**Exhibit 10.2**

 

**INFORMATION TECHNOLOGY**

 

**SERVICEAGREEMENT**

 

 

**BETWEEN**

 

**INVESTORSBANK & TRUST COMPANY**

 

 

**AND**

 

 

**INTERNATIONALBUSINESS MACHINES CORPORATION**

 

**[THE“PROVIDER”]**

 

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**TABLE OFCONTENTS**

 
| **1.** | **SCOPE OF  SERVICES**                   |                                                    |
|--------|------------------------------------------|---------------------------------------------------------|
|   | 1.1                                      | GENERAL DESCRIPTION OF SERVICES                         |   |
|   |                                     | *1.1.1 Scope of  Services.*                             |   |
|   | 1.2                                      | TRANSITION                                              |   |
|   |                                     | *1.2.1  Transition Services*                            |   |
|   |                                     | *1.2.2 Critical Milestones*                             |   |
|   |                                     | *1.2.3 Progress Reports*                                |   |
|   | 1.3                                      | MANAGEMENT SERVICES                                     |   |
|   |                                     | *1.3.1  Procurement*                                    |   |
|   |                                     | *1.3.2 Disaster  Recovery*                              |   |
|   |                                     | *1.3.3 Security  Management*                            |   |
|   | 1.4                                      | TECHNOLOGY  MANAGEMENT; UPGRADES AND ENHANCEMENTS       |   |
|   |                                     | *1.4.1 Technological  Enhancements*                     |   |
|   |                                     | *1.4.2 Technology  Planning*                            |   |
|   |                                     | *1.4.3 Technology  Upgrades*                            |   |
|   |                                     | *1.4.4 Shared  Use Assets*                              |   |
|   | 1.5                                      | VIRUSES  AND DISABLING DEVICES                          |   |
|   | 1.6                                      | END-USER  SATISFACTION AND COMMUNICATION                |   |
|   | 1.7                                      | STANDARDS  AND PROCEDURES MANUAL                        |   |
|   |                                     | *1.7.1 Development  of Manual*                          |   |
|   |                                     | *1.7.2  Content of Manual*                         |   |
|   | 1.8                                      | SERVICE  COMPATIBILITY                                  |   |
|   | 1.9                                      | MASLS                                                   |   |
|   |                                     | *1.9.1 Commitment to  MASLs*                            |   |
|   |                                     | *1.9.2 MASL Measurement  and Reporting*                 |   |
|   |                                     | *1.9.3 Root-Cause  Analysis and Resolution*             |   |
|   |                                     | *1.9.4 Improvements  in Performance*                    |   |
|   |                                     | *1.9.5 Service  Compliance Relief*                      |   |
|   | 1.10                                     | EXCLUSIVITY  / NON-EXCLUSIVITY                          |   |
|   |                                     |                                                    |   |
| **2.** | **ASSETS AND  THIRD-PARTY CONTRACTS**    |                                                    |
|   | 2.1                                      | INVESTORS-OWNED  ASSETS                                 |   |
|   | 2.2                                      | INVESTORS-LEASED  ASSETS                                |   |
|   | 2.3                                      | THIRD-PARTY  APPROVALS                                  |   |
|   | 2.4                                      | RETURN  OF INVESTORS ASSETS                             |   |
|   | 2.5                                      | PROVISION  OF PROVIDER ASSETS                           |   |
|   |                                     | *2.5.2 Provision of  Provider Assets to Investors*      |   |
|   |                                     | *2.5.3  Installation of Provider Assets*                |   |
|   |                                     | *2.5.4 Maintenance of  Provider Assets*                 |   |
|   | 2.6                                      | RETURN  AND ACQUISITION OF PROVIDER ASSETS BY INVESTORS |   |
|   | 2.7                                      | INVESTORS  MAINTENANCE AGREEMENTS                       |   |
|   | 2.8                                      | FURTHER  ASSURANCES                                     |   |
|   |                                     |                                                    |   |
| **3.** | **HUMAN RESOURCES**                      |                                                    |
|   | 3.1                                      | EMPLOYEES                                               |   |
|   | 3.1.2                                    | INVESTORS IN-SCOPE EMPLOYEE                             |   |
|   |                                     |                                                    |   |
| **4.** | **PROVISION OF RESOURCES  BY INVESTORS** |                                                    |
|   | 4.1                                      | OFFICE  SPACE AND FURNISHINGS                           |   |
|   | 4.2                                      | DESIGNATED  RESOURCES                                   |   |
|   | 4.3                                      | ACCESS  TO PERSONNEL AND INFORMATION                    |   |

 

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|    | 4.4                                                                  | OTHER FACILITY-RELATED  OBLIGATIONS                 |   |
|---------|----------------------------------------------------------------------|-----------------------------------------------------|--------|
|    |                                                                 |                                                |   |
| **5.**  | **RETAINED  AUTHORITY**                                              |                                                |
|    | 5.1                                                                  | STRATEGIC AND OPERATIONAL  PLANNING                 |   |
|    | 5.2                                                                  | SERVICE DESIGN AND DELIVERY                         |   |
|    | 5.3                                                                  | MOVES,  ADDS, AND CHANGES; APPLICATIONS DEVELOPMENT |   |
|    | 5.4                                                                  | BUSINESS PROCESS REENGINEERING                      |   |
|    | 5.5                                                                  | CONTRACT  MANAGEMENT                                |   |
|    | 5.6                                                                  | BUDGET  MANAGEMENT                                  |   |
|    | 5.7                                                                  | VALIDATION AND VERIFICATION                         |   |
|    | 5.8                                                                  | OTHER RETAINED AUTHORITY                            |   |
|    | 5.9                                                                  | REVIEW AND ACCEPTANCE                               |   |
|    |                                                                 | *5.9.1  Acceptance Testing*                         |   |
|    |                                                                 | *5.9.2 Cure*                                        |   |
|    |                                                                 | *5.9.3 Final  Acceptance*                           |   |
|    |                                                                 |                                                |   |
| **6.**  | **FINANCIAL TERMS**                                                  |                                                |
|    | 6.1                                                                  | ANNUAL SERVICE FEES                                 |   |
|    |                                                                 | *6.1.1 Annual  Service Fees*                        |   |
|    |                                                                 | *6.1.2 Currency / Charges*                          |   |
|    |                                                                 | *6.1.3 Annual  Services Fees Invoice*               |   |
|    |                                                                 | *6.1.4 Adds Charges*                                |   |
|    |                                                                 | *6.1.5 Other Charges*                               |   |
|    |                                                                 | *6.1.6 Deletes  Credits*                            |   |
|    |                                                                 | *6.1.8 Monthly Usage  Charge*                       |   |
|    | PRICING AUDIT                                                        |                                                |
|    | 6.3                                                                  | REDUCTION OF PAYMENTS                               |   |
|    | 6.4                                                                  | TAXES                                               |   |
|    | 6.5                                                                  | BENCHMARKING                                        |   |
|    | 6.6                                                                  | WORK ORDERS                                         |   |
|    | 6.7                                                                  | INITIATIVES                                         |   |
|    | 6.8                                                                  | INCENTIVES AND FEE REDUCTIONS                       |   |
|    | 6.10                                                                 | DISPUTED AMOUNTS                                    |   |
|    |                                                                 |                                                |   |
| **7.**  | **RELATIONSHIP  MANAGEMENT**                                         |                                                |
|    | 7.1                                                                  | PERSONNEL                                           |   |
|    |                                                                 | *7.1.1 Provider’s  Key Personnel*              |   |
|    |                                                                 | *7.1.2 Provider  Contract Manager*                  |   |
|    |                                                                 | *7.1.3 Additional  Personnel Requirements*          |   |
|    |                                                                 | *7.1.4 Minimum  Proficiency Levels*                 |   |
|    |                                                                 | *7.1.5 Specialized  Personnel*                      |   |
|    |                                                                 | *7.1.6 Training*                                    |   |
|    |                                                                 | *7.1.7 Replacement  of Personnel*                   |   |
|    |                                                                 | *7.1.8  Conduct of Provider Personnel*              |   |
|    | 7.2                                                                  | MANAGEMENT COMMITTEE                                |   |
|    | 7.3                                                                  | PARTIES’ RELATIONSHIP                          |   |
|    | 7.4                                                                  | WORK ORDER PROCEDURES; CHANGE  MANAGEMENT PROCEDURE |   |
|    | 7.5                                                                  | EXTRAORDINARY EVENTS OR  CIRCUMSTANCES              |   |
|    |                                                                 |                                                |   |
| **8.**  | **INITIATIVES**                                                      |                                                |
|    | 8.1                                                                  | INITIATIVE REQUIREMENTS AND  PROCESS                |   |
|    | 8.2                                                                  | COOPERATION AND COORDINATION                        |   |
|    |                                                                 |                                                |   |
| **9.**  | **PROPRIETARY  RIGHTS [CUT AND PASTE IP LANGUAGE ONCE WE FINALIZE]** |                                                |
|    |                                                                 |                                                |   |
| **10.** | **SECURITY AND  PROTECTION OF INFORMATION**                          |                                                |
|    | 10.1                                                                 | SECURITY                                            |   |
|    |                                                                 | *10.1.1Security  and Policies*                      |   |
|    |                                                                 | *10.1.2  Information Access*                        |   |

 

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|    |                                    | *10.1.3  Background Checks*                                                   |   |
|---------|-----------------------------------------|-------------------------------------------------------------------------------|--------|
|    |                                    | *10.1.4 Other  Policies*                                                      |   |
|    |                                    | *10.1.5 Minimum Security  Standards and Audit*                                |   |
|    | 10.2                                    | PROTECTION OF CONFIDENTIAL  INFORMATION                                       |   |
|    |                                    | *10.2.1  Nondisclosure; Policies and Procedures*                              |   |
|    | 10.3                                    | LEGALLY REQUIRED DISCLOSURE                                                   |   |
|    | 10.4                                    | NOTIFICATION                                                                  |   |
|    | 10.5                                    | INJUNCTIVE RELIEF                                                             |   |
|    | 10.6                                    | RETURN OF CONFIDENTIAL INFORMATION                                            |   |
|    | 10.7                                    | RESIDUAL INFORMATION                                                          |   |
|    |                                    |                                                                          |   |
| **11.** | **TERM**                                |                                                                          |
|    | 11.1                                    | INITIAL TERM; RENEWALS                                                        |   |
|    |                                    | *11.1.1 Initial  Term and Appropriations*                                     |   |
|    |                                    | *11.1.2  Notification of Expiration*                                          |   |
|    |                                    | *11.1.3 Renewal by  Investors*                                                |   |
|    |                                    | *11.1.4 Extensions by  Investors*                                             |   |
|    | 11.2                                    | EARLY TERMINATION                                                             |   |
|    |                                    | *11.2.1 For  Convenience*                                                     |   |
|    |                                    | *11.2.2 For Missed  MASLs*                                                    |   |
|    | 11.5                                    | TERMINATION FOR FORCE MAJEURE  EVENT                                          |   |
|    |                                    |                                                                          |   |
| **12.** | **DISENTANGLEMENT**                     |                                                                          |
|    | 12.1                                    | GENERAL OBLIGATIONS                                                           |   |
|    | 12.2                                    | DISENTANGLEMENT PROCESS                                                       |   |
|    | 12.3                                    | SPECIFIC OBLIGATIONS                                                          |   |
|    |                                    | *12.3.1 Full  Cooperation and Information*                                    |   |
|    |                                    | *12.3.2 No  Interruption or Adverse Impact*                                   |   |
|    |                                    | *12.3.3  Third-Party Authorizations*                                          |   |
|    |                                    | *12.3.4 Licenses  to Proprietary Software*                                    |   |
|    |                                    | *12.3.5 Transfer  of Leases, Licenses, and Contracts*                         |   |
|    |                                    | *12.3.6 Delivery  of Documentation*                                           |   |
|    |                                    | *12.3.7 Hiring of  Employees*                                                 |   |
|    | 12.4                                    | PREPARATION FOR  DISENTANGLEMENT                                              |   |
|    |                                    | *12.4.1  Maintenance of Assets*                                               |   |
|    |                                    | *12.4.2 All  Necessary Cooperation and Actions*                               |   |
|    |                                    |                                                                          |   |
| **13.** | **REMEDIES;  LIMITATIONS OF LIABILITY** |                                                                          |
|    | 13.3                                    | LIMITATION OF LIABILITY AND  DISCLAIMERS                                      |   |
|    | 13.5                                    | FORCE MAJEURE EVENTS                                                          |   |
|    |                                    |                                                                          |   |
| **14.** | **INSURANCE**                           |                                                                          |
|    | 14.1                                    | REQUIRED GENERAL LIABILITY INSURANCE  COVERAGE                                |   |
|    |                                    | *14.1.1  Commercial General Liability Insurance*                              |   |
|    |                                    | *14.1.2  Required General Liability Policy Coverage*                          |   |
|    |                                    | *14.1.3  Additional Insureds*                                                 |   |
|    |                                    | *14.1.4  Primary Insurance Endorsement*                                       |   |
|    |                                    | *14.1.5 Form  of General Liability Insurance Policies*                        |   |
|    | 14.2                                    | BUSINESS AUTOMOBILE  LIABILITY INSURANCE                                      |   |
|    | 14.3                                    | STATUTORY WORKERS’  COMPENSATION AND EMPLOYERS’ LIABILITY INSURANCE |   |
|    | 14.5                                    | GENERAL PROVISIONS                                                            |   |
|    |                                    | *14.5.1 Evidence of Insurance*                                                |   |
|    |                                    | *14.5.2 Claims-Made  Coverage*                                                |   |
|    |                                    | *14.5.3  Notice of Cancellation or Change of Coverage*                        |   |
|    |                                    | *14.5.4  Qualifying Insurers*                                                 |   |
|    |                                    |                                                                          |   |
| **15.** | **INVOICES  AND REPORTS**               |                                                                          |
|    | 15.1                                    | INVOICES                                                                      |   |
|    |                                    | *15.1.1 General*                                                              |   |

 

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|    |                                      | *15.1.2  Fee-Reductions*                                     |   |
|---------|-------------------------------------------|--------------------------------------------------------------|--------|
|    |                                      | *15.1.3 Work Orders*                                         |   |
|    |                                      | *15.1.4 Initiatives*                                         |   |
|    | 15.2                                      | REPORTS                                                      |   |
|    |                                      | *15.2.1 General*                                             |   |
|    |                                      | *15.2.2 Media*                                               |   |
|    |                                      |                                                         |   |
| **16.** | **RECORDKEEPING AND AUDIT  RIGHTS**       |                                                         |
|    | 16.1                                      | RECORDKEEPING                                                |   |
|    | 16.2                                      | OPERATIONAL AUDIT RIGHTS                                     |   |
|    |                                      |                                                         |   |
| **17.** | **LEGAL COMPLIANCE**                      |                                                         |
|    |                                      |                                                         |   |
|    | 17.1                                      | COMPLIANCE WITH ALL LAWS AND REGULATIONS                     |   |
|    |                                      |                                                         |   |
| **18.** | **REPRESENTATIONS AND  WARRANTIES**       |                                                         |
|    | 18.1                                      | PROVIDER REPRESENTATIONS, WARRANTIES,  AND RELATED COVENANTS |   |
|    |                                      | *18.1.1  Performance of the Services*                        |   |
|    |                                      | *18.1.2 Y2K  Compliance*                                     |   |
|    |                                      | *18.1.4  Litigation and Service of Process*                  |   |
|    |                                      | *18.1.5 Legal  and Corporate Authority*                      |   |
|    |                                      | *18.2.1  Legal and Corporate Authority*                      |   |
|    |                                      | *18.2.2 Disclaimer*                                          |   |
|    | 18.3                                      | WARRANTY DISCLAIMER                                          |   |
|    |                                      |                                                         |   |
| **19.** | **INDEMNIFICATION**                       |                                                         |
|    |                                      | *19.1  Technology Indemnification by Provider*               |   |
|    |                                      | *19.2 Injury, Property, or Other Damage*                     |   |
|    |                                      | *19.3 Third-Party  Contracts*                                |   |
|    |                                      | *19.4 Transitioned  Employees*                               |   |
|    |                                      | *19.5  Hazardous Material*                                   |   |
|    |                                      | *19.6  Proprietary Information Disclosure*                   |   |
|    |                                      | *19.7  Investors Technology*                                 |   |
|    |                                      |                                                         |   |
| **20.** | **DISPUTE  RESOLUTION**                   |                                                         |
|    | 20.1                                      | RESOLUTION PROCESS                                           |   |
|    | 20.2                                      | LEGAL ACTION                                                 |   |
|    | 20.4                                      | NO TERMINATION OR SUSPENSION OF  SERVICES                    |   |
|    | 20.5                                      | NO LIMITATION ON REMEDIES FOR  DEFAULT                       |   |
|    |                                      |                                                         |   |
| **21**  | **APPROVAL OF  PROMOTIONS**               |                                                         |
|    |                                      |                                                         |   |
| **22.** | **USE OF AFFILIATES  AND SUBCONTRACTORS** |                                                         |
|    | 22.1                                      | APPROVAL; KEY SUBCONTRACTORS                                 |   |
|    | 22.2                                      | SUBCONTRACTOR AGREEMENTS                                     |   |
|    | 22.3                                      | LIABILITY AND REPLACEMENT                                    |   |
|    | 22.4                                      | DIRECT AGREEMENTS                                            |   |
|    |                                      |                                                         |   |
| **23.** | **DEFINITIONS**                           |                                                         |
|    |                                      |                                                         |   |
| **24.** | **MISCELLANEOUS**                         |                                                         |
|    | 24.1                                      | ENTIRE AGREEMENT                                             |   |
|    | 24.3                                      | CAPTIONS; REFERENCES; TERMINOLOGY                            |   |
|    | 24.4                                      | ASSIGNMENT                                                   |   |
|    | 24.5                                      | NOTICES TO A PARTY                                           |   |
|    | 24.6                                      | AMENDMENTS;  WAIVERS                                         |   |
|    | 24.7                                      | RELATIONSHIP BETWEEN, AND LEGAL STATUS  OF, THE PARTIES      |   |
|    | 24.8                                      | SEVERABILITY                                                 |   |
|    | 24.9                                      | COUNTERPARTS                                                 |   |
|    | 24.10                                     | LAWS AND REGULATIONS                                         |   |
|    | 24.11                                     | VENUE AND JURISDICTION                                       |   |
|    | 24.12                                     | NO THIRD-PARTY BENEFICIARIES                                 |   |
|    | 24.13                                     | EXPENSES                                                     |   |

 

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|   | 24.14 | SURVIVAL                         |   |
|--------|-------|----------------------------------|--------|
|   | 24.15 | NEITHER PARTY CONSIDERED DRAFTER |   |

 

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**SCHEDULES**

 
| Schedule A |   | Distributed  Computing Services                                                                   |
|-----------------|--------|---------------------------------------------------------------------------------------------------|
|            |   |                                                                                              |
| Schedule B |   | Enterprise  Network Communication Services                                                        |
|            |   |                                                                                              |
| Schedule C |   | Help  Desk Services                                                                               |
|            |   |                                                                                              |
| Schedule D |   | On  Demand Data Center Services                                                                   |
|            |   |                                                                                              |
| Schedule E |   | Pricing  Schedule                                                                                 |
|            |   |                                                                                              |
| Schedule F |   | Incentives  and Fee Reductions                                                                    |
|            |   |                                                                                              |
| Schedule G |   | Invoice  and Reports                                                                              |
|            |   |                                                                                              |
| Schedule H |   | Relationship  Management                                                                          |
|            |   |                                                                                              |
| Schedule I |   | Provider’s  Key Personnel                                                                    |
|            |   |                                                                                              |
| Schedule J |   | *None*                                                                                            |
|            |   |                                                                                              |
| Schedule K |   | Security  Matters; Investors Security Policy                                                      |
|            |   |                                                                                              |
| Schedule L |   | Assets  – (Investors-Owned Assets, Provider Assets, Shared Use Assets, and Acquired  Assets) |
|            |   |                                                                                              |
| Schedule M |   | List  of Assigned Contracts                                                                       |
|            |   |                                                                                              |
| Schedule N |   | Leases                                                                                            |
|            |   |                                                                                              |
| Schedule O |   | Change  Management Procedures (Sample Forms)                                                      |
|            |   |                                                                                              |
| Schedule P |   | *None*                                                                                            |
|            |   |                                                                                              |
| Schedule Q |   | List  of Non-Approved Subcontractors and Key Subcontractors                                       |
|            |   |                                                                                              |
| Schedule R |   | In-Scope  Locations                                                                               |
|            |   |                                                                                              |
| Schedule S |   | Transition  Plan                                                                                  |
|            |   |                                                                                              |
| Schedule T |   | IBM  Business Conduct Guidelines                                                                  |
|            |   |                                                                                              |
| Schedule U |   | In-Scope  Employees                                                                               |
|            |   |                                                                                              |
| Schedule V |   | Auditors  Confidentiality Agreement                                                               |
|            |   |                                                                                              |
| Schedule W |   | Preexisting  Conditions                                                                           |
|            |   |                                                                                              |
| Schedule X |   | Web  Hosting Services                                                                             |
|            |   |                                                                                              |
| Schedule Y |   | Communications  Lines                                                                             |

 

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| Schedule Z |   | IT  Scheduled Audits |
|-----------------|--------|----------------------|

 

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**INFORMATIONTECHNOLOGY**

 

**SERVICESAGREEMENT**

 

This **INFORMATION TECHNOLOGY SERVICE AGREEMENT**(the“**Agreement**”)is entered into as of the latest date following the signatures of the Parties(the “**ContractSigning Date**”), by and between **Investors Bank & Trust Company**, aMassachusetts Trust Company, (“**Investors**”) with corporate offices at 200Clarendon Street, Boston, MA 02117, and **International Business Machines Corporation**,a New York corporation, (“**Provider**”) with corporate offices at NewOrchard Road, Armonk, New York 10504.

**RECITALS**

 

**WHEREAS**, Investors and Provider desire to enter into this Agreement wherebyProvider will act as an external supplier of certain information technologyservice requirements of Investors, as set forth and subject to the terms andconditions herein.

 

**NOW,THEREFORE**, inconsideration of the mutual promises and covenants contained herein, thereceipt, sufficiency, and adequacy of which are hereby acknowledged, theParties, intending to be legally bound, hereby contract and agree as follows:

** **

# **1.             SCOPE OFSERVICES**

# ** **

## 1.1   General Description ofServices

##  

*Subject at alltimes to Investors’ exercise of its management and oversight functions andprerogatives, as identified in **Section 5** or otherwise, and subject tothe provisions of the Agreement hereof, Provider shall perform all of theServices outlined in this Agreement, including those in this **Section 1**,and all Schedules attached to this Agreement, in which obligations of Investorsand Provider are set forth in detail.*

* *

*In all cases,Provider shall deliver high-quality, value-added services that assist Investorsin effectively utilizing information technology (“**IT**”) to increase theefficiency and productivity of Investors’ business operations. Unless otherwiseexpressly stated in the Schedules to this Agreement or elsewhere in thisAgreement, Provider shall commence all Services under this Agreement at 12:01a.m., local time, on the 1st day of July 2004 (“**ContractEffective Date**”).*

* *

### **1.1.1       Scope of Services.**

### ** **

Starting on the *Contract Effective Date* and continuingduring the Term, Provider shall provide and perform the Services to and forInvestors as follows:

 

(a)           each of the services specifically described and defined inthis **Section 1**,the any Services schedule (including, as of the Contract Signing Date, **Schedules A**,**Schedule B**,**Schedule C**,**Schedule D**,and **Schedule X)**(collectively “**Services Schedules**”), or services described elsewhere in thisAgreement to the extent of the “**Baselines**” or “**Forecasted Monthly Usage”**(aseach term is defined in **Schedule E**) as applicable and as setforth in **Schedule E**;and

 

(b)           if any services, functions, responsibilities or tasks notspecifically described in **Section 1.1.1(a)** are required for theproper performance and provision of the services described in **Section 1.1.1(a)**and are an inherent part of, or a necessary sub-part included within, theservices described above and elsewhere in this Agreement, such services,functions, responsibilities and tasks shall be deemed to be implied by andincluded within the scope of the Services to the same extent and in the samemanner as if specifically described in this Agreement.

 

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## 1.2   Transition

##  

### **1.2.1       TransitionServices**

### ** **

## Provider shall accomplishthe transparent, seamless, and orderly (which would include, but is not limitedto, uninterrupted compliance with all Initial MASLs as identified in **Schedule F**)transition (“**Transition**”) from the manner in which Investors currently(prior to the Contract Effective Date) receives the services defined in **Section 1.1.1**of this Agreement (“**Current Services**”) to the performance ofServices by Provider, as described in this Agreement, which shall includecooperation on the part of Investors (as may be specifically required by thisAgreement).

 

### **1.2.2       Critical Milestones**

### ** **

## The Parties recognize andagree that the timely performance of the services related to the Transition (“**TransitionServices**”), is required for a successful Transition and they havedesignated certain Transition Services actions and projects in this Agreementas Critical Milestones.  The specificTransition Services and the completion criteria for the Critical Milestoneswill be identified in the Transition Plan. If Provider fails to meet anyCritical Milestone by the date corresponding thereto, except as otherwise setforth in **Section 1.9.5**,Provider shall be subject to Incentives and Fee Reductions pursuant to **Schedule F**hereof.

 

### **1.2.3       Progress Reports**

### ** **

## Provider shall provide tothe Investors CIO (or an Investors Representative) a written update as to theprogress of the Transition Plan implementation, at least monthly until suchimplementation and each of the Parties’ responsibilities thereunder have beenmet.

 

## 1.3   ManagementServices

##  

## Commencing at 12:01 a.m.,local time, on the Contract Effective Date, and at all times thereafter duringthe Term, Provider shall perform, at all in-scope locations (“**In-ScopeLocations**”), as described in **Schedule R**, all Services under thisAgreement. .

 

### **1.3.1       Procurement**

### ** **

## Except for Provider Assetsand Shared Use Assets (including any upgrades to those foregoing assets), andexcept as otherwise agreed to by the Parties in writing, Investors shallprocure for Provider’s use in providing the Services, all hardware, needed andspecially required (and not already provided by Provider in the form of SharedUse Assets or Provider Assets) in order for Provider to provide the Services inaccordance with this Agreement (“**Procured Assets**”); provided, however, thatProvider shall offer reasonable assistance in evaluating potential suppliers(including offering opinions on proposed technology changes).   Provider shall also offer reasonableassistance in negotiating rates and contract terms related to Procured Assetsto the extent those Procured Assets relate to the Services.  With regard to each category of ProcuredAssets, Provider will negotiate with Investors in good faith to agree inadvance to a discount off list price arrangement for each category of ProcuredAssets to be purchased or leased. The discount off list price for each categoryof Procured Assets will be valid for the period of time that is mutually agreedto between the Parties. The Parties will document its mutual agreementregarding the initial discount off list price arrangement in **Schedule E**.Once the Procured Assets are purchased or leased, Provider shall configure,install, test, and distribute the Procured Assets according to the Baselines in**Schedule E**,or if above and beyond the Baselines (and corresponding Deadbands, if any) in **Schedule E**,as a Work Order.  As requested byInvestors from time-to-time, Provider may provide additional procurementservices and bid on additional Investors requirements.  Except as otherwise agreed to by the Partiesin writing, all purchase prices, license fees, lease payments, and support andmaintenance fees for all Procured Assets, shall be paid for by Investors. Allright, title and interest in and to each item of the Procured Assets shallbelong to Investors and the Procured Assets shall be considered anInvestors-Owned Assets under this Agreement.

 

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### **1.3.2       Disaster Recovery**

### ** **

## Except to the extent thatthe Services are still being performed by a third party provider, as of theContract Effective Date, Provider will assume Investors’ disaster recovery planfor the scope of Services performed by Provider.  Subsequently, not later than ninety (90) calendar days after theContract Effective Date, Provider shall provide Investors a disaster recoveryplan for the scope of Services performed by Provider (excluding those not beingassumed on the Contract Effective Date), for Investors’ review and approval,designed to ensure the continuing availability of Services (excluding thoseServices not being assumed on the Contract Effective Date) as designated inthis Agreement, during any event that would, under the circumstances, otherwiseaffect Provider’s ability to deliver the Services.  Commencing not later than one hundred eighty (180) calendar daysafter the Contract Effective Date, Provider shall implement the plan andprovide or make available the disaster recovery services to Investors. Withregard to any Services that are not assumed by Provider on the ContractEffective Date (“**Delayed Services**”), Provider will assume Investors’ disasterrecovery plan for the Delayed Services performed by Provider as of the datethat Provider assumes responsibility from the third party provider for theDelayed Services (“**Delayed Services Effective Date**”).  Subsequently, not later than ninety (90)calendar days after the Delayed Services Effective Date, Provider shall provideInvestors a disaster recovery plan for the Delayed Services performed byProvider, for Investors’ review and approval, designed to ensure the continuingavailability of Delayed Services as designated in this Agreement, during anyevent that would, under the circumstances, otherwise affect Provider’s abilityto deliver the Services.  Commencing notlater than one hundred eighty (180) calendar days after the Delayed ServicesEffective Date, Provider shall implement the plan and provide or make availablethe disaster recovery services to Investors. Provider shall provide such disaster recovery services at all timeswithout regard to any Force Majeure Event (except to the extent and only to theextent that the Force Majeure Event also impacts the disaster recovery site.Such disaster recovery services shall include the preparation and testing (asdefined in any Services Schedule, and the Standards and Procedures Manual) andupdating of a disaster recovery plan (including plans for data, backups,storage management, contingency operations), disaster recovery services in theevent that Investors determines that a disaster has occurred, and the provisionof regular reports and notices to Investors’ clients upon the occurrence of anyevent covered by a disaster recovery plan, subject to the review and approvalof Investors.  Provider shall update andtest all disaster recovery procedures per **Schedule E**; provided, however, testswill be conducted on a weekly, server by server basis.

