Coors may, at its option, extend the expiration date of the Term or
the termination date of the Term (regardless of whether the Agreement has been
terminated by Coors or EDS) one or more times by delivering written notice of
such extension to EDS at least thirty (30) days before such expiration date or
termination date (as such expiration date or termination date may have been
extended pursuant to the previous exercise of such extension option one or more
times); provided, however, that:
(i) Coors may also extend the expiration date or termination
date (as it may have been extended pursuant to the previous exercise of the
option granted by this Section) without providing at least thirty (30) days
written notice if Coors indicates to EDS in good faith that Coors requires such
extension because Coors' transition to a new outsourcer or to providing the
Services internally has been delayed; and
(ii) the total of all extensions pursuant to this Section
shall not exceed eighteen (18) months; and
(iii) the total length of the Term, including any extensions
pursuant to this Section shall not exceed seven (7) years.
(b) This Agreement shall continue to govern the performance of all
Services during such extension period(s), except that if the Agreement was
terminated by EDS for Coors' nonpayment pursuant to Section 17.1(c)(i)
(Termination for Cause, Non-payment of Undisputed Amounts), EDS may, at its
option, require Coors to pay the undisputed unpaid amounts then due from Coors
to EDS and require Coors to pay for any Services pursuant to this Section
monthly in advance, based upon a reasonable estimate of the amount payable for
such Services.
54
(c) EDS acknowledges that, if it were to breach, or threaten to breach,
its obligation to continue to provide Coors with Services during any extension
period(s), Coors may be irreparably harmed. In such a circumstances, Coors shall
be entitled to proceed directly to a court of competent jurisdiction and obtain
such injunctive, declaratory or other injunctive relief as may be reasonably
necessary to prevent such breach.
17.7 Effect of Termination
Termination of this Agreement or any Service Towers for any reason under
this Article shall not affect (i) any liabilities or obligations of either Party
arising before such termination or out of the events causing such termination or
(ii) any damages or other remedies to which a Party may be entitled under this
Agreement, at law or in equity arising from any breaches of such liabilities or
obligations.
17.8 Expiration/Termination Assistance
(a) Commencing one (1) year before the expiration of the Term or, if
applicable, upon delivery of a termination notice by Coors or EDS pursuant to
Article 17 (Termination), and continuing until six (6) months after the
expiration of the Term or, if applicable, six (6) months after the termination
date (as such expiration date or termination date may be extended pursuant to
Section 17.6 (Extension of Expiration/Termination Effective Date)), EDS shall
provide to Coors or Coors' designee the assistance reasonably requested by Coors
to facilitate the orderly transfer of the Services to Coors or its designee,
including, without limitation, the assistance described in Exhibit D
(collectively, "Termination Assistance"). This Agreement shall continue to
govern the performance of all such Termination Assistance before or after the
expiration or termination of the Term; provided, however, that:
(i) [***]
(ii) after such expiration date or termination date, EDS shall
have no obligation to continue performing Services other than the Termination
Assistance unless mutually agreed by the Parties. In the event that Coors
requests that EDS perform Termination Assistance after such expiration date or
termination date, Coors shall pay EDS for:
(A) each hour of consulting services included in
Termination Assistance at the rates specified in Exhibit C; and
(B) for other out-of-pocket expenses reasonably
incurred by EDS in order to provide Termination Assistance; and
(iii) if the Agreement was terminated by EDS for Coors'
nonpayment pursuant to Section 17.1(c)(i) (Termination for Cause, Non-payment
of Undisputed Amounts), EDS may, at its option, require Coors to pay for any
Termination Assistance pursuant to clause
55
(ii) above monthly in advance, based upon a reasonable estimate of the amount
payable for such Termination Assistance.
(b) EDS shall provide Coors and its auditors upon request the
information used by EDS to determine its charges pursuant to clause (a) above.
If Coors' auditors determine that the amounts charged by EDS did not comply with
such clause, EDS shall reimburse Coors for (i) the excess charges and (ii) the
cost of the audit up to (but not exceeding) the amount of the excess charges
within thirty (30) days after Coors' written request (which shall include the
relevant portions of the audit report).
