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Exhibit 10.1(c)
GENERAL MOTORS CORPORATION
GM Logo
FRAMEWORK AGREEMENT
FOR
INFORMATION TECHNOLOGY
This document contains confidential and proprietary information furnished for
evaluation purposes only; except with the express prior written permission of
General Motors Corporation, such information may not be published, disclosed or
used for any other purpose.
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General Motors Corporation
Framework Agreement
for
Information Technology
Table of Contents
1. SCOPE OF AGREEMENT ....................................................... 1
1.1 APPLICABILITY ........................................................ 1
1.2 RELATIONSHIP OF THE PARTIES .......................................... 1
1.3 ORDER OF PRECEDENCE .................................................. 2
1.4 SUPPLY ITEMS ......................................................... 2
1.5 ACCEPTANCE OF PHASES AND STAGES ...................................... 3
1.6 ACCEPTANCE ........................................................... 3
1.7 THIRD PARTY PRODUCTS AND SERVICES .................................... 3
1.8 THIRD PARTY COMPLIANCE ............................................... 4
1.9 ADDITIONAL SERVICES .................................................. 4
1.10 FUNDAMENTAL PRINCIPLE OF GOOD FAITH AND FAIR DEALING ................ 4
1.11 INFORMATION GATHERING PRACTICES ..................................... 4
2. CHANGES .................................................................. 5
2.1 CHANGE ORDER PROCEDURES .............................................. 5
2.2 CHANGE ORDER RESPONSE ................................................ 5
2.3 CHANGE IMPLEMENTATION ................................................ 6
2.4 PRICE INCREASE PURSUANT TO CHANGE ORDERS ............................. 6
2.5 NORMAL AND ROUTINE TASKS ............................................. 6
2.6 ADDITIONAL BUSINESS UNITS ............................................ 6
3. CONTRACT ADMINISTRATION .................................................. 7
3.1 DESIGNATION OF CONTRACT AND PROJECT MANAGERS ......................... 7
3.2 DELEGATION OF AUTHORITY .............................................. 8
3.3 REVIEW MEETINGS AND PROGRESS REPORTS ................................. 8
3.5 STATUS REPORTS ....................................................... 8
3.5 EFFECT OF SUPPLIER'S FAILURE TO IDENTIFY CERTAIN PROBLEMS ............ 8
3.6 EFFECT OF SUPPLIER'S SUBMISSION OF STATUS REPORTS .................... 9
3.7 EFFECT OF CUSTOMER'S FAILURE TO PERFORM CUSTOMER OBLIGATIONS ......... 9
4. SUPPLIER PERSONNEL AND SUBCONTRACTORS .................................... 9
4.1 KEY SUPPLIER PERSONNEL ............................................... 9
4.2 OTHER SUPPLIER PERSONNEL ............................................. 10
4.3 NO EFFECT ON WARRANTIES .............................................. 10
4.4 CUSTOMER ACCESS TO SUPPLIER PERSONNEL ................................ 11
4.5 SUBCONTRACTORS/SUPPLIER'S AGENTS ..................................... 11
4.6 SITE RULES AND REGULATIONS ........................................... 11
5. RELATIONSHIP BETWEEN CUSTOMER AND SUPPLIER ............................... 11
5.1 RELATIONSHIP DEVELOPMENT ............................................. 11
5.2 PREFERENTIAL SCHEDULING .............................................. 11
5.3 NEW TECHNOLOGY REPLACEMENT ........................................... 11
5.4 CONTINUOUS IMPROVEMENT AND BEST PRACTICES ............................ 12
5.5 SATISFACTION AND PERFORMANCE REVIEWS ................................. 12
5.6 COMPETITIVE ASSESSMENT ............................................... 13
5.7 SHARED ENVIRONMENT ................................................... 13
5.8 CONSENTS ............................................................. 14
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General Motors Corporation
Framework Agreement
for
Information Technology
Table of Contents
6. CUSTOMER OBLIGATIONS AND ASSETS .......................................... 14
6.1 CUSTOMER OBLIGATIONS ................................................. 14
6.2 CUSTOMER ASSETS ...................................................... 15
7. TRANSACTION AGREEMENTS ................................................... 16
7.1 TERMS ................................................................ 16
8. CHARGES .................................................................. 18
8.1 PAYMENT REQUIREMENTS ................................................. 18
8.2 NO PRICE INCREASES ................................................... 18
8.3 NO RESTRICTIONS ON USE ............................................... 18
8.4 RIGHT OF SET-OFF ..................................................... 18
8.5 OUT-OF-POCKET ........................................................ 18
9. PRICING .................................................................. 19
9.1 INVOICING STANDARDS .................................................. 19
9.2 ISSUANCE AND DELIVERY OF INVOICES .................................... 19
9.3 CREDITS .............................................................. 19
9.4 DISCOUNTS ............................................................ 20
9.5 PAYMENT TERMS ........................................................ 20
9.6 SUPPLIER'S EFFORTS TO MINIMIZE CHARGES ............................... 20
9.7 FEE DISPUTES ......................................................... 20
9.8 CURRENCY ............................................................. 21
10. COVENANTS, REPRESENTATIONS AND WARRANTIES .............................. 21
10.1 CAPABILITIES ........................................................ 21
10.2 DELEGATION OF AUTHORITY ............................................. 21
10.3 RIGHT AND TITLE ..................................................... 21
10.4 MANUFACTURER'S WARRANTIES ........................................... 21
10.5 SOFTWARE ............................................................ 21
10.6 STANDARDS ........................................................... 22
10.7 TERMINATION BY ELECTRONIC MEANS ..................................... 22
10.8 SUPPLIER THIRD PARTY AGREEMENTS ..................................... 22
10.9 CUSTOMER THIRD PARTY AGREEMENTS ..................................... 22
10.10 YEAR 2000 .......................................................... 22
10.12 EMU CONVERSION ..................................................... 23
10.14 ESCROW SUFFICIENCY ................................................. 23
11. MUTUAL DISCLAIMER ....................................................... 23
12. CONFIDENTIAL INFORMATION ................................................ 23
12.1 CONFIDENTIAL INFORMATION OF CUSTOMER ................................ 23
12.2 CONFIDENTIAL INFORMATION OF SUPPLIER ................................ 24
12.3 SAFEGUARDING DATA ................................................... 25
12.4 FILE SECURITY ....................................................... 25
12.6 RESTRAINTS ON COPYING ............................................... 25
12.6 NOTIFICATION TO CUSTOMER ............................................ 25
12.7 SUPPLIER SOFTWARE ASSIGNMENT OF CODES ............................... 26
12.8 CODE SECURITY ....................................................... 26
12.9 USE AND RETURN OF CUSTOMER CONFIDENTIAL INFORMATION ................. 26
12.11 USE AND RETURN OF SUPPLIER CONFIDENTIAL INFORMATION ................ 26
12.11 SECURITY PROCEDURES ................................................ 27
12.12 PERSONNEL .......................................................... 27
12.13 INTERNET ADDRESSES ................................................. 27
12.15 ATTORNEY-CLIENT PRIVILEGE .......................................... 27
12.15 UNAUTHORIZED ACCESS ................................................ 28
12.16 COSTS .............................................................. 28
12.17 EXCLUSION .......................................................... 28
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General Motors Corporation
Framework Agreement
for
Information Technology
Table of Contents
13. PROPRIETARY RIGHTS ...................................................... 29
13.1 CUSTOMER INTELLECTUAL PROPERTY ...................................... 29
13.2 SUPPLIER INTELLECTUAL PROPERTY ...................................... 29
13.3 THIRD-PARTY INTELLECTUAL PROPERTY ................................... 30
13.4 DERIVATIVE WORKS .................................................... 31
13.5 WORK PRODUCT ........................................................ 32
13.6 DEVELOPED SOFTWARE .................................................. 32
13.7 REPRODUCTION OF SOFTWARE ............................................ 32
13.8 DOCUMENTATION ....................................................... 33
13.9 RIGHTS IN DATA ...................................................... 33
14. ESCROW OF SOURCE CODE ................................................... 33
14.1 RELEASE OF ESCROW ................................................... 33
14.2 CUSTOMER'S RIGHTS AND OBLIGATIONS AFTER RELEASE OF SOURCE CODE ...... 34
14.3 ESCROW VERIFICATION ................................................. 34
14.4 SOURCE CODE INSTALLATION ............................................ 34
16. INDEMNIFICATION ......................................................... 35
15.1 INDEMNIFICATION BY CUSTOMER ......................................... 35
15.2 INDEMNIFICATION BY SUPPLIER ......................................... 35
15.3 NOTICE .............................................................. 36
15.4 INDEMNIFICATION PROCEDURES .......................................... 36
15.5 USE OF INFRINGING PRODUCTS OR SERVICES .............................. 37
15.6 DISCONTINUATION OF PAYMENTS ......................................... 37
15.7 EXCLUSION ........................................................... 37
16. THIRD PARTY AGREEMENTS .................................................. 37
16.1 THIRD-PARTY AGREEMENTS ............................................. 38
16.2 PERFORMANCE UNDER THIRD-PARTY AGREEMENTS ........................... 38
16.3 PERFORMANCE UNDER SUPPLIER-ADMINISTERED AGREEMENTS ................. 38
16.4 THIRD-PARTY INVOICES ................................................ 38
17. INSURANCE ............................................................... 39
17.1 TYPES AND AMOUNT .................................................... 39
17.2 REPUTABLE INSURERS .................................................. 39
17.3 INSURANCE CERTIFICATES .............................................. 39
17.4 NO SATISFACTION OF OTHER OBLIGATIONS ................................ 40
17.5 SUBCONTRACTORS ...................................................... 40
18. TERM .................................................................... 40
18.1 INITIAL TERM ........................................................ 40
18.2 RENEWAL ............................................................. 40
18.3 MAXIMUM TERM ........................................................ 40
18.4 EFFECT OF EXPIRATION OR TERMINATION ................................. 40
19. TERMINATION AND CANCELLATION ............................................ 41
19.1 CANCELLATION ........................................................ 41
19.2 EFFECT OF CANCELLATION .............................................. 41
19.3 TERMINATION FOR CONVENIENCE ......................................... 41
19.4 TERMINATION FOR CHANGE IN CONTROL OF SUPPLIER ....................... 41
19.5 TERMINATION FOR CAUSE ............................................... 42
19.6 TERMINATION FOR INSOLVENCY .......................................... 42
19.7 EFFECT OF PARTIAL TERMINATION ....................................... 42
19.8 TERMINATION FEE ..................................................... 42
19.9 ABSOLUTE OBLIGATION ................................................. 43
19.10 RIGHTS UPON TERMINATION ............................................ 44
20. REMEDIES ................................................................ 45
20.1 REMEDIES OF EITHER PARTY ............................................ 45
20.2 NO WAIVER ........................................................... 45
20.3 CONSEQUENTIAL DAMAGES ............................................... 45
20.4 DIRECT DAMAGES ...................................................... 45
20.5 EXCLUSIONS .......................................................... 46
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General Motors Corporation
Framework Agreement
for
Information Technology
Table of Contents
21. RESOLUTION OF DISPUTES .................................................. 46
21.1 RESOLUTION OF DISPUTES OF INVOICES .................................. 46
21.2 RESOLUTION OF ALL DISPUTES .......................................... 47
22. AUDIT RIGHTS; RECORDS RETENTION ......................................... 47
22.1 AUDITS (PROCESSING) ................................................. 47
22.2 CUSTOMER EXPENSES ................................................... 47
22.3 SUPPLIER EXPENSES ................................................... 47
22.4 AUDITS (PERFORMANCE AND FEES) ....................................... 47
22.5 RECORDS RETENTION ................................................... 48
22.6 ACCESS .............................................................. 48
22.7 STATUS REPORTS ...................................................... 48
22.8 AUDIT SOFTWARE ...................................................... 48
22.9 FACILITIES .......................................................... 48
23. ASSIGNMENT .............................................................. 49
23.1 ASSIGNMENT BY SUPPLIER .............................................. 49
23.2 ASSIGNMENT BY CUSTOMER .............................................. 49
23.3 PARTIAL ASSIGNMENT TO RELATED ENTITY OR PURCHASER ................... 49
23.4 DIVESTED ENTITIES ................................................... 50
24. TAXES ................................................................... 50
24.1 INFORMATION ......................................................... 50
24.2 STRUCTURE ........................................................... 50
24.3 TAX CREDIT .......................................................... 50
24.4 COOPERATION ......................................................... 50
25. MISCELLANEOUS ........................................................... 51
25.1 COMPLIANCE WITH LAWS AND REGULATIONS ................................ 51
25.2 INDEPENDENT CONTRACTOR STATUS AND GENERAL LIABILITY PROVISION ....... 51
25.3 FORCE MAJEURE ....................................................... 51
25.4 RELEASES AND WAIVERS ................................................ 52
25.5 NOTICES ............................................................. 52
25.6 CUMULATIVE REMEDIES ................................................. 52
25.7 AMENDMENT ........................................................... 52
25.8 BUSINESS CONTINUITY ................................................. 52
25.9 NO BROKERS OR INTERMEDIARIES ........................................ 53
25.10 NO WAIVER .......................................................... 53
25.11 PARTIAL INVALIDITY ................................................. 53
25.12 HEADINGS ........................................................... 53
25.13 COUNTERPARTS ....................................................... 53
25.14 ENTIRE AGREEMENT ................................................... 53
25.15 PUBLICITY .......................................................... 53
25.16 SURVIVAL ........................................................... 53
25.17 GOVERNING LAW; VENUE; SERVICE OF PROCESS ........................... 54
25.18 THIRD PARTY BENEFICIARIES .......................................... 54
25.19 COVENANT OF FURTHER ASSURANCES ..................................... 54
* * *
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APPENDIX A - ............................................................. GLOSSARY
EXHIBITS
1.2 - EXISTING AGREEMENTS
3.3A - CUSTOMER DELEGATION OF AUTHORITY
5.1 - CUSTOMER INFORMATION SYSTEMS AND SERVICES ORGANIZATION CHART
5.4D - CUSTOMER CORPORATE INFORMATION TECHNOLOGY ARCHITECTURE AND TECHNICAL STANDARDS
8.5 - CUSTOMER TRAVEL GUIDELINES
10- SOFTWARE WITH ILLICIT CODE, KEY, NODE LOCK, TIME-OUT AND OTHER PRODUCT- OR SERVICE-LIMITING
FUNCTIONS
10.10- CUSTOMER YEAR 2000 COMPLIANCE TEST PROCEDURE
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GENERAL MOTORS CORPORATION
FRAMEWORK AGREEMENT
FOR
INFORMATION TECHNOLOGY
THIS FRAMEWORK AGREEMENT FOR INFORMATION TECHNOLOGY is made to
be effective as of the 8th day of June, 1998 (Effective Date) by and between
General Motors Corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and FreeMarkets OnLine, Inc., with offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Terms used with initial capital letters in this Framework
Agreement or in other Agreements are defined in Appendix A or herein or therein.
BACKGROUND AND OBJECTIVES
Customer and its Related Entities desire to procure certain information
technology products and services, and Supplier desires to be considered as a
potential supplier of such products and services to Customer. Customer desires
to solicit these products and services from Supplier from time to time,
generally through the issuance of Requests For Proposal to the Supplier and to
other suppliers of these products and services. The Parties' objectives in
entering into this Framework Agreement are: (i) to establish the Parties' desire
to create a mutually beneficial relationship in a globally competitive
marketplace; (ii) to ensure that Supplier understands Customer's requirements
for information technology products and services including Customer's
information technology strategy as set forth in Customer's Corporate Information
Technology Architecture and Technical Standards; (iii) to set forth the terms
that shall govern the provision of Products and Services by Supplier to
Customer; and (iv) to establish a structure by which all transactions between
the Parties may be completed in a time-efficient and cost-effective manner.
Supplier will share Customer's dedication to customer enthusiasm, integrity,
teamwork, innovation and continuous and measurable improvement. Both Parties
will strive to eliminate ambiguities and omissions from the spoken and written
terms of the relationship by communicating with clarity of purpose and
expectations.
THE AGREEMENT
1. SCOPE OF AGREEMENT
1.1 APPLICABILITY. This Framework Agreement is applicable to the
procurement by Customer or its Related Entities, for any Site, of any Products
or Services that are available during the Term of the applicable Agreements.
1.2 RELATIONSHIP OF THE PARTIES. Supplier and Customer will execute
this Framework Agreement and each Category Agreement, while Supplier, on the one
hand, and Customer or a Related Entity of Customer, on the other hand, will
execute
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each Transaction Agreement. Each Related Entity of Customer that is a party to
one or more of the Transaction Agreements shall be considered to be the
"Customer" as such term is used in this Framework Agreement and in all
applicable Category Agreements. Notwithstanding the foregoing, Supplier
acknowledges and agrees that only the Related Entity of Customer that is a party
to the applicable Agreement shall be held responsible for and liable to any
other party with respect to activities under that Agreement. In the event the
Supplier is a partnership, the partnership alone will be held responsible for,
and liable to, the Customer with respect to activities under any of the
applicable Agreements, and not the individual partners comprising the
partnership. General Motors Corporation shall be an intended third party
beneficiary of the rights of any of its Related Entities under all Transaction
Agreements to which any of such Related Entities is a party.
1.3 ORDER OF PRECEDENCE. This Framework Agreement is a general
procurement agreement that contemplates the execution by Supplier and Customer
of one or more Category Agreements and one or more Transaction Agreements. A
Transaction Agreement may be applicable to (and therefore incorporate the terms
of) more than one Category Agreement, and each Category Agreement may have more
than one applicable Transaction Agreement. The Parties intend that the terms of
this Framework Agreement be incorporated into all Category Agreements and
Transaction Agreements, and that the terms of the Agreements are consistent with
each other. Any inconsistency, ambiguity or conflict between or among the terms
and conditions of the operative documents will be resolved in the following
order of precedence:
(A) any applicable Change Order(s), with a later Change Order
taking precedence over any earlier, applicable Change Order(s);
(B) the applicable Transaction Agreement, with the Transaction
Agreement regarding an undertaking covered therein taking precedence over
Category Agreements and the Framework Agreement regarding the same undertaking;
(C) the applicable Category Agreement with the Category
Agreement regarding an undertaking covered therein taking precedence over
Framework Agreement regarding the same undertaking; and
(D) the Framework Agreement.
Notwithstanding the foregoing, the order of precedence applies only to the
extent an inconsistency, ambiguity or conflict exists. Any inconsistent,
ambiguous or conflicting terms shall not be deemed to be amended, modified,
canceled or waived with respect to any other Category Agreement or Transaction
Agreement or for any other purpose whatsoever. No amendment, modification,
cancellation or waiver shall be effective until Change Order Procedures are
completed.
1.4 SUPPLY ITEMS. Prior to the execution of the applicable Transaction
Agreements by Customer, Supplier shall provide Customer with specifications for
all Supply Items required to provide the Products or perform the Services
contemplated by such Transaction Agreements. Customer reserves the right to
obtain and use Supply Items from sources other than Supplier without affecting
Supplier obligations, including maintenance and performance warranties under the
related Category Agreement and Transaction Agreement, provided such
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Supply Items conform to the applicable specifications. If Customer obtains any
Supply Items from an authorized reseller of Supplier, such Supply Items will be
covered by the same warranty terms as if the Supply Items had been obtained
directly from Supplier.
1.5 ACCEPTANCE OF PHASES AND STAGES. Depending upon the nature of the
Products or Services, the applicable Category Agreements and Transaction
Agreements may provide that Supplier shall perform its obligations in two or
more phases or stages. In such event, each such phase or stage of performance
shall constitute a separate obligation of Supplier, the performance of which
shall be subject to all remedies available to Customer under the applicable
Agreements in the event the applicable Acceptance Criteria specified therein are
not fully satisfied.
1.6 ACCEPTANCE.
Customer may include in the terms and conditions of each
Transaction Agreement certain Acceptance Criteria for Supplier's delivery and
performance of the Products and Services and any related Deliverables. Customer
shall have the period of time, if any, as set forth in the applicable
Transaction Agreement in which to ascertain whether the Products and Services
meet or exceed all applicable Specifications, Deliverables, Service Levels and
all other representations, warranties, covenants and conditions of the
applicable Agreements, and that the Supplier has provided and performed the
Products and Services to successfully complete the Acceptance Criteria. Except
as otherwise expressly set forth in the Transaction Agreement, Customer's
obligation to compensate Supplier with respect to any Products or Services and
any related Deliverables shall arise only after Customer has reviewed such
items, performed such Acceptance Testing as set forth in the applicable
Transaction Agreement, and otherwise established that Supplier has fully
performed its obligations under the applicable Agreements, and that Supplier is
not otherwise in default under such Agreements. In no event shall use of the
Products or Services or any related Deliverables by Customer for business,
profit, revenue or any other purpose during Acceptance Testing constitute
acceptance by Customer. Supplier's failure to meet the Acceptance Criteria
within the time established in the applicable Transaction Agreement shall
constitute breach, and it shall be deemed that Customer has received no value
from the Products and Services.