 

### **1.3.3       Security Management**

### ** **

## Provider shall providephysical (when on Provider’s site) and logical protection for any Investorshardware, software, applications and data as specified in **Schedule K**.  Provider shall provide Investors withreasonable access, subject to Provider’s reasonable access securityrequirements and upon reasonable notice, seven (7) calendar days a week, twentyfour (24) hours a calendar day to Provider facilities and data centers, as wellas In-scope Locations managed by Provider, and other locations as appropriate forthe purposes of inspection and monitoring access and use of Investors Data andmaintaining Investors systems.  Providershall provide such assistance which may be reasonably required in connectionwith any such inspection and monitoring.

 

## Provider shall also providelogical protection and comply with Investors’ policies for physical protection,with respect to Investors hardware, software, applications and data located inany Investors’ Site and used for the performance of the Services as specifiedin **Schedule K**.

 

## 1.4   TechnologyManagement; Upgrades and Enhancements

##  

### **1.4.1       Technological Enhancements**

### ** **

Itis expected that, as part of the Services provided by Provider under thisAgreement, Provider shall provide technology management and upgrade services,subject to the terms and conditions set forth in this Agreement, or asotherwise agreed to in writing by the Parties. Unless otherwise directed by Investors, such technology management andupgrade services shall include performing procurement tasks specified in **Section 1.3.1**,installation, implementation and distribution of upgraded and replacementassets for all assets used in the provision of the Services.

 

 

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Providershall schedule any upgrades and replacements of Procured Assets,Investors-Owned Assets, Provider Assets or Share Used Assets in advance and insuch a way as to prevent any material disruption of the Services, prevent theServices from falling below any MASL, or any material diminution in the natureor level of any portion of the Services. Provider shall be required to obtain the prior written consent ofInvestors before acquiring, maintaining, upgrading, or replacing any asset thatis used in the satisfaction of this obligation if such acquisition,maintenance, upgrade, or replacement could result in any additional charge ormaterial change in the method, manner or types of Services that are beingprovided hereunder to Investors**.**

 

### **1.4.2       Technology Planning**

### ** **

EachContract Year, Provider shall prepare a plan, subject to approval by Investors,(the “**TechnologyPlan**”) in accordance with the following procedures:

 

(a) The Technology Plan willbe composed of short-term and long-range plans, which tie into businessgoals.  The long-range plan will includestrategic and flexible use of information technology systems in light ofInvestors’ anticipated business goals, current mission, objectives and itspriorities and strategies.  Theshort-term plan will include information technology budget development for thenext fiscal year and an identification of proposed software and hardware, asappropriate, for which technology refresh may be needed in the next ContractYear, and a projected time schedule for obtaining the necessary software,hardware and services and implementing the proposed changes. Provider will on aregular basis and prior to the preparation of each annual Technology Plan (i)identify Provider and non-Provider products and technology services that maybenefit Investors and support the mission, goals and objectives of Investors,(ii) identify Provider or Investors resources required to complete thelong-range and short-term plans and (iii) upon request of Investors investigatethe requirements, costs and benefits of new technology.

 

(b)   Investors and Provider will prepare the initial draft of the firstTechnology Plan based on the Agreement. Provider will provide input and information regarding industry trends inproduction capabilities and pricing, and information regarding the implementationof proposed hardware and software changes. The first Technology Plan will then be amended and updated each ContractYear, and will, upon approval by Investors, establish the mutual agreement bythe Parties as to the strategic approach to Provider’s conduct andimplementation of the Technology Plan.

 

(c)   The first Technology Plan under this Agreement will be completedon or before one hundred and eight (180) calendar days into the Agreement andannually during the Term.

 

(d)   Notwithstanding the development of the Technology Plan on anannual basis, Provider shall also have a regular and ongoing responsibilityduring each Contract Year to provide Investors with information regarding anynewly improved or enhanced commercially available information technology,including equipment and improved processes, that could reasonably be expectedto have a positive impact in terms of increased efficiency, increased quality,or reduced costs (“**Enhanced Technology**”) for evaluation. At aminimum, at least once during the first six (6) months and once during thesecond six (6) months of each Contract Year, Provider shall meet with Investorsand provide Investors with a written report to inform Investors of any EnhancedTechnology that Provider and its principal Subcontractors are developing and toprovide information about IT trends of which Investors should be made aware.

 

(e)   Upon the identification of any Enhanced Technology that theParties believe would materially improve performance, capacity, bandwidth, orreduce the cost, of the Services, the Parties will meet and discuss in goodfaith the terms upon which such Enhanced Technology may be implemented into theServices, including detailed MASLs specific to each enhancement and in theformat used in this Agreement hereof for the Services.

 

(f)    Except for (1) the maintenance, replacement and upgrade of SharedUse Assets and Provider Assets, and (2) the configuration, installation andimplementation of any Procured Assets (within the Baselines set forth in **Schedule E**),Investors’ Owned Assets, Shared Use Assets or Provider Assets, which will allbe at Provider’s expense, the Parties will agree to the provision of additionalservices

 

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pursuant to the Technology Planin accordance with the change management procedures set forth in **Section 7.4**of this Agreement.  The Technology Planshall be provided “AS-IS” and for Investors’ internal use only.

 

### **1.4.3       Technology Upgrades**

### ** **

Within ninety (90)calendar days of the Contract Effective Date, Provider will develop, subject toInvestors approval (except for, with regards specifically to approval byInvestors, the ODCS environment), a “**Technology Refresh Plan**” andschedule for upgrade and replacement. In this regard, all hardware andsoftware will be kept at levels supportable by manufacturers. Additionally, ashardware and software upgrades and maintenance become available from theirrespective vendors, Provider is to notify Investors within thirty (30) calendardays and coordinate implementation of the upgrades and maintenance (atProvider’s expense, Provider will configure, distribute and install anynecessary upgrades as a Work Order or Initiative).  Provider will offer all baseline technology upgrades without anincrease in charges to Investors; provided, however, that Investors willpurchase or lease any necessary upgrades to Investors-Owned Equipment (andequipment used by Provider exclusively to provide the Services specified in **Schedule X**to Investors, hereinafter “**Web Hosting Equipment**”) and Provider willpurchase or lease any necessary upgrades to Shared Use Assets and ProviderAssets (except for the Web Hosting Equipment). Unless otherwise mutually agreed to between the Parties, Provider will maintainall hardware and software at a level that is at least equal to current,supported technology.   If Providerfails to satisfy this requirement and Investors incurs additional documentedcosts due to Investors’ inability to exploit the functionality provided by thecurrent, supported technology, Provider shall reimburse or credit Investors forsuch additional costs and expenses specifically related to having an inabilityto exploit the functionality provided by the current, supported technology;provided however, Investors shall notify Provider in writing and in advance ofthe possibility of additional cost if Provider fails to maintain all andsoftware at a current, supported level. If Provider can not achieve functionality due to Investors withholdingan approval for any upgrade to a level that is supported and Provider incursadditional documented costs specifically due to having to support technologythat is not supported, Investors shall reimburse Provider for such additionalcosts and expenses specifically related to having to support technology that isnot otherwise supported by the manufacturer; provided however, Provider shallnotify Investors in writing and in advance of the possibility of additionalcost if Investors fails to approve any upgrade of technology to a current,supported versions.

 

### **1.4.4       Shared Use Assets**

### ** **

Priorto migrating or relocating any of the Services to a shared hardware or softwareenvironment (including any software for which Provider maintains a masterlicense agreement that allows it to use that particular software for all of itsclients), or to any shared network or platform (“**Shared Use Assets**”), Providershall provide to Investors for review and approval a proposal for suchmigration or relocation and a breakdown of the price benefits to Investorsduring the Term and the estimated cost savings and risks following theexpiration or termination of this Agreement (including, but not limited to, agood faith estimate of what that Shared Use Assets would cost if purchasedindividually by Investors at the expiration or termination of this Agreement,and a representation regarding whether the Shared Use Assets will be used tostore any Investors Data).  Subject to **Section 9**(Proprietary Rights) and **Section 12** (Disentanglement), upon theexpiration or termination of this Agreement, Provider shall identify and assistInvestors in procuring (at Investors’ expense, except as otherwise provided in **Section 9**)suitable functionally equivalent replacements for any Shared Use Assets, suchas hardware, software, networks or platforms then used by Provider, tofacilitate a smooth transition of the Services back to Investors.  **Schedule L** lists all Shared Use Assetsthat Provider will be using to provide the Services at the completion of theTransition period.

 

## 1.5   Virusesand Disabling Devices

##  

## Provider shall implementcommercially reasonable practices and procedures (including, but not limitedto, implementing the practices and procedures described in **Schedule K**) to identify,screen, and prevent, and shall not itself install, any Disabling Device inresources utilized by Provider, Investors, or any third party, to provide theServices.  A “**Disabling Device**” is anyvirus,****timer,clock, counter, time lock, time bomb, Trojan horse, worms, file infectors, bootsector infectors, or other limiting design, instruction, or routine that could,if triggered, erase data or programming or cause the resources to becomeinoperable or otherwise incapable of being used in the full manner for whichsuch resources were intended to be used. Provider will use 

##  

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## commercially reasonable efforts to minimize oreliminate the effects of any Disabling Device and Provider will usecommercially reasonable efforts to prevent or minimize the loss of operatingefficiency or data; provided, however, to the extent the Disabling Device wasintroduced due to Provider’s failure to comply with this **Section 1.5**, anyadditional resources necessary in addition to the Services shall be atProvider’s sole expense.

 

## 1.6   End-UserSatisfaction and Communication

##  

## Provider shallconduct End-User satisfaction surveys during the Term in accordance with thisSection.  The surveys shall cover arepresentative sample of the End-Users and, as a separate sample category,senior Investors management.  Investorsshall provide reasonable assistance to Provider to: (i) identify theappropriate sample of End-Users; (ii) distribute the surveys; and (iii)encourage participation by such End-Users in order to obtain meaningfulresults.  The Provider Contract Managershall review the results of the survey with Investors.  Additionally, within ninety (90) calendardays of the Contract Effective Date, Provider shall submit an End-Usercommunication plan to Investors, for its review and approval.  Such plan shall include, at a minimum,monthly updates to the End-Users regarding the results of the satisfactionsurveys.  The communication plan shall bereviewed and modified by the Parties, as appropriate but not less frequently thanonce annually.

 

## 1.7   Standardsand Procedures Manual

##  

### **1.7.1       Development of Manual**

### ** **

Withinninety (90) calendar days after the Contract Effective Date, Provider shalldeliver a reasonable and appropriate draft standards and procedures manual,specific to the Services to be provided under the Agreement, (“**Standardsand Procedures Manual**”) to Investors for its review, comment, andapproval.  Provider shall incorporateall relevant comments or suggestions of Investors and shall finalize theStandards and Procedures Manual within one hundred eighty (180) calendar daysafter the Contract Effective Date. Provider shall periodically (but not lessthan quarterly) update the Standards and Procedures Manual to reflect changesin the operations or procedures described therein.  Updates of the Standards and Procedures Manual shall be providedto Investors for review and approval. To the extent that an Investors requested change to the Standards andProcedures Manual (including proposed changes to the draft version) maymaterially interfere with or materially degrade Provider’s provision of theServices or have a materially detrimental impact on Provider’s cost ofproviding the Services or time for delivery of the Services, the Parties shallmutually agree to any requested change pursuant to the change managementprocedure to be mutually agreed pursuant to **Section 7.4** of thisAgreement, prior to adopting such change(s).

 

### **1.7.2       Content of Manual**

### ** **

TheStandards and Procedures Manual shall be provided electronically (and in amanner such that it can be accessed via either Investors’ Intranet or theInternet) to Investors, with reasonable notice to allow for Investors’ reviewand approval. The Standards and Procedures Manual should describe how Providershall perform the Services under this Agreement, the equipment and softwarebeing and to be used, and the documentation (including, e.g., operationsmanuals, user guides, specifications, and End-User support) that providefurther details of such activities.  TheStandards and Procedures Manual is intended to describe to Investors how theServices shall be performed and act as a guide to operations personnel (andInvestors’ clients, subject to confidentiality obligations, for informationalpurposes only) seeking assistance in the Services offered under thisAgreement.  The Standards and ProceduresManual shall in no event be interpreted as an amendment to this Agreement or soas to modify, augment, or relieve Provider of any of its performanceobligations under this Agreement.

 

## 1.8   ServiceCompatibility

##  

## Provider shall makecommercially reasonable efforts to ensure that all Services, equipment,networks, software, enhancements, upgrades, modifications, and other resources,including those provided by Investors (collectively, the “**Resources**”) utilized byProvider or approved by Provider for utilization by Investors in connectionwith the Services, shall be successfully integrated and interfaced, and shallbe compatible, with services, systems, items, and other resources (collectively,the “**Third-PartyResources**”) that are provided by third party service suppliers andinteract with or support the Current Services as of the Contract EffectiveDate.

######  

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######  

## Further, Provider shall takecommercially reasonable efforts to ensure that none of the Services or otheritems provided to Investors by Provider shall be adversely affected by, orshall adversely affect, those of any such third-party suppliers, whether as tofunctionality, speed, service levels, interconnectivity, reliability,availability, performance, response times, or similar measures.  To the extent that any interfaces need to bedeveloped or modified in order for the Resources to integrate successfully, andbe compatible, with the Third-Party Resources, Provider shall develop or modifysuch interfaces as part of the Services, pursuant to the change managementprocedure set forth in **Section 7.4**, subject to Investors’prior review and approval.  In the eventof any dispute as to whether a particular defect, malfunction, or otherdifficulty was caused by products or services furnished by Provider or byproducts or services furnished by any supplier of the Third-Party Resources,Provider shall be responsible for correcting at its cost, such defect,malfunction, or difficulty, except to the extent that Provider can demonstrate,by means of a root-cause analysis, that the predominant contributing cause wasnot a product or service furnished by Provider.  In addition, Provider agrees that at all times during the Term itshall cooperate with third-party service suppliers of Investors to coordinateits provision of the Services with the services and systems of such third-partyservice suppliers.  Such cooperation andaccess, subject to Provider’s reasonable confidentiality requirements, shallinclude providing:  (i) applicablewritten information concerning any or all of the systems, data, computingenvironment, and technology direction used in providing the Services;(ii) reasonable assistance and support services to such third-partysuppliers; (iii) access to Provider and Investors systems and architectureconfigurations to the extent reasonably required for the activities of suchthird-party suppliers; and (iv) access to and use of the Resources.

######  

## 1.9   MASLs

##  

### **1.9.1       Commitment to MASLs**

### ** **

Except as otherwise specified in this Agreement,Provider shall perform all Services under this Agreement at least in accordancewith and in such manner as to meet or exceed the MASLs.  Any applications developed by Providerpursuant to the terms hereof, if any, shall incorporate methods permittingmeasurement of performance-related MASLs.

 

### **1.9.2       MASL Measurement and Reporting**

### ** **

Except as otherwise specified in this Agreement orany Schedule to this Agreement, Provider shall measure and report itsperformance against the MASLs, if applicable, during each month by thetenth (10th) calendar day of the following month.  For continuing failures in areas that aremeasured daily or weekly, Provider shall report such failures in the month suchfailure occurs. Investors shall give Provider reasonable advance notice ofanticipated changes in numbers of End-Users or processing volumes.  Provider’s report shall be delivered inaccordance with the Services Schedules. Provider shall meet with Investors at least monthly, or more frequentlyif requested by Investors, to review Provider’s actual performance against theMASLs and shall recommend remedial actions to resolve any performancedeficiencies.

 

### **1.9.3       Root-Cause Analysis and Resolution**

### ** **

Promptly,within the shortest reasonable time period and in no event later than five (5)calendar days after Provider’s discovery of, or, if earlier, Provider’s receiptof a notice from Investors regarding, (i) Provider’s failure to provide anyof the Services in accordance with the MASLs, (ii) Provider’s failure tomeet a Critical Milestone, (iii) any “**Severity 1**” problem as defined by theStandards and Procedures Manual, or (iv) any problem that has or couldreasonably have a significant business impact on Investors (collectively, “**FailureNotice**”), Provider shall: (A) commence a root-cause analysis toidentify the cause of such failure (and subsequently use commerciallyreasonable efforts to permanently correct or remedy such failure as soon asreasonably possible); (B) provide Investors with a written reportdetailing the cause of, and any procedure for correcting, such failure; and(C) provide Investors with satisfactory evidence that Provider has takencommercially reasonable actions to avert, prevent, avoid, or remedy suchfailure in the future. Further, as soon as reasonably possible, and in no eventlater than the lesser of the requirements stated in any SLR for that failure ortwelve (12) hours after a Failure Notice, Provider will (D) correct or remedysuch failures (which may include a temporary fix or work around) as are withinProvider’s reasonable control (regardless of whether caused by Provider) in atimely manner to bring the situation in compliance with the MASLs; and (E) provideInvestors with an impact analysis detailing the impact such failure had on theServices.  The correction of any suchfailure shall be performed, entirely at Provider’s expense, unless it has beendetermined through the root

 

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causeanalysis (subject to dispute resolution) that the failure was predominantlycaused by Investors or its Subcontractors, agents or third parties provided byInvestors and Provider could not have worked around the failure withoutexpending a material amount of additional time or cost.  In such an event:  (y) Provider shall be entitled to temporary relief from itsobligation to timely comply with the affected MASL or Critical Milestone, butonly to the extent and for the duration so affected; and (z) Investorsshall reimburse Provider for Provider’s expenses to correct such failure butonly to the extent Investors****(or its Subcontractors, agents, or thirdparties) was the predominant cause of such failure.  Further, if it has been determined by either mutual agreement ofthe Parties or through the dispute-resolution process specified in thisAgreement, that Investors (or its Subcontractors, agents, or third partiesprovided by Investors and not managed by Provider) was the predominantcontributing cause of the failure, or Provider’s inability to achieve anaffected Critical Milestone, the date by which Provider was obligated tocomplete the affected Critical Milestone shall be deferred by one (1) calendarday for each calendar day so affected by Investors provided Providersubsequently timely complies with its obligations as measured against thedeferred date.  For purposes hereof, the“**PreexistingCondition**”****of Investors properties and systems (tothe extent the Preexisting Condition is specified in **Schedule W**of thisAgreement) shall not be deemed a contributing cause of any failure.

 

### **1.9.4       Improvements in Performance**

### ** **

TheParties shall review and discuss the MASLs and Annual Service Fees from time totime, but not less frequently than once each Contract Year.  Upon mutual agreement, after any suchreview, the MASLs and Annual Service Fees may be adjusted, for the benefit ofInvestors, to reflect improved performance requirements based upon advances inavailable technology and methods that are suitable for use in performing theServices, the increased capabilities of any hardware or software acquired foruse by Investors, and other changes in circumstances.  Provider shall continuously evaluate ways to improve itsperformance and shall make these improvements available to Investors as soon aspossible.

 

### **1.9.5       Service Compliance Relief**

### ** **

Provider shall be entitled to temporaryrelief from its obligations to timely comply with the MASLs, CriticalMilestones, or other Service specifications, if and to the extent: (i)  such failure by Provider is predominantlycaused by: (A) Investors’ act, error, omission, wrongful action (except forthose acts expressly contemplated by the Agreement) or failure to perform itsobligations under this Agreement, (B) the act, error, omission, wrongful action(except for those acts expressly contemplated by the Agreement) or a failure inperformance of any Investors contractor, agent, or third party (other thanProvider and its Subcontractors); (ii) Provider provides Investors withreasonable prior written notice of, and a reasonable opportunity to correct,such failure, to the extent of Provider’s knowledge and ability to provide suchnotice; and (iii) Provider could not have worked around the failure withoutexpending a material amount of additional time or cost.  Such temporary relief shall be only to theextent and for the duration that Provider’s performance is so affected andProvider shall in all events use commercially reasonable efforts to return to compliancewith its obligations.

 

Additionally, andnotwithstanding **Section 18.2.2**, if Investors: (i) disapproves a proposedProvider upgrade of software, replacement equipment or similar changecontemplated in and subject to **Section 1.4.3** (Baseline TechnologyUpgrades), or (ii) does not approve a commercially reasonable Providerrecommendation regarding capacity management or performance management, (ineither case, an “**Upgrade Disapproval**”), and as a result, Provider candemonstrate that its ability to provide any type of Service (that isspecifically impacted by that software, hardware or equipment) pursuant to therequirements of the Agreement including the MASLs, is adversely effected by theUpgrade Disapproval, then Provider shall be excused from its performanceobligations to the extent they are so affected.  Provided, however, that the Parties shall reasonably cooperate tominimize any such affect on Provider’s ability to provide the Services.

 

## 1.10Exclusivity/ Non-Exclusivity

##  

## Nothing hereinshall prevent Investors from: (a) obtaining IT related services, other than theServices, from itself or any other supplier during the Term, (b) obtaining anyof the Services which Provider no longer provides pursuant the terms of thisAgreement, from itself or any other supplier, during or after the Term andthereby relieving Provider of the responsibility for

##  

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## providing and Investors the responsibilityfor paying for the Services, or (c) obtaining Services that are above theapplicable Baselines or Forecasted Monthly Usage, from itself or any othersupplier, during or after the Term and thereby relieving Provider of theresponsibility for providing and Investors the responsibility for paying forthe Services (provided, however, that Investors may not adjust future Baselinesdownward as a result of obtaining Services elsewhere).  The Parties may also mutually agree inwriting that any portion of the Services may be obtained from a provider otherthan Provider.  Except to the extent setforth above, Provider shall be the exclusive provider of the Services duringthe Term of this Agreement.

 

## Provider willbe free to enter into similar agreements with others and develop and providehardware, software or services that are similar to or competitive with thehardware, software, and Services provided under this Agreement, provided thatProvider does not breach the terms of this Agreement (including, but notlimited to, **Section 9**), infringe upon Investors’ intellectualproperty ownership rights or breach Provider’s confidentiality obligations.

 

# **2.             ASSETS ANDTHIRD-PARTY CONTRACTS**

# ** **

## 2.1   Investors-OwnedAssets

##  

## During the Term, Investorswill furnish to Provider, for Provider’s use at no charge, the Procured Assets(that are purchased) and the hardware, routers and switches, and equipmentowned by Investors that are listed on the attached **Schedule L**(collectively, the “**Investors-Owned Assets**”), whichInvestors-Owned Assets will remain the property of Investors and at Investorsretained expense, including any insurance, maintenance or other expense ofownership.  Notwithstanding the locationof Investors-Owned Assets at a Provider or other non-Investors facility, allright, title and interest (as applicable) in and to any Investors-Owned Assetswill be and remain in Investors, and Provider will have no interest in thatInvestors-Owned Asset.

 

## 2.2   Investors-LeasedAssets

##  

## During the term of thisAgreement, Investors will furnish to Provider, for Provider’s use at no charge,the Procured Assets (that are leased) and the hardware, routers and switchesand equipment leased by Investors that is listed on the **Schedule L**(collectively, the “**Investors-Leased Assets**”).  Investors-Leased Assets are an Investorsretained expense, including any insurance, maintenance or other expense of thelessee.

 

## 2.3   Third-PartyApprovals

##  

## Investors will take allactions reasonably necessary to obtain any consents, approvals, orauthorizations from third parties as required for Provider to obtain in orderto lawfully access, operate, and use (at or from any In-Scope Location whereServices are to be provided) the Investors-Owned Assets and theInvestors-Leased Assets (including Investors-Vendor Software pursuant to **Section 9**),****includingwithout limitation the payment of all costs and expenses associated therewith.Provider will provide Investors with commercially reasonable support in suchefforts and provide Investors with a process and form for obtaining suchrequired consents for Investors-Vendor Software.  Investors hereby appoints Provider as its single point of contactfor all maintenance and support matters pertaining to the Investors-OwnedAssets and the Investors-Leased Assets and will promptly notify all appropriatethird parties of such appointment.

 

## Notwithstanding theforegoing or anything in this Agreement to the contrary, and except as setforth herein or as otherwise agreed to by the Parties, Investors, or the lessor(if applicable), will be responsible for maintenance of all Investors-OwnedAssets or Investors-Leased Assets after installation; provided, however, that(i) Provider will provide Investors with reasonable access to allInvestors-Owned Assets or Investors-Leased Assets located at a Provider orother non-Investors facility; and (ii) Provider will be responsible for allcosts and expenses of repair or replacement to correct any damage toInvestors-Owned Assets or Investors-Leased Assets any part thereof (reasonablewear and tear excepted) caused by Provider, its employees, subcontractors,agents or invitees (exclusive of Investors and it’s Subcontractors).  Access to any Provider facility in which aInvestors-Owned Assets or Investors-Leased Assets are located, shall be subjectto Provider’s reasonable access security policy.

 

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## 2.4   Returnof Investors Assets

##  

## Upon the expiration ortermination of this Agreement, but no later than thirty (30) calendar days fromsuch expiration or termination date, Provider will return each item ofInvestors-Owned Assets and Investors-Leased Assets to Investors insubstantially the same condition as it was in when initially provided toProvider, reasonable wear and tear excepted.

 

## 2.5   Provisionof Provider Assets

##  

## “**Provider Assets**” meanshardware, software and equipment owned, licensed or leased by Provider and usedexclusively in the provision of Services. As of the Contract Effective Date, the Provider Assets are identified in**Schedule L**.  After the Contract Effective Date, Providerwill provide Investors written notice of its intent to incorporate any newProvider Assets into the provision of Services.  Notwithstanding the location of Provider Assets at InvestorsIn-Scope Locations, all right, title and interest in and to any Provider Assetswill be and remain in Provider, and Investors will have no interest in thatProvider Assets**.**

 

**2.5.1       Use of Provider Equipment by Provider Employees**

 

### **The Provider will provide Provider Assets for use byProvider employees on behalf of Investors as necessary, at no additional chargeto Investors other than the Annual Service Fees due under this Agreement.  For the Transitioned Employees or thosesubcontractors retained by Investors prior to the Contract Effective Date whoare retained by Provider during the BAU Period, Investors’ will continue toprovide, during the BAU Period, the workstations and laptops and relatedperiphery equipment (“Workstations”) that was provided to any TransitionedEmployee prior to the Contract Effective Date. Provider will provide all other assets necessary for the TransitionedEmployees to perform the Services during the BAU Period and it will provideProvider Workstations to all Transitioned Employees that are extended continuedemployment (once the services for which they are responsible for aretransitioned over to the steady state).**

### ** **

### **2.5.2       Provision of Provider Assets toInvestors**

### ** **

Provider may, upon mutual agreement with Investors as to equipment andcharges (if any), provide to Investors certain Provider Assets at mutually agreedlocation(s), and on a mutually agreed delivery schedule all determinedusing the change management procedure described in **Section 7.4**.  Investors will prepare and maintain, atInvestors’ cost and expense, any Investors In-Scope Locations in which ProviderAssets will be installed.

 

### **2.5.3       Installation of Provider Assets**

### ** **

Provider will arrange for, and will determine themode of transportation and installation of each item of Provider Assets to suchlocation(s), as may be mutually agreed to by the Parties.  In the event that Investors relocates anyInvestors In-Scope Locations in which Provider Assets may be installed,Investors will be solely responsible for the relocation costs of ProviderAssets.

 

### **2.5.4       Maintenance of Provider Assets**

### ** **

Notwithstanding the foregoing or anything in this Agreement to thecontrary, and except as otherwise mutually agreed to between the Parties,Provider will be responsible for maintenance of all Provider Assets afterinstallation at an Investors location; provided, however, that (i) Investorswill provide Provider with reasonable access to all Provider Assets located atan Investors or other non-Provider facility, and (ii) Investors will beresponsible for all costs and expenses of repair or replacement to correct anydamage to Provider Assets or any part thereof (reasonable wear and tearexcepted) caused by Investors, its employees, or its agents or invitees(exclusive of Provider and its Subcontractors).   Access to any Investors In-Scope Location in which a ProviderAssets are located, shall be subject to Investors reasonable access securitypolicy.

 

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## 2.6   Returnand Acquisition of Provider Assets by Investors

##  

## Subject to the provisions of**Section 12**and**Section 9**, upon the expiration or termination of thisAgreement, but no later than thirty (30) calendar days from such expiration ortermination date, Investors will return each item of Provider Assets toProvider in substantially the same condition it was in when initially providedto Investors, reasonable wear and tear excepted.

 

## 2.7   InvestorsMaintenance Agreements

##  

## Investors will retain all ofInvestors’ right, title and interest in and to the agreements listed in **Schedule M**(the “**InvestorsMaintenance Agreements**”) relating to the maintenance ofInvestors-Owned Assets and Investors-Leased Assets.  Provider will manage the administration of the InvestorsMaintenance Agreements. Investors represents and warrants to Provider that, asof the Contract Signing Date, (i) it is not (and, to its knowledge, thesupplier of the maintenance services is not) in default in any material respectunder any of the Investors Maintenance Agreements, and (ii) it will deliver toProvider full and complete copies of the Investors Maintenance Agreements(including any amendments thereto) prior to the Contract Effective Date.

 

## 2.8   FurtherAssurances

##  

## Investors and Provider agreeto execute and deliver such other instruments and documents as either partyreasonably requests to evidence or effect the transactions contemplated by this**Section 2**.Upon Provider’s request and at Provider’s expense, Investors agrees to executeUCC-1 filing statements for Provider Asset, solely for notice purposes.

 

# **3.             HUMAN RESOURCES**

# ** **

## 3.1   Employees

##  

## Neither Party nor itsemployees, subcontractors or other agents are or shall be deemed to beemployees of the other Party.  Subjectto **Section 7**of this Agreement, each Party shall have the sole right to direct and controlthe management of such personnel and shall be solely responsible for (a) determiningand paying all wages and salaries, and (b) providing welfare andretirement benefits, as it deems necessary or desirable, which are associatedwith employment of its personnel.

 

## Provider ensures that itsemployees (other than the Tranitioned Employees prior to the completion of theTransition Period) who perform outsourcing services under this Agreement arecompetent to do so.  Investorsrepresents that the In-Scope Employees who will be performing Services duringthe Transition Period are Investors employees who performed Services prior tothe Contract Signing Date.  Provideracknowledges that not all Investors’ employees who performed the Services priorto the Contract Signing Date are In-Scope Employees.

