EX-10-P



 





Exhibit 10-P




HUMAN RESOURCES MANAGEMENT AND ADMINISTRATION

MASTER SERVICES AGREEMENT




between




DANA CORPORATION




and




INTERNATIONAL BUSINESS MACHINES CORPORATION




Dated March 31, 2005




Amended and restated as of September 30, 2007




 









 





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	 	 	Dana 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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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	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. DANA RESPONSIBILITIES	 	 	23	 
	 

	 	 	14.1	 	 	Dana Operational Responsibilities
	 	 	23	 
	 

	 	 	14.2	 	 	Dana 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	 	 	Dana 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 Dana 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	 	 	Dana Software and Dana 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 Dana 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 Dana
	 	 	42	 
	 

	 	 	23.2	 	 	By Service Provider
	 	 	43	 
	 

	 	 	23.3	 	 	DISCLAIMER
	 	 	43	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE 24. ADDITIONAL COVENANTS	 	 	44	 
	 

	 	 	24.1	 	 	By Dana
	 	 	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 Dana
	 	 	47	 
	 

	 	 	25.3	 	 	Termination for Change in Control of Service Provider
	 	 	47	 
	 

	 	 	25.4	 	 	Termination by Dana 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 Dana
	 	 	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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	***	 	indicates where a confidential portion has been omitted and filed separately with the Commission





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

	 	— Dana 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

	 	— Dana Information Security Requirements
	Schedule 15

	 	— Dana Technology Standards
	Schedule 16

	 	— Software and Tools
	Schedule 17

	 	— Business Associate Agreement
	Schedule 18

	 	— Human Resources
	Schedule 19

	 	— Dana 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 Dana Corporation (“Dana”) and International Business
Machines Corporation (“Service Provider”).



     This Agreement has been amended and restated as of September 30, 2007 (the “Restatement
Date”), and all prior versions of the Agreement are superseded by, and integrated in, this version
of the Agreement.



     The Parties acknowledge that the changes to the Agreement set forth in the First Amendment to
the Human Resource Management and Administration Master Services Agreement Between Dana Corporation
and International Business Machines Corporation, dated as of November 23, 2005, the Second
Amendment to the Human Resource Management and Administration Master Services Agreement Between
Dana Corporation and International Business Machines Corporation, dated as of November 30, 2005,
and the Third Amendment to the Human Resource Management and Administration Master Services
Agreement Between Dana Corporation and International Business Machines Corporation, dated as of
December 5, 2005, have been incorporated into this amended and restated Agreement as of the
Restatement Date and shall have no further force and effect.



     The Parties further acknowledge that the changes to the Agreement set forth in the Fourth
Amendment to the Human Resource Management and Administration Master Services Agreement Between
Dana Corporation and International Business Machines Corporation, dated September 29, 2006, Change
1 to Fourth Amendment to the Human Resource Management and Administration Master Services Agreement
Between Dana Corporation and International Business Machines Corporation, dated March 14, 2007,
Omnibus Amendment to (1) The Human Resource Management and Administration Master Services Agreement
Between Dana Corporation and International Business Machines Corporation and (2) Certain Local
Country Agreements, dated December 22, 2006, and Change 1 to the Omnibus Amendment to (1) The Human
Resource Management and Administration Master Services Agreement Between Dana Corporation and
International Business Machines Corporation and (2) Certain Local Country Agreements, dated August
30, 2007, have also been incorporated into this amended and restated Agreement as of the
Restatement Date and shall have no further force and effect.



BACKGROUND



Dana 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.



Dana 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;





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	 	(B)	 	deliver economic value to Dana 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 Dana
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 Dana to acquire services with flexibility that is consistent with Dana’s
changing business needs while minimizing the operational risk to which Dana 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, Dana 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 Dana.



Dana 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 December 31,
2012 (the “Initial Agreement Expiration Date”).






	2.2	 	First Extension Period. Twelve months before the Initial Agreement Expiration Date,
Service Provider will present Dana 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 




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	 	 	renewal of this Agreement after the Initial Term, Dana may, 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 Dana 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 Dana 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 Dana 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, Dana may, 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 Dana 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 Dana 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 Dana
Group Companies, as the Dana Group Companies may evolve during the Term and 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 




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	 	 	 	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	 	Dana Group.






	 	(A)	 	Service Provider will provide the Services to (1) Dana and any other member of
the Dana Group Companies designated by Dana, irrespective of Dana’s corporate structure
and (2) any New Entity as directed by Dana 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 Dana
may 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.
	 
	 	(B)	 	If as a result of a Restructure or otherwise an entity that is not a Dana Group
Company (a “New Entity”) is acquired by Dana or acquires or becomes responsible for
some of the business, assets, operations or management of a Dana 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, Dana may 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, Dana 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 Dana Group Companies or any New Entity under a
separate agreement will be included in the calculation of actual 




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	 	 	 	service volumes, if
any, under this Agreement. For the avoidance of doubt, Dana 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 Dana, 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 Dana 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 Dana (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 Dana all reasonable
assistance and information as may be necessary, in the opinion of Dana, where Dana
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 Dana, 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);
	 
	 	(4)	 	cooperating in good faith with Dana 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, Dana may from time to
time increase or decrease service volumes within the Services, including by adding or
removing members of the Dana 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 




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	 	 	 	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
Dana Consents.
	 