(c) EDS acknowledges that, if it were to breach, or threaten to breach,
its obligation to provide Coors with Termination Assistance, Coors may be
irreparably harmed. In such a circumstances, Coors shall be entitled to proceed
directly to a court of competent jurisdiction and obtain such injunctive,
declaratory or other injunctive relief as may be reasonably necessary to prevent
such breach.
17.9 Purchase of Equipment
(a) Notwithstanding clauses (b) and (c) below, if this Agreement is
terminated for any reason during the first thirty (30) months of the Term,
regardless of the reason for such termination, Coors shall assume from EDS, and
EDS shall assign to Coors, the equipment lease entered into between EDS and its
third party equipment lessor on or about the Commencement Date pursuant to which
EDS leases the Transferred Equipment from such lessor, provided that such
equipment lease requires the lessee to make equal month payments throughout the
30-month term thereof and is otherwise on commercially standard terms. Coors
shall continue to pay to EDS the Monthly Current Asset Payment until the earlier
of the expiration of such equipment lease or the date such assignment is
consummated, and thereafter Coors shall perform the obligations of the lessee
under such equipment lease.
(b) Upon expiration of the Term or upon termination of this Agreement
by Coors pursuant to Section 17.2 (Termination for Convenience): (i) Coors shall
purchase from EDS, and EDS shall sell to Coors, all Equipment owned by EDS and
used by EDS exclusively to provide the Services (excluding any Equipment used to
support EDS Personnel); and (ii) Coors shall assume from EDS, and EDS shall
assign to Coors, any equipment lease entered into by EDS exclusively to provide
equipment to Coors in connection with the Services, provided that such equipment
lease requires the lessee to make equal monthly payments throughout the term
thereof and is otherwise on commercially standard terms.
(c) Upon termination of the Term pursuant to Section 17.1 (Termination
for Cause) Section 17.3 (Termination Upon Change in Control) Section 17.4
(Termination for Insolvency) and Section 17.5 (Termination Upon Force Majeure
Event): (i) Coors shall have the option, but not the obligation, to purchase
(and EDS shall, at Coors' option, sell to Coors) any or all Equipment owned by
EDS and used by EDS primarily to provide the Services; and (ii) Coors shall have
the option, but not the obligation, to assume from EDS (and EDS shall, at Coors'
option, assign to Coors), any EDS equipment lease entered into by EDS primarily
for the purpose of providing the Services; provided, that in order to exercise
the options described in
56
clauses (i) and (ii) above, Coors must notify EDS of which assets it intends to
purchase and/or lease within thirty (30) days after Coors' delivery to EDS of
Coors' notice of termination.
[***]
[***]
17.10 EDS Software License
Upon expiration or earlier termination of the Term, EDS shall grant to
Coors or its designee (for the internal use of Coors, its Affiliates and the
other entities described in Section 3.3) a perpetual, worldwide, royalty-free,
nonexclusive license to use, copy, maintain, modify, enhance and create
derivative works of EDS Software used to provide the Services at the end of the
Term, and EDS shall maintain, modify and update such EDS Software on reasonable
terms and conditions no less favorable than those offered to other EDS
customers. If for any reason any such EDS Software is not available to Coors or
such designee or cannot be licensed to Coors or such designee at the expiration
or earlier termination of the Term, EDS shall procure [***] a license for
substitute Software with substantially equivalent functionality, [***].
17.11 Third Party Contracts
Upon expiration or earlier termination of the Term, EDS shall, at Coors'
request, and to the extent permitted by the applicable Third Party Contract and
any applicable Third Party Consent, assign to Coors or its designee any Third
Party Software Licenses (excluding EDS licenses also used to provide services to
other EDS customers) and any Third Party Service Contracts (excluding EDS
agreements also used to provide services to other EDS customers) used to provide
goods or Services at the end of the Term. EDS shall use commercially reasonable
efforts to obtain any necessary third party consents to such assignment. [***]
Concurrently with such assignment, Coors shall deliver to EDS a corporate check
payable to EDS equal to the amount, if any, of payments made by EDS pursuant to
such Third Party Software Licenses and Third Party Services Contracts
attributable to the period after such assignment. If any of the Third Party
Contracts reassigned to Coors are Third Party Contracts listed on Schedule
5.3(b), EDS shall also assign to Coors, [***] any remaining portion of the
prepayments listed on such Schedule, concurrently with such reassignment.