 

## It is understood by Providerthat all persons employed, directly or indirectly, by Provider to performservices for Investors shall be employees or agents of Provider, and at no timeshall be authorized to act as agents, servants or employees of Investors,unless under the specific authorization of Investors.  It is understood by Investors that (except for Provider andProvider’s agents) all persons employed, directly or indirectly, by Investorsshall be employees or agents of Investors, and at no time shall be authorized toact as agents, servants or employees of Provider.

 

**3.1.1       Security / Business Conduct**

 

Provider has also received and shall ensure that all of its employees,agents and subcontractors, that perform Services at any Investors In-ScopeLocation or that have access to Investors Data (at any In-Scope Location),comply with the applicable provisions of **Schedule K**, subject to any amendmentpursuant to **Section 10.1.1** of this Agreement), and the IBM BusinessConduct Guidelines (attached as **Schedule T**) in performing theServices.Any violations or disregard by any Provider personnel of the on-sitesecurity guidelines (included as part of **Schedule K**) (or violations ordisregard by Provider personnel of any applicable laws, rules or

 

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regulationsrelating to the protection of Investors’ premises, equipment or personnelsubject to **Section 17.1** (Compliance with Laws)) shall be cause fordenial of access by such personnel to Investors’ premises.

 

## 3.1.2        Investors In-ScopeEmployee

##  

An Investors “**In-ScopeEmployee**” is an individual whose current position and jobresponsibilities are being outsourced to Provider.  Investors acknowledges that it provided Provider, within **Exhibit U-1**,a list of the In-Scope Employees, together with their job descriptions, basesalary, a description of all benefits applicable to such In-Scope Employees,and the terms of their employment (collectively the****“**In-Scope Employees Information**”).  Investors acknowledges that Provider hasreasonably relied upon such In-Scope Employees Information in making employmentoffers.  Investors also acknowledgesthat it will provide Provider with an updated list, if any updates arenecessary, of such In-Scope Employee Information prior to the Contract SigningDate.

 

**3.1.3       Transition of Employees**

 

As soon as reasonablypracticable after the Contract Signing Date, but no later than three (3) weeksprior to the Hire Date, Provider will extend offers of employment (subject toProvider’s employment policies and practices) to all active In-Scope Employeeslisted in **Schedule U,Exhibit U-1** for a minimum period of [*] (unless Provider has reasonto terminate the employment of such employee “for cause”) from the HireDate.  Those In-Scope Employees that areabsent from work at the time the offers are to be extended due to a leave ofabsence will receive an offer of employment (for the balance of the [*] periodfrom the Hire Effective Date) when they return to work, provided they returnwithin [*] of the Contract Effective Date. Investors will promptly notify Provider if any In-Scope Employee is dueto be out on leave prior to the date that an offer of employment is to bemade.  Each In-Scope Employee whoaccepts Provider’s offer of employment pursuant to this **Section 3.1.3** willbecome, as of the Hire Date, a Provider employee (each, a “**Transitioned Employee**”) andwill be eligible to participate in all employee benefit plans or employmentpolicies and programs available to similarly situated Provider employees.Provider represents that, during the BAU Period, the Transitioned Employee (orhis or her replacement, if any) shall only perform Services under thisAgreement.  If a Transitioned Employeemust be replaced during the BAU Period, the replacement Employee will be dedicatedto providing the Services under this Agreement through the BAU Period.  Should a Transitioned Employee need to bereplaced, Provider will assign a replacement as soon as reasonably practicalfor a minimum of the duration of the BAU Period.

 

Investors shall cooperatewith and assist Provider in offering employment to all In-Scope Employees;provided, however, Investors will not provide to Provider any additionalinformation regarding the In-Scope Employees (including, any personnel files orperformance reviews) other than the In-Scope Employee Information provided “asis” to Provider.

 

Investors will not make anystatements to the In-Scope Employees regarding Provider’s offer letters or theterms, conditions and benefits of employment to be offered by Provider.  Investors will refer all questions regardingthe Provider’s offer letter, and the terms, conditions and benefits ofemployment, to Provider.

 

###### **3.1.4       Management ofAffected Employees**

######  

Providershall determine in good faith and at its risk, during the BAU Period, to whichTransitioned Employees it wishes to extend offers of regular employment.  Provider shall, within the BAU Period,either (i) notify a Transitioned Employee of Provider’s decision to terminate theTransitioned Employee, or (ii) extend an offer of regular employment withProvider to the Transitioned Employee. Provider shall provide to Transitioned Employees whom it has decided toterminate a minimum of [*] notice prior to the effective date of any suchtermination.  All decisions regardingthe termination of the employment of any Transitioned Employee will be the soleresponsibility and discretion of Provider management.

 

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**3.1.5       Base Salary**

 

Providerwill provide each Transitioned Employee a base salary that is not less than thebase salary that such Transitioned Employee was receiving from Investorsimmediately prior to the Contract Signing Date, including any merit and salaryadjustments provided by Investors in the ordinary course of business prior tothe Contract Signing Date.  In addition,each such Transitioned Employee will be eligible for annual increases in theirbase salaries to the same extent as similarly situated Provider employees inaccordance with the Provider policy applicable to similarly situatednon-transitioned employees.  Each suchTransitioned Employee will be considered for annual increases in his or herbase salary thereafter, which will be effective to the same extent and paid atthe same time as increases paid to other similarly situated Provideremployees.  Provider will not decreasethe base salary of any Transitioned Employee during the first [*] after theHire Date.

 

**3.1.6       Performance Bonus**

 

Transitioned Employees will be eligible to receive aPerformance Bonus to the same extent as all other similarly situated Provideremployees in accordance with Provider’s standard practices and policies.

 

**3.1.7       Achievement Awards**

 

Beginning on the Hire Date, Transitioned Employees will be eligible for various levels ofawards and other forms of recognition to the same extent as all other similarlysituated Provider employees in accordance with Provider’s standard practicesand policies.

 

**3.1.8       Termination andSeverance**

 

a.Transitioned Employees (except for those Transitioned Employees identified in3.1.8(b) below)  who are terminated byProvider within [*] of the Hire Date (other than those terminated for cause)will receive the severance benefits (“**Severance Payments**”) pursuant to theseverance formula set forth in **Exhibit U-2**.   Investors’ employment service and Provider employment service,combined, will be credited for Severance Payment purposes.  For anyTransitioned Employee terminated within the greater of [*] from the Hire Dateor [*], Investors will reimburse Provider for such actual Severance Payments asspecified in **Schedule E**.   Forany Transitioned Employee terminated after the greater of [*] from the HireDate or [*], Provider will fund the Severance Payments.

 

b. Transitioned Employees whose primary function is related toUnix/Intel administration support (such Transitioned Employees are identifiedwith an asterisk in **Schedule U**) and who are terminated byProvider up to [*] after the Commencement Date (other than those terminated forcause) will receive the Severance Payments pursuant to the severance formulaset forth in **Exhibit U-2**.  Investors’ employment service and Provider employment service, combined,will be credited for Severance Payment purposes for those TransitionedEmployees who leave up to [*] after the Commencement Date.  For anyTransitioned Employee terminated up to one [*] after the Commencement DateInvestors will reimburse Provider for such actual Severance Payments asspecified in **Schedule E**.   Forany Transitioned Employee terminated one [*] after the Commencement Date andthereafter, the severance payment (if any) will be pursuant to the Provider’s normal severance policies and Provider will fund the severance payments.

 

**3.1.9       Release**

 

Forany Transitioned Employee who receives a Severance Payment, Provider shall usecommercially reasonable efforts to obtain a general release (“**Release**”)in favor of Investors, and its Affiliates, and Provider and its Affiliates andtheir respective directors, employees and agents.  The Release shall include but not be limited to a release of anyand all employment-related claims from all Transitioned Employees who receiveSeverance Payments.   Investors shallreview and approve the form of Release, which approval shall not beunreasonably withheld.   If a TransitionedEmployee is not willing to sign such a Release, Provider will not provide themwith Severance Payments (unless Investors and Provider mutually negotiate arelease/severance package that is acceptable to both parties).  In the event that a Transitioned Employee isnot willing to sign such a Release in favor both Provider and Investors, asdescribed above, then, in consideration of the Severance Payment, Provider willuse commercially reasonable efforts to obtain a general release of all employmentrelated claims (reasonably acceptable to Investors) in favor of only Investors,its Affiliates and Subsidiaries and its respective directors, employees andagents.  Provider will also have theoption of providing a severance 

 

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package (to be funded solely by Provider) based only upon Providerservice in return for a release in favor only of Provider.

 

3.2           Solicitation ofPersonnel

 

During the Term of this Agreement and for a period of[*] following an employee’s termination from a Party, neither Investors norProvider, unless otherwise agreed to by the Parties in writing, and whichwriting may include a mutually acceptable fee structure, shall not directly orindirectly solicit, recruit, or employ any employee of the other if suchemployee is employed by either Party in the United States.

 

###### 3.3   Benefits

######  

###### **3.3.1       Past ServiceCredits**

######  

###### Provider shall credit each Transitioned Employee for prior years ofservice with Investors to the same extent that Investors has given credit forthat employees years of service, with respect to Provider’s vacation plan.  There are currently no waiting periods forProvider’s medical/hospitalization coverage, prescription drugs, dental,vision, group life insurance, short term disability plans or 401(k) plan.  Each Transitioned Employee will be eligibleto participate in the Provider “**Personal Pension Account**”, a cash balancepension plan, pursuant to the terms of such plan to the same extent as othersimilarly situated Provider Employees. Participation of Transitioned Employees in the Personal Pension Accountshall begin after one (1) year of employment with Provider.  Transitioned Employees who have completedfive (5) years of employment with Provider shall become fully vested in thePersonal Pension Account and are eligible to receive their Personal PensionAccount balances if they cease to be employed by Provider

######  

###### **3.3.2*      *Waiverof Certain Conditions**

######  

###### For all Transitioned Employees, the Provider’s Health Benefit Plan andthe Provider’s Long Term Disability Plan provide that the Transitioned Employeewill not be subject to any pre-existing condition limitations or exclusions(provided, however, that there may be some conditions that are covered underInvestors’ health benefit plans that either are not covered or are covered in adifferent manner under the Provider’s Health Benefit Plan).  For the calendar year in which aTransitioned Employee becomes employed by Provider, the Provider’s HealthBenefit Plan, to the extent applicable, will recognize each such TransitionedEmployee’s (and his or her eligible dependents’) unreimbursed expenses to theextent that such paid expenditures are recognized under the Investors Bank& Trust Company Omnibus Welfare Benefit Plan as a deductible applicable tothe particular Transitioned Employee or (eligible dependent) for the samecalendar year.

######  

###### **3.3.3       Rollover to Provider’s401(k) Plan**

######  

###### Assoon as practicable after the Transition Date, Investors and Provider willpermit direct transfers pursuant to Section 401(a) (31) of the InternalRevenue Code of 1986, as amended (the “**Code**”), and to the extent permitted byProvider’s Plan, of pre-tax account balances if applicable, of TransitionedEmployees from the Investors Bank & Trust Company Savings Plan to theProvider’s 401(k) Plan.  The Provider401(k) Plan will provide that (i) Transitioned Employees will be eligible toparticipate in the Provider’s 401(k) Plan as of the Transition Date and (ii)the Provider’s 401(k) Plan will take into account the Transitioned Employees’past service with Investors for purposes of eligibility and vesting in theProvider’s 401(k) Plan.  TransitionedEmployees will participate in the Plan consistent with its administrative provisions.

######  

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###### 

######  

###### **3.3.4      ****Tuition Aid**

 

Each Transitioned Employeewill be eligible to participate in the Provider“**AcademicLearning Assistance Program**”, Provider’s tuition reimbursementprogram, as of the Hire Date.  Tuitionin respect of any course(s) in which a Transitioned Employee is enrolled in orhas completed as of Hire Date, for which Investors had previously approvedreimbursement, for which the Transitioned Employee has not yet submitted toInvestors evidence of satisfactory completion, will be paid by Provider uponthe Transitioned Employee’s presentation of evidence of satisfactory completionthereof in accordance with Investors’ tuition reimbursement policy.  Provider will invoice this as a pass-throughexpense on the monthly Invoice and Investors will reimburse Provideraccordingly.

 

3.4   Human Resources Representative

 

Provider will appoint a representative as its “**HumanResources Representative**.” Provider’s Human Resources representative will be responsible for thetransition and initial cultural and administrative assimilation of theTransitioned Employees.

 

# **4.             PROVISION OF RESOURCES BYINVESTORS**

# ** **

## 4.1   OfficeSpace and Furnishings

##  

## Investors shall makereasonably necessary office space, furnishings and storage space (the “**InvestorsFacilities**”) available to Provider’s on-site personnel performingServices at all Investor’s In-Scope Locations throughout the Term and shallmaintain Investors Facilities at a level similar to that which it maintains forits own employees performing similar work. Office space, furnishings, storage space, and assets installed oroperated on Investors premises, and supplies allocated, are provided “AS IS,WHERE IS,” and are to be used exclusively for performance of Services forInvestors.  Investors shall provideProvider reasonably unencumbered access to such Investors In-Scope Locations asis reasonably required for Provider to provide the Services.  Any furnishings (other than basic officefurnishings) and office supplies for the use of Provider’s (and its Subcontractors’)personnel are the exclusive responsibility of Provider.  Provider shall be entitled to makeimprovements to any space where Provider’s personnel are performing Serviceson-site at a In-Scope Location (including, but not limited to, structural,mechanical and electrical alterations), provided that: (i) suchimprovements shall have been previously approved in writing by Investors (whichapproval may be withheld in Investors’ sole discretion); (ii) suchimprovements shall be made at no cost to Investors; (iii) anySubcontractors used by Provider to perform such improvements shall have beenidentified or otherwise approved in writing by Investors; and(iv) Investors shall be granted, without further consideration, all rightsof ownership in such improvements.

 

## 4.2   DesignatedResources

##  

## Investors shall provide, asa courtesy to Provider, ordinary office supplies (other than consumable officesupplies), all such telephone (excluding long distance charges), computerconnections, and network access at Investors In-Scope Locations, as may benecessary for Provider personnel working at such In-Scope Locations to providethe Services (“**Designated Resources**”). Provider shall be responsible for modem computers and peripheraldevices, all usage-based carrier charges incurred by Provider personnel and allusage-based carrier charges incurred to provide Provider personnel withconnectivity from the Investors In-Scope Locations and consumable officesupplies (such as pens and notepads). Designated Resources will be provided by Investors to Provider “AS IS”and Provider shall be responsible for paying Investors the “**ChargebackFee**” applicable to such Designated Resource as may be specified in **Schedule E**.  If no Chargeback Fee is specified in **Schedule E**then the Designated Resources will be provided to Provider at no charge toProvider; provided, however, if Investors expense for such Designated Resourcesexceeds [*] in any Contract Year, then the Provider agrees to negotiate in goodfaith with Investors for a reasonable Chargeback Fee in subsequent ContractYears as reimbursement for the expense for such Designated Resources.

 

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## 4.3   Accessto Personnel and Information

##  

## With respect to Provider’sperformance of the Services, Investors shall provide Provider with reasonableaccess to Investors’ administrative and technical personnel, other similarpersonnel, and network management records and information.

##  

## 4.4   Other Facility-RelatedObligations

##  

###### (a)   Except as expressly providedin this Agreement, Provider shall use Investors In-Scope Locations andInvestors Facilities and In-Scope Locations for the sole and exclusive purposeof providing the Services.  Use of suchIn-Scope Locations by Provider does not constitute a leasehold interest infavor of Provider.

######  

###### (b)   Provider shall use In-ScopeLocations and Investors Facilities in a reasonably efficient manner.

######  

###### (c)   Provider, and itsSubcontractors, employees, and agents, shall keep Investors In-Scope Locationsand Investors Facilities in good order, shall not commit or permit waste ordamage to such In-Scope Locations and Investors Facilities, and shall not usesuch In-Scope Locations and Investors Facilities for any unlawful purpose oract.

######  

###### (d)   Provided that Investorsadheres to any mutually agreed upon security procedures implemented by Providerat Investors In-Scope Locations, Provider shall permit Investors and its agentsand representatives to enter into those portions of Investors In-ScopeLocations occupied by Provider staff at any time to perform facilities-relatedservices.

######  

###### (e)   When Investors In-ScopeLocations and Investors Facilities are no longer required for performance ofthe Services, Provider shall return such In-Scope Locations and InvestorsFacilities to Investors in substantially the same condition as when Providerbegan use of such In-Scope Locations and Investors Facilities, subject toreasonable wear and tear.

######  

###### (f)    Provider shall notknowingly breach any lease agreements governing use of Investors In-ScopeLocations.

######  

###### (g)   Investors shall provide andmaintain, for all Investors In-Scope Locations, adequate heating, ventilation,and air conditioning, electrical connections (to the wall plate), safety andsecurity equipment, and connections to any facility-wide uninterruptable powersupply.  Investors shall provideProvider with reasonable notice of proposed changes to any of the foregoingthat may adversely affect Provider’s hardware located at any such facility and,in such cases, Provider must relocate such hardware and Investors shallreimburse Provider for its actual costs incurred directly in connectiontherewith.  To the extent provided byInvestors, Investors shall maintain any uninterruptable power supply that isdedicated to support any Investors In-Scope Locations.  Provider shall provide and maintain anyuninterruptable power supply dedicated to Provider’s hardware and shall provideand maintain all connections from the wall plate to the hardware used toprovide the Services.

######  

###### (h)   For any In-Scope Locationsadded by Investors after the Contract Effective Date, Provider shall provide toInvestors, for its review and approval, detailed site fit-up plans andspecifications conforming to the hardware manufacturer’s requirements that arenecessary for Provider to provide the Services to such Locations.

######  

# **5.             RETAINED AUTHORITY**

# ** **

Investors shall retain the exclusive right andauthority to set Investors’ IT strategy and to determine, alter, and define anyor all of Investors’ requirements or business processes.  Recognizing that ODCS only supports astandard platform, subject to **Section 9** of this Agreement, IBM willinform Investors in advance of planned changes to the ODCS environment.  However, Investors shall also have the rightto approve or reject any and all proposed decisions regarding Investors’infrastructure design, technical platform, architecture, and standards and,****willhave the right and authority to cause Provider at any time to change any or allof the foregoing, subject 

 

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to the change management procedure described in **Section 7.4**of this Agreement. To the extent that Provider can demonstrate that aparticular exercise of Investors’ rights and authorities as stated in this Section mayinterfere with or degrade Provider’s provision of the Services or have amaterially detrimental impact on Provider’s cost of providing the Services ortime for delivery of the Services, the Parties shall mutually agree to anyproposed exercise of such right or authority pursuant to the change managementprocedure to be mutually agreed pursuant to this Agreement, prior to theimplementation thereof.  Provider shallactively participate in any of the foregoing as Investors requests.  Investors shall consult with Provider toinform Provider of significant changes in Investors’ IT strategy and changes inits requirements and business processes relating to the Services.  Provider shall also provide Investors with advice,information, and assistance in identifying and defining IT projects and futureIT requirements to meet Investors’ objectives. Without limiting the generalityof the foregoing and, subject to the change management procedure describedabove, Investors shall retain authority, discretion, and rights of approval forthe following IT activities.

 

## 5.1   Strategic and OperationalPlanning

##  

## Strategic and operationalplanning for Investors owned IT systems, which includes the following:

 

###### (a)   Developing a series ofcomprehensive standards and planning guidelines pertaining to the development,acquisition, implementation, and oversight and management of IT systems;

######  

###### (b)   Identifying and implementingopportunities for reducing costs for IT systems considering alternativesprovided by Provider;

######  

###### (c)   Approving or disapproving,in accordance with guidelines established by Investors, each proposedacquisition of hardware or software for an IT system;

######  

###### (d)   Approving or disapproving,in accordance with guidelines established by Investors, all requests orproposed contracts for consultants for IT systems;

######  

###### (e)   Defining and evaluating ITservices including: service availability and minimum acceptable serviceslevels; service specifications, standards, and benchmarking, selection ofsuppliers, security requirements; scheduling, prioritization, and serviceconflict resolution among End-Users; and

######  

###### (f)    Service-supplier strategyincluding: selection of suppliers, specialized supplier relationships(e.g., telecommunications), and quality assurance standards.

######  

## 5.2   Service Design and Delivery

##  

## Service design and delivery,which includes the following:

 

###### (a)   Selecting designs ofspecific technologies and services from alternatives provided in part byProvider;

######  

###### (b)   Selecting specifictechnologies, hardware, and software, from alternatives provided in part byProvider, for implementation of such designs;

######  

###### (c)   Selecting suppliers ofspecific technologies, hardware, and software from alternatives provided byProvider in part; and

######  

###### (e)   Selecting implementationschedules and activities from alternatives provided in part by Provider.

######  

## 5.3   Moves, Adds, and Changes; ApplicationsDevelopment

##  

Ordering move, add, andchange activities with respect to resources used in connection with theServices and designating Investors’ requirements for applications developmentand enhancement.

 

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## 5.4   Business Process Reengineering

##  

Provider shall periodicallyidentify and Investors shall approve IT opportunities and recommendations forbusiness process reengineering at Investors. Investors shall ensure that performance metrics related to businessprocess reengineering are accurately and appropriately developed.

 

## 5.5   Contract Management

##  

## Managing this Agreement andInvestors’ relationship with Provider.

 

## 5.6   Budget Management

##  

Managing Investors’ annualbudget for all Investors operations, utilizing Provider’s estimates forServices included in the scope of this Agreement and for additional servicesplanned or anticipated throughout the Term.

 

## 5.7   Validation and Verification

##  

## Performing validation andverification activities in relation to key projects and operational processes.

 

## 5.8   Other Retained Authority

##  

Provider must obtain theprior written authorization of Investors before undertaking any activity thatis within the exclusive authority of Investors pursuant to the terms hereof.

 

## 5.9   Review and Acceptance

##  

Investors shall have theright to review and accept or reject all components, deliverables, and systemsto be provided by Provider to Investors under this Agreement, pursuant to themethodology set forth in this **Section 5.9**.  Within thirty (30) calendar days after the Contract EffectiveDate, Provider shall develop a functional methodology for the implementation ofthe process described in this **Section 5.9** by the delivery of controldocuments, the preparation of deliverable acceptance documents, the tracking ofaccepted deliverables, the maintenance of all deliverables and deliverableacceptance documents and the timely review and response by Investors when suchmethodology calls for any Investors review, acceptance and/or approval.Provider will finalize the above methodology within thirty (30) calendar daysof the Contract Effective Date.   In theevent business as usual Services are delayed predominantly due to Investors’request, or failure to abide by the terms of the Agreement or itsresponsibilities in the Transition Plan, Provider will not be precluded frominvoicing for those steady state services.  If steady state Services are delayed predominantly due to a Provideraction or inaction, or failure to abide by the terms and conditions of theAgreement or the responsibilities in the Transition Plan, Provider will delayinvoicing for those steady state Services until the delay is resolved.

 

### **5.9.1       Acceptance Testing**

### ** **

Upon Provider’snotification to Investors that Provider has completed any component ordeliverable identified in any Work Order or Initiative as being subject totesting, Investors shall begin testing the component or deliverable using thetest procedures and standards set forth in the Work Order or Initiative, orsuch other standards as the Parties mutually agree in writing, if any (“**AcceptanceTest Procedures**”), to determine whether such component ordeliverable meets, in all material respects, the acceptance criteria set forthin such applicable Work Order or Initiative, or such other criteria as theParties mutually agree in writing (the “**Acceptance Criteria**”).   After Investors has completed any suchtesting or upon expiration of the agreed-upon testing period specified in theapplicable Work Order or Initiative, or such other testing period upon whichthe Parties mutually agree in writing (the “**Acceptance Testing Period**”),Investors shall notify Provider in writing either that:  (i) the component or deliverable meetsthe Acceptance Criteria and that acceptance of such component or deliverablehas occurred (“**Acceptance**”); or (ii) the Acceptance Criteria have notbeen met, along with the Exception Report described in **Section 5.9.2**below.  If Investors fails to deliver anException Report within fifteen (15) calendar days after the expiration ofthe applicable Acceptance Testing Period or Extended Acceptance Period (or ifthe parties have not specified an Acceptance Testing Period, within fifteen(15) calendar days after Provider’s written notice of completion), suchcomponent or deliverable shall be 

 

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deemed to have beenaccepted.  If the component ordeliverable is identified in this Agreement, the applicable Work Order orInitiative, or in the written specifications developed and mutually agreed uponby the Parties therefore, as being an integrated component of a larger,integrated system being developed thereunder as being conditional acceptance (“**ConditionalAcceptance**”), then such component or deliverable shall be subject toFinal Acceptance in accordance with **Section 5.9.3**below.

 

### **5.9.2       Cure**

### ** **

If a component or deliverable subject to acceptancetesting as described in **Section 5.9.1** above, does not conformin all material respects with, the applicable Acceptance Criteria, Investorsshall promptly deliver to Provider an exception report describing thenonconformity with a reasonable degree of specificity and evidentiary documentationin order to enable Provider to assess such alleged nonconformity and takeappropriate action (the “**Exception Report**”).  Provider shall promptly investigate thealleged nonconformity and shall make commercially reasonable efforts to correctsuch nonconformity in all material respects within thirty (30) calendardays of receipt of the Exception Report or, if the nonconformity is incapableof cure within such thirty (30) calendar day period, Provider shallpresent Investors, within such thirty (30) calendar day period, a mutuallyagreeable plan to cure such nonconformity within a reasonable amount oftime.  Upon Provider’s notice toInvestors that Provider has so cured such nonconformity, Investors shall re-testthe defective component or deliverable in accordance with the applicableAcceptance Test Procedures and Acceptance Criteria for an additional testingperiod (“**ExtendedAcceptance Period**”) of up to thirty (30) calendar days or suchother period as the Parties mutually agree in writing, at the end of whichperiod the process described above in **Section 5.9.1** shall be repeated.

 

### **5.9.3       Final Acceptance**

### ** **

Upon completion of all components of a larger,integrated system being developed thereunder and subject to ConditionalAcceptance, Investors shall begin testing the system that is comprised of suchcomponents or deliverables, using the test procedures and standards set forthin the Work Order or Initiative, or such other standards as the Partiesmutually agree in writing (the “**Final Acceptance Test Procedures**”), inorder to determine whether such system performs as an integrated whole andmeets, in all material respects, the acceptance criteria set forth in suchapplicable Work Order or Initiative, or thereafter developed by the Parties andmutually agreed upon in writing by the Parties (the “**Final Acceptance Criteria**”).  After Investors has completed such testingor upon expiration of the testing period specified in the applicable Work Orderor Initiative, or such other testing period as the Parties mutually agree inwriting (the “**Final Acceptance Testing Period**”), Investors shall notifyProvider in writing that:  (i) thesystem, and all components and deliverables that are a part thereof, meet theFinal Acceptance Criteria and that final acceptance of the system and suchcomponents and deliverables has occurred (“**Final Acceptance**”); or (ii) that theFinal Acceptance Criteria have not been met. If Investors determines that the Final Acceptance Criteria have not beenso met, the process described in **Section 5.9.2** shall be initiated, withall references to “Acceptance Criteria” being references to “Final AcceptanceCriteria,” all references to “component or deliverable” being references to the“system,” all references to “Acceptance Test Procedures” being references to“Final Acceptance Test Procedures,” and all references to the “AcceptanceTesting Period” being references to the “Final Acceptance Testing Period.”  Conditional Acceptance by Investors shallnot constitute a waiver by Investors of any right to assert claims based upondefects not discernable through conduct of the applicable test procedures andsubsequently discovered in a component or deliverable or the system within one(1) year of Investors’ Final Acceptance thereof.  Upon completion of all of the Services to be provided under aWork Order or Initiative, to the extent that the Services provided do notresult in the development of a system subject to testing as stated above, theFinal Acceptance Test Procedures shall consist of Investors’ verification thatall of the Services to be provided by Provider under such Work Order orInitiative have been provided in all material respects in accordance with theWork Order, or Initiative, or such other acceptance criteria mutually developedby the Parties and mutually agreed upon by the Parties.   Provider shall notify Investors whenProvider has completed the Services under a Work Order or Initiative andInvestors shall deliver to Provider a statement of deficiencies (if any).  Provider shall correct such deficiencies inall material respects within thirty (30) calendar days of receipt of suchstatement or, if the deficiencies are not correctable within suchthirty (30) calendar days period, Provider shall present Investors with amutually agreeable plan to fix such defects within a reasonable amount oftime.  Upon Provider’s notification toInvestors that Provider has so corrected such deficiencies, Investors shallonce again determine whether the Services have been so completed within anadditional period as agreed in writing by the Parties, at the end of which theprocess described in the second and first preceding sentences shall berepeated.

 

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If Investors fails to deliver a statement of thedeficiencies in the Services before the expiration of the applicable reviewperiod, Investors shall be deemed to have accepted the Services.

 

# **6.             FINANCIAL TERMS**

# ** **

Asthe sole and entire financial consideration for all of the Services to beperformed by Provider, Investors shall pay to Provider the amounts set forth inthis **Section 6**and **Schedule E**.

 

## 6.1   Annual ServiceFees

##  

### **6.1.1       Annual Service Fees**

### ** **

The Parties hereby agree that the Annual ServiceFees for 2004 of this Agreement shall be as specified in **Schedule E**.  The Annual Service Fees for subsequentcalendar years will be based on the estimated Baseline volumes and ForecastedMonthly Usage for that calendar year as calculated against the Annual ServiceFees specified in **Schedule E**.  Except for ODCS: (1), within thirty (30) calendar days prior tothe end of the calendar year, Investors will determine, in its sole discretion,the Baseline volumes for the following calendar year so long as those changesfall within the established “Baseline **Floor**” and “**Baseline****Ceiling**” (as those terms aredefined in **Schedule E**) for that year, and (2) for changes that arein excess of that year’s Baseline Floor and Baseline Ceiling, Investors mustgive Provider no less than ninety (90) calendar days notice of the Baseline volumesfor the following calendar year.  ForODCS, Investors may adjust its Forecasted Monthly Usage per **Schedule E**,Section.2.4.