	 	(B)	 	Dana will, at its own expense, (1) obtain and maintain all Dana Governmental
Approvals and (2) obtain, maintain and comply with the Dana 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 Dana to purchase any of the Services from
Service Provider. Dana may 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)	 	Dana will not be obligated to obtain any of the Services from Service Provider
with respect to any additional entity or business unit, including an entity or business
unit acquired by Dana. However, Dana 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 Dana 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, Dana may insource or obtain
from a third party any portion of the Services. No termination fee will be payable by
Dana 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 




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	 	 	 	(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
Dana 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 Dana with information related to the Services
that Dana reasonably requests during the Term to enable Dana 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 Dana, Service Provider will meet with representatives of Dana 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 Dana may
require for Dana 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 Dana 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
(Dana Technology Standards). Dana remains responsible for promulgation, interpretation and
distribution of the Dana Technology Standards.






	3.8	 	Reports. Service Provider will provide to Dana, in a form acceptable to Dana, 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 Dana equipment, software and services to be
used by Dana in connection with its receipt or use of the Services. Dana 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 Dana responsibilities in
Schedule 3 (Transformation)) (the “Transformation Services”) necessary to 




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	 	 	 	accomplish
the migration of Dana’s human resource management and administration operations and
capabilities from Dana 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 each such Phased Service Component in Schedule 3 (Transformation) (each,
a “Transformation Date”). Dana will perform those responsibilities designated as Dana
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 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, Dana may postpone
the Transformation Date for one or more Phased Service Components or change the order
of implementation of the Phased Service Components. Any such Change requested by Dana
will not affect Dana’s right to Deliverable Credits or prejudice Dana’s right to seek
other remedies that have accrued as of the date of the Change request. At the time any
such Change is reviewed in accordance with the Change Control Procedures, the financial
impacts of the proposed Change will be reviewed and assessed as contemplated by the
Change Control Procedures.






	 	(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 Dana Relationship Manager in which the Service Provider
Relationship Manager will present in person to the Dana Relationship Manager notice
of successful completion of the Transformation as to such Phased 




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	 	 	 	Service Component
as specified in the Transformation Plan. Dana will, within 10 business days after
presentation of such notice, notify Service Provider whether it accepts or rejects
such Transformation Services as complete. If Dana 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, Dana may:






	 	(1)	 	postpone the applicable Transformation Date, in which case (a)
Service Provider will submit a plan to Dana 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 Dana has approved the plan, Service
Provider will execute such Transformation in accordance with the plan; or
	 
	 	(2)	 	notify Service Provider that Dana 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, Dana may 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 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, Dana may wish to add one or more ongoing New
Services (contrasted with Projects, which are non-recurring) to the scope of the
Services. Dana 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 Dana setting forth:






	 	(1)	 	how it would perform the New Service;





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	 	(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;
	 
	 	(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
Dana.






	 	(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.





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	 	(D)	 	Dana 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, Dana 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)	 	Dana will not be obligated to pay for any New Service or any other service that
falls outside the scope of this Section unless Dana has approved the service in
accordance with this Section.






	5.4	 	Third Party Services. Notwithstanding any request made to Service Provider by Dana
under Section 5.2 or Section 5.3 or any other provision in this Agreement, Dana may contract
with a third party to perform any Project or New Service. Upon Dana’s request, Service
Provider will assist Dana 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 Dana performs any services itself or retains a third
party to do so, Service Provider will, to the extent reasonably necessary for Dana 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 Dana, including by providing access to design
characteristics of Software and Equipment and related data to the extent required to
facilitate interoperability;
	 
	 	(B)	 	provide any information regarding the operating environment, system
constraints, protocol, interfaces, architecture and other operating parameters
reasonably required by Dana 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 Dana; and
	 
	 	(E)	 	agree on procedures with Dana and any third parties providing services to Dana
for the division of responsibilities in relation to services and functions that may
overlap between Service Provider and the third party.





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Service Provider will provide such cooperation, information and resources at no additional cost to
Dana, unless Service Provider notifies Dana, 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 Dana 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)	 	Dana may, 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 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, Dana may only add that new Service Level if:






	 	(1)	 	Service Provider agrees; or
	 
	 	(2)	 	Service Provider does not agree, but:






	 	(a)	 	Dana 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 




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	 	 	 	plus the cost
of measuring and reporting on the existing Service Level; or






	 	(b)	 	Dana 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 Dana that is sufficient to verify compliance with the Service
Levels and (2) be subject to audit by Dana or its designee.
	 
	 	(B)	 	Service Provider will provide Dana with on-line access to such measurement and
monitoring tools and information, so that Dana 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 Dana 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 Dana and its
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 Dana, (2) correct
the problem as soon as practicable and resume meeting the Service Levels, (3) advise
Dana of the status of the problem at stages determined by Dana and (4)
demonstrate to Dana that all reasonable action has been taken to prevent any
recurrence of such default or failure.





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	 	(B)	 	Service Provider will, at any time at which Service Provider anticipates that
it will fail to meet a Service Level, advise Dana of the status of the problem at time
intervals determined by Dana.






	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 Dana 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). Dana may 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 Dana as a result of a Service Level
failure.
	 