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17.12 Offers to EDS Employees
Beginning six (6) months before expiration of the Term, (or, if
applicable, upon delivery of a notice of partial or complete termination
pursuant to this Article), Coors shall be entitled to seek to hire any EDS
employee who has spent substantially all of his or her working hours in the
preceding six (6) months providing Services to Coors which are expiring (or, if
applicable, being terminated by Coors), provided, however, that the effective
date of any such employee's employment with Coors may not be prior to the end of
the Term (or, if applicable, the effective date of the termination of the
Services which are being terminated), unless such employee is required by EDS to
perform Termination Assistance, in which case, the effective date of such
employee's employment date with Coors shall be after the date on which EDS no
longer requires such employee to perform the Termination Assistance. EDS shall
not interfere with Coors' efforts, shall not enforce any restrictions imposed on
such employees by agreement or policy which would interfere with Coors' efforts,
and shall provide Coors access to such employees for the purposes of interviews,
evaluations and recruitment.
17.13 Return of Confidential Information
Immediately upon termination or expiration of the Term, or otherwise at
Coors' request, EDS shall unconditionally return to Coors all of Coors'
Confidential Information, including, without limitation, Coors Data, Coors
Software, and Third Party Software licensed to Coors, in each case in the form
maintained by EDS or as otherwise reasonably requested by Coors. EDS shall not
have any right to retain, encrypt, corrupt or destroy any of Coors' Confidential
Information, and EDS hereby waives any and all statutory or common law liens,
claims of lien or similar rights, remedies or encumbrances that may now or
hereafter exist and might limit or condition EDS' obligations under this
Section.
ARTICLE 18
DISPUTE RESOLUTION
18.1 General
Any dispute or controversy between the parties with respect to the
interpretation or application of any provision of this Agreement or the
performance by EDS or Coors of their respective obligations hereunder shall be
resolved as provided in this Article.
18.2 Informal Dispute Resolution
The Parties may, if they mutually agree to do so, attempt to resolve the
dispute informally in the following manner:
(a) Either Party may submit the dispute to a joint committee (the
"Dispute Resolution Committee"), consisting of (i) Coors' Chief Information
Officer, and (ii) EDS' Western Region Client Executive (or, in each case, any
successor office assuming substantially all of such office's responsibility).
The Dispute Resolution Committee shall meet as often as the Parties reasonably
deem necessary to gather and analyze any information relevant to the
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resolution of the dispute. The Dispute Resolution Committee shall negotiate in
good faith in an effort to resolve the dispute.
(b) If the Dispute Resolution Committee determines in good faith that
resolution through continued discussions by the Dispute Resolution Committee
does not appear likely, the dispute shall be referred to the Steering Committee
to negotiate a resolution of the dispute.
(c) During the course of negotiations, all reasonable requests made by
one Party to the other for non-privileged information, reasonably related to the
dispute, shall be honored in order that each of the Parties may be fully advised
of the other's position.
(d) The specific format for the discussions shall be determined at the
discretion of the Dispute Resolution Committee or the Steering Committee, but
may include the preparation of agreed upon statements of fact or written
statements of position.
(e) Proposals and information exchanged during the informal proceedings
described in this Article between the Parties shall be privileged, confidential
and without prejudice to a Party's legal position in any formal proceedings. All
such proposals and information, as well as any conduct during such proceedings,
shall be subject to
Colorado Rules of Evidence, Rule 408, and shall be
inadmissible in any subsequent proceedings (but this provision shall not be
construed to render inadmissible documents or other evidence merely because they
were referred to, transmitted or otherwise used in any such informal
proceedings.
(f) Notwithstanding this Section 18.2, either Party may commence formal
dispute resolution proceedings pursuant to Section 18.3(a) (Arbitration) with
respect to any dispute without first observing the procedures set forth in this
Section.