1.7 THIRD PARTY PRODUCTS AND SERVICES.
(A) Except as otherwise expressly set forth in the Transaction
Agreement, Customer may at any time obtain any products and services, from any
third party in replacement of, or in addition to, the Products and Services from
the Supplier. If such products and services are procured as a result of
termination of Customer's obligation to procure the Products and Services, the
terms of Article 19 will apply based on the reasons for such termination. In the
event Customer contracts with a third party for products or services, Supplier
shall cooperate with Customer and such third party to the extent reasonably
required by Customer and such third party, which cooperation shall include, but
not be limited to, the following:
(1) providing such third party with the written
requirements, standards and procedures applicable to Customer's information
technology environment as requested by Customer;
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(2) providing assistance and support Services to such
third party on behalf of Customer at the rates set forth in the applicable
Transaction Agreement; and
(3) providing access to the Products and Services
being used by Supplier as may be reasonably required by such third party and
approved by Customer.
(B) Alternatively, upon Customer's request, Customer and
Supplier may jointly negotiate with a third party the terms and conditions
relating to the Products and Services Supplier will be providing to Customer
through such third party.
1.8 THIRD PARTY COMPLIANCE. Customer shall require all third party
suppliers to comply with Supplier's reasonable requirements regarding
operations, data center standards, confidentiality and security to the extent
applicable and necessary. Supplier will provide to such third parties, or to
Customer upon request, copies of any such reasonable requirements regarding
Supplier's operations, data center standards, confidentiality and security.
1.9 ADDITIONAL SERVICES. During the Term, Customer may desire to obtain
Additional Services. As soon as reasonably practicable and in no event later
than thirty (30) days after Supplier's receipt of Customer's request for
Additional Services, Supplier may submit to Customer, Supplier's Proposal for
provision of Additional Services, including Supplier's proposed charges for the
Additional Services; provided, however, if Supplier cannot provide its Proposal
within thirty (30) days, Supplier shall notify the Customer and may request an
extension for a reasonable period of time, which Customer, in its reasonable
discretion, may grant. Customer, in Customer's sole discretion, may obtain
additional services from suppliers other than Supplier.
1.10 FUNDAMENTAL PRINCIPLE OF GOOD FAITH AND FAIR DEALING. In entering
into this Framework Agreement, the Category Agreements and the Transaction
Agreements, each of Customer and Supplier acknowledges and agrees that all
aspects of the worldwide business relationship and dealings between Customer and
Supplier contemplated by the Agreements, including the performance of all
obligations and the exercise of all rights under the Agreements, will be
governed by the fundamental principle of good faith and fair dealing. Customer
and Supplier will assure that each of their respective Related Entities complies
with this principle of good faith and fair dealing.
1.11 INFORMATION GATHERING PRACTICES. Supplier agrees that its
acquisition of information on behalf of Customer shall be in compliance with all
applicable laws and regulations and shall be in compliance with the ethical
principles set forth by Customer as follows:
There are important limitations on how and what competitive
information may be obtained. No improper means may be used to
acquire confidential or proprietary information from any
competitor, supplier or customer. Improper means would include
any form of industrial espionage, the payment of money or
giving of any favor or consideration, or the hiring of a
competitor's employees to obtain confidential information.
Information which may not be sought would include data on a
competitor's unannounced new products or confidential data
relating to costs, prices or profits.
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2. CHANGES
2.1 CHANGE ORDER PROCEDURES.
(A) In the event that Customer desires to propose a Change, it
shall deliver a Change Order Request to the applicable Supplier Project Manager.
Supplier shall use reasonable efforts to promptly prepare and deliver to
Customer, at no charge to Customer, a Change Order Response in accordance with
the time period, if any, set forth in the Change Order Request. If Supplier
cannot provide a Change Order Response within the time period, if any, set forth
in the Change Order Request, Supplier shall notify the Customer and request an
extension for a reasonable period of time, which Customer, in its reasonable
discretion, may grant.
(B) In the event that Supplier desires to propose a Change, it
shall deliver a Change Order Response to the applicable Customer Project Manager
or to the Customer Corporate Contract Manager.
(C) A Change Order Response, whether in response to a Change
Order Request or not, shall constitute an irrevocable offer by Supplier for a
time period of sixty (60) days to implement the proposed Change described
therein on the terms set forth herein and therein.
(D) If Customer accepts Supplier's offer as set forth in the
Change Order Response, such Change Order Response shall be deemed to be a Change
Order.
2.2 CHANGE ORDER RESPONSE. Supplier shall include the following
information in all Change Order Responses:
(i) the effect, and manner of establishment thereof, of the
proposed Change, if any, on the amounts payable by Customer under the Agreements
(as determined by the procedure set forth in Section 2.4
(ii) the effect, and manner of establishment thereof, of the
proposed Change, if any, on Supplier's performance of its obligations under the
Agreements, including the effect on required Schedules and Service Levels as set
forth in the applicable Transaction Agreements;
(iii) a good faith estimate of the effect, and manner of
establishment thereof, of the proposed Change, if any, on Customer's costs and
expenses relating to Customer's obligations under the Agreements;
(iv) the anticipated time schedule for implementing the
proposed Change; and
(v) any other information requested by Customer or reasonably
necessary for Customer to make an informed decision.
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2.3 CHANGE IMPLEMENTATION. No Change Order shall become effective
without the written approval of the applicable Customer Project Manager. In
addition, certain Changes may only be approved by the Customer Corporate
Contract Manager or his or her designee as set forth in Customer's Delegation of
Authority. Under no circumstances shall Supplier be entitled to payment for any
Product or Service provided pursuant to a Change Order that has not been so
approved by the Customer Project Manager or the Customer Corporate Contract
Manager or his or her designee.
2.4 PRICE INCREASE PURSUANT TO CHANGE ORDERS. If either Party proposes
a Change in the Products or Services to be provided hereunder pursuant to the
Change Order Procedures, the price for such Change shall be determined in the
manner set forth below.
(A) To the extent the proposed Change can be reasonably
accommodated within the specified existing level of resources, not including
overtime work, then being used by Supplier in performing its obligations
hereunder or under the other applicable Agreements, and without degradation of
Supplier's compliance with all applicable performance requirements, the charges
payable by Customer under the Agreements shall not be increased. To the extent a
Change proposed by either Party will lower Supplier's cost to fully perform its
obligations hereunder, the charges payable by Customer under the Agreements
shall be equitably adjusted to reflect such projected cost savings.
(B) To the extent the proposed Change in Products or Services
is not subject to Section 2.4 (A) above or except as otherwise expressly set
forth in the Transaction Agreement, Supplier shall quote Customer a charge for
such Change equal to Supplier's incremental cost of providing such changed or
additional Products or Services plus a reasonable profit margin on such
incremental cost not exceeding the profit margin then charged by the Supplier.
Supplier shall include with its quote the information used by Supplier to
determine its incremental costs and the appropriate profit margin.
2.5 NORMAL AND ROUTINE TASKS. Notwithstanding anything to the contrary
in the Agreements, Supplier acknowledges that Supplier is expected to undertake
and accomplish normal and routine tasks necessary to perform its obligations
under the Agreements for the charges set forth in the applicable Agreements. No
Change Order Response will be approved by Customer for tasks that Customer
reasonably determines to be normal and routine tasks.
2.6 ADDITIONAL BUSINESS UNITS. Customer shall have the right to add
Related Entities or other additional Sites, entities and units under the
Agreements. The Parties shall follow the Change Order Procedures in the event
that Customer adds a Related Entity or other additional Site, entity or unit.
Customer's Change Order Request shall contain sufficient information for
Supplier to prepare an accurate and complete Change Order Response. The Change
Order Response shall contain a plan to accommodate Customer's needs in a
cost-effective manner without a disruption in service to Customer. Such Change
Order Response shall also include any adjustments to the compensation due
Supplier under the applicable
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Agreements (subject to such adjustments being limited to the rates or other
pricing in effect under the applicable Agreements for similar Products or
Services unless Supplier can demonstrate that the cost of delivery of the
Products and Services is significantly higher due to different circumstances).
Customer shall not be obligated to accept such Change Order Response with
respect to any Related Entities or other additional Sites, entities or units.
3. CONTRACT ADMINISTRATION
3.1 DESIGNATION OF CONTRACT AND PROJECT MANAGERS. The Parties will
designate Managers for all Agreements in accordance with the following:
(A) Customer and Supplier will each designate a Corporate
Contract Manager who shall be responsible for, among other things:
(1) Implementing, managing and enforcing Agreements
on behalf of that Party, including overall management of the Agreements;
(2) Supporting the implementation of the Transaction
Agreements by the Project Managers for the Parties thereto, including, through
the formulation of guidelines for use by the Project Managers to implement the
Transaction Agreements;
(3) Exercising day-to-day responsibility for
achieving resolution of corporate-wide issues relating to the Agreements;
(4) Working with the Project Managers to establish
uniform policies applicable to the Products and Services provided by Supplier to
Customer; and
(5) Monitoring the activities of the Project Managers
as applicable, of that Party.
(B) Each Party to a Transaction Agreement will appoint a
Project Manager who will be identified in the Transaction Agreement, and who
will be responsible for the following:
(1) implementing, managing and enforcing the
Agreement on behalf of the Party;
(2) supervising performance of that Party's
obligations under the Agreement;
(3) having principal responsibility to resolve
disputes between the Parties; and
(4) ensuring that the policies and procedures
established with respect to the Agreement are consistent with the policies and
procedures of general applicability established by the applicable Corporate
Contract Manager.
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3.2 DELEGATION OF AUTHORITY.
(A) The Customer Delegation of Authority limits the authority
of Customer Project Managers and other Customer personnel to undertake certain
obligations. Obligations undertaken by any Customer Project Manager or other
Customer personnel who are not authorized to enter into such obligations under
the Customer Delegation of Authority are voidable, in Customer's sole
discretion.
(B) Each Corporate Contract Manager or Project Manager may
delegate any of his or her authority to a designated representative by notifying
the other Party's Corporate Contract Manager or Project Manager of the
designated representative to whom such authority is delegated and the extent of
the authority delegated, which notice shall be confirmed in writing. Subject to
Section 3.2(A), each Party shall be entitled to rely upon instructions received:
(1) from the Corporate Contract Manager or Project
Manager for the other Party with respect to all matters relating to the
Agreements; and
(2) any designated representative of the Corporate
Contract Manager or Project Manager for the other Party so authorized with
respect to the areas for which such designated representative is responsible.
3.3 REVIEW MEETINGS AND PROGRESS REPORTS. During the Term, and as
requested by Customer Project Manager, the Customer Project Manager and Supplier
Project Manager, as well as additional personnel involved in the performance of
the applicable Transaction Agreements, shall meet at a location designated by
Customer or, at Customer's option, shall conduct a telephone conference call, to
discuss the progress made by Supplier and Customer in the performance of their
respective obligations during the period since the most recent meeting for such
purpose.
3.4 STATUS REPORTS. In order to facilitate proper management of the
Agreements, Supplier shall, at each such meeting, provide Customer with a
written status report in which Supplier identifies any material problem or
circumstance encountered by Supplier, or which Supplier gained knowledge of
during the period since the last such status report (including without
limitation the failure of Customer to perform, any delay of Customer in
performing, or the inadequacy in the performance of Customer of any Customer
obligation set forth in the Agreements), or any problem or circumstance that may
cause material harm to Customer, that: (i) may prevent or tend to prevent
Supplier from completing any of its obligations hereunder; (ii) may cause or
tend to cause Supplier to generate charges in excess of those previously agreed
to by the Parties; or (iii) result in increased costs or obligations for
Customer in complying with the terms of the Agreements. Supplier shall identify
such costs, the amount of excess charges, if any, and the cause of any
identified problem or circumstance and steps taken or proposed to be taken by
Supplier to remedy same.
3.5 EFFECT OF SUPPLIER'S FAILURE TO IDENTIFY CERTAIN PROBLEMS. In the
event Supplier fails to specify in writing
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any material problem or circumstance, or any problem or circumstance that may
cause material harm to Customer, that the Supplier knew or should have known,
with respect to the time covered by Supplier's status report, it shall be
conclusively presumed for purposes of the Agreements that no such problem or
circumstance arose during such time, and Supplier shall not be entitled to rely
upon such problem or circumstance as a purported justification for either:
(A) claiming Supplier is entitled to receive any amount
(including without limitation damages or additional charges arising out of a
breach by Customer of a Customer obligation as set forth in the Agreements) with
respect to any of Supplier's obligations hereunder in excess of those previously
agreed to; or
(B) failing to complete any of Supplier's obligations
hereunder.
3.6 EFFECT OF SUPPLIER'S SUBMISSION OF STATUS. Submission by Supplier
of the status reports pursuant to Section 3.4 shall not alter, amend or modify
Supplier's or Customer's rights or obligations pursuant to any provision of the
Agreements.
3.7 EFFECT OF CUSTOMER'S FAILURE TO PERFORM CUSTOMER OBLIGATIONS. For
any problem or circumstance included in any Supplier status report and which
Supplier claims was the result of Customer's or Customer's subcontractors' or
agents' failure or delay in discharging a Customer obligation as set forth in
the Agreements, Customer shall review the same and determine if such problem or
circumstance was in fact the result of such failure or delay. If Customer agrees
as to the cause of such problem or circumstance, then the Parties shall follow
the Change Order Procedures. If Customer does not agree as to the cause of such
problem or circumstance, the Parties shall each attempt to resolve the problem
or circumstance in a manner satisfactory to both Parties.
4. SUPPLIER PERSONNEL AND SUBCONTRACTORS
4.1 KEY SUPPLIER PERSONNEL.
(A) Supplier shall propose names and provide resumes for
Supplier's recommendation for the position of the Supplier Corporate Contract
Manager to Customer for Customer's approval, such approval not to be
unreasonably withheld. The Customer Corporate Contract Manager and Supplier
Corporate Contract Manager may designate as Key Supplier Personnel, a reasonable
number of key Supplier positions that are critical to the Customer/Supplier
relationship and the successful performance under the Agreements including, but
not limited to, the Supplier Project Managers. In addition, Customer shall have
the right to designate up to ten percent (10%) of Supplier personnel assigned
under any Transaction Agreement as Key Supplier Personnel.
(B) Before any Supplier employee is assigned as a Key Supplier
Personnel, Supplier will propose to Customer that such employee be assigned as a
Key Supplier Personnel. Supplier will introduce the employee to Customer
representatives and will provide Customer with a resume and any other
information about the Supplier employee requested by the Customer. If
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Customer reasonably objects to the proposed assignment within ten (10) working
days following actual receipt of the aforementioned notification, then Supplier
will not assign that Supplier employee to that position. However, Supplier may
appoint another Supplier employee to serve in that position on an interim basis
until a Supplier employee who is reasonably acceptable to Customer can be
assigned to that position.
(C) Key Supplier Personnel shall not be replaced or reassigned
by Supplier without Customer's prior written consent, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, Key Supplier Personnel may
be temporarily replaced by Supplier for absences due to vacation, illness,
accident or other events outside of Supplier's reasonable control. The terms of
this Section 4.1 (C) shall not apply in the event that Key Supplier Personnel
becomes disabled, dies or voluntarily resigns from his or her position with
Supplier. In such an event, Supplier shall be responsible: (i) for replacing
such Key Supplier Personnel within thirty (30) days of the last day of such Key
Supplier Personnel's employment with Supplier; and (ii) for training such Key
Supplier Personnel's replacement at Supplier's sole expense.
(D) Customer may require Supplier to replace any individual
Key Supplier Personnel immediately for any reason including but not limited to:
(i) violation of the terms of any Agreement; (ii) violation of Customer's
policies, rules or regulations; (iii) violation of local, state, federal or
municipal laws, statutes or regulations; (iv) such individual's engagement in
activities that could be detrimental to Customer or Customer's personnel, or
because Customer believes such individual is not compatible with Customer's
personnel. Should Customer so request, Supplier shall replace any Key Supplier
Personnel within thirty (30) days from the date of Customer's notification.
(E) Key Supplier Personnel shall not be assigned to a
competitor of the Related Entity under the applicable Transaction Agreement for
one (1) year from the date such Key Supplier Personnel last worked for Customer
without Customer's prior written consent, which consent shall not be
unreasonably withheld.
4.2 OTHER SUPPLIER PERSONNEL. Customer reserves the right to review the
qualifications of Supplier's personnel providing Products or Services under the
Agreements, and to make recommendations regarding placement of such personnel
for the benefit of Customer. Supplier shall make a commercially reasonable
effort to honor Customer's requests to replace any Supplier personnel.
Notwithstanding the foregoing, Customer may require Supplier to replace any
Supplier personnel immediately for reasons including but not limited to: (i)
violation of the terms of any Agreement; (ii) violation of Customer's policies,
rules or regulations; (iii) violation of local, state, federal or municipal
laws, statutes or regulations; or (iv) such individual's engagement in
activities that could be detrimental to Customer or Customer's personnel.
4.3 NO EFFECT ON WARRANTIES. Customer's selection, use or election not
to use any of its rights and remedies regarding Supplier Key Personnel and other
Supplier personnel shall not affect in any way Supplier's responsibilities,
liabilities or warranties under the Agreements.
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4.4 CUSTOMER ACCESS TO SUPPLIER PERSONNEL. Without limitation on any
other obligation of Supplier or right of Customer hereunder, Supplier agrees
that it shall, upon Customer's reasonable request, provide Customer with
reasonable access to Supplier's specialized technical personnel and resources to
an extent no less than that provided to any other of Supplier's customers.
4.5 SUBCONTRACTORS/SUPPLIER'S AGENTS.
(A) Supplier shall not subcontract all or any material portion
of its obligations hereunder without Customer's prior written consent.
Customer's consent with respect to any subcontractor shall not relieve Supplier
of its responsibility for the performance of any of its obligations hereunder or
constitute Customer's consent to further subcontracting.
(B) Supplier shall retain responsibility for the acts or
omissions of all of its employees, subcontractors, consultants, representatives
and agents in connection with the performance of its obligations hereunder.
Supplier shall be responsible for all payments to, and claims by, such
employees, subcontractors, consultants, representatives and agents relating to
performance or nonperformance under the Agreements. Customer, in its sole
discretion, shall approve all Supplier employees, subcontractors, consultants,
representatives and agents requiring access to any Customer Site or facility.
4.6 SITE RULES AND REGULATIONS. Supplier employees, subcontractors,
consultants, representatives and agents shall comply with Customer's reasonable
safety and access policies and holiday schedule, provided Customer gives
Supplier employees, subcontractors, consultants, representatives and agents
notice of such policies. Supplier agrees that it will comply with all Customer
policies and procedures applicable to the security and safety of Customer
Confidential Information in the possession of Supplier, and shall establish and
maintain safeguards for the protection thereof in accordance with the applicable
Agreements.
5. RELATIONSHIP BETWEEN CUSTOMER AND SUPPLIER
5.1 RELATIONSHIP DEVELOPMENT. At Customer's request, in order to
further develop the Customer/Supplier relationship, Supplier will appoint a
senior executive to act as an interface with the appropriate Information Officer
or Department Head from Customer's IS&S Organization identified on the chart
attached as Exhibit 5.1 as modified by Customer from time to time.
5.2 PREFERENTIAL SCHEDULING. In determining the availability of a
Product or replacement Product, if necessary to meet Customer's requirements or
to replace damaged Products, Supplier shall use commercially reasonable efforts
to allocate to Customer the next available Product at Supplier's warehouse or
factory, waiving to the extent permitted by law, other contracts, or all other
delivery commitments and schedules.
5.3 NEW TECHNOLOGY REPLACEMENT. Customer and Supplier recognize that
Supplier will develop and market New Technology. To
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accommodate each Party's requirements, Supplier agrees to include the New
Technology as part of its Product or Services offered to Customer within the
terms provided for in the Agreements. Customer's acquisition of New Technology
will be included in any pricing discounts for Product or Services or counted
toward purchase volumes stated within the Agreements.
5.4 CONTINUOUS IMPROVEMENT AND BEST PRACTICES.
(A) On a continuous basis and at Supplier's expense, as part
of its total quality management process, Supplier shall identify ways to improve
the quality of the Products, Services, pricing and technology provided and
available to Customer and its Related Entities under the Agreements, including
through participation in PICOS methodology and other initiatives of Customer's
Worldwide Purchasing Organization.
(B) Supplier shall identify and apply proven processes,
techniques, tools and other methods and instruments from other installations
within its operations that would benefit Customer either operationally or
financially.