 

Notwithstandingthe foregoing, during the calendar year, the Annual Service Fees will besubject to adjustment for changes limited to the unit rate changes specified in**Section 6.1.4**(Add Charges), **Section 6.1.6** (Delete Credits), and **Section 6.1.8** (MonthlyUsage Charge) of this Agreement. Further, the Annual Service Fees set forth in **Schedule E**will be subject to the ECA adjustments, if any, as specified in **Schedule E**.

 

### **On a monthly basis, Provider shall report toInvestors the Annual Service Fees incurred to-date during each calendar yearand the amount of Fees projected to be incurred in the remaining months of thecalendar year.  In addition, Provider’smonthly invoices shall specify adjustments to the Monthly Usage Charges, AddCharges and/or Delete Credits applied to the monthly portion of the AnnualService Fees being invoiced.  If eitherProvider or Investors reasonably determine, based upon such monthly report,that the Annual Service Fees that would be payable are likely to exceed AnnualService Fees prior to the end of the relevant calendar year, the parties shallcooperate to make adjustments to the Services or Annual Service Fees inaccordance with**Schedule E.

### ** **

### **6.1.2       Currency / Charges**

### ** **

Allprices, billing and payments will be in United States Dollars unless explicitlyexpressed in some other currency.  Allperiodic charges will be computed on a calendar month basis and will beprorated for any partial month, unless this Agreement expressly statesotherwise.

 

### **6.1.3       Annual Services Fees Invoice**

 

Exceptfor 2004, Provider will invoice Investors for the year’s Annual Services Fees,prorated in equal monthly payments for each month of the calendar year (exceptfor ODCS charges which will be invoiced pursuant **Section 6.1.8**), inaccordance with the payment terms set forth in 15.1.1 of this Agreement.  In 2004, Provider will invoice Investors forthe ASF, prorated in equal monthly payments for each month of the calendar yearfollowing Transition. The ASF will be decreased proportionately if Transitionfor all Services except ODCS Services does not end by **December XXX 1, 2004**.

 

### **6.1.4       Adds Charges**

### ** **

Providerwill invoice Investors each quarter of the Term, beginning thirty days aftercompletion of the Transition Period, for all Services except ODCS, for the “**Add Charges**”,if any, applicable for the prior 

 

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quarter. Add Charges will be calculated as set forth in**Schedule E**, **Exhibit E-1-A**. Add Charges, if any, for theprior three (3) months shall be netted at the end of each calendar quarter andthe difference shall be paid or credited (as applicable) in the followingmonth’s invoice.

 

### **6.1.5       Other Charges**

### ** **

Providerwill invoice Investors for any other agreed upon charges.

 

### **6.1.6       Deletes Credits**

### ** **

Providerwill provide Investors with a credit against Investors’ quarterly invoicesbeginning with first month after the completion of the Transition Period, forall Services except ODCS, for the “**Delete Credits**”, if any, applicable for theprior quarter.   Delete Credits will becalculated as set forth in **Schedule E**, **Exhibit E-1-A**. DeleteCredits, if any, for the prior three (3) months shall be netted at the end ofeach calendar quarter and the difference shall be paid or credited (asapplicable) in the following month’s invoice.

 

**6.1.7       Other Credits**

 

AtInvestors option, Provider will pay any amounts due and owing to Investorspursuant to this Agreement by either: (i) paying such amount to Investors, or(ii) providing Investors with a credit against Provider’s next monthly invoiceto Investors under this Agreement.

 

### **6.1.8       Monthly Usage Charge**

### ** **

## Beginning on the ContractEffective Date, Provider will invoice Investors monthly for an amount equal tothe Forecasted Monthly Usage listed in **Schedule E** for the applicable month(“Monthly Usage Charge”) based upon the Monthly Usage Charge Unit Rates setforth in **Schedule E**.   Monthly Usage Charges, if any, for theprior three (3) months shall be netted at the end of each calendar quarter andthe difference shall be paid or credited (as applicable) in the followingmonth’s invoice.

##  

## 6.2           Pricing Audit

##  

Provider shall, upon request, allow auditors mutuallyagreed to by the Parties, that are not competitors of Provider or itsSubcontractors with respect to the provision of the types of services asprovided under this Agreement, and who have executed a confidentialityagreement substantially in the form of the Auditors Confidentiality Agreementattached as **Schedule V**, to fully audit Provider to the extentreasonably necessary to verify any amounts paid or payable hereunder areconsistent with the charges and charging methodology set forth in **Schedule E**.  Provider shall provide such auditors withall reasonable and necessary access to documents, and other informationrelating to the Services provided under this Agreement as necessary to confirmthe accuracy of Provider’s invoices, and any pricing adjustment computations.  All such audits shall be conducted duringProvider’s normal business hours, with reasonable advance notice and shallinclude reasonable access to certain Provider proprietary and confidentialityinformation to the extent necessary to comply with this **Section 6.2** (providedthe auditors shall have no access to Provider’s profit or cost data, personnelrecords, confidential information of other Provider customers or to Provider’sinternal audit data, collectively, “**Internal Confidential Information**”).  Auditor(s) shall be compensated on a feebasis rather than a contingency or other incentive compensation scheme.  Provider shall promptly refund allovercharges.  Further, if any such auditreveals that Provider has overcharged Investors in excess of five percent (5%)during the period to which the audit relates as determined prior to thecommencement of the audit, then (subject to **Section 20** – DisputeResolution) Provider shall promptly refund such overcharges to Investors withinterest equal to the lesser of one percent (1%) of such payments per everythirty (30) calendar days or portion thereof; or (ii) the maximum amountpermissible by the applicable law. Investors may dispute any invoice in accordance with the provisions ofthis Agreement and Provider will bear its own internal costs of participatingin such audit.

 

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## 6.3   Reduction of Payments

##  

If Investors terminates as to any of the categories of Servicesdescribed in this Agreement, pursuant to the terms of **Section 11.2.1**, **Section 11.2.2,****Section 11.3,Section 11.4 or Section 11.5,** hereof, then the adjustmentsto the Annual Service Fees for such category of Services, in accordance with **Schedule E**,shall go into effect as of the effective date of such termination.

 

## 6.4   Taxes

##  

All fees payable to Providerhereunder shall be inclusive of all taxes imposed as of the Contract SigningDate by any domestic or foreign taxing (unless prohibited by law, e.g.; IrelandValue Added Taxes)  authority in respectof the provision of the Services hereunder, including any sales, use, excise,value-added, services, consumption, or other tax as may be set forth in **Schedule E**(collectively, “**Sales Tax(es)**”); provided, however, that Investors shall notbe responsible for, and such fees shall not include, any personal propertytaxes on property Provider owns or leases, for franchise and privilege taxes onProvider’s business, gross receipts taxes to which Provider is subject, and forincome taxes based on Provider’s income. In the event that a Sales Tax becomes effective after the ContractSigning Date and is assessed on the provision of Services by Provider that arewithin scope as of the Contract Signing Date or on Provider’s charges underthis Agreement related thereto, however levied or assessed, Investors shall beresponsible for and pay its proportionate share of any such Sales Tax.

 

The Parties agree tocooperate with each other to enable each to more accurately determine its owntax liability and to minimize such liability to the extent legallypermissible.  Provider’s invoices shallseparately state the amounts of any taxes Provider is properly collectingpursuant to the terms hereof.

 

## 6.5   Benchmarking

##  

With Investors’ direction and cooperation, and as part of the Services,Provider shall conduct a benchmarking program (“**Benchmarking**”) that shallenable Investors to compare the Annual Service Fees (including Add Charges,Delete Credits and Monthly Usage Charges) and MASLs set forth in this Agreementwith, and to ensure that said Annual Service Fees and MASLs are competitivewith rates and practices available from Provider’s competitors for servicescomparable to the Services provided hereunder. [*] Provider shall work with either Gartner Measurement, or, as theParties mutually agree, another independent and professional benchmarking firmwith substantial experience in the field of benchmarking the type of servicesprovided under this Agreement.  Forpurposes of this **Section 6.5**, and during the Term, in the event theparties are unable to otherwise agree upon a benchmarking firm, unlessotherwise disqualified, Gartner Measurement shall be deemed reasonablyacceptable by both parties.  Theselected firm shall not be a competitor of Provider or its Subcontractors inthe information technology markets with respect to the provision of servicessimilar to the Services and shall be engaged on a fee basis and not on acontingency or other incentive based compensation scheme.  Provider shall pay [*] of all fees and chargespaid to such benchmarking firm, to conduct the Benchmarking.  The Parties shall cooperate fully with thebenchmarking firm to facilitate a smooth and prompt collection of data withrespect to the Services being benchmarked. Investors and Provider will makegood faith efforts to agree promptly, in advance and in writing, to thebenchmark process, methodology and minimum criteria to be used when conductingthe Benchmarking and when establishing the relevant comparison price**. **Each Party shall have the opportunityto advise the benchmarking firm of any information or factors that it****deemsrelevant to the conduct of the Benchmarking, so long as such information isdisclosed to the other Party.  Thebenchmarking firm shall provide reports on the Benchmarking exclusively toInvestors and Provider for their internal use only, and shall not otherwise useor disclose such reports or data or information related thereto. In the eventthat, after negotiating in good faith, the Parties are unable to mutually agreeon an acceptable Annual Service Fees or MASLs adjustment, then at Investorsoption, Investors may elect to adjust the Annual Service Fees as follows: [*]In addition to the foregoing, Provider will also discuss and proposealternatives for further Annual Service Fees, Services scope, MASLs or SLRschanges to deliver a lower price point to get closer to the comparisonprice.  Investors shall also have theoption, [*].

 

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## 6.6   Work Orders

##  

For Work Orders, Provider shall be paid such amounts as may bedetermined through the provisions of **Section 7.4** hereof.

 

## 6.7   Initiatives

##  

For Initiatives, Providershall be paid such amounts as may be determined through the provisions of **Section 8**hereof.

 

## 6.8   Incentives and Fee Reductions

##  

**Schedule F** specifies certain incentives and feereductions that may be imposed in the event of any failure (“**FeeReduction**”) or earn back (“**Incentive**”) in respect of Provider’s actualperformance of Services as measured against the Critical Milestones or theMASLs.  The Parties acknowledge andagree that Fee Reductions are intended to reflect, to some extent, thediminished value of the Services as a result of any such failure; whichdiminished value reflects the damages from such failure, which are difficult orimpossible to measure.  Such FeeReductions are not intended to constitute penalties, but rather are intended asliquidated damages, or other compensation for any such failure.   [*].

 

6.9   Only Payments

 

The Annual Service Fees and charges set forth in this **Section 6**and **Schedule E**are the only payments to be made by Investors to Provider under thisAgreement.  Except as otherwiseexpressly stated in this **Section 6**, Investors shall not payProvider any additional fees, assessments, reimbursements, or expenses forlabor and general business expenses (including travel, meals, and overheadexpenses).

 

## 6.10 Disputed Amounts

##  

Subject to and in accordance with the provisions of this **Section 6.10**,Investors may withhold payment of any Provider invoice (or part****thereof)that it in good faith disputes are due or owing.  In such case, Investors shall, by the applicable due date, payany amounts then due that are not disputed and provide to Provider a writtenexplanation of the basis for the dispute as to the disputed amounts.  The failure of Investors to pay a disputedinvoice, or to pay the disputed part of an invoice, shall not constitute abreach or default by Investors, so long as Investors complies with theprovisions of this **Section 6.10**.  For purposes of **Section 20**, any disputerelating to amounts owed by a Party hereunder shall be considered aProblem.  In any such event, the Partiesshall diligently pursue an expedited resolution of the dispute.  Provided, however, that the aggregate amountwithheld in respect of amounts being disputed, shall in no event exceed [*] ofthe Annual Service Fees for the year in which the dispute arose,notwithstanding any such dispute. Payment by Investors to Provider of amounts in excess of the aggregatedisputed amounts will not constitute a waiver by Investors of their rights withregard to the dispute.

 

# **7.             RELATIONSHIP MANAGEMENT**

# ** **

## 7.1   Personnel

##  

### **7.1.1       Provider’s Key Personnel**

### ** **

Each of the initial Provider’s Key Personnel, including the ProviderContract Manager, is designated on, and shall have the functions assigned tohim or her, as set forth in this Agreement or in **Schedule I**.  **Schedule I**may be modified from timeto time in accordance with this Agreement, and shall be deemed modified upon(i) the Parties mutual designation in writing of certain Transitioned Employeesas Provider’s Key Personnel as set forth below, and (ii) any mutually approvedmodification, replacement or substitution of a new person for any Provider’sKey Personnel already listed in **Schedule I** as may be amended from timeto time.  Prior to the Contract SigningDate, Investors shall have the right to interview and approve the initialProvider’s Key Personnel listed on **Schedule I**, including the ProviderContract Manager, and if any such Provider’s Key Personnel or the ProviderContract Manager are not approved by Investors then upon written 

 

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noticefrom Investors to Provider such unapproved personnel shall be replaced inaccordance with this **Section 7.1.1**, and **Section 7.1.2**and **Section 7.1.7**below.

 

Afterthe Contract Signing Date, Investors shall have the right, prior to theassignment, hiring or designation of any person to fill the position or performthe duties provided by any Provider’s Key Personnel or the Provider ContractManager, to interview and participate in the selection of such person to fillthe position or perform the duties provided by Provider’s Key Personnel and/orthe Provider Contract Manager, as and to the extent Investors deems necessaryor desirable.  Except as an emergency,whether or not Investors conducts an interview or participates in suchselection, Provider shall not hire, assign or designate any new person to fillthe position or perform the duties provided by any Provider’s Key Personnel orreplace its Provider Contract Manager without Investors’ prior written consent,which may be given or withheld in Investors’ sole discretion.  The Parties acknowledge that certainTransitioned Employees will, by mutual agreement of the Parties, be designatedas Provider’s Key Personnel by Investors before or concurrently with theContract Signing Date.  All Provider’sKey Personnel shall be assigned to the performance of the Services on a fulltime basis, and Provider shall not, without Investors’ prior written consent,(i) undertake any action with respect to any Provider’s Key Personnel or theProvider Contract Manager resulting in the alteration or reduction of timeexpended by such Provider’s Key Personnel or the Provider Contract Manager inperformance of Provider’s duties under this Agreement; or (ii) transfer,reassign or otherwise remove or redeploy any Provider’s Key Personnel or theProvider Contract Manager except in the case of a termination for cause.  Notwithstanding anything in this Agreementto the contrary, for a period of [*] after the Contract Manager assignment withInvestors is terminated, Provider will not transfer or reassign the ContractManager or any Key Personnel to the account of [*], or any parent, subsidiaryor affiliate of any such entity (“**Investors Competitor**”). If any one ofProvider’s Key Personnel or Provider Contract Manager becomes incapacitated,voluntarily terminates their employment with Provider (and/or any of Provider’sAffiliates or Subcontractors), is terminated for cause by Provider or istransferred with the consent of Investors, Provider shall, within no more thantwo (2) business days, temporarily replace such person with another personreasonably approved by Investors and that is at least as well qualified as theperson who initially performed that person’s functions.  Subsequently, Provider shall, as soon asreasonably practicable but no more than thirty (30) calendar days, propose aqualified candidate for the position and such candidate will be subject toapproval by Investors.  For purposes ofthis **Section 7.1.1**,the movement of Provider’s Key Personnel from the employ of Provider to anAffiliate or Subcontractor of Provider, at Providers direction, shall beconsidered a reassignment requiring Investors’ consent and not a cessation ofemployment.  Provider shall maintaindetailed written succession plans and conduct the replacement procedures forProvider’s Key Personnel in such a manner so as to assure an orderly successionfor any Provider’s Key Personnel that are replaced.  Upon request, Provider shall make such written succession plansavailable to Investors.

 

### **7.1.2       Provider Contract Manager**

### ** **

The“**ProviderContract Manager**” appointed by Provider must be (i) knowledgeableabout the Services and each of Provider’s and its Subcontractors products andservices, (ii) experienced at running information technology systems andnetworks of a size and scope of at least to that of Investors, and (iii)otherwise acceptable to Investors. Provider represents and warrants that its Provider Contract Manager isan experienced manager who is experienced as a project leader in a project ofsuch size and who is knowledgeable as to the Services.  The Provider Contract Manager shall act as theprimary liaison between Provider and Investors’ Representatives, shall haveoverall responsibility for directing all of Provider’s activities hereunder,and shall be vested by Provider with all necessary authority to act forProvider in connection with all aspects of this Agreement and fulfill thatresponsibility.  Provider andSubcontractor staff shall be managed in the performance of their duties by theProvider Contract Manager who will serve as Provider’s senior executive withinall of Investors In-Scope Locations. The Provider Contract Manager shall report to an InvestorsRepresentative and will perform his or her duties, under this Agreement, asthough part of Investors’ management organization in the same manner as wouldbe expected of an employee of Investors.

 

Notwithstandinganything else herein to the contrary, Provider shall not replace the ProviderContract Manager during the period of time that begins on the ContractEffective Date and ends on the [*] anniversary of the Contract Effective Datewithout Investors’ prior written consent. Before any desired replacement of the Provider Contract Manager,Provider shall notify Investors of the proposed replacement and assignment of anew the Provider Contract Manager, introduce the individual to appropriateInvestors representatives and provide Investors with a resume and any otherinformation about the individual reasonably requested by 

 

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Investors.  Investors shall have the right, prior to theassignment, hiring or designation of any such person to fill the position orperform the duties provided by the Provider Contract Manager, to interview andparticipate in the selection of such person to fill the position or perform theduties of the Provider Contract Manager, as set forth above.  Provider agrees to discuss with Investorsany objections Investors may have to such assignment and the Parties willattempt to resolve such concerns on a mutually agreed basis; provided that ifInvestors and Provider cannot agree, such person will not be assigned as theProvider Contract Manager by Provider, but an alternative candidate orcandidates will be identified for consideration and approval as above.  Whether or not Investors consents to anyreassignments or replacements of the Provider Contract Manager, Provider willbe in Default of its obligations under this Agreement if it assign more thanthree (3) different individuals to the position of the Provider ContractManager during the Term, unless: (w) Investors requests such reassignment orreplacement, (x) Provider Contract Manager voluntarily resigns from Provider oris unable to work due to his or her death, disability, or leave of absence ofat least thirty (30) calendar days, (y) for personal reasons the ProviderContract Manager request a reassignment to a different account in ametropolitan area other than Boston, Massachusetts, or (z) if the Partiesotherwise agree.  Provider shall causethe Provider Contract Manager to be stationed in the greater Boston,Massachusetts metropolitan area and to devote substantially all of his or herfull working time and effort to his or her responsibilities for the provisionof the Services under this Agreement. For any bonus compensation payable by Provider to the Provider ContractManager, Investors’ management’s evaluation of the Provider Contract Manager’sperformance will be taken into account. Unless the Provider notifies Investors’ Chief Financial Officer inwriting prior to completing any sale, lease or licensing of software, hardwareor services (outside of the scope of the Services), the Provider ContractManager will not directly receive any commissions based on the sale, lease orlicensing of any software, hardware or services (outside of the scope of theServices) by Provider, Subcontractor or any of their Affiliates to Investors.

 

### **7.1.3       Additional Personnel Requirements**

### ** **

Inaddition to Provider’s Key Personnel, Provider shall provide and make availablesuch additional staff and personnel as necessary to properly perform all ofProvider’s obligations under this Agreement. All costs and expenses associated with providing, equipping andretaining Provider staff and other personnel is included within the Annual ServiceFees or other charges payable by Investors pursuant to **Schedule E**, including,without limitation, all wages and benefits and associated staffing costs suchas training and education, office supplies, PC refreshment, travel and lodgingcosts and recruiting and relocation expenses. Provider shall, upon request, provide Investors with a written list ofall Provider and Subcontractor personnel whose time is predominantly dedicatedto providing Services under this Agreement.

 

### **7.1.4       Minimum Proficiency Levels**

### ** **

**All personnel assigned by Provider or its Subcontractors toperform Provider’s obligations under this Agreement shall have the necessaryskills to perform the Services in accordance with the relevant SLRs andresponsibilities assigned.**

** **

### **7.1.5       Specialized Personnel**

### ** **

### **Provider agrees that as part of its provision ofServices, all Provider personnel (and the personnel of any Subcontractors) aretrained, qualified, and available to perform all Services required in workareas requiring specific health, security, or safety precautions, to the extentsuch precautions are communicated to Provider.**

### ** **

### **7.1.6       Training**

### ** **

Provider shall provide, andcause its Subcontractors to provide, all such training and certification to theemployees of Provider and its Subcontractors (including the TransitionedEmployees) as may be necessary for them to perform, on behalf of Provider, allof Provider’s duties under this Agreement.

 

### **7.1.7       Replacement of Personnel**

### ** **

Notwithstanding**Section 7.1.1**,if Investors believes that the performance or conduct of any Person employed orretained by Provider, who works at the Investors In-Scope Locations or who hassignificant 

 

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contactwith Investors personnel or Investors customers, to perform Provider’sobligations under this Agreement is unsatisfactory for any reason or is not incompliance with the****provisions of this Agreement, Investorsshall so notify Provider in writing with reasonable specificity andjustification and Provider shall promptly address the performance or conduct ofsuch person, or, upon prompt confirmation of such justification, at Investors’request, promptly replace, as soon as reasonably possible, such Person withanother Person reasonably acceptable to Investors with sufficient knowledge andexpertise to perform the Services in accordance with this Agreement.

 

### **7.1.8       Conduct of Provider Personnel**

### ** **

In addition to any obligations contained within **Section 3.1**,while at or on the premises of Investors, personnel of Provider and Provider’sSubcontractors shall (1) conduct themselves in a businesslike manner, and(2) comply with the standard rules of Investors regarding safety andhealth (including adhering to general safety practices or procedures) as may berequired for such locations, to the extent that Provider has been made aware ofsuch policies.

 

## 7.2   Management Committee

##  

Shall be created pursuant to**Schedule H**.

 

## 7.3   Parties’ Relationship

##  

From time to time during theTerm, but on not less than a quarterly basis, Provider shall discuss withInvestors (and provide reports on) operational plans related to this Agreement,and Provider shall make available its senior management personnel to answerquestions from Investors’ senior management personnel regarding suchplans.  In addition, at Investors’request, the Sector / Industry Vice President of IBM Global Services) and theChief Information Officer of Investors (each a “**Senior Executive Contact**” andcollectively, the “**Senior Executive Contacts**”) shall meet todiscuss the general progress of the performance of this Agreement and theParties’ relationship.

 

## 7.4   Work Order Procedures;Change Management Procedure

##  

###### If Investors requires the performance of work that is not beingperformed at a particular time but that is within the scope of the Services,Investors shall deliver to the Provider Contract Manager a Work Order, in theform set forth in **Schedule O**, specifying the proposedwork with sufficient detail to enable Provider to evaluate it.  Unless the Parties mutually agree in writingto proceed otherwise, or mutually agree to an expedited process, withinfive (5) business days following the date of receipt of such Work Order,Provider shall provide Investors with an initial evaluation of the Work Orderand within ten (10) business days a written proposal containing the following:a detailed description of the Services to be performed; specifications (ifapplicable); implementation plans, with implementation to commence not laterthan thirty (30) calendar days after approval thereof, unless otherwisemutually agreed; the timeframe for performance; and the estimated price forsuch performance.  Notwithstanding theforegoing, if the scope of the Work Order is such that Provider reasonablydetermines ten (10) business days would be insufficient amount of time tofinalize a written proposal, then within a mutually agreeable period oftime.  The Parties understand and agreethat all services requested in such written requests shall be presumed to besubject to the Annual Service Fees unless Provider can demonstrate to Investors’reasonable satisfaction that the Work Order should not be subject to the AnnualService Fees based upon the following criteria: (i) whether the Work Order isto accommodate volume or usage levels that are above the volume and usagelevels planned or anticipated by this Agreement, (ii) whether the Work Orderrelates to a role, responsibility, scope or type of service previouslydelegated to Investors under this Agreement. All Work Orders shall be governed by the terms and conditions of thisAgreement.  Within the timeframespecified in Provider’s proposal (the “**Response Period**”), Investors shall notifyProvider in writing whether to proceed with the Work Order.  If, within the Response Period, Investorsnotifies Provider in writing (x) not to proceed, or fails to notifyProvider, then the Work Order shall be deemed withdrawn and Provider shall takeno further action with respect to it, or (y) to proceed with the WorkOrder, then Provider shall proceed in accordance therewith.  Provider will evaluate whether a Work Orderwould alter or affect a service level requirement specified in any ServicesSchedules (“**SLRs**”) and notify Investors in writing and in advance of sucheffect.  If Investors elects to go aheadwith the Work Order, despite the affect on the SLRs, Provider will be relievedof 

 

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###### suchSLRs to the extent it is affected by the Work Order; provided, however, theParties shall reasonably cooperate to minimize any such effect on theSLRs.  Work Orders must be executed byauthorized representatives of the Parties to be valid.  In the event Provider wishes to perform workthat it is not currently providing but that is within the scope of theServices, it shall provide Investors with a Work Order and a written proposal;thereafter, the procedure shall be as stated above.

######  

###### Within thirty (30) calendar days after the Contract Effective Date,Provider shall develop a change management procedure, in accordance with thesample procedure set forth in **Schedule O**, subject to Investors’review and approval.  Such changemanagement procedure shall be incorporated in the Standards and ProceduresManual.

######  

## 7.5   Extraordinary Events orCircumstances

##  

Investors may, at any time,in a writing signed by an Investors Representative, and as a result of anextraordinary event or circumstance, including a Force Majeure Event:  (i) direct Provider, in accordance withthe change management procedures in **Section 7.4**, to perform Services in anextraordinary manner (e.g., perform services at service levels above orbelow the MASLs for a limited duration); (ii) direct Provider totemporarily cease the performance of certain Services; or (iii) obtain athird party to perform certain Services for the duration of the extraordinary eventor circumstance.  If any such Investorsrequest causes an increase in Provider’s direct cost or expense of performanceof the affected Services, Investors shall pay Provider an amount equal to anysuch increase.  Any request by Providerfor such an adjustment must be asserted in writing to an InvestorsRepresentative within thirty (30) calendar days after the date of receiptby Provider of Investors’ writing with respect to the extraordinarycircumstance or event, or within such additional period of time as an InvestorsRepresentative may agree in writing, and shall include factual information andsupport for all purported increases and decreases in direct cost orexpense.  Pending the determination ofany such adjustment, Provider will diligently proceed with the requestedServices.  Subject to **Section 6.2**,Investors may require the submission of supporting cost and expensedocumentation and inspection of Provider’s pertinent for the purpose ofverifying Provider’s request and determining the basis for the adjustment.

 

# **8.             INITIATIVES**

# ** **

## 8.1   Initiative Requirements andProcess

##  

Investors may, at any timeand from time to time, propose a special project that is outside of the scopeof the Services (“**Initiative**”) to Provider and solicit aresponse from Provider for the performance of such Initiative.  Provider shall submit its response inrespect of each Initiative proposed by Investors within fifteen (15)business days after Provider’s receipt of Investors’ proposed Initiative, or,if the scope of the Initiative is such that fifteen (15) business dayswould be insufficient, within a mutually agreeable period of time.  Provider’s proposed fees for performance ofeach Initiative shall be at a fixed price (to the extent the Initiativeconsists of design, build, or other development services) or at a fixed rateper unit of performance or other benefit to be received by Investors (to theextent the Initiative consists of operational or other ongoing services), ineither case based upon competitive rates Provider is offering to similarcustomers for services of a similar nature and scope.  Each such response shall be in writing and shall contain thefollowing requirements and be in conformance with the process set forth herein:Provider’s response to Investors’ description and specifications for theInitiative, including all services to be performed, categories of personnel(and number of personnel within each category) required to complete theInitiative, and implementation plans; the amount, schedule, and method of payment;the timeframe for performance; completion and acceptance criteria; and anyproposed MASLs for new Services that would result from the Initiative.  In the event Investors selects Provider asits supplier with respect to, or the Parties otherwise reach agreement on theterms and conditions of, any Initiative, the obligations of Provider withrespect to the Initiative shall be governed by all the terms and conditions ofthis Agreement as if it were a****Service**,** to the extent that suchterms are not inconsistent with those agreed to by the Parties with respect tosuch Initiative.

 

## 8.2   Cooperation and Coordination

##  

With respect to eachInitiative as to which Provider is not selected to be the sole or principalsupplier, Provider shall at all times reasonably cooperate and coordinate withthe selected supplier in every respect (to the 

 

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extent that the Initiativeis affected by the Services) to facilitate the successful accomplishment of theInitiative, provided that such third-party supplier complies in all materialrespects with Provider’s technical and confidentiality requirements (which hadbeen previously disclosed to Investors under this Agreement) and to the extentthat the personnel otherwise assigned to perform the delivery of Services underthis Agreement can reasonably do so without materially and adversely affectingthe MASLs or other aspects of the Services delivered, including incurring anyunanticipated, material expenses as a result of the third party supplier’sperformance of the Initiative.  Suchcooperation shall include: (i) providing information concerning any or allof the systems, data, computing environment, and technology direction used inproviding the Services; (ii) cooperating with such third party in theimplementation and integration of the Initiative in Investors’ environment;(iii) providing access to and use of Provider resources to the extentreasonably necessary for such third parties to perform their obligations; and(iv) performing tasks assigned to Provider in connection with theInitiative, as mutually agreed between the Parties and subject to **Section 7.4**or **Section 8.1**(as applicable).  If Provider isrequired to provide material assistance outside the scope of Services,Investors shall pay Provider, in the absence of mutual written agreement to thecontrary, at Provider’s customary rates charged to similar customers forsimilar services, provided Provider notifies Investors in writing of itsrequired assistance and receives written authorization from an InvestorsRepresentative therefore.  Providershall not be required to provide such material assistance absent suchauthorization.  Provider acknowledgesthat Investors has the right to solicit or accept proposals on any Initiativefrom any other supplier and may award any Initiative to any such supplier forany reason; provided that Provider’s performance under this Agreement shall beexcused to the extent that such other supplier’s performance adversely affectsProvider’s ability to provide the Services and/or to meet the MASLs, on thecondition that Provider notifies Investors as soon as it becomes aware thatProvider’s ability is being so adversely affected.