	 	(D)	 	In addition to Dana’s right to receive Performance Credits and any damages to
which Dana may be entitled for a Service Level default, Dana may 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.






	6.8	 	Deliverable Credits.






	 	(A)	 	Deliverable Credits apply to those Critical Deliverables specified in Schedule
5, Exhibit C, to this Agreement, as it may be amended by the Parties from time to time.
	 
	 	(B)	 	Deliverable Credits for Critical Deliverables are specified in Schedule 5,
Exhibit C, to this Agreement 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 Dana on the next invoice.





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	 	(D)	 	Deliverable Credits will not limit Dana’s right to recover, in accordance with
this Agreement, other damages incurred by Dana 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.
	 
	 	(F)	 	In the event that Dana fails to fulfill any of the responsibilities set forth
in Schedule 8 (Dana Operational Responsibilities and Resources), Schedule 3
(Transformation Plan), or to provide any Dana Resources, and such failure is the direct
cause of Service Provider’s inability to timely deliver a Critical Deliverable, Service
Provider will be excused from the payment of any resulting Deliverable Credit(s), only
for so long as such failure remains the direct cause of such inability, provided
that, the advance notice procedures set forth in Section 14.3 of this Agreement
have been timely followed by Service Provider.






	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 Dana may 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) Dana
as the recipient of the applicable Services. Service Provider will provide material containing
the Performance Information to Dana 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)	 	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 before
December 31, 2005. A second survey will be conducted by the selected third party no
later than June 30, 2006 with annual surveys thereafter every calendar fourth quarter
starting with the fourth quarter of 2006, unless otherwise mutually agreed.
	 
	 	(B)	 	Additional customer satisfaction measurements will be performed monthly.
Measurement criteria and reporting will be jointly developed and reported by IBM and
Dana.
	 
	 	(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 Dana may reasonably request.





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	 	(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 Dana; 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
Retained 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 Dana, 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. Dana 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. Dana will also provide training with respect to any Retained Systems and
Retained Processes that are proprietary to Dana as reasonably required by Service
Provider to comply with its obligations under this Section.
	 
	 	(C)	 	Service Provider will provide Dana on request with services in relation to
Retained Systems affected by the Services, including liaising with Dana, its
outsourcing partners or third parties on the impact of any alterations to such Retained
Systems and vice versa.






	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 Dana 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
Dana 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 Dana
licensed software for PeopleSoft from time to time during the Term as 




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	 	 	 	necessary to
maintain all applicable Service Levels. In addition, as part of the Services,
Service Provider will complete the installation and implementation of PeopleSoft
Version 8.9 as described in Schedule 3. In addition, Service Provider will perform
one additional technical upgrade to the PeopleSoft software during the Term with the
version specified by Dana. Service Provider will give Dana reasonable prior notice
of any significant changes associated with refresh and Dana may waive any such
changes that may involve risk to Dana’s business, increased Fees or other costs to
Dana.






	 	(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 Dana approvals required by this Agreement.
	 
	 	(C)	 	Subject to any Dana 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 Dana annually
on new technologies, practices and methodologies and emerging trends in the field of
human resource management and administration services; (2) if requested by Dana,
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 Dana Group, (c) to enhance the Dana 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.





ARTICLE 8. INTERNATIONAL SERVICES





	8.1	 	Worldwide Agreement. In executing this Agreement Dana engages Service Provider for
the provision of Services within the United States and for the benefit of selected non-US
Affiliates of Dana. 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.






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	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, Dana may direct
such Assignee to send such invoice to a designated Dana Affiliate in such country.






	8.3	 	Local Country Agreements. In order to conform to Laws and practices outside the
United States, Dana or selected Dana 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, Dana
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. Dana 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 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 Dana 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
Dana in connection with any modification, termination or cancellation of, or




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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 Dana receives in a timely manner
from a third party, Dana 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 Dana and Dana
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 Dana. Any fees or charges or other
liability or obligation imposed upon Dana 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 Dana, will be paid or discharged, as
applicable, by Service Provider.






	9.4	 	Managed Agreement Invoices.






	 	(A)	 	Except as otherwise provided herein, Dana 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 Dana for approval within a reasonable period of time before the due date
or, if a discount for prompt payment is offered and Dana notifies Service Provider that
Dana desires to take advantage of such discount, the date by which Dana must pay such
Managed Agreement invoice to receive the discount.
	 
	 	(C)	 	Dana 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 Dana 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 Dana due to such delay, unless Service Provider did not





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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
Dana of any service level failures under the Managed Agreements. Service Provider will
promptly notify Dana of any breach of, or misuse or fraud in connection with, any Managed
Agreements of which Service Provider becomes aware and will cooperate with Dana 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, Dana will
promptly notify Service Provider of any breach of, or misuse or fraud in connection with, any
Managed Agreements of which Dana becomes aware.





ARTICLE 10. SERVICE LOCATIONS





	10.1	 	Service Locations. The Services will be provided to Dana 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 Dana 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 Dana 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 Dana 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 Dana, Service
Provider will comply with the physical safety and security procedures that are
applicable to such locations as set forth in Schedule 19 (Dana Policies and Procedures)
and as modified from time to time.