(C) Supplier shall use commercially reasonable efforts to
advise Customer of any new developments relating to its obligations to Customer
under the Agreements, including but not limited to, obligations under all
Category Agreements and Transaction Agreements in effect from time to time, and
shall, upon Customer's request, assist in the evaluation and testing of such
developments in connection with the performance of such obligations. Without
limiting the foregoing, Supplier shall use commercially reasonable efforts to
inform Customer of any new Services, Products, processes, techniques, tools and
other methods and instruments Supplier is developing or information technology
trends and directions of which Supplier is aware, which may be applicable to
Customer's business. Except as otherwise expressly set forth in the Transaction
Agreement, such activities will be performed within the specified existing level
of resources, not including overtime work, then being used by Supplier in
performing its obligations hereunder or under the other applicable Agreements,
and without degradation of Supplier's compliance with all applicable performance
requirements. Advice on all new Services or Products will be subject to
then-existing nondisclosure or confidentiality restrictions between Supplier and
its other customers and third parties in accordance with Article 12.
(D) Supplier shall perform its duties and obligations under
the Agreements in accordance with standards set forth in the applicable
Transaction Agreement which standards shall be consistent with the then-current
Customer Corporate Information Technology Architecture and Technical Standards.
5.5 SATISFACTION AND PERFORMANCE REVIEWS. Customer shall have the right
to develop, adopt and implement on at least an annual basis, customer
satisfaction surveys, Supplier performance reviews, and any other surveys or
reviews as deemed appropriate by Customer. The content, scope, method and timing
of such surveys and reviews shall be developed by Customer in coordination with
Supplier. Supplier shall: (i) support such surveys and reviews to the extent
reasonably requested by Customer; and (ii) work with Customer to increase
customer satisfaction and customer performance on an ongoing
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basis. At Customer's request, Supplier shall meet and discuss with Customer the
results of such surveys and reviews, and shall prepare a plan for improvement of
performance and customer satisfaction. Such surveys and reviews, and Supplier's
assistance to Customer in improving performance and customer satisfaction, shall
be factors to be considered by Customer in evaluating Supplier's performance
under the Agreements.
5.6 COMPETITIVE ASSESSMENT.
(A) Customer shall have the right, at any time during the
Term, but after a one-year period from the Effective Date of this Framework
Agreement and/or at regular intervals as set forth in the Transaction Agreement,
to benchmark or competitively assess any of the Products or Services being
performed by Supplier, to ensure that such Products or Services are competitive
with respect to price, quality, service and technology. Customer may consult
with Supplier in advance regarding the definition and specifications of each
such Product or Service to be benchmarked or competitively assessed, provided
that Customer shall finally determine such definitions and specifications.
(B) Supplier shall, at Customer's reasonable request, prepare
and provide, or cooperate with Customer or its consultants in the preparation or
provision of, comparative competitive information and data verifying the
competitive nature of the Products or Services being performed or that are
available from Supplier, in such frequency, methodology and detail as required
by Customer, including but not limited to the provision of access to Customer
and its consultants. Customer agrees to select one or more experienced
benchmarking companies which are not generally considered to be direct
competitors of Supplier and such benchmarking companies shall be subject to the
same confidentiality requirements the Customer is subject to under the
Agreements.
(C) If the written benchmarking report indicates, in
Customer's reasonable judgment, that all or part of the Products or Services
provided by Supplier are not competitive with respect to price, quality, service
or technology, then Customer shall provide Supplier with a copy of the benchmark
results and the Parties shall negotiate in good faith to adjust the related
price, quality, service or technology of the Products or Services to meet the
benchmark results or such other standards as the Parties may have agreed to
during the review period. If the Parties are unable to reach an agreement on
price adjustments to meet the benchmark results or such other standards as the
Parties may have agreed to during the review period, Customer shall have the
right to procure such benchmarked Products and Services under the terms of
Section 1.7 and such procurement shall be deemed a termination without any
penalties.
5.7 SHARED ENVIRONMENT.
(A) Supplier will notify Customer if Supplier is to provide
Customer with Products or Services from a Shared Environment.
(B) Supplier will not provide any Services to Customer from a
site or facility of any person or entity that is now or in the future
competitive with Customer's business, without Customer's prior written consent.
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(C) Supplier will develop a process, subject to Customer's
approval, to restrict access in any Shared Environment so that Customer
Confidential Information cannot be accessed by any other customer of Supplier.
(D) Supplier will not provide or market Products or Services
to a third party from a Customer Site without Customer's prior written consent.
5.8 CONSENTS.
(A) Except as otherwise expressly set forth in the Transaction
Agreement, Supplier shall be responsible for, and shall pay any costs associated
with, obtaining consents, approvals, authorizations, notices, requests and
acknowledgments that are necessary to allow:
(1) Supplier to use the Customer Software, Customer
Equipment and the services under Third-Party Agreements, to provide the Products
and Services;
(2) Supplier to use the Supplier Software and
Supplier Equipment to provide the Products and Services;
(3) Supplier to assign to Customer all right, title
and interest to the Developed Software and Work Product; and
(4) Customer to use the Developed Software and
Supplier Intellectual Property during the period Supplier is to provide the
Products or Services requiring such use, and upon the expiration or termination
thereof including but not limited to signing any applicable confidentiality,
license or noncompetition agreements required by licensor to allow Customer's
use thereof by Supplier at all applicable Sites.
(B) Customer shall cooperate with Supplier in obtaining such
consents.
6. CUSTOMER OBLIGATIONS AND ASSETS
6.1 CUSTOMER OBLIGATIONS.
(A) Customer shall be responsible for assigning the Customer
Corporate Contract Manager and Customer Project Managers.
(B) Except as otherwise expressly set forth in the applicable
Agreements, Customer shall provide Supplier personnel with access to Customer
Sites as is appropriate to Supplier's responsibilities under the Agreements. If
Supplier personnel require access to a Customer Site outside of normal working
hours, Supplier shall request the necessary security clearance from Customer and
Customer shall not unreasonably withhold such clearance.
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(C) Except as otherwise expressly set forth in the applicable
Agreements, Customer shall be responsible for providing to Supplier personnel
located on Customer's premises, in connection with the Supplier's performance
under the Agreements, office space and office furnishings, janitorial services
and utilities in connection with such office space (all such space, furnishings
and utilities shall be consistent with those that Customer provides to its own
similarly situated personnel). Supplier may not provide Products or Services to
other customers from Customer's space or using items or utilities provided by
Customer without Customer's consent, which consent may be withheld in Customer's
sole discretion. Customer shall have the option to relocate Supplier personnel
located on Customer's premises to another comparable location or facility, at
Customer's expense.
(D) Customer shall provide Supplier with access to all
Customer Software, the use of which is necessary or appropriate in connection
with the provision of Products and Services, and will cooperate with Supplier to
help Supplier secure the necessary approvals and consents from third parties for
the use of Customer Third-Party Software or Supplier Third-Party Software, the
use of which is necessary or appropriate in connection with Supplier's provision
of Products or Services.
(E) Customer shall have no obligations under the Agreements,
except as otherwise expressly set forth in the applicable Agreements, that
Customer must perform as a condition to the full and timely performance by
Supplier of Supplier's obligations under the Agreements. Except for the
execution and delivery of Category Agreements and Transaction Agreements
pursuant to this Framework Agreement, no language or provision of any document
or correspondence delivered by Supplier to Customer prior to or during the Term
(including Supplier's Proposal) shall be deemed or construed as expanding,
adding to or altering Customer's obligations as set forth in the Agreements.
(F) Without limiting the foregoing, Customer's agreement to
the terms of this Framework Agreement or a Category Agreement shall in no way
give rise to any presumption that Customer has or shall agree to acquire any
Products or Services from Supplier, except and only to the extent agreed to in
an executed Transaction Agreement.
6.2 CUSTOMER ASSETS.
(A) Prior to the execution of any Transaction Agreement,
Supplier shall provide to Customer a list of all Customer Assets required by
Supplier in order to perform its obligations under the Transaction Agreement.
Customer will review Supplier's list and will advise Supplier of any Customer
Assets that will not be available for Supplier's requested use. Supplier shall
then revise the list accordingly. The revised list of Customer Assets shall be
set forth in detail in the applicable Transaction Agreements.
(B) Except as otherwise expressly set forth in the applicable
Transaction Agreement, Customer Assets shall at all times remain the property of
Customer. Supplier shall have access to and use of the Customer Assets as set
forth in the applicable Transaction Agreements and such ability to manage the
Customer Assets as may be necessary or appropriate to enable Supplier to
properly perform its obligations hereunder.
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(C) As and when any Customer Assets are no longer required for
the performance of Supplier's obligations hereunder, Supplier, upon Customer's
request, shall arrange for the sale or disposal of such Customer Assets on such
terms as Supplier determines to be advantageous to Customer using the same
efforts as Supplier uses with respect to its own similar assets and shall advise
Customer of those terms. Upon Customer's approval, Supplier shall sell or
dispose of such Customer Assets on the terms approved by Customer, and shall
forward to Customer the proceeds of such sale or disposal that shall be net of
Supplier's reasonable and direct third-party costs and expenses. In the event
Customer does not approve of the proposed terms of sale or does not wish
Supplier to dispose of a Customer Asset, Supplier shall return such Customer
Asset to Customer or Customer's designee.
7. TRANSACTION AGREEMENTS
7.1 TERMS. Each Transaction Agreement executed pursuant to this
Framework Agreement shall contain, at a minimum, the following terms to the
extent applicable (all such terms must be addressed, at least with a "not
applicable" notation):
(A) the scope of work to be performed thereunder;
(B) a list of Customer Assets as described in Section 6.2;
(C) the applicable term, termination and cancellation
provisions, and a matrix of the rights and duties of the Parties upon
termination or cancellation;
(D) a complete list of the Products or Services covered by the
Transaction Agreement (specifying the quantity, type and model number, and
description of each Product, and specifying scope and other information
regarding performance for each Service);
(E) the price to the Customer for the Products or Services,
any additional charges and costs, including, without limitation, costs for any
non-standard Services and special features or applicable default price lists.
(F) the total, timing and currencies of amounts payable to
Supplier or, if applicable, other payment bases;
(G) the location at which the Products shall be delivered and,
if different, the location at which the Products shall be initially installed or
used;
(H) any non-standard Site specifications for the Product;
(I) the dates by which Customer shall complete preparation of
the installation Site or perform other specified obligations and the dates, if
any, by which Supplier shall inspect Customer's installation Site to determine
its compliance with Supplier's Site requirements;
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(J) the delivery date for the Products and, if applicable, any
interim delivery schedule;
(K) the installation date for the Products, or the cut-over or
implementation date for the Services;
(L) the maintenance schedule for the Products and Services, if
applicable;
(M) the identification of any critical Products and Services;
(N) the transportation method to be used to ship Products to
Customer;
(O) the Acceptance Criteria, Service Levels, performance
specifications and response times specific to the Products or Services;
(P) a detailed list of Deliverables and related due dates and
prerequisites, performance milestones, and related project timetables and
compensation schedules for Services;
(Q) an itemized estimate of all Supplier's anticipated travel
and other reimbursable expenses, unless specified otherwise as being included as
part of the fixed price;
(R) the terms of any supplemental agreements or licenses,
including, without limitation, any Supplier Third-Party Software licenses that
may be applicable;
(S) a list of Key Supplier Personnel including name, location,
title and responsibilities;
(T) a list of any provisions of this Framework Agreement or
any Category Document that the Parties desire to Change, together with
appropriate documentation containing any required approval for such change
pursuant to Customer's Delegation of Authority;
(U) the then-current Customer Related Entities to which the
Products and Services are to be provided;
(V) all applicable Category Agreements and the order of
precedence therein;
(W) the amounts payable by Customer upon termination by
Customer for its convenience;
(X) the then-current Sites;
(Y) the choice of law and forum; and
(Z) any special or additional terms agreed upon by Supplier
and Customer as set forth in the applicable Category Agreement or Transaction
Agreement.
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8. CHARGES
8.1 PAYMENT REQUIREMENTS.
(A) Except as otherwise expressly set forth in the applicable
Agreements, Customer shall commence payments to Supplier on the Acceptance Date.
(B) Customer shall not be billed or liable for any charges or
expenses other than those charges or expenses stated and expressly authorized in
the applicable Agreements.
(C) Monthly charges under any Transaction Agreement that have
been in effect for less than a full calendar month shall be prorated on the
basis of a thirty (30) day month.
8.2 NO PRICE INCREASES. Unless otherwise agreed in writing by Customer
in a Change Order, Supplier shall not, during the effective term of an
applicable Transaction Agreement, increase the prices for any Product or Service
above the prices for such Product or Service as specified in the Transaction
Agreement.
8.3 NO RESTRICTIONS ON USE. Except as otherwise expressly set forth in
the applicable Transaction Agreement, applicable charges as set forth in the
applicable Transaction Agreement: (i) shall entitle Customer and, its Related
Entities and other assignees or third party suppliers with whom they have
contracted to perform functions requiring the use of Products or Services
provided by Supplier, to unlimited use of such Products or Services, and to
operate any such Products or Services at any time and for any period of time at
the convenience of Customer, within the scope of the Customer's rights to such
Products or Services; and (ii) Customer may use the Products or Services
acquired hereunder for such purposes and functions as may be necessary or
convenient, and Customer's use of the Products or Services shall not be
restricted to any particular purpose or function.
8.4 RIGHT OF SET-OFF. With respect to any amount that is due a Party
pursuant to an Agreement, such Party may, upon notice to the other Party, deduct
the entire amount owed to such Party against the charges otherwise payable, or
expenses owed to the other Party, pursuant to the Agreements. The exercise of
this right of set-off shall not affect a Party's right to other remedies
provided for in the Agreements.
8.5 OUT-OF-POCKET EXPENSES. Except as otherwise expressly set forth in
the Transaction Agreement, Customer will reimburse Supplier for all reasonable
and necessary out-of-pocket costs (including travel costs in accordance with
Customer's Travel Guidelines) and subcontracted costs associated with the
Products or Services, provided such costs have been previously approved by
Customer in writing and are not included as part of any fixed pricing
arrangement. All out-of-pocket and subcontracted costs will be billed net,
without ▇▇▇▇-up; provided, however, if such subcontracted costs are material,
Supplier may submit a Change Order Response to Customer pursuant to Article 2 of
this Framework Agreement.
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9. PRICING
9.1 INVOICING STANDARDS. Supplier shall render one (1) copy of an
invoice not later than the month following the month for which the charges in
the invoice accrue. Provided that the amounts covered by the invoice are
accurate and not in dispute, each invoice shall be paid in accordance with the
terms of this Section 9.1. Invoices shall include, at a minimum, the following
information as applicable:
(A) a description of the Products and Services;
(B) the base charges for each Product and Service;
(C) other charges, as applicable and any credits applied;
(D) total charges;
(E) other detail required by the applicable Category Agreement
or Transaction Agreement;
(F) any reimbursable expenses;
(G) serial numbers for all Equipment that carries a serial
number;
(H) third party charges for Products and Services procured by
Supplier that are passed-through to Customer, detailed by category of resource
consumption by each Customer entity or unit in such frequency, methodology and
detail as may be required by Customer; and
(I) With respect to any Taxes, Supplier shall segregate the
charges on each invoice into aggregate categories for each of the following
categories: (a) Services provided to the Customer for which Taxes are collected;
(b) Services provided to the Customer for which Taxes are not collected; (c)
Products for which Taxes are collected; and (d) Products for which Taxes are not
collected.
(J) Without limiting the foregoing, Supplier agrees to provide
Customer with additional supporting documentation and other information as
requested by Customer to verify the accuracy of the invoice.
9.2 ISSUANCE AND DELIVERY OF INVOICES. Invoices shall be issued and
delivered to the Related Entities specified by the Customer Project Manager in a
format and on the media agreed upon by Customer and Supplier. Customer may
require a change the invoice format, as well as the detail and summary billing
formats, and Supplier shall implement such changes as soon as reasonably
practicable.
9.3 CREDITS. Any credits due Customer may be applied by Customer
against Supplier's invoices with appropriate information attached. Any credits
due
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Customer that are not so applied against Supplier's invoices for any reason
shall be paid to Customer by Supplier within thirty (30) days after Supplier's
receipt of Customer's written request for such payment.
9.4 DISCOUNTS. The price Supplier will charge Customer for Products and
Services pursuant to the Agreements shall be the least of: (i) the list price
for the Product or Service minus the discount percentage specified in the
Transaction Agreement; (ii) the lowest price charged by Supplier to any Customer
Related Entity; (iii) a price negotiated by the Parties specifically pursuant to
a given Transaction Agreement; and (iv) the price determined by benchmarking
conducted in accordance with and subject to Section 5.6.
9.5 PAYMENT TERMS. Payment will be made by Supplier net 25th PROX. (on
the 25th day of the month following the month of Customer's receipt of an
invoice prepared in accordance with Section 9.1).
9.6 SUPPLIER'S EFFORTS TO MINIMIZE CHARGES. To the extent any Products
or Services are rendered on a time and materials basis under any of the Category
Agreements or Transaction Agreement, Supplier shall use commercially reasonable
efforts to complete each assigned task in as economical a manner as possible and
to minimize the T&M Charges and other charges or fees and expenses incurred in
connection therewith, to the maximum extent possible, consistent with Supplier's
other obligations under the Agreements.
9.7 FEE DISPUTES.
(A) In the event Customer disputes all or any portion of an
invoice submitted by Supplier, Customer may withhold payment of the amount
subject to the dispute; provided, however, that: (i) Customer shall continue to
be obligated to pay the undisputed amount when it becomes due and payable in
accordance with the terms of the Agreements; and (ii) Supplier shall continue to
perform its obligations hereunder. The Parties shall resolve the dispute in
accordance with the procedures set forth in Section 21.1. No failure by Customer
to identify a contested fee or charge prior to payment of the invoiced amount
shall limit or waive any of Customer's rights or remedies with respect to such
fee or charges, including Customer's right to withhold such disputed amounts
from subsequent fees or charges due to Supplier.
(B) In the event that it is determined that one Party should
pay all or part of a disputed amount to the other, such Party shall pay such
amount plus interest at a rate per annum equal to the base rate established by
CitiBank N.A. or a comparable financial institution mutually agreed to by
Customer and Supplier. Unpaid fees or charges that are in dispute shall not be
considered a basis for termination under the Agreements. Each of Customer and
Supplier acknowledge that the performance of the Agreements is critical to the
business and operations of Customer and Supplier. Accordingly, in the event of a
good-faith fee dispute between Customer and Supplier, Supplier shall continue to
perform its obligations hereunder and Customer shall continue to pay Supplier as
set forth in this Article 9.
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9.8 CURRENCY. Except as otherwise expressly set forth in a Transaction
Agreement, the invoicing and payment for Products and Services shall be in the
currency of the country(ies) in which the Related Entity receiving the Products
are delivered or Services are performed.
10. COVENANTS, REPRESENTATIONS AND WARRANTIES
10.1 CAPABILITIES. The Products and Services, and all Software and
Equipment utilized by Supplier in the performance thereof, shall include all
items, components and services necessary to provide Customer with all services
and processing capabilities required by Customer to meet the Service Levels for
as long as the Supplier performs the applicable Services.
10.2 DELEGATION OF AUTHORITY.
(A) Customer represents and warrants that those individuals
specified in a written Customer Delegation of Authority provided to the Supplier
shall be duly authorized to enter into the Agreements on behalf of the Related
Entity, and that each Related Entity is duly authorized by all corporate action
to enter into and perform each of the Agreements to which it is a party.
(B) Supplier represents and warrants that those individuals
specified in a written delegation of authority provided to the Customer shall be
duly authorized to enter into the Agreements on behalf of the Supplier.
10.3 RIGHT AND TITLE. Supplier shall have, throughout the applicable
period of delivery of the Products and performance of the Services, free and
clear title to, or the right to possess, use, sell, transfer, assign, license or
sublicense, any and all Products that are sold, licensed or otherwise provided
to Customer in connection with Supplier's performance under the Agreements.
10.4 MANUFACTURER'S WARRANTIES. All manufacturer's warranties relating
to Equipment to be utilized by Supplier in performing the Agreements shall, to
the extent assignable, be passed through and assigned to Customer.
10.5 SOFTWARE. Except as set forth in Exhibit 10.5 or as authorized in
writing by Customer, or as necessary for Supplier to perform it's obligations
under the Agreements, Supplier Software:
(A) shall not contain Illicit Code, and for any viruses in the
Supplier Software or Equipment of which Supplier had no knowledge of, Supplier
shall immediately undertake to remove such virus, and to correct and repair any
damage to data or Software caused by such virus; and
(B) shall not alter, damage and erase any data or computer
programs without control of a person operating the computing equipment on which
it resides.
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10.6 STANDARDS. Supplier will provide all Products and Services under
the Agreements in accordance with the highest professional standards in the
applicable area or areas of expertise required to provide the applicable
Products and Services. The Services, and all Equipment and Software utilized by
Supplier in the performance of the Services, shall conform to the Service Levels
and other requirements of the applicable Transaction Agreement in all material
respects, and shall be fit and sufficient for the purposes expressed in the
applicable Transaction Agreement. Without limitation on any other rights of
Customer hereunder, Supplier further warrants that in the event of its failure
to fulfill all or part of the warranty in this item at any time during the
period Supplier is providing the Products or Services to Customer, Supplier
shall take all necessary or appropriate actions to correct such failure, at no
cost to Customer.