18.3 Arbitration
(a) Except as set forth in clause (b) below, any controversy or claim
arising out of or relating to this Agreement, or any alleged breach hereof,
including any controversy regarding the arbitrability of any dispute, shall be
settled at the request of either Party by binding arbitration in metropolitan
Denver,
Colorado before and in accordance with the then existing Commercial
Arbitration Rules of the American Arbitration Association (the "Rules"). In any
dispute in which the amount in controversy is less than One Million Dollars
($1,000,000), there shall be one (1) arbitrator agreed to by the Parties or, if
the Parties are unable to agree within thirty (30) days after demand for
arbitration is made, selected in accordance with the Rules. In all other cases
there shall be three (3) arbitrators, one (1) of whom shall be selected by Coors
within thirty (30) days after demand for arbitration is made, one (1) of whom
shall be selected by EDS within thirty (30) days after demand for arbitration is
made, and one (1) of whom shall be selected by the two Party-appointed
arbitrators within thirty (30) days after the date the last of them was
selected. If one or more arbitrator(s) is not selected within the time period
stated in the preceding sentence, such arbitrator(s) shall be selected pursuant
to Rule 13 of the Rules. Any arbitrator(s) proposed by the American Arbitration
Association shall have at least five (5) years experience in complex data
processing transactions. The arbitrators shall apply the law set forth in
Section 18.5 to govern this Agreement and shall have the power to award any
remedy
59
available at law or in equity; provided, however, that the arbitrators shall
have no jurisdiction to amend this Agreement or grant any relief not permitted
herein or beyond the relief permitted herein. Any award rendered by the
arbitrators shall be final and binding on the Parties, and judgement on such
award may be entered in any court having jurisdiction thereof.
(b) Notwithstanding clause (a) above:
(i) Either Party may request a court of competent jurisdiction
to grant provisional injunctive or other relief to such Party solely for the
purpose of maintaining the status quo until an arbitrator can render an award on
the matter in question and such award can be confirmed by a court having
jurisdiction thereof.
(ii) If a third party brings a claim or lawsuit against one or
both of the Parties relating in any way to this Agreement, the Party named in
such claim or lawsuit may, at its option, file a cross-complaint against the
other Party in such lawsuit with respect to the controversy or claim, in which
case the controversy or claim shall be resolved by such court in lieu of
arbitration.
(iii) If a controversy or claim is related in any way to a
breach or threatened breach of provisions of this Agreement concerning
Confidential Information or intellectual property, such controversy or claim
shall, at the request of either party, be resolved by a court of competent
jurisdiction.
(iv) If a controversy or claim is related in any way to a
breach or threatened breach of any provision of this Agreement expressly
providing for equitable remedies, the Party seeking such remedies may, at its
option, do so in a court of competent jurisdiction.
18.4 Continued Performance
Subject to Section 13.5 (Setoff and Withholding), both parties shall
continue performing their respective obligations and responsibilities under this
Agreement while any dispute is being resolved in accordance with this Article,
unless and until such obligations are terminated or expire in accordance with
the provisions of this Agreement.
18.5 Applicable Law
All questions concerning the validity, interpretation and performance of
this Agreement shall be governed by and decided in accordance with the laws of
the State of
Colorado, as such laws are applied to contracts between
Colorado
residents that are entered into and performed entirely within the State of
Colorado.
18.6 Jurisdiction and Venue
The Parties hereby submit and consent to the exclusive jurisdiction of any
state or federal court with jurisdiction over Jefferson County, Colorado, and
irrevocably agree that all actions or proceedings relating to this Agreement,
other than any action or proceeding required by this Article to be submitted to
arbitration, shall be litigated in such courts, and each of the Parties waives
any objection which it may have based on improper venue or forum non conveniens
to
60
the conduct of any such action or proceeding in such court. Notwithstanding the
foregoing, the Parties also consent to the jurisdiction of any court described
in Section 18.3(b)(ii), with respect to claims and controversies described in
such Section, and irrevocably agree that all such claims and controversies may
be litigated in any such court, and waive any objection which they may have
based on improper venue or forum non conveniens to the conduct of any such
action or proceeding in any such court. Nothing in this Section shall affect the
obligation of the Parties with respect to the arbitration of disputes pursuant
to Section 18.3.
