exv10w36



 





Exhibit 10.36




MASTER PPROFESSIONAL SERVICE AGREEMENT




Effective
October 1, 2006









 









 








Execution Copy




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1. BACKGROUND AND OBJECTIVES
	 	 	1	 
	1.1 ITO Services
	 	 	1	 
	1.2 Goals and Objectives
	 	 	1	 
	1.3 Interpretation
	 	 	2	 
	 
	 	 	 	 
	2. DEFINITIONS AND DOCUMENTS
	 	 	2	 
	2.1 Definitions
	 	 	2	 
	2.2 Other Terms
	 	 	17	 
	2.3 Associated Contract Documents
	 	 	17	 
	 
	 	 	 	 
	3. TERM
	 	 	18	 
	3.1 Initial Term
	 	 	18	 
	3.2 Extension
	 	 	18	 
	 
	 	 	 	 
	4. SERVICES
	 	 	18	 
	4.1 Overview
	 	 	18	 
	4.2 Transition Services
	 	 	19	 
	4.3 Termination Assistance Services
	 	 	21	 
	4.4 Use of Third Parties
	 	 	25	 
	4.5 Companion Agreements
	 	 	26	 
	 
	 	 	 	 
	5. REQUIRED CONSENTS
	 	 	27	 
	5.1 Supplier Responsibility
	 	 	27	 
	5.2 Financial Responsibility
	 	 	27	 
	5.3 Contingent Arrangements
	 	 	27	 
	5.4 Failure to Obtain Required Consents
	 	 	27	 
	 
	 	 	 	 
	6. FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES
	 	 	27	 
	6.1 Service Facilities
	 	 	27	 
	6.2 Use of Supplier Facilities
	 	 	31	 
	6.3 ABM Rules/Employee Safety
	 	 	31	 
	6.4 Software
	 	 	32	 






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	 	 	Page
	6.5 Equipment
	 	 	33	 
	6.6 Third Party Contracts
	 	 	36	 
	6.7 Assignment of Licenses, Leases and Related Agreements
	 	 	37	 
	6.8 License to ABM Third Party Software and Materials
	 	 	38	 
	6.9 License to Supplier Third Party Software and Materials
	 	 	39	 
	6.10 Managed Third Parties
	 	 	40	 
	6.11 Notice of Defaults
	 	 	41	 
	6.12 Environmental
	 	 	41	 
	 
	 	 	 	 
	7. SERVICE LEVELS
	 	 	42	 
	7.1 General
	 	 	42	 
	7.2 Service Level Credits and Deliverable Credits
	 	 	43	 
	7.3 Problem Analysis
	 	 	43	 
	7.4 Continuous Improvement Reviews
	 	 	43	 
	7.5 Measurement and Monitoring
	 	 	44	 
	7.6 Satisfaction Surveys
	 	 	44	 
	7.7 Notice of Adverse Impact
	 	 	45	 
	 
	 	 	 	 
	8. PROJECT PERSONNEL
	 	 	45	 
	8.1 Transitioned Personnel
	 	 	45	 
	8.2 Employee Benefit Plans
	 	 	47	 
	8.3 Other Employee Matters
	 	 	49	 
	8.4 Key Supplier Personnel
	 	 	50	 
	8.5 Supplier Account Executive
	 	 	51	 
	8.6 Supplier Personnel Are Not ABM Employees
	 	 	51	 
	8.7 Replacement, Qualifications, and Retention of Supplier Personnel
	 	 	51	 
	8.8 Training/Career Opportunities
	 	 	52	 
	8.9 Conduct of Supplier Personnel
	 	 	52	 
	8.10 Restrictions on Changes in Supplier Staffing/Facilities
	 	 	53	 
	8.11 Substance Abuse
	 	 	53	 
	8.12 Collective Bargaining Agreements and warn Act
	 	 	53	 
	 
	 	 	 	 
	9. SUPPLIER RESPONSIBILITIES
	 	 	54	 






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TABLE OF CONTENTS

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	 	 	Page
	9.1 Policy and Procedures Manual
	 	 	54	 
	9.2 Reports
	 	 	55	 
	9.3 Governance; Meetings
	 	 	56	 
	9.4 Quality Assurance and Internal Controls
	 	 	56	 
	9.5 Architecture, Standards and Information Technology Planning
	 	 	57	 
	9.6 Change Control
	 	 	58	 
	9.7 Software Currency
	 	 	60	 
	9.8 [RESERVED]
	 	 	61	 
	9.9 Access To Specialized Supplier Skills and Resources
	 	 	61	 
	9.10 Audit Rights
	 	 	61	 
	9.11 Agency and Disbursements
	 	 	65	 
	9.12 Subcontractors
	 	 	66	 
	9.13 Telecommunications Matters
	 	 	66	 
	9.14 FCC Actions
	 	 	67	 
	9.15 Retained Systems and Business Processes
	 	 	68	 
	9.16 Network Configuration Data
	 	 	69	 
	 
	 	 	 	 
	10. ABM RESPONSIBILITIES
	 	 	69	 
	10.1 Responsibilities
	 	 	69	 
	10.2 Savings Clause
	 	 	70	 
	 
	 	 	 	 
	11. CHARGES
	 	 	70	 
	11.1 General
	 	 	70	 
	11.2 Pass-Through Expenses
	 	 	71	 
	11.3 Incidental Expenses
	 	 	72	 
	11.4 Taxes
	 	 	72	 
	11.5 New Services
	 	 	75	 
	11.6 Extraordinary Events
	 	 	76	 
	11.7 Technology
	 	 	77	 
	11.8 Project Resources
	 	 	78	 
	11.9 Proration
	 	 	79	 
	11.10 Refundable Items
	 	 	79	 






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	 	 	Page
	11.11 ABM Benchmarking Reviews
	 	 	79	 
	11.12 Transport Rate Review
	 	 	81	 
	11.13 Procurement
	 	 	81	 
	 
	 	 	 	 
	12. INVOICING AND PAYMENT
	 	 	82	 
	12.1 Invoicing
	 	 	82	 
	12.2 Payment Due
	 	 	83	 
	12.3 Set Off
	 	 	83	 
	12.4 Disputed Charges
	 	 	83	 
	 
	 	 	 	 
	13. ABM DATA AND OTHER PROPRIETARY INFORMATION
	 	 	85	 
	13.1 ABM Ownership of ABM Data
	 	 	85	 
	13.2 Safeguarding ABM Data
	 	 	85	 
	13.3 Confidentiality
	 	 	86	 
	13.4 File Access
	 	 	88	 
	 
	 	 	 	 
	14. OWNERSHIP OF MATERIALS
	 	 	89	 
	14.1 ABM Owned Materials
	 	 	89	 
	14.2 Developed Materials
	 	 	90	 
	14.3 Supplier Owned Materials
	 	 	91	 
	14.4 Other Materials
	 	 	92	 
	14.5 General Rights
	 	 	93	 
	14.6 ABM Rights Upon Expiration or Termination of Agreement
	 	 	93	 
	 
	 	 	 	 
	15. REPRESENTATIONS AND WARRANTIES
	 	 	96	 
	15.1 Work Standards
	 	 	96	 
	15.2 Maintenance
	 	 	96	 
	15.3 Efficiency and Cost Effectiveness
	 	 	97	 
	15.4 Software
	 	 	97	 
	15.5 Non-Infringement
	 	 	98	 
	15.6 Authorization
	 	 	98	 
	15.7 Inducements
	 	 	99	 
	15.8 Malicious Code
	 	 	99	 
	15.9 Disabling Code
	 	 	99	 






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	 	 	Page
	15.10 Compliance with Laws
	 	 	100	 
	15.11 Interoperability
	 	 	102	 
	15.12 Disclaimer
	 	 	102	 
	 
	 	 	 	 
	16. INSURANCE AND RISK OF LOSS
	 	 	102	 
	16.1 Insurance
	 	 	102	 
	16.2 Risk of Loss
	 	 	104	 
	 
	 	 	 	 
	17. INDEMNITIES
	 	 	104	 
	17.1 Indemnity by Supplier
	 	 	104	 
	17.2 Indemnity by ABM
	 	 	106	 
	17.3 Additional Indemnities
	 	 	107	 
	17.4 Infringement
	 	 	107	 
	17.5 Indemnification Procedures
	 	 	108	 
	17.6 Indemnification Procedures — Governmental Claims
	 	 	109	 
	17.7 Subrogation
	 	 	109	 
	 
	 	 	 	 
	18. LIABILITY
	 	 	109	 
	18.1 General Intent
	 	 	109	 
	18.2 Force Majeure
	 	 	109	 
	18.3 Limitation of Liability
	 	 	111	 
	 
	 	 	 	 
	19. DISPUTE RESOLUTION
	 	 	114	 
	19.1 Informal Dispute Resolution
	 	 	114	 
	19.2 Mediation
	 	 	115	 
	19.3 Jurisdiction
	 	 	115	 
	19.4 Continued Performance
	 	 	115	 
	19.5 Governing Law
	 	 	116	 
	 
	 	 	 	 
	20. TERMINATION
	 	 	116	 
	20.1 Termination for Cause
	 	 	116	 
	20.2 Termination for Convenience
	 	 	117	 
	20.3 Termination Upon Supplier Change of Control
	 	 	117	 
	20.4 Termination Upon ABM Mergers and Acquisitions
	 	 	117	 
	20.5 Termination for Insolvency
	 	 	117	 






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	 	 	Page
	20.6 ABM Rights Upon Supplier’s Bankruptcy
	 	 	118	 
	 
	 	 	 	 
	21. GENERAL
	 	 	119	 
	21.1 Binding Nature and Assignment
	 	 	119	 
	21.2 Entire Agreement; Amendment
	 	 	119	 
	21.3 Notices
	 	 	120	 
	21.4 Counterparts
	 	 	122	 
	21.5 Headings
	 	 	122	 
	21.6 Relationship of Parties
	 	 	122	 
	21.7 Severability
	 	 	122	 
	21.8 Consents and Approval
	 	 	122	 
	21.9 Waiver of Default; Cumulative Remedies
	 	 	123	 
	21.10 Survival
	 	 	123	 
	21.11 Publicity
	 	 	123	 
	21.12 Service Marks
	 	 	123	 
	21.13 Export
	 	 	123	 
	21.14 Third Party Beneficiaries
	 	 	123	 
	21.15 Covenant Against Pledging
	 	 	123	 
	21.16 Order of Precedence
	 	 	124	 
	21.17 Hiring of Employees
	 	 	124	 
	21.18 Further Assurances
	 	 	124	 
	21.19 Liens 
	 	 	125	 
	21.20 Covenant of Good Faith
	 	 	125	 
	21.21 Acknowledgment
	 	 	125	 
	21.22 Right to Perform Service for Others
	 	 	125	 
	21.23 Eligible Recipients
	 	 	125	 
	21.24 Remarketing
	 	 	125	 
	21.25 Freedom of Action
	 	 	125	 
	21.26 Reference
	 	 	125	 






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Exhibit 10.36




MASTER PROFESSIONAL SERVICES AGREEMENT




     This Master Professional Services Agreement (this “Agreement”) is entered into effective
October 1, 2006 (the “Effective Date”) by and between ABM Industries Incorporated, a Delaware
corporation having a principal place of business in San Francisco, California (“ABM or Customer”),
and International Business Machines Corporation, a New York corporation having a principal place in
Somers, New York (“Supplier”).



     WHEREAS, ABM and Supplier have engaged in extensive negotiations, discussions and due
diligence that have culminated in the formation of the contractual relationship described in this
Agreement; and



     WHEREAS, ABM desires to procure from Supplier, and Supplier desires to provide to ABM and the
Eligible Recipients the Services described in this Agreement and in the Companion Agreement(s)
(defined below), on the terms and conditions specified herein.



     NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and of
other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged,
ABM and Supplier (the “Parties” and each, a “Party”) hereby agree as follows:




	1.	 	BACKGROUND AND OBJECTIVES
	 
	1.1	 	ITO Services.
	 
	 	 	ABM desires that certain application management, telecommunication, IT infrastructure, help
desk, and other information technology services presently performed and managed by or for
ABM and the Eligible Recipients and certain additional information technology services, as
each is described in this Agreement (collectively “ITO Services”) be performed and managed
by Supplier. Supplier has carefully reviewed ABM’s requirements, has performed all due
diligence it deems necessary, and desires to perform and manage such ITO Services for ABM
and the Eligible Recipients.
	 
	1.2	 	Goals and Objectives.
	 
	 	 	The Parties acknowledge and agree that the specific goals and objectives of the Parties in
entering into this Agreement are to:






	 	(a)	 	attain ABM’s specific objectives for the Services, including:






	 	(i)	 	providing Services and solutions in full alignment with
business unit requirements and exploiting the technologies and associated
services for competitive advantage;
	 
	 	(ii)	 	maintaining and continuously improving quality of the Services,
improving availability and responsiveness of the Services and meeting
deliverables on time and on budget;
	 
	 	(iii)	 	reducing overall expenses and efficiently deploying capital
associated with the Services; and
	 
	 	(iv)	 	measuring and improving overall customer satisfaction,
proactively anticipating customer needs and maintaining clear accountability
with respect to the Services; and






	 	(b)	 	attain ABM’s broader objectives for entering into this Agreement with Supplier,
including:






	 	(i)	 	improving ABM’s and the Eligible Recipients’ access to
resources and technology, and leveraging Supplier’s size, scale, and expertise
to make overall improvements in delivery of the Services; and





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	 	(ii)	 	achieving additional reductions in expenses and capital that
are otherwise not achievable by ABM, changing fixed costs to variable costs by
procuring Services as needed, based on business demand and providing better
linkage of cost to the discrete Services provided, and increasing ABM’s and the
Eligible Recipients’ ease and accuracy associated with invoicing and internal
chargeback capabilities.






	1.3	 	Interpretation.
	 
	 	 	The provisions of this Article 1 are intended to be a general introduction to this
Agreement and are not intended to expand the scope of the Parties’ obligations or alter the
plain meaning of this Agreement’s terms and conditions, as set forth hereinafter. However,
to the extent the terms and conditions of this Agreement are unclear or ambiguous, such
terms and conditions are to be construed so as to be consistent with the background and
objectives set forth in this Article 1.
	 
	2.	 	DEFINITIONS AND DOCUMENTS
	 
	2.1	 	Definitions.
	 
	 	 	As used in this Agreement:






	 	(1)	 	“ABM Data” shall mean any data or information of ABM or any Eligible Recipient
that is provided to or obtained by Supplier in connection with the negotiation and
execution of this Agreement or the performance of its obligations under this Agreement,
including data and information with respect to the businesses, customer, operations,
facilities, products, rates, regulatory compliance, competitors, consumer markets,
assets, expenditures, mergers, acquisitions, divestitures, billings, collections,
revenues and finances of ABM or any Eligible Recipient. ABM Data also shall mean any
data or information of ABM or an Eligible Recipient (i) created, generated, collected
or processed by Supplier in the performance of its obligations under this Agreement,
including data processing input and output, asset information, Reports, third party
service and product agreements of ABM or an Eligible Recipient, retained expenses and
Pass-Through Expenses or (ii) that resides in or is accessed through Software,
Equipment or Systems provided, operated, supported, or used by Supplier in connection
with the Services, as well as information derived from this data and information.
ABM Data shall not include any Supplier Proprietary Information.
	 
	 	(2)	 	“ABM Facilities” means the facilities listed in Schedule O.1 provided
by ABM or the Eligible Recipient for the use of Supplier to the extent necessary to
provide the Services.
	 
	 	(3)	 	“ABM Owned Materials” shall have the meaning given in Section 14.1(a).
	 
	 	(4)	 	“ABM Owned Software” means Software owned by ABM or an ABM Affiliate or an
Eligible Recipient and used, operated, maintained or supported by Supplier or a
Subcontractor under or in connection with this Agreement.
	 
	 	(5)	 	“ABM Personal Data” shall mean that portion of ABM Data that is subject to any
Privacy Laws.
	 
	 	(6)	 	“ABM Contract Manager” shall have the meaning given in Section 10.1.
	 
	 	(7)	 	“ABM Personnel” shall mean the employees, agents, contractors or
representatives of ABM employed by ABM or its Affiliates or Eligible Recipients as of
the Effective Date who performed, in the ordinary course of business, any of the
services to be provided by Supplier during the twelve (12) months preceding the
Commencement Date.
	 
	 	(8)	 	“ABM Sites” or “Sites” shall mean the offices or other facilities listed on
Schedule O.5 at or to which Supplier is to provide the Services.





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	 	(9)	 	“ABM Third Party Contractors” shall have the meaning given in Section
4.4(a).
	 
	 	(10)	 	“Acceptance” shall mean the determination, in ABM’s reasonable discretion, and
in accordance with the Policy and Procedures Manual or other criteria agreed to by the
Parties, following implementation, installation, testing and execution in the
production environment for an agreed upon number of business cycles that Software,
Equipment, Systems and/or other contract deliverables are in Compliance in all material
respects with the Specifications.
	 
	 	(11)	 	“Additional Resource Charge” or “ARC” is the charge per Resource Unit that is
applicable whenever the actual consumption of a Resource Unit by the Eligible
Recipients exceeds the Resource Baseline set forth in Schedule J. The total
additional charges will be calculated by multiplying the Additional Resource Charge by
the number of Resource Units in excess of the Resource Baseline actually consumed by
the Eligible Recipients.
	 
	 	(12)	 	“Affected Employees” means the individuals identified in Schedule M.
	 
	 	(13)	 	“Affiliate” shall mean, generally, with respect to any Entity, any other Entity
Controlling, Controlled by or under common Control with such Entity.
	 