10.7 TERMINATION BY ELECTRONIC MEANS. Supplier shall not use any
electronic means to enforce termination under any Agreement.
10.8 SUPPLIER THIRD PARTY AGREEMENTS. Supplier is not a party to any
agreement with a third party the performance of which is reasonably likely to
adversely affect the ability of Customer or Supplier to fully perform their
respective obligations under the Agreements.
10.9 CUSTOMER THIRD PARTY AGREEMENTS. Customer is not a party to any
agreement with a third party, the performance of which is reasonably likely to
adversely affect the ability of Customer or Supplier to fully perform their
respective obligations under the Agreements.
10.10 YEAR 2000.
(A) All Products and Services developed, provided or used (not
including Customer Software) by Supplier under the Agreements must be fully Year
2000 Compliant except as specified herein and in the applicable Transaction
Agreement. With respect to Supplier Third-Party Software and Equipment, Supplier
shall use all reasonable efforts: (i) to obtain the warranty set forth in this
Section 10.10; and (ii) to ensure that such Supplier Third-Party Software or
Equipment, as applicable, is Year 2000 Compliant before using such Software and
Equipment for the provision of the Products and Services. If Supplier is unable
to obtain such warranty for Supplier Third-Party Software or Equipment, Supplier
shall promptly notify Customer and shall promptly undertake to test such
Supplier Third-Party Software or Equipment using, at a minimum, Customer's Year
2000 Compliance Test Procedure, or any comparable procedure approved by
Customer. If such Supplier Third-Party Software or Equipment fails the Year 2000
Compliance Test Procedure, Customer shall have the option to do one of the
following: (i) reject such Supplier Third-Party Software or Equipment and pursue
other alternatives; or (ii) require Supplier to upgrade the such Supplier
Third-Party Software or Equipment to render it Year 2000 Compliant.
(B) To be "Year 2000 Compliant" a Product or Service must at
all times before, during, and after January 1, 2000, accurately process and
handle date and time data (including, but not limited to, calculating, comparing
and sequencing) from, into, and between the twentieth and twenty-first
centuries, and the years 1999 and 2000, including leap year calculations, to the
extent
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that other information technology used in combination with such Products and
Services properly exchange date/time data with it. To the extent any Products
and Services provided by Supplier under the Agreements must perform as a System
as set forth in the applicable Transaction Agreement, such Products and Services
(e.g., Equipment or Software) used in combination with the Products and Services
as set forth therein, must properly exchange date/time data with it in
accordance with the foregoing warranty.
10.11 EMU CONVERSION. Except as otherwise expressly set forth in the
Transaction Agreement, all Products and Services developed, provided or used
(not including Customer Software) by Supplier under the Agreements, must be able
to accurately process and handle all applicable currencies of any of the Sites
or countries, including the European Monetary Unit (EMU) where applicable, and
conduct the necessary conversions from the local or national currency to the EMU
("EMU Compliance"). With respect to Supplier Third-Party Software and Equipment,
Supplier shall use all reasonable efforts: (i) to obtain the warranty set forth
in this Section 10.11; and (ii) to ensure that such Supplier Third-Party
Software or Equipment, as applicable, is EMU Compliant before using such
Software and Equipment for the provision of the Products and Services. If
Supplier is unable to obtain such warranty for Supplier Third-Party Software and
Equipment, Supplier shall promptly notify Customer and shall promptly undertake
to test such Supplier Third-Party Software and Equipment using any procedure
approved by Customer. If such Supplier Third-Party Software or Equipment fails
the EMU Compliance test, Customer shall have the option to do one of the
following: (i) reject such Supplier Third-Party Software or Equipment and pursue
other alternatives; or (ii) require Supplier to upgrade the such Supplier
Third-Party Software or Equipment to render it EMU Compliant.
10.13 ESCROW SUFFICIENCY. Supplier represents and warrants that the
escrow maintained on behalf of Customer, pursuant to the Escrow Agreement, shall
contain Source Code that operates in accordance with the applicable
Specifications in the event that the Source Code is released to Customer, and
Customer or Customer's agent is required to maintain the Source Code.
11. MUTUAL DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES MADE OR REFERENCED IN THE AGREEMENTS,
NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
SUBJECT MATTER OF THE AGREEMENTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. CONFIDENTIAL INFORMATION
12.1 CONFIDENTIAL INFORMATION OF CUSTOMER. Supplier agrees to treat
Customer Confidential Information with the same degree of care as Supplier uses
to avoid disclosure, publication or dissemination of its own information of a
similar nature, but not less than a reasonable degree of care, except that
Supplier may disclose such information if:
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(A) required to do so pursuant to applicable law (and then
only on the entry of a protective order, if available, acceptable to Customer);
(B) it was rightfully in the possession of Supplier from a
source other than Customer prior to the Time of Receipt;
(C) it became public knowledge prior to the Time of Receipt;
(D) it became public knowledge after the Time of Receipt by
any means other than an unauthorized act or omission on the part of Supplier;
(E) it is supplied to Supplier after the Time of Receipt
without restriction by a third party who is under no obligation to Customer to
maintain such information in confidence; or
(F) it was independently developed by Supplier prior to the
Time of Receipt.
12.2 CONFIDENTIAL INFORMATION OF SUPPLIER. Prior to any disclosures of
Supplier Confidential Information to Customer, Supplier must receive the
approval of the applicable Customer Project Manager. Supplier will follow the
following process to obtain such approval:
(A) Supplier will prepare a written description of the
Supplier Confidential Information, without actually disclosing the Supplier
Confidential Information, and send it to the Customer Project Manager.
(B) At the time of such transmission, the Customer Project
Manager will decide, on the basis of Supplier's written description of the
Supplier Confidential Information and not upon receipt of the Confidential
Information itself, the following: (i) if Customer agrees that the information
is confidential; (ii) if Customer needs the information; and (iii) if the
answers to (1) and (2) are "yes" and Customer agrees to accept the Supplier
Confidential Information, Customer agrees to treat Supplier Confidential
Information with the same degree of care as Customer uses to avoid disclosure,
publication or dissemination of its own information of a similar nature, but not
less than a reasonable degree of care, except that Customer may disclose such
information if :
(1) required to do so pursuant to applicable law (and
then only on the entry of a protective order, if available, acceptable to
Supplier);
(2) it was rightfully in the possession of Customer
from a source other than Supplier prior to the Time of Receipt;
(3) it became public knowledge prior to the Time of
Receipt;
(4) it became public knowledge after the Time of
Receipt by any means other than an unauthorized act or omission on the part of
Customer;
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(5) it is supplied to Customer after the Time of
Receipt without restriction by a third party who is under no obligation to
Supplier to maintain such information in confidence;
(6) it was independently developed by Customer prior
to the Time of Receipt; or
(7) it was developed by Supplier at Customer's
expense.
To the extent a decision not to approve or use Supplier
Confidential Information jeopardizes Supplier's ability to perform it
obligations under the Agreements, Supplier shall be relieved of adverse
consequences, solely and to the extent its performance is materially and
adversely affected thereby; provided, however, that Supplier shall promptly
notify Customer of the possibility of such adverse consequences and both Parties
shall attempt to reach a mutually satisfactory solution to alleviate or prevent
such adverse consequences.
12.3 SAFEGUARDING DATA. Supplier shall establish and maintain
reasonable precautions against the destruction, loss or erroneous alteration of
Customer's data in the possession of Supplier. At a minimum, such precautions
shall conform to those maintained by Customer as of the Effective Date of the
applicable Transaction Agreement and in Customer's Corporate Information
Security Practices and Procedures.
12.4 FILE SECURITY. Supplier will provide reasonable protection for
Customer's computer-stored files and programs from unauthorized access by third
parties. Supplier shall be responsible for no less than the security procedures
set forth in Supplier's security manuals or comparable documents in existence at
the time of the applicable Category Agreements and their Transaction Agreements,
and which are incorporated by reference herein. Customer shall have the
unconditional right to make security inspections of Supplier's organization at
any time without notice to Supplier. If Customer requests additional security
provisions, Supplier shall not unreasonably delay or refuse to institute same.
12.5 RESTRAINTS ON COPYING. Except as required by law, at the request
or direction of Customer, or as required in the normal course of providing the
Products and Services to Customer hereunder, Supplier will not: (i) copy or
endeavor to copy Customer's computer-stored files and programs except as backup
media for data protection purposes in accordance with Supplier's standard
security procedures; and (ii) make any attempt to translate or convert
Customer's computer-stored files and programs or any copies thereof from
machine-readable form to human-readable form.
12.6 NOTIFICATION TO CUSTOMER. In the event Supplier receives a
subpoena or any other order or request from a governmental body or any other
entity or person for any of Customer's computer-stored or backup files and
programs, Supplier shall, as soon as reasonably practicable, notify Customer of
such subpoena, order or request and shall not, without Customer's prior written
consent, accede to such subpoena, order or request unless required to do so
under applicable laws and regulations or when otherwise necessary to
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avoid legal penalties, notwithstanding Customer's efforts, if any, to contest
such subpoena, order or request.
12.7 SUPPLIER SOFTWARE ASSIGNMENT OF CODES. At Customer's request,
Supplier will assign Customer any necessary user codes, identification numbers
or codes, user numbers or other special identifying or system features as may be
necessary to ensure that access to Supplier's Equipment configuration and other
data processing facilities chargeable to Customer is confined to Customer and
its authorized representatives or agents.
12.8 CODE SECURITY. Customer shall take appropriate steps to protect
the use of the identifying or system features set forth in Section 12.7 and
Supplier will provide all assistance reasonably required, including but not
limited to, changing such identifying or system features, at the request of
Customer.
12.9 USE AND RETURN OF CUSTOMER CONFIDENTIAL INFORMATION. Without
limitation on other obligations of Supplier relative to the use and care of
Customer Confidential Information, Supplier agrees that, upon Customer's request
at any time and upon the cessation of the Services and Termination Assistance
Services, Supplier shall, as directed by Customer: (i) promptly return to
Customer, in the format and on the media in use as of the date of the request,
all or the portion requested of the Customer Confidential Information; (ii)
erase or destroy all other of the Customer Confidential Information in
Supplier's possession prior to the cessation of the Services or Termination
Assistance Services and promptly confirm to Customer in writing that such
erasure or destruction has occurred; provided, however, that if Customer directs
Supplier to erase or destroy any Customer Confidential Information prior to the
cessation of the Termination Assistance Services, Customer will waive any
obligations of Supplier to the extent that they cannot reasonably be performed
without such Customer Confidential Information; and (iii) use the Customer
Confidential Information only for the purpose of fulfilling Supplier's
obligations under the Agreement.
12.10 USE AND RETURN OF SUPPLIER CONFIDENTIAL INFORMATION. Without
limitation on other obligations of Customer relative to the use and care of
Supplier Confidential Information or on the rights of Customer to continue to
use Supplier Confidential Information after termination of the applicable
Agreements pursuant to Article 13 and Article 19 of this Framework Agreement,
Customer agrees that, upon the cessation of the Services and Termination
Assistance Services, Customer shall, as directed by Supplier: (i) promptly
return to Supplier, in the format and on the media in use as of the date of
return, all or the portion requested of the Supplier Confidential Information,
to the extent Customer no longer needs the Supplier Confidential Information to
exercise its rights under the Agreements; (ii) erase or destroy all other of the
Supplier Confidential Information in Customer's possession prior to the date of
return and promptly confirm to Supplier in writing that such erasure or
destruction has occurred.; and (iii) use the Supplier Confidential Information
only for the purpose of fulfilling Customer's obligations under the Agreements
and exercising its rights under the Agreements including, but not limited to,
Article 13 and Article 19 of this Framework Agreement. Notwithstanding the
foregoing, Customer shall be entitled to use
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Supplier Confidential Information during the Term, the Termination Assistance
Period and any additional periods in order to exercise its rights under the
Agreements.
12.11 SECURITY PROCEDURES. Supplier shall maintain and enforce data and
physical security standards and procedures at each Site to which Supplier has
access in connection with the provision of the Products and Services. At a
minimum, such standards and procedures shall conform to those maintained by
Customer as of the Effective Date of the applicable Transaction Agreement and in
Customer's Corporate Information Security Practices and Procedures.
12.12 PERSONNEL. Each of Supplier and Customer shall communicate its
obligations pursuant to this Article 12 to its employees, subcontractors,
consultants, representatives and agents. Each Party shall also be liable to the
other for any violations of Article 12 by its employees, subcontractors,
consultants, representatives and agents.
12.13 INTERNET ADDRESSES.
(A) Upon Customer's request and expense, Supplier shall
register, or re-register as the case may be, all Internet addresses used by
Customer or Supplier in connection with the provision of Products and Services
by Supplier hereunder and receipt of same in Customer's name.
(B) All network identification and access codes issued to
Customer users by Supplier or its employees, subcontractors, consultants,
representatives and agents, shall be owned by Customer. Supplier hereby assigns
to Customer all rights in and to such codes, and agrees to execute such
documents as may be reasonably necessary to effect this assignment.
12.14 ATTORNEY-CLIENT PRIVILEGE.
(A) Supplier acknowledges that it may have access to Customer
Privileged Work Product over the course of Supplier's performance under the
Agreements. Supplier further acknowledges that Privileged Work Product has been
or will be prepared in anticipation of litigation, and that Supplier is
performing hereunder in respect of Privileged Work Product as an agent of
Customer.
(B) Customer shall notify Supplier of any Privileged Work
Product to which Supplier has or may have access. After the Supplier Project
Manager is notified or otherwise becomes aware that such documents, data,
database, or communications are Privileged Work Product, only Supplier personnel
for whom such access is necessary for the purpose of Supplier's performance
hereunder may have access to Privileged Work Product.
(C) Should Supplier ever be notified of any judicial or other
proceeding seeking to obtain access to Privileged Work Product, Supplier: (i)
shall immediately notify Customer; and (ii) shall take such reasonable actions
as may be specified by Customer to resist providing such access. Customer may
have the right to represent Supplier in such resistance or to select and
compensate counsel to so represent Supplier. If Supplier is ultimately required,
pursuant to an order of a court of competent jurisdiction, to produce documents,
disclose data or otherwise act in
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contravention of the confidentiality obligations imposed hereunder or otherwise
with respect to maintaining the confidentiality, proprietary nature and secrecy
of Privileged Work Product, Supplier shall not be liable for breach of such
obligation.
12.15 UNAUTHORIZED ACCESS. Each Party shall:
(A) as soon as reasonably practicable, notify the other Party
of any unauthorized possession, use or knowledge, or attempt thereof, of the
other Party's Confidential Information, of which it becomes aware, including any
material breach or potential material breach of security on a system, LAN or
telecommunications network which contains, processes or transmits Customer
Confidential Information;
(B) as soon as reasonably practicable, furnish to the other
Party, full details of the unauthorized possession, use or knowledge, or attempt
thereof, and use reasonable efforts to assist the other Party in investigating
or preventing the recurrence of any unauthorized possession, use or knowledge,
or attempt thereof, of Confidential Information; provided, however, that if
additional security measures are required and such cannot reasonably be provided
by the specified existing level of resources (not including overtime work)
without jeopardizing the performance of their other duties under the Agreements,
such measures shall be taken pursuant to Article 2;
(C) use reasonable efforts to cooperate with the other Party
in any litigation and investigation against third parties deemed necessary by
the other Party to protect its proprietary rights. Either Party shall have the
right to conduct and control any investigation relating to such breach or
potential breach of its Confidential Information that it determines is
appropriate; and
(D) use all reasonable efforts to prevent a recurrence of any
such unauthorized possession, use or knowledge of Confidential Information.
12.16 COSTS. Except as set forth in 12.15(B), when applicable, each
Party shall bear the costs it incurs as a result of compliance with this Article
12.
12.17 EXCLUSION. The limitations or exculpations of liability set forth
in Sections 20.3 and 20.4 of the Framework Agreement are not applicable to
liability under this Article 12.
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13. PROPRIETARY RIGHTS
13.1 CUSTOMER INTELLECTUAL PROPERTY.
(A) Supplier shall have no rights or interests in the Customer
Intellectual Property except as described in this Section. All right, title and
interest in and to Customer Intellectual Property shall be and shall remain the
sole property of the Customer, its Related Entities, or its and their suppliers,
contractors and third parties. Prior to using any Customer Intellectual Property
pursuant to the license granted under Section 13.1(B) to provide any of the
Products and Services, Supplier shall notify Customer that it intends to use
Customer Intellectual Property and shall obtain Customer's consent to such use.
If Customer does not consent to such use, Supplier shall recommend a
functionally equivalent alternative that Supplier shall use upon Customer's
consent.
(B) Except as otherwise expressly set forth in a Transaction
Agreement, Customer hereby grants to Supplier, to the extent permitted by any
third-party licenses to Customer, a worldwide, nonexclusive, royalty-free,
personal, nontransferable and limited right and license: (i) to use; (ii) to
operate; (iii) to maintain; (iv) to copy solely for backup and archival
purposes; (v) to modify; and (vi) to create derivative works of, with the right
to grant sublicenses to as provided below, to only that portion of Customer
Intellectual Property that is necessary to provide Products and Services and
solely for such purpose to Customer during the Term of an applicable Transaction
Agreement.
Supplier may not decompile, disassemble or otherwise
reverse-engineer the Customer Intellectual Property in any manner. As of the
Effective Date of an applicable Transaction Agreement, Customer shall be
obligated to provide Supplier, at no cost to Supplier, with access to the
Customer Software only in the form in use by Customer as of such Effective Date.
To the extent provided for in the applicable Transaction Agreement or otherwise
approved by Customer, and to the extent permitted by third party licenses to
Customer, Supplier may grant a sublicense to Supplier's subcontractors under the
same terms as this Section and the terms and conditions set forth in Section 4.5
of the Framework Agreement, as may be necessary in connection with the provision
of the Products and Services.
(C) Upon the expiration or termination of a Transaction
Agreement for any reason, Supplier's rights and license to the Customer
Intellectual Property for the performance by Supplier of its obligations under
such Transaction Agreement shall terminate, and Supplier shall return the same
to Customer, except to the extent the Customer Intellectual Property is
necessary or appropriate in connection with Supplier's provision of Termination
Assistance Services under the applicable Transaction Agreement.
13.2 SUPPLIER INTELLECTUAL PROPERTY.
(A) Customer shall have no rights or interests in Supplier
Intellectual Property except as described in this Section. All right, title and
interest in and to Supplier Intellectual Property shall be and shall remain the
sole property of the Supplier or its third party
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subcontractors/licensors. Prior to using any Supplier Intellectual Property to
provide any of the Products and Services, Supplier shall notify Customer that it
intends to use Supplier Intellectual Property and shall obtain Customer's
consent to such use. If Customer does not consent to such use, Supplier shall
recommend a functionally equivalent alternative which Supplier shall use upon
Customer's consent.
(B) In providing the Products and Services, Supplier shall:
(i) use the Supplier Intellectual Property as set forth in the applicable
Transaction Agreement and as may be required to provide the Products and
Services; (ii) make available to Customer such Supplier Intellectual Property
for use by Customer in connection with the use of the Products and Services; and
(iii) deliver to Customer, at its request, no more than once during every
quarter during the provision of the Products and Services, a copy of the
Supplier Software (including related Source Code) that is owned by Supplier
(i.e., excluding Supplier Third Party Software) for backup and archival purposes
only.
(C) Except as otherwise expressly set forth in a Transaction
Agreement, Supplier hereby grants to Customer a perpetual, worldwide,
nonexclusive, nontransferable, royalty-free license to all rights now known or
later devised to Supplier Intellectual Property as necessary to effectuate the
purposes of the applicable Agreements including, but not limited to, the right
and license under Supplier Intellectual Property: (i) to use; (ii) to operate;
(iii) to maintain; (iv) to copy; (v) to modify; (vi) to create derivative works
of, with the right to grant sublicenses to third parties engaged by Customer.
(D) Except as otherwise expressly set forth in the applicable
Transaction Agreement, Supplier hereby grants Customer a perpetual,
nonexclusive, nontransferable license, with the right to sublicense (solely for
the performance by a third-party service provider of services on behalf of
Customer and its Related Entities) effective upon the expiration or termination
of the applicable Transaction Agreement hereunder for any reason, to Supplier
Intellectual Property under the same terms as Section 13.2(C); provided,
however, such third-party service provider shall be subject to Supplier's
safety, security and confidentiality requirements that are consistent with such
requirements of the Agreements.
13.3 THIRD-PARTY INTELLECTUAL PROPERTY.
(A) Supplier may utilize Supplier Third-Party Intellectual
Property in the provision of Products and Services. The Supplier Third-Party
Intellectual Property shall be and shall remain the exclusive property of
Supplier's third-party licensors and Customer shall have no rights or interests
in the Supplier Third-Party Intellectual Property except as described in this
Section.