	10.3	 	Information Security.






	 	(A)	 	Service Provider acknowledges that Dana has established, and during the Term
may amend, minimum appropriate levels of security for information residing on Dana
systems and for Dana Data residing on the Service Provider Systems.
	 
	 	(B)	 	Dana’s information security policies as of the Effective Date are set forth in
Schedule 14 (Dana Information Security Requirements). Dana may amend these security
policies on 30 days’ notice to Service Provider or such shorter notice




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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 (Dana Information Security Requirements) at all locations,
whether Dana 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 Dana Data, Service Provider will
immediately (1) notify the Dana Relationship Manager of such breach or potential breach
and (2) if the applicable Dana 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 Dana with assurance satisfactory to Dana that such breach or potential breach
will not recur.
	 
	 	(E)	 	Without limiting the foregoing, Service Provider agrees to administer adequate
safeguards, as determined by Dana, 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.
	 
	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 Dana written notice specifying the identity,





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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 Dana 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 Dana 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 Dana premises, Service Provider and Service Provider Agents will
(1) comply with the requests, standard rules and regulations of Dana regarding safety
and health, personal and professional conduct (including adhering to general safety
practices or procedures) generally applicable to such Dana premises, including those
set forth in Schedule 19 (Dana 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 Dana 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, which may include
(a) removing the applicable person from the Project Staff and providing Dana 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 Dana 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.




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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 Dana in their
implementation of Dana disaster recovery plans and Dana business continuity plans for
Dana Service Locations and will comply with Schedule 14 (Dana Information Security
Requirements) in connection with such plans. For Service Provider Service Locations,
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 Dana upon each such
test that each such plan is fully operational and provide Dana 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 Dana
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 will 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.




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	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, Dana may procure such Services from an alternate source and Service
Provider will reimburse Dana for the reasonable and actual costs and expenses incurred by Dana
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 Dana 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, Dana may at its sole discretion, effective as of a date specified by Dana 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 Dana
except as set forth in Schedule 6 (Fees); provided that, if Service Provider succeeds in
reinstating the Services, Dana 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 Dana 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, Dana
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. DANA RESPONSIBILITIES





	14.1	 	Dana Operational Responsibilities. Dana will have the operational responsibilities
set forth in Schedule 8 (Dana Operational Responsibilities and Resources) and, for a Project,
set forth in the Work Order.






	14.2	 	Dana Resources. Dana will make available to Service Provider the resources,
facilities, equipment, furnishings, fixtures and support set forth in Schedule 8 (Dana
Operational Responsibilities and Resources) and, for a Project, set forth in the Work Order
(“Dana Resources”) in accordance with the following provisions:






	 	(A)	 	the terms specified in Schedule 8 (Dana Operational Responsibilities and
Resources) or any other terms agreed between Dana and Service Provider in writing from
time to time will apply to the Dana Resources;





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	 	(B)	 	Service Provider will comply with any procedures specified in Schedule 8 (Dana
Operational Responsibilities and Resources) in relation to the Dana Resources;
	 
	 	(C)	 	except as expressly provided in this Agreement, Service Provider will use the
Dana Resources for the sole and exclusive purpose of providing the Services to Dana;
	 
	 	(D)	 	use by Service Provider of facilities that are included in the Dana 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 Dana
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 Dana, Dana 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 Dana 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 Dana Resources to the extent caused by Service Provider, its agents,
subcontractors, employees or invitees;
	 
	 	(H)	 	Service Provider will permit Dana and Dana agents to enter into those portions
of facilities that are included in the Dana 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
Dana Resources without Dana’s approval; and
	 
	 	(J)	 	when any facility that is included in the Dana Resources is no longer required
for performance of the Services for Dana, Service Provider will return such facility to
Dana in substantially the same condition as when Service Provider began using such
facilities, ordinary wear and tear excepted.






	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 Dana to perform a
prerequisite task. Service Provider will not have met its obligation with




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respect to the hindered task unless and until the Dana 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 Dana Resources will not constitute a breach of this Agreement or give rise
to any right to terminate this Agreement. If Dana fails to fulfill any of the
responsibilities set forth in Schedule 8 (Dana Operational Responsibilities and
Resources) or provide any Dana 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 Dana Relationship
Manager of Dana’s failure and if, after notifying the Dana Relationship
Manager, Dana 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, Dana 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
Dana for Service Provider’s performance of its obligations under this Agreement. Service
Provider will extend the Fees to other members of the Dana Group Companies as requested by
Dana.
	 
	15.2	 	Variable Fees. At the end of every month, Service Provider will review the volume of
those Services used by Dana 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
(Fees), Dana 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 Dana 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).




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	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 Dana
of such refund, credit or rebate and (2) pay to Dana the full amount of such refund, credit or
rebate. Service Provider will reimburse Dana 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 Dana. To the extent that this Agreement or Schedule 6 (Fees) specifically
identifies Pass-Through Expenses to be paid by Dana, such expenses will be passed through by
Service Provider with no mark-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 Dana on the status of late third-party vendor invoices and Service
Provider’s efforts to obtain them.






	15.8	 	Disputed Charges.






	 	(A)	 	Dana may withhold payment of any portion of an invoice that it disputes in good
faith, not to exceed *** (the “Withholding Cap”). In addition, Dana may, 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 Dana disputes in good faith any
portion of an invoice relating to a Project, Dana may 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, Dana
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.
	 