	 	(14)	 	“Agreement” shall have the meaning given in the Preamble.
	 
	 	(15)	 	“Allocation of Pool Percentage” means for a particular Critical
Performance Indicator, the portion of At Risk Amount allocated to such Critical
Performance Indicator and used to calculate the Service Level Credit payable to ABM in
the event of a Service Level Default in such Critical Performance Indicator. In no
event shall the sum of all Allocations of Pool Percentage exceed one hundred percent
(100%).
	 
	 	(16)	 	“Antivirus Software” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used to monitor for, filter and detect the presence of
Malicious Code and repair or remediate the effects of Malicious Code to the extent a
Party has financial or operational responsibility for such programs or programming
under Schedule J.1. Antivirus Software shall include all such programs or
programming in use as of the Effective Date (i) that are set forth in Schedule
A, or (ii) as to which Supplier received reasonable notice and/or reasonable access
prior to the Effective Date. Antivirus Software also shall include all such programs
or programming selected on or after the Effective Date to the extent a Party has
financial or operational responsibility for such programs or programming under
Schedule J.1.
	 
	 	(17)	 	“Applications Software” or “Applications” shall mean those software application
programs and programming (and all modifications, replacements, Upgrades, enhancements,
documentation, materials and media related thereto) used to support day-to-day business
operations and accomplish specific business objectives to the extent a Party has
financial or operational responsibility for such programs or programming under
Schedule J.1. Applications Software shall include all such programs or
programming in use as of the Effective Date (i) that are set forth in Schedule
A, or (ii) as to which Supplier received notice and/or access prior to the
Effective Date. Applications Software also shall include all such programs or
programming developed and/or introduced on or after the Effective Date to the extent a
Party has financial or operational responsibility for such programs or programming
under Schedule J.1.
	 
	 	(18)	 	“Asset Management Software” means all software programs and programming (and
all modifications, replacements, Upgrades, enhancements, documentation, materials and
media related thereto) that are used to record, track and report information required
to manage asset inventories to the extent a Party has financial or operational
responsibility for such programs or programming under Schedule J.1. Asset
Management Software shall include all such programs or programming in use as of the
Effective Date, (i) that are set forth in Schedule A, or (ii) as to





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	 	 	 	which Supplier received reasonable notice and/or reasonable access prior to the
Effective Date. Asset Management Software also shall include all such programs or
programming selected on or after the Effective Date to the extent a Party has
financial or operational responsibility for such programs or programming under
Schedule J.1.
	 
	 	(19)	 	“At Risk Amount” means, for any month during the Term, an amount, expressed as
a percentage of the Monthly Charges, which is the maximum amount that the Supplier will
have at risk for Service Level Credits. The At Risk Amount shall be 10% of the Monthly
Charges.
	 
	 	(20)	 	“Authorized User” means (i) all Eligible Recipients and their respective
employees, contractors, subcontractors, customers, agents and representatives (other
than Supplier and its Subcontractors), and (ii) other persons or Entities designated by
ABM to receive or use the Systems or Services provided by Supplier.
	 
	 	(21)	 	“Baseline FTE Project Hours” and “Baseline FTE Project Dollars” shall have the
meaning given in Section 11.8(a).
	 
	 	(22)	 	“Benchmark Standard” has the meaning given in Section 11.11(d).
	 
	 	(23)	 	“Benchmarker” has the meaning given in Section 11.11(a).
	 
	 	(24)	 	“Benchmarking” has the meaning given in Section 11.11(a).
	 
	 	(25)	 	Reserved.
	 
	 	(26)	 	“Change Management” means the processes and procedures relating to managing,
planning and performing all System Changes pertaining to the Services, including System
Changes to individual components, and the coordination of such changes across all
components as set forth in Schedule E and the Policy and Procedures Manual.
Change Management will support and include checkpoints to ensure that System Changes
may be implemented in accordance with the Change Control Procedures.
	 
	 	(27)	 	“Charges” means the amounts set forth in this Agreement, including in
Article 11 and Schedule J, as charges for the Services, excluding
Pass-Through Expenses, Service Taxes and ABM retained expenses.
	 
	 	(28)	 	“Commencement Date” shall mean October 1, 2006, or such other date as the
Parties may agree upon in writing as the date on which Supplier will assume full
responsibility for the Services.
	 
	 	(29)	 	“Compiler” means all software programs and programming (and all modifications,
replacements, Upgrades, enhancements, documentation, materials and media related
thereto) that are used to compile source code to executable code (e.g., C++, ADA,
Cobol, JAVA, Fortran) to the extent a Party has financial or operational responsibility
for such programs or programming under Schedule J.1. Compiler shall include
all such programs or programming in use as of the Effective Date, (i) that are set
forth in Schedule A, or (ii) as to which Supplier received notice and/or access
prior to the Effective Date. Compiler also shall include all such programs or
programming selected on or after the Effective Date to the extent a Party has financial
or operational responsibility for such programs or programming under Schedule
J.1.
	 
	 	(30)	 	“Compliance” and “Comply” shall mean, with respect to Software, Equipment,
Systems or other contract deliverables to be implemented, designed, developed,
delivered, integrated, installed and/or tested by Supplier, compliance in all material
respects with the Specifications.
	 
	 	(31)	 	“Contract Year” means, for the first Contract Year, a period commencing on the
Commencement Date and ending on October 31, 2006, and, for each ensuing Contract Year,
a twelve (12) month





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	 	 	 	period commencing on November 1 and ending on October 31 (or, if earlier,
on the last day of the Term). If any Contract Year is less than twelve (12) months,
the rights and obligations under this Agreement that are calculated on a Contract
Year basis will be proportionately adjusted for such shorter period.
	 
	 	(32)	 	“Control” and its derivatives shall mean: (a) the legal, beneficial, or
equitable ownership, directly or indirectly, of (i) at least 50% of the aggregate of
all voting equity interests in an Entity or (ii) equity interests having the right to
at least 50% of the profits of an Entity or, in the event of dissolution, to at least
50% of the assets of an Entity; (b) the right to appoint, directly or indirectly, a
majority of the board of directors; (c) the right to control, directly or indirectly,
the management or direction of the Entity by contract or corporate governance document;
or (d) in the case of a partnership, the holding by an Entity (or one of its
Affiliates) of the position of sole general partner.
	 
	 	(33)	 	“Critical Deliverable” shall have the meaning given in Schedule G.
	 
	 	(34)	 	“Critical Performance Indicator(s)” or “CPI” shall have the meaning given in
Schedule G.
	 
	 	(35)	 	“Database Software” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used to deliver database services to the enterprise to the
extent a Party has financial or operational responsibility for such programs or
programming under Schedule J.1. Database Software includes database engines
such as Sybase, Oracle, DB2. SQL Server and associated modules (e.g., form builders,
report generators, and backup software) and the tools used to manage and monitor
performance of the database. Database Software shall include all such programs or
programming in use as of the Effective Date, (i) that are set forth in Schedule
A, or (ii) as to which Supplier received notice and/or access prior to the
Effective Date. Database Software also shall include all such programs or programming
developed and/or introduced on or after the Effective Date to the extent a Party has
financial or operational responsibility for such programs or programming under
Schedule J.1.
	 
	 	(36)	 	“Deliverable” means a Developed Material that is identified as a deliverable in
the Agreement, or in a statement of work, project plan, or other writing by or between
the Parties.
	 
	 	(37)	 	“Deliverable Credits” means the monetary amount(s) that Supplier shall pay to
ABM (or apply against monthly Charges) if Supplier fails to meet its obligations with
respect to a Critical Deliverable, as further described in Section 7.2(b) and
Schedules G and H.
	 
	 	(38)	 	“Derivative Work” means a work based on one or more preexisting works,
including a condensation, transformation, translation, modification, expansion, or
adaptation, that, if prepared without authorization of the owner of the copyright of
such preexisting work, would constitute a copyright infringement under applicable Law,
but excluding the preexisting work.
	 
	 	(39)	 	“Developed Materials” shall mean any Materials (including Software), or any
modifications, enhancements or Derivative Works thereof, developed by or on behalf of
Supplier for ABM or the Eligible Recipients in connection with or as part of the
Services.
	 
	 	(40)	 	“Development Tool” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used in the development, testing, deployment and maintenance
of Applications to the extent a Party has financial or operational responsibility for
such programs or programming under Schedule J.1. Development Tools shall
include all such products in use as of the Effective Date, (i) that are set forth in
Schedule A, or (ii) as to which Supplier received notice and/or access prior to
the Effective Date. Development Tools also shall include all such products selected
and/or





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	 	 	 	developed on or after the Effective Date to the extent a Party has financial or
operational responsibility for such programs or programming under Schedule
J.1.
	 
	 	(41)	 	“Direct Supplier Competitors” shall mean the Entities identified in
Schedule P.2, as such list of Entities may be modified by Supplier from time to
time, provided, however, that such list shall at no time exceed twenty (20) Entities
unless otherwise agreed by the Parties.
	 
	 	(42)	 	“Direct ABM Competitors” shall mean the Entities identified in Schedule
P.1, as well as their Affiliates, successors and assigns, as such list of Entities
may reasonably be modified by ABM from time to time.
	 
	 	(43)	 	“Effective Date” shall have the meaning given in the preamble to this
Agreement.
	 
	 	(44)	 	“Eligible Recipients” means, collectively, the following:






	 	(a)	 	ABM;
	 
	 	(b)	 	any Entity that is an Affiliate of ABM on the Commencement
Date, or thereafter becomes an Affiliate of ABM;
	 
	 	(c)	 	any Entity that purchases after the Commencement Date from ABM
or any Affiliate of ABM, all or substantially all of the assets of ABM or such
Affiliate, or of any division, marketing unit or business unit thereof,
provided that such Entity agrees in writing to be bound by the terms and
conditions of this Agreement;
	 
	 	(d)	 	any Entity that after the Effective Date is created using
assets of ABM or any Affiliate of ABM, provided that such Entity agrees in
writing to be bound by the terms and conditions of this Agreement;
	 
	 	(e)	 	any Entity into which ABM or any Affiliate of ABM merges or
consolidates, provided that such Entity has assumed ABM’s obligations under
this Agreement, and provided further that such Entity agrees in writing to be
bound by the terms and conditions of this Agreement;
	 
	 	(f)	 	any Entity which merges into or consolidates with ABM or any
Affiliate of ABM;
	 
	 	(g)	 	any Entity, including any corporation, joint venture,
partnership or manufacturing or retail facility, in which on or after the
Commencement Date, ABM or any Affiliate of ABM has an ownership interest and as
to which ABM or such Affiliate has management or operational responsibility;
	 
	 	(h)	 	subject to Section 11.1(e)(iii), any person or Entity
engaged in the provision of products or services to ABM or an Eligible
Recipient identified in clauses (a) through (g) (e.g.,
contract personnel working at an ABM Site), but only in connection with the
provision of such products or services to ABM or such Eligible Recipient;
	 
	 	(i)	 	subject to Section 11.1(e)(iii), any customer of an
Eligible Recipient identified in clauses (a) through (g) above, or an Entity to
which such an Eligible Recipient is a subcontractor, but only in connection
with the provision of products or services (other than the Services provided
hereunder) by such Eligible Recipient to such customer; and
	 
	 	(j)	 	other entities to which the Parties agree.





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	 	 	 	Except as used in Sections 17.1, 17.3, and 17.4, Eligible Recipients
shall include the employees, contractors, subcontractors, agents and representatives
of the Entities identified as Eligible Recipients above.
	 
	 	 	 	As used in the following Sections, the term “Eligible Recipient(s)” shall not
include the Eligible Recipient categories described in Sections 2.1(44)(h) and
(i):






	 	•	 	Section 4.2(f);
	 
	 	•	 	Section 4.3(b) (except Section 4.3(b)(8));
	 
	 	•	 	Section 5.4 (provided that the failure to obtain a Required
Consent with respect to the Eligible Recipient categories described in
Sections 2.1(44)(h) and (i) may nonetheless impact the use and
enjoyment of the Services by ABM or other Eligible Recipients);
	 
	 	•	 	Section 6.1(c); and
	 
	 	•	 	Section 9.4(a).






	 	(45)	 	“Employment Effective Date” means, with respect to each Transitioned Employee,
the date that such Transitioned Employee begins employment with Supplier, in accordance
with applicable Laws.
	 
	 	(46)	 	“Engineering Software” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used to provide a specific engineering function or service to
the extent a Party has financial or operational responsibility for such programs or
programming under Schedule J.1. Engineering Software shall include all such
programs or programming in use as of the Effective Date, (i) that are set forth in
Schedule A, or (ii) as to which Supplier received reasonable notice and/or
reasonable access prior to the Effective Date. Engineering Software also shall include
all such programs or programming developed and/or introduced on or after the Effective
Date to the extent a Party has financial or operational responsibility for such
programs or programming under Schedule J.1.
	 
	 	(47)	 	“Entity” means a corporation, partnership, joint venture, trust, limited
liability company, association or other organization or entity.
	 
	 	(48)	 	“Equipment” shall mean all computing, networking and communications equipment
procured, provided, operated, supported, or used by ABM, Supplier or Authorized Users
in connection with the Services, including (i) mainframe, midrange, server and
distributed computing equipment and associated attachments, features, accessories,
peripheral devices, and cabling, (ii) personal computers, laptop computers, terminals,
workstations and personal data devices and associated attachments, features,
accessories, printers, multi-functional printers, peripheral or network devices, and
cabling, and (iii) voice, data, video and wireless telecommunications and network and
monitoring equipment and associated attachments, features, accessories, peripheral
devices, and cabling.
	 
	 	(49)	 	“Equipment Leases” means all leasing arrangements whereby ABM, an Eligible
Recipient or an ABM Third Party Contractor leases Equipment as of the Commencement Date
which will be used by Supplier to perform the Services after such Commencement Date.
Equipment Leases include those leases identified on Schedule F.2, and all other
leases as to which Supplier received notice and/or access prior to the Effective Date.
	 
	 	(50)	 	“Event of Loss” shall have the meaning set forth in Section 16.2.





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	 	(51)	 	“Extraordinary Event” shall have the meaning given in Section 11.6(a).
	 
	 	(52)	 	“Full Time Equivalent” or “FTE” is a level of effort (whether by one person or
more than one person), excluding vacation, holidays, training, administration and other
non-productive time (but including a reasonable amount of additional work outside
normal business hours), equivalent to that which would be provided by one person
working full time for one year. Unless otherwise agreed, one dedicated FTE is assumed
to be at least 1,880 productive hours per Contract Year, and each non-dedicated FTE
shall be deemed to be a fraction of an FTE equal to the number of productive hours
worked by such non-dedicated FTE in a Contract Year divided by 1,880. Without ABM’s
prior written approval, one (1) dedicated individual’s total work effort cannot amount
to more than one FTE.
	 
	 	(53)	 	“Functional Service Area” means each of the areas defined in Schedule E
in which Supplier will provide Services, (i.e., ).
	 
	 	(54)	 	“Hazardous Materials” means an element, compound, chemical mixture,
contaminant, pollutant, waste or other substance which is defined as hazardous or toxic
under any applicable Law or the release of which is prohibited or restricted under any
applicable Law.
	 
	 	(55)	 	“Include” and its derivatives shall mean “including without limitation.” This
term is as defined, whether or not capitalized in this Agreement.
	 
	 	(56)	 	“Increased Impact Service Level” shall have the meaning given in Schedule
G.
	 
	 	(57)	 	“Increased Impact Service Level Default” means the Supplier’s level of
performance for a particular Service Level fails to meet the applicable Increased
Impact Service Level at any time during the measurement period.
	 
	 	(58)	 	“Income Tax” means any tax on or measured by the net income of a Party
(including taxes on capital or net worth that are imposed as an alternative to a tax
based on net or gross income), or taxes which are of the nature of excess profits tax,
minimum tax on tax preferences, alternative minimum tax, accumulated earnings tax,
personal holding company tax, capital gains tax or franchise tax for the privilege of
doing business.
	 
	 	(59)	 	“Initial Term” shall have the meaning set forth in Section 3.1.
	 
	 	(60)	 	“ITS Systems Life Cycle” means the comprehensive IT/IS documentation maintained
by ABM, including operating manuals, user guides, specifications, methodologies,
policies/procedures and disaster recovery plans.
	 
	 	(61)	 	“Key Performance Indicator(s)” or “KPI” shall have the meaning given in
Schedule G.
	 
	 	(62)	 	“Key Supplier Personnel” shall mean the Supplier Personnel filling the
positions designated in Schedule C as Key Supplier Personnel.
	 
	 	(63)	 	“LAN Software” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used to operate, manage or monitor a LAN or maintain active
status on a LAN port to the extent a Party has financial or operational responsibility
for such programs or programming under Schedule J.1. LAN Software shall
include all such programs or programming in use as of the Effective Date, (i) that are
set forth in Schedule A, or (ii) as to which Supplier received reasonable
notice and/or reasonable access prior to the Effective Date. LAN Software also shall
include all such programs or programming developed and/or introduced on or after the
Effective Date to the extent a Party has financial or operational responsibility for
such programs or programming under Schedule J.1.





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	 	(64)	 	“Laws” shall mean all federal, state and local laws, statutes, regulations,
rules, executive orders, supervisory requirements, directives, circulars, opinions,
interpretive letters and other official releases of or by any government, or any
authority, department or agency thereof or self regulatory organization (“SRO”), in any
jurisdiction in which the Services are provided or received, including the United
States Securities and Exchange Commission and the Public Company Accounting Oversight
Board and the Laws relating to data privacy, trans-border data flow or data protection
(“Privacy Laws”). Subject to Section 15.10, Laws shall include generally
accepted accounting principles (“GAAP”), applied in accordance with SAS-69, as such
principles may be modified during the Term by the Public Company Accounting Oversight
Board or other applicable authorities.
	 