(B) In providing the Products and Services, Supplier shall:
(i) use the Supplier Third-Party Intellectual Property solely as set forth in
the applicable Transaction Agreement, and as may be required to provide the
Products and Services; (ii) make available to Customer such Supplier Third-Party
Intellectual Property for use by Customer in connection with the use of the
Products and Services; and (iii) to the extent possible deliver to Customer, at
its request, no more
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than once during every quarter during the provision of the Products and
Services, a copy of the Supplier Third-Party Software (including related Source
Code) for archival purposes only.
(C) Upon the expiration or termination of the applicable
Transaction Agreement hereunder for any reason, Supplier shall use all
reasonable efforts to obtain from the applicable third-party a perpetual,
nonexclusive, nontransferable license, with the right to sublicense (solely for
the performance by a third-party service provider on behalf of Customer and its
Related Entities), Third-Party Intellectual Property under the same terms as
Section 13.2 (C); provided, however, that such third-party service provider
shall be subject to Supplier's and the other third party's safety, security and
confidentiality requirements that are consistent with such requirements of the
Agreements. Customer shall be responsible for any third-party charges associated
with such sublicense. Supplier agrees that any new agreement it enters into with
any third party for any Supplier Third-Party Intellectual Property shall include
terms permitting a sublicense for Customer as described in this Section.
13.4 DERIVATIVE WORKS. With respect to any Derivative Works developed
under the Agreements or in the provision of the Products and Services, the
allocation of rights in such works will be as follows.
(A) All Intellectual Property rights in a Derivative Work
(whether developed solely by Customer, its Related Entities, Supplier, or
jointly by Customer and Supplier), for which the preexisting work is Customer
Intellectual Property ("Customer Derivative Work"), shall be owned by Customer,
and shall be deemed to be Customer Intellectual Property.
(B) All Intellectual Property rights in a Derivative Work
developed by Supplier or third party for Customer in support of the performance
of Supplier's obligations under the Agreements, developed by Customer, or any
combination of the foregoing, for which the preexisting work is Supplier
Intellectual Property, shall be owned by Customer, provided however, Customer's
right to use the preexisting work (i.e., Supplier Intellectual Property) shall
be limited to the terms set forth in the Agreements. Customer shall be free to
exploit any portions of the Derivative Work that are developed for Customer
under this Section to the extent such portions can be segregated from the
preexisting work, and such portions of the Derivative Work shall be deemed Work
Product subject to Section 13.5.
(C) All Intellectual Property rights in a Derivative Work
developed by Supplier or a third party for customers other than Customer and not
pursuant to the Supplier's performance obligations under the Agreements, for
which the preexisting work is Supplier Intellectual Property ("Supplier
Derivative Work"), shall be owned by Supplier, and shall be deemed to be
Supplier Intellectual Property.
(D) All Intellectual Property rights in a Derivative Work
(whether developed solely by Customer, its Related Entities, Supplier, a third
party, or any combination of the foregoing), for which the preexisting work is
owned by a third party, shall be deemed to be a Customer Intellectual Property
to the extent permitted by the applicable third-party license agreement;
provided, however, if such Derivative Work is developed in support of the
performance
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of Supplier's obligations under the Agreements, it shall be deemed Work Product
subject to Section 13.5.
13.5 WORK PRODUCT.
(A) All Work Product shall be owned by Customer as a "work
made for hire," if such Work Product fits within the specified categories of the
definitions of such term under the United States Copyright Act. Customer shall
own all right, title and interest, including ownership of copyright, in and to
the Work Product and all copies of the Work Product. Supplier or any applicable
third party shall retain no rights in any Work Product.
(B) To the extent any of the Work Product may not be deemed,
by operation of law, a "work made for hire," Supplier hereby irrevocably
assigns, transfers and conveys, and shall cause Supplier's employees,
subcontractors, consultants, representatives and agents and any applicable third
parties to irrevocably assign, transfer and convey, to Customer without further
consideration, all right, title and interest in and to such Work Product,
including all rights of copyright, patent, trademark or other proprietary rights
in such materials. Supplier acknowledges that Customer and the assigns of
Customer shall have the right to obtain and hold in their own name any
intellectual property rights in and to such Work Product. Supplier agrees to and
shall cause any applicable third parties to agree to, execute any documents or
take any other actions as may reasonably be necessary, or as Customer may
reasonably request, to perfect Customer's ownership of any such Work Product.
Supplier shall, and shall cause any applicable third parties to, at no cost to
Customer:
(1) deliver to Customer, upon Customer's request
during the Term and upon the expiration or termination of all or part of
Supplier's performance hereunder, a current copy of all Work Product in the form
and on the media in use as of the date of Customer's request or as of such
expiration or termination, as the case may be; and
(2) upon the expiration or termination of the
applicable Agreements, destroy or erase all other copies of Work Product in
Supplier's possession.
13.6 DEVELOPED SOFTWARE. Developed Software shall be deemed to be Work
Product.
13.7 REPRODUCTION OF SOFTWARE. Subject to the following sentence and
notwithstanding the limitations of Section 12.10, Customer shall have the right,
at no additional cost, to reproduce any and all Supplier Software regardless of
whether the same be copyrighted or otherwise restricted as proprietary
information and Customer shall be granted such rights in the reproduction as are
conferred upon an "owner" under Section 117 of the Copyright Act; provided,
however, that such reproductions shall be subject to the same restrictions on
use and disclosure as are set forth in this Framework Agreement. Prior to using
any Supplier Third Party Software for which such rights of reproduction are not
available, Supplier shall notify Customer that Supplier intends to use such
Supplier Third Party Software and shall obtain Customer's prior consent to such
use. Any and all copies of Supplier Software made by Customer
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shall include a valid copyright notice indicating Supplier's or a third party's
proprietary interest therein, as applicable.
13.8 DOCUMENTATION. Supplier shall supply Customer with all applicable
Documentation. Whenever such Documentation is revised, modified or altered in
any material way, Supplier shall promptly supply copies of the revised, modified
or altered Documentation to Customer. Supplier agrees that all Documentation
shall provide Customer with sufficient information to properly operate, diagnose
and maintain Equipment or Software safely and efficiently.
13.9 RIGHTS IN DATA. Supplier does not convey, and Customer does not
obtain any right, in the programs, systems, data or materials utilized or
provided by Supplier in the ordinary course of business in the performance of
any of the Agreements, except that all files, software, programs, packages or
systems (together with, but not limited to, their Source Codes), input materials
and output materials, and the media upon which they are located (including,
without limitation, cards, tapes, discs and other storage facilities) which are
utilized or developed for, and paid for by, Customer in connection with the
provision of Products and Services, and which may or may not be either
confidential or proprietary, shall be the property of Customer, and Supplier
shall place an appropriate plaque, emblem and decal or other appropriate label
or marking thereon evidencing Customer's ownership of such property while it is
in the possession of Supplier. Upon the termination of the Transaction Agreement
for any reason, all such properties, together with, but not limited to, their
Source Codes, which are in the possession of Supplier, shall be immediately
delivered to Customer.
14. ESCROW OF SOURCE CODE
With respect to the Licensed Software and Supplier-owned Software that
Supplier utilizes in providing the Products or Services, and to the extent
Third-Party Supplier Software is not subject to an escrow agreement that is
satisfactory to Customer, Customer and Supplier hereby agree to enter into the
Escrow Agreement with an escrow agent selected by Customer, concurrently with
the Transaction Agreement. A copy of the Escrow Agreement shall be attached to
the applicable Transaction Agreement and approved as part of the Parties'
agreement to execute the Transaction Agreement.
14.1 RELEASE OF ESCROW. Customer and Supplier agree that the occurrence
of any of the following conditions that Customer determines, in the exercise of
good faith and reasonable commercial judgment, will permit Customer to require a
release of Source Code pursuant to the Escrow Agreement. Customer and Supplier
agree that the following conditions will be incorporated into the Escrow
Agreement.
(A) Supplier has materially defaulted in performance or
otherwise has failed to perform its obligations under: (i) the applicable
Transaction Agreement or any of the Category Agreements; (ii) the license
whereby Supplier acquired its rights to such Source Code; or (iii) any agreement
between Supplier and Customer for the maintenance or correction of such
Software, and such material default or failure to perform has continued for a
period of thirty (30) days following written notice thereof to Supplier from
Customer.
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(B) Supplier has made an assignment for the benefit of
creditors, has admitted in writing its inability to pay debts as they mature, or
has ceased operating in the normal course of business.
(C) A trustee or receiver of Supplier or of any substantial
part of Supplier's assets has been appointed by any court.
(D) An involuntary proceeding has been commenced by any party
against Supplier under any one of the chapters of Title 11 of the United States
Code and: (i) the proceeding has been pending for at least sixty (60) days; (ii)
Supplier has consented, either expressly or by operation of law, to the entry of
an order for relief; or (iii) Supplier has been decreed or adjudged a debtor.
(E) A voluntary petition has been filed by Supplier under any
of the chapters of Title 11 of the United States Code.
(F) Supplier has or announces it will discontinue support,
upgrades or enhancements of the Products or Services or of the Licensed
Software.
(G) Supplier assigns or attempts to assign or transfer all or
a substantial part of its assets related to the Products and Services or to the
Licensed Software without Customer's prior written consent.
14.2 CUSTOMER'S RIGHTS AND OBLIGATIONS AFTER RELEASE OF SOURCE CODE.
Customer shall not have any rights of ownership to the Source Code, or any
rights other than the rights to the Software as conveyed in any of the
applicable Category Agreements and except such license rights to the Source Code
as are provided in the Escrow Agreement.
14.3 ESCROW VERIFICATION. Customer shall have the right for the term of
this Framework Agreement, to verify the accuracy and completeness of the deposit
made pursuant to the Escrow Agreement at any time during normal business hours,
with reasonable notification to Supplier by having a representative of the
escrow agent and Customer present at Supplier's site to verify, audit and
inspect the escrow deposit, or optionally to pay escrow agent to perform the
verification on behalf of Customer. Customer shall pay all fees for the escrow
and any related services resulting from any of the Agreements.
14.4 SOURCE CODE INSTALLATION. If requested by Customer, Supplier shall
install the Source Code on the Equipment designated by Customer within three (3)
business days after delivery by the Escrow Agent or within such other time that
is mutually agreed between the Parties. Such installation shall include a
successful compilation of the Source Code on such Equipment and performance of
Supplier's installation tests using Supplier's test data. Supplier shall
promptly provide Customer with documentation demonstrating the successful
installation of the Software. Customer may elect to install the Source Code by
itself or through Customer's appointed agent. Any such installation shall be for
the purpose of validating
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that the escrowed Source Code will compile properly and that once validation has
occurred, all copies of the Source Code and compiled codes shall be deleted from
Customer's Equipment.
15. INDEMNIFICATION.
15.1 INDEMNIFICATION BY CUSTOMERS. Customer shall, at its sole expense,
defend (as provided in this Article 15), indemnify and hold harmless Supplier,
its Related Entities, and its and their successors and assigns and its and their
officers, directors, employees, subcontractors, consultants, representatives and
agents, from and against any and all losses, damages, injuries (including
death), causes of action, claims, penalties, interest, additional taxes, demands
and expenses, including reasonable legal fees and expenses, of any kind or
nature arising out or on account of, or resulting from any claim or allegation
of a third party for an action based on:
(A) infringement of patent, copyright or trademark with
respect to Customer Assets and Customer Intellectual Property;
(B) misappropriation of trade secret or other proprietary
rights with respect to Customer Assets and Customer Intellectual Property;
(C) failure of Customer, Related Entities and its and their
officers, directors, employees, subcontractors, consultants, representatives and
agents, to comply with applicable laws, ordinances, regulations or codes;
(D) any tort (including any wrongful, negligent or intentional
act or omission), or breach or default in the performance of its obligations
pursuant to the Agreements by Customer, its Related Entities, its and their
successors and assigns, or its or their officers, directors, employees,
subcontractors, consultants, representatives and agents, including but not
limited to the breach of any representation or warranty of Customer;
(E) failure or delay to file any return or information
required by law, rule or regulation; and
(F) any other basis expressly set forth in any Agreement that
provides for indemnity by Customer to Supplier.
15.2 INDEMNIFICATION BY SUPPLIER. Supplier shall, at its sole expense,
defend (as provided in this Article 15), indemnify and hold harmless Customer,
its Related Entities, and its and their successors and assigns and its and their
officers, directors, employees, subcontractors, consultants, representatives and
agents, and any third parties with which Customer contracts to perform any
aspect of Customer's information technology business functions, from and against
any and all losses, damages, injuries (including death), causes of action,
claims, penalties, interest, additional taxes, demands and expenses, including
reasonable legal fees and expenses, of any kind or nature arising out or on
account of, or resulting from any claim or allegation of a third party for an
action based on):
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(A) infringement of patent, copyright or trademark by the
provision of Products or Services (including Supplier Intellectual Property) or
anything that Supplier uses in the provision of the Products and Services;
(B) misappropriation of trade secret or other proprietary
rights with respect to Supplier Intellectual Property;
(C) failure or delay to file any return or information
required by law, rule or regulation;
(D) failure of Supplier or its officers, directors, employees,
subcontractors, consultants, representatives and agents, to comply with laws,
ordinances, regulations or codes;
(E) the breach of any representation or warranty of Supplier;
(F) the claim of any Supplier personnel removed or replaced by
Supplier where such personnel are Transferred Employees after the date of
hiring;
(G) any tort (including any wrongful, negligent or intentional
act or omission) or breach or default in the performance of its obligations
pursuant to the Agreements by Supplier, its Related Entities, its and their
successors and assigns, or its subcontractors, officers, directors, employees,
subcontractors, consultants, representatives and agents; and
(H) any other basis expressly set forth in any Agreement that
provides for indemnity by Supplier to Customer.
15.3 NOTICE. Each Party shall give the other Party prompt written
notice of any claim or liability hereby indemnified against by such other Party
and thereupon such other Party shall be entitled to control, and shall assume
full responsibility for, the defense of such matter. If the indemnifying Party
elects to assume such responsibility, it shall so notify the indemnified Party.
The indemnities contained herein shall not be deemed to be a waiver of or in
limitation of any other rights either Party may have, including but not limited
to rights of indemnity or contribution.
15.4 INDEMNIFICATION PROCEDURES.
(A) Supplier Responsible. The indemnified Party shall
cooperate in all reasonable respects with the indemnifying Party and its
attorneys in the investigation, trial and defense of such claim or liability and
any appeal arising therefrom; provided, however, that the indemnified Party may,
at its own cost and expense, participate, through its attorneys or otherwise, in
such investigation, trial and defense of such claim or liability and any appeal
arising therefrom. No settlement of a claim that involves a remedy other than
the payment of money by the indemnifying Party shall be entered into without the
consent of the indemnified Party. After notice by the indemnifying Party to the
indemnified Party of its election to assume full control of the defense of any
such claim, the indemnifying Party shall not be liable to the indemnified Party
for
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any legal expenses incurred thereafter by such indemnified Party in connection
with the defense of such claim.
(B) If the indemnifying Party does not assume full control
over the defense of a claim subject to defense as provided in this Section
15.4(B), the indemnifying Party may participate in such defense, at its sole
cost and expense, and the indemnified Party shall have the right to defend such
claim in the manner it deems appropriate, at the cost and expense of the
indemnifying Party.
15.5 USE OF INFRINGING PRODUCTS OR SERVICES. If an injunction or order
shall be obtained against the indemnified Party's use of any Products or
Services by reason of the allegations, or if in the indemnifying Party's opinion
any such Products or Services are likely to become a subject of a claim of
infringement or violation of a copyright, trade secret or other proprietary
right of a third party, the indemnifying Party will, at the indemnified Party's
option and the indemnifying Party's its expense:
(A) procure for the indemnified Party the right to continue
using the Products or Services;
(B) replace or modify the same so that it becomes
non-infringing (which modification or replacement shall not adversely affect the
applicable specifications for, or the use or operation by the indemnified Party
of, the Products or Services);
(C) if the Products or Services are purchased, and the other
options stated are not practicable, repurchase the Products or Services; or
(D) if the Products or Services are licensed, and the other
options stated are not practicable, remove such Products or Services from the
indemnified Party's Sites and refund to the indemnified Party any charges paid
by the indemnified Party, other than charges for license payments for any actual
period of use by the indemnified Party in excess of twenty-four (24) months
amortized over a useful life of sixty (60) months, and release the indemnified
Party from any further liability hereunder.
15.6 DISCONTINUATION OF PAYMENTS. In no event shall Customer be liable
to Supplier for any license or maintenance payments for those Products and
Services that Customer no longer uses after the date, if any, that Customer no
longer uses such Products or Services because of such actual or claimed
infringement or misappropriation. If removal or replacement of the Products or
Services is required or undertaken pursuant to the Agreements, Supplier shall
use reasonable care in the removal or modification thereof and shall, at its own
expense, restore the premises as nearly to their original condition as is
reasonably possible.
15.7 EXCLUSION. Except as set forth in Section 20.5, the limitations or
exculpations of liability set forth in Sections 20.3 and 20.4 of the Framework
Agreement are not applicable to liability under this Article 15.
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16. THIRD PARTY AGREEMENTS
16.1 THIRD-PARTY AGREEMENTS. Supplier shall abide by, and comply with,
the terms of the Third-Party Agreements.
16.2 PERFORMANCE UNDER THIRD-PARTY AGREEMENTS. Supplier shall promptly
inform the Customer of any breach of, misuse or fraud in connection with, any
Third-Party Agreements and shall cooperate with Customer to prevent or stay any
such breach, misuse or fraud. Supplier shall pay all amounts due for any
penalties or charges (including amounts due to a third-party as a result of
Supplier's failure to promptly notify Customer pursuant to the preceding
sentence), associated taxes, legal expenses and other incidental expenses
incurred by Customer as a result of Supplier's nonperformance of its obligations
under the applicable Transaction Agreement with respect to the Third-Party
Agreements.
16.3 PERFORMANCE UNDER SUPPLIER-ADMINISTERED AGREEMENTS. Supplier shall
be responsible for:
(A) notifying Customer of any performance obligations and
maintaining any warranties, under the Supplier-Administered Agreements;
(B) cooperating with the third-party supplier, including
problem resolution in respect of the services provided under the
Supplier-Administered Agreements; and
(C) providing Customer reasonable notice of any renewal,
termination or cancellation dates and fees in respect of the
Supplier-Administered Agreements. At Supplier's request and upon Customer's
consent, Supplier shall, to the extent permitted by the Supplier-Administered
Agreements, modify, terminate or cancel any such Supplier- Administered
Agreements. Any modification, termination or cancellation fees or charges
imposed upon Customer in connection with any such modification, termination or
cancellation shall be paid by Supplier. The late fees and incremental charges
described in this Section shall be paid by Supplier to the appropriate
third-party.
16.4 THIRD-PARTY INVOICES.
(D) Supplier Responsible. If Supplier is financially
responsible for any of the Supplier-Administered Agreements, Supplier shall: (i)
receive all Third-Party Invoices; (ii) review and make reasonable commercial
efforts to correct any errors in any such Third-Party Invoices in a timely
manner; and (iii) pay such Third-Party Invoice prior to the due date or, if a
discount for such payment is given, the date on which Supplier may pay such
Third-Party Invoice with a discount. Customer shall reimburse Supplier for the
amount of the Third-Party Invoice (with the applicable discount). Supplier shall
be responsible for discounts not received or any late fees in respect of the
Third-Party Invoices.
(E) Customer Responsible. If Customer is financially
responsible for any Supplier-Administered Agreements pursuant to the applicable
Transaction Agreement, Supplier shall: (i) receive all Third-Party Invoices;
(ii) review and use reasonable commercial efforts to
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correct any errors in any such Third-Party Invoices in a timely manner; and
(iii) promptly submit such Third-Party Invoices to Customer for payment.
(1) Customer shall pay the Third-Party Invoices
received and approved by Supplier. Customer shall only be responsible for
payment of the Third-Party Invoices, and shall not be responsible for late fees
thereon unless due solely to Customer's failure to pay same after having
received the Third-Party Invoice as provided for in this paragraph. Except as
otherwise expressly set forth in the Transaction Agreement specifically agreed
to by Customer, all Third-Party Invoices will be paid in accordance with
Customer's standard invoicing requirements.
(2) If Supplier fails to submit a Third-Party Invoice
to Customer for payment in a timely manner as provided in this Section, Supplier
shall be responsible for any discount not received or any late fees in respect
of such Third-Party Invoice.
17. INSURANCE
17.1 TYPES AND AMOUNT. During the Term, Supplier will maintain policies
of insurance in the following types and amounts:
(A) Workers compensation in an amount not less than the
statutory limits for the state(s) in which Services are to be performed,
including employer's liability insurance in an amount not less than $1,000,000.
If Supplier is self-insured, a certificate of the state in which the Services
are to be performed must be furnished by such state agency directly to Customer.
(B) Commercial general liability insurance, including
contractual liability coverage, with minimum limits of liability of not less
than $10,000,000 per occurrence.
