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EXHIBIT 10-V
HUMAN RESOURCES MANAGEMENT AND ADMINISTRATION
MASTER SERVICES AGREEMENT
between
▇▇▇▇ CORPORATION
and
INTERNATIONAL BUSINESS MACHINES CORPORATION
Dated March 31, 2005
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TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS............................................................................ 2
ARTICLE 2. TERM................................................................................... 2
2.1 Initial Term............................................................................. 2
2.2 First Extension Period................................................................... 2
2.3 Second Extension Period.................................................................. 2
2.4 Term..................................................................................... 2
ARTICLE 3. SERVICES GENERALLY..................................................................... 2
3.1 Scope of Services........................................................................ 2
3.2 ▇▇▇▇ Group............................................................................... 3
3.3 Right to Change Service Volumes; Variable Fees........................................... 5
3.4 Governmental Approvals and Consents...................................................... 5
3.5 No Exclusivity; Insourcing............................................................... 5
3.6 Knowledge Sharing........................................................................ 6
3.7 Compliance with Internal IT Standards.................................................... 6
3.8 Reports.................................................................................. 7
3.9 Procurement.............................................................................. 7
ARTICLE 4. TRANSFORMATION SERVICES................................................................ 7
4.1 Transformation Services.................................................................. 7
4.2 Completion and Acceptance of Transformation Services..................................... 7
ARTICLE 5. PROJECTS AND NEW SERVICES.............................................................. 8
5.1 Existing Projects........................................................................ 8
5.2 Projects................................................................................. 8
5.3 New Services............................................................................. 9
5.4 Third Party Services..................................................................... 10
5.5 Cooperation.............................................................................. 10
ARTICLE 6. SERVICE LEVELS......................................................................... 11
6.1 Service Levels........................................................................... 11
6.2 New Service Levels....................................................................... 11
6.3 Adjustment of Service Levels............................................................. 11
6.4 Measurement and Monitoring Tools......................................................... 12
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6.5 Root-Cause Analysis...................................................................... 13
6.6 Continuous Improvement and Best Practices................................................ 13
6.7 Performance Credits...................................................................... 13
6.8 Deliverable Credits...................................................................... 14
6.9 Performance Information.................................................................. 14
6.10 Customer Satisfaction Surveys............................................................ 14
ARTICLE 7. TECHNOLOGY............................................................................. 14
7.1 Retained Systems and Retained Processes.................................................. 15
7.2 Process And Technology Evolution......................................................... 16
ARTICLE 8. INTERNATIONAL SERVICES................................................................. 17
8.1 Worldwide Agreement...................................................................... 17
8.2 Assignment............................................................................... 17
8.3 Local Country Agreements................................................................. 17
ARTICLE 9. CONTRACT ADMINISTRATION................................................................ 17
9.1 Assigned Agreements...................................................................... 18
9.2 Assigned Agreement Invoices.............................................................. 18
9.3 Managed Agreements....................................................................... 18
9.4 Managed Agreement Invoices............................................................... 18
9.5 Performance Under Managed Agreements..................................................... 19
ARTICLE 10. SERVICE LOCATIONS...................................................................... 19
10.1 Service Locations........................................................................ 19
10.2 Physical Safety and Security Procedures.................................................. 19
10.3 Information Security..................................................................... 19
ARTICLE 11. HUMAN RESOURCES........................................................................ 20
11.1 Human Resources.......................................................................... 20
ARTICLE 12. PROJECT STAFF.......................................................................... 20
12.1 Project Staff Matters.................................................................... 20
12.2 Subcontractors........................................................................... 21
12.3 Conduct of Project Staff................................................................. 21
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ARTICLE 13. CONTINUED PROVISION OF SERVICES........................................................ 22
13.1 Disaster Recovery Plan................................................................... 22
13.2 Force Majeure............................................................................ 22
13.3 Alternate Source......................................................................... 23
13.4 No Payment for Unperformed Services...................................................... 23
13.5 Allocation of Resources.................................................................. 23
ARTICLE 14. ▇▇▇▇ RESPONSIBILITIES.................................................................. 23
14.1 ▇▇▇▇ Operational Responsibilities........................................................ 23
14.2 ▇▇▇▇ Resources........................................................................... 24
14.3 Management of Issues..................................................................... 25
ARTICLE 15. FEES AND PAYMENT....................................................................... 25
15.1 Fees..................................................................................... 25
15.2 Variable Fees............................................................................ 25
15.3 Invoices................................................................................. 26
15.4 INTENTIONALLY BLANK...................................................................... 26
15.5 Refundable Items; Prepaid Expenses....................................................... 26
15.6 Adjustments to Fees...................................................................... 26
15.7 Expenses................................................................................. 26
15.8 Disputed Charges......................................................................... 26
15.9 Rights of Set-Off........................................................................ 27
15.10 Unused Credits........................................................................... 27
15.11 Benchmarking............................................................................. 27
15.12 Unforeseen Technology Improvements....................................................... 30
15.13 Gainsharing.............................................................................. 30
ARTICLE 16. TAXES.................................................................................. 31
ARTICLE 17. AUDITS................................................................................. 31
17.1 Service Audits........................................................................... 32
17.2 Fees Audits.............................................................................. 33
17.3 Service Provider Audits.................................................................. 33
17.4 Record Retention......................................................................... 33
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17.5 Facilities............................................................................... 33
17.6 General.................................................................................. 33
ARTICLE 18. RELATIONSHIP MANAGEMENT................................................................ 34
18.1 Governance Guidelines and Principles..................................................... 34
18.2 Responsibilities......................................................................... 34
18.3 ▇▇▇▇ Appointments........................................................................ 34
18.4 Service Provider Appointments............................................................ 34
18.5 Role of Relationship Managers............................................................ 34
18.6 Senior Executives........................................................................ 35
18.7 Escalation Procedure for Relationship Issues............................................. 35
18.8 Executive Level Meeting.................................................................. 35
18.9 Quarterly Budgeting...................................................................... 35
18.10 Aligning Project Staff with ▇▇▇▇ Objectives.............................................. 35
18.11 Continuity of Services................................................................... 36
ARTICLE 19. CONTRACT MANAGEMENT.................................................................... 36
19.1 Policies and Procedures Manual........................................................... 36
19.2 Change Control Procedures................................................................ 36
ARTICLE 20. PROPRIETARY RIGHTS..................................................................... 36
20.1 ▇▇▇▇ Software and ▇▇▇▇ Tools............................................................. 36
20.2 Service Provider Software and Tools...................................................... 37
20.3 Work Product............................................................................. 38
20.4 Interface Information.................................................................... 39
20.5 Residual Information..................................................................... 39
ARTICLE 21. DATA................................................................................... 39
21.1 Ownership of ▇▇▇▇ Data................................................................... 39
21.2 Return of Data........................................................................... 39
ARTICLE 22. CONFIDENTIALITY........................................................................ 39
22.1 Use and Disclosure....................................................................... 39
22.2 Required Disclosure...................................................................... 40
22.3 Unauthorized Acts........................................................................ 40
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22.4 Return of Confidential Information....................................................... 40
22.5 Business Associate Agreement............................................................. 41
22.6 Data Protection Laws..................................................................... 41
ARTICLE 23. REPRESENTATIONS AND WARRANTIES......................................................... 42
23.1 By ▇▇▇▇.................................................................................. 42
23.2 By Service Provider...................................................................... 43
23.3 Disclaimer............................................................................... 43
ARTICLE 24. ADDITIONAL COVENANTS................................................................... 44
24.1 By ▇▇▇▇.................................................................................. 44
24.2 By Service Provider...................................................................... 45
24.3 Changes in Laws.......................................................................... 47
ARTICLE 25. TERMINATION............................................................................ 47
25.1 Termination for Convenience.............................................................. 47
25.2 Termination for Change in Control of ▇▇▇▇................................................ 47
25.3 Termination for Change in Control of Service Provider.................................... 47
25.4 Termination By ▇▇▇▇ for Cause............................................................ 48
25.5 Termination for Failure to Complete Transformation....................................... 48
25.6 Service Level Termination Event.......................................................... 48
25.7 Termination for Failure to Provide Adequate Assurance of Due Performance................. 48
25.8 Termination by Service Provider for Cause................................................ 48
25.9 Termination for Insolvency Event......................................................... 49
25.10 Termination for Failure to Maintain Adequate Controls.................................... 49
25.11 Other Terminations....................................................................... 49
ARTICLE 26. TERMINATION FEES....................................................................... 49
26.1 Termination Fees......................................................................... 49
ARTICLE 27. TERMINATION ASSISTANCE................................................................. 49
27.1 Termination Assistance Services.......................................................... 49
27.2 Exit Rights.............................................................................. 51
27.3 Right to Hire Project Staff.............................................................. 52
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27.4 Termination Assistance Upon Change in Services Volumes or Insourcing or Resourcing....... 52
27.5 Injunctive Relief........................................................................ 52
ARTICLE 28. INDEMNITIES............................................................................ 52
28.1 Indemnities by ▇▇▇▇...................................................................... 52
28.2 Indemnities by Service Provider.......................................................... 54
28.3 Indemnification Procedures............................................................... 56
28.4 Injunctions Affecting Services........................................................... 57
ARTICLE 29. DAMAGES................................................................................ 57
29.1 Direct Damages........................................................................... 57
29.2 Consequential Damages.................................................................... 57
29.3 Exceptions............................................................................... 58
29.4 Interpretation of Cap.................................................................... 59
29.5 Injunctive Relief........................................................................ 59
ARTICLE 30. INSURANCE.............................................................................. 59
30.1 Insurance................................................................................ 59
30.2 Period of Insurance...................................................................... 60
30.3 Insurance Documentation.................................................................. 61
30.4 Risk of Loss............................................................................. 61
30.5 Deductibles or Self Insurance............................................................ 61
ARTICLE 31. MISCELLANEOUS PROVISIONS............................................................... 61
31.1 Assignment............................................................................... 61
31.2 Notices.................................................................................. 61
31.3 Counterparts............................................................................. 62
31.4 Relationship............................................................................. 62
31.5 Consents, Approvals and Requests......................................................... 62
31.6 Waivers.................................................................................. 63
31.7 Remedies Cumulative...................................................................... 63
31.8 Amendments............................................................................... 63
31.9 Survival................................................................................. 63
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31.10 Third Party Beneficiaries................................................................ 63
31.11 Covenant of Further Assurances........................................................... 63
31.12 Negotiated Terms......................................................................... 63
31.13 Export................................................................................... 63
31.14 Non-Solicitation......................................................................... 63
31.15 Conflict of Interest..................................................................... 64
31.16 Publicity................................................................................ 64
31.17 Liens.................................................................................... 64
ARTICLE 32. CONSTRUCTION........................................................................... 64
32.1 Background............................................................................... 64
32.2 Incorporation and References............................................................. 64
32.3 Headings................................................................................. 65
32.4 Severability............................................................................. 65
32.5 Sole and Exclusive Venue................................................................. 65
32.6 Section 365(n)........................................................................... 65
32.7 Governing Law............................................................................ 65
32.8 Waiver of Jury Trial..................................................................... 66
32.9 Entire Agreement......................................................................... 66
32.10 Interpretation Consistent with Law; Conflicts............................................ 66
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SCHEDULES
Schedule 1 - Definitions
Schedule 2 - Statement of Work
Schedule 3 - Transformation
Schedule 4 - Governance
Schedule 5 - Service Levels and Performance Credits
Schedule 6 - Fees
Schedule 7 - Reports
Schedule 8 - ▇▇▇▇ Operational Responsibilities and Resources
Schedule 9 - Outline of Policies and Procedures Manual
Schedule 10 - Existing Projects
Schedule 11 - Approved Subcontractors
Schedule 12 - Service Locations
Schedule 13 - Form of Confidentiality Agreement
Schedule 14 - ▇▇▇▇ Information Security Requirements
Schedule 15 - ▇▇▇▇ Technology Standards
Schedule 16 - Software and Tools
Schedule 17 - Business Associate Agreement
Schedule 18 - Human Resources
Schedule 19 - ▇▇▇▇ Policies and Procedures
Schedule 20 - Disaster Recovery and Business Continuity Requirements
Schedule 21 - Customer Satisfaction Surveys
Schedule 22 - Form of Work Order
Schedule 23 - Assigned Agreements and Managed Agreements
Schedule 24 - Benchmarkers
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HUMAN RESOURCES MANAGEMENT AND ADMINISTRATION
MASTER SERVICES AGREEMENT
This Human Resources Management And Administration Master Services Agreement,
dated March 31, 2005 (the "Effective Date"), is between ▇▇▇▇ Corporation
("▇▇▇▇") and International Business Machines Corporation ("Service Provider").
BACKGROUND
▇▇▇▇ issued a Request for Proposal seeking a service provider or service
providers of human resources management and administration services and
conducted a competitive bid process for the provision of such services.
▇▇▇▇ and Service Provider assert that the goals and objectives of this Agreement
are to:
(A) provide first class human resource management and administration to
Dana's current and former employees, managers and business partners;
(B) deliver economic value to ▇▇▇▇ through innovative, efficient and
effective service delivery;
(C) achieve cost reductions with respect to Dana's human resource
operations through process transformation and standardization;
(D) provide human resource management and administration services that
enable ▇▇▇▇ to attract, develop and retain best talent;
(E) deliver services at a cost, for a price, and at a standard that is
competitive with other providers of human resource management and
administration services in the market;
(F) provide service that is customer-focused and reflects Dana's
business imperatives;
(G) allow ▇▇▇▇ to acquire services with flexibility that is consistent
with Dana's changing business needs while minimizing the operational
risk to which ▇▇▇▇ and Service Provider are exposed;
(H) proactively work to reduce human resource management and
administration costs and increase efficiency; and
(I) ensure a smooth, efficient and timely transition from Dana's
internal Human Resources Department without materially disrupting
Dana's business operations.
Based on these goals and objectives, ▇▇▇▇ has agreed to engage Service Provider,
and Service Provider has agreed to be engaged, as a provider of human resource
management and administration services to ▇▇▇▇.
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▇▇▇▇ will acquire services from Service Provider and Service Provider will
provide those services on the terms set forth in this Agreement.
ARTICLE 1. DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth in Schedule
1 (Definitions).
ARTICLE 2. TERM
2.1 Initial Term. The initial term of this Agreement (the "Initial Term") will
commence on the Effective Date and, unless this Agreement is earlier
terminated in accordance with its terms or extended under Section 2.2,
will expire at 11:59 p.m. Eastern Time on March 31, 2015 (the "Initial
Agreement Expiration Date").
2.2 First Extension Period. Twelve months before the Initial Agreement
Expiration Date, Service Provider will present ▇▇▇▇ with a written
proposal setting forth terms and conditions on which Service Provider
proposes to continue providing the Services for an additional period. If
the Parties are unable to agree upon the terms and conditions for the
renewal of this Agreement after the Initial Term, ▇▇▇▇ ▇▇▇, by notifying
Service Provider in writing no later than 30 days before the Initial
Agreement Expiration Date, elect to extend the effectiveness of this
Agreement, for a period of time designated by ▇▇▇▇ that will not exceed
twelve months from the Initial Agreement Expiration Date (the "First
Extension Period"), which renewal will be at the then current terms and
conditions, including pricing. If ▇▇▇▇ does not elect to extend this
Agreement under this Section, then this Agreement will expire at the end
of the Initial Term.
2.3 Second Extension Period. Six months before the end of the First Extension
Period, Service Provider will present ▇▇▇▇ with a written proposal setting
forth terms and conditions on which Service Provider proposes to continue
providing the Services for an additional period. If the Parties are unable
to agree upon the terms and conditions for the renewal of this Agreement
after the First Extension Period, ▇▇▇▇ ▇▇▇, by notifying Service Provider
in writing no later than 30 days before the end of the First Extension
Period, elect to extend the effectiveness of this Agreement, for a period
of time designated by ▇▇▇▇ that will not exceed twelve months from the end
of the First Extension Period (such period, together with the First
Extension Period, the "Extension Periods"), which renewal will be at the
then current terms and conditions, including pricing. If ▇▇▇▇ does not
elect to extend this Agreement under this Section, then this Agreement
will expire at the end of the First Extension Period.
2.4 Term. The "Term" of this Agreement consists of the Initial Term and all
Extension Periods. The Termination Assistance Period may extend beyond the
Term as set forth in Article 27.
ARTICLE 3. SERVICES GENERALLY
3.1 Scope of Services. Service Provider will provide the following services to
the ▇▇▇▇ Group Companies, as the ▇▇▇▇ Group Companies may evolve during
the Term and
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as such services may be supplemented, enhanced, modified or replaced
(collectively, the "Services"):
(A) the human resource management and administration services, functions
and responsibilities set forth in this Agreement, in Schedule 2
(Statement of Work), as complemented by the Base Case defined
therein, and in the other Schedules to this Agreement;
(B) services, functions and responsibilities reasonably related to the
Services identified in subsection (A) above and routinely performed
by the Affected Employees and any other Dana personnel and
contractors who are transitioned to Service Provider, displaced or
whose functions were displaced as a result of this Agreement, even
if not specifically described in this Agreement;
(C) human resource management and administration services, functions and
responsibilities that are of a nature and type that, within a
company in the automotive industry, would ordinarily be performed by
the organization or the part of the organization performing services
similar to those specifically described in this Agreement, even if
not specifically described in this Agreement;
(D) Transformation Services;
(E) services, functions and responsibilities identified in Work Orders
adopted by the Parties for Projects undertaken under this Agreement;
(F) New Services upon Dana's approval of Service Provider's New Services
Schedule;
(G) Technology Evolution;
(H) Termination Assistance Services; and
(I) services, functions and responsibilities not specifically described
in this Agreement, the Schedules, any New Service Schedule or any
Work Order, but that are required for the proper performance and
delivery, or are an inherent part, of the services, functions or
responsibilities specifically described in such documents.
3.2 ▇▇▇▇ Group.
(A) Service Provider will provide the Services to (1) ▇▇▇▇ and any other
member of the ▇▇▇▇ Group Companies designated by ▇▇▇▇, irrespective
of Dana's corporate structure and (2) any New Entity as directed by
▇▇▇▇ under subsection (B) of this Section. Service Provider will
provide the Services to such authorized users at the sites at which
such entities operate as of the Effective Date and any additional
sites that ▇▇▇▇ ▇▇▇ request during the Term. Fees for Services at
any such new sites will be as set forth in Schedule 6 (Fees), unless
a material cost differential justifies specific alternative rates or
charges.
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(B) If as a result of a Restructure or otherwise an entity that is not a
▇▇▇▇ Group Company (a "New Entity") is acquired by ▇▇▇▇ or acquires
or becomes responsible for some of the business, assets, operations
or management of a ▇▇▇▇ Group Company, then, at Dana's discretion
and in accordance with its directions, Service Provider will provide
the Services to the New Entity. In such directions, ▇▇▇▇ ▇▇▇ require
Service Provider to provide the Services to a New Entity under this
Agreement or, provided that the party to such separate agreement
with Service Provider is a creditworthy entity, under a separate
agreement on the same terms. A party will be a creditworthy entity
if such party meets Service Provider's then current generally
applicable requirements for outsourcing customer credit worthiness
or if such party's credit rating is substantially comparable with or
better than Dana's credit rating as of the Effective Date. If the
Services are provided under a separate agreement, ▇▇▇▇ will have no
obligation to pay, or guarantee the payment of, any fees in relation
to those Services provided to the New Entity. The Services provided
to the ▇▇▇▇ Group Companies or any New Entity under a separate
agreement will be included in the calculation of actual service
volumes, if any, under this Agreement. For the avoidance of doubt,
▇▇▇▇ has no obligation to obtain Services from Service Provider with
respect to any New Entity.
(C) If a Restructure includes the divestiture of an entity, a business
unit or assets of ▇▇▇▇, Service Provider will, at Dana's request,
for a period of up to 18 months from the effective date of such
Restructure, continue to provide the Services to such divested
entity or business unit, or to the purchaser of such assets, at the
applicable Fees then in effect; provided that ▇▇▇▇ or the entity,
unit or purchaser agrees to be responsible for the payment of such
Fees. If Service Provider is requested to continue to provide the
Services pursuant the foregoing sentence, Service Provider will, at
Dana's request, enter into good faith negotiations with such entity,
unit or purchaser with respect to an agreement regarding the payment
of such Fees.