	 	(65)	 	“Local Area Networks” or “LANs” shall mean the local, high-speed networks,
consisting of Equipment, Software, Systems, telecommunications facilities, lines,
interconnect devices and cabling, that are used to create, connect and transmit data,
voice and video signals to, within or among ABM’s local area network segments. Local
Area Networks interconnect Authorized User workstations, local servers, and printers
and may connect with WANs. Local Area Networks shall include all LANs in use as of the
Commencement Date, all LANs created by or for ABM, the Eligible Recipients or Supplier
following the Commencement Date and all additions, modifications, substitutions,
upgrades or enhancements to existing and future LANs.
	 
	 	(66)	 	“Losses” shall mean all losses, liabilities, damages, fines, penalties,
settlements, judgments, and interest (including taxes) arising out of a third party
claim against a Party or indemnitee, in each case that a court finally awards to a
third party or which are included in the amount of any settlement paid to a third party
and agreed to by the Party financially responsible for such settlement, and all related
costs and expenses (including reasonable legal fees, disbursements and costs of
investigation and litigation) as incurred.
	 
	 	(67)	 	“Major Release” means a new version of Software that includes changes to the
architecture and/or adds new features and functionality in addition to the original
functional characteristics of the preceding software release. These releases are
usually identified by full integer changes in the numbering, such as from “7.0” to
“8.0,” but may be identified by the industry as a major release without the
accompanying integer change.
	 
	 	(68)	 	“Malicious Code” shall mean (i) any code, program, or sub-program whose knowing
or intended purpose is to damage or maliciously interfere with the operation of the
computer system containing the code, program or sub-program, or to halt, disable or
maliciously interfere with the operation of the Software, code, program, or
sub-program, itself, or (ii) any device, method, or token that permits any person to
circumvent the normal security of the Software or the system containing the code.
	 
	 	(69)	 	“MAN Software” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used to operate, manage or monitor Metropolitan Area Networks
(including campus area networks) or provide or maintain connectivity throughout a
Metropolitan Area Network (or campus area network) to the extent a Party has financial
or operational responsibility for such programs or programming under Schedule
J.1. MAN Software shall include all such programs or programming in use or
required to be used as of the Effective Date, including those set forth in Schedule
A, and those as to which Supplier received reasonable notice and/or access prior to
the Effective Date. MAN Software also includes all such programs or programming
developed and/or introduced by or for ABM on or after the Effective Date to the extent
a Party has financial or operational responsibility for such programs or programming
under Schedule J.1.
	 
	 	(70)	 	“Managed Third Parties” shall mean the ABM Third Party Contractors listed on
Schedule K and any substitute or replacement third party contractors reasonably
designated by ABM, and shall include Fully Managed Third Parties and General Managed
Third Parties, as defined in Section 





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	 	 	 	6.11. The Parties acknowledge and agree that, to the extent ABM has
Software license and/or maintenance contracts with International Business Machines
Corporation and such contracts are listed on Schedule K, International
Business Machines Corporation shall be treated as a Managed Third Party for purposes
of such contracts.
	 
	 	(71)	 	“Management Tools” means all software products and tools (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used by Supplier to deliver and manage the Services.
Management Tools shall include all such products or tools in use as of the Effective
Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier
otherwise received notice and/or access prior to the Effective Date. Management Tools
also shall include all such software products and tools selected and/or developed on or
after the Effective Date to the extent a Party has financial or operational
responsibility for such programs or programming under Schedule J.1.
	 
	 	(72)	 	“Materials” shall mean, collectively, Software, literary works, other works of
authorship, documented specifications, designs, analyses, processes, methodologies,
programs, program listings, programming tools, documentation, reports, drawings,
databases, spreadsheets, financial models and work product.
	 
	 	(73)	 	“Metropolitan Area Networks” or “MANs” means the regional or campus, high-speed
networks, consisting of Equipment, Software, Systems, telecommunications facilities,
lines, interconnect devices and cabling, that are used to create, bundle, connect and
transmit data, voice and video signals to, between or among 1) ABM’s or Eligible
Recipients’ office buildings located within a campus or single metropolitan area, 2)
LANs, and 3) WANs. Metropolitan Area Networks include all MANs in use or required to
be used as of the Effective Date, all MANs created by or for ABM, the Eligible
Recipients or Supplier following the Effective Date and all additions, modifications,
substitutions, upgrades or enhancements to existing or future MANs.
	 
	 	(74)	 	“Minimum Service Level” shall have the meaning given in Schedule G.
	 
	 	(75)	 	“Minimum Service Level Default” means the Supplier’s level of performance for a
particular Service Level fails to meet the applicable Minimum Service Level at any time
during the measurement period.
	 
	 	(76)	 	“Minor Release” means a scheduled release containing small functionality
updates and/or accumulated resolutions to defects or non-conformances made available
since the immediately preceding release (whether Major Release or Minor Release).
Minor Releases shall include “Maintenance Releases” which are supplemental to and made
available between Major Releases and other Minor Releases, issued and provided under
specific vendor service level or maintenance obligations and contain only accumulated
resolutions or mandated changes. These releases are usually identified by a change in
the decimal numbering of a release, such as “7.12” to “7.13.”
	 
	 	(77)	 	“Monitoring Software” shall mean all software programs and programming (and all
modifications, replacements, upgrades, enhancements, documentation, materials and media
related thereto) that are used to monitor and report on IT assets (e.g., software,
computers, systems, networks, network devices or elements, circuits) to the extent a
Party has financial or operational responsibility for such programs or programming
under Schedule J.1. Monitoring Software shall include all such software
programs or programming in use as of the Effective Date, (i) that are set forth in
Schedule A, or (ii) as to which Supplier received reasonable notice and/or
reasonable access prior to the Effective Date. Monitoring Software also shall include
all programs or programming developed and/or introduced on or after the Effective Date
to the extent a Party has financial or operational responsibility for such programs or
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	 	(78)	 	“Monthly Base Charge” means the total Supplier price set forth in Schedule
J associated with the performance of the Services in a given month in accordance
with the Resource Baselines, Service Levels and Supplier responsibilities under this
Agreement (excluding ARCs and RRCs).
	 
	 	(79)	 	“Network Software” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used to deliver and manage Services over networks to the
extent a Party has financial or operational responsibility for such programs or
programming under Schedule J.1. Network Software shall include all such
programs or programming in use as of the Effective Date, (i) that are set forth in
Schedule A, or (ii) as to which Supplier received reasonable notice and/or
reasonable access prior to the Effective Date. Network Software also shall include all
such programs or programming developed and/or introduced on or after the Effective Date
to the extent a Party has financial or operational responsibility for such programs or
programming under Schedule J.1.
	 
	 	(80)	 	“New Advances” shall have the meaning given in Section 11.7(c).
	 
	 	(81)	 	“New Services” means services provided by Supplier to ABM that impose
materially different obligations on Supplier and that require materially different
levels of effort, resources or expense from Supplier and for which there is no current
Resource Baseline or charging methodology.
	 
	 	(82)	 	“Noncompliance” shall mean, with respect to Software, Equipment, Systems or
other contract deliverables to be implemented, designed, developed, delivered,
integrated, installed and/or tested by Supplier, any failure to comply in all material
respects with the Specifications.
	 
	 	(83)	 	“Office Image” means all office automation programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) installed on Authorized User workstations, including office
productivity, word processing, spreadsheet, presentation, messaging, calendaring,
middleware and menu systems, and associated Systems Software. The Office Image shall
include all such programs or programming in use as of the Effective Date, (i) that are
set forth in Schedule A, or (ii) as to which Supplier otherwise received notice
and/or access prior to the Effective Date. The Office Image also shall include all
such programs or programming selected on or after the Effective Date to the extent a
Party has financial or operational responsibility for such programs or programming
under Schedule J.1.
	 
	 	(84)	 	“Operating System Software” means all software programs and programming (and
all modifications, replacements, Upgrades, enhancements, documentation, materials and
media related thereto) that are used to deliver and manage Services on a particular
hardware platform including operating systems (e.g., UNIX, Windows 2000, VM and MVS)
and network operating systems (e.g., NT Server, Windows 2000 and Novell) to the extent
a Party has financial or operational responsibility for such programs or programming
under Schedule J.1. Operating System Software shall include all such programs
or programming in use as of the Effective Date, (i) that are set forth in Schedule
A, or (ii) as to which Supplier otherwise received notice and/or access prior to
the Effective Date. Operating System Software also shall include all such programs or
programming developed and/or introduced after the Effective Date to the extent a Party
has financial or operational responsibility for such programs or programming under
Schedule J.1.
	 
	 	(85)	 	“Out-of-Pocket Expenses” shall mean reasonable and actual out-of-pocket
expenses incurred by Supplier that are approved in advance by ABM and for which
Supplier is entitled to be reimbursed by ABM under this Agreement. Out-of-Pocket
Expenses shall not include Supplier’s overhead costs (or allocations thereof), general
and/or administrative expenses or other mark-ups and shall be net of all rebates and
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	 	(86)	 	“Pass-Through Expenses” shall mean the expenses listed in Schedule J
for which ABM has agreed in advance to be financially responsible, in accordance with
Article 11 of this Agreement, following processing and review of the third
party invoice by Supplier for accuracy. All Services to be performed by Supplier with
respect to Pass-Through Expenses are included in the Monthly Base Charges. Supplier
shall not charge any handling or administrative charge in connection with its
processing or review of such invoices without ABM’s consent.
	 
	 	(87)	 	“Policy and Procedures Manual” shall have the meaning given in Section
9.1(a).
	 
	 	(88)	 	“Prior Agreement” shall mean the agreement between ABM Industries and
International Business Machines Corporation, dated December 20, 2004, for
telecommunication, network and VOIP services.
	 
	 	(89)	 	“Problem Management” means the processes and procedures of tracking and
managing all problems arising in ABM’s information technology (IT) or telecommunication
environment or otherwise in connection with the Services, and resolving those problems
arising from or related to the Services. Such process includes the provision of
information to ABM to allow ABM to resolve problems that are not related to the
Services.
	 
	 	(90)	 	“Problem Management Software” means all software programs and programming (and
all modifications, replacements, Upgrades, enhancements, documentation, materials and
media related thereto) that are used to track and manage problems to the extent a Party
has financial or operational responsibility for such programs or programming under
Schedule J.1. Problem Management Software shall include all such programs or
programming in use as of the Effective Date, (i) that are set forth in Schedule
A, or (ii) as to which Supplier received reasonable notice and/or reasonable access
prior to the Effective Date. Problem Management Software also shall include all such
programs or programming developed and/or introduced on or after the Effective Date to
the extent a Party has financial or operational responsibility for such programs or
programming under Schedule J.1.
	 
	 	(91)	 	“Project” shall have the meaning given in Section 11.8(a).
	 
	 	(92)	 	“Proprietary Information” shall have the meaning given in Section
13.3(a).
	 
	 	(93)	 	“Quality Assurance” means the actions, planned and performed, to provide
confidence that all business processes, Systems, Equipment, Software and components
that influence the quality of the Services are working as expected, both individually
and collectively.
	 
	 	(94)	 	“Reduced Resource Credit” or “RRC” is the credit per Resource Unit that is
applicable whenever the actual consumption of a defined Resource Unit by the Eligible
Recipients falls below the Resource Baseline set forth in Schedule J. The
total credit will be calculated by multiplying the Reduced Resource Credit by the
number of Resource Units below the Resource Baseline actually consumed by the Eligible
Recipients.
	 
	 	(95)	 	“Remote Management Software” means all software programs and programming (and
all modifications, replacements, Upgrades, enhancements, documentation, materials and
media related thereto) that are used to control the operations of and manage from
remote sites IT assets (e.g., software, computers, systems, networks, network devices
or elements, circuits) to the extent a Party has financial or operational
responsibility for such programs or programming under Schedule J.1. Remote
Management Software shall include all such programs or programming in use as of the
Effective Date, (i) that are set forth in Schedule A, or (ii) as to which
Supplier received reasonable notice and/or reasonable access prior to the Effective
Date. Remote Management Software also shall include all such programs or programming
developed and/or introduced on or after the Effective Date to the extent a Party has
financial or operational responsibility for such programs or programming under
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	 	(96)	 	“Renewal Term” shall have the meaning set forth in Section 3.2.
	 
	 	(97)	 	“Reports” shall have the meaning set forth in Section 9.2(a).
	 
	 	(98)	 	“Required Consents” shall mean the consents (if any) required to be obtained:
(i) to assign or transfer to Supplier, or obtain for Supplier the right to use and/or
access, any ABM licensed Third Party Software, Third Party Contracts or Equipment
Leases or Acquired Assets; (ii) to grant Supplier the right to use and/or access the
ABM licensed Third Party Software in connection with providing the Services; (iii) to
grant ABM and the Eligible Recipients the right during the Term and any Termination
Assistance Services period to use and/or access the Supplier Owned Software, Third
Party Software and Equipment acquired, operated, supported or used by Supplier in
connection with providing the Services; (iv) subject to Sections 6.4(c),
6.5(d), and 6.6(c), to assign or transfer to ABM or its designee
Supplier Owned Software, Third Party Software, Third Party Contracts, Equipment leases
or other rights following the Term to the extent provided in this Agreement; and (v)
all other consents required from third parties in connection with Supplier’s provision
of the Services or performance of its obligations hereunder.
	 
	 	(99)	 	“Resource Baselines” shall mean the estimated number of Resource Units to be
required and/or consumed by ABM and the Eligible Recipients during a defined period of
time and included in the Monthly Base Charges. The Resource Baselines as of the
Effective Date are set forth in Schedule J. The Resource Baselines will be
revised from time to time by agreement of the Parties based on the business
requirements of ABM and the Eligible Recipients and the Monthly Base Charges will be
adjusted accordingly.
	 
	 	(100)	 	“Resource Unit” (“RU”) means a particular unit of resource, as described in
Schedule J, which is measured to determine ABM’s actual utilization of such
resource compared to the applicable Resource Baseline for purposes of calculating
“Additional Resource Charges” (“ARCs”) and “Reduced Resource Credits” (“RRCs”) as
described in Schedule J.
	 
	 	(101)	 	“Retained Systems and Business Processes” means those Systems and business
processes of ABM or an Eligible Recipient for which Supplier has not assumed
responsibility under this Agreement (including those provided, managed, operated,
supported and/or used on their behalf by ABM Third Party Contractors). Retained
Systems and Business Processes include equipment and software associated with such
systems and business processes.
	 
	 	(102)	 	“Root Cause Analysis” is the formal process, specified in the Policy and
Procedures Manual, to be used by Supplier to diagnose problems at the lowest reasonable
level so that corrective action can be taken that will eliminate, to the extent
reasonably possible, repeat failures. Supplier shall implement a Root Cause Analysis
as specified in Section 7.3 or as reasonably requested by ABM.
	 
	 	(103)	 	“Service Level Credits” shall have the meaning given in Section 7.2
and Schedule G.
	 
	 	(104)	 	“Service Level Default” means a Minimum Service Level Default or an Increased
Impact Service Level Default.
	 
	 	(105)	 	“Service Levels” shall mean, individually and collectively, the performance
standards for the Services set forth in Schedule G.
	 
	 	(106)	 	“Service Taxes” shall mean all sales, use, excise, and other similar taxes
that are assessed against either Party on the provision of the Services as a whole, or
on any particular Service received by ABM or the Eligible Recipients from Supplier,
excluding Income Taxes.
	 
	 	(107)	 	“Services” means, collectively: (i) the services, functions and
responsibilities described in this Agreement as they may be supplemented, enhanced,
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	 	 	 	accordance with this Agreement; (ii) the Transition Services; (iii) the Termination
Assistance Services; and (iv) any New Services and Projects.
	 
	 	(108)	 	“Software” shall mean all software programs and programming for which a Party
is financially or operationally responsible under Schedule J.1 (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto), including Applications, Antivirus Software, Compilers, Database
Software, Development Tools, MAN Software, Management Tools, Monitoring Software,
Network Software, Operating System Software, Office Images, Problem Management
Software, Remote Management Software, Systems Software, Third Party Software and
Utilities, unless a more specific reference is required by the context.
	 
	 	(109)	 	“Specialized Services” shall have the meaning given in Section 9.9.
	 
	 	(110)	 	“Specifications” shall mean, with respect to Software, Equipment, Systems or
other contract deliverables to be designed, developed, maintained, modified, enhanced,
delivered, integrated, installed and/or tested by Supplier, the technical, design
and/or functional specifications set forth in Schedules E or H, in third party
vendor standard documentation, in a New Services or Project description requested
and/or approved by ABM or otherwise agreed upon in writing by the Parties.
	 
	 	(111)	 	“Strategic Plan” means the plans periodically developed by ABM that set forth
ABM’s key business objectives and requirements and outline its strategies for achieving
such objectives and requirements. ABM may revise the Strategic Plan from time to time.
The Strategic Plan is likely to include both annual and multi-year strategies,
objectives and requirements.
	 
	 	(112)	 	“Subcontractors” shall mean subcontractors (of any tier) of Supplier,
including Shared Subcontractors (as defined in Section 9.12(b)). The initial
list of Subcontractors approved by ABM is set forth on Schedule D.
Schedule D may be amended during the Term in accordance with Section
9.12.
	 
	 	(113)	 	“Supplier Account Executive” shall have the meaning given in Section
8.5 and shall describe the Supplier representative responsible for both the day to
day relationship with ABM as well as the delivery of all Services to ABM.
	 