(C) Automobile liability insurance (including owned,
non-owned, and hired vehicles), with minimum limits of not less than $10,000,000
per occurrence.
(D) Professional/Errors and Omissions Liability insurance in
an amount not less than $10,000,000 per occurrence.
17.2 REPUTABLE INSURERS. All insurance policies will be issued by
reputable insurance companies rated "A" or better by A.M. Best. If such policies
do not contain a separation of insureds provision, they will be endorsed to
provide cross-liability coverage. Supplier will maintain all such required
insurance in force except as otherwise expressly set forth in the Transaction
Agreement.
17.3 INSURANCE CERTIFICATES. Before Services are started, Supplier will
furnish to Customer certificates(s) of insurance evidencing compliance with the
insurance requirements. Each certificate will: (i) set forth the amount of
coverage, policy number and date of expiration, (ii) name Customer as an loss
payee under all of the above policies, except those listed in Sections 17.1(A)
and (D), but only with respect to operations performed by Supplier for Customer
under the Agreements, (iii) provide that such insurance carrier will not
terminate, cancel, or materially modify such insurance coverage without thirty
(30) days prior
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written notice to Customer, and (iv) state that such insurance is primary in
coverage to any other insurance or self-insurance programs which may be
available to Customer or is Related Entities.
17.4 NO SATISFACTION OF OTHER OBLIGATIONS. The purchase of insurance
coverage and furnishing of certificate(s) will neither modify Supplier's
obligation to indemnify Customer under Section 15.2 of this Agreement nor be in
satisfaction of Supplier's liability under the Agreements.
17.5 SUBCONTRACTORS. Supplier will include all subcontractors employed
by it as loss payees under its policies or will cause each subcontractor to
purchase and maintain insurance of the type specified above and listing Customer
as a loss payee. When requested by Customer, Supplier will furnish copies of
certificates of insurance evidencing coverage for each subcontractor.
18. TERM
18.1 INITIAL TERM.
(A) This Framework Agreement and the Category Agreements shall
have an initial term commencing with the Effective Date and unless otherwise
terminated as provided herein, shall continue for a period of three (3)
consecutive years thereafter.
(B) The initial term of a Transaction Agreement will be the
term set forth therein.
18.2 RENEWAL.
(A) Upon expiration of the initial term, the Parties may agree
in writing to additional renewal period(s). Each of the Parties shall provide
the other with written notice of its desire to renew at least three (3) months
prior to the expiration of the initial term or the then-current renewal term, as
applicable and any renewal shall occur only upon mutual agreement between the
Parties. If such notices are not given, this Framework Agreement shall continue
only until the end of the Initial Term, unless terminated sooner, or the end of
then-current renewal term, as applicable.
(B) Category Agreements may not be renewed beyond the term of
the Framework Agreement. However, if the Framework Agreement is renewed the
Parties may agree to renew all, some or none of the Category Agreements.
18.3 MAXIMUM TERM. In no event shall the Term of any Agreement extend
beyond the earlier of June 6, 2006 or the expiration or termination of the MSA.
18.4 EFFECT OF EXPIRATION OR TERMINATION. Upon expiration or
termination of this Framework Agreement or any Category Agreement, the Parties
shall not execute any new Transaction Agreements to be incorporated into this
Framework or any Category Agreement. Except as otherwise expressly set forth in
the
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Transaction Agreement, expiration or termination of this Framework Agreement or
any Category Agreement shall not affect the obligations of the Parties under any
Category Agreement or Transaction Agreement that is still in effect as of the
date of expiration or termination of this Framework Agreement, and the terms of
this Framework Agreement or Category Agreement will continue to apply to the
Parties' relationship pursuant to any such Category Agreements and Transaction
Agreements until termination or expiration of such Category Agreements and
Transaction Agreements.
19. TERMINATION AND CANCELLATION
19.1 CANCELLATION. Except as otherwise expressly set forth in the
Transaction Agreement specified otherwise in a Transaction Agreement, a
Transaction Agreement may be canceled under the following circumstances:
(A) a Transaction Agreement involving Products manufactured by
Supplier may be canceled up to fifteen (15) days prior to the delivery date for
the Products;
(B) a Transaction Agreement involving Products manufactured by
a third party may be canceled by Customer prior to the date on which Supplier's
order with such third party becomes non-cancelable without penalty;
(C) a Transaction Agreement involving Products manufactured by
a third party may be canceled by Customer at any time if Customer reimburses
Supplier for any resulting penalty imposed by such third party;
(D) Customer may cancel any Transaction Agreement involving
Supplier Third-Party Software prior to the acceptance date provided therein; and
(E) Customer may cancel any Transaction Agreement for Services
at any time upon thirty (30) days prior written notice to Supplier provided
Services have begun, or immediately if Services have not yet begun.
19.2 EFFECT OF CANCELLATION. Upon cancellation of a Transaction
Agreement by Customer, Customer shall have no liability for any payments
accruing after the cancellation date; provided, however, that Customer shall
comply with its obligations, if any, relating to the return or redelivery of any
Products to Supplier that are covered by the canceled Transaction Agreement.
19.3 TERMINATION FOR CONVENIENCE. Customer may, in its sole discretion,
terminate the Agreements, in whole or in part, upon not less than ninety (90)
calendar days' notice to Supplier.
19.4 TERMINATION FOR CHANGE IN CONTROL OF SUPPLIER. In the event of a
sale of: (i) all or substantially all of the assets of Supplier; (ii) sufficient
stock of Supplier to effect a change in control of Supplier; (iii) more than
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twenty percent (20%) of issued voting rights stock of Supplier to a competitor
of Customer; or (iv) more than twenty percent (20%) of issued voting rights
stock of Supplier to other person or entity, which in Customer's reasonable
opinion, creates a substantial uncertainty as to Supplier's continued ability to
perform under the Agreements, Customer may terminate the Agreements in whole or
in part upon at least sixty (60) calendar days' notice to Supplier and require
Supplier to reimburse Customer for all reasonable costs and expenses
attributable to Supplier's change of control and Customer's need to procure the
products and services from other suppliers.
19.5 TERMINATION FOR CAUSE. If either Customer or Supplier materially
fails to perform any of its obligations or materially breaches any
representations or warranties hereunder and such failure is not cured within
thirty (30) calendar days after notice is given to the breaching Party, then the
non-breaching Party may, upon further notice to the breaching Party, terminate
any and all Agreements as to all or part of the Products and Services being or
to be provided by Supplier hereunder, as of the date specified in the notice of
termination; provided, however, that if, after the breaching Party's best
efforts, such breach cannot be cured within such thirty (30) day period, the
time to cure such breach shall be extended for up to fifteen (15) calendar days
from the date on which such notice of termination is received by the breaching
Party, if the breaching Party has promptly commenced to cure the breach and
continues to use its best efforts to cure such breach during the fifteen (15)
day period.
19.6 TERMINATION FOR INSOLVENCY. In the event either Party is unable to
pay its debts generally as they come due, or is declared insolvent or bankrupt,
is the subject of any proceedings relating to its liquidation, insolvency or for
the appointment of a receiver or similar officer for it, makes an assignment for
the benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension or adjustment of all or substantially
all of its obligations, then the other Party hereto may, by giving written
notice thereof to such Party, terminate the Agreements as of the date specified
in the notice of termination.
19.7 EFFECT OF PARTIAL TERMINATION. In the event of a termination of
the Agreements pursuant to this Article 19 as to part of the Products and
Services provided or to be provided by Supplier hereunder and thereunder, the
Agreements shall remain in effect with respect to those Products and Services
still to be provided by Supplier.
19.8 TERMINATION FEE.
(A) Except as expressly set forth in the Transaction
Agreement, in the event of a termination of any of the Agreements by Supplier
pursuant to Section 19.5, or by Customer pursuant to Section 19.3, Customer
shall reimburse Supplier for the following amounts:
(1) an amount equal to the net book value of any
Supplier Equipment or Supplier Software purchased, leased or licensed by
Supplier in connection with the provision of the Products and Services affected
by the termination, but only to the extent such cost has not then been amortized
in accordance with generally accepted accounting principles, and cannot be used
by Supplier for other business; and
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(2) the actual and reasonable third party costs
(without ▇▇▇▇-up) and redundancy payments as required by local law for a maximum
period of six (6) months incurred by Supplier to re-deploy or terminate any of
its employees dedicated to the performance of Supplier's obligations relative to
the Products and Services affected by the termination for more than six (6)
months, and whose employment cannot reasonably be continued by Supplier for
other business; provided, however, that Customer shall only be liable to
reimburse termination benefits for the lesser of actual relocation expenses or
four (4) weeks severance pay.
(B) With respect to any termination fee payable by Customer
pursuant to this Section 19.8, Supplier shall use commercially reasonable
efforts to minimize such fees. Customer shall not pay to Supplier any fees or
charges relating to a termination pursuant to this Article 19 other than the
applicable termination fees as set forth herein.
19.9 ABSOLUTE OBLIGATION. Supplier acknowledges and agrees that it
shall have an absolute and unconditional obligation to provide Customer with
Termination Assistance Services. Termination Assistance Services shall be set
forth in the Transaction Agreements and shall be provided by Supplier at the
same rates it charged Customer for comparable services under the applicable
Agreements.
(A) In the event of the expiration or termination of any
Transaction Agreement hereunder, Supplier shall, upon Customer's request,
continue to provide the applicable Products and Services that were provided by
Supplier prior thereto, as well as the Termination Assistance Services, as
follows.
(B) At no additional cost, Supplier shall provide to Customer
and any designated third-party provider: (i) in writing, to the extent available
and in the form then maintained by Supplier, applicable requirements, standards,
policies, operating procedures and other documentation relating to the affected
Products and Services; and (ii) necessary access to the systems and sites from
which the affected Products and Services were provided, provided such access by
Customer's third-party providers shall be subject to such providers' compliance
with Supplier's safety, security and confidentiality requirements..
(C) If and to the extent requested by Customer, Supplier shall
assist Customer in developing a plan which shall specify the tasks to be
performed by the Parties in connection with the Termination Assistance Services
and the schedule for the performance of such tasks.
(D) Supplier will provide the Termination Assistance Services
for the Termination Assistance Period at no additional cost except to the extent
that resources included in the fees otherwise being paid by Customer to Supplier
cannot be used to provide the Termination Assistance Services.
(E) Following the Termination Assistance Period, Supplier
shall: (i) answer questions from Customer or Customer's designee regarding the
Products and Services on an "as needed" basis as agreed upon by Customer and
Supplier; and (ii) deliver to Customer any remaining Customer-owned reports and
documentation still in Supplier's possession.
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(F) Upon request from Customer, Supplier shall, to the extent
permitted by third-party contracts:
(1) make available any Supplier Equipment or Systems
dedicated to the performance of the affected Products or Services, by allowing
Customer or its designee to: (a) purchase, at the lesser of fair market value
and book value, any such Supplier Equipment or System owned by Supplier; and (b)
assume the lease of any such Supplier Equipment or System leased by Supplier;
(2) transfer or assign, upon Customer's request, any
third-party contracts applicable to the affected Products and Services for
maintenance, business continuity services or other necessary third-party
services being used by Supplier and dedicated to the delivery and performance of
the affected Products and Services, to Customer or its designee, on terms
acceptable to all parties;
(3) continue to provide the Products and Services and
any Termination Assistance Services requested by Customer that may be required
to facilitate the transfer of the Products and Services requested by Customer to
Customer or Customer's designee;
(4) upon request from Customer, allow Customer or its
designee to offer employment to, and to hire, Supplier employees performing
full-time as of the date the termination notice is given, or who have performed
full-time 3 of the last 6 months prior to the date termination notice is given,
the affected Products and Services; and
(5) provide to Customer, in the form and of the
content requested by Customer, inventories of the Equipment and Software used in
connection with the provision of the Products and Services as needed.
(G) Supplier shall not degrade the quality or level of its
performance during the Termination Assistance Period.
19.10 RIGHTS UPON TERMINATION. Upon termination or expiration of this
Framework Agreement, any Category Agreement or Transaction Agreement, each Party
shall forthwith return to the other all papers, materials and properties of the
other held by such Party in accordance with the terms of Section 12.9 and 10 and
subject to the terms of Article 13. In addition, each Party will assist the
other Party in the orderly termination of the applicable Agreements and the
transfer of all items, tangible and intangible, as may be necessary for the
orderly, non-disrupted business continuation of each Party. Other rights and
duties of each of the Parties upon termination or expiration of any Category
Agreement or Transaction Agreement shall be set forth in the applicable Category
Agreement or Transaction Agreement.
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20. REMEDIES
20.1 REMEDIES OF EITHER PARTY. If a material breach by either Party
shall occur and be continuing, the other Party shall have the following remedies
(except as specified otherwise in any other applicable Agreement):
(A) terminate all or part of the applicable Agreement to the
extent of the terms contained therein and return any and all Products covered
thereunder to the Party furnishing same, in the manner required therein for
redelivery at the end of the applicable Agreement's term, except that such
return shall be at the sole expense of the defaulting Party;
(B) by written notice to the defaulting Party, declare the
applicable Agreement to be terminated, without prejudice to either Party's
rights in respect to the obligations then accrued and remaining unsatisfied;
(C) pursue the recovery of actual damages arising out of such
breach, subject to the limitations set forth in Sections 20.3 and 20.4;
(D) seek specific performance by the defaulting Party of its
obligations hereunder; and
(E) exercise any other right or remedy that may be available
under the applicable Category Agreement and Transaction Agreement, at law or in
equity.
20.2 NO WAIVER. In no event shall the acceptance by Customer, or the
application by Supplier, of any license, maintenance or other credit pursuant to
the Agreements be deemed to be a waiver by Customer of any of its rights under
the Agreements or at law or in equity. Notwithstanding the foregoing, either
Party's failure or delay in performing any minor or technical aspect of its
performance obligations hereunder shall not be considered a material breach
under the Agreements unless and until such failure or delay remains uncured for
a period of thirty (30) days following the first occurrence thereof, or recurs
repeatedly to the extent that the successful performance of the Agreements may
be adversely affected.
20.3 CONSEQUENTIAL DAMAGES. Except with respect to claims or actions
resulting from a Party's gross negligence, willful, wanton or reckless
misconduct or intentional misconduct, in no event shall either Party be liable
for consequential, incidental or punitive losses, damages or expenses (including
loss of profits, savings, penalties, fines, late-payment charges, interest,
competitive advantage, goodwill, business interruption or indemnity hereunder),
even if it has been advised of the possible existence thereof.
20.4 DIRECT DAMAGES. Neither Customer nor Supplier shall be liable to
the other Party for any direct damages arising out of or relating to its
performance hereunder, whether based on an action or claim in contract, equity,
negligence, tort or otherwise, for all events, acts or omissions, in the
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aggregate, in an amount exceeding the Direct Damages Cap. In the event a Party
is liable hereunder for damages in excess of the Direct Damages Cap, in the
aggregate, the other Party may terminate the applicable Agreement in whole or in
part. The following shall be considered direct damages and a Party shall not
assert that they are consequential damages pursuant to Section 20.3 to the
extent they result from a Party's failure to perform its obligations in
accordance with the terms of the Agreements:
(A) costs and expenses of recreating or reloading any of
Customer's lost, stolen or damaged information;
(B) costs and expenses of implementing a work-around or
temporary fix in respect of a failure by Supplier to perform all or any part of
its obligations hereunder;
(C) costs and expenses of replacing lost, stolen or damaged
Products or Services;
(D) costs and expenses incurred by Customer to cover and
correct errors in Software maintenance and enhancements provided as part of
Supplier's performance hereunder;
(E) costs and expenses incurred by Customer to procure from an
alternate supplier, or to perform itself, all or any part of Services the
performance of which is the obligation of Supplier hereunder, to the extent in
excess of Supplier's charges hereunder;
(F) straight time, overtime or related expenses incurred by
Customer, including overhead allocations of Customer for Customer's employees,
wages and salaries of additional employees, travel expenses, overtime expenses,
telecommunications charges and similar charges, due to failure of Supplier to
provide all or any part of the Services incurred in connection with any of the
above; and
(G) fines, penalties, assessments or other charges incurred in
connection with any of the above.
20.5 EXCLUSIONS. The limitations or exculpations of liability set forth
in Sections 20.3 and 20.4 are not applicable: (i) to indemnification claims as
set forth in Article 15 except for those indemnification claims based on a
breach of Sections 10.1, 10.2, 10.4, 10.6, 10.8, 10.9, 10.10 and 10.11; (ii) to
liability resulting from the gross negligence or willful or wanton misconduct or
intentional misconduct of a Party; (iii) to any other liability expressly
excluded from limitation by the applicable Agreement.
21. RESOLUTION OF DISPUTES
21.1 RESOLUTION OF DISPUTES OF INVOICES. If Customer disputes
any amount on any Supplier invoice, Customer and Supplier agree to use all
reasonable efforts to resolve such dispute within sixty (60) days after Customer
provides written notification of the dispute to Supplier. Both Parties agree to
provide full supporting documentation concerning any disputed amount or invoice
within thirty (30) days after written notification of the dispute. Provided that
one Party furnishes written notification of the dispute to the other Party
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within thirty (30) days, neither Party shall have any obligation, during the
sixty (60) day period specified above, to pay any amount that remains in
dispute.
21.2 RESOLUTION OF ALL DISPUTES. Except as otherwise expressly set
forth in a Category Agreement or Transaction Agreement, disputes arising out of
or relating to the Agreements shall first be discussed by the Customer Project
Manager and Supplier Project Manager. Any dispute that cannot be resolved within
twenty (20) business days at the Project Manager level shall be referred to the
Corporate Contract Managers. Upon notification to the Corporate Contract
Managers, the Parties may pursue available legal and equitable remedies.
22. AUDIT RIGHTS; RECORDS RETENTION
22.1 AUDITS (PROCESSING). Upon notice from Customer, Supplier shall
grant to such auditors and inspectors as Customer may designate in writing, with
access to any of Supplier's sites or facilities used in the provision of the
Products or Services (including, but not limited to, any Supplier Equipment) for
the purposes of performing audits or inspections of the Customer's financial
statements. Supplier shall provide such auditors and inspectors any assistance
that they may reasonably require. If any audit by an auditor designated by
Customer or a regulatory authority results in Supplier being notified that it is
not in compliance with any law, regulation, audit requirement or generally
accepted accounting principle relating to Supplier's performance hereunder,
Supplier shall take actions to comply with such audit.
22.2 CUSTOMER EXPENSES. Customer shall bear the expense of any such
compliance that is:
(A) required by a law, regulation or other audit requirement
that relates to Customer's business irrespective of Supplier's obligations
hereunder; or
(B) necessary due to Customer's noncompliance with any law,
regulation or audit requirement imposed on Customer.
22.3 SUPPLIER EXPENSES. Supplier shall bear the expense of any such
response that is: (i) required by a law, regulation or other audit requirement
relating to Supplier's business; (ii) the performance of Supplier of its
obligations hereunder; or (iii) necessary due to Supplier's noncompliance with
any law, regulation or audit requirement imposed on Supplier.
22.4 AUDITS (PERFORMANCE AND FEES). Upon reasonable notice from
Customer, Supplier shall provide Customer and its employees, subcontractors,
consultants, representatives and agents with access to any of Supplier's sites
or facilities used in the provision of the Products or Services (including, but
not limited to, any Supplier Equipment) and to such financial records and
supporting documentation as may be reasonably requested by Customer for the
purposes of performing audits and inspections of Supplier's performance and of
the fees charged by Supplier to Customer to determine that Supplier has fully
performed its obligations and that such fees are accurate and in accordance with
the
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Agreements, and that work charged was actually performed. If, as a result of
such audit, Customer determines that Supplier has not performed, Supplier shall
promptly remedy the non-performance and/or issue a credit for the fees related
to the Products or Services that were not provided in accordance with the
applicable Agreements. If, as a result of such audit, Customer determines that
Supplier has overcharged or undercharged Customer, Customer shall notify
Supplier of the amount of such overcharge or undercharge as the case may be, and
Supplier shall promptly pay to Customer the amount of the overcharge, or shall
add the amount of the undercharge to the next invoice. In the event any such
audit reveals an overcharge to Customer during any twelve (12) month period
exceeding five percent (5%) of the aggregate fees paid by Customer to Supplier
during such period with respect to any separate Transaction Agreement, Supplier
shall reimburse Customer for the cost of such audit.
22.5 RECORDS RETENTION. Supplier shall retain records and supporting
documentation sufficient to document the performance of its obligations
hereunder and the related fees charged to Customer, for a minimum of three (3)
years, or such longer period required by law, following the completion of the
transaction to which such performance and fees relate.
22.6 ACCESS. Supplier shall provide to Customer and its employees,
subcontractors, consultants, representatives and agents access to:
(A) records and supporting documentation (including, where
applicable, program Source Code to the extent permitted by law or under the
applicable third party agreements) relating to Supplier's performance hereunder
and the related fees charged by Supplier;
(B) Supplier sites or facilities, as may be necessary for
Customer or its employees, subcontractors, consultants, representatives and
agents to perform the audits described in this Article 22.