	 	(C)	 	Whenever Dana 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 Dana, or allocated between them, in accordance with the
resolution.




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	 	(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 Dana
or (B) is otherwise payable to Dana under this Agreement, Dana may deduct the entire amount
owed to Dana from the Fees or from the expenses owed by Dana 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. Dana may 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, Dana 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, Dana shall not engage any Benchmarker for which the
engagement would result in a violation of any applicable laws or regulations or
otherwise violate Dana’s then current audit service conflict policies. ***
	 
	 	(C)	 	Dana shall pay all charges, expenses and costs incurred by the Benchmarker in
performing the benchmarking described in this Section. The Service Provider will





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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
Dana may 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 Dana that at a minimum specifies that the
data provided by Dana 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. ***
	 
	 	(G)	 	For the purposes of this Section:






	 	(1)	 	“Representative Sample” for Benchmarked Services shall mean ***




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	 	(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 Dana (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 Dana
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.





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.




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	 	(B)	 	Dana 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)	 	Dana 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)	 	Dana 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. Dana 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 Dana, Service Provider and Service Provider Agents
will provide Dana, and any Governmental Authority or other third parties who are not Service
Provider Competitors and who are not hired on a contingency fee basis (“Dana 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 Dana 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 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 a Dana 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.




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	17.2	 	Fees Audits. Upon notice from Dana, Service Provider will provide Dana and Dana
Agents with access to such financial records and supporting documentation as may be requested
by Dana. Dana and Dana Agents may audit the Fees charged to Dana to determine if such Fees are
accurate and in accordance with this Agreement.






	 	(A)	 	If, as a result of such audit, Dana determines that Service Provider has
overcharged Dana, Dana 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 Dana 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
Dana.
	 
	 	(B)	 	In addition, if any such audit reveals an overcharge to Dana 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
Dana a credit against the Fees, or reimburse Dana, for the actual and reasonable cost
of such audit.






	17.3	 	Service Provider Audits.






	 	(A)	 	Service Provider will (1) promptly notify Dana 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 Dana 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.
	 
	 	(B)	 	Service Provider will have performed, and provide to Dana by December 31 of
each year a copy of, a SAS 70 Type II audit on Service Provider’s common controls
(Encompasses Service Provider’s internal control environment in support of services
provided across clients, including Dana, serviced in a location and includes those
items identified by Service Provider on a yearly basis to the Service Provider’s
independent public accountants as common controls that require testing. Service
Provider will provide timely (e.g., 30 days) notification to Dana of any material
changes in the common controls from those reported previously.) performed by the
Service Provider’s independent public accountants on the Service Provider’s primary
facilities where this type of audit is being





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performed for itself or other clients and which are 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 Dana access upon request to the records, documents and other information required
to meet Dana’s audit rights under this Agreement. Dana 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 Dana 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 Dana Auditors may reasonably require to perform the audits
described in this Article.
	 
	17.6	 	General.






	 	(A)	 	In performing audits, Dana 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 Dana Auditors to conduct, an exit conference with Service Provider to
obtain factual concurrence with issues identified in the review.
	 
	 	(C)	 	Dana will provide Service Provider with notice at least seventy-two (72) hours
prior to any operational or financial audit by Dana or the Dana Auditors; provided that
such notice will be waived if waiver is required by Law.
	 
	 	(D)	 	Prior to receiving access to Service Provider Proprietary Information, the Dana
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).






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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 Dana and Service Provider will make management decisions in
a timely manner and perform its responsibilities set forth in this Agreement.
	 
	18.3	 	Dana Appointments. Dana will appoint:






	 	(A)	 	a Dana Relationship Manager to manage the operation of this Agreement, in
accordance with its terms, for Dana. Wherever Dana’s approval is required under this
Agreement, Dana will only give that approval through the Dana Relationship Manager or a
duly authorized delegate of the Dana 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 Dana 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). Dana 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 Dana 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
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 Dana and Service Provider
reviewing Service Provider’s performance of the Services, (D) may raise any





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	 	 	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 Dana 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)	 	Dana may 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
Dana 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 Dana in developing Dana’s annual and quarterly financial
objectives and budgets.






	18.10	 	Aligning Project Staff with Dana 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 Dana 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 Dana. Accordingly, in the event of a dispute between Dana and Service 




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	 	 	Provider, subject to
Dana’s compliance with Section 15.8, Service Provider will not interrupt its provision of
Services to Dana, 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 Dana 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 Dana 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 Dana 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	 	Dana Software and Dana Tools.






	 	(A)	 	As between the Parties, Dana is the exclusive owner of the Dana Proprietary
Software and the Dana Proprietary Tools and Service Provider will have no rights or
interests in the Dana Proprietary Software or the Dana Proprietary Tools except as set
forth in this Agreement.
	 
	 	(B)	 	Dana 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
Dana Proprietary Software and the Dana Proprietary Tools, (2) Use (and as required to
provide the Services, to maintain, modify, enhance or create derivative works of) the
Dana Third Party Software and the Dana 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 




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	 	 	 	the Commencement Date, to the extent permissible under the applicable third-party
agreements. Schedule 16 (Software and Tools) sets forth the Dana Software and the
Dana 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 Dana Software and the Dana 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 Dana
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 Dana Group with such access to the Service Provider Software and the
Service Provider Tools as necessary or appropriate to enable the Dana Group Companies
to receive the benefit of the Services.
	 