(D) Service Provider will, at no additional cost to ▇▇▇▇ (to the extent
such assistance and information can be provided using the personnel
resources Service Provider is then using to provide the Services
without adversely affecting its ability to provide the Services and
meet the Service Levels), provide to ▇▇▇▇ all reasonable assistance
and information as may be necessary, in the opinion of ▇▇▇▇, where
▇▇▇▇ indicates that it is considering or intends a Restructure,
including:
(1) responding promptly to requests for information relating to
the Services and Fees for the Services;
(2) if requested by ▇▇▇▇, assisting in discussions with third
parties relating to any equipment, licenses or contracts
relevant to the proposed New Entity;
(3) providing acquisition support (including assessments,
transition planning and migration support);
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(4) cooperating in good faith with ▇▇▇▇ in relation to the
Restructure;
(5) providing any Termination Assistance Services that may be
necessary in the circumstances in accordance with Article 27;
and
(6) such other assistance as may be necessary or reasonable at the
time.
3.3 Right to Change Service Volumes; Variable Fees.
(A) During the Term and the Termination Assistance Period, ▇▇▇▇ ▇▇▇ from
time to time increase or decrease service volumes within the
Services, including by adding or removing members of the ▇▇▇▇ Group
Companies or locations, by giving Service Provider ten days' notice
thereof. Such change in Services volumes will be handled in
accordance with the Additional Resource Charge and Reduced Resource
Charge methodology, and Minimum Revenue Commitment requirement as
set forth in Section 3.5(C) and Schedule 6 (Fees). Such notice
provision does not apply to ordinary fluctuations in service volumes
in the normal course of business.
(B) To the extent that such increased or decreased service volumes are
within the Services and parameters associated with Variable Fees,
then the Fees for such Services will be adjusted in accordance with
the Variable Fees defined in Schedule 6 (Fees).
3.4 Governmental Approvals and Consents.
(A) Service Provider will, at its own expense, (1) obtain and maintain
all Service Provider Governmental Approvals, (2) obtain, maintain
and comply all of the Service Provider Consents and (3) adhere to
Dana's instructions in order to comply with the ▇▇▇▇ Consents.
(B) ▇▇▇▇ will, at its own expense, (1) obtain and maintain all ▇▇▇▇
Governmental Approvals and (2) obtain, maintain and comply with the
▇▇▇▇ Consents.
(C) Each Party will cooperate with the other Party, as requested, in the
other Party's obtaining Governmental Approvals and Consents that
such other Party is required to obtain under this Section.
3.5 No Exclusivity; Insourcing.
(A) Nothing in this Agreement requires ▇▇▇▇ to purchase any of the
Services from Service Provider. ▇▇▇▇ ▇▇▇ obtain services similar to
the Services from a third party or third parties in Dana's sole
discretion or perform such Services internally subject to the
Minimum Revenue Commitment set forth in Section 3.5(C) and Schedule
6 (Fees).
(B) ▇▇▇▇ will not be obligated to obtain any of the Services from
Service Provider with respect to any additional entity or business
unit, including an
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entity or business unit acquired by ▇▇▇▇. However, ▇▇▇▇ will have
the option to direct Service Provider to provide Services under and
in accordance with the terms of this Agreement with respect to any
such additional entity or business unit and such Services will be
chargeable in accordance with Schedule 6 (Fees). If such additional
entity or business unit has an agreement with Service Provider for
human resource management or administration services at the time of
such acquisition, Service Provider will not impose any termination
fees on ▇▇▇▇ or such entity in connection with the termination of
such agreement but will add any remaining termination fees under
such agreement to the applicable years of Termination Fees under
this Agreement.
(C) Upon at least 45 days' notice to Service Provider, ▇▇▇▇ ▇▇▇ insource
or obtain from a third party any portion of the Services. No
termination fee will be payable by ▇▇▇▇ in connection with any
insourcing or resourcing under this subsection provided such action
does not reduce Service Provider's anticipated revenue under this
Agreement below the Minimum Revenue Commitment defined in Schedule 6
(Fees). Upon Dana's exercise of any of its rights under this
subsection, the Fees will be adjusted in accordance with Schedule 6
(Fees), based upon the scope of the Services ▇▇▇▇ will continue to
receive thereafter. This subsection (C) does not apply to changes in
service volumes that are governed by Section 3.3. Furthermore, the
notice requirement of this subsection does not apply to changes in
the Services during the Termination Assistance Period.
(D) Service Provider will provide ▇▇▇▇ with information related to the
Services that ▇▇▇▇ reasonably requests during the Term to enable
▇▇▇▇ to draft a request for proposal relating to the Services and to
provide due diligence information for recipients of such request for
proposal, even if Service Provider is not one of the recipients of
the request for proposal. This provision does not require Service
Provider to disclose or permit disclosure of any Service Provider
Confidential Information to any Service Provider Competitor.
3.6 Knowledge Sharing. At least once every Contract Year, or on request upon
at least 30 days' prior notice from ▇▇▇▇, Service Provider will meet with
representatives of ▇▇▇▇ in order to (A) explain how the Services are
provided, (B) explain how the Service Provider Systems work and should be
operated and (C) provide such training and documentation as ▇▇▇▇ ▇▇▇
require for ▇▇▇▇ to (1) provide services that interact with or interface
with the Services and (2) understand and operate the Service Provider
Systems and understand and provide the Services after the expiration or
termination of this Agreement.
3.7 Compliance with Internal IT Standards. Service Provider will comply with
Dana's information management technical architecture and product
standards, as such may be modified by ▇▇▇▇ from time to time during the
Term. Dana's information management technical architecture and product
standards are, as of the Effective Date, as set forth in Schedule 15 (▇▇▇▇
Technology Standards). ▇▇▇▇ remains responsible for promulgation,
interpretation and distribution of the ▇▇▇▇ Technology Standards.
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3.8 Reports. Service Provider will provide to ▇▇▇▇, in a form acceptable to
▇▇▇▇, the reports set forth in Schedule 7 (Reports), including appropriate
and accurate asset inventory capture and management reports.
3.9 Procurement. At Dana's request and in accordance with the Policies and
Procedures Manual, Service Provider will obtain on behalf of ▇▇▇▇
equipment, software and services to be used by ▇▇▇▇ in connection with its
receipt or use of the Services. ▇▇▇▇ will pay to Service Provider, or the
third-party supplier, lessor or licensor, as applicable, the purchase
price, leasing fees or license fees, as applicable, due for such
equipment, software or services.
ARTICLE 4. TRANSFORMATION SERVICES
4.1 Transformation Services.
(A) Beginning on the Effective Date, Service Provider will perform all
functions and services (except those responsibilities designated as
▇▇▇▇ responsibilities in Schedule 3 (Transformation)) (the
"Transformation Services") necessary to accomplish the migration of
Dana's human resource management and administration operations and
capabilities from ▇▇▇▇ to Service Provider, and thereafter to
undertake the transformation of such human resource management and
administration processes and systems, as described in Schedule 3
(Transformation) (the "Transformation").
(B) The Transformation will be implemented in staggered phases with
overlapping timeframes as to each of the Service function groups or
geographic areas specified in Schedule 3 (Transformation) (each
group or area, a "Phased Service Component"). The Transformation of
each Phased Service Component will be completed on or before the
date set forth for such Phased Service Component in Schedule 3
(Transformation) (each, a "Transformation Date"). ▇▇▇▇ will perform
those responsibilities designated as ▇▇▇▇ responsibilities in
Schedule 3 (Transformation) in accordance with the Transformation
Plan.
(C) Service Provider will perform the Transformation Services in
accordance with Schedule 3 (Transformation) without causing a
material disruption to Dana's business.
(D) Until the completion of the Transformation Services, each Party will
update the other Party regarding the status of the Transformation
Services as often as may be reasonably requested by such other
Party, but in any event no less frequently than weekly.
4.2 Completion and Acceptance of Transformation Services.
(A) The Transformation of each Phased Service Component will not be
complete until Service Provider has successfully completed the
Transformation Services applicable to such Phased Service Component
(in accordance with the process set
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forth in the Transformation Plan) and acceptance takes place in
accordance with this Section.
(B) Subject to the Change Control Procedures, from time to time, and
without affecting Dana's right to Deliverable Credits or prejudicing
Dana's right to seek other remedies, ▇▇▇▇ ▇▇▇ postpone the
Transformation Date for one or more Phased Service Components or
change the order of implementation of the Phased Service Components.
(C) Upon successful completion of the Transformation as to each of the
Phased Service Components (i.e., the completion of the last
milestone in the Transformation Plan for such Phased Service
Component), Service Provider will convene a meeting with the ▇▇▇▇
Relationship Manager in which the Service Provider Relationship
Manager will present in person to the ▇▇▇▇ Relationship Manager
notice of successful completion of the Transformation as to such
Phased Service Component as specified in the Transformation Plan.
▇▇▇▇ will, within 10 business days after presentation of such
notice, notify Service Provider whether it accepts or rejects such
Transformation Services as complete. If ▇▇▇▇ does not notify Service
Provider within such 10-day period, the Transformation will be
deemed complete as to such Phased Service Component the day after
such 10-business-day period has expired.
(D) If Service Provider has not successfully completed the
Transformation of a Phased Service Component by the Transformation
Date specified therefor in the Transformation Plan, without
affecting Dana's right to Deliverable Credits or prejudicing Dana's
right to seek other remedies, ▇▇▇▇ ▇▇▇:
(1) postpone the applicable Transformation Date, in which case (a)
Service Provider will submit a plan to ▇▇▇▇ for Dana's
approval that sets forth how and when Transformation of any
incomplete parts of the Phased Service Component will be
completed and (b) once ▇▇▇▇ has approved the plan, Service
Provider will execute such Transformation in accordance with
the plan; or
(2) notify Service Provider that ▇▇▇▇ accepts the Transformation
of such Phased Service Component as complete.
ARTICLE 5. PROJECTS AND NEW SERVICES
5.1 Existing Projects. Service Provider will perform each Project set forth in
Schedule 10 (Existing Projects), completing all Project Milestones and
providing all Deliverables in accordance with the applicable Work Order.
If the Fees for any such existing Project are based on time and materials,
then the Project rates set forth in Schedule 6 (Fees) will apply to such
Project.
5.2 Projects. From time to time during the Term, ▇▇▇▇ ▇▇▇ engage Service
Provider to perform a Project in accordance with the Project work order
set forth in Schedule 22 (Form of Work Order). Service Provider will
comply with Schedule 4 (Governance) and
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perform each Project, complete all Project Milestones and provide all
Deliverables in accordance with the Work Order.
5.3 New Services.
(A) From time to time during the Term, ▇▇▇▇ ▇▇▇ wish to add one or more
ongoing New Services (contrasted with Projects, which are
non-recurring) to the scope of the Services. ▇▇▇▇ will provide
Service Provider with a description of such New Service setting
forth the services, functions and responsibilities constituting the
New Service.
(B) Service Provider will prepare a proposal to ▇▇▇▇ setting forth:
(1) how it would perform the New Service;
(2) the Fees for the New Service, including terms and conditions
regarding any Variable Fees;
(3) when appropriate, a transition plan, including a schedule for
commencing the New Service;
(4) New Service Levels and Performance Credits (unless Service
Provider demonstrates to Dana's reasonable satisfaction that
Performance Credits should not be applicable) for the New
Service;
(5) Key Personnel (unless Service Provider demonstrates to Dana's
reasonable satisfaction that additional Key Personnel are not
necessary) for the New Service;
(6) when appropriate, a resource model for the New Service;
(7) when appropriate, a description of any new Software or
Equipment to be provided by Service Provider in connection
with the New Service;
(8) when appropriate, the Software and Equipment and run-time
requirements necessary to develop and operate any new
Software;
(9) a description of the human resources necessary to provide the
New Service;
(10) when appropriate, a list of any existing Software or Equipment
included in or to be used in connection with the New Service;
(11) when appropriate, acceptance test criteria and procedures for
any new Software or any products, packages or components of
the New Service;
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(12) an outline of a Disengagement Plan for the New Service, or an
update or supplement to the then current Disengagement Plan
for the Services, which will be prepared following the
procedures set forth in Section 27.1;
(13) when appropriate, a plan to update or supplement to the then
current disaster recovery plan and Policies and Procedures
Manual for the New Service; and
(14) any other information related to the New Service requested by
▇▇▇▇.
(C) Pricing of a New Service will be agreed and will be consistent with
the then current mechanisms in this Agreement. In any event, Service
Provider's pricing of the New Service will be no more than the fees
Service Provider generally charges similar customers for similar
services. The price for such New Service will also take into account
resources and expenses of Service Provider for then-existing
Services that would no longer be required if the New Service were
implemented.
(D) ▇▇▇▇ will review Service Provider's proposal and may request
changes. Service Provider will consider and the Parties will
negotiate in good faith any such requested changes. Once the
proposal is agreed, ▇▇▇▇ will prepare a New Service Schedule
incorporating the agreed proposal.
(E) Once both Parties agree upon the New Service Schedule, the New
Service will form part of the Services and the New Service Schedule
will be added to this Agreement.
(F) ▇▇▇▇ will not be obligated to pay for any New Service or any other
service that falls outside the scope of this Section unless ▇▇▇▇ has
approved the service in accordance with this Section.
5.4 Third Party Services. Notwithstanding any request made to Service Provider
by ▇▇▇▇ under Section 5.2 or Section 5.3 or any other provision in this
Agreement, ▇▇▇▇ ▇▇▇ contract with a third party to perform any Project or
New Service. Upon Dana's request, Service Provider will assist ▇▇▇▇ in
identifying qualified third-party service providers to provide such
Project or New Service, if Service Provider is unwilling or unable to
provide such Project or New Service.
5.5 Cooperation. To the extent that ▇▇▇▇ performs any services itself or
retains a third party to do so, Service Provider will, to the extent
reasonably necessary for ▇▇▇▇ or such third party to perform such services
or to interface with the Services and, if such third party will have
access to Confidential Information of Service Provider, subject to such
third party executing a confidentiality agreement in the form set forth in
Schedule 13 (Form of Confidentiality Agreement):
(A) cooperate with third parties and ▇▇▇▇, including by providing access
to design characteristics of Software and Equipment and related data
to the extent required to facilitate interoperability;
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(B) provide any information regarding the operating environment, system
constraints, protocol, interfaces, architecture and other operating
parameters reasonably required by ▇▇▇▇ or the third party to perform
the services;
(C) provide any reasonable interface resources (including Equipment or
Software) necessary to enable Equipment to interface or be
compatible with the Retained Systems;
(D) use commercially reasonable efforts to ensure that there is no
degradation in the provision of the Services caused by adjustments
made by Service Provider transferring services to a third party or
to ▇▇▇▇; and
(E) agree on procedures with ▇▇▇▇ and any third parties providing
services to ▇▇▇▇ for the division of responsibilities in relation to
services and functions that may overlap between Service Provider and
the third party.
Service Provider will provide such cooperation, information and resources at no
additional cost to ▇▇▇▇, unless Service Provider notifies ▇▇▇▇, in advance, that
it cannot perform such functions using the personnel resources Service Provider
is then using to provide the Services without adversely affecting its ability to
provide the Services and meet the Service Levels.
ARTICLE 6. SERVICE LEVELS
6.1 Service Levels. Service Provider will perform the Services in accordance
with the Service Levels set forth in Schedule 5 (Service Levels and
Performance Credits). Service Provider will provide all Services without
expressly defined Service Levels at service levels that equal or exceed
the level of service being provided by ▇▇▇▇ before the Commencement Date.
6.2 New Service Levels. Service Provider will perform any New Service in
accordance with the New Service Levels applicable to such New Service.
6.3 Adjustment of Service Levels.
(A) The Lead Executive Team (1) will review the Service Levels for the
preceding 12 months during the last calendar quarter of every
Contract Year and (2) with respect to those Service Levels that
require periodic adjustment under Schedule 5 (Service Levels and
Performance Credits) or the applicable New Service Schedule or Work
Order or are no longer appropriate because of an increase, decrease
or change to the Services, will adjust the Service Levels for the
subsequent Contract Year in accordance with Schedule 5 (Service
Levels and Performance Credits). In addition, either Party may, at
any time upon notice to the other Party, initiate negotiations to
review and, upon agreement by the Lead Executive Team, adjust a
Service Level that such Party in good faith believes is
inappropriate at the time.
(B) ▇▇▇▇ ▇▇▇, from time to time, in accordance with Schedule 5 (Service
Levels and Performance Credits), change the Service Levels to
reflect its changing business needs, including adding or removing a
Service Level. If Service Provider can
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demonstrate to Dana's reasonable satisfaction that such new Service
Level will materially increase Service Provider's cost of performing
the Services in accordance with the new Service Level, ▇▇▇▇ ▇▇▇ only
add that new Service Level if:
(1) Service Provider agrees; or
(2) Service Provider does not agree, but:
(a) ▇▇▇▇ removes an existing Service Level at the same time
as introducing the new Service Level and the Parties
agree that the aggregate cost of providing the Services
in accordance with the new Service Level plus the cost
of measuring and reporting on such new Service Level is
not materially higher than the aggregate cost of
providing the Services under the existing Service Level
plus the cost of measuring and reporting on the existing
Service Level; or
(b) ▇▇▇▇ agrees to pay Service Provider for its incremental
cost of providing the Services under the new Service
Level plus the cost of measuring and reporting on the
new Service Level.
Any disputes about such incremental cost will be subject to the
dispute resolution provisions of Schedule 4 (Governance) and this
Agreement.
6.4 Measurement and Monitoring Tools.
(A) As of each Transformation Date (or other date specified in Schedule
5 (Service Levels and Performance Credits) with respect to any
Service Level), Service Provider will implement the measurement and
monitoring tools and procedures required to measure and report (as
contemplated by Schedule 5 (Service Levels and Performance Credits))
Service Provider's performance of the Services against the
applicable Service Levels. Such measurement and monitoring and
procedures will (1) permit reporting at a level of detail specified
by ▇▇▇▇ that is sufficient to verify compliance with the Service
Levels and (2) be subject to audit by ▇▇▇▇ or its designee.
(B) Service Provider will provide ▇▇▇▇ with on-line access to such
measurement and monitoring tools and information, so that ▇▇▇▇ is
able to access the same information as soon as it is available
on-line to Service Provider.
(C) In addition to on-line access to such measurement and monitoring
tools and information, Service Provider will provide ▇▇▇▇ with
periodic reports on Service Provider's compliance with the Service
Levels as set forth in Schedule 5 (Service Levels and Performance
Credits).
(D) In addition to on-line access to such measurement and monitoring
tools and information and such periodic reports, Service Provider
will provide ▇▇▇▇ and its
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designees access to and information concerning such measurement and
monitoring tools and procedures upon request, for inspection and
verification purposes.
6.5 Root-Cause Analysis.
(A) With respect to Service Provider's failure to provide the Services
in accordance with the Service Levels, Service Provider will (1)
promptly investigate, perform a root cause analysis on the failure
in accordance with Schedule 4 (Governance), identify the problem
causing the failure and report to ▇▇▇▇, (2) correct the problem as
soon as practicable and resume meeting the Service Levels, (3)
advise ▇▇▇▇ of the status of the problem at stages determined by
▇▇▇▇ and (4) demonstrate to ▇▇▇▇ that all reasonable action has been
taken to prevent any recurrence of such default or failure.
(B) Service Provider will, at any time at which Service Provider
anticipates that it will fail to meet a Service Level, advise ▇▇▇▇
of the status of the problem at time intervals determined by ▇▇▇▇.
6.6 Continuous Improvement and Best Practices. Service Provider will, on a
continuous basis, identify ways to improve the Service Levels. Service
Provider will, from time to time, include updates with respect to such
improvements in the reports provided to ▇▇▇▇ under Section 3.8.