	 	(114)	 	“Supplier Facilities” means, individually and collectively, the facilities
owned, leased or used by Supplier or its Affiliates or Subcontractors from which any
Services are provided or performed (other than Eligible Recipient Facilities). Supplier
Facilities are listed on Schedule O.2.
	 
	 	(115)	 	“Supplier Owned Materials” shall have the meaning given in Section
14.3(a).
	 
	 	(116)	 	“Supplier Owned Software” means any Software owned by Supplier or its
Affiliates and used to provide the Services.
	 
	 	(117)	 	“Supplier Personnel” shall mean those employees, representatives, contractors,
subcontractors and agents of Supplier, Subcontractors and Supplier Affiliates who
perform any Services under this Agreement. Supplier Personnel shall include
Transitioned Employees.
	 
	 	(118)	 	“System” shall mean an interconnected grouping of manual or electronic
processes, including Equipment, Software and associated attachments, features,
accessories, peripherals and cabling, and all additions, modifications, substitutions,
Upgrades or enhancements to such System, to the extent a Party has financial or
operational responsibility for such System or System components under Schedule
E or Schedule J.1. System shall include all Systems in use as of the
Effective Date, all additions, modifications, substitutions, Upgrades or enhancements
to such Systems and all Systems installed or developed by or for ABM or Supplier
following the Effective Date.





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	 	(119)	 	“System Change” means any change to the standards, processes, controls,
Software, Equipment, Systems or operating environment.
	 
	 	(120)	 	“Systems Software” shall mean all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that perform tasks basic to the functioning of the Equipment and are
required to operate the Applications Software or otherwise support the provision of
Services by Supplier, including operating systems, systems utilities, data security
software, compilers, performance monitoring and testing tools and database managers to
the extent a Party has financial or operational responsibility for such programs or
programming under Schedule J.1. Systems Software shall include all such
programs or programming in use as of the Effective Date, (i) that are set forth on
Schedule A, or (ii) as to which Supplier otherwise received notice and/or
access prior to the Effective Date. Systems Software also shall include all such
programs or programming developed and/or introduced after the Effective Date to the
extent a Party has financial or operational responsibility for such programs or
programming under Schedule J.1.
	 
	 	(121)	 	“Term” shall have the meaning given in Section 3.2.
	 
	 	(122)	 	“Termination Assistance Services” means the termination/expiration assistance
requested by ABM to allow the Services to continue without unnecessary interruption or
adverse effect and to facilitate the orderly transfer of the Services to ABM or its
designee, as such assistance is further described in Section 4.3 and
Schedule I.
	 
	 	(123)	 	“Termination Charge” shall mean the termination charges payable by ABM upon
certain termination events, as set forth in Schedule N. Termination Charges
may include Wind Down Costs and/or a Termination Fee.
	 
	 	(124)	 	“Termination Fee” shall have the meaning given in Section 2(c) of Schedule
N.
	 
	 	(125)	 	“Third Party Contracts” shall mean all agreements between third parties and
ABM or an Eligible Recipient or between third parties and Supplier or its
Subcontractors or Affiliates that have been or will be used to provide the Services,
including those listed on Schedule F.3 as to which Supplier will assume
financial and operational responsibility as of the Commencement Date.
	 
	 	(126)	 	“Third Party Materials” shall mean intellectual property or other Materials
that are owned by third parties and provided under license to Supplier (or Supplier
Affiliates or Subcontractors) or ABM (or Eligible Recipients) and that have been or
will be used or required to be used to provide or receive the Services. Third Party
Materials include Materials owned by Subcontractors and used in the performance of the
Services.
	 
	 	(127)	 	“Third Party Software” shall mean all Software products (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are provided under license or lease to Supplier or ABM or an
Eligible Recipient to the extent a Party has financial or operational responsibility
for such Software products under Schedule J.1. Third Party Software shall
include all such programs or programming in use as of the Effective Date, (i) that are
identified as such on Schedule A and F.4, or (ii) as to which Supplier
received notice and/or access prior to the Effective Date. Third Party Software also
shall include all such programs or programming licensed and/or leased after the
Effective Date.
	 
	 	(128)	 	“Transition Milestone” means each date identified on the Transition Plan as a
milestone by which Supplier shall have completed a certain task or set of tasks in the
Transition Plan in accordance with the Transition Plan.





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	 	(129)	 	“Transition Period” shall mean the period that commences on the Effective Date
and expires 12:00:01 a.m., Pacific Time, on the date specified for the completion of
the Transition Services as specified in the Transition Plan, unless expressly extended
in writing by ABM.
	 
	 	(130)	 	“Transition Plan” means the plan set forth in Schedule H and developed
pursuant to Section 4.2 hereof, which identifies all material transition tasks
and deliverables to be undertaken by Supplier in connection with the transition of all
Services to Supplier, the completion of all Transition Period enhancement projects to
be completed during the Transition Period, and the dates by which each will be
completed by Supplier.
	 
	 	(131)	 	“Transition Services” shall mean the services, functions and responsibilities
described in Section 4.2 to be performed by Supplier during the Transition
Period.
	 
	 	(132)	 	“Transitioned Employees” means the employees of ABM who accept Supplier’s
offer of employment and become employed by Supplier pursuant to Article 8.
Upon being employed by Supplier, such Transitioned Employees shall be deemed to be
Supplier Personnel.
	 
	 	(133)	 	“Upgrade” and its derivatives shall mean updates, renovations, enhancements,
additions and/or new versions or releases of Software or Equipment by Supplier. Unless
otherwise agreed, financial responsibility for the costs, fees and expenses associated
with an Upgrade of Software or Equipment shall be allocated between the Parties in
accordance with Sections 6.4 and 6.5 and Schedule J.1.
	 
	 	(134)	 	“Utilities” shall mean all software programs or programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) which, when used in association with the Operating System Software,
allow a Party to manage, secure access, or make available access to the production
environment (e.g., tools for storage management, security, virus protection, backup and
restoration, software distribution and license management) to the extent a Party has
financial or operational responsibility for such programs or programming under
Schedule J.1. Utilities shall include all such programs or programming in use
as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to
which Supplier received notice and/or access prior to the Effective Date. Utilities
also shall include all such programs or programming developed and/or introduced on or
after the Effective Date to the extent a Party has financial or operational
responsibility for such programs or programming under Schedule J.1.
	 
	 	(135)	 	“WAN Software” means all software programs and programming (and all
modifications, replacements, Upgrades, enhancements, documentation, materials and media
related thereto) that are used to operate, manage or monitor the WAN or provide or
maintain connectivity throughout the WAN to the extent a Party has financial or
operational responsibility for such programs or programming under Schedule J.1.
WAN Software shall include all such programs or programming in use as of the Effective
Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier
received notice and/or access prior to the Effective Date. WAN Software also shall
include all such programs or programming developed or introduced on or after the
Effective Date to the extent a Party has financial or operational responsibility for
such programs or programming under Schedule J.1.
	 
	 	(136)	 	“Wide Area Networks” or “WANs” means long haul, high speed backbone
transmission Networks, consisting of Equipment, Software, Systems, telecommunications
facilities, lines, interconnect devices, cabling, sonet rings, ATM, frame relay, leased
lines and other services as they become available, that are used to create, connect and
transmit data, voice and video signals to within, between or among LANs and/or non-ABM
locations that do business with ABM and for which ABM is responsible for providing
connectivity. The WAN shall include all voice, data and video (image) traffic to be
routed over the WANs. Wide Area Networks shall include all WANs in use as of the
Commencement Date, all WANs created by or for ABM or Supplier following the





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	 	 	 	Commencement Date and all additions, modifications, substitutions, upgrades or
enhancements to existing or future WANs.
	 
	 	(137)	 	“Wind Down Costs” shall mean the amounts described in Section 2(a) and (b) of
Schedule N.






	2.2	 	Other Terms.
	 
	 	 	The terms defined in this Article include the plural as well as the singular and the
derivatives of such terms. Unless otherwise expressly stated, the words “herein,” “hereof,”
and “hereunder” and other words of similar import refer to this Agreement as a whole and not
to any particular Article, Section, Subsection or other subdivision. Article, Section,
Subsection and Attachment references refer to articles, sections and subsections of, and
attachments to, this Agreement. The words “include” and “including” shall not be construed
as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar
day, calendar month and calendar year. As stated in Section 21.3, the word “notice”
and “notification” and their derivatives shall mean notice or notification in writing.
Other terms used in this Agreement are defined in the context in which they are used and
shall have the meanings there indicated.
	 
	2.3	 	Associated Contract Documents.
	 
	 	 	This Agreement includes each of the following schedules and their attached exhibits, all of
which are attached to this Agreement and incorporated into this Agreement by this reference.
Unless otherwise expressly stated, references to specific Schedules include all numbered
subsidiary Schedules (e.g., references to Schedule E include not only Schedule
E, but also Schedules E.1, E.2, E.3, E.4 and E.5).





	 	 	 	 	 
	 
	 	A	 	Software
	 
	 	B	 	Reserved
	 
	 	C	 	Key Supplier Personnel
	 
	 	D	 	Subcontractors
	 
	 	E	 	Statement of Work
	 
	 	E.1	 	Data Center and Server Services
	 
	 	E.2	 	Network Services
	 
	 	E.3	 	VIP and Workstation Services
	 
	 	E.4	 	Help Desk Services
	 
	 	E.5	 	Application Maintenance Services
	 
	 	F.1	 	List of Circuits
	 
	 	F.2	 	Equipment Leases
	 
	 	F.3	 	Third Party Contracts
	 
	 	F.4	 	Third Party Software
	 
	 	G	 	Service Levels
	 
	 	H	 	Transition Plan
	 
	 	I	 	Termination Assistance Services
	 
	 	J	 	Supplier Charges
	 
	 	J.1	 	Financial Responsibility/Asset Ownership Matrix
	 
	 	K	 	Managed Third Parties
	 
	 	L	 	Projects
	 
	 	L.1	 	J.D. Edwards Upgrade Project
	 
	 	M	 	Affected Employees
	 
	 	N	 	Termination Charges
	 
	 	O.1	 	ABM Facilities
	 
	 	O.2	 	Supplier Facilities
	 
	 	O.3	 	ABM Provided Equipment
	 
	 	O.4	 	ABM Rules
	 
	 	O.5	 	ABM Sites
	 
	 	P.1	 	Direct ABM Competitors
	 
	 	P.2	 	Direct Supplier Competitors





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	 	Q	 	Satisfaction Survey
	 
	 	R	 	Reports
	 
	 	S	 	Approved Benchmarkers
	 
	 	T	 	Governance
	 
	 	U	 	Refresh Schedule
	 
	 	V	 	Termination/Expiration Rights
	 
	 	W	 	Form of Companion Agreement







Exhibit 1: Form of Non-Disclosure Agreement

Exhibit 2: Form of Invoice

Exhibit 3: Form of Bill of Sale




	3.	 	TERM
	 
	3.1	 	Initial Term.
	 
	 	 	The initial Term of this Agreement shall commence as of 12:00:01 a.m., Pacific Time on the
Effective Date and continue until 11:59:59 p.m., Pacific Time, on December 31, 2013, unless
this Agreement is terminated as provided herein or extended as provided in Section
3.2 or 4.3(a)(2), in which case the Term shall end at 11:59:59 p.m., Pacific
Time, on the effective date of such termination or the date to which this Agreement is
extended (the “Initial Term”).
	 
	3.2	 	Extension.
	 
	 	 	By giving notice to Supplier no less than ninety (90) days prior to the expiration date of
the Initial Term or any extension, ABM shall have the right to extend the Term for up to two
(2) extension periods to be specified by ABM of up to one (1) year (each, a “Renewal Term”
and together with the Initial Term, the “Term”), each on the terms and conditions set forth
in this Agreement. Notwithstanding the foregoing, the time period between the provision of
ABM’s non-renewal notice to Supplier and Supplier’s cessation of Termination Assistance
Services shall not be shorter than 180 days. No Termination Charges shall be applicable to
any termination on or after the expiration of the Initial Term.
	 
	4.	 	SERVICES
	 
	4.1	 	Overview.






	 	(a)	 	Services. Commencing on the Commencement Date, Supplier shall provide the
Services to ABM, and, upon ABM’s request, to Eligible Recipients designated by ABM. The
Services shall consist of the following, as they may evolve during the Term of the
Agreement or be supplemented, enhanced, modified or replaced, in each case in
accordance with the terms of this Agreement:






	 	(i)	 	The services, functions and responsibilities described in this
Agreement including its Schedules;
	 
	 	(ii)	 	The application management, telecommunication, IT
infrastructure, help desk, and information technology related services,
functions and responsibilities performed in the ordinary course of business
during the twelve (12) months preceding the Commencement Date by ABM Personnel
who were displaced or whose functions were displaced as a result of this
Agreement, even if the service, function, or responsibility is not specifically
described in this Agreement (provided that, in the event of a direct conflict
between Schedule E and the scope of services as described in this
Section 4.1(a)(ii), this Section 4.1(a)(ii) shall not be
construed as altering and/or superseding Schedule E); and






	 	(b)	 	Included Services. If any subtasks not specifically described in this
Agreement are an inherent or necessary part of the Services described herein or are
required for proper performance of such





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	 	 	 	Services, such subtasks shall be deemed to be included within the scope of the
Services to be delivered for the Charges, as if such subtasks were specifically
described in this Agreement.
	 
	 	(c)	 	Required Resources. Except as otherwise expressly provided in this Agreement,
Supplier shall be responsible for providing the facilities, personnel, Equipment,
Software, technical knowledge, expertise and other resources necessary to provide the
Services.
	 
	 	(d)	 	Supplier Responsibility. Supplier shall be responsible for the provision of
the Services in accordance with this Agreement even if, by agreement of the Parties,
such Services are performed or dependent upon services performed by (i) Subcontractors,
(ii) Managed Third Parties to the extent provided in Section 6.11 and
Schedule K, or (iii) non-Supplier Personnel, including ABM employees, for whom
Supplier is financially or operationally responsible under this Agreement; provided
that, ABM will provide reasonable assistance in rectifying any problem affecting
Supplier’s provision of the Services which may be attributed to Managed Third Parties
and/or ABM employees.
	 
	 	(e)	 	Electronic Delivery. To the maximum extent possible, Supplier shall deliver
all Software, documentation, reports and other contract deliverables to ABM and the
Eligible Recipients at the designated ABM Site by electronic transmission or by load
and leave (where no tangible storage media is physically transferred to ABM or the
Eligible Recipients).






	4.2	 	Transition Services.






	 	(a)	 	Transition. During the Transition Period, Supplier shall perform the
Transition Services and provide the deliverables described in the Transition Plan. If
any subtasks not specifically described in the Transition Plan are an inherent or
necessary part of the Transition Services or are required for proper performance of the
Transition Services, such subtasks shall be deemed to be included within the scope of
the Transition Services to be delivered for the transition charges, as if such subtasks
were specifically described in the Transition Plan. During the Transition Period, ABM
will perform those tasks which are designated to be ABM’s responsibility in the
Transition Plan; provided that, ABM shall not be obligated to perform any tasks during
the Transition Period that are not set forth in such Transition Plan; and provided
further that, if any subtasks not specifically described in the Transition Plan are an
inherent or necessary part of the tasks specified in the Transition Plan as ABM’s
responsibility or are required for proper performance of such tasks, such subtasks
shall be deemed to be included in the Transition Plan as ABM responsibilities as if
such subtasks were specifically described therein. Unless otherwise agreed, ABM shall
not incur any charges, fees or expenses payable to Supplier or third parties in
connection with the Transition Services, other than those charges, fees and expenses
specified in Schedule J and those incurred by ABM in connection with its
performance of tasks designated in the Transition Plan as ABM’s responsibility.
	 
	 	(b)	 	Transition Plan. The initial Transition Plan, which is attached as
Schedule H, identifies the transition activities to be performed by Supplier,
the date(s) by which each such activity or deliverable is to be completed (“Transition
Milestones”), and the Deliverable Credits associated with the failure to meet specific
Transition Milestones. Within thirty (30) days after the Effective Date, Supplier
shall deliver to ABM a detailed Transition Plan for ABM’s review, comment and approval.
The proposed detailed Transition Plan shall describe in greater detail the specific
transition activities to be performed by Supplier, but, unless otherwise agreed by ABM,
shall be consistent in all material respects with the initial Transition Plan,
including the activities, deliverables, Transition Milestones and Deliverable Credits
described therein. The detailed Transition Plan shall identify and describe, among
other things, (i) the transition activities to be performed by Supplier and the
significant components and subcomponents of each such activity, (ii) the deliverables
to be completed by Supplier, (iii) the date(s) by which each such activity or
deliverable is to be completed, (iv) Supplier’s plans for the hiring and long term
retention of Transitioned Employees, (v) a process and set of standards acceptable to
ABM to which Supplier





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	 	 	 	shall adhere in the performance of the Transition Services and that will enable ABM
to determine whether Supplier has successfully completed the transition and the
activities and deliverables associated with each Transition Milestone, including
measurable success criteria by Functional Service Areas that Supplier must meet
before transitioning the work any further, (vi) a process for ABM to delay all or
any part of the transition if ABM reasonably determines that any part of the
transition poses a risk or hazard to ABM’s or an Eligible Recipient’s business
interests (without any increase in Supplier’s Charges if ABM’s determination is
based, at least in material part, on Supplier’s failure to perform satisfactorily
its transition obligations), (vii) the contingency or risk mitigation strategies to
be employed by Supplier in the event of disruption or delay, and (viii) any
transition responsibilities to be performed or transition resources to be provided
by ABM.
	 