	 	(C)	 	Service Provider will grant to the Dana Group Companies, effective upon the End
Date, to the extent necessary for Dana to achieve continuity of Service delivery:






	 	(1)	 	a global, perpetual, non-exclusive, non-transferable (except to
Affiliates of Dana or under a Restructure or Change in Control of Dana) license
to Use, and sublicense, and to permit a third party to Use solely in connection
with providing services to the Dana 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 Dana or under a Restructure or Change in Control of Dana), fully
paid-up license to Use, solely in connection with providing services to the
Dana Group, Service Provider Proprietary Software and Service Provider
Proprietary Tools that are not commercially available, on an AS-IS basis.






	 	(D)	 	Service Provider will grant to the Dana Group Companies, effective upon the End
Date, to the extent necessary for Dana to achieve continuity of Service delivery, a
perpetual, non-exclusive license for Dana 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 Dana (other than the recurring





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	 	 	 	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 Dana 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 Dana 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 Dana and its designees, for the purpose of providing services to Dana,
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 Dana. Dana 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 Dana 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 Dana and the successors and
permitted assigns of Dana may 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 Dana may 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
Dana 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.






	20.4	 	Interface Information. During the Term of this Agreement, Service Provider will
provide Dana with appropriate interface information to enable Dana 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 Dana with
appropriate interface information available from Service Provider to enable Dana to





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	 	 	develop
or replace any Service Provider Software if necessary for Dana 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 Dana Data. All Dana Data is, or will be, and will remain the property of
Dana. Without Dana’s approval (in its sole discretion), Dana 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 Dana without further consideration all of its and their right, title and interest in and to
Dana Data. Upon request by Dana, 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 Dana to enforce, its rights with respect to
Dana Data.






	21.2	 	Return of Data. Upon request by Dana at any time during the Term and upon expiration
or termination of this Agreement, Service Provider will (A) promptly return to Dana, in the
format and on the media reasonably requested by Dana, all or any part of Dana Data and (B)
erase or destroy all or any part of Dana Data in Service Provider’s possession, in each case
to the extent so requested by Dana 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 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





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	 	 	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 Dana, such Confidential Information
of Service Provider contained in the Service Provider Software or the Service Provider Tools
licensed to the Dana Group Companies after such expiration or termination.
	 
	22.5	 	Business Associate Agreement. Service Provider may be considered a “Business
Associate” of Dana 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




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	 	 	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 Dana) to
maintain compliance with applicable HIPAA
privacy and security requirements.
	 
	22.6	 	Data Protection Laws.






	 	(A)	 	Dana retains sole authority for determining and approving the purposes of
Service Provider’s processing of Dana Data, and Dana 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 Dana and the applicable Dana
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 Dana Data transferred to Service Provider or
the Service Provider Agent under this Agreement:






	 	(1)	 	Service Provider or the Service Provider Agent shall process
Dana 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 Dana Data;
	 
	 	(b)	 	take the agreed-upon operational and technical
security measures, as approved by Dana, to ensure that the Dana 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 Dana Data without the specific prior written approval of
Dana;
	 
	 	(d)	 	ensure that the Dana 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;
	 
	 	(e)	 	ensure that Dana Data received from Dana or a
Dana 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;




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	 	(f)	 	inform Dana 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 Dana 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 Dana. Dana 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)	 	Dana 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 Dana (1) has been
duly authorized by Dana and (2) will not conflict with, result in a breach of or
constitute a default under any other agreement to which Dana is a party or by which
Dana is bound;
	 
	 	(D)	 	Dana 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)	 	Dana is in compliance with all Laws applicable to Dana, and has obtained all
applicable permits and licenses required of Dana, in connection with its obligations
under this Agreement; and
	 
	 	(F)	 	there is no outstanding litigation, arbitrated matter or other dispute to which
Dana is a party that, if decided unfavorably to Dana, 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.




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	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;
	 
	 	(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;




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	 	(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 Dana 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 DANA 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 Dana. Dana covenants and agrees with Service Provider that during the Term and the
Termination Assistance Period:






	 	(A)	 	Dana will comply with all Laws applicable to its performance of the
responsibilities set forth in Schedule 8 (Dana Operational Responsibilities and
Resources) and otherwise to Dana in connection with its obligations under this
Agreement.
	 
	 	(B)	 	Except as otherwise provided in this Agreement, Dana will obtain all applicable
permits and licenses, including the Dana Governmental Approvals and the Dana Consents,
required of Dana in connection with its obligations under this Agreement.






	24.2	 	By Service Provider. Service Provider covenants and agrees with Dana that during the
Term and the Termination Assistance Period:




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	 	(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 Dana 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 Dana (but
Service Provider will promptly notify Dana 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 Dana Compliance Directive; or
	 
	 	(3)	 	for a violation of Law by Dana in performing its retained
responsibilities of Schedule 2 (Statement of Work) or violation of Laws by Dana
in the operation of Dana’s business.