6.7 Performance Credits.
(A) In the event of a failure to provide the Services in accordance with
the applicable Critical Service Levels, Service Provider will incur
the Performance Credits identified in and according to the terms set
forth in Schedule 5 (Service Levels and Performance Credits) or a
New Service Schedule.
(B) Performance Credits will be allocated among the Critical Service
Levels and calculated in accordance with the procedure set forth in
Schedule 5 (Service Levels and Performance Credits). ▇▇▇▇ ▇▇▇ from
time to time reallocate the Performance Credit percentages assigned
to the Critical Service Levels as set forth in Schedule 5 (Service
Levels and Performance Credits).
(C) The Performance Credits will not limit Dana's right to recover, in
accordance with this Agreement, other damages incurred by ▇▇▇▇ as a
result of a Service Level failure.
(D) In addition to Dana's right to receive Performance Credits and any
damages to which ▇▇▇▇ ▇▇▇ be entitled for a Service Level default,
▇▇▇▇ ▇▇▇ terminate this Agreement for certain Service Level defaults
as set forth in Section 25.6.
(E) Nothing in this Section will be deemed to limit or obviate Dana's
right to terminate this Agreement under Section 25.4.
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6.8 Deliverable Credits.
(A) Deliverable Credits apply to:
(1) Critical Deliverables as specified in this Agreement;
(2) Critical Deliverables specified in the Transformation Plan;
and
(3) such other Critical Deliverables (including Project milestones
set forth in Work Orders) as may be agreed to by the Parties
from time to time.
(B) Deliverable Credits for certain Critical Deliverables are specified
in this Agreement or its Schedules or, in the case of Projects, in
the Work Order for the Project. Amounts for other Critical
Deliverables required during the Term will be agreed on a
case-by-case basis.
(C) A Deliverable Credit payable for a Critical Deliverable earned in a
particular month will be credited by Service Provider to ▇▇▇▇ on the
next invoice.
(D) Deliverable Credits will not limit Dana's right to recover, in
accordance with this Agreement, other damages incurred by ▇▇▇▇ as a
result of failure to provide Critical Deliverables that are subject
to a Deliverable Credit by the time or in the manner agreed.
(E) Nothing in this Section will be deemed to limit or obviate Dana's
right to terminate this Agreement under Section 25.4.
6.9 Performance Information. The raw data and detailed supporting information
and reports relating to Service Levels and performance ("Performance
Information") will be Confidential Information of both Parties; provided
that ▇▇▇▇ ▇▇▇ disclose the Performance Information in connection with
obtaining a successor service provider for the Services and Service
Provider may disclose the Performance Information in a manner that, if
aggregated with performance information from its other customers, does not
identify (or enable the identification of) ▇▇▇▇ as the recipient of the
applicable Services. Service Provider will provide material containing the
Performance Information to ▇▇▇▇ promptly on request.
6.10 Customer Satisfaction Surveys. Service Provider will conduct customer
satisfaction surveys in accordance with this Section 6.10 and Schedule 21
(Customer Satisfaction Surveys).
(A) Within 90 days after the Effective Date, Service Provider will
select an independent third party and finalize a process for
conducting customer satisfaction surveys, both subject to Dana's
prior approval. The selected third party will conduct a baseline
customer satisfaction survey within such 90-day period.
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(B) Additional customer satisfaction surveys will be performed at the
times specified in, and otherwise in accordance with, Schedule 21
(Customer Satisfaction Surveys). Such surveys may be performed by
Service Provider or, at Dana's option, an independent third party.
(C) Increasing measures of customer satisfaction will be used by Service
Provider as a key performance factor in determining the incentive
compensation of Key Personnel and such other Project Staff as ▇▇▇▇
▇▇▇ reasonably request.
(D) Service Provider will be responsible for all costs associated with
conducting customer satisfaction surveys under this Section 6.10 and
Schedule 21 (Customer Satisfaction Surveys).
ARTICLE 7. TECHNOLOGY
7.1 Retained Systems and Retained Processes.
(A) Service Provider will use commercially reasonable efforts to ensure
that (1) in providing the Services it does not by any act or
omission adversely affect or alter the operation, functionality or
technical environment of Dana's Retained Systems and Retained
Processes without the consent of ▇▇▇▇; and (2) Systems and processes
used to provide the Services interface and integrate with the
current Retained Systems and Retained Processes as of the Effective
Date. Upon a change to the Retained Systems and Retains Processes,
Service Provider will make changes to its Systems and Services as
necessary to maintain such interfaces and integration at no
additional charge unless Service Provider notifies ▇▇▇▇, in advance,
that it cannot make such changes using the personnel resources
Service Provider is then using to provide the Services without
adversely affecting its ability to provide the Services and meet the
Service Levels.
(B) As necessary for Service Provider to perform the Services and comply
with its obligations under this Section, the Parties will cooperate
in good faith to keep each other informed about all aspects of the
existing and future Retained Systems and Retained Processes. ▇▇▇▇
will provide documentation, information and other cooperation
regarding any existing and future Retained Systems and Retained
Processes, as reasonably necessary for Service Provider to perform
the Services and comply with this Section. ▇▇▇▇ will also provide
training with respect to any Retained Systems and Retained Processes
that are proprietary to ▇▇▇▇ as reasonably required by Service
Provider to comply with its obligations under this Section.
(C) Service Provider will provide ▇▇▇▇ on request with services in
relation to Retained Systems affected by the Services, including
liaising with ▇▇▇▇, its outsourcing partners or third parties on the
impact of any alterations to such Retained Systems and vice versa.
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7.2 Process and Technology Evolution.
(A) Service Provider acknowledges that Dana's business model and the
human resource management and administration processes employed
throughout the ▇▇▇▇ Group will continue to evolve over the Term and,
at a minimum, the Parties will collaborate to ensure that the
technology used to perform the Services will remain consistent with
the ▇▇▇▇ Group Companies' then current business and human resource
objectives and competitive needs. Service Provider will refresh
Service Provider owned Equipment and Service Provider licensed
Software, and ▇▇▇▇ licensed software for Peoplesoft from time to
time during the Term as necessary to maintain all applicable Service
Levels. Service Provider will upgrade the Peoplesoft software twice
during the Term with the Peoplesoft version specified by ▇▇▇▇.
Service Provider will give ▇▇▇▇ reasonable prior notice of any
significant changes associated with refresh and ▇▇▇▇ ▇▇▇ waive any
such changes that may involve risk to Dana's business, increased
Fees or other costs to ▇▇▇▇.
(B) Service Provider will continually introduce and implement Technology
Evolution to improve the quality and cost effectiveness of the
Services and to keep pace with technological advancements or
improvements throughout the Term, which may include implementing
proven technology or processes that Service Provider is using in
similar environments anywhere in the world or are consistent with
industry best practices. In implementing any new technology or
process under this subsection (B), Service Provider will obtain any
▇▇▇▇ approvals required by this Agreement.
(C) Subject to any ▇▇▇▇ approvals required by this Agreement, Service
Provider, without increasing the Fees, will cause the Services to
evolve and to be modified, enhanced, supplemented and replaced as
necessary for the Services to keep pace with improvements in
practices and methodologies for the delivery of human resource
management and administration services and to support Dana's efforts
to maintain competitiveness in the markets in which it competes.
(D) In addition to Service Provider's obligations under subsection (B)
and subsection (C), Service Provider will (1) monitor, analyze, and
report to ▇▇▇▇ annually on new technologies, practices and
methodologies and emerging trends in the field of human resource
management and administration services; (2) if requested by ▇▇▇▇,
demonstrate how Service Provider would integrate the new
technologies, practices or methodologies into the Services and what
effect (if any) the integration would have on the direction of
Dana's then current strategy; and (3) identify and, with Dana's
approval, implement new technologies, practices and methodologies
that are intended (a) to improve the efficiency and effectiveness of
the Services (including cost savings), (b) to result in cost savings
to the ▇▇▇▇ Group, (c) to enhance the ▇▇▇▇ Group Companies' ability
to conduct their business and serve their employees or (d) to
achieve Dana's business objectives faster or more efficiently than
the then current strategies.
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ARTICLE 8. INTERNATIONAL SERVICES
8.1 Worldwide Agreement. In executing this Agreement ▇▇▇▇ engages Service
Provider for the provision of Services within the United States and for
the benefit of selected non-US Affiliates of ▇▇▇▇. The Parties agree to
cooperate in good faith to effectuate any changes in terms necessary as a
result of any legally mandated consultation process with employees.
8.2 Assignment. Either Party may assign its rights and delegate its
obligations under this Agreement, in whole or in part, to one or more
Affiliates without the consent of the other Party (each such Affiliate an
"Assignee"), provided that the assigning Party shall remain responsible to
the other Party for the assignee's performance. The assigning Party shall
provide the other with prompt notice of such assignment. To the extent
Service Provider assigns its rights and delegates its obligations under
the Agreement with respect to Services performed in a specific country,
such Affiliate may invoice Dana's local Affiliate for the Fees associated
with the Services performed in that country. Alternatively, ▇▇▇▇ ▇▇▇
direct such Assignee to send such invoice to a designated ▇▇▇▇ Affiliate
in such country.
8.3 Local Country Agreements. In order to conform to Laws and practices
outside the United States, ▇▇▇▇ or selected ▇▇▇▇ Affiliates and Service
Provider or Affiliates of Service Provider will, prior to Service Provider
providing any Services in countries outside the United States, enter into
mutually agreeable local country agreements with respect to countries
outside the United States (each a "Local Country Agreement"). Each local
Country Agreement will contain, as applicable:
(A) variations to the terms and conditions of this Agreement required by
Local Law;
(B) human resource provisions required by Local Law or as a result of a
consultation process with employees concerning the transfer of
Transferred Employees to Service Provider; and
(C) lists of Transferred Employees to be transferred to Service
Provider, ▇▇▇▇ contracts to be assigned to Service Provider or
managed by Service Provider, variations in the scope of Services or
manner in which Services are provided, applicable billing practices
(which will otherwise be presumed to be between local Affiliates),
and such other matters as are agreed by the Parties.
ARTICLE 9. CONTRACT ADMINISTRATION
9.1 Assigned Agreements. The Assigned Agreements will be, as of the Effective
Date or such later date as may be specified for an Assigned Agreement in
Schedule 23 (Assigned Agreements and Managed Agreements) (the "Assigned
Agreement Effective Date"), assigned to Service Provider. Effective upon
the applicable Assigned Agreement Effective Date, Service Provider will
assume all responsibility for each Assigned Agreement. ▇▇▇▇ will retain
responsibility for all obligations with respect to the Assigned Agreements
before the applicable Assigned Agreement Effective Date. From and after
the applicable Assigned Agreement Effective Date, Service Provider may, to
the
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extent permitted by the Assigned Agreements, renew, modify, terminate
or cancel, or request or grant any consents or waivers under, any such
Assigned Agreements; provided that Service Provider will remain
responsible for all Services to ▇▇▇▇ that are provided, related to or
supported by all such Assigned Agreements, regardless of any such renewal,
modification, termination, cancellation, consent or waiver. Any fees or
charges imposed upon ▇▇▇▇ in connection with any modification, termination
or cancellation of, or consent or waiver under, the Assigned Agreements
obtained or given after the Assigned Agreement Effective Date will be paid
by Service Provider.
9.2 Assigned Agreement Invoices. Service Provider will (1) pay the invoices
submitted by third parties in connection with the Assigned Agreements
allocable to the period commencing on the applicable Assigned Agreement
Effective Date and (2) be responsible for any late fees with respect to
such third-party invoices (except for periods before the Assigned
Agreement Effective Date) unless, with respect to any such invoice that
▇▇▇▇ receives in a timely manner from a third party, ▇▇▇▇ fails to forward
such invoice to Service Provider for payment within a reasonable period of
time before the date such invoice is due.
9.3 Managed Agreements. From and after the Effective Date or such later date
as may be specified for a Managed Agreement in Schedule 23 (Assigned
Agreements and Managed Agreements) (the "Managed Agreement Effective
Date"), Service Provider will, on behalf of ▇▇▇▇ and ▇▇▇▇ Affiliates,
manage, administer and maintain each Managed Agreement. Service Provider
may not renew, modify, terminate or cancel, or request or grant any
consents or waivers under, any Managed Agreements without the prior
written consent of ▇▇▇▇. Any fees or charges or other liability or
obligation imposed upon ▇▇▇▇ in connection with any such renewal,
modification, termination or cancellation of, or consent or waiver under,
the Managed Agreements, obtained or given by Service Provider without the
consent of ▇▇▇▇, will be paid or discharged, as applicable, by Service
Provider.
9.4 Managed Agreement Invoices.
(A) Except as otherwise provided herein, ▇▇▇▇ will remain financially
responsible for all amounts payable under Managed Agreements.
(B) Service Provider will (a) receive all Managed Agreement invoices,
(b) review and have the third party correct any errors in any such
Managed Agreement invoices in a timely manner and (c) provided
Service Provider has received the Managed Agreement invoice
sufficiently in advance of the payment due date, submit such Managed
Agreement invoices to ▇▇▇▇ for approval within a reasonable period
of time before the due date or, if a discount for prompt payment is
offered and ▇▇▇▇ notifies Service Provider that ▇▇▇▇ desires to take
advantage of such discount, the date by which ▇▇▇▇ must pay such
Managed Agreement invoice to receive the discount.
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(C) ▇▇▇▇ will not be required to pay Service Provider any amounts in
addition to the Fees, for management, administration, maintenance
and other Services with respect to the Managed Agreements.
(D) If Service Provider fails to submit any Managed Agreement invoice to
▇▇▇▇ for approval within a reasonable period of time before the date
on which the Managed Agreement invoice is due, Service Provider will
be responsible for any late fees incurred by ▇▇▇▇ due to such delay,
unless Service Provider did not receive the invoice far enough in
advance to permit delivery within a reasonable period of time before
such due date.
9.5 Performance Under Managed Agreements. Service Provider will monitor and
manage any service levels or other similar performance terms of the
Managed Agreements and will notify ▇▇▇▇ of any service level failures
under the Managed Agreements. Service Provider will promptly notify ▇▇▇▇
of any breach of, or misuse or fraud in connection with, any Managed
Agreements of which Service Provider becomes aware and will cooperate with
▇▇▇▇ to prevent or stay any such breach, misuse or fraud. To the extent
necessary to enable Service Provider to perform its obligations under this
Agreement with respect to the Managed Agreements, ▇▇▇▇ will promptly
notify Service Provider of any breach of, or misuse or fraud in connection
with, any Managed Agreements of which ▇▇▇▇ becomes aware.
ARTICLE 10. SERVICE LOCATIONS
10.1 Service Locations. The Services will be provided to ▇▇▇▇ from the Service
Locations specified in Schedule 12 (Service Locations) and any other
location for which Service Provider has received Dana's approval, to be
given in Dana's sole discretion. Any incremental expenses incurred by ▇▇▇▇
as a direct result of a relocation to, or use of, any location other than
the Service Locations initially set forth in Schedule 12 (Service
Locations) (unless such relocation is undertaken at Dana's request) will,
at Dana's sole discretion, either be paid by Service Provider or
reimbursed to ▇▇▇▇ by Service Provider. Service Provider and Service
Provider Agents may not provide or market services to a third party from a
location owned or controlled by ▇▇▇▇ without Dana's consent, to be given
in Dana's sole discretion.
10.2 Physical Safety and Security Procedures.
(A) Service Provider will maintain and enforce at the Service Locations
physical safety and security procedures that are at least equal to
industry standards for locations similar to the Service Locations
and any higher standard agreed upon by the Parties.
(B) When providing Services from locations owned or controlled by ▇▇▇▇,
Service Provider will comply with the physical safety and security
procedures that are applicable to such locations as set forth in
Schedule 19 (▇▇▇▇ Policies and Procedures) and as modified from time
to time.
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10.3 Information Security.
(A) Service Provider acknowledges that ▇▇▇▇ has established, and during
the Term may amend, minimum appropriate levels of security for
information residing on ▇▇▇▇ systems and for ▇▇▇▇ Data residing on
the Service Provider Systems.
(B) Dana's information security policies as of the Effective Date are
set forth in Schedule 14 (▇▇▇▇ Information Security Requirements).
▇▇▇▇ ▇▇▇ amend these security policies on 30 days' notice to Service
Provider or such shorter notice period as required in order to
comply with Law, utilizing the Change Control Procedures.
(C) Service Provider will, and will cause each member of the Project
Staff to, comply with Schedule 14 (▇▇▇▇ Information Security
Requirements) at all locations, whether ▇▇▇▇ premises or Service
Provider premises, to which they have access in connection with the
performance of Services hereunder.
(D) If Service Provider or any Service Provider Agent discovers or is
notified of a breach or potential breach of security relating to
▇▇▇▇ Data, Service Provider will immediately (1) notify the ▇▇▇▇
Relationship Manager of such breach or potential breach and (2) if
the applicable ▇▇▇▇ Data was in the possession of Service Provider
or a Service Provider Agent at the time of such breach or potential
breach, Service Provider will (a) investigate and remedy the cause
of the breach or potential breach and (b) provide ▇▇▇▇ with
assurance satisfactory to ▇▇▇▇ that such breach or potential breach
will not recur.
(E) Without limiting the foregoing, Service Provider agrees to
administer adequate safeguards, as determined by ▇▇▇▇, regarding the
transfer of personal data used or accessed in the course of
performing the Services, including any safeguards required under the
1995 EU Privacy Directive as enacted in local jurisdictions, and
will ensure that its agreements with third parties involving the use
or access of such data include such safeguards.
ARTICLE 11. HUMAN RESOURCES
11.1 Human Resources. All terms and conditions relating to the offer of
employment to the Affected Employees, and the employment of the
Transferred Employees, are set forth in Schedule 18 (Human Resources) and,
if applicable, the Local Country Agreements.
ARTICLE 12. PROJECT STAFF
12.1 Project Staff Matters. Schedule 18 (Human Resources) sets forth terms and
conditions regarding the selection, replacement and reassignment of
Project Staff, including Key Personnel, and certain restrictions on the
assignment of Key Personnel to Service Provider accounts with Excluded
Companies.
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12.2 Subcontractors.
(A) Other than subcontracts of $250,000 or less in annual value, Service
Provider will not subcontract any of the Services to a third party
(including to a Service Provider Affiliate) without Dana's prior
consent. Approved subcontractors as of the Effective Date are set
forth in Schedule 11 (Approved Subcontractors).
(B) Regardless of subcontract value, at least 30 days before entering
into a subcontract with a third party to perform any Services under
this Agreement, Service Provider will give ▇▇▇▇ written notice
specifying the identity, qualifications and scope of the Services to
be provided by the proposed subcontractor.
(C) Each subcontract between Service Provider and a third party for the
provision of any Services will provide ▇▇▇▇ with rights and
protections equivalent to those provided by this Agreement,
including with respect to the use, licensing and ownership of
intellectual property, the use of ▇▇▇▇ Resources, audit of Services,
protection of Confidential Information and warranties regarding
Services and Deliverables.
(D) No subcontracting will release Service Provider from its
responsibility for its obligations under this Agreement. Service
Provider will be responsible for the work and activities of each of
the Service Provider Agents and members of the Project Staff
employed by Service Provider Agents, including compliance with the
terms of this Agreement. Service Provider will be responsible for
all payments to its subcontractors.
(E) Service Provider will promptly pay for all services, materials,
Equipment and labor used by Service Provider in providing the
Services and Service Provider will promptly cause any Service
Provider Agent to promptly remove any lien on Dana's premises by
such Service Provider Agent for work performed under this Agreement.
12.3 Conduct of Project Staff.
(A) While at the ▇▇▇▇ premises, Service Provider and Service Provider
Agents will (1) comply with the requests, standard rules and
regulations of ▇▇▇▇ regarding safety and health, personal and
professional conduct (including adhering to general safety practices
or procedures) generally applicable to such ▇▇▇▇ premises, including
those set forth in Schedule 19 (▇▇▇▇ Policies and Procedures) and
(2) otherwise conduct themselves in a businesslike manner.
(B) Service Provider will cause Service Provider Agents and members of
the Project Staff to maintain and enforce the confidentiality
provisions of this Agreement.