 

**9.             PROPRIETARYRIGHTS**

 

9.1   Investors Proprietary Systems

 

(a)                Investorsshall be the sole and exclusive owner of all of Investors Proprietary Systemsand of all copyright, patent, trademark, trade secret, and other proprietaryrights in Investors Proprietary Systems.

 

(b)                Investorsshall also be the sole and exclusive owner of all copyright, trademark, andtrade secret rights in any derivative work of Investors Proprietary Systemsdeveloped by Provider (“Investors Proprietary System Derivatives”) and suchrights shall be assigned to Investors as set forth in Section 9.6.

 

(c)                Duringthe Term of this Agreement and to the extent useful to Provider in theprovision of Services, Investors shall promptly deliver to Provider anyInvestors Proprietary Systems (or access thereto, as applicable.) [*]  Except as provided in this Section, neitherProvider nor any such Subcontractor may use Investors Proprietary Systems orany derivative works thereof, in connection with the provision of services toits other customers without the prior written consent of Investors, which may bewithheld in Investors’ sole discretion.

 

9.2   Work Product and Related ProviderUnderlying Works

 

(a)                Providershall be the sole and exclusive owner of all Provider Underlying Worksincluding any derivative works, and of all copyright, patent, trademark, tradesecret, and other proprietary rights in Provider Underlying Works.

 

(b)                Duringthe Term of this Agreement, Provider shall promptly deliver to Investors allinformation necessary for Investors to receive the services.  Subject to any third party restrictions,upon Investors’ request, made contemporaneously with or at any time afterissuing a Termination Notice, Provider shall promptly deliver to Investors allWork Product in writing and, with respect to [*].  Following the expiration or termination of thisAgreement, Provider shall deliver updates to the Work Product that addresserrors as such updates become available.* *Providershall also offer to Investors the right to receive maintenance (including allenhancements and upgrades) and support with respect to Work Product for so longas Investors requires upon terms and conditions which are 

 

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competitive with those Provider is offering to other major customersfor services of a similar nature and scope.

 

(c)                Exceptwith respect to any Work Product that is an “Investors Proprietary SystemDerivative,” Provider or a third party vendor shall be the sole and exclusiveowner of all copyright, patent, trademark, and trade secret, or otherproprietary rights in any Work Product.

 

(d)                Subjectto any third party restrictions, with respect to any Work Product not assignedto Investors hereunder, and with respect to any Provider Underlying Work thatwould, in the absence of a license, be infringed by the use of the WorkProduct, Provider hereby grants to Investors, under all of its intellectualproperty rights therein, [*].

 

(e)                Thelicenses provided for in this Section may be sublicensed or assigned byInvestors only to an Affiliate or to a successor to all or substantially all ofthe assets or stock of Investor or to all or substantially all of the assetsused in any business operation of Investor.

 

9.3   Provider Underlying Works to be deliveredupon Termination.

 

(a)           Uponany termination or expiration of this Agreement or any portion of the Services,as allowed in Section 11, upon Investors’ request, made contemporaneouslywith or at any time after issuing a Termination Notice, Provider shall deliverto Investors all Provider Underlying Works used in the provision of theServices (or the terminated portion thereof as applicable) to Investors inwriting and, [*].  For purposes of thisSection, “used in the provision of the Services” shall include all tools andprocesses used in the maintenance and optimization of the hardware andsoftware.

 

(b)                           Inthe event of a termination other than a termination for Convenience byInvestors, or upon the expiration of this Agreement at the conclusion of theTerm, Provider shall grant to Investors the following:

 

(i)    With respect to anyProvider Underlying Work that is (i) deliverable pursuant to thisSection 9; (ii) and that is not subject to the license granted inSection 9.2(d) above, and (iii) that is not made commercially available byProvider, Provider shall grant to Investors under all of its intellectualproperty rights therein,[*].  Forpurposes of this Section 9.3(b)(i) and Section 9.3(c)(i), “InternalUse” shall mean use of the licensed materials by employees and customers ofInvestors and by employees of service providers to Investors in the conduct ofInvestors’ business and in the provision of services to Investors’ customers,provided, however, that “Internal Use” shall not include the delivery of thelicensed materials to any third party engaged to provide external outsourcingof information technology services to Investors.

 

(ii)   With respect to ProviderUnderlying Works licensed pursuant to 9.3(b)(i) above, in addition to theobligations set forth in Section 12.3, Provider shall offer to Investorsthe right to receive maintenance (including all enhancements and upgrades) forso long as Provider makes such maintenance commercially available at rateswhich are competitive with those rates Provider is offering to major customersfor services of a similar nature and scope.

 

(c)           Inthe event of a termination of this Agreement or any portion of the Services byInvestors for Convenience, Provider shall grant to Investors the following:

 

(i)    With respect to anyProvider Underlying Work that is (i) deliverable pursuant to thisSection 9; (ii) and that is not subject to the license granted inSection 9.2(d) above, and (iii) that is not made commercially available byProvider, Provider shall grant to Investors under all of its intellectualproperty rights therein, [*] for a period [*] following the effective date ofthe termination.

 

(ii)   With respect to ProviderUnderlying Works licensed pursuant to 9.3(c)(i) above, in addition to theobligations set forth in Section 12.3, Provider shall offer to Investorsthe right to receive maintenance (including all enhancements and upgrades) forso long as Provider makes such 

 

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maintenance commercially available at rates which are competitive withthose rates Provider is offering to major customers for services of a similarnature and scope.

 

(d)           Withrespect to any Provider Underlying Work that is (i) deliverable pursuant tothis Section 9; (ii) and that is not subject to the license granted inSection 9.2(d) above, and (iii) that is made commercially available byProvider, upon any termination or the expiration of this Agreement, suchProvider Underlying Works (and maintenance thereof, including all enhancementsand upgrades) shall be made available to Investors upon terms and conditionswhich are competitive with those Provider is offering to major customers forservices of a similar nature and scope. The obligations set forth in this Section 9.3(d) shall be inaddition to the obligations set forth in Section 12.3, and shall continuefor so long as such Provider Underlying Works and maintenance thereof are madecommercially available by Provider.

 

(e)           AllPost Termination Licenses may be sublicensed or assigned by Investors only toan Affiliate or to a successor in interest to all or substantially all of theassets or stock of Investor or to all or substantially all of the assets usedin any business operation of Investor.

 

9.4           Third-Party UnderlyingWorks 

 

(a)           Thesole and exclusive owner of any third party vendor software and of allderivative works thereof that are created, invented, or conceived of by suchthird party (such derivatives, collectively with the third party’s pre-existingsoftware, the “Vendor Software”) shall be the applicable third party softwarevendor.

 

(b)           Investorswill take all actions reasonably necessary to obtain any consents, approvals,or authorizations from third parties as required for Provider (and anySubcontractor engaged by Provider) to lawfully access, operate, and use(collectively, “Access”) any Vendor Software that is licensed by Investors uponthe Effective Date from a third party (“Investors-Vendor Software”) and thatwill be used by Provider in the provision of Services hereunder.  Investors-Vendor Software will remain in thename of Investors unless Investors gives Provider express written permission toplace the Investors-Vendor Software in Provider’s name.  During the Term, Investor will pay allexpenses related to the maintenance and licensing of Investors-Vendor Software,including taxes and any cost and expenses associated with providing Accessrights to Provider.  If Provider placesany Investors-Vendor Software in Provider’s name, or if Provider wishes to useits own license for the same Investors-Vendor Software in lieu of using Investors’license, Provider will make commercially reasonable efforts to “suspend”Investors license for the Investors-Vendor Software until the termination ofthis Agreement.  Provider will beexcused from providing Services to the extent affected by Investors failure toobtain the necessary right of Access; provided, however, that the parties shallreasonably cooperate to minimize any such effect on Provider’s ability toprovide Services.  Provider shall at alltimes operate in compliance with the terms of use applicable to all suchInvestors-Vendor Software.

 

(c)           Exceptwith respect to the Investors-Vendor Software, Provider shall obtain from thirdparties all rights and licenses required to perform the Services.  Provider warrants and represents that (a)Provider has obtained all rights necessary for Investors to use such VendorSoftware (either as part of the Services or in connection with any WorkProduct), and (b) that use of such Vendor Software (either as part of theServices or in connection with any Work Product) will not grant any third partyany right or license to any intellectual property of Investors.  Provider shall obtain similar writtenundertakings from all Subcontractors, employees, and consultants who willperform any Services, so as to ensure Investors’ rights to the Work Product,and shall not commence the deployment of any such Subcontractor, employee, orconsultant until such a written undertaking has been obtained from suchSubcontractor, employee, or consultant.

 

(d)           Withrespect to Vendor Software that is obtained by Provider specifically for thepurpose of providing Services to Investors (such that on the date the VendorSoftware is provided, no other customer is an intended beneficiary), Providershall not use such Vendor Software in the provision of Services to Investorhereunder unless and until (a) Provider shall have caused such third party toagree to grant to Investors, at Provider’s expense (already included in theFees), a 

 

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perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up,worldwide, license (or sublicense) under any and all intellectual propertyrights owned or licenseable by such third party, to use, copy, createderivative works, distribute, and sublicense such Vendor Software, or (b)Investors has given Provider prior written consent to implement or utilize theVendor Software in the provision of Services without obtaining the license setforth in (a) above in Investors’ name.

 

(e)           Withrespect to any other Vendor Software used in the provision of any Services, tothe extent Provider can do so without incurring additional cost, Provider shalluse commercially reasonable efforts to obtain the right to assign or otherwiseextend the applicable license to Investors upon expiration or termination at nocost to Investors.

 

9.5           InvestorsData

 

(a)           Investorsshall permit Provider to have access to Investors Data solely to the extentProvider requires such access to such data to provide the Services and maintainthe MASLs.  Provider may only access andprocess Investors Data in connection herewith or as directed by Investors inwriting and may not otherwise modify Investors Data, merge it with other data,commercially exploit it, or otherwise use such data, other than as specifiedherein or as directed by Investors in writing.

 

(b)           Providerunderstands and agrees that nothing contained in this Agreement shall affectany ownership right, title, or interest in Investors Data or in anymodification, compilation, or derivative work therefrom (collectively, “Dataand Modified Data”), and Investors owns all copyright, trademark, tradesecrets, and other proprietary rights in the Data and Modified Data.  Provider agrees that all copyrightableaspects of such Data and Modified Data shall be considered “work made for hire”within the meaning of the Copyright Act of 1976, as amended.  Provider hereby assigns to Investorsexclusively all right, title, and interest in and to the Data and Modified Dataand to all copyright or other proprietary rights therein that it may obtain,without further consideration, free from any claim, lien for balance due, orrights of retention thereto on the part of Provider.  Provider also acknowledges that the Parties do not intendProvider to be a joint author of the Data and Modified Data within the meaningof the Copyright Act of 1976, as amended, and that in no event shall Providerbe deemed a joint author thereof.** **Furthermore,Provider and all Subcontractors will not publish or disclose in any mannerprivacy and security safeguards related to any Federal, State, or InvestorsData or any other data of which Provider or any Subcontractor has custody.

 

9.6           Cooperation

 

(a)           TheParties will cooperate with each other and shall make the assignments andexecute such other documents as may be appropriate to achieve the ownership andother objectives established in this Section 9, including executing anddelivering any documents that the other reasonably requests for transferring orprotecting their respective ownership interests.  Each Party shall have the full and sole power to prosecute suchapplications and to take all other action concerning their respective ownershipinterests described in this Section 9, and each shall reasonablycooperate, at the other’s expense, in the preparation and prosecution of allsuch applications and proceedings concerning such ownership interests.

 

(b)           Ifat any time either Party brings, or investigates the possibility of bringing,any claim against any third party for infringement of any patent, trademark,copyright, or similar proprietary right of such Party relating to the Services(the “Requester”), including misappropriation of trade secrets and misuse ofconfidential information, then the other Party, upon the request and at theexpense of the Requester, shall reasonably cooperate with and assist theRequester in the investigation of such claim, and to the extent permitted bylaw and subject to any confidentiality obligations to third parties, providethe Requester with any information relating to the Services in the possessionof such Party that may be of use to the Requester in the investigation orpursuit of such claim.

 

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# **10.          SECURITY AND PROTECTION OF INFORMATION**

# ** **

## 10.1 Security

##  

### **10.1.1     Security andPolicies**

### ** **

At all timesduring the Term, Provider shall provide all Services, and use all resourcesrelated thereto, in accordance with **Schedule K**.  To the extent that any Provider security requirement conflictswith **Schedule K**,**Schedule K**will supersede any Provider security requirements with respect to the provisionof the Services.  The Parties mayperiodically update **Schedule K** to reflect changes in theoperations or procedures described therein. Updates of **Schedule K** shall be provided to theother Party for its review.  To theextent that an Investors change to **Schedule K** may materially interferewith or materially degrade Provider’s provision of the Services or have amaterially detrimental impact on Provider’s cost of providing the Services ortime for delivery of the Services, the Parties shall mutually agree to anyrequested change pursuant to the change management procedure specified in **Section 7.4**of this Agreement, prior to adopting such change(s) with respect to thisAgreement.

 

The operation of Provider vehicles or private vehicles of Providerpersonnel on Investors’ property shall conform to posted and other regulationsand safe driving practices.  Vehicularaccidents on Investors’ property and involving Provider personnel shall bereported promptly to the appropriate Investors security personnel.  The operation of Investors vehicles orprivate vehicles of Investors personnel on Provider’s property shall conform toposted and other regulations and safe driving practices.  Vehicular accidents on Provider’s propertyand involving Investors personnel shall be reported promptly to the appropriateProvider security personnel.

 

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### **10.1.2**              InformationAccess

### ** **

### **Prior to performing any Services,Provider personnel (including personnel of any Subcontractors) who will accessInvestors computer data and software, including Investors Data, shall executethe Provider’s agreements and forms concerning access protection anddata/software security consistent with the terms and conditions of thisAgreement.  Provider promises that atall times during the Term, it, and its employees, agents, and Subcontractors,shall comply with**Schedule K regarding data access andsecurity, including those prohibiting or restricting remote access to Investorssystems and data.  Investors shallauthorize and Provider shall issue any necessary information-access mechanisms,including access IDs and passwords and Provider agrees that the same shall beused only by the personnel to whom they are issued.  Provider shall provide to such personnel only such level ofaccess as is reasonably required to facilitate the tasks and functions forwhich such personnel are responsible. Provider shall from time to time, upon request from Investors but atleast quarterly, provide Investors with an updated list of those Providerpersonnel having access to Investors’ systems, software, and InvestorsData.  Investors Data, provided by Investorsor accessed by Provider personnel, shall be used by Provider personnel only inconnection with Provider’s obligations hereunder, and shall not be commerciallyexploited by Provider in any manner whatsoever.  In addition to any other remedies available under this Agreement,failure of Provider to comply with the provisions of this Section 10 may result in Investors restricting offendingpersonnel from access to Investors computer systems or Investors Data.

### ** **

### **10.1.3**              Background Checks

### ** **

If Provider assigns, as a resource, Persons (whether employees,independent contractors, or agents), other than Transitioned Employees, toperform full time work at any Investors In-Scope Location, Provider shallconduct a background check, as permitted by law, on all such Persons beforeInvestors will grant access to such In-Scope Location.  Such background check shall be in the formgenerally used by Provider in its initial hiring of employees or contractingfor independent contractors, as applicable, during the employment-screeningprocess but must, at a minimum, have been performed within the preceding twelve(12) month period prior to such assignment. On an annual basis, Provider’s human resources manager for thisAgreement shall certify **Provider’s compliance with** the **requirements of** this Section 10.1.3**.**

 

### **10.1.4**              Other Policies

 

While on Investors’ In-Scope Locations, and with regard to theprocessing and handling of Investors Data, Provider shall, and shall cause itsSubcontractors and employees to, abide by all Investors policies that may bereasonably established by Investors from time to time and communicated toProvider; provided, however, new policies that materially increaseProvider’s costs, or otherwise materially impact the Services, shall be subjectto the change management procedures described in **Section 7.4**.  Additionally in the event a particularProvider employee or subcontractor employee does not agree to abide by aparticular policy that individual can be removed from performing Services underthis Agreement.

 

### **10.1.5**              Minimum Security Standards and Audit

### ** **

Investors, or Investors’ authorized representativesthat are not competitors of Provider in the IT markets with respect to theprovision of services similar to the Services and who agree to Provider’s ConfidentialityAgreement attached as **Schedule V** (“**Audit Representatives**”),shall have the right, once during any twelve (12) month period within the Termand with reasonable advance notice (which Investors shall make commerciallyreasonable efforts to ensure that such advance notice is not less than ten (10)business days), to perform an operational audit of the IT environment used toprovide the Services (“**IT Internal Audit**”).

 

Investors and Investors’ Audit Representatives shallalso have the right to perform scheduled audits of the IT environment used toprovide the Services (“**IT Scheduled Audits**”).  The IT Scheduled Audits shall include, butshall not be limited to, the following type of audits: [*].  The schedule of IT Scheduled Audits for2004 -2005 is attached as **Schedule Z**.  **Schedule Z** will be updated every calendar year.

 

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Any regulatory body that has jurisdiction overInvestors activities (“**Regulators**”) shall also have the right, atany time to perform an audit of the IT environment used to provide the Services(“**ITRegulatory Audits**”).

 

With regard to the IT Internal Audit, IT ScheduledAudits and the IT Regulatory Audits (collectively, “**IT Audits**”), Investors shallmake reasonable efforts to ensure that any such IT Audit shall be scheduled soas to minimize the disruption to Provider’s business operation or Provider isexcused from it’s duties or obligations to the extent they are affected by suchaudit assistance and to the extent the parties agree.  A request for Provider to provide assistance with an IT Auditwill be considered a Work Order or Initiative if such IT Audit assistanceresults from a change in Investors’ audit requirements or information isrequired to be provided in a format different from the format normally used byProvider and Investors.  Provider shallalso grant Investors, Regulators and any Audit Representative such necessaryaccess to Provider’s records and other documents of Provider and itsSubcontractors, as they relate to the IT environment, or as they may berequired to comply with the IT Audits. At Investors’ or Regulators request, Provider shall provide: (i) suchdocuments, data, or information on such media as Investors might reasonablyrequest that pertain to the IT Audit; (ii) copies (hard copy, optical, magneticdisk or tape, as appropriate) of all documents, data, or information on suchmedia as Investors might reasonably request that pertain to the IT Audit; and(iii) such assistance as reasonably requested in order to perform such ITAudit; provided, however, that the Parties shall endeavor to arrange suchassistance in such a way that it does not interfere with the performance ofProvider’s duties and obligations hereunder. Further, with regards specifically to any IT Regulatory Audits, Providershall endeavor to respond to any Regulators driven request within the timeperiod specified by such Regulator (which in some cases may be twenty four (24)hours).  Provider shall make reasonableefforts to cause any Provider Subcontractor to comply with the foregoingprovisions to the extent necessary to complete the IT Audit.  Notwithstanding any other provision in this **Section 10.1.5**to the contrary, Investors and its Audit Representatives shall have no accessto Provider’s (or Provider’s Subcontractors’) Internal ConfidentialInformation, and Provider reserves the right to decline auditor requests oraccess (other than a request by a Regulator) that Provider reasonably believesmay disrupt Provider’s business operations.

 

## 10.2   Protectionof Confidential Information

##  

### **10.2.1**              Nondisclosure; Policies and Procedures

### ** **

###### All Confidential Information shall be deemed the sole property of theParty disclosing the Confidential Information (“**Disclosing Party**”) and shallbe used solely by the Party receiving the Confidential Information (“**ReceivingParty**”), or any of its Subcontractors, for the purpose of performingits obligations under this Agreement, and shall not be published, transmitted,released, or disclosed by Receiving Party (or its Subcontractors) to any otherPerson without the prior written consent of the Disclosing Party, which consentthe Disclosing Party may withhold in its sole discretion.

######  

###### Receiving Party shall use the same care to prevent disclosure of theDisclosing Party’s Confidential Information, as it uses to prevent disclosureof its own information of a similar nature, but in no event less than areasonable degree of care.  With regardsspecifically to Provider, reasonable degree of care shall include but shall notbe limited to implementing the policies and procedures described in **Section 10.1.1**and**10.1.2** hereof.

######  

###### **10.2.2****             ****Disclosure Re****quests**

######  

Subject to applicable law, any and all requests froma Receiving Party, from whatever source, for copies of or access to, or otherdisclosure of, a Disclosing Party’s Confidential Information shall be promptlysubmitted to the Disclosing Party for disposition.

 

**10.2.3.    Permitted Disclosure**

 

Notwithstanding the above provisions of **Section 10.2.1**,Receiving Party may disclose Confidential Information to its employees, agents,and Subcontractors: (i) who have a need to know such ConfidentialInformation in order to perform their duties under this Agreement; and(ii) who agree to be bound by substantially similar confidentialityrequirements by which Receiving Party is bound under this Agreement.

 

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Subject to the terms of **Section 13.3**, Receiving Party shall beliable for the acts or omissions of its Subcontractors and employees withrespect to such Confidential Information.

 

## 10.3   Legally Required Disclosure

##  

Notwithstanding any provision herein, either Partymay disclose Confidential Information of the other Party to the extentdisclosure is based on the good faith written opinion of such Party’s legalcounsel (which may include in-house counsel) that disclosure is required by lawor by order of a court or governmental agency; provided, however, that suchParty shall give prompt notice of such requirement and use its best efforts toassist the owner of such Confidential Information if the owner wishes to obtaina protective order or otherwise protect the confidentiality of suchConfidential Information.  The owner ofsuch Confidential Information reserves the right to obtain a protective orderor otherwise protect the confidentiality of such Confidential Information.  For purposes of this **Section 10.3**, Investors’in house legal counsel****shall act as Investors’ legal counsel.

 

## 10.4   Notification

##  

In the event of any disclosure, loss, or destructionof Confidential Information, the Receiving Party shall, promptly upondiscovery, notify the Disclosing Party.

 

## 10.5   Injunctive Relief

##  

###### If the Receiving Party publishes, transmits, releases, or discloses anyConfidential Information of the Disclosing Party in violation of this **Section 10**or if either Party anticipates that the other Party shall violate or continueto violate any restriction set forth in this **Section 10**, theDisclosing Party may have the right to have the provisions of this **Section 10**specifically enforced by any court having equity jurisdiction.  In addition, the Disclosing Party and anyindividuals that were the subject of such Confidential Information may take allsuch other actions and shall have such other remedies available to it or themat law or in equity and shall be entitled to such damages as it or they canshow have been sustained by reason of such violation.

######  

## 10.6   Return of Confidential Information

##  

Subject to **Section 12** (Disentanglement) and **Section 9**(Proprietary Rights), promptly upon the expiration or termination of the Termand at any other time upon written request by the Disclosing Party to theReceiving Party, the Receiving Party shall promptly return to the sole custodyof the Disclosing Party, all Confidential Information (or such ConfidentialInformation as specified in such request) of the Disclosing Party then in itspossession or control, in whatever form, or, in the case of written request bythe Disclosing Party, such Confidential Information specified in such requestas then in the Receiving Party’s possession or control, in whatever form.  In addition, unless the Disclosing Partyotherwise consents in writing, the Receiving Party shall also deliver to theDisclosing Party or, if requested by the Disclosing Party, shall delete ordestroy, any copies, duplicates, summaries, abstracts, or other representationsof any such Confidential Information or any part thereof, in whatever form,then in the possession or control of the Receiving Party. Notwithstanding theforegoing: (i) Provider may retain one (1) copy of documentation and data,excluding Investors Data, for archival or evidentiary purposes or warrantysupport; and (ii) Investors may retain copies of Provider ConfidentialInformation to the extent required by law or regulation or to the extentotherwise permitted under this Agreement.

 

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## 10.7   Residual Information

##  

## TheReceiving Party may use in its business activities the ideas, concepts, andknow-how contained in the Disclosing Party’s Confidential Information which areretained in the memories of the Receiving Party’s employees who have had accessto the Confidential Information pursuant to the terms of the Agreement.

 

# **11.**                               TERM

# ** **

## 11.1   Initial Term; Renewals

##  

### **11.1.1**              Initial Term and Appropriations

### ** **

The period during which Provider shall be obligatedto provide the Services under this Agreement shall commence on the ContractEffective Date (except as otherwise specified herein) and shall end on the **Seventh (7th)**anniversary of the Contract Effective Date (the “**Initial Term**”).

 

### **11.1.2**              Notification of Expiration

### ** **

Provider shall notify Investors of the expiration ofthe Initial Term, and of any Renewal Term thereof, not earlier thantwelve (12) months, nor later than six (6) months, before the date onwhich the Term would expire if not renewed.

 

### **11.1.3**              Renewal by Investors

### ** **

Investors may, in its sole discretion, extend theInitial Term for up to two (2) successive renewal periods of twelve (12) monthseach (“**RenewalTerm**”) by providing written notice delivered to Provider at leastsix (6) months before the end of then-current Term.

 

### **11.1.4**              Extensions by Investors

### ** **

Investors may, at its sole option and discretion,upon at least  [*] calendar days’ notice to Provider, extend the effectivedate of any expiration or termination of the Term for successive periods of notless than [*] calendar days each, with such extension periods not to exceed aperiod of time that is the lesser of: (i) [*] calendar days in the aggregate,or (ii) [*] calendar days after the [*] Contract Year.  Each such extension shall be upon the sameterms and conditions in effect immediately prior to such extension.  Any adjustments to the Annual Service Feesapplicable to any extension period shall be mutually agreed by the Parties,consistent with the pricing methodology set forth in **Schedule E**.  In the event the Parties are unable to agreeon such applicable Annual Service Fees, the Annual Service Fees shall be thesame Annual Service Fees as were applicable in the immediately precedingContract Year or extension period, as the case may be, subject to any ECAincrease (if any) in accordance with **Schedule E**.

 

## 11.2   Early Termination

##  

### **11.2.1**              For Convenience

### ** **

Investors shall have theright to terminate as to any category of Services described in this Agreement(i.e., any Services described in any section thereof) or in any ServicesSchedule, for its convenience, or to end the Term for its convenience,effective at 11:59 p.m. on the intended date of termination (the “**TerminationDate**”), by delivering to Provider a written notice of termination(the “**TerminationNotice**”) at least [*]calendar days before the Termination Date.  In the event Investors terminates all of theServices and the Term solely for its convenience (“**Termination for Convenience**”),and Provider has performed all of its obligations (including itsDisentanglement obligations), Investors shall pay to Provider on or before the[*]  calendar day after the TerminationDate, an amount determined in accordance with **Schedule E**.  In the event Investors elects to terminateany category of Service (but not all Services in the aggregate) pursuant to theterms hereof, Provider shall perform its Disentanglement obligations hereunderto the extent applicable to the Service or Services being terminated.  In the event Investors elects to terminate acategory of Service described in this Agreement, rather than all of theServices, the charge associated with the termination of such category or

 

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Service shall instead be an amount determined in accordance with **Schedule E**,with respect thereto.  In the eventInvestors elects to terminate a certain category of Service the Agreement willbe amended to reflect the adjusted Annual Services Fees, SLRs and otheraffected areas of the Agreement.  Theeffective date for Termination for Convenience will be no earlier than [*],after Provider’s receipt of such notice.

 

### **11.2.2**              For Missed MASLs

### ** **

Investorsshall also have the right, without payment of any Termination Fee or any otheradditional fees, to terminate any portion of the Services with respect to whichProvider’s performance has been, during any [*] of then-preceding [*]measurement periods, by a percentage below any single applicable “**CriticalMASLs”** (as defined in **Schedule F**) and it has been determinedthrough a root cause analysis that Provider was the predominant cause of thatfailure.  The percentage below theCritical MASL will be identified in **Schedule F**.  In the event Investors elects to terminate any portion of Service(but not all Services in the aggregate) pursuant to the terms hereof, Providershall perform its Disentanglement obligations hereunder to the extentapplicable to the Service or Services being terminated.

 

## 11.3   Change of Control of Provider

 

In the event of a Changein Control of Provider resulting from a single transaction or series of relatedtransactions, Investors shall have the right to end the Term by sending aTermination Notice to Provider at least ninety (90) calendar days prior tothe Termination Date, provided that Investors authorizes such termination basedon its reasonable determination that (i) the continued provision of theServices by Provider as a result of such Change in Control is not in the bestinterests of Investors, or (ii) the surviving entity will be incapable ofproviding the Services in compliance with the SLRs as a result of such Changeof Control.  Except as provided in this **Section 11.3**, no termination pursuant to this **Section 11.3** shallrequire Investors to make any payments to Provider not otherwise required under**Section 6**hereof.  In the event Investorsterminates the Services pursuant to this Section, Provider shall continue toperform its Disentanglement obligations hereunder until they are fulfilled.Solely for purposes of this **Section 11.3**, “**Control**” shall mean thelegal, beneficial, or equitable ownership, direct or indirect, of more thanfifty percent (50%) of the assets of Provider;  “**Change in Contro**l” shall mean that Provider has divested allor substantially all of the assets and business of Provider’s “Global Services”division (or any Provider division that is responsible for providing fiftypercent (50%) or more of the Services under this Agreement), other than acorporate reorganization such that the Provider retains Control of suchdivision.