	 	 	 	For purposes of this subsection (A), “Dana 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. Dana may issue Dana
Compliance Directives from time to time on its own initiative and, in any event,
will issue a Dana Compliance Directive within 30 days after receiving Service
Provider’s written request for a Dana 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 Dana, if
the workaround or change (1) is required 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





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	 	 	 	Dana may 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 Dana 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 Dana Software, the Retained Systems, the Work Product or the
Service Provider Systems and (2) will use commercially reasonable efforts to screen the
Dana 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 Dana
Software, the Work Product and the Service Provider Systems. If a virus or similar item
is found to have been introduced into the Dana Software, the Retained Systems, the Work
Product or the Service Provider Systems, Service Provider will assist Dana 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
Dana to the same extent to mitigate and restore such losses and mitigate such risk.
	 
	 	(G)	 	Without the consent of Dana, Service Provider will not insert into (1) the Dana
Software or the Retained Systems, (2) the Work Product, (3) the Service Provider
Software or the Service Provider Tools that Dana has the right to access or Use or (4)
the Software or Tools used to provide the Services any code that would have 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 Dana has the right to access or Use or (b)
the Software or Tools used to provide the Services, Service Provider will not





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	 	 	 	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, Dana
may 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 Dana. In the event of a Change in Control of
Dana, Dana may, 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, Dana may, by giving Service Provider at least *** days’ notice of
such termination, terminate this Agreement in its sole discretion if Dana reasonably believes
the new ownership would negatively impact Dana’s reputation in the marketplace or the Change
in Control involves a Dana Competitor, provided that such notice must be given within *** days
after the Change in Control occurs.






	25.4	 	Termination by Dana 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




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	 	 	Default Cure Period or (3) commits numerous breaches of its duties or obligations under this
Agreement that in the aggregate are material, then Dana may, 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 Dana 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 Dana may, 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
Dana may, 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. Dana may
terminate this Agreement by giving *** days’ notice to Service Provider if Dana has reasonable
grounds to determine that Service Provider may fail to perform its material obligations under
this Agreement and Service Provider cannot provide Dana 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
Dana 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.
	 
	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), ***.




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	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 Dana 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 Dana 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 Dana 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;
	 
	 	(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
Dana 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





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	 	(5)	 	set out a timetable and process for effecting Termination Assistance
Services that will enable Dana 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 Dana 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 Dana and potential successors designated by Dana such information as
Dana may 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 under this Agreement (until Dana 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 Dana regarding the terminated, insourced or resourced
Services on an “as needed” basis at Service Provider’s then-standard billing rates and
(2) deliver to Dana any remaining Dana-owned reports and documentation




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	 	 	 	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 Dana does
not possess a current copy of the Dana Software, will cause Service Provider Agents to
(1) deliver to Dana, at no cost to Dana, a current copy of the Dana Software in the
form in use as of the End Date and (ii) destroy or erase all other copies of the Dana
Software in Service Provider’s or Service Provider Agents’ possession. Service Provider
will, upon Dana’s request, certify to Dana that all such copies have been destroyed or
erased.
	 
	 	(B)	 	Upon Dana’s request, Service Provider will sell to Dana 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
Dana 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 Dana 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 Dana 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
Dana as provided in subsections (C) and (D) of Section 20.2, Service Provider will
deliver to Dana a copy of the Service Provider Software and Service Provider Tools, in
the form in use as of the End Date.






	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 Dana with the name of each Affected Project
Staff Member and a description of job responsibilities, (2) provide Dana and its
designees, at their option, reasonable access, in a manner agreed upon by





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	 	 	 	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 Dana 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 Dana 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 Dana exercises any such right, Service Provider will notify Dana 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 Dana 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 Dana may be irreparably harmed if Service Provider were to fail or threaten not to
provide Dana with Termination Assistance Services, and that Dana may 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 Dana. Dana 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:






	 	(A)	 	that the Dana Software or Dana Tools infringe upon or misappropriate the
proprietary or other rights of any third party; provided that Dana will not have any
indemnity obligation under this subsection (A) to the extent any infringement or
misappropriation relates to:






	 	(1)	 	any item of Dana Third Party Software or Dana Third Party Tool
that, with Service Provider’s specific prior written consent, is excluded from
indemnification under this subsection (A);




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	 	(2)	 	modifications made or authorized by Service Provider or a
Service Provider Agent, without the approval of Dana;
	 
	 	(3)	 	Service Provider’s use of the Dana Software or Dana Tools in
combination with products or services not furnished or approved by Dana and not
contemplated by this Agreement;
	 
	 	(4)	 	a breach of the Dana Consents by Service Provider; or
	 
	 	(5)	 	the failure of Service Provider to use corrections or
modifications provided by Dana 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 Dana 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 Dana or Dana Agents (and Dana 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 Dana or Dana Agents to Affected Employees or other Dana employees that were not
authorized by Service Provider;
	 
	 	(E)	 	any action taken by Dana 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 Dana 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 Dana or Dana Agents with respect
to one another, (2) liability under any Assigned Agreement based on acts or omissions
of Dana or Dana Agents before the applicable Assigned Agreement Effective Date and (3)
liability under any Managed Agreement based on acts or omissions of Dana or Dana Agents
for which Dana 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 Dana has agreed to be
responsible, under the terms of Schedule 18 (Human Resources);




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	 	(J)	 	relating to Dana’s failure to obtain, maintain or comply with the Dana Consents
and the Dana Governmental Approvals or to comply with the Service Provider Consents;
	 
	 	(K)	 	relating to use by Dana 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.