(C) If ▇▇▇▇ notifies Service Provider that a particular member of the
Project Staff is not conducting himself or herself in accordance
with this Section, Service Provider will promptly (1) investigate
the matter and take appropriate action,
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which may include (a) removing the applicable person from the
Project Staff and providing ▇▇▇▇ with prompt notice of such removal
and (b) replacing the applicable person with a similarly qualified
individual or (2) take other appropriate disciplinary action to
prevent a recurrence. If ▇▇▇▇ is dissatisfied with Service
Provider's investigation or action or continues to be dissatisfied
with the conduct of a particular member of the Project Staff,
Service Provider will promptly remove the individual from the
Project Staff at Dana's request.
ARTICLE 13. CONTINUED PROVISION OF SERVICES
13.1 Disaster Recovery Plan.
(A) Service Provider will implement and maintain disaster recovery plans
and business continuity plans for Service Provider Service Locations
and Service Provider's business that, at a minimum, address the
matters set forth in Schedule 20 (Disaster Recovery and Business
Continuity Requirements), and support ▇▇▇▇ in their implementation
of ▇▇▇▇ disaster recovery plans and ▇▇▇▇ business continuity plans
for ▇▇▇▇ Service Locations and will comply with Schedule 14 (▇▇▇▇
Information Security Requirements) in connection with such plans.
Service Provider will (1) update and test the operability of any
applicable Service Provider recovery plan annually and upon any
significant change to the Systems or procedures constituting or
affecting the Services, (2) certify to ▇▇▇▇ upon each such test that
each such plan is fully operational and provide ▇▇▇▇ with a summary
of any report regarding the results of such test and (3) implement
each such plan upon the occurrence of a disaster.
(B) Service Provider will reinstate the Services within the time periods
set forth in Schedule 20 (Disaster Recovery and Business Continuity
Requirements) (or if not set forth in Schedule 20, the recovery time
periods set forth in Service Provider's recovery plan) after the
occurrence of a disaster.
(C) In the event of a disaster (as such term is defined in the
applicable recovery plan), Service Provider will not increase its
Fees under this Agreement or charge ▇▇▇▇ any declaration, usage or
other fees in addition to such Fees.
13.2 Force Majeure. If and to the extent that a Party's performance of any of
its obligations under this Agreement is prevented, hindered or delayed by
a cause beyond the reasonable control of such Party, which may include
fire, flood, earthquake, elements of nature or acts of God, acts of war,
terrorism, riots, civil disorders, rebellions or revolutions (each, a
"Force Majeure Event"), and such non-performance, hindrance or delay could
not have been prevented by reasonable precautions, then the
non-performing, hindered or delayed Party will be excused for such
non-performance, hindrance or delay, as applicable, of those obligations
affected by the Force Majeure Event for as long as such Force Majeure
Event continues and such Party continues to use commercially reasonable
efforts to resume performance whenever and to whatever extent possible
without delay, including through the use of alternate sources, workaround
plans or other means. The Party whose performance is prevented, hindered
or delayed by a Force Majeure Event ▇▇▇▇
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immediately notify the other Party of the occurrence of the Force Majeure
Event and describe in reasonable detail the nature of the Force Majeure
Event. The occurrence of a Force Majeure Event does not excuse, limit or
otherwise affect Service Provider's obligation to provide either normal
recovery procedures or any other disaster recovery services described in
Section 13.1, except to the extent the Force Majeure Event prevents
execution of the disaster recovery plan itself. The failures of
subcontractors or third-party providers of services to Service Provider
will not be considered Force Majeure Events.
13.3 Alternate Source. If any Force Majeure Event or disaster prevents, hinders
or delays performance of Services for more than seventy-two (72) hours
after the inception of the Force Majeure Event or disaster, ▇▇▇▇ ▇▇▇
procure such Services from an alternate source and Service Provider will
reimburse ▇▇▇▇ for the reasonable and actual costs and expenses incurred
by ▇▇▇▇ in procuring such Services from an alternate source, to the extent
that those costs and expenses exceed the Fees for such Services for so
long as the delay in performance will continue, but in no event longer
than the earlier of (a) 180 days from the start of such delay, or (b) the
remaining Term, provided that ▇▇▇▇ continues to pay Service Provider for
such Services. If the Force Majeure Event or disaster continues to
prevent, hinder or delay performance of the Services for more than 14
calendar days after the inception of the Force Majeure Event or disaster
or, if a different time period is specified for Service reinstatement in
Schedule 20 (Disaster Recovery and Business Continuity Requirements), such
time period, ▇▇▇▇ ▇▇▇ at its sole discretion, effective as of a date
specified by ▇▇▇▇ in a termination notice to Service Provider, without
observing the cure period required by Section 25.4, (1) terminate any
portion of this Agreement affected by the nonperformance and the Fees will
be equitably adjusted or (2) terminate the entire Agreement without
liability to ▇▇▇▇ except as set forth in Schedule 6 (Fees); provided that,
if Service Provider succeeds in reinstating the Services, ▇▇▇▇ must
exercise such termination rights within 30 days after such reinstatement.
13.4 No Payment for Unperformed Services. If Service Provider fails to provide
the Services in accordance with this Agreement due to the occurrence of a
Force Majeure Event, the Fees will be adjusted in a manner such that ▇▇▇▇
is not responsible for the payment of any Fees for Services that Service
Provider fails to provide.
13.5 Allocation of Resources. Whenever a Force Majeure Event or a disaster
causes Service Provider to allocate limited resources between or among
Service Provider's customers, ▇▇▇▇ will receive at least the same
treatment as other Service Provider customers who are receiving an
allocation of resources. In addition, in no event will Service Provider
redeploy or reassign any Key Personnel to another account in the event of
a Force Majeure Event.
ARTICLE 14. ▇▇▇▇ RESPONSIBILITIES
14.1 ▇▇▇▇ Operational Responsibilities. ▇▇▇▇ will have the operational
responsibilities set forth in Schedule 8 (▇▇▇▇ Operational
Responsibilities and Resources) and, for a Project, set forth in the Work
Order.
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14.2 ▇▇▇▇ Resources. ▇▇▇▇ will make available to Service Provider the
resources, facilities, equipment, furnishings, fixtures and support set
forth in Schedule 8 (▇▇▇▇ Operational Responsibilities and Resources) and,
for a Project, set forth in the Work Order ("▇▇▇▇ Resources") in
accordance with the following provisions:
(A) the terms specified in Schedule 8 (▇▇▇▇ Operational Responsibilities
and Resources) or any other terms agreed between ▇▇▇▇ and Service
Provider in writing from time to time will apply to the ▇▇▇▇
Resources;
(B) Service Provider will comply with any procedures specified in
Schedule 8 (▇▇▇▇ Operational Responsibilities and Resources) in
relation to the ▇▇▇▇ Resources;
(C) except as expressly provided in this Agreement, Service Provider
will use the ▇▇▇▇ Resources for the sole and exclusive purpose of
providing the Services to ▇▇▇▇;
(D) use by Service Provider of facilities that are included in the ▇▇▇▇
Resources does not constitute a leasehold interest in favor of
Service Provider or any of Service Provider's customers;
(E) Service Provider will use the facilities that are included in the
▇▇▇▇ Resources in a reasonably efficient manner, and to the extent
that Service Provider operates such a facility in a manner that
unnecessarily increases facility costs incurred by ▇▇▇▇, ▇▇▇▇
reserves the right to set-off the excess utility costs of such
practices;
(F) Service Provider will (and will ensure that Service Provider Agents)
keep facilities that are included in the ▇▇▇▇ Resources in good
order, not commit or permit waste or damage to such facilities, not
use such facilities for any unlawful purpose or act and comply with
all of Dana's standard policies and procedures as in effect from
time to time as communicated to Service Provider, including
procedures for the physical security of such facilities;
(G) Service Provider will be responsible for damages to, and fines
arising from use of, the ▇▇▇▇ Resources to the extent caused by
Service Provider, its agents, subcontractors, employees or invitees;
(H) Service Provider will permit ▇▇▇▇ and ▇▇▇▇ agents to enter into
those portions of facilities that are included in the ▇▇▇▇ Resources
that are occupied by Project Staff at any time to perform
facility-related services;
(I) Service Provider will not make any improvements or changes involving
structural, mechanical or electrical alterations to facilities that
are included in the ▇▇▇▇ Resources without Dana's approval; and
(J) when any facility that is included in the ▇▇▇▇ Resources is no
longer required for performance of the Services for ▇▇▇▇, Service
Provider will return such facility to ▇▇▇▇ in substantially the same
condition as when Service Provider began using such facilities,
ordinary wear and tear excepted.
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14.3 Management of Issues.
(A) Notwithstanding anything contained in this Article, Service Provider
will proactively manage issues in a manner that ensures all tasks
required to be performed under this Agreement are performed in a
timely manner. Each member of the Project Staff will promptly
escalate an issue if the performance of any such Project Staff
member's obligation is directly impacted by the failure of ▇▇▇▇ to
perform a prerequisite task. Service Provider will not have met its
obligation with respect to the hindered task unless and until the
▇▇▇▇ Relationship Manager (or other relevant Dana team member
identified in Schedule 4 (Governance)) has been notified of such
failure to perform.
(B) Dana's failure to perform any of its stated operational
responsibilities or provide any ▇▇▇▇ Resources will not constitute a
breach of this Agreement or give rise to any right to terminate this
Agreement. If ▇▇▇▇ fails to fulfill any of the responsibilities set
forth in Schedule 8 (▇▇▇▇ Operational Responsibilities and
Resources) or provide any ▇▇▇▇ Resources, Service Provider will be
excused from the performance of its obligations under this Agreement
adversely affected by such failure to the extent and only for so
long as Dana's failure is the direct cause of Service Provider's
non-performance, but only:
(1) if Service Provider promptly notifies the ▇▇▇▇ Relationship
Manager of Dana's failure and if, after notifying the ▇▇▇▇
Relationship Manager, ▇▇▇▇ fails to promptly rectify the
failure; and
(2) with respect to such specific obligations for which no
reasonable workaround exists.
ARTICLE 15. FEES AND PAYMENT
15.1 Fees. In consideration of Service Provider providing the Services under
this Agreement, ▇▇▇▇ will pay to Service Provider:
(A) the Fees set forth in Schedule 6 (Fees);
(B) for Projects, Fees determined in accordance with Schedule 6 (Fees)
and the applicable Work Order; and
(C) for a New Service, the Fees set forth in the applicable New Service
Schedule.
Except as expressly set forth in this Agreement, there will be no charge or Fees
payable by ▇▇▇▇ for Service Provider's performance of its obligations under this
Agreement. Service Provider will extend the Fees to other members of the ▇▇▇▇
Group Companies as requested by ▇▇▇▇.
15.2 Variable Fees. At the end of every month, Service Provider will review the
volume of those Services used by ▇▇▇▇ during the preceding month that, as
designated in Schedule 6 (Fees), are subject to Variable Fees. If the
volume of Dana's use of a Service subject to Variable Fees (1) increases
above the applicable resource baseline set forth in Schedule 6
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(Fees), ▇▇▇▇ will pay Service Provider, in addition to the Fees otherwise
due for such Service, an amount equal to the corresponding Additional
Resource Charge or (2) decreases below the applicable resource baseline
set forth in Schedule 6 (Fees), Service Provider will credit ▇▇▇▇ an
amount equal to the corresponding Reduced Resource Credit. All such
payments and credits will be effected in accordance with Section 15.3.
15.3 Invoices. Invoices will adhere to the provisions of Schedule 6 (Fees).
15.4 [INTENTIONALLY BLANK]
15.5 Refundable Items; Prepaid Expenses. If Service Provider receives during
the Term any refund, credit or other rebate (including deposits) in
connection with any Assigned Agreement, and such refund, credit or other
rebate is attributable to a period before the Assigned Agreement Effective
Date, as applicable, then Service Provider will promptly (1) notify ▇▇▇▇
of such refund, credit or rebate and (2) pay to ▇▇▇▇ the full amount of
such refund, credit or rebate. Service Provider will reimburse ▇▇▇▇ for
all prepaid amounts related to the Services.
15.6 Adjustments to Fees. There will be no periodic adjustments to the Fees
except as expressly set forth in Schedule 6 (Fees).
15.7 Expenses. Except as expressly set forth in Schedule 6 (Fees), all travel
and other costs and expenses relating to the Services are included in the
Fees and will not be charged to or reimbursed by ▇▇▇▇. To the extent that
this Agreement or Schedule 6 (Fees) specifically identifies Pass-Through
Expenses to be paid by ▇▇▇▇, such expenses will be passed through by
Service Provider with no ▇▇▇▇-up. Service Provider will use commercially
reasonable efforts to (1) identify and obtain any Pass-Through Expenses
that a third-party vendor may not provide to Service Provider in a timely
manner, and (2) ensure that all Pass-Through Expenses incurred in each
month will be included in the invoice issued in the following month.
Service Provider will report each month to ▇▇▇▇ on the status of late
third-party vendor invoices and Service Provider's efforts to obtain them.
15.8 Disputed Charges.
(A) ▇▇▇▇ ▇▇▇ withhold payment of any portion of an invoice that it
disputes in good faith, not to exceed *** (the "Withholding Cap").
In addition, ▇▇▇▇ ▇▇▇, in lieu of payment to Service Provider, pay
into an escrow account up to an additional *** in excess of the
Withholding Cap for any portion of an invoice that it disputes in
good faith. Notwithstanding the preceding two sentences, if ▇▇▇▇
disputes in good faith any portion of an invoice relating to a
Project, ▇▇▇▇ ▇▇▇ withhold payment of up to *** for such Project
(the "Project Withholding Cap").
(B) No later than the date on which such withheld Fees or expenses are
due, ▇▇▇▇ will provide Service Provider with a statement specifying
the portion of Fees or expenses being withheld or escrowed and a
reasonably detailed explanation of the reasons for withholding or
escrowing such Fees or expenses.
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(C) Whenever ▇▇▇▇ withholds or escrows payment of a disputed portion of
any invoice, the Parties will negotiate expeditiously and in good
faith to resolve any such disputes in accordance with Schedule 4
(Governance). All amounts held in escrow at the conclusion of the
dispute resolution process will be disbursed to Service Provider or
to ▇▇▇▇, or allocated between them, in accordance with the
resolution.
(D) Payment disputes will not affect Service Provider's obligation to
provide the Services in accordance with the Service Levels or any
other Service Provider obligation under this Agreement.
15.9 Rights of Set-Off. With respect to any amount that (A) should be
reimbursed to ▇▇▇▇ or (B) is otherwise payable to ▇▇▇▇ under this
Agreement, ▇▇▇▇ ▇▇▇ deduct the entire amount owed to ▇▇▇▇ from the Fees or
from the expenses owed by ▇▇▇▇ to Service Provider under this Agreement.
15.10 Unused Credits. Any unused credits against future payments (including
Reduced Resource Credits, Performance Credits and Deliverable Credits)
owed to either Party by the other under this Agreement will be paid to the
applicable Party within 30 days after the expiration or termination of
this Agreement.
15.11 Benchmarking. ▇▇▇▇ ▇▇▇ elect to engage a third party benchmark
organization (the "Benchmarker") to compare the Fees in the aggregate for
some or all of the Services (the "Benchmarked Services") and prices
charged by other top tier service providers for similar services, on an
average total charges basis based on the processes included in the
Benchmarked Services (each such comparison a "Benchmark") pursuant to this
Section. Benchmarking will be governed by the following terms:
(A) The Benchmark process may commence no earlier than ***.
(B) The agreed upon Benchmarkers will be set forth in Schedule 24
(Benchmarkers) as of the Effective Date. The Parties will update
this list as necessary on an annual basis. *** Within *** days of
receipt of such list, ▇▇▇▇ will elect a Benchmarker from such list
and engage such Benchmarker by entering into a *** written agreement
with the Benchmarker that, at a minimum, shall reflect the
requirements set forth in this Section. Notwithstanding the above,
▇▇▇▇ shall not engage any Benchmarker for which the engagement would
result in a
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violation of any applicable laws or regulations or otherwise violate
Dana's then current audit service conflict policies. ***
(C) ▇▇▇▇ shall pay all charges, expenses and costs incurred by the
Benchmarker in performing the benchmarking described in this
Section. The Service Provider will at its sole cost and expenses
cooperate fully with the Benchmarker and provide the data requested
by the Benchmarker relating to the provision of the Services. Only
▇▇▇▇ ▇▇▇ exercise a right to conduct a Benchmark.
(D) Prior to receiving any information from the Parties regarding the
Services or the Fees the Benchmarker shall execute a confidentiality
agreement reasonably satisfactory to both Service Provider and ▇▇▇▇
that at a minimum specifies that the data provided by ▇▇▇▇ and
Service Provider may not be used for any other purpose than
conducting the referenced Benchmark.
(E) It is the intent of the Parties that the Benchmark be a
collaborative process. In this regard, each Party shall cooperate
with reasonable requests by the Benchmarker for any information or
data related to the Agreement to the extent necessary for the
Benchmarker to perform the Benchmark; provided, however, in no event
shall Service Provider be required to provide the Benchmarker with
Service Provider cost data or data relating to other Service
Provider customers.
(F) The Benchmarker shall perform a price-based benchmark, using
reasonably current data, comparing the total Fees for all Services
included, in the aggregate, in the Benchmarked Services, against the
total charges applicable to similar services with respect to the
selected entities in the Representative Sample as such term is
defined below. ***
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(G) For the purposes of this Section:
(1) "Representative Sample" for Benchmarked Services shall mean
***.
(2) "Benchmarked Level" shall mean the average total charges
attributable to the Benchmarked Services based among those
entities comprising the Representative Sample.
(3) Prior to performing the comparison, the Benchmarker shall meet
with the Parties to review and explain its Benchmark
methodology, ***. The Benchmarker shall provide a written
summary of the Benchmark methodology and shall perform the
Benchmark in adherence thereto in all material respects.
(4) The Benchmarker shall deliver the results of the Benchmark in
a written report no later than *** days following its
engagement by ▇▇▇▇ (the "Benchmark Results") to the designated
representatives of the Parties. ***
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(5) *** The report of the Benchmarker including the Benchmark
Results shall be treated as Confidential Information of each
Party.
(6) ***
(7) ***
15.12 Unforeseen Technology Improvements. Service Provider will pass through to
▇▇▇▇ reductions in the cost of delivery of the Services resulting from
significant changes in technology or extraordinary reductions in the costs
of delivering technology services that could not reasonably have been
foreseen as of the Effective Date but that occur during the Term and would
be generally available to other users of similar technology and services.
15.13 Gainsharing. The parties will cooperate in good faith to establish, within
60 days after the Effective Date, mutually-agreeable terms to identify and
equitably share unanticipated cost savings opportunities.
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ARTICLE 16. TAXES
(A) Service Provider will be responsible for any Service Taxes imposed
by any Governmental Authority based on or measured by the cost of
acquiring goods or services used by Service Provider in performing
the Services. Service Provider will assume any and all
responsibility (including the payment of interest and penalty
assessments levied by a Governmental Authority) for failure to remit
a tax that Service Provider is liable to pay under this subsection.
(B) ▇▇▇▇ will be responsible for any Service Taxes imposed by any
Governmental Authority on the provision of the Services as of the
Effective Date. If new or higher Service Taxes become applicable to
the Services after the Effective Date as a result of either Party
moving all or part of its operations to a different jurisdiction
(e.g., Dana's opening a new office or Service Provider relocating
its performance of the Services to a new service center), the Party
initiating such move will be responsible for such new or higher
Service Taxes to the extent they are not recoverable by the other
Party under applicable tax law. If new or higher Service Taxes
become applicable to the Services after the Effective Date for any
other reason (e.g., under changes in Law, but not volume changes)
the Party otherwise responsible for such Service Taxes as set forth
in this Section 16 will be responsible for such new or higher
Service Taxes.
(C) ▇▇▇▇ and Service Provider will each be responsible for any
franchise, privilege, income, gross receipts or business activity
taxes based upon its own gross or net income, net worth or business
activities. Neither Party will be responsible for any real or
personal property taxes assessed on tangible or intangible property
owned or leased by the other Party.