	 	(c)	 	Performance. Supplier shall perform the Transition Services described in the
Transition Plan in accordance with the Transition Milestones set forth therein.
Supplier shall provide the cooperation and assistance reasonably required or requested
by ABM in connection with ABM’s evaluation or testing of the deliverables set forth in
the Transition Plan. Supplier shall perform the Transition Services so as to avoid or
minimize to the extent reasonably possible (i) any disruption to or adverse impact on
the business or operations of ABM or the Eligible Recipients, (ii) any degradation of
the Services then being received by ABM or the Eligible Recipients, or (iii) any
disruption or interference with the ability of ABM or the Eligible Recipients to obtain
the full benefit of the Services, except as may be otherwise provided in the Transition
Plan. Prior to undertaking any transition activity, Supplier shall discuss with ABM
all known ABM-specific material risks and shall not proceed with such activity until
ABM is reasonably satisfied with the plans with regard to such risks (provided that
neither Supplier’s disclosure of any such risks to ABM, nor ABM’s acquiescence in
Supplier’s plans, shall operate or be construed as limiting Supplier’s responsibilities
under this Agreement); provided that, the Parties acknowledge and agree that any
unreasonable delay in ABM’s providing its agreement to proceed may result in a delay in
Supplier’s ability to meet the schedule set forth in the Transition Plan for which
Supplier will be excused as and to the extent provided in Section 10.2.
Supplier shall identify and resolve, with ABM’s reasonable assistance, any problems
that may impede or delay the timely completion of each task in the Transition Plan that
is Supplier’s responsibility and shall use commercially reasonable efforts to assist
ABM with the resolution of applicable problems that may impede or delay the timely
completion of each task in the Transition Plan that is ABM’s responsibility.
	 
	 	(d)	 	Reports. Supplier shall meet at least weekly with ABM to report on its
progress in performing the Transition Services set forth in the Transition Plan.
Supplier also shall provide written reports to ABM at least weekly, or as otherwise
agreed, regarding such matters, and shall provide oral reports more frequently if
reasonably requested by ABM. Promptly upon receiving any information indicating that
Supplier may not perform its responsibilities or meet the timetable set forth in the
Transition Plan, Supplier shall notify ABM in writing of material delays and shall
identify for ABM’s consideration and approval specific measures to address such delay
and mitigate the risks associated therewith.
	 
	 	(e)	 	Failure to Meet Transition Milestones. The Parties acknowledge and agree that
the Transition Plan specifies various Transition Milestones by which material
Transition activities and/or deliverables are to be completed. If Supplier fails to
meet a Transition Milestone that is identified in Schedule G or H as a
Critical Deliverable, it shall pay to ABM, at ABM’s election, the applicable
Deliverable Credit as liquidated damages and not as a penalty. The Parties agree that
such Deliverable Credits are a reasonable estimate as of the date of this Agreement of
the damages ABM will suffer in the event the respective Transition Milestone is not
met. Notwithstanding the foregoing, if ABM terminates this Agreement for cause in
accordance with Section 4.2(f), ABM shall cease receiving Deliverable Credits
and, subject to Section 18.3, shall be entitled to recover actual damages
incurred in connection with such termination and relating to the period after the
cessation of Deliverable Credits, to the extent ABM is able to prove such damages.
	 
	 	(f)	 	Termination for Cause. Notwithstanding the foregoing, ABM may terminate this
Agreement for cause if (i) Supplier’s failure to comply with its obligations with
respect to Transition Services





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	 	 	 	causes a material disruption to, or otherwise has a
material adverse impact on, critical operations or functions of ABM or the Eligible
Recipients, and Supplier fails to cure such failure within five (5) days after its
receipt of notice, or (ii) Supplier commits any other material breach of its
obligations with respect to Transition Services and fails to cure such breach within
fifteen (15) days after its receipt of notice. In all such events, subject to
Section 18.3, ABM may recover the damages suffered by ABM or Eligible
Recipients in connection with such a termination and relating to the period after the
cessation of Deliverable Credits.






	4.3	 	Termination Assistance Services.






	 	(a)	 	Availability. As part of the Services, and for the Charges set forth in
Sections 4.3(b)(8) and 4.3(b)(9) and Schedule J, Supplier shall
provide to ABM or ABM’s designee the Termination Assistance Services described in
Section 4.3(b) and Schedule I.






	 	(1)	 	Period of Provision. Supplier shall provide such Termination
Assistance Services to ABM or its designee (i) commencing upon notice up to six
(6) months prior to the expiration of the Term or on such earlier date as ABM
may reasonably request and continuing for up to twelve (12) months following
the effective date of the expiration of the Term (as such Term may be extended
pursuant to Section 3.2), (ii) commencing upon any notice of
termination (including notice based upon breach or default by ABM, breach or
default by Supplier or termination for convenience by ABM) of the Term with
respect to all or any part of the Services, and continuing for up to twelve
(12) months following the effective date of such termination of all or part of
the Services, or (iii) commencing upon notice of termination of all or part of
the Services to an Eligible Recipient no longer Controlled by or under common
Control with ABM and continuing for up to twelve (12) months following the
effective date of such termination.
	 
	 	(2)	 	Extension of Services. ABM may elect, upon sixty (60) days
prior notice, to extend the effective date of any expiration/termination of all
or part of the Services, in its sole discretion, provided that the total of all
such extensions will not exceed one hundred and eighty (180) days following the
originally specified effective date without Supplier’s prior written consent.
ABM also may elect, upon thirty (30) days prior notice, to extend the period
following the effective date of any expiration/termination for the performance
of Termination Assistance Services, provided that the period between such
effective date and the completion of all Termination Assistance Services is not
greater than eighteen (18) months. In each case, if ABM provides less than the
applicable prior notice of an extension, Supplier shall nonetheless use
commercially reasonable efforts to comply with ABM’s request and provide the
requested Services and/or Termination Assistance Services.
	 
	 	(3)	 	Firm Commitment. Supplier shall provide Termination Assistance
Services to ABM or its designee regardless of the reason for the expiration or
termination of the Term; provided, if the Agreement is terminated by Supplier
under Section 20.1(b) for ABM’s failure to pay amounts due under this
Agreement, Supplier may require ABM to pay in advance for Termination
Assistance Services provided or performed under this Section 4.3
(including Services provided or performed pursuant to Section
4.3(b)(8)) in accordance with Section 4.3(a)(5). At ABM’s request,
Supplier shall provide Termination Assistance Services directly to an Eligible
Recipient or an Entity acquiring Control of an Eligible Recipient; provided
that, unless otherwise agreed by the Parties, all such Termination Assistance
Services shall be performed subject to and in accordance with the terms and
conditions of this Agreement.
	 
	 	(4)	 	Performance. To the extent ABM requests Termination Assistance
Services, such Services shall be provided subject to and in accordance with the
terms and conditions of this Agreement. Supplier shall perform the
Termination Assistance Services to the same





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	 	 	 	degree of accuracy, quality,
completeness, timeliness, responsiveness and resource efficiency as it provided
and was required to provide the same or similar Services during the Term. The
quality and level of performance of the Services provided by Supplier following
the expiration or termination of the Term as to all or part of the Services or
Supplier’s receipt of a notice of termination or non-renewal shall continue to
meet or exceed the Service Levels and shall not be degraded or deficient in any
respect.
	 
	 	(5)	 	Advance Payment. If ABM is obligated to pay in advance for
Termination Assistance Services, Supplier shall present an invoice for the
estimated Charges for such Termination Assistance Services at least fifteen
(15) days prior to the beginning of the month in which such Services are to be
provided. Subject to Section 12.4 and the succeeding sentences, ABM
shall then pay such Charges on or before the first day of such month. If ABM
disputes and wishes to withhold any such Charges, it shall so notify Supplier
and identify the basis for such dispute within five (5) days of its receipt of
such invoice. In no event shall ABM withhold the base charges for the on-going
Services provided under Section 4.3(b)(8). The Parties shall use
commercially reasonable efforts to resolve any dispute relating to the Charges
for Termination Assistance Services within five (5) days of ABM stating the
basis for its dispute. If such dispute is not resolved within such time
period, then the dispute shall be submitted to the senior executives of each
Party in accordance with Section 19.1 for prompt resolution. The
estimated Charges shall then be reconciled with the actual Charges for
Termination Assistance Services provided in such month, and any additional
Charges or credits will be reflected on the next invoice delivered after the
end of such month. If, in such event, ABM fails to pay undisputed Charges for
Termination Assistance Services on or before the first day of the month and
fails to cure such default within thirty (30) days of notice from Supplier of
its intention to terminate on this basis, Supplier may terminate the
relationship and thereafter be relieved of any further responsibility to
provide Termination Assistance Services.






	 	(b)	 	Scope of Service. As part of the Termination Assistance Services, Supplier
will timely transfer the control and responsibility for all application management,
telecommunication, IT infrastructure, help desk, and information technology functions
and Services previously performed by or for Supplier to ABM, Eligible Recipients and/or
ABM’s designees by the execution of any documents reasonably necessary to effect such
transfers. Additionally, Supplier shall provide commercially reasonable assistance
requested by ABM to allow:






	 	•	 	the Systems and processes associated with the Services to operate efficiently;
	 
	 	•	 	the Services to continue without unnecessary interruption or adverse effect; and
	 
	 	•	 	the orderly transfer of the Services to ABM and/or its designee(s).






	 	 	 	The Termination Assistance Services shall include, as requested by ABM, the
Services, functions and responsibilities set forth on Schedule I. In
addition, in connection with such termination or expiration, Supplier will provide
the following assistance and Services at ABM’s direction:






	 	(1)	 	General Support. Supplier shall (i) assist ABM and/or its
designee in developing a written transition plan for the transition of the
Services to ABM or ABM’s designee, which plan shall include capacity planning,
facilities planning, human resources planning, telecommunications planning and
other planning necessary to effect the transition, (ii) perform programming and
consulting services as requested to assist in implementing the transition plan,
(iii) familiarize personnel designated by ABM in the use of any Equipment,
Software, Systems, Materials or tools used in connection with the
provision of the Services, (iv) catalog all Software, ABM Data, Equipment,
Materials, Third Party Contracts and tools used to provide the Services, (v)
provide machine readable and printed listings and associated documentation
for source code for Software





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	 	 	 	owned by ABM and source code to which ABM is
entitled under this Agreement and assist in its re-configuration, (vi)
analyze and report on the space required for the ABM Data and the Software
needed to provide the Services; (vii) assist in the execution of a parallel
operation, data migration and testing process until the successful
completion of the transition to ABM or its designee has been successfully
completed, (viii) create and provide copies of the ABM Data in the format
and on the media reasonably requested by ABM, (ix) provide a complete and
up-to-date, electronic copy of the Policy and Procedures Manual in the
format and on the media reasonably requested by ABM, and (x) provide other
technical assistance as requested by ABM.
	 
	 	(2)	 	Hiring.






	 	(i)	 	ABM or its designee shall be permitted to
undertake, without interference from Supplier, Supplier Subcontractors
(subject to Section 4.3(b)(2)(ii)) or Supplier Affiliates
(including counter-offers), to hire, effective after the later of the
termination of the Term or completion of any Termination Assistance
Services requested under Section 4.3(b)(8), any Supplier
Personnel primarily assigned to the performance of Services within the
12-month period prior to the expiration or termination date. Supplier
shall waive, and shall cause its Affiliates to waive, their rights, if
any, under contracts with such personnel restricting the ability of
such personnel to be recruited or hired by ABM or its designee. ABM or
its designee shall have reasonable access to such Supplier Personnel
for interviews, evaluations and recruitment. ABM shall endeavor to
conduct the above-described hiring activity in a manner that is not
unnecessarily disruptive, in Supplier’s reasonable determination, of
the performance by Supplier of its obligations under this Agreement.
	 
	 	(ii)	 	With respect to Subcontractors, Supplier shall
use commercially reasonable efforts to (A) obtain for ABM, the Eligible
Recipients and ABM’s designees the rights specified in this
Sections 4.3(b)(2), and (B) provide that the such rights are
not subject to subsequent Subcontractor approval or the payment by ABM,
the Eligible Recipients or ABM’s designee of any fees. If Supplier is
unable to obtain any such rights with respect to Subcontractors, it
shall notify ABM in advance and shall not use such Subcontractors
without ABM’s approval (and absent such approval, Supplier’s use of any
such Subcontractors shall obligate Supplier to obtain or arrange, at no
additional cost to ABM, the rights specified in this Section
4.3(b)(2), for ABM, the Eligible Recipients and ABM’s designees
upon expiration or termination).






	 	(3)	 	Software. Supplier shall provide, and hereby grants to ABM,
the Eligible Recipients and/or ABM’s designee certain license, sublicense
and/or other rights to certain Software and other Materials used by Supplier,
Supplier Affiliates or Subcontractors in performing the Services, all as
described in Section 14.6.
	 
	 	(4)	 	Equipment. Subject to Section 6.5(d) and (g), ABM,
Eligible Recipients or ABM’s designee shall have the right (but not the
obligation) to purchase, or assume the lease for, any Equipment owned or leased
by Supplier that is used on a dedicated basis by Supplier, Supplier
Subcontractors or Supplier Affiliates to perform the Services. Such Equipment
shall be transferred in good working condition, reasonable wear and tear
excepted (other than Equipment transferred to Supplier by ABM which shall be in
a condition at least as good as the condition in which it was provided to
Supplier), as of the expiration or termination date or the completion of any
Services requiring such Equipment requested
by ABM under Section 4.3(b)(8), whichever is later. Supplier shall
maintain such Equipment through the date of transfer so as to be eligible
for the applicable manufacturer’s maintenance program at no additional
charge to ABM. In the case of Supplier -owned equipment, Supplier shall
grant to ABM or its designee a warranty of





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	 	 	 	title and a warranty that such
Equipment is free and clear of all liens and encumbrances. Such conveyance
by Supplier to ABM or its designee shall be at fair market value. At ABM’s
request, the Parties shall negotiate in good faith and agree upon the form
and structure of the purchase. In the case of Supplier leased Equipment,
Supplier shall (i) represent and warrant that to its knowledge, the lease is
not in default, (ii) represent and warrant that all payments thereunder have
been made through the date of transfer, and (iii) notify ABM of any lessor
defaults of which it is aware at the time.
	 
	 	(5)	 	ABM Facilities, Equipment and Software. Supplier shall vacate
the ABM Facilities and return to ABM, if not previously returned, all ABM owned
Equipment, ABM leased Equipment, ABM Owned Software and ABM licensed Software,
in condition at least as good as the condition thereof on the Commencement
Date, ordinary wear and tear excepted. Such Equipment and Software shall be
returned at the expiration or termination date or the completion of any
Services requiring such Equipment and Software requested by ABM under
Section 4.3(b)(8), whichever is later. Supplier shall vacate the ABM
Facilities and remove, unless otherwise required under this Agreement, all
Supplier owned Equipment, Supplier leased Equipment, Supplier Owned Software,
Supplier licensed Third Party Software and other Supplier property within
fourteen (14) days after the expiration date, termination date or date upon
which such space is no longer required to perform the Services or Termination
Assistance Services requested by ABM, whichever is later.
	 
	 	(6)	 	Supplier Subcontracts and Third Party Contracts. Supplier
shall inform ABM of subcontracts or Third Party Contracts primarily used by
Supplier, Supplier Subcontractors or Supplier Affiliates to perform the
Services. Subject to Sections 6.4(c), 6.5(d), and 6.6(c), Supplier
shall, at ABM’s request, cause any such Subcontractors, Supplier Affiliates, or
third party contractors to permit ABM or its designee to assume prospectively
any or all such contracts or to enter into new contracts with ABM or its
designee on substantially the same terms and conditions, including price.
Supplier shall so assign the designated subcontracts and Third Party Contracts
to ABM or its designee as of the expiration or termination date or the
completion of any Termination Assistance Services requiring such subcontracts
or Third Party Contracts requested by ABM under Section 4.3(b)(8),
whichever is later. Unless otherwise agreed by ABM, there shall be no charge
or fee imposed on ABM or its designee by Supplier or its Subcontractors,
Affiliates or third party contractors for such assignment. Supplier shall (i)
represent and warrant that to its knowledge, it is not in default under such
subcontracts and Third Party Contracts, (ii) represent and warrant that all
payments thereunder through the date of assignment are current, and (iii)
notify ABM of any Subcontractor or third party contractors defaults with
respect to such subcontracts and Third Party Contracts of which it is aware at
the time.
	 
	 	(7)	 	Other Subcontracts and Third Party Contracts. In addition to
its obligations under Section 4.3(b)(6), Supplier shall make available
to ABM or its designee, pursuant to reasonable terms and conditions, any
Subcontractor or third party services then being utilized by Supplier in the
performance of the Services. Supplier shall retain the right to utilize any
such Subcontractor or third party services in connection with the performance
of services for any other Supplier customer. ABM and the Eligible Recipients
shall retain the right to contract directly with any Subcontractor or third
party previously utilized by Supplier to perform any Services or to assume
Supplier’s contract with such Subcontractor or third party to the extent
provided in Section 4.3(b)(6).
	 