18.7 Fees and Costs
In any legal action, the prevailing Party shall be entitled to recover, in
addition to its damages (subject to any applicable limitations stated elsewhere
in this Agreement), its reasonable attorneys' fees, expert witness fees, and
other ordinary and necessary costs of litigation, as determined by the
arbitrators or court. Such costs include, without limitation, costs of any legal
proceedings brought to enforce or appeal a judgment or decree. Each Party shall
pay its own attorneys' fees and one-half (1/2) of all arbitration costs
(including the fees and expenses of the American Arbitration Association and the
arbitrator(s)), subject to final apportionment by the arbitrators.
18.8 Remedies
The Parties agree that in the event of any breach or threatened breach of
any provision of this Agreement (i) concerning Confidential Information, (ii)
concerning intellectual property rights or (iii) for which equitable remedies
are expressly provided in this Agreement, money damages may be an inadequate
remedy. Accordingly, provisions concerning Confidential Information or
intellectual property rights may be enforced by the preliminary or permanent,
mandatory or prohibitory injunction or other order of a court of competent
jurisdiction, and either Party may seek from a court of competent jurisdiction
equitable remedies for breaches of any provisions expressly providing for such
remedies.
ARTICLE 19
MISCELLANEOUS
19.1 Interpretation
(a) All Schedules are hereby incorporated into this Agreement by
reference. In the event of any conflict or inconsistency between this
Master
Services Agreement and the Schedules, such conflict or inconsistency shall be
resolved by giving precedence first to this
Master Services Agreement and second
to the Schedules.
(b) In this Agreement, words importing the singular number include the
plural and vice versa and words importing gender include all genders. The word
"person" includes, subject to the context in which it appears, an individual,
partnership, association, corporation, trustee, executor, administrator or legal
representative.
(c) In this Agreement, unless otherwise specifically provided:
61
(i) In the computation of a period of time from a specified
date to a later specified date, the word "from" means "from and including" and
the words "to" and "until" each mean "to but excluding."
(ii) References to a specified Article, Section, subsection,
Schedule or other subdivision shall be construed as references to that specified
Article, Section, subsection, Schedule or other subdivision of this Agreement
unless the context otherwise requires.
(iii) The word "dollar" and the symbol "$" refer to United
States dollars.
(iv) As provided in Section 14.4(b) (Mutual Covenants), any
reference to an approval or consent required of a Party shall be deemed to
include the phrase "which approval or consent shall not be unreasonably
withheld" unless this Agreement grants such Party the right to withhold such
approval or consent in its sole discretion.
(d) The Parties are sophisticated and have been represented by counsel
during the negotiation of this Agreement. As a result, the Parties believe the
presumption of any laws or rules relating to the interpretation of contracts
against the drafter thereof should not apply, and hereby waive any such
presumption.
19.2 Binding Nature and Assignment
Neither Party may assign (whether by merger, operation of law or otherwise)
any of its rights or obligations under this Agreement without the prior written
consent of the other Party; provided, however, that Coors may in its sole
discretion assign its rights and obligations under this Agreement to an
Affiliate or to an entity which acquires all or substantially all of its assets
or to any successor in a merger or acquisition; and provided further, that EDS
may grant to its third party equipment lessor with respect to the Transferred
Equipment EDS' right to receive and collect the Monthly Current Asset Payments
in accordance with this Agreement. No assignment by a Party shall relieve such
Party of its rights and obligations under this Agreement. Subject to the
foregoing, this Agreement shall be binding on the Parties and their respective
successors and assigns.
19.3 Expenses
In this Agreement, unless otherwise specifically provided, all costs and
expenses (including the fees and disbursements of legal counsel) incurred in
connection with this Agreement and the completion of the transactions
contemplated by this Agreement shall be paid by the Party incurring such
expenses.