 

## 11.4**  **Termination for Default

 

**Section 20.1** hereof notwithstanding, the Term may beended by either Party by a Termination Notice delivered to the other Party ifthe other Party (“**Defaulting Party**”) commits a Default (asapplicable to each Party).  Notice ofDefault will be delivered to Defaulting Party within sixty (60) calendar daysof a Party becoming aware of the Default. If the Default is not cured during the applicable cure period, the Partynot in Default (“**Non-Defaulting Party**”) may terminate this Agreement byproviding the Defaulting****Party with written notice within sixty(60) calendar days after the expiration of the applicable cure period,declaring termination of this Agreement for Default under this Section,effective on the date stated in such notice. Such effective date will be no later than one hundred twenty (120)calendar days after the Defaulting Party’s receipt of such notice oftermination for Default.

 

Termination shall be effective at 11:59 p.m. onthe Termination Date specified in the Termination Notice, subject to theprovisions of **Section 20.4** hereof; provided, however, that Providershall continue to perform its Disentanglement obligations hereunder until theyare fulfilled.  No termination byInvestors pursuant to this **Section 11.4** shall be deemed aTermination for Convenience subject to **Section 11.2.1** or otherwise requireInvestors to make any payments to Provider not otherwise required under **Section 6**or **Schedule E**hereof.  Subject to **Section 13**, terminationshall not constitute a Party’s exclusive remedy for Default, and theNon-Defaulting Party shall not be deemed to have waived any of its rightsaccruing hereunder prior to such Default.

 

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11.5   Termination for ForceMajeure Event

##  

If a delay orinterruption of performance by Provider results from its experiencing a ForceMajeure Event despite Provider’s use of its commercially reasonable efforts,Investors may either:

 

(a)                                  procuresuch Services from an alternate provider until Provider is able to provide theServices.  Subject to **Section 13.5**(Force Majeure Events) below, Provider will reimburse Investors for payments tosuch alternate provider for such Services, provided Investors has actedreasonably in procuring such alternate services, for the lesser of [*] or the remainderof the Term; or

 

(b)                                 terminatethis Agreement or the affected categories of Service (in whole or in part) byproviding Provider with a written notice of termination and paying Provider forany Unrecovered Start-Up Expenses, and any reasonable and necessaryout-of-pocket expenses associated with ramp-down costs.

 

Such termination shall be effective at11:59 p.m. on the Termination Date, by delivering to the party affected bysuch Force Majeure Event (“**Affected Party**”) a Termination Noticespecifying the Termination Date; provided, however, notwithstanding **Section 11.5(b)** above, that Provider shall continue to perform itsDisentanglement obligations in respect of such terminated Services until suchobligations are fulfilled.  Except asprovided in this **Section 11.5**, no termination pursuant to this **Section 11.5**shall require Investors to make any payments to Provider not otherwise requiredunder **Section 6**hereof.  In the event Investorsterminates the Services pursuant to this Section, Provider shall continue toperform its Disentanglement obligations hereunder until they are fulfilled.

 

11.6 Termination byProvider Other than for Default

 

Other than for reasons of an Investors’ Default,Provider may not, for any other reason whatsoever, terminate the Term prior toits expiration, terminate this Agreement, or otherwise repudiate this Agreementor refuse to perform its obligations hereunder.  Termination due to Investors’ Default shall be effective at11:59 p.m. on the Termination Date specified in the Termination Notice,and notwithstanding the provisions of **Section 20.4** hereof.

 

# **12.**                               DISENTANGLEMENT

# ** **

12.1   General Obligations

##  

Provider shall accomplish a completetransition of the Services being terminated from Provider and theSubcontractors to Investors, or to any replacement supplier designated byInvestors, without any material interruption of or any material adverse impacton the Services (at a minimum, providing that the Services do not fall belowany MASL) or any other services provided by third Parties (the “**Disentanglement**”).  Provider shall cooperate with Investors andany new service supplier and otherwise promptly take all steps required toassist Investors in effecting a complete Disentanglement.  Provider shall provide all informationregarding the Services or as otherwise needed for Disentanglement, includingdata conversion, interface specifications, and related professionalservices.   Provider shall provide forthe prompt and orderly conclusion and/or transfer of all work, as Investors maydirect, including completion or partial completion of projects, documentationof work in process, and other measures to assure an orderly transition toInvestors or Investors’ designee.  Tothe extent that any Disentanglement can be achieved using the existingresources dedicated to providing the Services hereunder, the services relatedto Disentanglement shall be deemed a part of the Services and shall beperformed by Provider at no additional cost to Investors beyond what Investorswould pay for the Services absent the performance of the Disentanglementservices.  Any additional resourcesrequired for Disentanglement will be provided at the rates set forth in **Schedule E**.Provider’s obligation to provide the Services shall not cease until each ofProvider’s Disentanglement obligations set out in this **Section 12**and**withinSection 9**, including the performance by Provider of allasset-transfers and other obligations of Provider provided in this **Section 12**,have been completed.

 

12.2   Disentanglement Process

##  

The Disentanglement process shall begin onany of the following dates: (i) the date designated by Investors not earlierthan one hundred eighty (180) calendar days prior to the end of any Termthat Investors has not elected to extend or renew pursuant to **Section 11.1**;or (ii) the date any valid Termination Notice is delivered, if

 

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Investors elects to terminate any or all of the Services pursuant to **Sections 11.2**,**Section 11.3**, **Section 11.4,**or **Section 11.5**.  Subject to **Section 11.1.4**,Provider’s obligation to perform Services, shall expire: (x)  at the endof any Term set forth in **Section 11.1**; or (y) on theTermination Date, pursuant to **Sections 11.2, Section 11.3,Section 11.4** or **Section 11.5**(with the applicable dateon which Provider’s obligation to perform the Services expires being referredto herein as the “**Expiration Date**”); provided, however, thatProvider shall remain obligated to provide Disentanglement services for up totwelve (12) months after any such Expiration Date, at rates that are thelower of: (1) the applicable rates set forth in **Schedule E** for theapplicable Services; and (2) Provider’s then current commercially-availablerates for similar services to other similarly situated customers.  Provider and Investors shall discuss andagree in good faith to a plan for determining the nature and extent ofProvider’s Disentanglement obligations and for the transfer of Services inprocess; provided, however, that Provider’s obligation under this Agreement toprovide all Services necessary for Disentanglement shall not be lessened in anyrespect.  Provider shall make allreasonable efforts to perform its Disentanglement obligations on an expeditedbasis, if Investors terminates the Term pursuant to **Sections 11.3**or **Section 11.4**.

 

12.3   Specific Obligations

##  

The Disentanglement shallinclude the performance of the following specific obligations:

 

### **12.3.1**              Full Cooperation and Information

### ** **

Upon Disentanglement, the Parties shall cooperatefully with one another to facilitate a smooth transition of the Services beingterminated from Provider to Investors or Investors’ designated replacementsupplier.  Such cooperation shallinclude the provision (both before and after the cessation of Provider’sproviding all or any part of the Services under this Agreement) by Provider toInvestors of complete, detailed, and sufficient information (includinginformation then being utilized by Provider in providing the Services butexcluding Provider’s Internal Confidential Information) for the period of theDisentanglement (up to twelve (12) months) and for up to two (2) monthsthereafter to enable Investors’ personnel (or that of third parties) tocompletely assume and continue without any material interruption the provisionof the Services.

 

### **12.3.2**              No Interruption or Adverse Impact

### ** **

Provider shall cooperate with Investors and all ofInvestors’ other service suppliers to provide a smooth transition at the timeof Disentanglement, with no material interruption of Services, no materialadverse impact on the provision of Services or Investors’ activities, no materialinterruption of any services provided by third parties, and no material adverseimpact on the provision of services provided by third parties.

 

### **12.3.3**              Third-Party Authorizations

### ** **

### **Without limiting the obligationsof Provider pursuant to**Section 9, Provider shall, subjectto the terms of any third-party contracts, use commercially reasonable effortsto assist Investors in procuring at no charge to Investors any third-partyauthorizations necessary to grant Investors the use and benefit of anythird-party contracts between Provider and third-party contractors used toprovide the Services, pending their assignment to Investors pursuant to Section 12.3.5.

### ** **

### **12.3.4**              Licenses to Proprietary Software

### ** **

Upontermination or expiration of Provider’s provision of any Service, Providershall make the deliveries and grant the licenses provided for in **Section 9**to occur upon termination or expiration.

 

### **12.3.5**              Transfer of Leases, Licenses, and Contracts

### ** **

Without limiting the obligations of Providerpursuant to **Section 9**, Provider shall, to the extent of itsreasonable ability to do so and at Investors’ expense, convey or assign toInvestors or its designee such leases, licenses, and other contracts used byProvider solely in connection with the Services to Investors.  Provider will make reasonable efforts tosupport such conveyance or assignment without undue financial burden.  Provider’s obligation under this **Section 12.3.5**shall include Provider’s performance of all obligations under such leases,

 

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licenses, and other contracts to be performed by it with respect toperiods prior to the date of conveyance or assignment.

 

In addition to its other obligations hereunder, upon termination orexpiration of any Service, Provider shall make commercially reasonable effortsto assist Investors in the transition of Services, including in obtaining forInvestors’ benefit and at Investors’ cost, such necessary consents from alllicensors and lessors to the conveyance or assignment of licenses and leasesused by Provider exclusively to provide the Services to Investors (or to assistInvestors in obtaining Investors’ own licenses and leases with respect tolicenses or leases used by Provider not exclusively to provide Services to Investors),including the right to obtain maintenance (including all enhancements andupgrades) and support with respect to the assets that are the subject of suchleases and licenses at the price at which, and for so long as, such maintenanceand support is made commercially available to other customers of such thirdparties whose consent is being procured hereunder.

 

### **12.3.6**              Delivery of Documentation

### ** **

Provider shall deliver to Investors or its designee,at Investors’ request and at no charge to Investors, all reasonably necessarydocumentation and data related to Investors****and held by Provider (subject to any thirdparty recipient of any Provider Confidential Information being bound byconfidentiality terms reasonably acceptable to Provider), including Investors ConfidentialInformation and Investors Data, and Provider shall destroy all copies ofInvestors Confidential Information and Investors Data thereof not turned overto Investors.  Notwithstanding theforegoing, Provider may retain one (1) copy of the documentation and data,excluding Investors Data, for archival purposes or warranty support.

 

### **12.3.7**              Hiring of Employees

### ** **

Provider shall cooperate with and assist (and shalluse commercially reasonable efforts to cause its Subcontractors to cooperateand assist) Investors (or Investors’ designee) in offering employment, at thesole discretion of Investors, to any or all Provider employees (and to any orall employees of Provider’s Subcontractors) that are dedicated to the provisionof the Services whether such offers are made at the time of, after, or inanticipation of expiration or termination of the Term.  Subject to **Section 3.1.8**, Providershall be solely responsible for, and shall pay, all severance and relatedpayments, if any are payable pursuant to Provider’s standard policies, to anysuch employees of Provider hired by Investors or its designee, and shall makecommercially reasonable efforts to cause the relevant Subcontractors ofProvider to pay severance and related payments, if any are payable pursuant tothe Subcontractor’s standard policies, to any such employee of a Subcontractorthat is hired by Investors or its designee.

 

**12.3.8****             ****Option to Acqui****re Provider Assets**

 

Provider shall convey to Investors or its designee,from among those Provider Assets located at any In-Scope Location, suchProvider Assets as Investors might select at a price that is greater than theremaining lease cost, or if the asset is not under lease, at the fair marketvalue of that Provider Asset selected. Such Provider Assets shall be provided “as is, where is” and there areno warranties of any kind with respect to the condition, capabilities, or otherattributes of such asset, except as otherwise expressly stated in thisAgreement.  Provider shall promptlyremove from any Investors In-Scope Location any Provider Assets that Investors,or its designee, chooses not to purchase.

 

12.4   Preparation for Disentanglement

##  

### **12.4.1**              Maintenance of Assets

### ** **

### **Provider shall maintain all ofthe hardware, software, systems, networks, technologies, and other assetsutilized in providing Services to Investors (including leased and licensedassets) for which Provider is responsible for maintaining and that may besubject to transfer to Investors upon the termination or expiration of thisAgreement, in a condition suitable to provide the Services and in as goodcondition as that maintained by Provider for its own assets, reasonable wearand tear excepted, and in such locations and configurations as to be readilyidentifiable and transferable back to Investors or its designees in accordancewith the provisions of this Agreement.  In addition, Provider shall insure such assets on Provider sites inaccordance with the requirements**

 

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### **of**Section 14.  For those Assetsowned or leased by Investors, Provider will provide maintenance, if any,according to the maintenance agreements provided by Investors.

### ** **

### **12.4.2**              All Necessary Cooperation and Actions

### ** **

# **Providershall provide all cooperation, take such additional actions, and perform suchadditional tasks, as may be necessary to provide a timely Disentanglement incompliance with the provisions of this**Section 12,including full performance, on or before the Expiration Date, of Provider’sobligations under this Section.

# ** **

# **13.**                               REMEDIES;LIMITATIONSOF LIABILITY

# ** **

13.1   Remedies Cumulative

 

Except as otherwise expressly limited in **Section 13.3**below, or elsewhere in this Agreement, the remedies provided in thisSection and elsewhere in this Agreement are neither exclusive normutually exclusive, and the Parties shall be entitled to resort to any and allsuch remedies, and any other remedy or remedies available at law or in equity,by statute or otherwise, individually or in any combination thereof.  No delay in exercising or failure toexercise any right or remedy shall operate as a waiver thereof except wherespecifically provided herein.

 

13.2   Attorney’s Fees

 

The prevailing Party shall be entitled to recoverfrom the non-prevailing Party reasonable attorneys’ fees and costs inconnection with any legal proceedings related to this Agreement.

 

13.3   Limitation of Liabilityand Disclaimers

##  

Subject to the express provisions and limitations ofthis **Section 13.3**,the Parties intend that each Party shall be liable to the other Party for alldirect damages incurred as a result of the breaching Party’s failure to performits obligations under the Agreement.

 

###### (a)  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BELOW, THEAGGREGATE CUMULATIVE MONETARY LIABILITY OF EITHER PARTY HEREUNDER FOR ALLCLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM(e.g., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, **SHALL BELIMITED IN THE AGGREGATE OVER THE LIFE OF THIS AGREEMENT TO AN AMOUNT EQUAL TOTHE ANNUAL SERVICE FEES FOR THE [*] PREVIOUS IN WHICH THE CLAIM AROSE;**PROVIDED,HOWEVER, IF THE CLAIM ARISES IN THE FIRST TWELVE (12) MONTHS AFTER THE CONTRACTEFFECTIVE DATE, THE AGGREGATE CUMULATIVE LIABILITY OF EITHER PARTY SHALL BELIMITED TO THE GREATER OF THE (1) THE ANNUAL SERVICE FEES FOR THE [*] PREVIOUSIN WHICH THE CLAIM AROSE, OR (2) [*]**. **IFTHIS AGREEMENT IS RENEWED OR EXTENDED BY MUTUAL AGREEMENT, BEYOND **SEVEN YEARS**,THE LIMITATION OF LIABILITY SHALL BE LIMITED IN THE AGGREGATE OVER THE RENEWEDOR EXTENSION OF THE TERM, FROM THE DATE OF SUCH RENEWAL OR EXTENSION, TO ANAMOUNT EQUAL TO THE ANNUAL SERVICE FEES FOR THE [*] PREVIOUS IN WHICH THE CLAIMAROSE (INCLUDING ANNUAL SERVICE FEES FROM THE PRIOR TERM IF PAID WITHIN THE [*]PERIOD).  THE FOREGOING LIMITATIONSSHALL NOT APPLY TO: **(A)** LOSSES SUBJECT TO INDEMNIFICATION UNDERTHIS AGREEMENT, **(B)** LIABILITY ARISING AS A RESULT OF A FAILURE TO COMPLY WITH **SECTION 10.2**,**(C)**INVESTORS’ FAILURE TO PAY ANY AMOUNTS DUE OR OWING UNDER THIS AGREEMENT,INCLUDING AMOUNTS THAT WOULD HAVE BEEN DUE FOR SERVICES NOT RENDERED AS ACONSEQUENCE OF INVESTORS’ DEFAULT, **(D)** ANY DAMAGES FOR BODILY INJURY(INCLUDING DEATH) AND DAMAGES TO REAL AND TANGIBLE PERSONAL PROPERTY FOR WHICHSUCH PARTY IS LEGALLY LIABLE, OR **(E)** ACTIONS IN EQUITY FOR SPECIFICPERFORMANCE, INJUNCTIVE RELIEF OR OTHER APPROPRIATE REMEDIES.

 

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###### (b) NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT,OR INCIDENTAL DAMAGES, (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OREXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM IN WHICH ANY ACTION ISBROUGHT.  NOTWITHSTANDING THE FOREGOING,THIS **SECTION 13.3(B)**SHALL NOT BE DEEMED TO LIMIT OR AFFECT EITHER PARTY’S INDEMNITY OBLIGATIONSPURSUANT TO **SECTION 19**.

######  

13.4 Inclusionas Direct Damages

** **

The following shall be considered direct damages and Provider shall notassert that they are indirect, incidental, special, or consequential damages orlost profits to the extent they result from Provider’s failure to provide theServices in accordance with the Agreement[*]. The intention of the foregoing list of “direct damages” is to avoid anydoubt on how those types of damages should be classified under thisAgreement.  However, the foregoing list of“direct damages” is not intended to be exclusive or exhaustive.

 

13.5   Force Majeure Events

##  

If a Force Majeure Event is the materialcontributing cause of a Party’s failure to perform any of its obligationshereunder, such obligations, after notification by such Party to the otherParty, shall be deemed suspended to the extent such obligations are directlyaffected by such Force Majeure Event, until the Force Majeure Event has endedand a reasonable period of time for overcoming the effects thereof has passed;provided, however, that if a Force Majeure Event results in Provider beingunable to perform during any period any or all of the Services in accordancewith the terms hereof: (i) Investors shall continue to pay for any suchServices that Provider is unable to perform due to such Force Majeure Event,(ii) Provider shall, without any additional payment (other than the AnnualService Fees otherwise due Provider for such Services), engage an alternateprovider, on an interim basis subject to **Section 11.5** (Termination for ForceMajeure Events), to perform the Services that Provider is unable to perform asa result of such Force Majeure Event; (iii) Investors shall be entitled toa share of Provider’s resources devoted to returning Provider to full performanceof all Services hereunder, that is equal to or greater than that of Provider’ssimilarly-situated customers; and (iv) Investors shall have the right toterminate this Agreement in accordance with the terms of **Section 11.5**(Termination for Force Majeure Events) hereof .  Both Parties shall use commercially reasonable efforts tominimize delays that occur due to a Force Majeure Event.  Other than as set forth above, neither Partyshall be excused from those obligations not affected by a Force Majeure Event(including disaster recovery services unless also affected by such ForceMajeure Event), and if the Force Majeure Event is predominantly caused byeither Party’s failure to comply with any of its obligations under thisAgreement or by either Party’s negligence or omission, there shall be no relieffrom any of that Party’s obligations under this Agreement.

 

# **14.**                               INSURANCE

 

Provider shall provide and maintain, during the Termand for such other period as may be required herein, at its sole expense,insurance in the amounts and form described below.  The fact that Provider has obtained the insurance required inthis **Section 14**shall in no manner lessen nor effect Provider’s other obligations orliabilities set forth in this Agreement, including its obligations to defend,indemnify, and hold Investors Indemnitees harmless in accordance with **Section 19**hereof.

 

14.1   Required GeneralLiability Insurance Coverage

##  

Providershall procure Commercial General Liability Insurance in the amounts and formset forth below:

 

### **14.1.1**              CommercialGeneral Liability Insurance

### ** **

A policy of Commercial General Liability Insurancethat provides limits of not less than:

 
| (a)    | Per Occurrence:             |   | $[*]   |
|--------|-----------------------------|--------|--------|
|   |                        |   |   |
| (b)    | Project Specific Aggregate: |   | $[*]   |

 

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| (c)    | Products/Completed Operations:   |   | $[*]   |
|--------|----------------------------------|--------|--------|
|   |                             |   |   |
| (d)    | Personal and Advertising Injury: |   | $[*]   |

 

### **Any deductible or self-insuredretention must be disclosed to Investors along with any changes thereto. Anydeductible or self-insured retention shall be the responsibility of Provider.**

### ** **

### **14.1.2**              Required GeneralLiability Policy Coverage

### ** **

Any general liability policy provided by Providerhereunder shall include the following coverage:  (i) premises and operations; (ii) products/completedoperations; (iii) contractual liability; (iv) personal injury andadvertising injury liability; and (v) severability of interest clause.

 

### **14.1.3**              AdditionalInsureds

### ** **

Any general liability policy provided by Providerhereunder shall name Investors; and the officers, agents, employees, andvolunteers of Investors, individually and collectively, as additional insureds.

 

### **14.1.4**              Primary InsuranceEndorsement

### ** **

The coverage afforded to Provider and Investorsunder the general liability policy described above shall apply as primaryinsurance, and any other insurance maintained by Investors, or its officers,agents, employees, and volunteers, or any Investors self-funded program, shallbe excess only and not contributing with such coverage.

 

### **14.1.5**              Form of General Liability Insurance Policies

### ** **

All general liability policies shall be written toapply to bodily injury, including death, property damage, personal injury, andother covered loss, occurring during the policy term, and shall specificallyinsure the performance by Provider of its obligations under **Section 19.2** below.

 

14.2   Business Automobile Liability Insurance

##  

Provider shall procure business automobile liabilityinsurance written for bodily injury and property damage occurring during thepolicy term, in the amount of not less than [*], combined single limit peraccident, applicable to all owned, non-owned, and hired vehicles.

 

14.3   Statutory Workers’ Compensation and Employers’ Liability Insurance

##  

Provider shall maintain a policy of workers’compensation coverage for no less than the minimum statutory amount requiredfor the State or States in which Provider’s employees are performing Serviceson Investors’ behalf, and employers’ liability coverage for not less than [*]per occurrence for all employees of Provider engaged in the performance ofServices under this Agreement.  Coverageshall include a mutual waiver of subrogation.

 

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14.4   Property Insurance

 

Provider shall provide insurance on all property owned by Provider andused to perform Services under this Agreement. Such policy shall provide “all risk” perils, including flood, and shallbe written on a basis of the lesser of the cost of complete repair or****onehundred percent (100%) replacement value of the property.  Coverage shall include business personalproperty, tenant improvements, business interruption, property of others, inthe care, custody, and control of the insured, and transit.  Provider shall be responsible for anydeductible or self-insured retention.

 

14.5   General Provisions

##  

### **14.5.1**              Evidence of Insurance

### ** **

Provider shall, as soon as practicable following theplacement of insurance required hereunder, but in no event later than thirty(30) calendar days after the Contract Signing Date, deliver to Investorscertificates of insurance evidencing the same, evidencing that Provider hasobtained such coverage.  Thereafter,copies of certificates and appropriate separate endorsements (if any) shall bedelivered to Investors within thirty (30) calendar days after the expirationthereof.  The provisions of suchpolicies shall constitute Provider Confidential Information; provided, however,such information may be disclosed by Investors to the extent necessary toenforce the terms of this Agreement.

 

### **14.5.2**              Claims-Made Coverage

### ** **

If coverage is written on a “claims-made” basis, thecertificate of insurance shall clearly so state.  In addition to the coverage requirements specified above,Provider will make all commercially reasonable efforts to provide that:

 

(a)  The policy’s retroactive dateshall coincide with or precede the Contract Effective Date (includingsubsequent policies purchased as renewals or replacements);

 

(b)  Similar insurance ismaintained during the required extended period of coverage for an extended Termfollowing expiration of the Agreement;

 

(c)  If insurance required under **Section 14**is terminated for any reason, Provider shall purchase a replacement claims-madepolicy with the same or an earlier retroactive date or shall purchase an extendedreporting provision to report claims arising in connection with this Agreementfor a minimum of two (2) years following termination or completion of theServices; and

 

(d)  All claims-made policies shallallow the reporting of circumstances or incidents that might give rise tofuture claims is permissible.

 

### **14.5.3**              Notice ofCancellation or Change ofCoverage

### ** **

All certificates of insurance provided by Providerunder this **Section 14** must evidence that the insurance supplier willgive Investors thirty (30) calendar days’ written notice in advance of anycancellation, lapse, reduction, or other adverse change in respect of suchinsurance.

 

### **14.5.4**              QualifyingInsurers

### ** **

All policies of insurance required pursuant to this **Section 14**shall be issued by companies that have been approved to do business in State orStates in which such insurance would be applicable, unless prior approval isobtained from Investors’ risk manager.

 

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# **15.**                               INVOICES AND REPORTS

# ** **

15.1   Invoices

##  

### **15.1.1**              General

### ** **

All invoices submitted byProvider must meet the mutually agreed invoice format and conform to the agreedcharges and charging methodologies. Provider shall submit invoices as specified in this Agreement.  Invoices must reference this Agreement andprovide detailed and customized information in accordance with **Schedule G**.  Such detailed and customizedinformation may include, but not limited to, the separate billing of multipleentities, general fee visibility, and billing requirements that are consistentwith Investors’ specific financial requirements and practices.  Invoices shall be accompanied by informationand data that support the invoiced Annual Service Fees.   Invoices are payable as follows:

 

(a)          Investors will pay Provider’sinvoices on or before the date (the “**Payable Date**”) below:

 

(i)             the last business dayof the calendar month in which Investors receives the invoice from Provider,provided Investors receives such invoice on or before the tenth (10th)calendar day of the month; and

 

(ii)          thirty (30) calendardays after Investors’ receipt of such invoice, if Investors receives suchinvoice after the tenth (10th) calendar day of the month.

 

(b)         Investors will pay eachinvoice by wire funds transfer or other electronic means reasonably acceptableto Provider to an account specified by Provider in writing.

 

(c)          If any payments orportion thereof (not otherwise disputed by Investors in accordance with **Section 6.10**)are not received by Provider within five (5) calendar days after the PayableDate,  Investors will also pay Providera late fee for each calendar day between and including the sixth (6th)calendar day after the Payable Date and the date Provider receives such latepayment in full.  The amount of the latefee will be invoiced to Investors and payable in accordance withsubsection (a) above.  The late feewill be based on a rate equal to the lesser of:

 

(i)    two percent (2%) of such payments per everythirty (30) calendar days or portion thereof; or

 

(ii)          the maximum amountpermissible by the applicable law.

 

Investors may dispute anyinvoice in accordance with the provisions of this Agreement, and the above latefee shall not apply to disputed amounts.

 

 

### **15.1.2**              Fee-Reductions

### ** **

###### Any Fee Reductions due in accordance with **Section 6.8**of this Agreement will be applied as credits against Provider’s invoices withappropriate information attached.  Anysuch credits will be applied to Investors’ account in the month followingdetermination of the amount, in accordance with the quarterly billing cycle.

######  

### **15.1.3**              Work Orders

### ** **

Invoicing with respect to Work Orders that are notsubject to the Annual Service Fees shall be consistent with the requirementsfor such Work Orders approved in accordance with the applicable Work Order.

 

### **15.1.4**              Initiatives

### ** **

Invoicing with respect to Initiatives will beconsistent with the requirements approved for each Initiative.

 

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15.2   Reports

##  

### **15.2.1**              General

### ** **

Provider shall furnish Investors with reportsdescribed in the Services Schedules (and any ad-hoc reports related to capacityplanning, trending analysis, resource utilization and invoice support) at noadditional cost and such additional reports that Investors may reasonablyrequest from time to time, provided that Investors pays Provider’s reasonableand necessary costs in providing such additional reports if their preparationrequires additional resources.  **Schedule G**contains sample reports.   Provider’sreports shall also include information regarding: Provider’s performance of theServices; utilization reports, Subcontractor relationships; and End-Usersatisfaction.  Provider shall promptly(but not later than two (2) business days after gaining knowledge thereof)inform Investors of any deficiencies, omissions, or irregularities inProvider’s performance of the Services (to the extent that such deficiencies,omissions, or irregularities have a material impact on the Services) that cometo Provider’s attention.  Provider shallfurnish Investors with existing and future non-confidential research anddevelopment resources, such as published materials, and industry studiesconducted for or by Provider, that come to its attention and pertain to theServices and that might assist Investors in setting its IT policies orrequirements.  The Provider ContractManager shall also advise Investors of other matters of a material nature, thathe or she believes would be helpful to Investors in setting or revising its IT policiesor requirements.

 

### **15.2.2**              Media

### ** **

Provider shall furnish Investors with all reports inboth hard copy and electronic form per Investors’ specifications as in effecton the Contract Signing Date and as reasonably requested by Investors from timeto time thereafter.

 

# **16.**                               RECORDKEEPING AND AUDIT RIGHTS

# ** **

16.1   Recordkeeping

##  

Provider shall maintain complete and accuraterecords and books of account with respect to this Agreement utilizing GAAP,consistently applied and complying in all respects with all applicable State orFederal laws or regulations.  Suchrecords and books, and the accounting controls related thereto, shall beconsidered Provider Confidential Information and shall be sufficient to providereasonable assurance that transactions are recorded so as to permit thepreparation of Provider’s financial statements in accordance with GAAP and tomaintain accountability for its assets.

 

Records of Provider’s business shall be maintainedby Provider at its project office, and Investors may examine and make extractsof information and copy any part thereof at any reasonable time during normalbusiness hours subject to the limitations set out in **Section 6.2**.   Provider shall retain and maintain accuraterecords and documents relating to performance of Services under this Agreementuntil the latest of: (i) six (6) years after the final payment byInvestors to Provider hereunder; (ii) one (1) year following thefinal resolution of all audits or the conclusion of any litigation with respectto this Agreement; or (iii) such longer time period as may be required ofProvider by applicable law or regulation.

 

16.2   Operational AuditRights

##  

On an annual basis, Investors or any AuditRepresentative, shall have the right, at any time and with reasonable advancenotice (which Investors shall make commercially reasonable efforts to provideno less than ten (10) calendar days advance notice), to perform an operationalaudit with respect to Provider’s performance hereunder (“**Internal Operational Audit**”).   Further, any Regulator shall also have theright, at any time to perform an operational audit with respect to Provider’sperformance hereunder (“**Regulatory Operational Audits**”).