(D) ▇▇▇▇ and Service Provider will each reasonably cooperate with the
other to more accurately determine a Party's tax liability and to
minimize such liability, to the extent legally permissible. ▇▇▇▇ and
Service Provider will each provide and make available to the other
any resale certificates, information regarding out-of-state sales or
use of equipment, materials or services, and any other exemption
certificates or information requested by a Party.
ARTICLE 17. AUDITS
17.1 Service Audits. Upon notice from ▇▇▇▇, Service Provider and Service
Provider Agents will provide ▇▇▇▇, and any Governmental Authority or other
third parties who are not Service Provider Competitors and who are not
hired on a contingency fee basis ("▇▇▇▇ Auditors") with access to and any
assistance that they may require with respect to the Service Locations and
the Service Provider Systems for the purpose of performing audits or
inspections of the Services and the business of ▇▇▇▇ relating to the
Services (excluding other Service Provider customer data and records or
Service Provider's cost data or internal cost analysis), including (1)
audits and examinations required by Governmental Authorities, (2) audit of
Service Provider's compliance with the terms of this Agreement, (3) audit
of Service Provider's operational and security-related procedures with
respect to
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the Services, (4) confirming that control procedures are suitably designed
to provide reasonable assurance that the stated internal control
objectives will be achieved if the procedures operate as designed and (5)
confirming that those control procedures, in fact, operated effectively
and continuously at all times during the audited period. If any audit by
an ▇▇▇▇ Auditor results in Service Provider being notified that Service
Provider or Service Provider Agents are not in compliance with any Law,
audit requirement or other requirement set forth in this Agreement,
Service Provider will, and will cause Service Provider Agents to, promptly
take actions to comply with such Law, audit requirement or other
requirement.
17.2 Fees Audits. Upon notice from ▇▇▇▇, Service Provider will provide ▇▇▇▇ and
▇▇▇▇ Agents with access to such financial records and supporting
documentation as may be requested by ▇▇▇▇. ▇▇▇▇ and ▇▇▇▇ Agents may audit
the Fees charged to ▇▇▇▇ to determine if such Fees are accurate and in
accordance with this Agreement.
(A) If, as a result of such audit, ▇▇▇▇ determines that Service Provider
has overcharged ▇▇▇▇, ▇▇▇▇ will notify Service Provider of the
amount of such overcharge and unless Service Provider disputes the
amount in accordance with the dispute resolution process set forth
in Schedule 4 (Governance), Service Provider will promptly pay to
▇▇▇▇ the amount of the overcharge, plus Interest calculated from the
date of receipt by Service Provider of the overcharged amount until
the date of payment to ▇▇▇▇.
(B) In addition, if any such audit reveals an overcharge to ▇▇▇▇ of five
percent or more during the period audited and Service Provider does
not successfully dispute the amount revealed by such audit in
accordance with the dispute resolution process set forth in Schedule
4 (Governance), Service Provider will, at Dana's option, issue to
▇▇▇▇ a credit against the Fees, or reimburse ▇▇▇▇, for the actual
and reasonable cost of such audit.
17.3 Service Provider Audits.
(A) Service Provider will (1) promptly notify ▇▇▇▇ if the results of any
independent audit or other report of Service Provider's or any Service
Provider Agent's operations relating to the Services, except to the extent
that any such report deals with Service Provider's costing structures (in
which event information about Service Provider's cost structure will be
redacted), indicate (or Service Provider otherwise becomes aware) that any
failure by Service Provider to comply with its obligations under this
Agreement (i) has impacted or reasonably could impact the maintenance of
Dana's financial integrity or internal controls, the accuracy of Dana's
financial, accounting or human resource records and reports; or (ii) has
had, or reasonably could have, any other material adverse impact on the
applicable Services or the impacted business operations of ▇▇▇▇ and (2)
promptly take corrective action to rectify (a) any error identified in any
such report that could reasonably be expected to have an adverse impact on
the Services and (b) any control deficiencies identified in the report.
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(B) Service Provider will have performed, and provide to ▇▇▇▇ by December 31
of each year a copy of, a SAS 70 Type II audit performed by the Service
Provider's independent public accountants on the primary Service Provider
facilities utilized by Service Provider for the provision of the Services.
*** The SAS 70 Type II audit will be performed in accordance with
Statement of Auditing Standards (SAS) 70 "Services Organizations" as
amended by SAS 88 "Services Organizations and Reporting on Consistency"
and as otherwise consistent with U.S. GAAP and Statements of Auditing
Standards on the control procedures used by Service Provider in the
performance of the Services. ***
17.4 Record Retention. Service Provider will comply with Dana's record
retention policies in effect from time to time during the Term as
communicated in writing to Service Provider, and provide ▇▇▇▇ access upon
request to the records, documents and other information required to meet
Dana's audit rights under this Agreement. ▇▇▇▇ will notify Service
Provider of changes in its record retention policies so that Service
Provider can make any necessary changes to the Policies and Procedures
Manual in accordance with the Change Control Procedures.
17.5 Facilities. Service Provider will provide to ▇▇▇▇ Auditors, on Service
Provider's premises (or, if the audit is being performed of a Service
Provider Agent, the Service Provider Agent's premises if necessary),
space, office furnishings (including lockable cabinets), telephone and
facsimile services, utilities and office-related equipment and duplicating
services as such ▇▇▇▇ Auditors may reasonably require to perform the
audits described in this Article.
17.6 General.
(A) In performing audits, ▇▇▇▇ will endeavor to avoid unnecessary
disruption of Service Provider's operations and unnecessary
interference with Service Provider's ability to perform the Services
in accordance with the Service Levels.
(B) Following any audit, Dana's will conduct (in the case of an internal
audit), or request the ▇▇▇▇ Auditors to conduct, an exit conference
with Service Provider to obtain factual concurrence with issues
identified in the review.
(C) ▇▇▇▇ will provide Service Provider with notice at least seventy-two
(72) hours prior to any operational or financial audit by ▇▇▇▇ or
the ▇▇▇▇ Auditors; provided that such notice will be waived if
waiver is required by Law.
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(D) Prior to receiving access to Service Provider Proprietary
Information, the ▇▇▇▇ Auditors (other than government auditors and
examiners) will execute a confidentiality agreement substantially in
the form attached hereto as Schedule 13 (Form of Confidentiality
Agreement).
ARTICLE 18. RELATIONSHIP MANAGEMENT
18.1 Governance Guidelines and Principles. Governance of the Parties'
relationship under this Agreement will follow the guidelines and
principles set forth in Schedule 4 (Governance), as such guidelines and
principles are amended or supplemented by the Parties from time to time
during the Term.
18.2 Responsibilities. Each of ▇▇▇▇ and Service Provider will make management
decisions in a timely manner and perform its responsibilities set forth in
this Agreement.
18.3 ▇▇▇▇ Appointments. ▇▇▇▇ will appoint:
(A) a ▇▇▇▇ Relationship Manager to manage the operation of this
Agreement, in accordance with its terms, for ▇▇▇▇. Wherever Dana's
approval is required under this Agreement, ▇▇▇▇ will only give that
approval through the ▇▇▇▇ Relationship Manager or a duly authorized
delegate of the ▇▇▇▇ Relationship Manager, except as contemplated by
this Article or Schedule 4 (Governance). Service Provider agrees
that it will not rely on the apparent or ostensible authority of any
other Dana personnel in relation to this Agreement, except as
contemplated by this Article or Schedule 4 (Governance); and
(B) a ▇▇▇▇ Operational Executive to manage day-to-day operations.
18.4 Service Provider Appointments. Service Provider will appoint:
(A) a Service Provider Relationship Manager to manage the operation of
this Agreement, in accordance with its terms, for Service Provider.
Wherever Service Provider's approval is required under this
Agreement, Service Provider will only give that approval through
Service Provider Relationship Manager or a duly authorized delegate
of Service Provider Relationship Manager, except as contemplated by
this Article or Schedule 4 (Governance). ▇▇▇▇ agrees that it will
not rely on the apparent or ostensible authority of any other
Project Staff in relation to this Agreement, except as contemplated
by this Article or Schedule 4 (Governance). Service Provider will
ensure that the Service Provider Relationship Manager is the single
point of contact for ▇▇▇▇ for the purposes of this Agreement, has
the authority and will be given the responsibility to perform for
Service Provider each of the tasks referred to in Section 18.5 and
is a full-time employee of Service Provider; and
(B) a Service Provider Operational Executive to manage day-to-day
operations.
18.5 Role of Relationship Managers. The Relationship Managers (A) will meet at
times as set forth in Schedule 4 (Governance) or as otherwise agreed by
the Parties, (B) will review
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and discuss reports submitted by Service Provider, proposed changes to the
Services or any part of this Agreement, any audit or Benchmarking
exercises, the status of individual existing or planned Projects and
financial performance, (C) as contemplated by Schedule 4 (Governance),
will prepare a monthly executive summary report for ▇▇▇▇ and Service
Provider reviewing Service Provider's performance of the Services, (D) may
raise any issues of concern or interest relating to this Agreement and (E)
will work in good faith to resolve any issues of concern in accordance
with the procedures as set forth in Schedule 4 (Governance) and, if they
are unable to resolve any issue, refer the matter to senior management for
resolution in accordance with Section 18.7.
18.6 Senior Executives. At Dana's discretion, the GM, Global HR BTO of Service
Provider will meet with Dana's VP, Human Resources to do any of the
following:
(A) formally review this Agreement and discuss high level relationship
and performance issues; and
(B) discuss the achievement of Dana's business objectives and how
Service Provider is assisting ▇▇▇▇ to achieve those objectives.
18.7 Escalation Procedure for Relationship Issues. The Parties will follow the
escalation procedure set forth in Schedule 4 (Governance) to resolve any
issues concerning this Agreement.
18.8 Executive Level Meeting.
(A) ▇▇▇▇ ▇▇▇ convene a meeting, at Dana's offices, with the VP, Global
Industrial Sector - BTO of Service Provider upon the occurrence of
the following events (an "Executive Level Meeting"):
(1) the customer satisfaction surveys described in Section 6.10
are below the minimum acceptable level to be set forth in
Schedule 5 (Service Levels and Performance Credits); or
(2) Service Provider fails to meet any single Service Level for
any three months out of any rolling six-month period.
(B) Any Executive Level Meeting will take place within 48 hours
after notice by ▇▇▇▇ to Service Provider that it is invoking
this subsection.
18.9 Quarterly Budgeting. Within 90 days after the Effective Date and annually
thereafter, Service Provider will assist ▇▇▇▇ in developing Dana's annual
and quarterly financial objectives and budgets.
18.10 Aligning Project Staff with ▇▇▇▇ Objectives. A key performance measurement
in determining the incentive compensation for each of the Key Personnel,
including the Service Provider Relationship Manager and the Service
Provider Operational Executive, will be based upon mutually agreed
alignment with, and achievement of, increased ▇▇▇▇
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satisfaction with Service Provider's performance of the Services as such
satisfaction will be determined in accordance with Section 6.10.
18.11 Continuity of Services. Service Provider acknowledges that the timely and
complete performance of its obligations under this Agreement is critical
to the business and operations of ▇▇▇▇. Accordingly, in the event of a
dispute between ▇▇▇▇ and Service Provider, subject to Dana's compliance
with Section 15.8, Service Provider will not interrupt its provision of
Services to ▇▇▇▇, refuse to perform any obligations related to
termination, disable any Equipment or Software used to provide Services or
engage in any act or omission that prevents, impedes or reduces in any way
the provision of Services or Dana's ability to conduct its business,
unless and until this Agreement expires or is terminated in accordance
with its terms or until such action has been authorized by the final and
non-appealable judgment of a court of competent jurisdiction.
ARTICLE 19. CONTRACT MANAGEMENT
19.1 Policies and Procedures Manual. No less than 30 days prior to each
Transformation Date for each Phased Service Component Service Provider
will create and deliver to ▇▇▇▇ a draft of the policies and procedures
that apply to the Phased Service Component (collectively, the "Policies
and Procedures Manual"). The final Policies and Procedure Manual will be
delivered no later than 30 days after the Transformation Date. The content
of the Policies and Procedures Manual will be as outlined in Schedule 9
(Outline of Policies and Procedures Manual). Service Provider will
periodically prepare and provide to ▇▇▇▇ updates to such Policies and
Procedures Manual to reflect any changes in the procedures described
therein as soon as practicable after such changes are made; provided that
any changes to the form and scope of the Policies and Procedures Manual
will be agreed upon by ▇▇▇▇ and Service Provider in accordance with the
Change Control Procedures. Service Provider will update the Policies and
Procedures Manual to address changes required by the addition of New
Services.
19.2 Change Control Procedures. The Parties will comply with the Change Control
Procedures set forth in Schedule 4 (Governance). Any change in the manner
in which Services are provided will be subject to the Change Control
Procedures.
ARTICLE 20. PROPRIETARY RIGHTS
20.1 ▇▇▇▇ Software and ▇▇▇▇ Tools.
(A) As between the Parties, ▇▇▇▇ is the exclusive owner of the ▇▇▇▇
Proprietary Software and the ▇▇▇▇ Proprietary Tools and Service
Provider will have no rights or interests in the ▇▇▇▇ Proprietary
Software or the ▇▇▇▇ Proprietary Tools except as set forth in this
Agreement.
(B) ▇▇▇▇ hereby grants to Service Provider, during the Term and the
Termination Assistance Period and solely to provide the Services, a
non-exclusive, non-transferable, limited right to have access to and
(1) Use (and as required to provide the Services, to maintain,
modify, enhance or create derivative works of) the ▇▇▇▇ Proprietary
Software and the ▇▇▇▇ Proprietary Tools, (2) Use (and as
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required to provide the Services, to maintain, modify, enhance or
create derivative works of) the ▇▇▇▇ Third Party Software and the
▇▇▇▇ Third Party Tools, to the extent permissible under the
applicable third-party agreements, and (3) Use (and as required to
provide the Services, to maintain, modify, enhance or create
derivative works of) any Related Documentation in Dana's possession
on or after the Commencement Date, to the extent permissible under
the applicable third-party agreements. Schedule 16 (Software and
Tools) sets forth the ▇▇▇▇ Software and the ▇▇▇▇ Tools that Service
Provider will use to provide the Services as of the Commencement
Date. Service Provider may sublicense, to the extent permissible
under the applicable third-party agreements, to Service Provider
Agents the right to have access to and Use (and as required to
provide the Services, to maintain, modify, enhance or create
derivative works of) the ▇▇▇▇ Software and the ▇▇▇▇ Tools solely to
provide those Services that such Service Provider Agents are
responsible for providing.
20.2 Service Provider Software and Tools.
(A) As between the Parties, Service Provider is the exclusive owner of
the Service Provider Proprietary Software and the Service Provider
Proprietary Tools and the ▇▇▇▇ Group will have no rights or
interests in the Service Provider Proprietary Software or the
Service Provider Proprietary Tools except as set forth in this
Agreement. Schedule 16 (Software and Tools) sets forth the Service
Provider Software and Service Provider Tools that Service Provider
anticipates Service Provider will use to provide the Services as of
the Effective Date.
(B) During the Term and during the Termination Assistance Period,
Service Provider will provide the ▇▇▇▇ Group with such access to the
Service Provider Software and the Service Provider Tools as
necessary or appropriate to enable the ▇▇▇▇ Group Companies to
receive the benefit of the Services.
(C) Service Provider will grant to the ▇▇▇▇ Group Companies, effective
upon the End Date, to the extent necessary for ▇▇▇▇ to achieve
continuity of Service delivery:
(1) a global, perpetual, non-exclusive, non-transferable (except
to Affiliates of ▇▇▇▇ or under a Restructure or Change in
Control of ▇▇▇▇) license to Use, and sublicense, and to permit
a third party to Use solely in connection with providing
services to the ▇▇▇▇ Group, the commercially available Service
Provider Proprietary Software and Service Provider Proprietary
Tools, on Service Provider's customary terms but without
payment of any one-time licensing fees; and
(2) a global, perpetual, non-exclusive, non-transferable (except
to Affiliates of ▇▇▇▇ or under a Restructure or Change in
Control of ▇▇▇▇), fully paid-up license to Use, solely in
connection with providing services to the ▇▇▇▇ Group, Service
Provider Proprietary Software and Service Provider Proprietary
Tools that are not commercially available, on an AS-IS basis.
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(D) Service Provider will grant to the ▇▇▇▇ Group Companies, effective
upon the End Date, to the extent necessary for ▇▇▇▇ to achieve
continuity of Service delivery, a perpetual, non-exclusive license
for ▇▇▇▇ and its designees to Use the Service Provider Third Party
Software and Service Provider Third Party Tools then being used to
provide Services at no additional charge to ▇▇▇▇ (other than the
recurring license or maintenance fees then being paid to the
supplier of such Software or Tools by Service Provider). The license
set forth in this subsection (D) will not apply to any Service
Provider Third Party Software or Service Provider Third Party Tools
to the extent ▇▇▇▇ has consented under subsection (E) below to the
use of such Software and Tools in providing Services after notice
from Service Provider that Service Provider cannot procure
sufficient rights from the supplier to grant the foregoing license.
(E) Before employing any third-party products in providing the Services,
other than the Service Provider Third Party Software and Service
Provider Third Party Tools identified in Schedule 16 (Software and
Tools), Service Provider will to the extent necessary for ▇▇▇▇ to
achieve continuity of Service delivery (1) obtain sufficient rights
from the supplier to grant the licenses set forth in subsection (D)
above; and (2) verify that ▇▇▇▇ and its designees, for the purpose
of providing services to ▇▇▇▇, have the right to purchase ongoing
maintenance and support for such products on commercially reasonable
terms. To the extent that Service Provider is unable to obtain such
rights, Service Provider will only introduce such third-party
products for use in providing the Services with Dana's prior written
consent as to the specific product to be introduced.
20.3 Work Product. Work Product will be owned by ▇▇▇▇. ▇▇▇▇ will have all
right, title and interest, including worldwide ownership of copyrights, in
and to the Work Product and all copies made from them. Service Provider
hereby irrevocably assigns, transfers and conveys, and will cause Service
Provider Agents to assign, transfer and convey, to ▇▇▇▇ without further
consideration all of its and their right, title and interest in and to
such Work Product, including all rights of copyright, in and to such
materials. Service Provider acknowledges, and will cause Service Provider
Agents to acknowledge, that ▇▇▇▇ and the successors and permitted assigns
of ▇▇▇▇ ▇▇▇ obtain and hold in their own name any intellectual property
rights in and to such Work Product. Service Provider agrees to execute,
and will cause Service Provider Agents to execute, any documents or take
any other actions as may reasonably be necessary, or as ▇▇▇▇ ▇▇▇
reasonably request, to perfect Dana's ownership of any such Work Product.
In the case of Work Product constituting Software, Service Provider will
deliver to ▇▇▇▇ a complete copy of the Software source code. With respect
to each disclosure, Service Provider will indicate any features or
concepts that it believes to be new or different. Service Provider retains
a global, perpetual, irrevocable and non-exclusive license to Use, modify
and create derivative works of Code Fragments contained in a Work Product.
A "Code Fragment" means a sub-routine or immaterial portion of its source
code (determined in relation to the functionality of the Work Product as a
whole). Service Provider will not combine Code Fragments to create a
product functionally equivalent to the Work Product containing such Code
Fragments.
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20.4 Interface Information. During the Term of this Agreement, Service Provider
will provide ▇▇▇▇ with appropriate interface information to enable ▇▇▇▇ to
develop or replace any Software used to provide the Services that is not
commercially available. After the termination or expiration of this
Agreement, Service Provider will provide ▇▇▇▇ with appropriate interface
information available from Service Provider to enable ▇▇▇▇ to develop or
replace any Service Provider Software if necessary for ▇▇▇▇ to exercise
any of the rights granted to it under this Agreement.
20.5 Residual Information. Nothing contained in this Agreement will restrict
either Party from using Residual Information; provided that the use does
not (1) infringe or misappropriate any patents or copyrights of the other
Party or any third parties, (2) disclose any Confidential Information that
identifies or may be used to identify the other Party to any third parties
or (3) ***.