	 	 	Dana 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 Dana and its
Affiliates against, and defend and hold Dana and its Affiliates harmless from and against, any
Losses suffered, incurred or sustained by Dana or its Affiliates or to which Dana 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 Dana Software performed by Service Provider or Service Provider
Agents or any other resources or items provided to Dana 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 Dana or a Dana 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;
	 
	 	(4)	 	a breach of the Service Provider Consents by Dana;
	 
	 	(5)	 	the failure of Dana 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.




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	 	(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 Dana, 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 Dana;
	 
	 	(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 Dana Consents;
	 
	 	(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 Dana that are the obligation of Service Provider under Article 16;






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	 	(M)	 	relating to use by Service Provider of any Dana Third Party Software or Dana
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 Dana 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 Dana 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 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




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	 	 	reasonable opinion is likely to
become, the subject of an
infringement or misappropriation
claim or proceeding, then
Service Provider will promptly
notify Dana 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 Dana 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 Dana will
promptly notify Service Provider
of such claim or proceeding, and
unless and until Dana 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)	 	***
	 
	 	(B)	 	Notwithstanding the foregoing, the following damages are agreed to be included
within direct damages and not excluded by this Section 29.2: ***.




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	29.3	 	Exceptions.






	 	(A)	 	***






	 	(1)	 	***
	 
	 	(2)	 	***
	 
	 	(3)	 	***






	 	(B)	 	***






	 	(1)	 	***






	 	(C)	 	***






	 	(1)	 	***
	 
	 	(2)	 	***






	 	(D)	 	***






	29.4	 	***






	 	(A)	 	***




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	 	(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 Dana:






	 	(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;
	 
	 	(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;




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	 	(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 subject to the terms and
conditions of the policy, with a minimum limit of *** per occurrence and *** in
aggregate. Certificate will state policy limits are in effect in full force;
	 
	 	(F)	 	fidelity bond/crime insurance, naming Dana 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. This layer may be self insured.






	 	 	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, meaning (C) and (D) only, will be written or endorsed so that they are
primary coverages and not excess or contributory to any coverages maintained by Dana.
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.
	 
	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 Dana certificates of insurance or other




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	 	 	appropriate documentation (including evidence of renewal of insurance) evidencing all
coverages referenced in Section 30.1 and naming Dana 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 Dana. With regard to the coverages referenced in
Section 30.1.(E) and 30.1.(F), Service Provider will provide Dana 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,
subject to the terms and conditions of the policy, and that the limits are in full force and
effect. If Service Provider or its broker cannot provide such written certification, then
Service Provider will provide (i) a written statement that the limits are in full force and
effect, (ii) a written summary of the coverage provided by either the Service Provider or
the Service Provider’s insurance broker detailing the terms and conditions including the
covered and excluded perils, as previously provided and (iii) a written statement, if there
are any changes that need to be made to the summary provided by the Service Provider.
Otherwise Parties understand this summary is still current to the best of Service Provider’s
knowledge.
	 
	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 Provider maintains an investment grade
credit rating by Moody’s 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
Dana may assign or otherwise transfer its rights and obligations under this Agreement to any
Affiliate of Dana, 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




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	 	 	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:




In the case of Dana:



Dana Corporation

4500 Dorr Street

Toledo, Ohio 43615

Attention: Vice President, Human Resources

Telecopy No.: 419-535-4790



With a copy to:



Dana Corporation

4500 Dorr Street

Toledo, Ohio 43615

Attention: General Counsel

Telecopy No.: 419-535-4790



In the case of Service Provider:



IBM Corporation

Rt. 100, Bldg. 2

Somers, NY 10589

Attention: VP, BTO Industrial

Telecopy No.: (914) 766-2500



With a copy to:



IBM Corporation

Rt. 100, Bldg. 2

Somers, NY 10589

Attention: Associate General Counsel

Telecopy No.: (914) 766-4344





	 	 	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 Dana 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,




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	 	 	agent or contractor of Dana. 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
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 Dana 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. Dana 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.




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	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 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 mark, or use language
from which the connection of such name or mark may 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 Dana, and the
Services, free and clear of all liens or lien claims. If any lien or lien claim is asserted
for any reason, Dana may 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 Dana.





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;




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	 	(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
	 
	 	(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 Lucas 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 Dana 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 Dana 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.




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	 	(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
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




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	 	(c)	 	a Schedule will prevail over a conflicting term
in the Exhibits.





          Each of Dana and Service Provider has caused this Agreement to be signed and delivered by its
duly authorized representative on this 26th day of September, 2007.




	 	 	 	 	 
	 	DANA CORPORATION

 	 
	 	By:  	/s/ Dean Wilson
 	 
	 	 	Name:  	Dean Wilson 	 
	 	 	Title:  	VP HR Transformation 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	INTERNATIONAL BUSINESS MACHINES CORPORATION

 	 
	 	By:  	/s/ Michael A Paez
 	 
	 	 	Name:  	Michael A Paez 	 
	 	 	Title:  	IBM Project Executive 	 
	 




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