 

With respect to any Internal Operational Audit orany Regulatory Operational Audits (collectively, “**Operational Audits**”),Provider shall grant Investors, any Regulators or any Audit Representative,full and complete access to Provider’s records and other documents of Providerand its Subcontractors, as they relate to

 

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this Agreement, or as they may be required in order for Investors toascertain any facts relative to Provider’s performance hereunder.  At Investors’ request or Regulators request,Provider shall provide: (i) such documents, data, or information on such mediaas Investors might reasonably request that pertain to the Operational Audits;(ii) copies (hard copy, optical, magnetic disk or tape, as appropriate) of alldocuments, data, or information on such media as Investors might reasonablyrequest that pertain to the Operational Audits; and (iii) such assistance asreasonably requested in order to perform such Operational Audits; provided,however, that the Parties shall endeavor to arrange such assistance in such away that it does not interfere with the performance of Provider’s duties andobligations hereunder, or Provider is excused from it’s duties or obligationsto the extent they are affected by such audit assistance and to the extentagreed by the Parties.  A request forProvider to provide assistance with Operational Audits will be considered aWork Order or Initiative if such Audit assistance results from a change inInvestors’ audit requirements or information is required to be provided in aformat different from the format normally used by Provider and Investors.  Further, with regards specifically to anyRegulatory Operational Audits, Provider shall endeavor to respond to anyRegulator driven request within the time period specified by such Regulator(which in some cases may be twenty four (24) hours).  Operational Audits under this section, that relate to the AnnualService Fees or pricing, shall be subject to the limitations set out in **Section 6.2**.

# ** **

# **Providershall make reasonable efforts to cause any Provider Subcontractor to complywith the foregoing provisions to the extent necessary to complete theOperational Audit.  Notwithstanding anyother provision in this**Section 16.2, Investors and its AuditRepresentatives shall have no access to Provider’s Internal ConfidentialInformation.

# ** **

# **17.**                               LEGALCOMPLIANCE

# ** **

17.1   Compliance withAll Laws and Regulations

##  

Both Provider and Investors shall at all timesperform their obligations hereunder in compliance with all applicable Federal,State, and local laws and regulations of all applicable jurisdictions(collectively, “**Laws**”), and in such a manner as not to cause the other to bein violation of any applicable laws or regulations including any applicablerequirements of any Federal, State, or local authority.  No provision of this Agreement, includingany Work Order, shall have any force or effect if it would cause a violation ofany Federal or State law, ordinance, statute, rule, regulation, or order, orwould require any consent or approval to prevent any such violation.  However, with respect to Provider, theforegoing compliance obligations shall only be to (a) comply with such Lawsapplicable to businesses in such jurisdiction generally (such as, by way ofexample, employment laws); and (b) comply with such Laws applicable to Providerin its role as a provider of information technology outsourcing servicesgenerally, and (c) specifically to data privacy laws or Laws applicable toProvider by virtue of the nature of Investors’ business to the extent thoselaws are made known to Provider.  IfProvider’s compliance with a particular Law requires a material change to themethod in which Services hereunder are delivered, Investors shall notifyProvider of such requirement and such requirement and such change shall be madepursuant to the change management process set forth in **Section 7.4** of thisAgreement.

 

17.2   Provider Permitsand License

 

Provider shall obtain and maintain, and shall causeits Subcontractors to obtain and maintain, at no cost to Investors, allapprovals, permissions, permits, licenses, and other forms of documentationrequired in order to comply with all existing foreign or domestic statutes,ordinances, and regulations, or other laws, that may be applicable toperformance of Services by Provider hereunder, to the extent of Provider’sobligation to comply with Laws as described in **Section 17.1**.  Investors reserves the right to reasonablyrequest and review all such permits and licenses prior to the commencement ofany Services hereunder.  If requested,Investors shall cooperate with Provider, at Provider’s cost and expense, toobtain any such approvals, permits, and licenses.

 

17.3   Hazardous Materials

 

Each Party shall be responsible for its owncompliance with all Environmental Laws and all other laws, rules, regulations,and requirements regarding Hazardous Materials, health and safety, notices, andtraining (required by law) in connection with the Services.  Neither Party shall store any HazardousMaterials at any 

 

 

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facility of the other for periods in excess ofninety (90) calendar days or in violation of the applicable site storagelimitations imposed by Environmental Law. Each Party agrees to take, at its expense, all reasonable actions necessaryto protect third parties, including, without limitation, employees and agentsof the other, from any exposure to Hazardous Materials generated or utilized inits performance under this Agreement. Provider agrees to report to the appropriate governmental agencies alldischarges, releases, and spills of Hazardous Materials that are required to bereported by Provider pursuant to any Environmental Law and if the discharge,release or spill occurs on Investors facility to immediately notify Investorsof same.  Provider shall not be liableto Investors for Investors’ failure to comply with, or violation of, anyEnvironmental Law.

 

# **18.**                               REPRESENTATIONS AND WARRANTIES

# ** **

18.1   Provider Representations,Warranties, and Related Covenants

##  

### **18.1.1**              Performance of the Services

### ** **

Provider represents and warrants that (i) it iscapable in all respects of providing and shall provide all Services in aprofessional, and workmanlike manner consistent with commercially reasonablestandards of quality and integrity; and (ii) no amendment to thisAgreement or additional cost or expense shall be required by Provider duringthe Term in order for it to be able to perform the Services as set forth in theBaselines set forth in **Schedule E** and in accordance with theMASLs.

 

### **18.1.2**              Y2K Compliance

### ** **

Provider warrantsthat any Provider logoed hardware or software made available by Provider to itscustomers, which is provided to Investors pursuant to this Agreement, when usedin accordance with Provider associated documentation, is capable of correctlyprocessing, providing and/or receiving date data within and between thetwentieth and twenty-first centuries, provided that all products (for example,hardware, software, and firmware) used with such hardware or software properlyexchange accurate date data with it.

 

**18.1.3****             ****Conflict of Interest**

 

###### (a)  Provider represents, warrants,and agrees that Provider, its Affiliates, and any employee of either associatedwith the delivery of the Services to Investors, shall have, and shall acquire,no contractual, financial, business, or other direct interest, that wouldmaterially conflict in any manner or degree with Provider’s performance of itsduties and responsibilities to Investors under this Agreement or otherwisecreate an appearance of impropriety with respect to the award or performance ofthis Agreement.  Provider shall promptlyinform Investors of any such interest upon becoming aware of such conflict.

######  

###### (b)  Provider represents, warrants,and agrees that:

 

###### (i)             *No Abuse of Authority forFinancial Gain*. That neitherProvider, nor any of its Affiliates, nor any employee of either, has used orshall use any Investors Confidential Information acquired in the performance ofthe Agreement to obtain financial gain for Provider, or any such Affiliate oremployee, or a member of the immediate family of any such employee, other than(1) the amounts due Provider pursuant to this Agreement, (2) as permitted inthe Agreement, and (3) the compensation Provider and its Affiliates pay theiremployees.

######  

###### (ii)          *Independent Prices*. The prices presented in the Providerresponse to Investors request for proposal were arrived at independently,without consultation, communication, or agreement with any other proposer forthe purpose of restricting competition; the prices quoted were not knowinglydisclosed by Provider to any other proposer; and no attempt was made byProvider to induce any other Person to submit or not to submit a proposal forthe purpose of restricting competition.

######  

(iii)       *No PaymentTied to Award*. Provider hasnot paid or agreed to pay any Person, other than bona fide employees workingsolely for Provider, any fee, commission, percentage, brokerage fee, 

 

 

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gift,or any other consideration, contingent upon or resulting from the award ormaking of this Agreement.

 

### **18.1.4**              Litigation andService of Process

### ** **

Provider represents that Provider is unaware of anypending or anticipated civil or criminal litigation in any judicial forum thatinvolves Provider or any of its Affiliates or Subcontractors that may adverselyaffect Provider’s ability to perform its obligations under this Agreement.  Provider shall notify Investors, as soon asreasonably practicable of Provider’s knowledge of its occurrence, of any suchpending or anticipated civil or criminal litigation that Provider reasonablydetermines may adversely impact the Provider’s ability to perform theServices.  Provider shall notifyInvestors, as soon as reasonably practical after process is served on Providerin connection with this Agreement, including any subpoena of Provider’srecords, and shall send a written notice of the service together with a copy ofthe same to Investors as soon as reasonably practical.

 

### **18.1.5**              Legal and Corporate Authority

### ** **

### **Provider represents and warrantsthat: (i) it is a New York corporation, and is qualified and registered totransact business in all locations where the performance of its obligationshereunder would require such qualification; (ii) it has all necessarycorporate powers, and authority to enter into and perform this Agreement, andthe execution, delivery, and performance of this Agreement has been dulyauthorized by all necessary corporate action of the respective Provider’scorporation; (iii) the execution of this Agreement by Provider shall notviolate any law, statute, or regulation and shall not breach any agreement,covenant, court order, judgment, or decree to which Provider is a party or bywhich it is bound; and (iv) that it owns or leases and covenants that it shallown or lease, free and clear of all liens and encumbrances, other than lessors’interests, or security interests of Provider’s lenders, all right, title, andinterest in and to the tangible property that Provider intends to use or usesin relation to the Services.**

### ** **

18.2                           Investors’Representations,Warranties, Covenants and Disclaimers

 

### **18.2.1**              Legal andCorporate Authority

### ** **

Investors represents and warrantsthat:  (i) it is a Massachusetts Trust Company, and is qualified andregistered to transact business in all locations where the performance of itsobligations hereunder would require such qualification; (ii) it has allnecessary corporate powers, and authority to enter into and perform thisAgreement, and the execution, delivery, and performance of this Agreement hasbeen duly authorized by all necessary corporate action of Investors’corporation; (iii) the execution of this Agreement by Investors shall notviolate any law, statute, or regulation and shall not breach any agreement,covenant, court order, judgment, or decree to which Investors is a party or bywhich it is bound; and (iv) that it owns or leases and covenants that it shallown or lease, free and clear of all liens and encumbrances, other than lessors’interests, or security interests of Investors lenders, all right, title, and interestin and to the tangible property that Investors intends to use or uses inrelation to the Services.

 

### **18.2.2**              Disclaimer

### ** **

Investors does not make any representation orwarranty, express or implied, with respect to the skills, capabilities, ormedical or other condition (with the exception of job title, salaryinformation, description of benefits and terms of employment) of any of theTransitioned Employees.  All hardware,software, networks, and other IT-related assets made available or conveyed byInvestors to Provider under this Agreement are made available or conveyed toProvider “AS IS, WHERE IS” and there are no warranties of any kind with respectto the condition, capabilities, or other attributes of such items, except asotherwise expressly stated in this Agreement.

 

**18.2.3****             ****Conflict of****Interest**

 

###### Investors represents, warrants, and agrees that neither Investors, norany of its Affiliates, nor any employee of either, has used or shall use anyProvider Confidential Information acquired in the performance of the Agreementto obtain financial gain for Investors, or any such Affiliate or employee, or amember of the 

######  

######  

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###### 

######  

###### immediatefamily of any such employee, other than (1) the amounts due Investors pursuantto this Agreement, (2) as permitted within the Agreement, and (3) thecompensation Investors and its Affiliates pay their employees.** **Investors has not paid or agreedto pay any Person, other than bona fide employees working solely for Investors,any fee, commission, percentage, brokerage fee, gift, or any otherconsideration, contingent upon or resulting from the award or making of thisAgreement.

######  

**18.2.4****             ****Acquired****Assets andLeases**

 

###### (a)                      Investors represents and warrants that as ofthe Contract Effective Date, it has clear title to all Acquired Assets and ittransfers all right, title, and interest in such Acquired Assets to Provider,free of all liens and encumbrances; and the Acquired Assets have beenmaintained in accordance with the applicable manufacturer’s maintenancerequirements.

######  

###### (b)                     Investors represents and warrants that allobligations with respect to the Leases accruing, or attributable to periods,prior to the Contract Effective Date have been satisfied.

##  

## “AcquiredAssets” are listed in the attached **Schedule L**.

##  

18.3   Warranty Disclaimer

##  

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THEREARE NO EXPRESS WARRANTIES BY EITHER PARTY. THERE ARE NO IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIEDWARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISEARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.

 

# **19.**                               INDEMNIFICATION

# ** **

### **19.1**   Technology Indemnification by Provider

### ** **

Provider shall indemnify, defend, and hold InvestorsIndemnitees harmless from, and shall pay all settlements and final damages andcost awarded against any of them, arising out of any claim brought by any thirdparty against any of them for actual or alleged infringement of any patent,trademark, copyright, or similar proprietary right, including misappropriationof trade secrets, based upon any Provider Underlying Works, Provider VendorSoftware, and/or Work Product used by Provider in providing the Services(collectively, “**Infringement Claim**”); and Provider shall defend, indemnify,and hold Investors Indemnitees harmless from and against any and all claims,demands, judgments, awards, fines, mechanics’ liens or other liens,liabilities, losses, cost, damages, and expense, including reasonableattorneys’ fees and disbursements and court costs (collectively, “**Losses**”),associated with any such claim or action incurred by any of them in connectionwith any such Infringement Claim.  Also,notwithstanding the foregoing, Provider shall defend, indemnify, and holdharmless Investors Indemnitees from and against all Losses that could have beenavoided by moving to a new release or version of the infringing software andProvider was offered the new release or version and did not move to the same;provided, however, that if the decision not to move to the new release orversion was an Upgrade Disapproval, then Provider shall have no liability toindemnify Investors due solely to its failure to upgrade the infringingsoftware.  In the event that Investors’right to use any such technology is enjoined, Provider may, in its reasonablediscretion and at Provider’s sole expense: (i) procure a license to enableInvestors to continue to use such technology; (ii) develop or obtain anon-infringing substitute reasonably acceptable to Investors; or (iii)discontinue such Services as are prevented by the unavailability of suchtechnology and the Parties will mutually agree, in good faith, to an equitableadjustment in Annual Service Fees. Provider shall have no obligation with respect to any claim or action tothe extent that it is based solely upon: (w) modification of a program or machine by Investors, anythird-party supplier of Investors, or any agent of Investors that was notapproved by or requested by Provider; (x) Investors’ combination,operation, or use with apparatus, data, or programs neither furnished norapproved by Provider; (y) the use by Investors of any software provided byany third party other than in accordance with relevant software licenses; or(z) the use of software owned by or licensed to Investors by a party otherthan Provider.  Provider shall have noobligation with respect to any Infringement Claim or Loss to the extent that itis based upon any Assigned Contract, as it exists as of the Contract Signing Date.

 

 

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### **19.2**   Injury, Property, or OtherDamage

### ** **

### **Without limiting either Party’sobligations with respect to insurance as provided in**Section 14 hereof, each Party shall indemnify, defend, andhold the other Party’s Indemnitees harmless with respect to any and all Lossesrelated to any third-party claim alleging bodily injury or death, damage totangible personal or real property, or any other damage, notwithstanding theform in which any such action is brought (e.g., contract, tort, or otherwise),to the extent such injuries or damages arise directly or indirectly from acts,errors, or omissions that constitute negligence, willful misconduct, orviolations of law, by the Party or its personnel, agents, or Subcontractors.

### ** **

### **19.3**   Third-Party Contracts

### ** **

Each Party shall indemnify, defend, and hold theother Party’s Indemnitees harmless from and against any and all Losses basedupon, or related to, third-party claims based upon an alleged breach by a Partyof any agreement with any third party, including an alleged breach by a Partyprior to the Contract Signing Date with respect to any Assigned Contract.

 

### **19.4**   Transitioned Employees

### ** **

Each Party shall indemnify, defend, and hold theother Party’s Indemnitees harmless from and against any Losses sustained by orincurred by such Party’s Indemnitees, as a result of any claim by aTransitioned Employee to the extent such person’s claim is based upon an act bya Party or its Subcontractors after the Hire Date.

 

### **19.5**   Hazardous Material

### ** **

The Parties shall indemnify, defend, and hold theother Party’s Indemnitees harmless from and against any claim by any thirdparty and any and all Losses sustained or incurred by such Party’s Indemniteesas a result of the other Party’s breach of its obligations under **Section 17.3**.

 

### **19.6**   Proprietary Information Disclosure

### ** **

Provider shall indemnify, defend, and hold InvestorsIndemnitees harmless from and against any and all Losses based upon orresulting from any third-party claim or challenge with respect to disclosure ofConfidential Information as a consequence of Provider’s breach of itsobligations under **Section 10.2**.

 

### **19.7**   Investors Technology

### ** **

Investors shall indemnify, defend, and hold ProviderIndemnitees harmless from, and shall pay all settlements and final damages andcost awarded against any of them, arising out of any claim brought by any thirdparty against any of them for actual or alleged infringement of any patent,trademark, copyright, or similar proprietary right, including misappropriationof trade secrets, based upon Investors Proprietary Systems or Investors-VendorSoftware provided to Provider by Investors either before or after the ContractSigning Date.  In the event thatProvider’s right to use such Investors Proprietary System or Investors-VendorSoftware is enjoined, Investors may, in its reasonable discretion and atInvestors’ sole expense: (i) procure a license to enable Provider to continueuse of such technology, (ii) develop or obtain a non-infringing replacement, or(iii) discontinue such Services as are prevented by the unavailability of suchtechnology and the Parties will mutually agree, in good faith, to an equitableadjustment in Annual Service Fees. Investors shall have no obligation with respect to any claim or actionto the extent it is based solely upon: (i) modification of the software by Provider or any of itsAffiliates or Subcontractors; or (ii) Provider’s combination, operation,or use of such software with Provider-approved apparatus, data, orprograms.  Investors shall have no obligationwith respect to any claim or action to the extent that it is based upon:(w) modification of the software by Provider or any of its Affiliates orSubcontractors; (x) Provider’s combination, operation, or use of suchsoftware with Provider-approved apparatus, data, or programs; (y) the useby Provider of any software provided by any third party other than inaccordance with relevant software licenses; or (z) the use of softwareowned by or licensed to Provider by a party other than Investors.  As between Provider and Investors, Investorsshall have no obligation with respect to any Assigned Contract, after theContract Signing Date.

 

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19.8   General Obligation

 

If any legal action governed by this **Section 19**is commenced against a Provider Indemnitee or Investors Indemnitee (“**PartyIndemnitee**”), such Party shall give written notice thereof to theindemnifying Party promptly after such legal action is commenced; provided,however, that failure to give prompt notice shall not reduce the indemnifyingParty’s obligations under this **Section 19**, except to the extent theindemnifying Party is prejudiced thereby. After such notice, if the indemnifying Party shall acknowledge inwriting to the other Party that the right of indemnification under thisAgreement applies with respect to such claim, then the indemnifying Party shallbe entitled, if it so elects in a written notice delivered to the other Partynot fewer than ten (10) calendar days prior to the date on which aresponse to such claim is due, to take control of the defense and investigationof such claim and to employ and engage attorneys of its choice, that arereasonably satisfactory to the other Party, to handle and defend same, at theindemnifying Party’s expense.  The PartyIndemnitee shall cooperate in all reasonable respects with the indemnifyingParty and its attorneys in the investigation, trial, and defense of such claimand any appeal arising therefrom; provided, however, that the Party Indemniteemay participate, at its own expense, through its attorneys or otherwise, insuch investigation, trial, and defense of such claim and any appeal arisingtherefrom.  No settlement of a claimthat involves a remedy other than the payment of money by the indemnifyingParty shall be entered into by the indemnifying Party without the prior writtenconsent of the Party Indemnitee, which consent may not be unreasonablywithheld.  If the indemnifying Partydoes not assume the defense of a claim subject to such defense as provided inthis Section, the indemnifying Party may participate in such defense, at itsexpense, and the Party Indemnitee shall have the right to defend the claim insuch manner as it may deem appropriate, at the expense of the indemnifyingParty.

 

# **20.**                               DISPUTE RESOLUTION

# ** **

20.1   Resolution Process

##  

If a Problem or dispute arises, the Parties’respective designated representatives shall attempt to resolve theProblem.  If such Problem cannot bepromptly resolved, Investors’ Representative and Provider’s Contract Managershall discuss and endeavor to resolve such Problem.  If the Parties have resolved the Problem, the Investors’Representative and Provider’s Contract Manager shall mutually agree to a ProblemResolution Report and each Party shall commence the resolution of the Problemin accordance therewith.  In the eventthe Provider Contract Manager and Investors’ Representative have failed toresolve the Problem within ten (10) calendar days after the referral of theProblem to them, the Parties shall refer the Problem to the ManagementCommittee for resolution.  If theManagement Committee is unable to resolve the dispute within ten (10)****businessdays of its receipt of the Problem, the dispute will be referred in writing tothe Senior Executive Contacts of each Party for their review andresolution.   Investors and Providerwill exercise reasonable, good faith efforts to resolve the dispute throughoutthe dispute resolution process outlined above. Provider and Investors may not initiate formal proceedings for theresolution of such dispute until the earlier of: (a) the Senior ExecutiveContacts’ joint written conclusion that amicable resolution through continuednegotiation is unlikely; (b) thirty (30) calendar days after the writtenreferral to such Senior Executive Contacts was made; or (c) ninety (90)calendar days before the limitations period governing any such cause of actionrelating to such dispute would expire. The determination of a mutually acceptable resolution, through thisprocess with respect to the Problem shall be binding on the Parties.

 

20.2   Legal Action

##  

If any Problem or other dispute, arises between theParties, and the disputed matter has not been resolved by the Senior ExecutiveContacts of each Party as specified in **Section 20.1** above, or such longerperiod as agreed to in writing by the Parties, and without regard to whethereither Party has contested whether these procedures, including the duty of goodfaith, have been followed, each Party shall have the right to commence anylegal proceeding as permitted by law. Neither Party shall be obligated to comply with **Section 20.1** or **Section 20.2**in regard to material breach of **Section 10** hereof or for any otherDefault as to which injunctive relief is sought or if compliance with this **Section 20.1**or **Section 20.2**would materially affect such Party’s remedies at law or equity.

 

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20.3   De Minimis Dispute

 

Notwithstanding anything to the contrary provided in**Section 20**or elsewhere in this Agreement, if: (i) Investors requests services, products, or resources fromProvider and the Parties disagree as to whether any such request is within thescope of the Services; and (ii) the financial impact on Provider ofsatisfying such request is less than [*], then the disagreement shall not bedeemed a Problem, but absent mutual agreement of the Parties through theManagement Committee, shall be deemed resolved in Investors’ favor.  The maximum financial impact on Provider ofdisagreements that shall not be deemed Problems, but shall instead be resolvedby the Management Committee in Investors’ favor pursuant to this **Section 20.3**,shall not exceed [*] in the aggregate during any Contract Year.

 

20.4   No Termination or Suspension of Services

##  

Notwithstanding anything to the contrary containedherein, and even if any Problem or other dispute arises between the Parties andregardless of whether or not it requires at any time the use of the disputeresolution procedures described above, in no event nor for any reason shallProvider interrupt the provision of Services to Investors or any obligationsrelated to Disentanglement, disable any hardware or software used to provideServices, or perform any other action that prevents, impedes, or reduces in anyway the provision of Services or Investors’ ability to conduct its activities,unless:  (i) authority to do so isgranted by Investors or conferred by a court of competent jurisdiction;(ii) the Term of this Agreement has been terminated or has expiredpursuant to **Section 11** hereof and a Disentanglement satisfactory toInvestors has been completed; or (iii) Investors is in payment Default andfails to cure the payment Default within the time permitted under thisAgreement, if any.

 

20.5   No Limitation on Remedies for Default

##  

The procedure described in this **Section 20** shall not bedeemed to limit either Party’s rights under **Section 11** or eitherParty’s rights under **Section 13** in connection with aDefault by either Party.

 

# **21**                                  APPROVALOF PROMOTIONS

# ** **

Each Party will coordinate with the other regardingany media release, public announcement or similar disclosure relating to thisAgreement or its subject matter and will give the other Party a reasonableopportunity to review and comment on the content of such release, announcementor disclosure prior to its release; provided, further, Investors shall alsohave the right to approve or disapprove any Provider media release, publicannouncement or similar disclosure (relating to this Agreement or its subjectmatter) that is made within thirty (30) calendar days of the Contract SigningDate.  This provision does not alter therestrictions on the disclosure of Confidential Information set forth in **Section 10.2**and, subject to **Section 10.2**, will not be construed so as to delay orrestrict either Party from disclosing any information required to be disclosedin order to comply with any applicable laws, rules or regulations.  Subject to any applicable laws, rules orregulations, and this Section, each Party will have the right to list the nameof the other Party, to make general references to the basic nature of therelationship between the Parties under this Agreement and to describe generallythe type of services being provided by Provider to Investors under thisAgreement in such Party’s promotional and marketing materials, in such Party’soral or visual presentations to third parties, in interviews conducted by thenews media or securities analysts and in or through any other available mediachannels, including print, internet, radio, cable and broadcast mediums;provided, however, the Party using the other Party’s name, shall not imply thatthe other Party is endorsing its products or services (unless it is otherwiseauthorized in writing to do so by the other party).

 

# **22.**                               USEOF AFFILIATESAND SUBCONTRACTORS

# ** **

22.1   Approval; Key Subcontractors

##  

Provider shall not perform the Services through itsAffiliates or through the use of Provider-selected Subcontractors, includingsuppliers of hardware and software, without the advance written consent of anInvestors Representative as to the selection of the Subcontractor, whichconsent may be withheld in Investors’ sole discretion, and the execution bysuch Subcontractor of a confidentiality agreement in accordance with **Section 10.2.3**hereof; provided, however, that Provider may subcontract, without Investors’advance written consent, for goods and services that do not involve theanticipated expenditure with a given Subcontractor under this Agreement of morethan $[*] within any ninety (90) calendar day period.  Investors hereby consents to any

 

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Subcontractor selected by the Provider to providethe Services, except those identified in **Schedule Q**; provided, that each suchselected Subcontractor shall execute a confidentiality agreement in accordancewith **Section 10.2.3** hereof.  Additionally,each Subcontractor shall be properly licensed in the State or States to performthe Services for which such Subcontractor is responsible.  Provider agrees that it shall continuethroughout the Term to retain the Subcontractors identified as “**KeySubcontractors**” (if any) in **Schedule Q**, and that such Personsshall continue to provide the Services initially provided, unless Provider hasobtained Investors’ prior written consent, which may be withheld in Investors’sole discretion or in the event of an emergency that requires suchsubcontractor to be removed.  In theevent of such emergency Provider will provide notice as soon as is reasonablypossible.  Furthermore, prior to theContract Signing Date, Investors may require that a particular Service besubcontracted to a certain Subcontractor. In no event shall Provider be entitled to perform the Services throughthe use of any Subcontractor who has been disbarred from performing servicesfor the United States government.

 

22.2   Subcontractor Agreements

##  

Provider will make commercially reasonable effortsto cause its contracts with Subcontractors to contain substantially the samematerial terms and conditions as those contained in this Agreement, to theextent such provisions are relevant to the subordinate agreement.

 

22.3   Liability and Replacement

##  

In no event shall Provider be relieved of itsobligations under this Agreement as a result of its use of anySubcontractors.  Provider shallsupervise the activities and performance of each Subcontractor and Providershall be liable for any act or failure to act by such Subcontractor.  If Investors determines that the performanceor conduct of any Subcontractor is unsatisfactory, Investors may notifyProvider of its determination in writing, indicating in reasonable specificitythe reasons therefore, in which event Provider shall promptly take allnecessary actions to remedy the performance or conduct of such Subcontractor orto replace such Subcontractor by another third party or by Provider personnel.

 

22.4   Direct Agreements

##  

Upon expiration or termination of the Term for anyreason, Investors shall have the right to enter into direct agreements with anySubcontractors.  Provider represents,warrants, and agrees that its arrangements with such Subcontractors shall notprohibit or restrict such Subcontractors from entering into direct agreementswith Investors.

 

# **23.**                               DEFINITIONS

# ** **

The following words and phrases, when used in thisAgreement or any Schedule to this Agreement, shall have the indicatedmeanings.