ARTICLE 21. DATA
21.1 Ownership of ▇▇▇▇ Data. All ▇▇▇▇ Data is, or will be, and will remain the
property of ▇▇▇▇. Without Dana's approval (in its sole discretion), ▇▇▇▇
Data will not be (A) used by Service Provider or Service Provider Agents
other than in connection with providing the Services, (B) disclosed, sold,
assigned, leased or otherwise provided to third parties by Service
Provider or Service Provider Agents or (C) commercially exploited by or on
behalf of Service Provider or Service Provider Agents. Service Provider
hereby irrevocably assigns, transfers and conveys, and will cause Service
Provider Agents to assign, transfer and convey, to ▇▇▇▇ without further
consideration all of its and their right, title and interest in and to
▇▇▇▇ Data. Upon request by ▇▇▇▇, Service Provider will execute and
deliver, and will cause Service Provider Agents to execute and deliver,
any documents that may be necessary or desirable under any Law to
preserve, or enable ▇▇▇▇ to enforce, its rights with respect to ▇▇▇▇ Data.
21.2 Return of Data. Upon request by ▇▇▇▇ at any time during the Term and upon
expiration or termination of this Agreement, Service Provider will (A)
promptly return to ▇▇▇▇, in the format and on the media reasonably
requested by ▇▇▇▇, all or any part of ▇▇▇▇ Data and (B) erase or destroy
all or any part of ▇▇▇▇ Data in Service Provider's possession, in each
case to the extent so requested by ▇▇▇▇ and as permitted by applicable
Law.
ARTICLE 22. CONFIDENTIALITY
22.1 Use and Disclosure. All Confidential Information relating to a Party will
be held in confidence by the other Party to the same extent and with at
least the same degree of care as such Party protects its own confidential
or proprietary information of like kind and import, but in no event using
less than a reasonable degree of care or that which is required by law.
Neither Party will disclose, duplicate, publish, release, transfer or
otherwise make available Confidential Information of the other Party in
any form to, or for the use or benefit of, any person or entity without
the other Party's consent. Each
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Party will, however, be permitted to disclose relevant aspects of the
other Party's Confidential Information to its officers, agents,
subcontractors and employees to the extent that such disclosure is
reasonably necessary for the performance of its duties and obligations or
the exercise of its rights under this Agreement and such disclosure is not
prohibited by applicable Law. Each Party will establish commercially
reasonable controls to ensure that Confidential Information is not
disclosed contrary to the provisions of this Agreement or any applicable
Laws. To the extent that any duties and responsibilities under this
Agreement are delegated to an Agent, the delegating Party will ensure that
such Agent adheres to the requirements of this Section.
22.2 Required Disclosure. If either Party or an agent of either Party is
requested or required by any Governmental Authority, whether by oral
question, interrogatories, requests for information or documents,
subpoenas, civil investigation or similar process, to disclose any of the
Confidential Information of the other Party, such Party will, to the
extent permitted, provide the other Party with prompt notice of such
requests so that the other Party may seek an appropriate protective order
or similar relief or, if appropriate, waive compliance with the provisions
of this Article. Such Party will use all commercially reasonable efforts
to obtain, or assist the other Party in obtaining, such a protective order
or relief.
22.3 Unauthorized Acts. Without limiting either Party's rights as to a breach
of this Article, each Party will:
(A) promptly notify the other Party of any unauthorized possession, use
or knowledge, or attempt thereof, of the other Party's Confidential
Information by any person or entity that may become known to such
Party;
(B) promptly furnish to the other Party full details of the unauthorized
possession, use or knowledge, or attempt thereof, and assist the
other Party in investigating or preventing the recurrence of any
unauthorized possession, use or knowledge, or attempt thereof, of
Confidential Information;
(C) cooperate with the other Party in any litigation and investigation
against third parties deemed necessary by the other Party to protect
its proprietary rights to the extent such litigation or
investigation relates to the Services; and
(D) promptly use its best efforts to prevent a recurrence of any such
unauthorized possession, use or knowledge, or attempt thereof, of
Confidential Information.
Each Party will bear the cost it incurs as a result of compliance with
this Section.
22.4 Return of Confidential Information. Upon request at expiration or
termination of this Agreement, each Party will (A) promptly return to the
other Party all of the Confidential Information of the other Party and (B)
erase or destroy all of the Confidential Information of the other Party in
its possession, except, with respect to ▇▇▇▇, such Confidential
Information of Service Provider contained in the Service Provider Software
or the Service Provider Tools licensed to the ▇▇▇▇ Group Companies after
such expiration or termination.
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22.5 Business Associate Agreement. Service Provider may be considered a
"Business Associate" of ▇▇▇▇ as defined in the HIPAA privacy and security
standards. The Parties agree to execute the business associate agreement
attached as Schedule 17 (Business Associate Agreement) on or before the
Effective Date, to apply to the extent Service Provider is a Business
Associate. The Parties further agree to revise the business associate
agreement from time to time to reflect changes necessary (as reasonably
determined by ▇▇▇▇) to maintain compliance with applicable HIPAA privacy
and security requirements.
22.6 Data Protection Laws.
(A) ▇▇▇▇ retains sole authority for determining and approving the
purposes of Service Provider's processing of ▇▇▇▇ Data, and ▇▇▇▇ is
responsible for obtaining all necessary consents in order to
transfer data to, and to have such data processed by, Service
Provider and Service Provider Agents for processing by them in
accordance with this Agreement. It is the intention of the Parties
that ▇▇▇▇ and the applicable ▇▇▇▇ Affiliates are the data
controllers, and Service Provider and the Service Provider Agents
are the data processors.
(B) Service Provider and each Service Provider Agent shall comply with
the following obligations in respect of any ▇▇▇▇ Data transferred to
Service Provider or the Service Provider Agent under this Agreement:
(1) Service Provider or the Service Provider Agent shall process
▇▇▇▇ Data only for the purpose of providing the Services.
(2) Service Provider and each Service Provider Agent shall:
(a) to the extent required of Service Provider or Service
Provider Agent under applicable data protection Laws,
maintain at all times a valid, up to date
notification/registration covering all of processing of
personal data contained in the ▇▇▇▇ Data;
(b) take the agreed-upon operational and technical security
measures, as approved by ▇▇▇▇, to ensure that the ▇▇▇▇
Data is secure from unauthorized access or disclosure
and take all other operational and technical security
measures required of Service Provider or Service
Provider Agent by applicable Law;
(c) not transfer to nor direct any person to process any
▇▇▇▇ Data without the specific prior written approval of
▇▇▇▇;
(d) ensure that the ▇▇▇▇ Data is only accessible to
employees of Service Provider and Service Provider Agent
employees (and authorized subcontractors), who
reasonably need such access for the purpose of providing
the Services;
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(e) ensure that ▇▇▇▇ Data received from ▇▇▇▇ or a ▇▇▇▇
Affiliate in the European Economic Area is only
processed in accordance with the Policies and Procedures
Manual, including any geographical restrictions on the
processing of such Data;
(f) inform ▇▇▇▇ immediately if Service Provider or a Service
Provider Agent receives any inquiry from any
governmental official charged with the enforcement of
data protection Laws relating to the provision of the
Services; and
(g) timely provide to ▇▇▇▇ reasonable support in responding
to any request for information from a data subject in
accordance with the requirements of applicable data
protection Laws and, to the extent required under
applicable Law, Service Provider and Service Provider
Agent will timely respond to any such request.
As used in this Section 22.6, the terms "process", "data
controller", "data processor" and "data subject" shall have the
meanings given to them in the 1995 EU Privacy Directive. The Parties
will enter into data protection agreements to the extent necessary
to comply with applicable Laws.
ARTICLE 23. REPRESENTATIONS AND WARRANTIES
23.1 By ▇▇▇▇. ▇▇▇▇ represents and warrants that as of the Effective Date:
(A) it is a corporation duly incorporated, validly existing and in good
standing under the Laws of the Commonwealth of Virginia;
(B) ▇▇▇▇ has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(C) the execution, delivery and performance of this Agreement by ▇▇▇▇
(1) has been duly authorized by ▇▇▇▇ and (2) will not conflict with,
result in a breach of or constitute a default under any other
agreement to which ▇▇▇▇ is a party or by which ▇▇▇▇ is bound;
(D) ▇▇▇▇ is duly licensed, authorized or qualified to do business and is
in good standing in every jurisdiction in which a license,
authorization or qualification is required for the ownership or
leasing of its assets or the transaction of business of the
character transacted by it, except where the failure to be so
licensed, authorized or qualified would not have a material adverse
effect on Dana's ability to fulfill its obligations under this
Agreement;
(E) ▇▇▇▇ is in compliance with all Laws applicable to ▇▇▇▇, and has
obtained all applicable permits and licenses required of ▇▇▇▇, in
connection with its obligations under this Agreement; and
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(F) there is no outstanding litigation, arbitrated matter or other
dispute to which ▇▇▇▇ is a party that, if decided unfavorably to
▇▇▇▇, would reasonably be expected to have a material adverse effect
on Service Provider's or Dana's ability to fulfill their respective
obligations under this Agreement.
23.2 By Service Provider. Service Provider represents and warrants that as of
the Effective Date:
(A) Service Provider is a corporation duly incorporated, validly
existing and in good standing under the Laws of the State of New
York;
(B) Service Provider has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement;
(C) the execution, delivery and performance of this Agreement by Service
Provider (1) has been duly authorized by Service Provider and (2)
will not conflict with, result in a breach of or constitute a
default under any other agreement to which Service Provider is a
party or by which Service Provider is bound;
(D) Service Provider is duly licensed, authorized or qualified to do
business and is in good standing in every jurisdiction in which a
license, authorization or qualification is required for the
ownership or leasing of its assets or the transaction of business of
the character transacted by it, except where the failure to be so
licensed, authorized or qualified would not have a material adverse
effect on Service Provider's ability to fulfill its obligations
under this Agreement;
(E) Service Provider is in compliance with all Laws applicable to
Service Provider, and has obtained all applicable permits and
licenses required of Service Provider, in connection with its
obligations under this Agreement;
(F) the Service Provider Proprietary Software, the Service Provider
Proprietary Tools and the Service Provider Equipment do not infringe
upon or misappropriate the proprietary rights of any third party;
(G) there is no claim or proceeding pending or, to Service Provider's
knowledge, threatened alleging that any of the Service Provider
Proprietary Software, the Service Provider Proprietary Tools or the
Service Provider Equipment infringes or misappropriates the
proprietary rights of any third party which would reasonably be
expected to have a material adverse effect on Service Provider's
ability to fulfill its obligations under this Agreement;
(H) to Service Provider's knowledge, there is no claim or proceeding
pending or threatened alleging that any of the Service Provider
Third Party Software or the Service Provider Third Party Tools
identified in Schedule 16 (Software and Tools) infringes or
misappropriates the proprietary rights of any third party which
would reasonably be expected to have a material adverse effect on
Service Provider's ability to fulfill its obligations under this
Agreement;
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(I) there is no outstanding litigation, arbitrated matter or other
dispute to which Service Provider is a party that, if decided
unfavorably to Service Provider, would reasonably be expected to
have a material adverse effect on Dana's or Service Provider's
ability to fulfill their respective obligations under this
Agreement;
(J) there is no code in the Service Provider Proprietary Software or the
Service Provider Proprietary Tools that would have the effect of
disabling or otherwise shutting down all or any portion of the
Services or any such Software or Tools;
(K) to Service Provider's knowledge, there is no code in the Service
Provider Third Party Software or the Service Provider Third Party
Tools that would have the effect of disabling or otherwise shutting
down all or any portion of the Services or any such Software or
Tools;
(L) each Deliverable provided under this Agreement (including Work
Product) will be free from material errors in operation and
performance, comply with applicable documentation and specifications
in all material respects and provide the functions and features, and
operate in the manner, described in the Schedule, Work Order or
other document applicable to such Deliverable for 12 months after
installation, testing and acceptance, or such other period as may be
specified in the Schedule, Work Order or other document applicable
to such Deliverable;
(M) the Services and any Deliverables provided by Service Provider under
this Agreement are and will be capable of supporting the Euro as a
main or additional currency; and
(N) Service Provider has not violated any applicable Law, or any ▇▇▇▇
policies of which Service Provider has been given notice, regarding
the offering of unlawful inducements in connection with this
Agreement.
23.3 DISCLAIMER. EXCEPT AS SPECIFIED IN SECTION 23.1 or SECTION 23.2, NEITHER
▇▇▇▇ NOR SERVICE PROVIDER MAKES ANY OTHER WARRANTIES AND EACH EXPLICITLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 24. ADDITIONAL COVENANTS
24.1 By ▇▇▇▇. ▇▇▇▇ covenants and agrees with Service Provider that during the
Term and the Termination Assistance Period:
(A) ▇▇▇▇ will comply with all Laws applicable to its performance of the
responsibilities set forth in Schedule 8 (▇▇▇▇ Operational
Responsibilities and Resources) and otherwise to ▇▇▇▇ in connection
with its obligations under this Agreement.
(B) Except as otherwise provided in this Agreement, ▇▇▇▇ will obtain all
applicable permits and licenses, including the ▇▇▇▇ Governmental
Approvals and the ▇▇▇▇
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Consents, required of ▇▇▇▇ in connection with its obligations under
this Agreement.
24.2 By Service Provider. Service Provider covenants and agrees with ▇▇▇▇ that
during the Term and the Termination Assistance Period:
(A) Service Provider will comply with all Laws applicable to its
provision of the Services and otherwise to Service Provider in
connection with its obligations under this Agreement; provided that
Service Provider will not be liable under this subsection (A):
(1) for a violation of Law during the Transformation Period,
caused by Service Provider's performing any Service in the
same manner in which the Service was performed by ▇▇▇▇ before
the Commencement Date for the applicable Phased Service
Component, unless another manner of performing the Service is
specified in Schedule 2 (Statement of Work) or expressly
requested by ▇▇▇▇ (but Service Provider will promptly notify
▇▇▇▇ of any such non-compliance identified by Service Provider
and Service Provider will take affirmative steps, in
accordance with the terms of this Agreement, to remedy such
non-compliance on an expedited basis);
(2) for a violation of Law caused by Service Provider's complying
with any ▇▇▇▇ Compliance Directive; or
(3) for a violation of Law by ▇▇▇▇ in performing its retained
responsibilities of Schedule 2 (Statement of Work) or
violation of Laws by ▇▇▇▇ in the operation of Dana's business.
For purposes of this subsection (A), "▇▇▇▇ Compliance Directive"
means written instructions to Service Provider regarding compliance
with any Law, and any changes to the Services required to maintain
or achieve such compliance. ▇▇▇▇ ▇▇▇ issue ▇▇▇▇ Compliance
Directives from time to time on its own initiative and, in any
event, will issue a ▇▇▇▇ Compliance Directive within 30 days after
receiving Service Provider's written request for a ▇▇▇▇ Compliance
Directive as to how one or more specific responsibilities, tasks,
procedures or processes should be carried out or modified in order
to comply with applicable Law. In such request, Service Provider
shall include a reasonable level of detail regarding available
alternatives and Service Provider's recommended course of action and
reasons therefor.
(B) If any change in Law prevents Service Provider from performing its
obligations under this Agreement, Service Provider will develop and,
upon Dana's approval, implement a suitable workaround until such
time as Service Provider can implement appropriate changes to the
Services or otherwise perform its obligations under this Agreement
without such workaround. Service Provider will implement any
workarounds or changes to the Services required by a change in Law
at no additional charge to ▇▇▇▇, if the workaround or change (1) is
required
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as a consequence of the outsourced nature of the Services, and is
generally applicable to Service Provider's other customers, (2)
would result in no net cost to Service Provider due to cost savings
from implementing the change or (3) can be implemented using the
resources then being used to provide the Services without adversely
affecting its ability to provide the Services and meet the Service
Levels. If the workaround or change will require the payment of
additional Fees, then ▇▇▇▇ ▇▇▇ terminate the affected portion of the
Services without observing the cure period otherwise required by
Section 25.4 and the Parties will negotiate and implement an
equitable reduction in the Fees.
(C) Service Provider will obtain all applicable permits and licenses,
including the Service Provider Governmental Approvals and the
Service Provider Consents, required of Service Provider in
connection with its obligations under this Agreement.
(D) Without limiting any other Service Provider obligations, in
providing the Services Service Provider will comply at all times
with all applicable terms and conditions of Dana's collective
bargaining agreements and other agreements affecting Dana's labor
relations as they are communicated in writing to Service Provider to
the extent that Service Provider received such communication prior
to implementing the Services.
(E) If any Deliverable fails to perform in accordance with the
warranties set forth in this Agreement, a Work Order, a New Service
Schedule or other applicable document, Service Provider will correct
any non-conformance of a Deliverable (and redeliver such corrected
Deliverable) as soon as possible using appropriate resources which
will not be charged to ▇▇▇▇ and with no material adverse impact on
the performance of other Services.
(F) Service Provider (1) will not intentionally code or introduce any
virus or similar items into the ▇▇▇▇ Software, the Retained Systems,
the Work Product or the Service Provider Systems and (2) will use
commercially reasonable efforts to screen the ▇▇▇▇ Software, the
Work Product and the Service Provider Systems for the purpose of
avoiding the coding or introduction of any virus or similar items
into the ▇▇▇▇ Software, the Work Product and the Service Provider
Systems. If a virus or similar item is found to have been introduced
into the ▇▇▇▇ Software, the Retained Systems, the Work Product or
the Service Provider Systems, Service Provider will assist ▇▇▇▇ in
reducing the effects of the virus or similar item and, if the virus
or similar item causes a loss of operational efficiency or loss of
data or creates a security risk, will assist ▇▇▇▇ to the same extent
to mitigate and restore such losses and mitigate such risk.
(G) Without the consent of ▇▇▇▇, Service Provider will not insert into
(1) the ▇▇▇▇ Software or the Retained Systems, (2) the Work Product,
(3) the Service Provider Software or the Service Provider Tools that
▇▇▇▇ has the right to access or Use or (4) the Software or Tools
used to provide the Services any code that would have
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the effect of disabling or otherwise shutting down all or any
portion of the Services, any such Software or Tools or the Retained
Systems.
(H) With respect to any disabling code that may be part of (a) the
Service Provider Software or the Service Provider Tools that ▇▇▇▇
has the right to access or Use or (b) the Software or Tools used to
provide the Services, Service Provider will not invoke such
disabling code at any time during the Term or the Termination
Assistance Period without Dana's consent.
(I) Service Provider will maintain Equipment and Software used to
provide the Services so that they operate in accordance with their
specifications, including (1) maintaining Equipment in good
operating condition, subject to normal wear and tear, (2)
undertaking repairs and preventive maintenance on Equipment in
accordance with the applicable Equipment manufacturer's
recommendations and (3) performing Software maintenance in
accordance with the applicable Software vendor's documentation and
recommendations.
(J) Service Provider will perform the Services and develop the
Deliverables with promptness, diligence and in a workmanlike manner,
in accordance with the practices and professional standards used in
well-managed operations providing services similar to the Services.
(K) Service Provider will use adequate numbers of qualified individuals
with suitable training, education, experience and skill to perform
the Services.
24.3 Changes in Laws. Each Party will use reasonable efforts to promptly advise
the other Party of any changes in Laws of which such Party becomes aware
that affect the performance and/or receipt of Services under this
Agreement. This Section 24.3 does not impose on either Party an
affirmative obligation of inquiry or relieve either Party of its
obligations hereunder.
ARTICLE 25. TERMINATION
25.1 Termination for Convenience. Effective as of any time after the Effective
Date, ▇▇▇▇ ▇▇▇ terminate this Agreement for convenience by giving Service
Provider at least *** days' notice of such termination, provided that
prior to the first Commencement Date, only *** day's notice of termination
need be given.
25.2 Termination for Change in Control of ▇▇▇▇. In the event of a Change in
Control of ▇▇▇▇, ▇▇▇▇ ▇▇▇, by giving Service Provider at least *** days'
notice of such termination, terminate this Agreement in its sole
discretion, provided that such notice must be given within *** days after
the Change in Control occurs.