22.7 STATUS REPORTS. Supplier shall provide to Customer periodic status
reports in accordance with Customer's audit procedures regarding Supplier's
resolution of any audit-related compliance activity for which Supplier is
responsible.
22.8 AUDIT SOFTWARE. Supplier shall, to the extent permitted under
applicable third party agreements and to the extent such audit software will not
materially degrade Supplier's performance under any of the Agreements or for any
of its other customers, operate and maintain such audit software as Customer or
its employees, subcontractors, consultants, representatives and agents may
provide to Supplier during the Term.
22.9 FACILITIES. Supplier shall provide to Customer and such auditors
and inspectors as Customer may designate in writing, on Supplier's sites and
facilities (or if the audit is being performed on a subcontractor, the
subcontractor's premises if necessary) space, office furnishings (including
lockable cabinets), telephone and facsimile services, utilities and
office-related equipment and duplicating services as Customer or such auditors
and inspectors may reasonably require to perform the audits described in this
Article 22.
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23. ASSIGNMENT
23.1 ASSIGNMENT BY SUPPLIER. Supplier shall not assign any of its
rights or obligations hereunder without Customer's prior written consent to such
assignment. Except where otherwise agreed in writing by Customer, no such
assignment shall release Supplier from its obligations pursuant to the
Agreements.
23.2 ASSIGNMENT BY CUSTOMER. Customer may assign the Agreements in
their entirety to: (i) any majority owned or controlled subsidiary of Customer;
or (ii) a purchaser of the business of Customer applicable to the Products and
Services, upon written notice to, but without the consent of, Supplier. Upon
such assignment and an assumption of liability hereunder by the assignee
Customer shall not be discharged of any further liability pursuant to the
Agreements without Supplier's consent, such consent not to be unreasonably
withheld. Any other assignment of the Agreements in its entirety by Customer may
occur only with the prior written consent of Supplier, which consent shall not
be unreasonably withheld or delayed.
23.3 PARTIAL ASSIGNMENT TO RELATED ENTITY OR PURCHASER.
(A) Customer's rights and obligations with respect to one or
more Transaction Agreements executed pursuant to the Agreements may be assigned
in whole or in part by Customer, and, to the extent permitted by applicable
third-party agreements, any Product owned or licensed hereunder may be leased,
rented or sublicensed to: (i) any majority owned or controlled subsidiary of
Customer; or (ii) to a purchaser of the business of Customer applicable to the
Products and Services upon written notice to, but without the consent of,
Supplier. Such assignment may be to a Related Entity or business unit that is
sold by Customer, to the extent that such assignment relates to the business of
such Related Entity or business unit. Upon such assignment and an assumption of
liability hereunder by the assignee Customer shall not be discharged of any
further liability pursuant to the Agreements insofar as it relates to the rights
and obligations so assigned and the Products that are so leased, rented or
sublicensed, without Supplier's consent, such consent not to be unreasonably
withheld.
(B) Any Related Entity, at its election, shall be deemed to be
Customer under the Agreements for the purposes of purchasing, licensing or
otherwise acquiring Products or Services covered by the Agreements with
Supplier. In such event, the Related Entity shall be deemed Customer for the
purposes of purchasing, licensing or otherwise acquiring any such Products
covered by the Agreements, with all of the rights and privileges hereunder;
provided, however, that the obligations and liabilities of Customer's Related
Entity shall be limited to those set forth in the terms of the Agreements that
are applicable to the specific Transaction Agreements that relate to the rights
and obligations so assigned with respect to the acquisition, purchase, license
or lease between Supplier and the Related Entity.
(C) No partial assignment to any Related Entity of Customer's
rights and obligations relative to any one or more Transaction Agreements shall
preclude any other
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assignment of Customer's rights and obligations under any other Transaction
Agreements to that or any other Related Entity.
23.4 DIVESTED ENTITIES. Supplier shall, upon Customer's request and
subject to the Divested Entity providing Supplier with reasonable assurances
that it will pay all amounts due, provide all or part of the applicable Services
to any Divested Entity for a period of three (3) years after the effective date
of the sale or divestiture, on the same terms as the terms under which such
Services are then being provided to Customer under the applicable Agreements.
24. TAXES
24.1 INFORMATION. Each Party shall provide and make available to the
other Party any applicable resale certificates, information regarding
out-of-state sales or use of Products or Services, and other exemption
certificates or information reasonably requested by the other Party.
24.2 STRUCTURE. The Parties agree to utilize reasonable efforts to
structure the provision and receipt of Products or Services, as the case may be,
in such a fashion as to minimize, to the extent legally permissible, any sales,
use, value-added, withholding, and similar taxes payable by the Customer.
24.3 TAX CREDIT. In the event that the Supplier is entitled to claim a
foreign tax credit benefit with regard to withholding taxes associated with
cross border payments under any Agreement, the parties agree that the Customer
shall not be charged or otherwise billed for such taxes.
24.4 COOPERATION. The Parties shall reasonably cooperate with each
other in connection with the other Party's efforts to minimize its liability for
Taxes, to the extent legally permissible, and to support the other Party upon
audit by applicable taxing authorities in the following manner:
(A) The parties will work together to ensure that the
taxability positions are jointly discussed. Further, Supplier agrees to allow
the Customer Tax Staff, at least annually, and more frequently if reasonably
requested by Customer, and at Customer's expense, to review Supplier's billing
and collection systems relating to Taxes collected by Supplier from Customer
under an Agreement.
(B) In the event Supplier has previously collected Taxes from
Customer and remitted such Taxes to the applicable taxing authority, and such
Taxes pertain to the items described in Section 9.1 (I) (a) or (c), Supplier
shall disclose to Customer, if reasonably requested by Customer, the type of
Taxes, the applicable taxing authority, and the amount of such Taxes.
(C) In the event that a taxing authority does not agree to
audit the charges payable in connection with the Agreement for sales and use tax
purposes, as part of Supplier's sales and use tax audits, and proposes to assess
sales and use taxes directly against Customer on the
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aggregate charges described in sub-Section 9.1 (I) (b) or (d), Supplier shall
work directly with the taxing authority to address audit concerns as they
pertain to the charges or sales and use taxes payable in connection with the
Agreement. In the event that the taxing authority requires any documentation to
be submitted directly by Customer, Supplier agrees to cooperate with Customer in
providing the necessary documentation.
(D) Supplier agrees to pay, and to hold Customer harmless
against, any penalty, interest, or additional tax that may be assessed or levied
as a result of the failure or delay of Supplier or its agents to file any return
or information required by law, rule or regulation. Supplier agrees to provide
reasonable assistance to Customer should Customer contest any taxes imposed on
it which result from the Agreements.
25. MISCELLANEOUS
25.1 COMPLIANCE WITH LAWS AND REGULATIONS. Each of the Parties agrees
that it will comply with all applicable laws, rules, regulations, orders,
conventions, ordinances or standards of the country(ies) of destination or which
relate to the manufacture, labeling, transportation, importation, exportation,
licensing, approval or certification of the goods or services, including, but
not limited to, those relating to environmental matters, wages, hours and
conditions of employment, forced labor, subcontractor selection, government
contracts, discrimination, occupational health/safety and motor vehicle safety.
25.2 INDEPENDENT CONTRACTOR STATUS AND GENERAL LIABILITY PROVISION.
Both Parties shall be deemed to be independent contractors hereunder and, except
as otherwise expressly provided herein or in any other Agreement, shall not be
considered or permitted to be an employee, subcontractor, consultants,
representative, agent, servant, joint venturer or partner of the other. Both
Parties agree to take such steps as may be necessary to ensure that each
subcontractor of the other will be deemed to be an independent contractor and
will not be considered or permitted to be an employee, subcontractor,
consultants, representative, agent, servant, joint venturer or partner of the
other Party. All persons furnished, used, retained or hired by or on behalf of
each Party or any of its subcontractors shall be considered to be solely the
employees or agents of that Party of such subcontractor, and each Party shall be
responsible for insuring there is payment of any and all unemployment, workers
compensation, social security, and other payroll taxes for such persons,
including any related assessments or contributions required by law.
25.3 FORCE MAJEURE. Any delay or failure of either party to perform its
obligations hereunder shall be excused if, and to the extent that, it is caused
by an event or occurrence beyond the reasonable control of the party and without
its fault or negligence, such as, by way of example and not by way of
limitation, acts of God, actions by any governmental authority (whether valid or
invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars,
sabotage, labor problems (including lockouts, strikes and slowdowns), inability
to obtain power, material, labor equipment or transportation, or court
injunction or order; provided, however, that, except as provided in Section
10.10, any Year 2000 compliance problem shall not be deemed to be an event of
force majeure subject to this Section 25.3 and provided that written notice of
such delay (including the anticipated duration of the delay) shall be given by
the affected party to the
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other party as soon as possible after the event or occurrence (but in no event
more than ten (10) days). During the period of such delay or failure to perform
by Supplier, Customer, at its option, may procure Products or Services from
other sources, without liability to Supplier, or have Supplier provide the
Products and Services from other sources in quantities and at times requested by
Customer, and at the price set forth in the applicable Agreement. In addition,
Supplier, at its expense, shall take such actions as are necessary to ensure the
supply of Products and Services to Customer for a period of at least thirty (30)
days during any anticipated labor disruption or resulting from the expiration of
Supplier's labor contract(s). If requested by Customer, Supplier shall, within
ten (10) days provide adequate assurances that the delay shall not exceed thirty
(30) days. If the delay lasts more than thirty (30) days or Supplier does not
provide adequate assurance that the delay will cease within thirty (30) days,
Customer may immediately terminate the affected Services under the Agreements
without liability.
25.4 RELEASES AND WAIVERS. Neither Party shall require waivers or
releases of any personal rights from representatives of the other in connection
with visits to its premises and both Parties agree that no such releases or
waivers shall be pleaded by them or third parties in any action or proceeding.
25.5 NOTICES. Any and all notices permitted or required to be given
under the Agreements shall be deemed duly given: (i) upon actual delivery, if
delivery is by hand; or (ii) upon receipt by the transmitting Party of a
separate confirmation that the facsimile was received; or (iii) upon delivery
into the U.S. mail or any other reputable courier or delivery service, if
delivery is by postage paid registered, certified, or any other traceable method
and that such mail or delivery has been received within five (5) days following
delivery into the U.S. mail or such courier or delivery service. Each such
notice shall be sent to the respective Party at the address indicated below or
to any other address as the respective Party may designate by notice delivered
pursuant to this Section or as set forth in the applicable Transaction
Agreement.
25.6 CUMULATIVE REMEDIES. Except as specifically provided herein, no
remedy made available to Customer or Supplier hereunder is intended to be
exclusive of any other remedy, and each and every remedy shall be cumulative and
shall be in addition to every other remedy provided hereunder or available at
law or in equity.
25.7 AMENDMENT. The Agreements shall not be modified, amended or in any
way altered except by a Change Order or by another instrument in writing signed
by authorized personnel of the Parties for that express purpose. All Change
Orders and amendments executed by authorized personnel pursuant to the terms of
the applicable Agreement shall be binding upon the Parties despite any lack of
consideration.
25.8 BUSINESS CONTINUITY. Terms regarding business continuity may be
set forth in either the applicable Category Agreement or Transaction Agreements.
Supplier acknowledges and agrees that Customer may not have a business
continuity plan in place with respect to a particular Transaction Agreement, and
that Customer's failure to have a business continuity plan in place with respect
to a particular Transaction Agreement shall not be the basis for a claim of a
failure to mitigate damages with respect to that or any other Agreement.
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25.9 NO BROKERS OR INTERMEDIARIES. The Parties agree that the
Agreements and any amendment or modification hereof shall be entered into by and
between Customer and Supplier without representation or involvement of any
broker, intermediary or other third party, and shall be binding upon Customer
and Supplier according to the terms hereof.
25.10 NO WAIVER. No term or condition of the Agreements or of any
document incorporated herein by reference shall be deemed waived and no breach
shall be deemed excused unless such waiver or consent shall be in writing and
signed by the Party claimed to have waived or consented. No consent by any Party
to, or waiver of, a breach by the other, whether express or implied, shall
constitute a consent to, waiver of, or excuse for any different or subsequent
breach.
25.11 PARTIAL INVALIDITY. If any term or provision of the Agreements,
or of any document incorporated herein by reference, shall be found to be
illegal or unenforceable then, notwithstanding such illegality or
unenforceability, the Agreements, and each incorporated document, shall remain
in full force and effect and such term or provision shall be deemed to be
deleted.
25.12 HEADINGS. The headings used in the Agreements are for reference
purposes only and shall not be deemed a part of the Agreements.
25.13 COUNTERPARTS. The Agreements may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
25.14 ENTIRE AGREEMENT. The Agreements are the entire agreement between
the Parties with respect to the subject matter herein or therein, and there are
no other representations, understandings or agreements between the Parties
relative to such subject matter.
25.15 PUBLICITY. Neither Party shall use the other Party's name or
refer to the other Party directly or indirectly in any media release, public
announcement or public disclosure relating to the Agreements or any acquisition
pursuant hereto, including in any promotional or marketing materials, customer
lists, referral lists or business presentations, without consent from the other
Party for each such use or release or if required by law. Neither Party may use
any trademark or service ▇▇▇▇ of the other Party without that Party's consent,
which consent shall be given in the Party's sole discretion.
25.16 SURVIVAL. All terms of this Framework Agreement shall survive its
expiration or termination for any reason with respect to any Category Agreements
and Transaction Agreements still in effect as of the date of such expiration or
termination. The terms of this Framework Agreement that by their sense and
context are intended to survive shall survive termination or expiration of this
Framework Agreement for any reason whatsoever.
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25.17 GOVERNING LAW; VENUE; SERVICE OF PROCESS. Except as otherwise
expressly set forth in a Transaction Agreement, the Agreements are to be
construed according to the laws of the country (and state/province, if
applicable) from which the applicable Agreement issues as shown by the address
of Customer (including any Related Entity), excluding the provisions of the
United Nations Convention on Contracts for the International Sale of Goods and
any conflict of law provisions which would require application of another choice
of law. Any action or proceedings by Customer against Seller may be brought by
Customer in any court(s) having jurisdiction over Supplier or, at Customer's
option, in the court(s) having jurisdiction over Customer's location, in which
event Supplier consents to jurisdiction and service of process in accordance
with applicable procedures. Any actions or proceedings by Supplier against
Customer may be brought by Supplier only in the court(s) having jurisdiction
over Customer's location.
25.18 THIRD PARTY BENEFICIARIES. Except as set forth otherwise in
Section 1.2, the Parties intend that the Agreements, including any amendments or
modifications hereto, shall not benefit any person or entity other than Customer
or Supplier, or create any right or cause of action in or on behalf of, any
person or entity other than Customer or Supplier.
25.19 COVENANT OF FURTHER ASSURANCES. The Parties covenant and agree
that, during the Term and thereafter and without any additional consideration,
each of Customer and Supplier shall execute and deliver any further legal
instruments and perform any acts which are or may become necessary to effectuate
the purposes of the Agreements and any amendment or modification hereto.
* * *
IN WITNESS WHEREOF, each of the Parties, by its duly
authorized representative, has executed this Framework Agreement as of the
Effective Date.
SUPPLIER CUSTOMER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ------------------------------
(Print) ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Print) ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ---------------------------
Title: Chief Executive Officer Title: Commodity Manager
------------------------------ ----------------------------
Date: Date:
------------------------------- -----------------------------
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APPENDIX A
GENERAL MOTORS CORPORATION
GLOSSARY
FOR
INFORMATION TECHNOLOGY AGREEMENTS
DEFINITIONS
The following terms when used with initial capital letters (in both singular and
plural forms) in any of the Agreements shall have the respective meanings set
forth in this Appendix.
ACCEPTANCE CRITERIA shall mean the criteria set forth in the applicable
Transaction Agreement regarding Customer's acceptance of the applicable Products
or Services including but not limited to, Year 2000 Compliance and EMU
Compliance as set forth in Section 10.10 and 10.11, respectively, of the
Framework Agreement.
ACCEPTANCE DATE shall mean the date on which Customer notifies Supplier in
writing that Acceptance Testing has been successfully completed based on
satisfactory performance of the Acceptance Criteria.
ACCEPTANCE TEST shall mean one or more procedures, as specified in Category
Agreement or Transaction Agreement for verifying that the Acceptance Criteria
for the applicable Product or System have been satisfied.
ACCEPTANCE TESTING shall mean the process, as specified in a Category Agreement
or Transaction Agreement, through which a Product or System is subjected to the
applicable Acceptance Test.
ADDITIONAL SERVICES shall mean services from Supplier that are within the scope
of Supplier's obligations under existing Category Agreements and Transaction
Agreements.
AGREEMENTS shall mean the Framework Agreement and all Category Agreements and
Transaction Agreements currently in effect.
AUTHORIZED USER shall mean Customer, its Related entities, and Outsourcing
Companies, and its and their employees, agents, consultants or contractors who
need to use a Product or System in the performance of their duties on behalf of
Customer and who are authorized and enabled by Customer to access and utilize
the Product or System.
CATEGORY AGREEMENT shall mean an agreement governing a specific type or category
of transaction (e.g., outsourcing, consulting services, equipment purchase,
software development and software license).
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CHANGE shall mean an addition, deletion or modification to any term, obligation
or other aspect of an Agreement.
CHANGE ORDER shall mean a Change Order Response that has been proposed by
Supplier and accepted by Customer pursuant to the Change Order Procedures.
CHANGE ORDER PROCEDURES shall mean those procedures set forth in Article 2 of
the Framework Agreement as the same may be modified in an Agreement.
CHANGE ORDER REQUEST shall mean a written document prepared by Customer
describing a proposed Change and establishing a reasonably prompt period for
Supplier to respond with a Change Order Response.
CHANGE ORDER RESPONSE shall mean a written document prepared by Supplier that
either: (i) describes a Change desired by Supplier and includes the information
set forth in the Change Order Procedures; or (ii) responds to a Change Order
Request and includes the information set forth in the Change Order Procedures.
COMPENSATION PACKAGE shall mean that compensation package offered to Transferred
Employees, the net effect of which shall be to provide overall compensation that
is no less favorable to such Transferred Employees taken as a whole to that
received by them from Customer or from Customer's existing Outsourcing Company,
as applicable, but that is, to the extent possible in light of the foregoing,
consistent with Supplier's standard policies in existence at that time.
COMPONENT shall mean any constituent part of a Product, whether provided by
Supplier or any other source.
CONFIDENTIAL INFORMATION shall mean Customer Confidential Information or
Supplier Confidential Information, as applicable.
CONSULTING SERVICES shall mean Services generally described as consulting to be
provided by Supplier to Customer that are related to Customer's information
technology environment, as such Consulting Services are further defined in the
applicable Transaction Agreements.
CONVERSION PERIOD shall mean a reasonable period of time, not to exceed six
(6)months, during which Customer converts to a new Operating System Software.
CORPORATE CONTRACT MANAGER shall mean the individual designated by Customer and
Supplier, respectively, pursuant to Section 3.1 of the Framework Agreement.
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CORPORATE SOFTWARE LICENSE shall mean the Software license as defined in Section
4.1 of the Software Licensing Agreement.
CPU shall mean any computer or computer system that is used in the Customer's
business to store, process, or retrieve data or perform other functions using
Operating Systems and application program Software.
CPU SOFTWARE LICENSE shall mean the Software license as defined in Section 4.1
of the Software Licensing Agreement.
CRITICAL PROGRAM ERROR shall me an any Program Error, whether or not known to
Customer, that prohibits or significantly impairs use of a Product as
contemplated in the Documentation, Specifications or any of the applicable
Agreements.
CRITICAL SYSTEMS shall mean the systems identified as critical in the applicable
Transaction Agreement.
CUSTOMER shall mean General Motors Corporation with respect to this Framework
Agreement and the Category Agreements and, as applicable with respect to
Transaction Agreements, those Related Entities of General Motors Corporation as
specified in the applicable Transaction Agreement.
CUSTOMER ASSETS shall mean those assets owned, leased or otherwise held by
Customer and to be used by Supplier in connection with the performance of
Supplier's obligations under the Agreements.
CUSTOMER CONFIDENTIAL INFORMATION shall mean any confidential information
received by Supplier directly or indirectly from Customer or its Related
Entities, or acquired or developed in the course of performance of the
Agreements, including, by way of example only, business affairs, data, designs,
discounts, manuals, training materials and documentation, formulas, ideas,
inventions, know-how, manufacturing processes, mask works, methods (including
but not limited to, PICOS), prices, processes, financial and accounting data,
products and product specifications, systems and technical information and the
terms of the Agreements.