 

23.1   Terms Defined Elsewhere in this Agreement.

** **

For purposes of this Agreement, the following termshave meanings set forth in the sections indicated:

 

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| Term:                                 | Section or  Schedule:            |
|---------------------------------------|---------------------------------------|
| Academic  Learning Assistance Program | Section 3.3.4                    |
| Acceptance                            | Section 5.9.1                    |
| Acceptance Criteria                   | Section 5.9.1                    |
| Acceptance  Testing Period            | Section 5.9.1                    |
| Acceptance  Testing Procedure         | Section 5.9.1                    |
| Access                                | Section 9.4                      |
| Acquired  Assets                      | Section 18.2.4,  Schedule L |
| Add  Charges                          | Section 6.1.4                    |
| Affected  Party                       | Section 11.5                     |
| Audit  Representative                 | Section 10.1.5                   |
| Baselines                             | Section 1.1,  Schedule E    |
| Benchmark  Deadband                   | Section 6.5                      |
| Benchmarking                          | Section 6.5                      |
| Ceiling                               | Section 6.1.1,  Schedule E  |
| Change  in Control                    | Section 11.3                     |
| Chargeback  Fee                       | Section 4.2                      |
| Code                                  | Section 3.3.3                    |
| Conditional  Acceptance               | Section 5.9.1                    |
| Contract  Effective Date              | Section 1.1                      |
| Control                               | Section 11.3                     |
| Critical  MASLs                       | Section 11.2.2,  Schedule F |
| Current  Services                     | Section 1.2.1                    |
| Data  and Modified Data               | Section 9.5                      |
| Defaulting  Party                     | Section 11.4                     |
| Delayed  Services                     | Section 1.3.2                    |
| Delayed  Services Effective Date      | Section 1.3.2                    |

 

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| Delete  Charges                    | Section 6.1.6                   |
|------------------------------------|--------------------------------------|
| Designated  Resources              | Section 4.2                     |
| Disabling  Device                  | Section 1.5                     |
| Disclosing  Party                  | Section 10.2.1                  |
| Disentanglement                    | Section 12.1                    |
| Enhanced  Technology               | Section 1.4.2                   |
| Exception  Report                  | Section 5.9.2                   |
| Expiration  Date                   | Section 12.2                    |
| Extended  Acceptance Period        | Section 5.9.2                   |
| Failure  Notice                    | Section 1.9.3                   |
| Fee  Reduction                     | Section 6.8,  Schedule F   |
| Final  Acceptance                  | Section 5.9.3                   |
| Final  Acceptance Criteria         | Section 5.9.3                   |
| Final  Acceptance Test Procedures  | Section 5.9.3                   |
| Final  Acceptance Testing Period   | Section 5.9.3                   |
| Floor                              | Section 6.1.1,  Schedule E |
| Forecasted  Monthly Usage          | Section 1.1.1,  Schedule E |
| Future  Health Account Plan        | Section 3.3.1                   |
| Human  Resources Representative    | Section 3.4                     |
| In-Scope  Employee                 | Section 3.1.2                   |
| In-Scope  Employee Information     | Section 3.1.2                   |
| In-Scope  Locations                | Section 1.3,  Schedule R   |
| Incentive                          | Section 6.8                     |
| Infringement  Claim                | Section 19.1                    |
| Initial  Term                      | Section 11.1.1                  |
| Initiative                         | Section 8.1                     |
| Internal  Confidential Information | Section 6.2                     |

 

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| Internal  Operational Audit                | Section 16.2                    |
|--------------------------------------------|--------------------------------------|
| Internal  Use                              | Section 9.3                     |
| Investors  Competitors                     | Section 7.1                     |
| Investors  Facilities                      | Section 4.1                     |
| Investors-Leased  Assets                   | Section 2.2                     |
| Investors  Maintenance Agreements          | Section 2.7                     |
| Investors-Owned  Assets                    | Section 2.1                     |
| Investors  Proprietary Systems Derivatives | Section 9.1                     |
| Investors  Representative                  | Section 7.1.3                   |
| Investors-Vendor  Software                 | Section 9.4                     |
| IT                                         | Section 1.1                     |
| IT  Audits                                 | Section 10.1.5                  |
| IT  Internal Audits                        | Section 10.1.5                  |
| IT  Regulatory Audits                      | Section 10.1.5                  |
| IT  Scheduled Audits                       | Section 10.1.5                  |
| Losses                                     | Section 19.1                    |
| Monthly  Usage Charge                      | Section 6.1.8                   |
| Non-Defaulting  Party                      | Section 11.4                    |
| Operation  Audits                          | Section 16.2                    |
| Party  Indemnitee                          | Section 19.8                    |
| Payable  Date                              | Section 15.1                    |
| Pension  Plan Account                      | Section 3.3.1                   |
| Personal  Pension Account                  | Section 3.3.1                   |
| Preexisting  Condition                     | Section 1.9.3,  Schedule W |
| Procured  Assets                           | Section 1.3.1                   |
| Provider  Assets                           | Section 2.5                     |
| Provider  Contract Manager                 | Section 7.1.2                   |

 

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| Receiving  Party                 | Section 10.2.1                                  |
|----------------------------------|------------------------------------------------------|
| Regulators                       | Section 10.1.5                                  |
| Regulatory  Operational Audits   | Section 16.2                                    |
| Release                          | Section 3.1.6                                   |
| Renewal  Term                    | Section 11.1.3                                  |
| Requester                        | Section 9.6                                     |
| Resources                        | Section 1.8                                     |
| Response  Period                 | Section 7.4                                     |
| Sales  Tax                       | Section 6.4                                     |
| Senior  Executive Contact        | Section 7.3                                     |
| Senior  Executive Contacts       | Section 7.3                                     |
| Services  Schedules              | Section 1.1                                     |
| Severance  Payments              | Section 3.1.5                                   |
| Severity  1                      | Section 1.9.3,  Standards and Procedures Manual |
| Shared  Use Assets               | Section 1.4.4                                   |
| SLRs                             | Section 7.4                                     |
| Standards  and Procedures Manual | Section 1.7.1                                   |
| Technology  Plan                 | Section 1.4.2                                   |
| Technology  Refresh Plan         | Section 1.4.3                                   |
| Termination  Date                | Section 11.2.1                                  |
| Termination  for Convenience     | Section 11.2.1                                  |
| Termination  Notice              | Section 11.2.1                                  |
| Third  Party Resources           | Section 1.8                                     |
| Transition                       | Section 1.2.1                                   |
| Transition  Services             | Section 1.2.2                                   |
| Transitioned  Employee           | Section 3.1.3                                   |
| Upgrade  Disapproval             | Section 1.9.5                                   |

 

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| Variable  Pay          | Section 3.1.6 |
|------------------------|--------------------|
| Vendor  Software       | Section 9.4   |
| Web  Hosting Equipment | Section 1.4.3 |
| Workstations           | Section 2.5.1 |

##  

## 23.2   Affiliate

##  

“**Affiliate**” shall mean, as to any Person,any other Person that, directly or indirectly, controls, is controlled by, oris under common control with, such Person, whether through ownership of votingsecurities or otherwise.  For thispurpose, and without limiting the foregoing, any Person that owns more thanfifty percent (50%) of the outstanding voting securities of any other Personshall be deemed to control such other Person.

 

## 23.3   Agreement

##  

“**Agreement**” shall mean this InformationTechnology Service Agreement including all attachments, exhibits, and Scheduleshereto, as amended from time to time.

 

23.4   AssignedContracts

##  

“**Assigned Contracts**” shall mean those writtenmaintenance agreements, service contracts, software license agreements, andsubcontractor agreements under which Investors receives third-party servicesrelating to its IT requirements listed on **Schedule M**.  After the Contract Signing Date, if Provider identifies amaintenance agreement, service contract, software license agreement, orsubcontractor agreement relating to the Services that was omitted from **Schedule M**,Provider shall notify Investors in writing and the Parties shall make areasonable accommodation therefore, including the determination of additionalcharges, in accordance with the procedures set forth in **Section 7.4**.

 

23.5                           BaseComponents

 

 

**“Base Components”** means the hardware and software that IBMmakes available, if any, including those specified in **Schedule L** (Assets) forODCS.

 

23.6 BoardingPeriod

 

“**Boarding Period**” means the period of timewhich Provider boards Investors’ existing servers which are targeting formigration into the ODCS Environment.

 

23.7   ConfidentialInformation

 

“**Confidential Information**” shall meanrecords, data, and other information that is received by a Party or any of itsemployees or subcontractors from (or with regard to) the other in connectionwith the performance of this Agreement, whether in tangible or intangible form,and whether in written form or readable by machine, and including:

 

###### (a)           anyinformation that a Party identifies to the other Party as confidential by astamp or other similar notice;

######  

###### (b)                                 all Investors Data; and

######  

###### (c)                                  all financial information, personnelinformation, or client information.

######  

Confidential Information shall not includeinformation that Receiving Party can demonstrate was:  (i) at the time of disclosure to Receiving Party, in thepublic domain; (ii) after disclosure to Receiving Party, published or

 

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otherwise made a part of the public domain throughno fault of Receiving Party; (iii) in the possession of Receiving Party atthe time of disclosure to it, if Receiving Party was not then under anobligation of confidentiality with respect thereto; (iv) received afterdisclosure by Disclosing Party to Receiving Party from a third party who had alawful right to disclose such information to Receiving Party; (v) independentlydeveloped by Receiving Party without reference to Disclosing Party’sConfidential Information, or (vi) information relating to the tax treatment ortax structure of this Agreement or any transaction contemplated by thisAgreement.  For purposes of this provision,information is in the public domain if it is generally known (through no faultof Disclosing Party) to third parties who are not subject to nondisclosurerestrictions similar to those in this Agreement.

######  

23.6   BAU Period

 

“**BAU Period**” means the period of time inwhich Provider performs those Services (not including Web Hosting) performed inpart by the In-Scope Employees prior to Contract Signing Date and thoseServices performed in part by identified contractors prior to the ContractSigning Date that are to be performed by Provider with additional providerresources up until the Commencement Date utilizing Investors processes, procedures and tools.

 

23.8 Commencement Date

 

“Commencement Date” means the end of the BoardingPeriod

 

23.9   Contract Year

##  

“**Contract Year**” shall mean each twelve (12)month period beginning on the Contract Effective Date (with “Contract Year 1”),and on each subsequent anniversary thereof during the Term.

 

23.10 Critical Milestones

##  

“**Critical Milestones**” shall mean those tasksor project objectives identified as such in any Services Schedule or in **Schedule F**.

 

23.11                                             InvestorsComponents

##  

“**Investors Components**” means the hardware, software and otherproducts and data that Investors provides for ODCS, as specified in **Schedule L**.

##  

23.12  DASD

##  

“**DASD**” means direct accessstorage device. 

 

23.13 SocketAccess

##  

##        ”**SocketAccess**” means the program used to test accessibility of adestination by initiating a connection (much as an end user using a SecureShell (SSH) client) and waiting for a reply.

##  

23.14 Default

##  

“**Default**” shall mean the occurrence of anyof the following:

 

**(a)****         ****With respect to Provider:**

 

###### (i)  a material breach by Providerof any of its obligations under this Agreement, provided that such breach, ifcurable, is: (1) not cured by Provider within thirty (30) calendar daysafter Provider has received written notice of such material breach; or (2)if the material breach is one that could not reasonably be cured within

######  

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###### 

######  

###### thirty (30) calendar days; (y) thefailure by Provider to adopt, within thirty (30) calendar days afterreceiving notice of such breach,  a planto cure such breach within a time period not longer than sixty (60)calendar days after Provider received notice of the breach, or (z) thefailure by Provider to cure such breach within such sixty (60) calendarday period;

######  

###### (ii)  the discovery that arepresentation made in this Agreement by Provider was false when made, if thenature and the magnitude of the misrepresentation are such as to have had aprobable and material effect upon Investors’ decision to engage Provider orupon the negotiations as to the other terms of this Agreement; or

######  

###### (iii)  a breach by Provider inmaking payment of any amount payable to Investors under this Agreement withinthirty (30) calendar days after the due date specified in this Agreement, or ifProvider is not aware of such amount and after such amount has been identifiedthrough an audit and communicated to Provider, for such payment and the failureby Provider to cure such breach within twenty (20) calendar days after Providerhas received written notice of such breach.

######  

###### **(b)****         ****With respect to Investors:**

######  

###### (i)  a breach by Investors inmaking payment of any amount payable to Provider under this Agreement withinten (10)calendar days after the due date specified in this Agreement for suchpayment and the failure by Investors to cure such breach within ten (10)calendar days after Investors has received written notice of such breach;

######  

###### (ii)  a material breach byInvestors of any of its obligations under this Agreement, provided that suchbreach, if curable, is: (1) not cured by Investors within thirty (30)calendar days after Investors has received written notice of such materialbreach; or (2) if the material breach is one that could not reasonably becured within thirty (30) calendar days, (y) the failure by Investorsto adopt, within thirty (30) calendar days after receiving notice of suchbreach,  a plan to cure such breachwithin a time period not longer than sixty (60) calendar days afterInvestors received notice of the breach, or (z) the failure by Investorsto cure such breach within such sixty (60) calendar day period; or

######  

###### (iii)  the discovery that arepresentation made in this Agreement by Investors was false when made if thenature and the magnitude are such as to have had a probable and material effectupon the negotiations as to the terms of this Agreement.

######  

###### **(c)****         ****With respect to either Party, if either Party:**

######  

###### (i)  shall admitin writing its inability to, or be generally unable to, pay its debts as suchdebts become due; or

 

###### (ii)  shall (1) applyfor or consent to the appointment of, or the taking of possession by, areceiver, custodian, trustee, examiner or liquidator of itself or of all or asubstantial part of its property or assets, (2) make a general assignment forthe benefit of its creditors, (3) commence a voluntary case under the UnitedStates Bankruptcy Code, (4) file a petition seeking to take advantage of anyother law relating to bankruptcy, insolvency, reorganization, liquidation,dissolution, arrangement or winding-up, or composition or readjustment ofdebts, (5) fail to controvert in a timely and appropriate manner, or acquiescein writing to, any petition filed against it in an involuntary case under theUnited States Bankruptcy Code, or (6) take any corporate action for the purposeof effecting any of the foregoing;

 

then the other Party may, by giving notice thereof to suchParty, terminate this Agreement as of the date specified in such terminationnotice.

 

23.15 ECA

##  

“**ECA**” is the acronym for “economic changeadjustment.”

 

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23.16 End-User

##  

“**End-User**” shall mean any Investorsemployee, or any other Person providing products or services to Investors, whois determined by Investors, in its sole discretion, to require access to any ofthe Services.

 

23.17 Environmental Laws

 

“**Environmental Laws**” shall mean allapplicable Federal, State, or local statutes, laws, regulations, rules,ordinances, codes, licenses, orders, or permits of any governmental entityrelating to environmental matters including, but not limited to:  (i) the Clean Air Act (42 U.S.C. 7401et seq.); the Federal Water Pollution Control Act (33 U.S.C. §1251); the SafeDrinking Water Act (42 U.S.C. §5 300f et seq.); the Toxic Substances ControlAct (15 U.S.C. 55 2601 et seq.); the Endangered Species Act (16 U.S.C. §1531 etseq.); the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C.55 110011 et seq.); and (ii) similar State and local provisions.

 

23.18 Annual Service Fees

##  

“**Annual Service Fees**” shall mean the feespayable by Investors to Provider hereunder in consideration of Provider’sprovision of the Services.

 

23.19 Force Majeure Event

##  

“**Force Majeure Event**” shall mean an act ofgovernmental body or military authority, fire, explosion, flood, epidemic, riotor civil disturbance, war, sabotage, accident, insurrections, blockades,embargoes, storms, or similar event beyond the reasonable control of thenon-performing Party. Notwithstanding the foregoing, “Force Majeure Event”expressly excludes the following: any event that either party could reasonablyhave prevented by testing either required to be performed pursuant to the Servicesor necessary to provide the Services, work-around, or other exercise ofcommercially reasonable diligence; any event resulting from any strike,walkout, or other labor shortage of the non-performing Party; and any failureof any systems, facilities, or hardware that could have been prevented bytesting either required to be performed pursuant to the Services or necessaryto provide the Services.

 

23.20 GAAP

##  

“**GAAP**” is the acronym for “generallyaccepted accounting principles.”

 

## 23.21Hazardous Materials

##  

“**Hazardous Materials**” shall mean anysubstances the presence of which requires investigation or remediation underany Environmental Law, or that is or becomes defined as a “hazardous waste,”“hazardous substance,” pollutant, or contaminant under any Environmental Law.

 

## 23.22Investors Data

##  

“**InvestorsData**” shall mean, in or on any media or form of any kind:  all data and summarized data related toInvestors that is entered into software or equipment on behalf of Investors andall data derived from such data (regardless of whether or not owned byInvestors, generated or compiled by Investors), including such data that is inInvestors’ databases or otherwise stored on Investors-Owned Assets orInvestors-Leased Assets on the Contract Signing Date or at any time during theTerm; and (ii) all other Investors-owned records, data, data files, inputmaterials, reports, forms, and other such items that may be received, computed,processed, or stored by Provider, or by any of its Subcontractors, in the performanceof the Services under this Agreement.

 

## 23.23Investors Indemnitees

##  

“**Investors Indemnitees**” shall meanInvestors, all of its officers, and each of their respective officers,directors, employees, agents, successors and assigns.

 

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## 23.24Investors Proprietary Systems

 

## “**InvestorsProprietary Systems**” shall mean all computer programs (and allconfigurations and set-ups of any such program and all templates reflectingsame), and other developments and all intermediate and/or partial versionsthereof, including all source code, object code and documentation with respectthereto, and all designs, specifications, inventions, discoveries,improvements, ideas, know-how, techniques, materials, program materials,software, flow charts, notes, outlines, lists, compilations, manuscripts,writings, pictorial materials, schematics, other creations, and the like,whether or not patented or patentable or subject to copyright, or otherwiseprotectable by law, that:  (i) Investorsalready owns prior to the Contract Signing Date, or (ii) over which Investorsor its personnel obtain ownership after the Contract Signing Date, independentof Provider or the Services to be provided under this Agreement, or (iii) thatare assigned to Investors hereunder.                                       23.25 Investors Representative

##  

“**Investors Representative**” shall be theChief Information Officer of Investors or his/her Investors designee(s).

 

## 23.26Investors Service

##  

“**Investors Service**” means employment withInvestors or an Investors Affiliate.

 

23.27 Logical Partition

 

      ”**LogicalPartition**” or “**LPAR**” means a division of a computer’sprocessors, memory, and hardware resources into multiple environments so thateach environment can be operated independently with its own operating systemand applications.

 

## 23.28MASLs

##  

“**MASLs**” which is the acronym for “minimumacceptable service level,” specified in any Services Schedules for any task orservice.

 

## 23.29 On Demand Data Center Services Environment or ODCSEnvironment

##  

## “**On Demand DataCenter Services Environment**” or “**ODCS Environment**”****meansthe Base Components, and supporting infrastructure and which employs a utilitymanagement infrastructure consisting of a common tool set, processes andreports.

##  

## 23.30Party

##  

“**Party**” shall mean Investors or Provider;the “**Parties**”shall mean both of them.

 

## 23.31Person

##  

“**Person**” shall mean any natural person,corporation, limited liability company, limited liability partnership, generalpartnership, limited partnership, trust, association, governmental organizationor agency, political subdivision, body politic, or other legal person or entityof any kind, legally constituted.

 

23.32 Post-Termination License Fee

 

“**PostTermination License**” shall mean any of the licenses to be granted byProvider upon expiration or termination as set forth in **Section 9**.

 

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23.33 Porting Services

 

## **“Porting Services”** means the programming changes that Providerperforms for Investors’ applications (for example, languages, databases,middleware) to enable such applications to run in the ODCS Environment.

##  

## 23.34Problem

 

“**Problem**” shall mean any problem orcircumstance that results from any of the following:

 

###### (a)          analleged failure by either Party to perform its obligations under thisAgreement;

######  

###### (b)         analleged inadequacy or delay of either Party’s performance under this Agreement;

######  

###### (c)          a request for products, services, or resources, where the Partiesdisagree whether such products, services, or resources are within the Services(and therefore subject to the Annual Service Fees) or otherwise within thescope of this Agreement; or

######  

###### (d)         a disagreement as to the responsibilities either Party has under thisAgreement.

######  

## 23.35Problem Resolution Report

##  

“**Problem Resolution Report**” shall mean awritten report executed by both Parties describing a solution to a Problem.

 

## 23.36Provider Indemnitees

##  

“**Provider Indemnitees**” shall mean Provider,and each of its officers, directors, employees, agents, successors, andassigns.

 

## 23.37ProviderKey Personnel

 

“**Provider Key Personnel**” shall mean,initially, those personnel of Provider and its Subcontractors who arerespectively so designated in **Schedule I**.

 

## 23.38Services

##  

“**Services**” shall mean the followingcategories:

######  

###### (a)          Theservices described in **Sections 1**;

######  

###### (b)         TransitionServices; and

######  

Any management, planning, and other services thatare ancillary to and appropriate for the performance of any of the foregoing.

 

## 23.39Socket Access

##  

## “**SocketAccess**” means the program used to test accessibility of adestination by initiating a connection (much as an end user using a SecureShell (SSH) client) and waiting for a reply.

##  

## 23.40Subcontractor

##  

“**Subcontractor**” shall mean any third partyPerson other than Provider that provides Services to Provider for the benefitof Investors.

 

23.41 Term

 

“**Term**” shall mean the Initial Term, RenewalTerm or Extended Term, collectively.

 

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## 23.42Transition Plan

##  

“**Transition Plan**” shall mean the plan describedin **Schedule S**,a copy of which (upon completion) will be attached to this Agreement as **Schedule S**.

 

23.43 Underlying Works 

 

“**UnderlyingWorks**” shall mean all computer programs (and all configurations andset-ups of any such program and all templates reflecting same), and otherdevelopments and all intermediate and/or partial versions thereof, includingall source code, object code and documentation with respect thereto, and alldesigns, specifications, inventions, discoveries, improvements, ideas,know-how, techniques, materials, program materials, software, flow charts,notes, outlines, lists, compilations, manuscripts, writings, pictorialmaterials, schematics, other creations, and the like, whether or not patentedor patentable or subject to copyright, or otherwise protectable by law,that:  (i) Provider already owns priorto the Contract Signing Date, or (ii) over which Provider or its personnelobtain ownership after the Contract Signing Date, independent of Investors orthe Services to be provided under this Agreement (other than Work Product).

 

## 23.44Work Order

##  

“**Work Order**” shall mean a request, in theform set forth in **Schedule O**, for the performance ofwork that is not being performed at a particular time but is within the scopeof the Services.  Work Orders will bedeveloped and approved using the change management process set forth in **Section 7.4**of the Agreement.

 

22.45Unrecovered Start-Up Expenses

 

“**Unrecovered Start-Up Expenses**”may include:

 

(a)                                  Unrecovered hardware leases, maintenanceagreements (up to twelve (12) months paid in advance);

 

(b)                                 BAU expense obligations payable by Investors(as specified in **Schedule E**)- unless already paid;

 

(c)                                  Severance related to the TransitionedEmployees - unless already paid;

 

(d)                                 Transition Services expenses obligations -unless already paid:

 

(i)                                     Setup for hardware, software;

 

(ii)                                  Setup for network circuits;

 

(iii)                               Establishing processes and procedures; and

 

(iv)                              Establishing reports, measurements.

 

23.46 WorkProduct

 

“**WorkProduct**” shall mean all information, computer programs (and allconfigurations and set ups of any such program and all templates reflectingsame), and other developments and all intermediate and/or partial versionsthereof , including all source code, object code and documentation with respectthereto, and all designs, specifications, inventions, discoveries,improvements, ideas, know how, technique, materials, program materials,software, flow charts, notes, outlines, list, compilations, manuscripts,writings, pictorial materials, schematics, other creations, and the like,whether or not patented or patentable or subject to copyright, or otherwiseprotectable by law, created, invented, or conceived for the use or benefit ofInvestors or for the provision of the Services in connection with thisAgreement, by any Provider personnel or by any other Person engaged byProvider.  Work Product shall includecustomizations of Vendor Software by any Provider personnel or by any otherPerson engaged by Provider for use in the provision of Services to Investor.

 

# **24.**                               MISCELLANEOUS

# ** **

## 24.1   Entire Agreement

##  

This Agreement, including the Schedules hereto,constitutes the entire understanding and agreement between the Parties withrespect to the transactions contemplated herein and supersedes all prior orcontemporaneous oral or written communications with respect to the subjectmatter hereof.  No usage of trade,

 

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or other regular practice or method of dealingbetween the Parties or others, may be used to modify, interpret, supplement, oralter in any manner the express terms of this Agreement.

 

24.2   Order of Precedence

 

In the event of conflict in substance,interpretation or impact between the terms and conditions contained in **Sections 1**through**Section 24** of this Agreement and any terms and conditionscontained in any Schedule or Attachment hereto, the terms and conditionsof this Agreement shall control.

 

## 24.3   Captions; References; Terminology

##  

Captions, Tables of Contents, Indices of Definitions,and Schedule titles are used herein for convenience of reference only****andmay not be used in the construction or interpretation of this Agreement.  Any reference herein to a particularSection number (e.g., ”Section 2”), shall be deemed a referenceto all Sections of this Agreement that bear sub-numbers to the number of thereferenced Section (e.g., Sections 2.1, 2.1.1).  Any reference herein to a particularSchedule (e.g., Schedule ___) shall be deemed a reference to theSchedule hereto that bears the same letter.  As used herein (except as used in the Schedules), the word“including” and “include” shall mean “including, but not limited to.”

 

## 24.4   Assignment

##  

Except for subcontracting permitted under the termsof **Section 22**hereof, neither this Agreement, nor any interest therein, nor any of the rightsand obligations (except for Provider’s rights to payment) may be directly orindirectly assigned, sold, delegated, or otherwise disposed of by either Party,in whole or in part, without the prior written consent of the other Party,which shall not be unreasonably delayed or withheld.

 

## 24.5   Noticesto a Party

##  

Except as expressly otherwise stated herein, allnotices, requests, consents, approvals, or other communications provided for,or given under, this Agreement, shall be in writing and shall be deemed to havebeen duly given to a Party if delivered personally, or transmitted by facsimileor electronic mail to such Party at its telecopier number or e-mail address setforth below (with the original sent by recognized overnight courier orfirst-class mail to the Party at its address set forth below), or sent by firstclass mail or overnight courier to such Party at its address set forth below,or at such other telecopier number or address, as the case may be, as shallhave been communicated in writing by such Party to the other Party inaccordance with this Section.  Allnotices shall be deemed given when received in the case of personal delivery ordelivery by mail or overnight courier, or when sent in the case of transmissionby facsimile or electronic mail with a confirmation, if confirmed by copy sentby overnight courier within one (1) business day of sending the facsimile.

 

**Notices toInvestors shall be addressed as follows:**

 

InvestorsBank & Trust Company

200Clarendon Street

Boston,MA 02117

Attention:Chief Information Officer

 

TelecopierNo.:

 

witha copy to the attention of Investors’ **General Counsel** addressed as follows:

 

InvestorsBank & Trust Company

200Clarendon Street

Boston,MA 02117

Attention:General Counsel

 

TelecopierNo.:

 

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**Notices toProvider shall be addressed as follows:**

 

InvestorsBank & Trust Company

200Clarendon Street

Boston,MA 02117

Attention:IBM Project Manager

 

TelecopierNo.:

 

witha copy to the attention of Provider’s Office of the Associate General Counsel,IGS Americas at:

 

InternationalBusiness Machines Corporation

Mailstop:4202

Route100

Somers,NY 10589

Facsimile:  (914) 766-8444

 

## 24.6   Amendments; Waivers

##  

Except as expressly provided herein, this Agreementmay not be modified, amended, or in any way altered except by a writtendocument duly executed by both of the Parties hereto. No waiver of anyprovision of this Agreement, nor of any rights or obligations of any Partyhereunder, shall be effective unless in writing and signed by the Party waivingcompliance, and such waiver shall be effective only in the specific instance,and for the specific purpose, stated in such writing.  No waiver of breach of, or default under, any provision of thisAgreement shall be deemed a waiver of any other provision, or of any subsequentbreach or default of the same provision, of this Agreement.

 

## 24.7   Relationship Between, and Legal Status of, the Parties

##  

This Agreement shall not be construed to deem eitherParty as a representative, agent, employee, partner, or joint venturer of theother.  Provider shall be an independentcontractor for the performance under this Agreement.  Neither Party shall have the authority to enter into anyagreement, nor to assume any liability, on behalf of the other Party, nor tobind or commit the other Party in any manner, except as provided hereunder.

 

## 24.8   Severability

##  

If any provision of this Agreement is determined tobe invalid or unenforceable, that provision shall be deemed stricken and theremainder of this Agreement shall continue in full force and effect insofar asit remains a workable instrument to accomplish the intent and purposes of theParties; the Parties shall replace the severed provision with the provisionthat will come closest to reflecting the intention of the Parties underlyingthe severed provision but that will be valid, legal, and enforceable.

 

## 24.9   Counterparts

##  

This Agreement may be executed in duplicatecounterparts.  Each such counterpart, ifexecuted by both Parties, shall be an original and both together shallconstitute but one and the same document. This Agreement shall not be deemed executed unless and until at leastone counterpart bears the signatures of both Parties’ designated signatories.

 

## 24.10Laws and Regulations

##  

This Agreement shall be interpreted under, andgoverned by, the laws and court decisions of the Commonwealth of Massachusetts,without giving effect to its principles of conflicts of laws.

 

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## 24.11Venue and Jurisdiction

##  

All actions or proceedings arising out of, orrelated to, this Agreement shall be brought only in an appropriate Federal orState court in Boston, Massachusetts (if the Provider is bringing an action orproceeding against Investors) and New York, New York (if Investors is bringingan action or proceeding against Provider), and the Parties hereby consent tothe jurisdiction of such courts over themselves and the subject matter of suchactions or proceedings.  Provider herebyappoints its Chief General Counsel and his or her successor to be agent uponwhom any process, in any action or proceeding against it arising out of thisAgreement, may be served.

 

## 24.12No Third-Party Beneficiaries

##  

Except as specifically provided in this Agreement,this Agreement is an agreement between the Parties and confers no rights uponany of the Parties’ employees, agents, or contractors, or upon any otherPerson.

 

## 24.13Expenses

##  

Each Party shall pay all expenses paid or incurredby it in connection with the planning, negotiation, and consummation of thisAgreement, subject to the provisions of **Section 11.2**.

 

## 24.14Survival

##  

Any provision of thisAgreement that contemplates performance or observance subsequent to terminationor expiration of this Agreement shall survive termination or expiration of thisAgreement and continue in full force and effect.  For the avoidance of doubtand without limiting the general applicability of the foregoing, **Section 10.2**(Protection of Confidential Information), **Section 13** (Remedies, Limitations ofLiability), **Section 19** (Indemnification), and Section 6.0(Financial Terms) shall survive termination and expiration of this Agreement.

 

## 24.15Neither Party Considered Drafter

##  

Despite the possibility that one Party may haveprepared the initial draft of this Agreement or played the greater role in thephysical preparation of subsequent drafts, the Parties agree that neither ofthem shall be deemed the drafter of this Agreement and that, in construing thisAgreement in case of any claim that any provision hereof may be ambiguous, nosuch provision shall be construed in favor of one Party on the ground that suchprovision was drafted by the other.

 

TheParties have executed this Agreement as of the later of the dates following thesignatures of each of the Parties as set forth in the signature block below.

 
| **Investors Bank & Trust  Company** | **International Business Machines  Corporation** |
|-----------------------------------------|--------------------------------------------------|
| By:                                     |                                             | By: |   |
|                                    |                                             |   |   |
| Title:                                  |                                             | Title: |   |
|                                    |                                             |   |   |
| Date:                                   |                                             | Date: |   |
|                                         |                                                  |  |  |  |  |

 

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