25.3 Termination for Change in Control of Service Provider. In the event of a
Change in Control of Service Provider, ▇▇▇▇ ▇▇▇, by giving Service
Provider at least *** days' notice of such termination, terminate this
Agreement in its sole discretion if ▇▇▇▇ reasonably believes the new
ownership would negatively impact Dana's reputation in the
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marketplace or the Change in Control involves a ▇▇▇▇ Competitor, provided
that such notice must be given within *** days after the Change in Control
occurs.
25.4 Termination by ▇▇▇▇ for Cause. If Service Provider (1) materially breaches
any of its material duties or obligations under this Agreement and fails
to cure such breach within the Default Cure Period, (2) materially
breaches any of its material duties or obligations under this Agreement
and the breach is not reasonably susceptible to cure within the Default
Cure Period or (3) commits numerous breaches of its duties or obligations
under this Agreement that in the aggregate are material, then ▇▇▇▇ ▇▇▇, by
giving notice to Service Provider, terminate this entire Agreement or the
Services affected by the breach effective as of the termination date
specified in the notice of termination. If ▇▇▇▇ terminates only the
Services affected by the breach under this Section 25.4, the Fees will be
equitably adjusted to reflect those Services that are not terminated.
25.5 Termination for Failure to Complete Transformation. If (i) Service
Provider has not successfully completed the Transformation of the first
two Phased Service Components by ***, or (ii) Service Provider has not
successfully completed the Transformation of all of the Phased Service
Components by ***, then ▇▇▇▇ ▇▇▇, by giving notice to Service Provider,
terminate, as of the termination date specified in the notice of
termination, this Agreement or, at Dana's option, the uncompleted Phased
Service Components.
25.6 Service Level Termination Event. If Service Provider falls below *** of
the Minimum Service Level as defined in Schedule 5 (Service Levels and
Performance Credits) for ***, then ▇▇▇▇ ▇▇▇, by giving notice to Service
Provider, terminate this Agreement as of the termination date specified in
the notice of termination.
25.7 Termination for Failure to Provide Adequate Assurance of Due Performance.
▇▇▇▇ ▇▇▇ terminate this Agreement by giving *** days' notice to Service
Provider if ▇▇▇▇ has reasonable grounds to determine that Service Provider
may fail to perform its material obligations under this Agreement and
Service Provider cannot provide ▇▇▇▇ with adequate assurance as to Service
Provider's ability to perform its obligations under this Agreement
consistently and in a sustained manner within such *** day period.
25.8 Termination by Service Provider for Cause. Service Provider may terminate
this Agreement, effective as of a date specified in a written notice of
termination, if and only if ▇▇▇▇ breaches its duty to pay undisputed Fees,
or to escrow any disputed Fees as required by Section 15.8, and fails to
cure the breach within *** days following its receipt of Service
Provider's notice of termination.
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25.9 Termination for Insolvency Event. Either Party may, by giving notice to
the other Party, terminate this Agreement upon the occurrence of an
Insolvency Event affecting the other Party.
25.10 Termination for Failure to Maintain Adequate Controls. Without limiting
Dana's termination rights under Section 25.4, in the event Service
Provider fails to provide annually a current unqualified Type II report as
required in Section 17.3(B), ***.
25.11 Other Terminations. In addition to the provisions of this Article, this
Agreement or the applicable portions of the Services under this Agreement
may be terminated as provided in Section 13.3, Section 15.11 and
subsection (B) of Section 24.2.
ARTICLE 26. TERMINATION FEES
26.1 Termination Fees. If ▇▇▇▇ terminates this Agreement, Service Provider will
be entitled to such fee ("Termination Fee") as determined in accordance
with Schedule 6 (Fees). Except for the Termination Fee or as set forth in
Schedule 6 (Fees), no fee or other compensation will be payable by ▇▇▇▇ in
connection with any expiration or termination of this Agreement (in its
entirety or as to selected Services), any change in Service volumes under
Section 3.3 or any insourcing or resourcing of Services under Section 3.5.
ARTICLE 27. TERMINATION ASSISTANCE
27.1 Termination Assistance Services.
(A) No less than 30 days prior to each Transformation Milestone, Service
Provider will provide to ▇▇▇▇ for its approval a draft plan for the
disengagement and transfer of that Transformation Milestone upon the
expiration, termination, insourcing or resourcing of such Services
(including any terminations resulting from the Dana's divestiture of
an entity, business unit or assets), (collectively, the
"Disengagement Plan"). Once approved, the document will be the
Disengagement Plan for such Services. The Disengagement Plan will,
as reasonably foreseeable:
(1) specify Key Personnel and other resources that will be used to
perform Termination Assistance Services;
(2) provide an estimate of incremental Fees for the additional
resources required to provide the Termination Assistance
Services;
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(3) specify substantially all activities necessary to carry out
the Termination Assistance Services as efficiently as
reasonably possible;
(4) specify such training and documentation reasonably required
for ▇▇▇▇ to understand and operate the Software and Tools used
by Service Provider to provide the Services, including (a)
configuration data for such Software and Tools and (b) scripts
and customizations of such Software and Tools; and
(5) set out a timetable and process for effecting Termination
Assistance Services that will enable ▇▇▇▇ to have completed
disengagement as quickly as reasonably possible without
materially disrupting the quality of the Services and without
limiting Service Provider's obligation to meet the Service
Levels during the Termination Assistance Period.
(B) Service Provider will keep the Disengagement Plan up to date during
the Term by updating the Disengagement Plan, from time to time, as
necessary to take into account changes to the Services and New
Services and submitting such updates to ▇▇▇▇ for approval. Upon
approval such updates will be incorporated into the Disengagement
Plan.
(C) Upon the expiration or termination of this Agreement or Service
Provider ceasing to provide the Services for any reason, or the
insourcing or resourcing of Services under this Agreement, Service
Provider will provide the Termination Assistance Services in
accordance with the Disengagement Plan. Termination Assistance
Services constituting the continuance of existing Services that do
not specifically relate to such expiration, termination, insourcing
or resourcing will be performed during the Termination Assistance
Period at the same rates as during the Term. Termination Assistance
Services that relate specifically to the expiration, termination,
insourcing or resourcing, and that cannot be provided by Key
Personnel or other existing resources without unreasonably risking,
in Dana's opinion, adverse impact to Service Provider's ability to
provide the Services, will be provided at the applicable rates set
forth therefor in Schedule 6 (Fees) or, if the applicable rates are
not set forth in Schedule 6 (Fees), at Service Provider's rates in
effect for such services immediately before the expiration,
termination, insourcing or resourcing. Dana's determination to
accept risks of adverse impact will relieve Service Provider from
any consequences of such adverse impact.
(D) The quality and level of performance of the applicable Services
during the Termination Assistance Period will not be degraded as
compared to the quality and level of performance of such Services
before such Termination Assistance Period. Without limiting the
foregoing, during the Termination Assistance Period, Service
Provider will (1) provide to ▇▇▇▇ and potential successors
designated by ▇▇▇▇ such information as ▇▇▇▇ ▇▇▇ reasonably request
relating to the number and respective functions of the members of
the Project Staff performing Services, (2) not make any material
changes to the level of Service and (3) not reassign Service
Provider's employees or contractors away from performance of
functions
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under this Agreement (until ▇▇▇▇ has had an opportunity to meet with
and attempt to hire such personnel as described in Section 27.3 and
except to the extent otherwise mutually agreed by the Parties in
order to mitigate Termination Fees).
(E) After the expiration of the Termination Assistance Period, Service
Provider will (1) answer questions from ▇▇▇▇ regarding the
terminated, insourced or resourced Services on an "as needed" basis
at Service Provider's then-standard billing rates and (2) deliver to
▇▇▇▇ any remaining ▇▇▇▇-owned reports and documentation relating to
the terminated, insourced or resourced services still in Service
Provider's possession.
27.2 Exit Rights. Upon the later of (A) the expiration or termination of this
Agreement and (B) the last day of any Termination Assistance Period (the
"End Date"):
(A) The rights granted to Service Provider and Service Provider Agents
in Section 20.1 will immediately terminate and Service Provider
will, and, to the extent ▇▇▇▇ does not possess a current copy of the
▇▇▇▇ Software, will cause Service Provider Agents to (1) deliver to
▇▇▇▇, at no cost to ▇▇▇▇, a current copy of the ▇▇▇▇ Software in the
form in use as of the End Date and (ii) destroy or erase all other
copies of the ▇▇▇▇ Software in Service Provider's or Service
Provider Agents' possession. Service Provider will, upon Dana's
request, certify to ▇▇▇▇ that all such copies have been destroyed or
erased.
(B) Upon Dana's request, Service Provider will sell to ▇▇▇▇ or its
designee, free and clear of all liens, security interests or other
encumbrances, at the then current fair market value any Equipment
owned by Service Provider and being used by Service Provider or
Service Provider Agents primarily to perform the Services as of the
End Date.
(C) Service Provider will, and will cause Service Provider Agents to,
deliver to ▇▇▇▇ a copy of all Work Product, in the form in use as of
the End Date.
(D) Upon Dana's request, Service Provider will, and will cause Service
Provider Agents to, transfer or assign to ▇▇▇▇ or its designee, on
terms and conditions acceptable to all applicable parties, any
agreements with third parties for the leasing of Equipment,
licensing of Software, maintenance services, disaster recovery
services or other third-party products or services, being used by
Service Provider or Service Provider Agents primarily to provide the
Services as of the End Date (including any Assigned Agreements), and
▇▇▇▇ will assume the ongoing obligations under such agreements that
relate to periods after the End Date.
(E) As to Service Provider Software and Service Provider Tools to be
licensed to ▇▇▇▇ as provided in subsections (C) and (D) of Section
20.2, Service Provider will deliver to ▇▇▇▇ a copy of the Service
Provider Software and Service Provider Tools, in the form in use as
of the End Date.
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27.3 Right to Hire Project Staff.
(A) Upon the delivery of a notice of intent to terminate or not renew
this Agreement, or upon an insourcing of part of the Services, as to
the then current members of the Project Staff providing the affected
Services under this Agreement (each an "Affected Project Staff
Member"), Service Provider will, to the extent not prohibited by
applicable Law, (1) provide ▇▇▇▇ with the name of each Affected
Project Staff Member and a description of job responsibilities, (2)
provide ▇▇▇▇ and its designees, at their option, reasonable access,
in a manner agreed upon by the Parties to minimize any interference
with Service Provider's ability to provide the Services and conduct
its business, to such Affected Project Staff Members and (3) allow
▇▇▇▇ to meet with, solicit and hire, in a manner agreed upon by the
Parties to minimize any interference with Service Provider's ability
to conduct its business, such Affected Project Staff Members as of
the End Date.
(B) Service Provider will waive any restrictions that may prevent any
Affected Project Staff Member from being hired by ▇▇▇▇ or its
designees under this Section.
27.4 Termination Assistance upon Change in Services Volumes or Insourcing or
Resourcing. If there is (1) a change in Service volumes under Section 3.3,
(2) an insourcing or resourcing under Section 3.5, (3) any termination of
Services under this Agreement under subsection (D) of Section 6.7, (4) any
termination of Services under this Agreement under Section 13.3 or (5) any
termination of Services under this Agreement under subsection (B) of
Section 24.2, then Section 27.2 and Section 27.3 will apply only in
relation to those resources and other items referred to in Section 27.2
("Affected Resources"), and those Affected Project Staff Members, that are
associated with the Services to be changed, insourced, resourced or
terminated. As soon as practicable after ▇▇▇▇ exercises any such right,
Service Provider will notify ▇▇▇▇ if any such Affected Resources, or any
such Affected Project Staff Members, are necessary for the provision of
the remaining Services and cannot be duplicated; whereupon ▇▇▇▇ and
Service Provider will agree upon an appropriate allocation of such
Affected Resources and Affected Project Staff Members.
27.5 Injunctive Relief. Without limiting the foregoing, Service Provider
acknowledges and agrees that ▇▇▇▇ ▇▇▇ be irreparably harmed if Service
Provider were to fail or threaten not to provide ▇▇▇▇ with Termination
Assistance Services, and that ▇▇▇▇ ▇▇▇ proceed directly to court in any
such case without observing any cure period otherwise applicable under
this Agreement.
ARTICLE 28. INDEMNITIES
28.1 Indemnities by ▇▇▇▇. ▇▇▇▇ will indemnify Service Provider and its
Affiliates against, and defend and hold Service Provider and its
Affiliates harmless from and against, any Losses suffered, incurred or
sustained by Service Provider or its Affiliates or to which Service
Provider or its Affiliates becomes subject, resulting from, arising out of
or relating to any third party claim:
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(A) that the ▇▇▇▇ Software or ▇▇▇▇ Tools infringe upon or misappropriate
the proprietary or other rights of any third party; provided that
▇▇▇▇ will not have any indemnity obligation under this subsection
(A) to the extent any infringement or misappropriation relates to:
(1) any item of ▇▇▇▇ Third Party Software or ▇▇▇▇ Third Party Tool
that, with Service Provider's specific prior written consent,
is excluded from indemnification under this subsection (A);
(2) modifications made or authorized by Service Provider or a
Service Provider Agent, without the approval of ▇▇▇▇;
(3) Service Provider's use of the ▇▇▇▇ Software or ▇▇▇▇ Tools in
combination with products or services not furnished or
approved by ▇▇▇▇ and not contemplated by this Agreement;
(4) a breach of the ▇▇▇▇ Consents by Service Provider; or
(5) the failure of Service Provider to use corrections or
modifications provided by ▇▇▇▇ on a timely basis.;
(B) based on the violation of a Law for the protection of persons or
members of a protected class or category of persons by ▇▇▇▇ or Dana
Agents, including unlawful discrimination;
(C) relating to personal injury, bodily injury, death or property loss
or damage caused by the acts or omissions of ▇▇▇▇ or ▇▇▇▇ Agents
(and ▇▇▇▇ hereby waives, as to the defense of Service Provider, any
immunity defense it may have to such claim under Laws related to
workers' compensation or employee injuries);
(D) any employment actions resulting from misrepresentations, oral or
written, made by ▇▇▇▇ or Dana Agents to Affected Employees or other
Dana employees that were not authorized by Service Provider;
(E) any action taken by ▇▇▇▇ with respect to the Affected Employees,
including any claims arising from Dana's decisions, acts or
omissions relating to screening, interviewing, hiring, assignment,
evaluation, compensation, termination and/or transfer;
(F) relating to any amounts, including taxes, interest and penalties,
assessed against Service Provider that are the obligation of ▇▇▇▇
under Article 16;
(G) for government penalties and fines resulting from Dana's breach of
its covenants in Section 24.1;
(H) relating to (1) any duties or obligations of ▇▇▇▇ or ▇▇▇▇ Agents
with respect to one another, (2) liability under any Assigned
Agreement based on acts or omissions of ▇▇▇▇ or ▇▇▇▇ Agents before
the applicable Assigned Agreement
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Effective Date and (3) liability under any Managed Agreement based
on acts or omissions of ▇▇▇▇ or ▇▇▇▇ Agents for which ▇▇▇▇ is not
entitled to indemnification under clause (3) of subsection (H) of
Section 28.2.
(I) by a Non-US Employee (as defined in Schedule 18 (Human Resources))
or a non-US Governmental Authority to the extent the claim arises
from a breach of Dana's responsibilities, or constitutes a liability
for which ▇▇▇▇ has agreed to be responsible, under the terms of
Schedule 18 (Human Resources);
(J) relating to Dana's failure to obtain, maintain or comply with the
▇▇▇▇ Consents and the ▇▇▇▇ Governmental Approvals or to comply with
the Service Provider Consents;
(K) relating to use by ▇▇▇▇ of any Service Provider Third Party Software
or Service Provider Third Party Tools outside of the licenses
granted in Article 20; or
(L) resulting from a disclosure of Service Provider's Confidential
Information due to Dana's breach of Section 22.1.
▇▇▇▇ will indemnify Service Provider against any costs and expenses
incurred in connection with the enforcement of this Section.
28.2 Indemnities by Service Provider. Service Provider will indemnify ▇▇▇▇ and
its Affiliates against, and defend and hold ▇▇▇▇ and its Affiliates
harmless from and against, any Losses suffered, incurred or sustained by
▇▇▇▇ or its Affiliates or to which ▇▇▇▇ or its Affiliates become subject,
resulting from, arising out of or relating to any third party claim:
(A) that the Services, the Deliverables, the Work Product, the Service
Provider Software, the Service Provider Tools, the Service Provider
Equipment, any enhancements or modifications to the ▇▇▇▇ Software
performed by Service Provider or Service Provider Agents or any
other resources or items provided to ▇▇▇▇ by Service Provider or
Service Provider Agents infringe upon or misappropriate the
proprietary or other rights of any third party; provided that
Service Provider will not have any indemnity obligation under this
subsection (A) to the extent any infringement or misappropriation
relates to:
(1) any item of Service Provider Third Party Software or Service
Provider Third Party Tool that, with Dana's specific prior
written consent, is excluded from indemnification under this
subsection (A);
(2) modifications made by ▇▇▇▇ or a ▇▇▇▇ Agent (other than Service
Provider and Service Provider Agents), without the approval of
Service Provider;
(3) Dana's use of any such materials in combination with products
or services not furnished or approved by Service Provider and
not contemplated by this Agreement;
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(4) a breach of the Service Provider Consents by ▇▇▇▇;
(5) the failure of ▇▇▇▇ to use corrections or modifications
provided by Service Provider on a timely basis; or
(6) the infringement results from Service Provider's adherence to
Dana's directions or procedures.
(B) based on the violation of a Law for the protection of persons or
members of a protected class or category of persons by Service
Provider or Service Provider Agents, including unlawful
discrimination;
(C) relating to personal injury, bodily injury, death or property loss
or damage caused by the acts or omissions of Service Provider or
Service Provider Agents (and Service Provider hereby waives, as to
the defense of ▇▇▇▇, any immunity defense it may have to such claim
under Laws related to workers' compensation or employee injuries);
(D) relating to accrued employee benefits expressly assumed by Service
Provider;
(E) relating to any employment actions resulting from
misrepresentations, oral or written, made by Service Provider or
Service Provider Agents to Affected Employees or other Dana
employees that were not authorized by ▇▇▇▇;
(F) relating to any action taken by Service Provider with respect to the
Affected Employees, including any claims arising from Service
Provider's decisions, acts or omissions relating to screening,
interviewing, hiring, assignment, evaluation, compensation,
termination and/or transfer;
(G) relating to any other aspect of the Project Staff's employment
relationship with Service Provider or the termination of the
employment relationship with Service Provider (including claims for
breach of an express or implied contract of employment);
(H) relating to (1) any duties or obligations of Service Provider or
Service Provider Agents with respect to one another, (2) liability
under any Assigned Agreement based on acts or omissions of Service
Provider or Service Provider Agents on or after the applicable
Assigned Agreement Effective Date and (3) liability under any
Managed Agreement based on acts or omissions of Service Provider or
Service Provider Agents on or after the applicable Managed Agreement
Effective Date that constitute a breach or default of Service
Provider's obligations under Article 9;
(I) relating to Service Provider's failure to obtain, maintain or comply
with the Service Provider Consents and the Service Provider
Governmental Approvals or to comply with the ▇▇▇▇ Consents;
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(J) by any of Service Provider's partners or subcontractors arising from
or in connection with their provision of Services;
(K) resulting from a disclosure of Dana's Confidential Information due
to Service Provider's breach of Section 10.3 or Section 22.1;
(L) relating to any amounts, including taxes, interest and penalties,
assessed against ▇▇▇▇ that are the obligation of Service Provider
under Article 16;
(M) relating to use by Service Provider of any ▇▇▇▇ Third Party Software
or ▇▇▇▇ Third Party Tools outside the scope of the licenses granted
in Article 20;
(N) for government penalties and fines resulting from Service Provider's
breach of its covenants in Section 24.2;
(O) by a Non-US Employee (as defined in Schedule 18 (Human Resources))
or a non-US Governmental Authority to the extent the claim arises
from a breach of Service Provider's responsibilities, or constitutes
a liability for which Service Provider has agreed to be responsible,
under the terms of Schedule 18 (Human Resources); or
(P) based on the processing or transfer of ▇▇▇▇ Data in violation of
Service Provider's or a Service Provider Agent's obligations under
the terms of Section 22.6 or a Local Country Agreement.