CUSTOMER CORPORATE CONTRACT MANAGER shall mean the individual designated by
Customer from time to time, pursuant to Section 3.1(A) of the Framework
Agreement, that will act as the primary point of contact with respect to
communications to, and from, Supplier regarding the overall relationship of the
Parties. The Customer Corporate Contract Manager will have overall authority to
issue, execute, grand and provide on behalf of Customer any approvals, requests,
notices and other communications required by and Agreement.
CUSTOMER CORPORATE INFORMATION SECURITY PRACTICES AND PROCEDURES OR ISP&P shall
mean Customer's Corporate policy and practices related to information security
prepared by Customer's
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Corporate Chief Technology Officer as the same may be revised from time to time
by Customer's Corporate Chief Technology Officer and will be attached to the
Framework Agreement as Exhibit __.
CUSTOMER CORPORATE INFORMATION TECHNOLOGY ARCHITECTURE AND TECHNICAL STANDARDS
shall mean the document published by Customer's Corporate Chief Technology
Officer containing Customer's information technology strategy, architecture and
standards as the same may be amended from time to time by the Corporate Chief
Technology Officer. When published, such document will be attached to the
Framework Agreement as Exhibit 5.4(D) thereto.
CUSTOMER DELEGATION OF AUTHORITY shall mean the authority delegated by (i) the
Customer Corporate Contract Manager, to Customer Project Managers, or other
Customer personnel, and (ii) the Customer Project Managers to other Customer
personnel, thereby permitting the designee to undertake and obligation on behalf
of Customer or any of its Related Entities. When completed, the Customer
Delegation of Authority will be attached as Exhibit 3.2(A) to the Framework
Agreement and may be modified by Customer at any time, and from time to time, as
set forth on said Exhibit 3.2(A).
CUSTOMER DERIVATIVE WORKS shall have the meaning as set forth in Section 13.4(A)
of the Framework Agreement.
CUSTOMER EQUIPMENT shall mean the computers, hardware and related equipment used
by Customer for its information technology requirements an owned by, or leased
or otherwise provided to, Customer by a third party.
CUSTOMER INFORMATION SYSTEMS AND SERVICES ORGANIZATION OR IS&S shall mean the
organization responsible for the acquisition, implementation and deployment of
Customer's information technology.
CUSTOMER INTELLECTUAL PROPERTY shall mean all Intellectual Property and Customer
Confidential Information (as those terms are understood under United States
law), including any Derivative Works thereof, created, developed or prepared by
or on behalf of Customer or one of its Related Entities, or that are proprietary
to, or otherwise owned by, Customer, one of its Related Entities or one of its
or their third party licensors.
CUSTOMER MODIFICATIONS shall have the meaning set forth in Section 12.2 of the
Software Licensing Category Agreement.
CUSTOMER PROJECT MANAGER shall mean the individual designated by Customer,
pursuant to Section 3.1(B) of the Framework Agreement, and set forth in a
Transaction Agreement that will act as the primary point of contact with respect
to communications to and from Supplier regarding the project contemplated by the
Transaction Agreement. Customer Project Manager will have the authority to
issue, execute, grant and provide on behalf of Customer any approvals,
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requests, notices and other communications required by the project contemplated
by the Transaction Agreement, except as such authority is otherwise reserved to
Customer Corporate Contract Manager.
CUSTOMER SOFTWARE shall mean Software used, owned by or licensed to Customer,
including Customer Third-Party Software.
CUSTOMER THIRD-PARTY SOFTWARE shall mean Software that is used or owned by a
party other than Customer or Supplier and that is licensed to Customer.
CUSTOMER TRAVEL GUIDELINES shall mean the Customer's guidelines for business
travel by its employees, attached as Exhibit 8.5 to the Framework Agreement, as
the same may be modified by Customer from time to time.
CUSTOMER YEAR 2000 COMPLIANCE TEST PROCEDURE shall mean such document containing
Customer's test procedure to test Year 2000 Compliance of any Equipment or
Software, as such may be amended from time to time by the Customer's Corporate
Chief Technology Officer, and which shall be attached to the Framework Agreement
as Exhibit 10.10.
DELIVERABLES shall mean those items to be delivered by Supplier to Customer for
Customer's approval in accordance with the terms set forth in the applicable
Category Agreement or Transaction Agreement.
DELIVERY DATE shall mean that date as defined in Section 5.1 of the Equipment
Agreement.
DERIVATIVE WORKS shall mean a work based on one or more preexisting works,
including, without limitation, a condensation, transformation, expansion or
adaption, that if prepared without authorization of the owner of the copyright
of the preexisting work, would constitute copyright infringement.
DESIGNATED CPU shall mean any CPU or multiple CPU complex forming a part of the
Equipment, including is associated peripheral units, as set forth in the
applicable Transaction Agreement, or the CPU or multiple CPU complex on which
the Licensed Software was first used. The Transaction Agreement may designate
more than one CPU.
DEVELOPED SOFTWARE shall mean Software developed by Supplier by original
authorship or through contracts with third parties as part of or in order to
perform Services.
DIAGNOSTIC TESTING shall mean one of the Acceptance Tests, as specified in a
Category Agreement or Transaction Agreement.
DIRECT DAMAGES CAP shall mean the amount of direct damages equal to the total
amount paid or payable to Supplier under the applicable Transaction Agreement.
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DIVESTED ENTITY shall mean an entity or unit of Customer that is sold or
otherwise divested.
DIVESTED RELATED ENTITY shall mean such Related Entity as defined in Article 8
of the Software Licensing Agreement.
DOCUMENTATION shall mean the user manuals and any other materials in any form or
medium customarily provided by Supplier to the Customer of the related Product
or Service.
EFFECTIVE DATE shall mean, with respect to an Agreement, the date set forth in
the applicable Agreement, or, if no such date is identified, the later date upon
which such Agreement is executed by both Supplier and Customer.
EFFECTIVENESS LEVEL shall mean the result of dividing the Operational Use Time
of the System or Module by the sum of that time plus System or Module Failure
Downtime for the System or Component.
EMPLOYEE TRANSITION DATE shall mean the date identified as the Employee
Transition Date in the applicable Transaction Agreement.
EQUIPMENT shall mean, without limitation, the computers, hardware and related
equipment used in connection with the delivery or receipt of Services, including
central processing units and other processors, controllers, modems,
communications and telecommunications equipment (voice, data and video), cables,
storage devices, printers, terminals, other peripherals and input and output
devices, and other tangible mechanical and electronic equipment intended for the
processing, input, output, storage, manipulation, communication, transmission
and retrieval of information and data.
EMU COMPLIANCE shall have the meaning as set forth in Section 10.11 of the
Framework Agreement.
EQUIPMENT MAINTENANCE shall mean both Preventive and Remedial Maintenance such
that any Customer Equipment in the custody of Supplier will be maintained in a
manner to ensure its continued usability and value, including cosmetic
condition.
EQUIPMENT TESTING shall mean one of the Acceptance Tests as specified in Section
7.5(B) of the Equipment Agreement, or in any Category Agreement or Transaction
Agreement.
ESCROW AGREEMENT shall mean a source code escrow agreement among Customer,
Supplier and an escrow company selected by Customer, a copy of which shall be
attached to the applicable Transaction Agreement and which shall be approved as
part of the Parties' agreement to execute such Transaction Agreement.
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FRAMEWORK AGREEMENT shall mean the Framework Agreement for Information
Technology executed by the Parties as of the Effective Date.
ILLICIT CODE shall mean any (i) illicit code, (ii) hidden files, (iii)
automatically replicating, transmitting or activating code, (iv) virus about
which Supplier knows or should have known, or (v) key, node lock, time-out or
other Product-limiting or Service-limiting function, whether implemented by
electronic or other means.
INSTALLATION DATE shall mean the date, as specified in a Category Agreement or
Transaction Agreement, by which all Components of the applicable Product shall
be installed at the applicable designated Site.
INTELLECTUAL PROPERTY shall mean: all patents and patent applications;
copyrights and copyrightable works; trade secrets, confidential information and
know-how (including but not limited to ideas, formulae, compositions,
manufacturing and production processes and techniques, research and development
information, drawings, specifications, designs, plans, proposals, technical
data, business and marketing plans, customer lists, dealer lists, supplier lists
and related information); and computer software (including but not limited to
data, data bases and documentation), but not including any trademarks, service
marks or trade names.
KEY SUPPLIER PERSONNEL shall mean those employees or contractors of Supplier who
have been or will be assigned substantially full-time to Customer to be
designated Key Supplier Personnel as agreed to by the Parties in a Transaction
Agreement.
LICENSED SITE shall mean, from along all of Customer's Sites, a collection of
geographically contiguous (i.e., adjacent tracts or parcels of real property
separated, if at all, only by publicly dedicated rights of way or private
easements) buildings, each of which, in whole or in part, is occupied or
accessed by Customer and each of which is a permitted locale where the
applicable Licensed Software may be used in accordance with the applicable Site
Software License.
LICENSED SOFTWARE shall mean Software provided or to be provided by Supplier to
Customer under the Software Licensing Agreement and any applicable Transaction
Agreement.
MALFUNCTION INCIDENT REPORT shall mean a report, as specified in a Category
Agreement or Transaction Agreement, by which information about the failure of
the applicable Product or System to meet the performance warranties set forth in
the Agreements is memorialized.
MAINTENANCE SERVICES shall mean Preventive Maintenance and Remedial Maintenance
Services.
MANAGERS shall mean the Corporate Contract Managers and Project Managers.
MINIMUM ACCEPTABLE LEVEL OF PERFORMANCE shall mean the threshold performance
standard, as specified in a Category Agreement or Transaction Agreement, below
which the applicable Product or System is not performing satisfactorily.
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MODULE shall mean a collection of routines and data structures that perform a
specific function within Software.
MSA shall mean that Master Service Agreement between Customer and Electronic
Data Systems Corporation dated June 7, 1996.
NEW TECHNOLOGY shall mean new products, processes, methods or other means
designed to enhance or replace the Products or Services provided pursuant to the
Agreements.
OPERATING SYSTEM SOFTWARE shall mean the Software control program in a CPU that
provides the interface to the CPU and its associated Equipment, and the usage
and allocation of memory resources, processor resources, input/output resources,
and security resources.
OPERATIONAL USE TIME shall mean the accumulated time during which the applicable
Product or System is in actual operation.
OUTSOURCING shall mean obtaining computing or related services from a source
outside of Customer or Customer's Related Entities, possibly as Outsourcing
Services. Such computing or related services may include programming or
executing the Customer's Licensed Software on Customer's CPUs, programming
executing Customer's programs and Licensed Software on Outsourcing Company's
CPUs, or any combination thereof.
OUTSOURCING COMPANY shall mean an entity that provides Outsourcing services or
similar services in the nature of Outsourcing under contract to Customer.
OUTSTANDING SERVICES shall mean Services that are related to Customer's
information technology that have been provided by Customer, Supplier or a third
party outsourcing service provider, to be further defined in the applicable
Transaction Agreements.
PARTY(IES) shall mean the party or parties executing the applicable Agreement.
PERFORMANCE PERIOD shall mean the period of time during which System Acceptance
Testing is measured, as specified in a Category Agreement or Transaction
Agreement.
PICOS shall mean Customer's Purchasing Input Cost Optimization of Suppliers
methodology, as set forth in the booklet entitled "Selling to General Motors",
as modified by Customer from time to time.
PLATFORM shall mean a specific Equipment and Operating System Software
combination that is different from other Equipment and Operating System Software
combinations to the extent that a different version of the Licensed Software is
required to execute properly in the environment established by such Equipment
and Operating System combination.
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PREVENTIVE MAINTENANCE shall mean maintenance performed, or required to be
performed, by Supplier on a scheduled basis to keep a Product or System in good
operating condition in accordance with Supplier's published specifications
therefor and in accordance with any additional specifications contained or
referenced in this Equipment Agreement or any applicable maintenance agreement.
Preventive Maintenance shall include: (i) calibration, testing and any necessary
adjustments, cleaning, lubrication, replacement of worn, defective, or
questionable parts, and minor circuit updating and modifications; (ii)
maintenance and engineering services necessary to retrofit or otherwise install
engineering changes, modifications, and improvements (including the latest
Supplier engineering revision and any and all reliability improvements) made to
any Product or Supplier at any time during the maintenance term for the Product;
and (iii) automatic update services for any and all manuals and documentation
furnished with any Product that is subject to maintenance under this Equipment
Agreement.
PRICING AND PAYMENT EXHIBIT shall mean the exhibit setting forth the pricing
that applies in connection with the applicable Transaction Agreement.
PRIVILEGED WORK PRODUCT shall mean documents, data and databases and all
associated communications that may be subject to the attorney-client privilege.
PRODUCT shall mean any Supplier Equipment, Supplier Software or Supply Item
provided by Supplier pursuant to an Agreement.
PROGRAM ERROR shall mean code in the Licensed Software that produces unintended
results or actions, or that produces results or actions other than those
described in the applicable Specifications. A Program Error includes, without
limitations, any "Critical Program Error."
PROGRAM SET shall mean the group of Products including the Licensed Software
specified in the applicable Transaction Agreement plus any additional Products
licensed by Customer under the Software Licensing Agreement and any applicable
Transaction Agreement.
PROJECT shall mean the total of all Software and related Documentation,
Equipment and Services to be provided by Supplier under a Category Agreement or
any applicable Transaction Agreement.
PROJECT MANAGER shall mean the individuals designated by Customer and Supplier,
respectively, pursuant to Section 3.1(B) of the Framework Agreement.
PROPOSAL shall mean the Supplier's written proposal submitted in response to
Customer's solicitation of same in whatever form such request is made (including
an RFP), and on which Customer's decision to acquire Products or Services from
Supplier through one or more specific transactions as set forth in the
applicable Category Agreements and Transaction Agreements will be based.
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RECOMMENDED EQUIPMENT CONFIGURATION shall mean the Equipment to the extent
utilized by Customer recommended by the Supplier in Supplier's Proposal relating
to a specific proposed transaction that results in the execution of a
Transaction Agreement.
RELATED ENTITIES shall mean any functional entity, division, department, group
affiliates, subsidiaries or parents of a Party. For purposes of this definition,
"affiliate" shall mean any company, partnership or joint venture more than ten
percent (10%) of the interest in which is owned by or under the control of a
Party, parent or subsidiary, at any tier, and any customer, dealer, distributor,
supplier or agent to which Customer wishes to extend Products and Services;
"subsidiary" shall mean any company, partnership or joint venture more than ten
percent (10%) of the voting shares of which, or interest in which, are owned or
controlled by a Party or any parent, other subsidiary or affiliate at any tier;
and "parent" shall mean any company, partnership, or joint venture that owns or
controls more than fifty percent (50%) interest of a Party.
REMEDIAL MAINTENANCE shall mean maintenance performed, or required to be
performed, by Supplier upon the written or oral request of Customer to place the
applicable Product or System back into good operating condition, in accordance
with the standards specified in the definition of "Preventive Maintenance"
herein after it has become inoperative or subject to malfunction.
REQUEST FOR PROPOSAL OR RFP shall mean formal requests by Customer to Supplier
that solicit a Proposal by Supplier to provide certain Products and Services to
Customer.
SERVICES shall mean any Outsourcing Services, programming service, Preventive
Maintenance service, Remedial Maintenance service, Software maintenance service,
conversion service, consulting service, support service or other service
provided by Supplier to Customer as further in the applicable Agreements.
SERVICE LEVELS shall mean the required availability, response times or other
performance standards of Customer's information technology business operations,
including but not limited to such performance standards relating to Critical
Systems, Products and Services, as such performance standards are set forth in
the applicable Transaction Agreement.
SHARED ENVIRONMENT shall mean a site or facility from which Supplier provides
Products or Services to more than one customer.
SITE shall mean all Customer designated locations worldwide, including all
present and future Customer-controlled locations, Customer's customers,
suppliers, dealers and other third parties. Supplier Corporate Contract Manager
will have the authority to issue, execute, grant and provide on behalf of
Supplier any approvals, requests, notices and other communications required by
an Agreement.
SUPPLIER DERIVATIVE WORKS shall have the meaning as set forth in Section 13.4(C)
of the Framework Agreement.
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SUPPLIER EQUIPMENT shall mean Equipment owned by, leased by, or otherwise under
the control of, Supplier.
SUPPLIER INTELLECTUAL PROPERTY shall mean all Intellectual Property including
without limitation, Supplier Confidential Information and any improvements or
modifications thereto and Derivative Works thereof, created, developed or
prepared by or on behalf of Supplier or that are proprietary to, or otherwise
owned by, Supplier or its third party licensors, but not including anything
developed under or in support of the performance of Supplier's obligations under
the Agreements or in accordance with the terms of Section 13.4(B) of the
Framework Agreement.
SUPPLIER MODIFICATIONS shall have the meaning set forth in Section 13.1 of the
Software Licensing Category Agreement.
SUPPLIER PROJECT MANAGER shall mean the individual designated by Supplier,
pursuant to Section 3.1(B) of the Framework Agreement, and set forth in a
Transaction Agreement that will act as the primary point of contact with respect
to communications to and from Customer regarding the project contemplated by the
Transaction Agreement. Supplier Project Manager will have the authority to
issue, execute, grant and provide on behalf of Supplier any approvals, requests,
notices and other communications required by the project contemplated by the
Transaction Agreement, except as such authority is otherwise reserved by
Supplier Corporate Contract Manager.
SUPPLIER SOFTWARE shall mean Software owned by, or licensed to, or otherwise
under the control of, Supplier, including Supplier Third-Party Software.
SUPPLIER THIRD-PARTY SOFTWARE shall mean Software owned by a party other than
Customer or Supplier and which is licensed to Supplier.
SUPPLY ITEM shall mean any cards, paper, ribbons, magnetic tape, other magnetic
storage media and similar items used in connection with the Products and
Services.
SYSTEM shall mean any collection or aggregation of two (2) or more Products that
are designed to perform, or are represented by Supplier as performing or being
capable of performing, as a functional entity. A System may be provided to
Customer by Supplier or by any other supplier and may include Component s or
Products offered by Supplier and those offered by one (1) or more other
suppliers. The Products comprising each System, along with designations of
whether the Supplier is responsible for providing them, are to be specified in
the applicable Transaction Agreement.
SYSTEM ACCEPTANCE TESTING shall mean one of the Acceptance Tests, as specified
in a Category Agreement or Transaction Agreement.
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SYSTEM OR MODULE FAILURE DOWNTIME shall have the meaning as set forth in Section
9.3(C) of the Software Licensing Agreement.
T&M CHARGES shall mean time and material charges.
TAXES shall mean any value-added, country or local sales, use or similar taxes
imposed by and collected on behalf of any taxing authority and any
telecommunications excise taxes, except taxes on the net income of a Party.
TERM shall mean, collectively, the initial term and renewal term, if applicable.
TERMINATION ASSISTANCE PERIOD shall mean a period of up to three (3) years as
may be reasonably required by Customer for the orderly transition of the
affected Services.
TERMINATION ASSISTANCE SERVICES shall mean any services requested by Customer
that may be required during the Termination Assistance Period to facilitate the
transfer of the affected Services to Customer or to a third-party service
provider, as applicable, including providing to Customer or third-party
personnel training in the performance of the affected services.
THIRD-PARTY AGREEMENTS shall mean those third-party agreement identified in the
applicable Transaction Agreement to which Customer is a party and which will
affect, or be affected by, the provision of the Outsourcing Services by
Supplier.
THIRD-PARTY INVOICES shall mean invoices received in connection with the
Supplier-Administered Agreements.
TIME OF RECEIPT shall mean the time of disclosure of the applicable information
to the receiving Party.
TOTAL PURCHASE PRICE shall mean the total amount payable by Customer as set
forth nit eh applicable Transaction Agreement.
TRANSACTION AGREEMENT shall mean an agreement invoking and supplementing this
Framework Agreement and one or more Category Agreements that sets forth terms
specific to that category or categories (e.g., Service Levels).
TRANSFERRED EMPLOYEE shall mean those employees and individual independent
subcontractor personnel of Customer or of its existing outsourcing service
provider previously agreed upon between the Parties and identified in the
applicable Transaction Agreement that will be offered employment or
subcontractor contracts, as applicable, by Supplier.
TRANSITION PERIOD shall mean the period from the Effective Date of the
applicable Transaction Agreement until the Acceptance Date.
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UPGRADE shall mean the exchange, modification or conversion of a Product for or
into a Product that has greater or improved capability, performance or
specifications.
WARRANTY PERIOD shall mean the period of time set forth in a Category Agreement
or Transaction Agreement during which Supplier, at its expense, has specific
responsibilities with respect to Products set forth in a Category Agreement or a
Transaction Agreement.
WORK PRODUCT shall mean all Intellectual Property and Deliverables including any
improvements or modifications thereto, created, developed or prepared by
Supplier or a third party under or in support of the performance of its
obligations under the Agreements, or in accordance with the terms of Section
13.4(B) of the Framework Agreement, but shall not include Supplier Derivative
Works.
YEAR 200 COMPLIANT shall have the meaning as set forth in Section 10.10(B) of
the Framework Agreement.
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