19.4 Amendment and Waiver
No supplement, modification, amendment or waiver of this Agreement shall be
binding unless executed in writing by the Party against whom enforcement of such
supplement, modification, amendment or waiver is sought. No waiver of any of the
provisions of this
62
Agreement shall constitute a waiver of any other provision (whether or not
similar) nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
19.5 Further Assurances
Each Party shall provide such further documents or instruments required by
the other Party as may be reasonably necessary or desirable to give effect to
this Agreement and to carry out its provisions.
19.6 Publicity
All media releases, public announcements and other disclosures by either
Party relating to this Agreement or the subject matter hereof, including
promotional or marketing material, but excluding announcements intended solely
for internal distribution or to meet legal or regulatory requirements, shall be
coordinated with and approved by the other Party prior to release.
19.7 Severability
Any provision in this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions or affecting the validity or enforceability of such provision in any
other jurisdiction.
19.8 Entire Agreement
This Agreement, including the Schedules, constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties pertaining to the subject
matter hereof, including, without limitation, the SAP Hardware Purchase Letter
Agreement dated July 16, 2001 between EDS and Coors; provided, that the
Consultant Agreement Number 7500018533 dated October 26, 2000 among Coors, EDS
and Electronic Data Systems Corporation shall continue in force with respect to
the matters described therein. There are no warranties, representations or other
agreements between the parties in connection with the subject matter hereof
except as specifically set forth in this Agreement.
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19.9 Notices
Any notice, demand or other communication required or permitted to be
given under this Agreement shall be in writing and shall be deemed delivered to
a Party (i) when delivered by hand or courier, (ii) when sent by confirmed
facsimile with a copy sent by another means specified in this Section, or (iii)
six (6) days after the date of mailing if mailed by United States certified
mail, return receipt requested, postage prepaid, in each case to the address of
such Party set forth below (or at such other address as the Party may from time
to time specify by notice delivered in the foregoing manner):
If to EDS, to:
EDS Information Services, L.L.C.
▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ O'Hair
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
EDS Information Services, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇-▇▇-▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Coors, to:
Coors Brewing Company
Mail Number CE130
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Coors Brewing Company
Mail No. NH312
P.O. Box 4030
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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19.10 Survival
Any provision of this Agreement which contemplates performance or
observance subsequent to any termination or expiration of this Agreement,
including, without limitation, Section 6.6 (No Employment Offers), Section 7.4
(Other Intellectual Property), Section 7.5 (Residual Rights), Article 8
(Confidentiality), Article 10 (Audits), Section 12.1 (Charges) with respect to
Services rendered during the Term, Section 12.3 (Taxes), Section 12.6
(Recordkeeping), Article 15 (Indemnification), Article 16 (Limitations on
Liability), Sections 17.7 through 17.13, inclusive (Termination) and Article 18
(Dispute Resolution) shall survive the expiration or earlier termination of the
Term and continue in full force and effect. Without limiting the foregoing, it
is the Parties' specific intent that EDS' indemnification obligations pursuant
to Article 15 (Indemnification) relating to the Golden Data Center and the
Golden Data Center Lease (as amended from time to time) shall survive with
respect to events occurring before or after the termination or expiration of
this Agreement.
19.11 Independent Contractor
EDS shall perform its obligations under this Agreement as an independent
contractor of Coors. Nothing herein shall be deemed to constitute EDS and Coors
as partners, joint venturers, or principal and agent. EDS has no authority to
bind Coors legally or equitably by contract, admission, acknowledgment or
undertaking, or to represent Coors as to any matters, except as expressly
authorized in this Agreement.
19.12 No Third Party Beneficiaries
Except as set forth in Article 15 (Indemnification) of this Agreement,
nothing in this Agreement, express or implied, is intended to confer on rights,
benefits, remedies, obligations or liabilities on any person (including, without
limitation, any employees of the Parties) other than the Parties or their
respective successors or permitted assigns.
19.13 Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which taken together shall constitute one
and the same instrument.
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IN WITNESS WHEREOF the Parties have executed this Agreement as of the
day and year first above written.
COORS BREWING COMPANY EDS INFORMATION SERVICES, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. OTTAIR
---------------------- ----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. Ottair
-------------------- --------------------
Title: SRVP, CFO Title: Client Executive
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