Service Provider will indemnify ▇▇▇▇ against any costs and expenses
incurred in connection with the enforcement of this Section.
28.3 Indemnification Procedures. If any third-party claim is commenced against
a Party entitled to indemnification under Section 28.1 or Section 28.2
(the "Indemnified Party"), notice thereof will be given to the Party that
is obligated to provide indemnification (the "Indemnifying Party") as
promptly as practicable. If, after such notice, the Indemnifying Party
will acknowledge that this Agreement applies with respect to such claim,
then the Indemnifying Party will be entitled, if it so elects, in a notice
promptly delivered to the Indemnified Party, but in no event less than
10 days before the date on which a response to such claim is due, to
immediately take control of the defense and investigation of such claim
and to employ and engage attorneys reasonably acceptable to the
Indemnified Party to handle and defend the same, at the Indemnifying
Party's sole cost and expense. The Indemnified Party will cooperate, at
the cost of the Indemnifying Party, in all reasonable respects with the
Indemnifying Party and its attorneys in the investigation, trial and
defense of such claim and any appeal arising therefrom; provided 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 and any appeal arising therefrom. No settlement of a claim that
involves a remedy other than the payment of money by the Indemnifying
Party will 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 will not be liable to the Indemnified Party for any
legal expenses incurred thereafter by such Indemnified
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Party in connection with the defense of that claim. If the Indemnifying
Party does not assume full control over the defense of a claim subject to
such defense as provided in this Section, the Indemnifying Party may
participate in such defense, at its sole cost and expense, and the
Indemnified Party will have the right to defend the claim in such manner
as it may deem appropriate, at the cost and expense of the Indemnifying
Party.
28.4 Injunctions Affecting Services. If any product or service provided by
Service Provider and used by Service Provider to provide the Services
becomes, or in Service Provider's reasonable opinion is likely to become,
the subject of an infringement or misappropriation claim or proceeding,
then Service Provider will promptly notify ▇▇▇▇ of such claim or
proceeding and, at Service Provider's expense (1) secure the royalty-free
right to continue using the product or service or (2) replace or modify
the product or service to make it non-infringing, provided that any such
replacement or modification will not degrade the performance or quality of
the affected component of the Services in any material way. If neither (1)
nor (2) is available to Service Provider, Service Provider will remove the
product or service from the Services and the Fees will be equitably
adjusted to adequately reflect such removal. If any product or service
provided by ▇▇▇▇ and used by Service Provider to provide the Services
becomes, or in Dana's reasonable opinion is likely to become, the subject
of an infringement or misappropriation claim or proceeding, then ▇▇▇▇ will
promptly notify Service Provider of such claim or proceeding, and unless
and until ▇▇▇▇ secures the right to continue using the product or service,
or replaces or modifies the product or service to make if non-infringing,
Service Provider will be relieved of the Services that require the
enjoined product or service, without affecting Dana's payment obligations.
ARTICLE 29. DAMAGES
29.1 Direct Damages. Each Party will be liable to the other Party for any
direct damages arising out of or relating to such Party's performance or
failure to perform under this Agreement; provided that the liability of a
Party to the other Party, whether based on an action or claim in contract,
equity, negligence, tort or otherwise, will not in the aggregate exceed
***.
29.2 Consequential Damages.
(A) ***
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(B) Notwithstanding the foregoing, the following damages are agreed to
be included within direct damages and not excluded by this Section
29.2: ***.
29.3 Exceptions.
(A) ***
(1) ***
(2) ***
(3) ***
(B) ***
(1) ***
(C) ***
(1) ***
(2) ***
(D) ***
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29.4 Interpretation of Cap. ***
(A) ***
(B) ***
(C) ***
(D) ***
29.5 Injunctive Relief. A Party may seek immediate injunctive relief for a
breach of this Agreement by the other Party if the breach would result in
irreparable harm to the Party for which monetary damages would provide an
inadequate remedy. A Party filing a pleading seeking immediate injunctive
relief that is not awarded in substantial part will pay all reasonable
costs and attorneys' fees of the other Party.
ARTICLE 30. INSURANCE
30.1 Insurance. Except as specifically provided otherwise in this Agreement,
Service Provider will obtain and maintain at its own expense, and require
Service Provider Agents to obtain and maintain at their own expense or
Service Provider's expense, insurance of the type and in the minimum
amounts set forth below, with reputable carriers satisfactory to ▇▇▇▇:
(A) for U.S. citizens and foreign nationals working in the U.S. or its
territories and entitled to state workers' compensation insurance or
benefits, statutory workers' compensation in accordance with all
state and local requirements, including employers' liability, with
limits not less than ***;
(B) for foreign nationals working outside the U.S. or its territories,
or working in the U.S. or its territories but not entitled to
workers' compensation insurance or benefits, employee injury
insurance or benefits usual, customary and/or required in the
country in which such foreign national is employed or domiciled,
whichever is applicable, which insurance or benefit may be provided
through a non-U.S. government sponsored program or social welfare
program or private insurance, as is usual, customary and/or required
in the employee's country of employment or domicile, whichever is
applicable;
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(C) commercial general liability insurance for an insured amount of not
less than *** per occurrence and *** aggregate;
(D) automobile liability insurance covering use of all owned, non-owned
and hired automobiles for bodily injury, property damage, with a
minimum combined single limit per accident of *** or the minimum
limit required by Law, whichever limit is greater;
(E) professional errors and omissions liability insurance covering loss
(other than bodily injury or property damage) which may result from
any rendering or failure to render any professional services under
this Agreement, with a minimum limit of *** per occurrence and ***
in aggregate;
(F) fidelity bond/crime insurance, naming ▇▇▇▇ as a loss payee ***;
(G) all risk property coverage, including flood and earthquake and
business interruption insurance, covering property and operations of
Service Provider or property in its care, custody or control; and
(H) umbrella and/or excess liability coverage, applying over the
employer's liability, commercial general liability and automobile
liability, in minimum amounts of *** per occurrence and *** in the
aggregate.
The above coverages will apply on a worldwide basis regardless of where
the event that creates the liability occurs or where the suit or claim for
the liability is brought. The above coverages will be written or endorsed
so that they are primary coverages and not excess or contributory to any
coverages maintained by ▇▇▇▇. Service Provider's obligations under this
Section will in no way limit or diminish its indemnification obligations,
or liability for claims covered, under the terms of this Agreement.
30.2 Period of Insurance. Service Provider will take out and maintain the
insurance policies referred to in Section 30.1 for the following periods:
(A) ***
(B) ***
For any coverage written on a claims made basis, the retrospective date
must be no later than the Effective Date of this Agreement.
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30.3 Insurance Documentation. For all insurance required under Section 30.1,
Service Provider will, on the Effective Date and prior to each coverage
renewal date, or upon Dana's request from time to time, furnish to ▇▇▇▇
certificates of insurance or other appropriate documentation (including
evidence of renewal of insurance) evidencing all coverages referenced in
Section 30.1 and naming ▇▇▇▇ as an additional insured with regard to the
commercial general liability coverage as respects bodily injury or
property damage resulting from the Project Staff's act or omissions. In
the event of cancellation, non-renewal or material alteration, Service
Provider shall cause its insurers to endeavor to provide 30 days' prior
written notice to ▇▇▇▇. With regard to the coverages referenced in Section
30.1.(E) and 30.1.(F), Service Provider will provide ▇▇▇▇ as much notice
as is reasonably possible under the circumstances prior to any
cancellation, non-renewal or material alteration. Such cancellation or
material alteration will not relieve Service Provider of its continuing
obligation to maintain insurance coverage in accordance with this Article.
With regard to the Professional Errors and Omissions Liability insurance,
on the Effective Date and prior to each coverage renewal date, or upon
Dana's request from time to time, Service Provider will provide a written
certification from its insurance broker that the coverage maintained by
Service Provider covers all Services under this Agreement and that the
limits are in full force and effect.
30.4 Risk of Loss. Subject to the terms of this Agreement, each Party is
responsible for the risk of loss of, or damage to, any property of the
other that is caused by the acts or omissions of such Party.
30.5 Deductibles or Self Insurance. Unless Service maintains an investment
grade credit rating by ▇▇▇▇▇'▇ Investors Services, the foregoing coverages
may not be changed to increase any deductibles or other self insurance
provisions in excess of the respective amounts in existence on the
Effective Date.
ARTICLE 31. MISCELLANEOUS PROVISIONS
31.1 Assignment. Neither Party will, without the consent of the other Party,
assign this Agreement or otherwise transfer its rights or obligations
under this Agreement; provided that ▇▇▇▇ ▇▇▇ assign or otherwise transfer
its rights and obligations under this Agreement to any Affiliate of ▇▇▇▇,
to an entity that acquires all or substantially all of Dana's assets or
Dana's successor by way of merger or acquisition. The consent of a Party
to any assignment of this Agreement will not constitute such Party's
consent to further assignment. This Agreement will be binding on the
Parties and their respective successors and permitted assigns. Any
assignment in contravention of this subsection will be void.
31.2 Notices. Except as otherwise specified in this Agreement, all notices,
requests, consents, approvals, agreements, authorizations,
acknowledgements, waivers and other communications required or permitted
under this Agreement will be in writing and will be deemed given when sent
by telecopy to the telecopy number specified below or delivered by hand to
the address specified below. A copy of any such notice will also be sent
by express air mail on the date such notice is transmitted by telecopy to
the address specified below:
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In the case of ▇▇▇▇:
▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Human Resources
Telecopy No.: 419-535-
With a copy to:
▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
In the case of Service Provider:
IBM Corporation
▇▇. ▇▇▇, ▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: VP, BTO Industrial
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
IBM Corporation
▇▇. ▇▇▇, ▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: BCS Associate General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Either Party may change its address or telecopy number for notification
purposes by giving the other Party 15 days' notice of the new address or
telecopy number and the date upon which it will become effective.
31.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
taken together will constitute one single agreement between the Parties.
31.4 Relationship. The Parties intend to create an independent contractor
relationship and nothing contained in this Agreement will be construed to
make either ▇▇▇▇ or Service Provider partners, joint venturers,
principals, agents or employees of the other. No officer, director,
employee, agent, affiliate or contractor retained by Service Provider to
perform work on Dana's behalf under this Agreement will be deemed to be an
employee, agent or contractor of ▇▇▇▇. Neither Party will have any right,
power or authority, express or implied, to bind the other.
31.5 Consents, Approvals and Requests. Except as specifically set forth in this
Agreement, all consents and approvals to be given by either Party under
this Agreement will not be
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unreasonably withheld or delayed and each Party will make only reasonable
requests under this Agreement.
31.6 Waivers. No delay or omission by either Party to exercise any right or
power it has under this Agreement will impair or be construed as a waiver
of such right or power. A waiver by any Party of any breach or covenant
will not be construed to be a waiver of any succeeding breach or any other
covenant. All waivers must be signed by the Party waiving its rights.
31.7 Remedies Cumulative. No right or remedy herein conferred upon or reserved
to either Party is intended to be exclusive of any other right or remedy,
and each right and remedy will be cumulative and in addition to any other
right or remedy under this Agreement, or under applicable Law, whether now
or hereafter existing.
31.8 Amendments. No change or addition to any provision of this Agreement will
be valid unless in writing and signed by an authorized representative of
each of the Parties.
31.9 Survival. The terms of Sections 6.7(C), 6.8(D), 12.2(D) and (E), 14.2(G),
15.3 (as to outstanding Fees), 15.10, , 17.2, 17.3(B), 17.4, 27.1(C), (D)
and (E), 27.2(A) and (D), 27.3, 30.2, 31.7, 31.9, 31.10, 31.11 and 31.12;
Articles 16, 20, 22, 26, 28, 29 and 32; and the notice requirements for
reassignment of Key Personnel set forth in Schedule 18 (Human Resources)
will survive the expiration or termination of this Agreement.
31.10 Third Party Beneficiaries. Each Party intends that this Agreement will not
benefit, or create any right or cause of action in or on behalf of, any
person or entity other than the Parties.
31.11 Covenant of Further Assurances. Subsequent to the execution and delivery
of this Agreement and without any additional consideration, each of ▇▇▇▇
and Service Provider will execute and deliver any further legal
instruments and perform any acts that are or may become necessary to
effectuate the purposes of this Agreement.
31.12 Negotiated Terms. The Parties agree that the terms and conditions of this
Agreement are the result of negotiations between the Parties and that this
Agreement will not be construed in favor of or against any Party by reason
of the extent to which any Party or its professional advisors participated
in the preparation of this Agreement.
31.13 Export. ▇▇▇▇ and Service Provider will not knowingly export or re-export
any personal computer system, part, technical data or sub-elements under
this Agreement, directly or indirectly, to any destinations prohibited by
the United States Government. The term "technical data" in this context,
means such data as is defined as technical data by applicable United
States export regulations.
31.14 Non-Solicitation. Except as permitted under Section 27.3, during the Term
neither Party will solicit or hire any individual while that individual is
an employee of the other Party. This Section will not restrict the right
of either Party to solicit or recruit generally in the media or prohibit
either Party from hiring an employee of the other who answers any
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advertisement or who otherwise voluntarily applies for hire without having
been initially solicited or recruited by the hiring Party.
31.15 Conflict of Interest. Neither Party will pay any salaries, commissions,
fees or make any payments or rebates to any employee of the other Party,
or to any designee of such employee, or favor any employee of the other
Party, or any designee of such employee, with gifts or entertainment of
significant cost or value or with services or goods sold at less than full
market value. Obligation under this Section will also be binding upon the
Parties respective agents.
31.16 Publicity. Neither Party will use the other Party's name or ▇▇▇▇, or use
language from which the connection of such name or ▇▇▇▇ ▇▇▇ be inferred,
without the other Party's prior written consent, in the other Party's sole
discretion. Neither Party may make, without the prior written approval of
authorized representatives of the other Party, any public disclosures
relating to this Agreement, except for internal announcements or
disclosures required to meet legal or regulatory requirements that are
beyond the reasonable control of the disclosing Party.
31.17 Liens. Service Provider will keep all real and personal property of ▇▇▇▇,
and the Services, free and clear of all liens or lien claims. If any lien
or lien claim is asserted for any reason, ▇▇▇▇ ▇▇▇ at its sole discretion
(1) pay the amount of the lien or lien claim, (2) deduct the amount paid
from Fees due to Service Provider and/or (3) require Service Provider to
obtain a properly executed release of lien satisfactory to ▇▇▇▇.
ARTICLE 32. CONSTRUCTION
32.1 Background. The statement of background and objectives set forth in the
introductory portion of this Agreement are intended to be a general
introduction to this Agreement and are not intended to expand the scope of
the Parties' obligations or to alter the plain meaning of this Agreement's
terms and conditions. However, to the extent the terms and conditions of
this Agreement do not address a particular circumstance or are otherwise
unclear or ambiguous, such terms and conditions are to be interpreted and
construed so as to give the fullest possible effect to the goals and
objectives set forth in the statement of background and objectives.
32.2 Incorporation and References. In this Agreement and the Schedules and
Local Country Agreements to this Agreement:
(A) the Schedules and Local Country Agreements to this Agreement are
hereby incorporated into and deemed part of this Agreement and all
references to this Agreement will include the Schedules to this
Agreement;
(B) references to a Schedule, Section or Article will be to such
Schedule to, or Section or Article of, this Agreement unless
otherwise provided;
(C) references to any Law means references to such Law in changed or
supplemented form or to a newly adopted Law replacing a previous
Law; and
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(D) references to and mentions of the word "including" or the phrase
"e.g." means "including, without limitation."
32.3 Headings. The Article and Section headings, Table of Contents and Table of
Schedules are for reference and convenience only and will not be
considered in the interpretation of this Agreement.
32.4 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to Law, then the remaining
provisions of this Agreement, if capable of substantial performance, will
remain in full force and effect.
32.5 Sole and Exclusive Venue. Each Party irrevocably agrees that any legal
action, suit or proceeding brought by it in any way arising out of this
Agreement must be brought solely and exclusively in the United States
District Court for the Northern District of Ohio or Court of Common Pleas
for ▇▇▇▇▇ County located in Toledo, Ohio and irrevocably accepts and
submits to the sole and exclusive jurisdiction of each such court in
personam, generally and unconditionally, with respect to any action, suit
or proceeding brought by it or against it by the other Party; provided
that this Section will not prevent a Party against whom any legal action,
suit or proceeding is brought by the other Party in the state courts of
the State of Ohio from seeking to remove such legal action, suit or
proceeding, under applicable federal Law, to the district court of the
United States for the district and division embracing the place where the
action is pending in the state courts of the State of Ohio, and if an
action is so removed each Party irrevocably accepts and submits to the
jurisdiction of that district court. Each Party hereto further irrevocably
consents to the service of process from any of such courts by mailing
copies thereof by registered or certified mail, postage prepaid, to such
Party at its address designated under this Agreement, with such service of
process to become effective 30 days after such mailing.
32.6 Section 365(n). All rights and licenses granted under or under this
Agreement by Service Provider to the ▇▇▇▇ Group Companies are, and will
otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of
the United States Code, as amended from time to time (the "Bankruptcy
Code"), licenses to rights to "intellectual property" as defined under the
Bankruptcy Code. The Parties agree that the ▇▇▇▇ Group Companies, as
licensee of such rights under this Agreement, will retain and may fully
exercise all of its rights and remedies available to it under the
Bankruptcy Code including Section 365(n) thereof.
32.7 Governing Law.
(A) This Agreement and the rights and obligations of the Parties under
this Agreement will be governed by and construed in accordance with
the Laws of the State of Ohio, without giving effect to the
principles thereof relating to the conflicts of Laws.
(B) The Parties agree that, to the extent no expressly permitted by Law,
the United Nations Convention on Contracts for the International
Sale of Goods 1980, and all
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international and domestic legislation implementing such Convention,
will not apply to this Agreement.
(C) The Parties further agree that their respective rights and
obligations under this Agreement will be solely and exclusively as
set forth in this Agreement and that the Uniform Computer
Information Transactions Act ("UCITA"), whether enacted in whole or
in part by any state or applicable jurisdiction, regardless of how
codified, will not apply to this Agreement and is hereby disclaimed.
The Parties further agree to amend this Agreement as may be
necessary to comply with any mandatory disclaimer language required
by UCITA in any applicable jurisdiction.
32.8 Waiver of Jury Trial. The Parties hereby irrevocably waive any right to
jury trial with respect to any action relating to this Agreement or the
Services.
32.9 Entire Agreement. This Agreement and the Schedules to this Agreement
represent the entire agreement between the Parties with respect to its
subject matter, and there are no other representations, understandings or
agreements between the Parties relative to such subject matter.
32.10 Interpretation Consistent with Law; Conflicts.
(A) If any provision of this Agreement is subject to an interpretation
which would be invalid, illegal, or unenforceable, the remaining
provisions of this Agreement will not in any way be affected or
impaired, and the invalid, illegal, or unenforceable provision will
be interpreted to reflect the Parties' original intent under this
Agreement as nearly as possible in accordance with applicable Laws.
(B) If there is a conflict among the terms in the various documents
within this Agreement:
(1) to the extent the conflicting provisions can reasonably be
interpreted so that such provisions are consistent with each
other, such consistent interpretation will prevail; and
(2) to the extent this Section 32.10(B) does not resolve such
conflict, the following order of precedence will prevail:
(a) the provisions of a Local Country Agreement will prevail
over a conflicting term in this Agreement with respect
to Services performed within the jurisdiction of such
Local Country Agreement;
(b) this Agreement (exclusive of its Schedules) will prevail
over a conflicting term in its Schedules; and
(c) a Schedule will prevail over a conflicting term in the
Exhibits.
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*** indicates where a confidential portion has been omitted and filed separately
with the Commission
Each of ▇▇▇▇ and Service Provider has caused this Agreement to be
signed and delivered by its duly authorized representative on this 31 day of
March, 2005.
▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: V.P. Human Resources
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Partner, Business Consulting Services
Page 67