	 	(8)	 	Extension of Services. For a period of twelve (12) months
following the expiration or termination date, Supplier shall provide to the
Eligible Recipient(s), at ABM’s request, any or all of the Services being
performed by Supplier prior to the expiration or termination date, including
those Services described in Section 4.1 and Schedule E;
provided that ABM may extend the period for the provision of such Services for
up to six





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	 	 	 	(6) additional months in accordance with Section 4.3(a)(2).
ABM shall deliver notice to Supplier specifying the Services to be provided by
Supplier pursuant to this Section 4.3(b)(8) and the period for which
such Services are expected to be required on or before the following: (i)
ninety (90) days prior to the expiration of the Term or any extension period in
the case of contract expiration; (ii) sixty (60) days prior to the termination
date in the case of a termination pursuant to Sections 20.2, 20.3 or
20.4; or (iii) within thirty (30) days after delivery of the notice of
termination in all other cases; provided that, subject to Section
4.3(a)(2), ABM may extend or shorten the period for the performance of such
Services by delivering notice to Supplier at least thirty (30) days prior to
the scheduled completion date for such Services. To the extent ABM requests
such Services, ABM will pay Supplier the Charges specified in Schedule
J that ABM would have been obligated to pay Supplier for such Services if
this Agreement had not yet expired or been terminated. To the extent ABM
requests a portion (but not all) of the Services included in a particular
Charge, the amount to be paid by ABM will be equitably adjusted in proportion
to the portion of the Services included in the applicable Charge that Supplier
will not be providing or performing.
	 
	 	(9)	 	Rates and Charges. Except as provided in Section
4.3(b)(8), if ABM requests that Supplier provide or perform Termination
Assistance Services in accordance with this Agreement, ABM shall pay Supplier
the rates and charges specified in Schedule J for the additional
Supplier Personnel or resources required to perform such Termination Assistance
Services. To the extent rates and charges for such Supplier Personnel or
resources are not specified in Schedule J, ABM shall pay Supplier a
negotiated fee, which shall not exceed Supplier’s then-current commercially
available rates. If the Termination Assistance Services requested by ABM can
be provided by Supplier using Supplier Personnel and resources already assigned
to ABM (and such personnel possess the skills required to perform the requested
work), there will be no additional charge to ABM for such Termination
Assistance Services. If the Termination Assistance Services requested by ABM
cannot be provided by Supplier using personnel and resources already assigned
to ABM without impacting Supplier’s ability to meet the Service Levels and its
other obligations under the Agreement, ABM, in its sole discretion, may forego
or delay any work activities or temporarily or permanently adjust the work to
be performed by Supplier, the schedules associated therewith or the Service
Levels to permit the performance of such Termination Assistance Services using
such personnel or resources.
	 
	 	(10)	 	Proprietary Communications Network. If Supplier uses a
proprietary communications network to provide Services to ABM or the Eligible
Recipients, then for a period of no more than eighteen (18) months following
the expiration or termination date, ABM may request that Supplier continue to
provide such proprietary communications network and other Network Services at
the rates, and subject to the terms and conditions, set forth in this
Agreement.






	 	(c)	 	Survival of Terms. Pursuant to Section 21.10, this Section 4.3
shall survive termination/expiration of the Term.






	4.4	 	Use of Third Parties.






	 	(a)	 	Right of Use. Subject to Section 13(d) of Schedule J, nothing
in this Agreement shall be construed as a requirements contract and this Agreement
shall not be interpreted to prevent ABM or any Eligible Recipient from obtaining from
third parties (“ABM Third Party Contractors”),
or providing to itself, any or all of the Services described in this Agreement or
any other services. Nor shall anything in this Agreement be construed or
interpreted as limiting ABM’s right or ability during the Term to add or delete
Eligible Recipients or to increase or decrease its demand for Services. To the
extent ABM or an Eligible Recipient obtains from ABM Third Party Contractors, or
provides to itself, any of the Services in accordance with the terms of this





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	 	 	 	Agreement, the Charges will be equitably adjusted downward in accordance with
Schedule J. Similarly, to the extent ABM adds or deletes Eligible
Recipients or increases or decreases its demand for Services, the amount to be paid
to Supplier by ABM will be adjusted in accordance with Schedule J and the
rates specified therein.






	 	(b)	 	Supplier Cooperation. Supplier shall reasonably cooperate with and work in
good faith with ABM or ABM Third Party Contractors as described in Schedule E
or requested by ABM and at no additional charge to ABM. Such cooperation may include:
(i) timely providing access to any facilities being used to provide the Services, as
reasonably necessary for ABM personnel or ABM Third Party Contractors to perform the
work assigned to them; (ii) timely providing reasonable electronic and physical access
to the business processes and associated Equipment, Software and/or Systems to the
extent necessary and appropriate for ABM personnel or ABM Third Party Contractors to
perform the work assigned to them; (iii) timely providing written requirements,
standards, policies or other documentation for the business processes and associated
Equipment, Software or Systems procured, operated, supported or used by Supplier in
connection with the Services; or (iv) any other cooperation or assistance reasonably
necessary for ABM personnel or ABM Third Party Contractors to perform the work in
question. ABM personnel and ABM Third Party Contractors shall comply with Supplier’s
reasonable security and confidentiality requirements, and shall, to the extent
performing work on Software, Equipment or Systems for which Supplier has operational
responsibility, comply with Supplier’s reasonable standards, methodologies, and
procedures.
	 
	 	(c)	 	Notice by Supplier. Supplier shall expeditiously notify ABM when it becomes
aware that an act or omission of an ABM Third Party Contractor will cause, or has
caused, a problem or delay in providing the Services, and shall use commercially
reasonable efforts to work with ABM and the ABM Third Party Contractor to prevent or
circumvent such problem or delay. Supplier shall cooperate with ABM and ABM Third
Party Contractors to resolve differences and conflicts arising between the Services and
other activities undertaken by ABM or ABM Third Party Contractors.






	4.5	 	Companion Agreements






	 	(a)	 	At ABM’s request, the terms of this Master Agreement shall be incorporated by
reference into individual Companion Agreements, which shall be executed by
International Business Machines Corporation or an Affiliate of International Business
Machines Corporation and ABM Industries Incorporated or an Eligible Recipient. Unless
otherwise agreed, the form of the Companion Agreement shall be as set forth in
Schedule W. All Services shall be provided by International Business Machines
Corporation or the applicable Affiliate of International Business Machines Corporation
pursuant to this Master Agreement or an executed Companion Agreement. Unless and to
the extent an individual Companion Agreement expressly provides otherwise, each
Companion Agreement shall incorporate by reference the terms and conditions of this
Master Agreement and shall not be construed as altering or superseding the rights and
obligations of the Parties under this Master Agreement. If requested by ABM, the
Parties will execute a Companion Agreement in a form acceptable to each Party.
	 
	 	(b)	 	The Supplier Account Manager (and his or her designees(s)) shall remain
responsible for the administration of this Master Agreement and the individual
Companion Agreements on a day-to-day basis on behalf of Supplier.
	 
	 	(c)	 	The ABM Relationship Manager (and his or her designees(s)) shall remain
responsible for the administration of this Master Agreement and the individual
Companion Agreements on a day-to-day basis on behalf of ABM and the Eligible
Recipients.





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	5.	 	REQUIRED CONSENTS
	 
	5.1	 	Supplier Responsibility.
	 
	 	 	At no additional cost to ABM, Supplier shall undertake all administrative activities
necessary to obtain all Required Consents. At Supplier’s request, ABM will cooperate with
Supplier in obtaining the Required Consents by executing certain ABM approved written
communications and other documents prepared or provided by Supplier. With ABM’s approval,
Supplier shall exercise for the benefit of ABM any rights Supplier has to utilize or
transfer license rights or other applicable rights under Supplier’s existing third party
licenses, leases or contracts.






	5.2	 	Financial Responsibility.
	 
	 	 	Supplier shall pay all transfer, relicensing or termination fees or expenses associated with
obtaining any Required Consents or, subject to Section 5.4, terminating any licenses
or agreements as to which Supplier is unable to obtain such Required Consents (provided
that, with respect to Third Party Software, Third Party Contracts or Equipment leases
procured by ABM after the Effective Date, ABM shall be responsible for obtaining any
Required Consents and paying any fees or expenses associated therewith in connection with
its procurement of such license or agreement).






	5.3	 	Contingent Arrangements.
	 
	 	 	If, despite using commercially reasonable efforts, Supplier is unable to obtain a Required
Consent, then, unless and until such Required Consent is obtained, Supplier shall use
commercially reasonable efforts to determine and adopt, subject to ABM’s reasonable prior
approval, such alternative approaches as are necessary and sufficient to provide the
Services without such Required Consent. If such alternative approaches are required for a
period longer than ninety (90) days following the Commencement Date, the Parties shall
equitably adjust the terms and reduce the prices specified in this Agreement to reflect any
additional costs being incurred by ABM and any Services not being received by ABM and the
Eligible Recipients.






	5.4	 	Failure to Obtain Required Consents.
	 
	 	 	If, despite using commercially reasonable efforts for a reasonable period of time, Supplier
is unable to obtain a Required Consent, the Parties shall take such actions and execute and
deliver such documents as may be necessary to cause the Parties to realize the practical
effects of the allocation of responsibilities intended to be effected by this Agreement.
If, however, Supplier fails to obtain any Required Consent within ninety (90) days of the
Commencement Date and such failure has a material adverse impact on the use or enjoyment of
the Services by ABM or the Eligible Recipients, ABM may terminate this Agreement or any
affected portions thereof without payment of any Termination Charges. Except as otherwise
expressly provided herein, the failure to obtain any Required Consent will not relieve
Supplier of its obligations under this Agreement and Supplier will not be entitled to any
additional compensation or reimbursement amounts in connection with obtaining or failing to
obtain any Required Consent or implementing any alternative approach.






	6.	 	FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF
SERVICES
	 
	6.1	 	Service Facilities






	 	(a)	 	Service Facilities.






	 	(i)	 	The Services shall be provided at or from (i) the ABM
Facilities described on Schedule O.1, (ii) the Supplier Facilities
described on Schedule O.2 (as such Schedule is amended





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	 	 	 	from
time to time with ABM’s prior approval), each of which must be approved in
advance by ABM, or (iii) any other service location approved by Supplier and
ABM. Supplier shall provide ABM with reasonable notice of its intention to
relocate the provision of a Service to a new or different Supplier Facility not
identified on Schedule O.2 and shall obtain ABM’s approval prior to
doing so (provided that Supplier shall not be obligated to obtain ABM’s
approval with respect to Supplier Facilities to which Section
6.1(a)(ii) applies). Supplier shall notify ABM in advance of any new or
additional Service Taxes for which ABM would be financially responsible
associated with the provision of Services from new or changed service
location(s). ABM shall be entitled to withhold approval of any such new or
changed service location in its sole discretion if the delivery of Services
from such new or changed service location would (i) result in new or additional
Services Taxes for which ABM would be financially responsible under this
Agreement (unless Supplier assumes financial responsibility for such new or
additional Service Taxes), (ii) result in the delivery of Services from
locations or by personnel outside the United States, or (iii) have an adverse
impact or require changes as described in Section 9.6(c).
	 
	 	(ii)	 	Notwithstanding Section 6.1(a)(i) above, Supplier may
relocate Services from an approved Supplier Facility in the United States to
another Supplier Facility in the United States, provided: (A) Supplier provides
notice to ABM at least sixty (60) days prior to the effective date of such
relocation; (B) the Supplier Facility to which the Services are to be relocated
is comparable or superior in all material respects to the approved Supplier
Facility from which such Services had previously been performed; (C) the
Supplier Facility to which the Services are to be relocated complies with all
relevant requirements and Supplier obligations under this Agreement; (D) the
Supplier Facility to which the Services are to be relocated presents no greater
risk from a disaster recovery or business continuity perspective; (E) Supplier
promptly provides ABM with information and documentation demonstrating that
such Supplier Facility complies with the criteria specified in Subsections (B),
(C) and (D) and provides ABM with a reasonable opportunity to independently
verify such compliance; (F) Supplier remedies any known non-compliance with the
criteria specified in Subsections (B), (C) and (D) prior to relocating the
Services in question; and (G) Supplier agrees to be financially responsible for
any additional costs, taxes or expenses related to or resulting from such
relocation, including any costs or expenses (e.g., audit or Sarbanes-Oxley
compliance costs) incurred or experienced by ABM or any Eligible Recipient as a
result of such relocation; provided that, within thirty (30) days after ABM has
been notified of the potential relocation, ABM notifies Supplier of any ABM
controlled costs and expenses (excluding any taxes) that will be incurred or
experienced by ABM or any Eligible Recipient as a result of such relocation.






	 	(b)	 	ABM Facilities. ABM shall provide Supplier with the use of and access to the
ABM Facilities (or equivalent space) described in Schedule O.1 for the periods
specified therein solely as necessary for Supplier to perform its obligations under
this Agreement. All ABM owned or leased assets provided for the use of Supplier under
this Agreement shall remain in ABM Facilities unless ABM otherwise agrees. In addition,
all improvements or modifications to ABM Facilities requested by Supplier shall be (i)
subject to review and approval in advance by ABM, (ii) in compliance with
ABM’s then-current policies, standards, rules and procedures, and (iii) performed by
and through ABM at then current industry commercial rates and at Supplier’s expense.
Supplier acknowledges and agrees that the facilities to be provided by ABM are
sufficient for performing the Services and for satisfying Supplier’s
responsibilities under this Agreement. THE ABM FACILITIES ARE PROVIDED BY ABM TO
SUPPLIER ON AN AS-IS, WHERE-IS BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS AGREEMENT, ABM EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, AS TO
THE ABM FACILITIES, OR THEIR CONDITION OR SUITABILITY FOR USE BY SUPPLIER.





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	 	(c)	 	Furniture, Fixtures and Equipment. At the ABM Facilities described in
Schedule O.1, ABM shall provide office space and office furniture for up to the
number of Supplier Personnel specified in Schedule O.1 for the period(s)
specified in Schedule O.1. The office space and office furniture provided by
ABM for the use of Supplier Personnel will be generally comparable to the office space
and office furniture provided to (i) the Transitioned Employees prior to the
Commencement Date or (ii) the then-standard office space and office furniture provided
to similarly situated ABM employees. Other than as provided above and in Schedule
O.1, Supplier shall be financially responsible for providing all other office
space, office furniture and fixtures needed by Supplier or Supplier Personnel
(including Transitioned Employees) to provide the Services, and for all upgrades,
replacements and additions to such office furniture or fixtures; provided that such
office furniture and fixtures must be approved in advance by ABM and meet ABM’s
then-current standards; and provided further that Supplier shall give reasonable
consideration to the purchase and use of surplus ABM furniture and fixtures to the
extent available. Notwithstanding the foregoing, to the extent Supplier demonstrates
that unanticipated increases in the volumes of certain Services can be reasonably met
only by locating additional Supplier Personnel at certain ABM Facilities and that such
additional Supplier Personnel cannot be reasonably accommodated within the space in
such facilities then assigned to Supplier, ABM shall use commercially reasonable
efforts to provide Supplier with additional office space and office furniture in such
ABM Facilities to the extent vacant space and excess furniture are then available in
such ABM Facilities; provided that Supplier shall use commercially reasonable efforts
to minimize the extent to which additional office space and office furniture are
required and the cost to ABM associated therewith. Supplier Personnel using the office
facilities provided by ABM will be accorded reasonable access to the communications
wiring in such facilities (including fiber, copper and wall jacks and reasonable access
to the ABM data networks, subject to Section 6.1(d)) and the use of certain
shared office equipment and services, such as photocopiers, local and long distance
telephone service for ABM-related calls, telephone handsets, mail service, office
support service (e.g., janitorial), heat, light, and air conditioning; provided that
such access and usage shall be solely for and in connection with the provision of
Services by such Supplier Personnel; and provided further that Supplier shall reimburse
ABM for the additional incremental costs incurred by ABM or the Eligible Recipients if
and to the extent Supplier’s technology solution, service delivery model and/or
inefficiency cause its usage or consumption of such resources to exceed verifiable
historical levels. Subject to Section 6.5(a), Supplier shall be responsible for
providing all other office related equipment and services needed by Supplier or
Supplier Personnel at such ABM Facilities to provide the Services, and for upgrades,
improvements, replacements and additions to such equipment or services.
	 
	 	(d)	 	Supplier’s Responsibilities Regarding the ABM Network. To the extent any
Equipment provided or used by Supplier or Supplier Personnel is connected directly to
the network(s) of ABM or any Eligible Recipient, such Equipment shall be (i) subject to
review and approval in advance by ABM, (ii) in compliance with ABM’s then-current
security policies, architectures, standards, rules and procedures, and (iii) in
compliance with ABM’s then-current hardware and software specifications. Supplier
shall not install or permit the installation of any other software on such Equipment
without ABM’s prior approval.
	 
	 	(e)	 	Supplier’s Responsibilities. Except as provided in Sections 6.1(a),
(b) and (c) and Section 6.5, Supplier shall be responsible for
providing all furniture, fixtures, Equipment, space and other
facilities required to perform the Services and all upgrades, improvements,
replacements and additions to such furniture, fixtures, Equipment, space and
facilities. Without limiting the foregoing, Supplier shall (i) provide all
maintenance, site management, site administration and similar services for the
Supplier Facilities, and (ii) provide uninterrupted power supply services for the
Software, Equipment, Systems and facilities as described in Schedule O.2.
	 
	 	(f)	 	Physical Security. Except as provided below, ABM shall be responsible for
physical security at the ABM Facilities listed in Schedule O.1; provided that
Supplier will be administratively responsible for access and control of the areas that
Supplier is using in performing the Services and Supplier shall not permit any person
to have access to, or control of, any such area unless such





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	 	 	 	access or control is
permitted in accordance with control procedures approved by ABM. Supplier shall be
solely responsible for compliance by Supplier Personnel with such control procedures,
including obtaining advance approval to the extent required.
	 
	 	 	 	Notwithstanding the foregoing, Supplier shall be responsible for physical security
at ABM Facilities used exclusively by Supplier (i.e., the ABM data center, alternate
disaster recovery site and tape vault); provided that ABM shall retain
responsibility for the provision of any security guards assigned to such ABM
Facilities and the maintenance of the key card systems, surveillance cameras and
other security devices installed at such ABM Facilities.
	 
	 	(g)	 	Standards, Requirements and Procedures at ABM Facilities. Except as provided
in Section 6.1(f), Supplier shall adhere to and enforce, and cause Supplier
Personnel to adhere to and enforce, the operational, safety and security standards,
requirements and procedures described in the applicable lease and/or then in effect at
the ABM Facilities, as such standards, requirements and procedures may be modified from
time to time by ABM and communicated to Supplier in accordance with Section
6.3(a). Supplier shall regularly advise ABM of other known operational, safety and
security practices, procedures and safeguards where those practices, procedures and
safeguards are of a higher standard than those contemplated in this Agreement.
	 
	 	(h)	 	Employee Services. Subject to applicable security requirements, ABM will
permit Supplier Personnel to use certain employee facilities (e.g., designated parking
facilities, cafeteria, and common facilities) at the ABM Facilities that are generally
made available to the employees and contractors of ABM or the Eligible Recipients. The
employee facilities in question and the extent of Supplier Personnel’s permitted use
shall be specified in writing by ABM and shall be subject to modification without
advance notice in ABM’s sole discretion. Supplier Personnel will not be permitted to
use employee facilities designated by ABM for the exclusive use of certain ABM or
Eligible Recipient employees and will not be entitled to the provision or reimbursement
of paid parking.
	 
	 	(i)	 	Use of ABM Facilities. Unless Supplier obtains ABM’s prior written agreement,
which may be withheld by ABM in its sole discretion, Supplier shall use the ABM
Facilities, and the Equipment and Software located therein, only to provide the
Services to ABM and the Eligible Recipients. ABM reserves the right to relocate an ABM
Facility from which the Services are then being provided by Supplier to another
geographic location; provided that, in such event, ABM will provide Supplier with
comparable space in the new location. In such event, ABM shall reimburse Supplier for
any reasonable incremental Out-of-Pocket Expenses incurred by Supplier in moving to the
new location and/or making any facility or network upgrades or changes required to
perform the Services from such location; provided that Supplier notifies ABM of such
incremental expenses, obtains ABM’s approval prior to incurring such expenses; and uses
commercially reasonable efforts to minimize such expenses.
	 
	 	 	 	ABM also reserves the right to direct Supplier to cease using all or part of the
space in an ABM Facility from which the Services are then being provided by Supplier
and to thereafter use such space for its own purposes. In such event, ABM shall
reimburse Supplier for any reasonable incremental Out-of-Pocket Expenses incurred
by Supplier in leasing substitute space, moving to
the new location and/or making any facility or network upgrades or changes required
to perform the Services from such location; provided that such direction is not
expressly contemplated in this Agreement and that Supplier notifies ABM of such
incremental expenses, obtains ABM’s approval prior to incurring such expenses, and
uses commercially reasonable efforts to minimize such expenses.
	 
	 	 	 	In both cases, Supplier shall be relieved of responsibility if and to the extent
Supplier is unable to provide the Services in accordance with the Service Levels
during the actual relocation of Supplier’s operations; provided that such relocation
is not expressly contemplated in this Agreement as of the Effective Date and that
Supplier (1) uses commercially reasonable efforts to





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	 	 	 	notify ABM in advance of its
inability to perform during such relocation, (2) gives ABM a reasonable opportunity
to address Supplier’s concerns and thereby avoid such Supplier non-performance, (3)
identifies and pursues commercially reasonable means to avoid or mitigate the impact
of such relocation and (4) uses commercially reasonable efforts to perform
notwithstanding such relocation.






	 	(j)	 	Conditions for Return. When the ABM Facilities are no longer to be used by
Supplier as contemplated by Section 6.1 or are otherwise no longer required for
performance of the Services, Supplier shall notify ABM as soon as practicable and shall
vacate and return such ABM Facilities (including any improvements to such facilities
made by or at the request of Supplier) to ABM in substantially the same condition as
when such facilities were first provided to Supplier, subject to reasonable wear and
tear.
	 
	 	(k)	 	No Violation of Laws. Supplier shall (i) treat, use and maintain the ABM
Facilities in a reasonable manner, and (ii) ensure that neither Supplier nor, subject
to Section 9.12, any of its Subcontractors commits, and use reasonable efforts
to ensure that none of its business visitors or invitees commits, any act in violation
of any Laws in such Supplier occupied ABM Facility or any act in violation of ABM’s
insurance policies or in breach of ABM’s obligations under the applicable real estate
leases in such Supplier occupied ABM Facilities (in each case, to the extent Supplier
has received notice of such insurance policies or real estate leases or should
reasonably be expected to know of such obligations or limitations).






	6.2	 	Use of Supplier Facilities.
	 
	 	 	During the Term, Supplier will provide to ABM at no charge (i) reasonable periodic use of
Supplier facilities at Supplier sites where the Services are being performed and (ii) access
to reasonable work/conference space at Supplier sites where the Services are being
performed, for the conduct of ABM’s business directly related to Supplier’s performance of
the Services.






	6.3	 	ABM Rules/Employee Safety.






	 	(a)	 	ABM Rules and Compliance. In performing the Services and using the ABM
Facilities, Supplier shall observe and comply with all ABM policies, rules and
regulations applicable to ABM Facilities or the provision of the Services (and all
additions or modifications thereto), including those set forth on Schedule O.4
and those applicable to specific ABM Sites (collectively, “ABM Rules”). Supplier shall
be deemed to have notice of ABM Rules (and additions or modifications thereto)
communicated directly to Supplier or Supplier Personnel, disclosed to Supplier or
Supplier Personnel in writing, conspicuously posted at an ABM Site, or communicated by
any other means generally used by ABM to disseminate such information to its employees
or contractors (including ABM Rules communicated to Supplier prior to the Effective
Date and to Transitioned Employees prior to hiring by Supplier). Supplier shall be
responsible for the promulgation and distribution of ABM Rules to Supplier Personnel as
and to the extent necessary and appropriate.
	 
	 	(b)	 	Safety and Health Compliance. Supplier and Supplier Personnel shall
familiarize themselves with the premises and operations at each ABM Site or ABM
Facility at or from which Services are rendered and the ABM Rules applicable to each
such Site or Facility. Supplier and Supplier Personnel shall observe and comply with
the OSHA regulations, all applicable safety and environmental Laws, all industrial
insurance, security and health regulations, and all other Laws applicable to the use of
each ABM Facility or Site or the provision of the Services. Supplier and Supplier
Personnel also shall observe and comply with all ABM Rules with respect to safety,
health, security, industrial insurance, and the environment and shall take commercially
reasonable precautions to avoid injury, property damage, spills or emissions of
hazardous substances, materials or waste, and other dangers to persons, property or the
environment. To the extent





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	 	 	 	required by ABM, Supplier Personnel shall receive
prescribed training prior to entering certain ABM Sites or Facilities.






	6.4	 	Software.






	 	(a)	 	Financial Responsibility. Supplier shall be responsible for any third party
fees or expenses on or after the Commencement Date associated with the provision of the
Services described in this Agreement with respect to Software and related Third Party
Contracts for which Supplier is financially responsible under Schedules E and
J.1. Supplier also shall be responsible for any third party fees or expenses
on or after the Commencement Date associated with new, substitute or replacement
Software or related Third Party Contracts (including upgrades, enhancements, new
versions or new releases of such Software) for which Supplier is financially
responsible under Schedules E and J.1. With respect to Software
licenses and related Third Party Contracts that are transferred to Supplier by ABM or
for which Supplier otherwise assumes financial responsibility under this Agreement,
including those listed on Schedules F.3 and F.4, Supplier shall (i) pay
all amounts becoming due under such licenses or related Agreements, and all related
expenses, for periods on or after the Commencement Date and which are not related to
periods prior to the Commencement Date (e.g., late fees, penalties or other amounts
relating to payments due prior to the Commencement Date) which remain ABM’s
responsibility; (ii) rebate to ABM any prepayment of such amounts in accordance with
Section 11.10(a); (iii) pay all modification, termination, cancellation, late
payment, renewal or other fees, penalties, charges, interest or other expenses that
relate to periods on or after the Commencement Date (except to the extent that such
fees, penalties, charges, interest or other expenses directly result from the acts or
omissions of ABM in contravention of its obligations under this Agreement); (iv) pay
all costs associated with the transfer of such licenses and contracts to Supplier,
including all taxes associated with such transfer; and (v) be responsible for complying
with Supplier’s duties and obligations under such licenses or contracts on or after the
Commencement Date and for curing any failure to so comply (except to the extent that
such failure directly results from the acts or omissions of ABM in contravention of its
obligations under this Agreement).
	 
	 	(b)	 	Operational Responsibility. With respect to Software and related Third Party
Contracts for which Supplier is operationally responsible under Schedules E and
J.1, Supplier shall be responsible for (i) the evaluation, procurement,
testing, installation, rollout, use, support, management, administration, operation and
maintenance of such Software and related Third Party Contracts; (ii) the evaluation,
procurement, testing, installation, rollout, use, support, management, administration,
operation and maintenance of new, substitute or replacement Software and related Third
Party Contracts (including upgrades, enhancements, new versions or new releases of such
Software); (iii) the performance, availability, and operational reliability of the
Application Software and the performance, availability, operational reliability,
compatibility and interoperability of all other Software and Third Party Contracts,
each in accordance with this Agreement, including the Service Levels and Change
Management; (iv) the compliance with and performance of all operational, administrative
and contractual obligations specified in such licenses and contracts; (v) the
administration and exercise as appropriate of all rights available under such licenses
and agreements; and (vi) the payment of any fees, penalties, charges, interest or other
expenses due and owing under such Software Licenses and related Third Party Contracts
that are incurred, caused by or result from Supplier’s failure to comply with or
perform its obligations under this Section 6.4(b) (except to the extent that
such failure directly results from the acts or omissions of ABM in contravention of
its obligations under this Agreement).
	 
	 	(c)	 	Rights Upon Expiration/Termination. With respect to all Third Party Software
and related Third Party Contracts for which Supplier is financially responsible under
Schedule E or J.1, Supplier shall use commercially reasonable efforts
to (i) obtain for ABM (or, at ABM’s direction, its designee) the license, sublicense,
assignment and other rights specified or referenced in Sections 4.3(b)(3) and
14.6, (ii) ensure that such license, sublicense, assignment and other rights
are at least broad enough to permit ABM (or, at ABM’s direction, its designee) to use
such Third





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	 	 	 	Party Software and related Third Party Contracts to provide for ABM and the
Eligible Recipients, or have provided for them by third party contractors, services
similar to the Services, and for ABM and the Eligible Recipients to receive such
services; (iii) ensure that, following the termination of all or part of the Services
to an Eligible Recipient no longer Controlled by or under common Control with ABM, any
such license, sublicense, assignment or other rights relating to Third Party Software
or related Third Party Contracts used exclusively by or for such Eligible Recipient may
be granted, at ABM Service’s direction, directly to such Eligible Recipient, (iv)
ensure that the granting of such license, sublicense, assignment and other rights is
not subject to subsequent third party approval or the payment by ABM (or, at ABM’s
direction, its designee) of license or transfer fees (other than regular periodic
license fees for periods after the date of transfer), (v) ensure that the terms,
conditions and prices applicable to ABM (or, at ABM’s direction, its designee)
following expiration or termination are no less favorable than those otherwise
applicable to Supplier, and at least sufficient for the continuation of the activities
comprising the Services, and (vi) ensure that neither the expiration/termination of
this Agreement nor the assignment of the license or contract will trigger less
favorable terms, conditions or pricing. If Supplier is unable to obtain any such
rights and assurances, it shall notify ABM in advance and shall not use such Software
or Third Party Contracts without ABM’s approval (and absent such approval, Supplier’s
use of any such Software or Third Party Contract shall obligate Supplier to procure, at
no additional cost to ABM, the license, sublicense, assignment and other rights
described above for ABM (or, at ABM’s direction, its designee) upon expiration or
termination). If ABM consents to Supplier’s use of specific Third Party Software
licenses or Third Party Contracts under these circumstances, such consent will be
deemed to be conditioned on Supplier’s commitment to use commercially reasonable
efforts to cause such third party to agree at expiration or termination of this
Agreement or the completion of Termination Assistance Services to permit ABM (or, at
ABM’s direction, its designee) to assume prospectively the license or contract in
question or to enter into a new license or contract with ABM (or, at ABM’s direction,
its designee) on substantially the same terms and conditions, including price. If ABM
consents to Supplier’s use of specific Third Party Software licenses or Third Party
Contracts under these circumstances, such Third Party Software licenses or Third Party
Contracts will be added to Schedule V.






	 	(d)	 	Evaluation of Third Party Software. In addition to its obligations under
Section 6.4(a) and (b) and in order to facilitate ABM’s control of
architecture, standards and plans pursuant to Section 9.5, Supplier shall use
commercially reasonable efforts to assist ABM in evaluating any Third Party Software
selected by or for ABM to determine whether such Software will adversely affect ABM’s
environment and/or Supplier’s ability to provide the Services. Supplier shall complete
and report the results of such evaluation to ABM within thirty (30) days of its receipt
of ABM’s request; provided, that Supplier shall use commercially reasonable efforts to
respond more quickly in the case of a pressing business need or an emergency situation.
	 
	 	(e)	 	Benefits Pass-Through. With respect to all products and services procured by
Supplier for ABM on a cost-plus, cost-reimbursement or Pass-Through Expense basis
during the course of performing the Services, Supplier shall use commercially
reasonable efforts to pass through to ABM all benefits offered by the manufacturers
and/or suppliers of such products and services (including, as applicable, all
warranties, refunds, credits, rebates, discounts, training, technical
support and other consideration offered by such manufacturers and suppliers) except
to the extent otherwise agreed by ABM. If Supplier is unable to pass through any
such benefit to ABM, it shall notify ABM in advance and shall not purchase such
product or service without ABM’s prior written approval.






	6.5	 	Equipment.






	 	(a)	 	ABM Provided Equipment. ABM shall provide Supplier with the use of the ABM
owned and leased Equipment identified on Schedule O.3 (collectively, the “ABM
Provided Equipment”) for the periods specified in such Schedule solely for and in
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	 	 	 	Services. Notwithstanding the foregoing, except
as provided in this Section 6.5(a) and Sections 6.1(a), (b) and
(c), Supplier shall be responsible for providing all Equipment required to
perform the Services and all Upgrades, improvements, replacements and additions thereto
in accordance with the applicable refresh schedule. Upon the expiration of the period
specified in Schedule O.3 for each item of ABM Provided Equipment (or when such
ABM Provided Equipment is no longer required by Supplier for the performance of the
Services), Supplier shall promptly return such ABM Provided Equipment to ABM in
substantially the same condition (as it may have been modified or improved by Supplier
with ABM’s approval) as when such ABM Provided Equipment was first provided to
Supplier, subject to reasonable wear and tear. THE ABM PROVIDED EQUIPMENT IS PROVIDED
BY ABM TO SUPPLIER ON AN AS-IS, WHERE-IS BASIS. ABM EXPRESSLY DISCLAIMS ANY
WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE ABM PROVIDED EQUIPMENT, OR ITS CONDITION OR
SUITABILITY FOR USE BY SUPPLIER TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
	 
	 	(b)	 	Financial Responsibility. Supplier shall be responsible for third party fees
or expenses on or after the Commencement Date associated with Equipment, Equipment
leases and related Third Party Contracts for which Supplier is financially responsible
under Schedules E and J.1. Supplier also shall be responsible for any
third party fees or expenses relating to periods on or after the Commencement Date
associated with new, substitute or replacement Equipment, Equipment leases or related
Third Party Contracts (including upgrades, enhancements or new releases of such
Equipment) for which Supplier is financially responsible under Schedules E and
J.1. With respect to Equipment, Equipment Leases and related Third Party
Contracts that are transferred to Supplier by ABM or for which Supplier otherwise
assumes responsibility under this Agreement, including the Equipment Leases and Third
Party Contracts listed on Schedules F.2 and F.3, Supplier shall (i) pay
all amounts becoming due with respect to such Equipment, leases or agreements, and all
related expenses, for periods on or after the Commencement Date and which are not
related to periods prior to the Commencement Date (e.g., late fees, penalties or other
amounts relating to payments due prior to the Commencement Date) which remain ABM’s
responsibility; (ii) rebate to ABM any prepayment of such amounts in accordance with
Section 11.10(a); (iii) pay all modification, termination, cancellation, late
payment, renewal or other fees, penalties, charges, interest or other expenses that
relate to periods on or after the Commencement Date (except to the extent that such
fees, penalties, charges, interest or other expenses directly result from the acts or
omissions of ABM in contravention of its obligations under this Agreement); (iv) pay
all costs associated with the transfer of such Equipment leases and contracts to
Supplier, including all taxes associated with such transfer; and (v) be responsible for
complying with Supplier’s duties and obligations with respect to such Equipment, leases
or agreements on or after the Commencement Date and for curing any failure to so comply
(except to the extent that such failure directly results from the acts or omissions of
ABM in contravention of its obligations under this Agreement).
	 
	 	(c)	 	Operational Responsibility. With respect to Equipment, Equipment leases and
related Third Party Contracts for which Supplier is operationally responsible under
Schedules E and J.1, Supplier shall be responsible for (i) the
evaluation, procurement, testing, installation, rollout, use, support, management,
administration, operation and maintenance of such Equipment, Equipment
leases and related Third Party Contracts; (ii) the evaluation, procurement, testing,
installation, rollout, use, support, management, administration, operation and
maintenance of new, substitute or replacement Equipment, Equipment leases; (iii) the
performance of such Third Party Contracts and the performance, availability,
reliability, compatibility and interoperability of such Equipment, each in
accordance with this Agreement, including the Service Levels and Change Management;
(iv) the compliance with and performance of all operational, administrative and
contractual obligations with respect to such Equipment, leases and contracts,
including nondisclosure obligations; (v) the administration and exercise as
appropriate of all rights available with respect to such Equipment or agreements;
and (vi) the payment of any fees, penalties, interest or other expenses due and
owing under such contracts that are incurred, caused by or result from Supplier’s
failure to comply with or perform its obligations under this Section 6.5(c)
(except to the extent





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	 	 	 	that such failure directly results from the acts or omissions
of ABM in contravention of its obligations under this Agreement).






	 	(d)	 	Rights Upon Expiration/Termination. With respect to all Equipment and related
Third Party Contracts for which Supplier is financially responsible under Schedule
E or J.1, Supplier shall use commercially reasonable efforts to (i) obtain
for ABM (or, at ABM’s direction, its designee) the rights specified in Section
4.3(b)(4), (ii) ensure that such rights are at least broad enough to permit ABM
(or, at ABM’s direction, its designee) to use such Equipment and related Third Party
Contracts to provide for ABM and the Eligible Recipients, or have provided for them by
third party contractors, services similar to the Services, and for ABM and the Eligible
Recipients to receive such services; (iii) ensure that, following the termination of
all or part of the Services to an Eligible Recipient no longer Controlled by or under
common Control with ABM, any such rights relating to Equipment or related Third Party
Contracts used exclusively by or for such Eligible Recipient may be granted, at ABM
Service’s direction, directly to such Eligible Recipient, (iv) ensure that the granting
of such rights is not subject to subsequent third party approval or the payment by ABM
(or, at ABM’s direction, its designee) of transfer fees, and (v) ensure that the
terms, conditions and prices applicable to ABM (or, at ABM’s direction, its designee)
following expiration or termination of this Agreement are no less favorable than those
otherwise applicable to Supplier and at least sufficient for the continuation of the
activities comprising the Services. If Supplier is unwilling or unable to offer or
obtain any such rights and assurances, it shall notify ABM in advance and shall not use
such Equipment, Equipment leases or related Third Party contract without ABM’s prior
approval (and absent such approval, Supplier’s use of any such Equipment, Equipment
leases or related Third Party Contract shall obligate Supplier to procure, at no
additional cost to ABM, the rights described above for ABM (or, at ABM’s direction,
its designee) upon expiration or termination). If ABM consents to Supplier’s use of
specific Equipment leases or Third Party Contracts under these circumstances, such
consent will be deemed to be conditioned on Supplier’s commitment to use commercially
reasonable efforts to cause such third party to agree at expiration or termination of
this Agreement or the completion of Termination Assistance Services to permit ABM (or,
at ABM’s direction, its designee) to assume prospectively the lease or contract in
question or to enter into a new lease or contract with ABM (or, at ABM’s direction, its
designee) on substantially the same terms and conditions, including price. If ABM
consents to Supplier’s use of specific Equipment leases or Third Party Contracts under
these circumstances, such Equipment lease or Third Party Contracts will be added to
Schedule V.
	 
	 	(e)	 	Evaluation of Third Party Equipment. In addition to its obligations under
Section 6.5(b) and (c) and in order to facilitate ABM’s control of
architecture, standards and plans pursuant to Section 9.5, Supplier shall use
commercially reasonable efforts to evaluate any Equipment selected by or for ABM to
allow ABM to determine whether such Equipment will adversely affect ABM’s environment
and/or Supplier’s ability to provide the Services. Supplier shall complete and report
the results of such evaluation to ABM within thirty (30) days of its receipt of ABM’s
request; provided, that Supplier shall use commercially reasonable efforts to respond
more quickly in the case of a pressing business need or an emergency situation.






	 	(f)	 	Benefits Pass-Through. With respect to all products and services procured by
Supplier for ABM on a cost-plus, cost-reimbursement or Pass-Through Expense basis
during the course of performing the Services, Supplier shall use commercially
reasonable efforts to pass through to ABM all benefits offered by the manufacturers
and/or suppliers of such products and services (including, as applicable, all
warranties, refunds, credits, rebates, discounts, training, technical support and other
consideration offered by such manufacturers and suppliers) except to the extent
otherwise agreed by ABM. If Supplier is unable to pass through any such benefit to
ABM, it shall notify ABM in advance and shall not purchase such product or service
without ABM’s prior written approval.
	 
	 	(g)	 	Dedicated Equipment. The Equipment used by Supplier and Supplier Personnel
shall be dedicated to the provision of Services under this Agreement unless the use of
shared Equipment is





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	 	 	 	approved in advance by ABM. In seeking approval to use shared
Equipment, Supplier shall notify ABM of the impact, if any, of the requested change on
the Monthly Base Charges, the ARC and RRC Rates, the OEM retained costs, the
Termination Charges and ABM’s right to purchase such Equipment at expiration or
termination.






	6.6	 	Third Party Contracts.






	 	(a)	 	Financial Responsibility. In addition to the Third Party Contracts identified
in Sections 6.4 and 6.5 and Schedule E, Supplier shall be
responsible for any third party fees or expenses on or after the Commencement Date
associated with Third Party Contracts (excluding Third Party Contracts administered by
Supplier on a pass-through basis, which are addressed in Section 11.2) used by
Supplier to provide the Services. Supplier also shall be responsible for any third
party fees or expenses on or after the Commencement Date associated with new,
substitute or replacement Third Party Contracts for which Supplier is financially
responsible under Schedules E and J.1. With respect to Third Party
Contracts that are transferred to Supplier by ABM or for which Supplier otherwise
assumes financial responsibility under this Agreement, including those listed on
Schedule F.3, Supplier shall (i) pay all amounts becoming due under such
licenses or related Agreements, and all related expenses, for periods on or after the
Commencement Date and which are not related to periods prior to the Commencement Date
(e.g., late fees, penalties or other amounts relating to payments due prior to the
Commencement Date) which remain ABM’s responsibility; (ii) rebate to ABM any
prepayment of such amounts in accordance with Section 11.10(a); (iii) pay all
modification, termination, cancellation, late payment, renewal or other fees,
penalties, charges, interest or other expenses that relate to periods on or after the
Commencement Date (except to the extent that such fees, penalties, charges, interest
or other expenses directly result from the acts or omissions of ABM in contravention of
its obligations under this Agreement); (iv) pay all costs associated with the transfer
of such contract to Supplier, including all taxes associated with such transfer; and
(v) be responsible for complying with Supplier’s duties and obligations under such
contracts on or after the Commencement Date and for curing any failure to so comply
(except to the extent that such failure directly results from the acts or omissions of
ABM in contravention of its obligations under this Agreement).
	 
	 	(b)	 	Operational Responsibility. With respect to the Third Party Contracts
identified in Section 6.6(a) (excluding Third Party Contracts administered by
Supplier on a pass-through basis, which are addressed in Section 11.2), and the
services and products provided thereunder, Supplier shall, unless the Parties have
otherwise agreed in Schedule E, be responsible for (i) the evaluation,
procurement, use, support, management, administration, operation and maintenance of
such Third Party Contracts and any new, substitute or replacement Third Party
Contracts; (ii) the performance of such Third Party Contracts and the services and
products provided thereunder as such relate to providing the Services; (iii) the
compliance with and performance of any operational, administrative or contractual
obligations imposed on ABM or Supplier under such Third Party Contracts, including
nondisclosure obligations; (iv) the administration and exercise as appropriate of all
rights available under such Third Party Contracts; and (v) the payment of any fees,
penalties, interest or other expenses due and owing under such Third Party Contracts
that are
incurred, caused by or result from Supplier’s failure to comply with or perform its
obligations under this Section 6.6.
	 
	 	(c)	 	Rights Upon Expiration/Termination. With respect to any Supplier Third Party
Contracts to be used to provide the Services, Supplier shall use commercially
reasonable efforts to (i) obtain for ABM (or, at ABM’s direction, its designee) the
rights specified in Section 4.3(b)(6), (ii) ensure that such rights are at
least broad enough to permit ABM (or, at ABM’s direction, its designee) to use such
Third Party Contracts to provide for ABM and the Eligible Recipients, or have provided
for them by third party contractors, services similar to the Services, and for ABM and
the Eligible Recipients to receive such services; (iii) ensure that, following the
termination of all or part of the Services to an Eligible Recipient no longer
Controlled by or under common Control with ABM, any such rights relating to Third Party
Contracts used exclusively by or for such Eligible Recipient





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	 	 	 	may be granted, at ABM
Service’s direction, directly to such Eligible Recipient, (iv) ensure that the granting
of such rights is not subject to subsequent third party approval or the payment by ABM
(or, at ABM’s direction, designee) of transfer fees, (v) ensure that neither the
expiration/termination of this Agreement nor the assignment of the contract will
trigger less favorable terms, conditions or pricing, and (iv) ensure that the terms,
conditions and prices applicable to ABM (or, at ABM’s direction, its designee)
following expiration or termination are no less favorable than those otherwise
applicable to Supplier and at least sufficient for the continuation of the activities
comprising the Services. If Supplier is unwilling or unable to offer or obtain any
such rights and assurances, it shall notify ABM in advance and shall not use any such
Third Party Contract without ABM’s approval (and absent such approval, Supplier’s use
of any such Third Party Contracts shall obligate Supplier to procure such rights, at no
additional cost to ABM, upon expiration or termination). ). If ABM consents to
Supplier’s use of specific Third Party Contracts under these circumstances, such
consent will be deemed to be conditioned on Supplier’s commitment to use commercially
reasonable efforts to cause such third party to agree at expiration or termination of
this Agreement or the completion of Termination Assistance Services to permit ABM (or,
at ABM’s direction, designee) to assume prospectively the contract in question or to
enter into a new lease or contract with ABM, the Eligible Recipients and/or their
designee(s) on substantially the same terms and conditions, including price. If ABM
consents to Supplier’s use of specific Third Party Contracts under these circumstances,
such Third Party Contracts will be added to Schedule V.
	 
	 	(d)	 	Benefits Pass-Through. With respect to all third party services procured by
Supplier for ABM on a cost-plus, cost-reimbursement or Pass-Through Expense basis
during the course of performing the Services, Supplier shall use commercially
reasonable efforts to pass through to ABM all benefits offered by such third party
service providers (including, as applicable, all warranties, refunds, credits, rebates,
discounts, training, technical support and other consideration offered by such
providers) except to the extent otherwise agreed by ABM. If Supplier is unable to pass
through any such benefit to ABM, it shall notify ABM in advance and shall not purchase
such product or service without ABM’s prior written approval.






	6.7	 	Assignment of Licenses, Leases and Related Agreements.






	 	(a)	 	Assignment and Assumption. On and as of the Commencement Date, ABM shall
assign to Supplier, and Supplier shall assume and agree to perform all obligations
related to, the Software licenses, Equipment leases and Third Party Contracts for which
Supplier is financially responsible under Sections 6.4, 6.5 and 6.6 and
Schedules E and J.1, including those listed on Schedules F.2,
F.3 and F.4; provided, however, that such assignment shall not include any
assignment or transfer of any intellectual property rights in Materials developed under
such Third Party Software licenses, Equipment leases and Third Party Contracts prior to
the date of such assignment and, as between the Parties, ABM hereby expressly reserves
and retains such intellectual property rights. ABM and Supplier shall execute and
deliver a mutually satisfactory assignment and assumption agreement with respect to
such leases, licenses and agreements, evidencing the assignment and assumption provided
for herein.
	 
	 	(b)	 	Items Not Assignable by Commencement Date. With respect to any such Software
licenses, Equipment Leases or Third Party Contracts that cannot, as of the Commencement
Date, be assigned to Supplier without breaching their terms or otherwise adversely
affecting the rights or obligations of ABM or Supplier thereunder, the performance
obligations shall be deemed to be subcontracted or delegated to Supplier until any
requisite consent, notice or other prerequisite to assignment can be obtained, given or
satisfied by Supplier. It is understood that, from and after the Commencement Date,
Supplier, as a subcontractor or delegate, shall be financially and operationally
responsible for such Software license, Equipment Lease or Third Party Contract as ABM’s
agent pursuant to Section 9.11(b), provided, however, that any amounts becoming
due under such Software license, Equipment Lease or Third Party Contract which are
related to periods prior to the Commencement Date (e.g., late fees, penalties or other
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	 	 	 	payments due prior to the Commencement Date) shall remain ABM’s
responsibility. Supplier shall use commercially reasonable efforts to satisfy the
consent, notice or other prerequisites to assignment and, upon Supplier doing so, the
Software license, Equipment Lease or Third Party Contract shall immediately be assigned
and transferred to and assumed by Supplier.
	 
	 	(c)	 	Non-Assignable Items. The Parties acknowledge and agree that they believe that
no restrictions will, after the commercially reasonable efforts of Supplier, preclude
the assignment and assumption of such Software licenses, Equipment Leases or Third
Party Contracts in accordance with this Agreement. However, if, after Supplier using
commercially reasonable efforts for a reasonable period of time, a license, lease or
agreement still cannot be assigned without breaching its terms or otherwise adversely
affecting the rights or obligations of ABM or Supplier thereunder, the Parties shall
take such actions and execute and deliver such documents as may be necessary to cause
the Parties to realize the practical effects of the allocation of responsibilities
intended to be effected by this Agreement.
	 
	 	(d)	 	Modification and Substitution. Supplier may terminate, shorten or extend the
Software licenses, Equipment Leases and Third Party Contracts held by ABM for which
Supplier is financially responsible under Schedules E and J.1 of this
Agreement and, subject to Section 9.12, may substitute or change suppliers
relating to goods or services covered thereby; provided that, except as otherwise
disclosed by Supplier and agreed to by ABM, such change(s) (i) shall not constitute a
breach of any obligation of ABM or the Eligible Recipients under such Software
licenses, Equipment leases or Third Party Contracts, (ii) shall not result in
additional financial obligations, financial or operational risk or damages to ABM or
the Eligible Recipients; (iii) shall not result in any increase to ABM or the Eligible
Recipients in the cost of receiving the Services; and (iv) shall not provide for less
favorable terms, conditions or prices for ABM or its designee following the expiration
or termination of the Term or any applicable Service than would otherwise be applicable
to Supplier (except for terms, conditions or prices available to Supplier because of
its volume purchases). Supplier’s rights under the immediate preceding sentence are
conditioned upon Supplier paying all applicable termination or cancellation charges,
damages and other amounts associated with such action. Notwithstanding anything to the
contrary herein, Supplier shall not terminate, shorten or modify without ABM’s prior
written consent any license for Third Party Software either created exclusively for ABM
or the Eligible Recipients or otherwise not commercially available. Supplier shall
reimburse ABM and the Eligible Recipient(s) for any termination charges, cancellation
charges, or other amounts paid by them at Supplier’s direction in connection with
obtaining any such modification.






	6.8	 	License to ABM Third Party Software and Materials.
	 
	 	 	As of the Commencement Date and subject to Supplier having obtained any Required Consents,
ABM hereby grants to Supplier, for the sole purpose of performing the Services and solely to
the extent of ABM’s underlying rights, the same rights of access and use as ABM possesses
under the applicable software licenses with respect to ABM licensed Third Party Software;
provided that, Supplier shall pay all fees, costs and expenses associated with the granting
of such rights if and to the extent the number of licenses or seats requested by Supplier
exceeds the number historically used by ABM and the Eligible
Recipients to perform the same Services and such increase is not attributable to actual or
projected increases in Service volumes. ABM also shall grant such rights to Subcontractors
designated by Supplier if and to the extent necessary for Supplier to provide the Services;
provided that, Supplier shall pay all fees, costs and expenses associated with the granting
of such rights to such Subcontractors. Except as otherwise agreed by the applicable third
party licensors, Supplier and its Subcontractors shall comply with the duties, including use
restrictions and those of nondisclosure, imposed on ABM by such licenses. In addition, each
Subcontractor shall sign a written agreement to be bound by terms consistent with the terms
contained herein applicable to such Third Party Software, including, to the extent
applicable, the terms specified in this Section and those pertaining to the ownership of
such Software and any derivative materials developed by the Parties, the scope and term of
the license, the restrictions on the use of such Software, and the obligations of
confidentiality. Except as otherwise requested or approved by ABM (or the relevant





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	 	 	licensor), Supplier and its Subcontractors shall cease all use of such Third Party Software
upon the end of the Term and the completion of any Termination Assistance Services requested
by ABM pursuant to Section 4.3(b)(8). THE ABM LICENSED THIRD PARTY SOFTWARE IS
PROVIDED BY ABM TO SUPPLIER AND ITS SUBCONTRACTORS ON AN AS-IS, WHERE-IS BASIS. ABM
EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH ABM
LICENSED THIRD PARTY SOFTWARE, OR THE CONDITION OR SUITABILITY OF SUCH SOFTWARE FOR USE BY
SUPPLIER OR ITS SUBCONTRACTORS TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.






	6.9	 	License to Supplier Third Party Software and Materials.






	 	(a)	 	As of the Commencement Date and subject to Supplier having obtained any
Required Consents, Supplier hereby grants to ABM and the Eligible Recipients, at no
additional charge, except as provided in Section 6.9(b) below, a non-exclusive,
royalty-free right and license to access and/or use the Third Party Software and
Materials as to which Supplier holds the license or for which Supplier is financially
responsible under this Agreement (including all modifications, substitutions, Upgrades,
enhancements, methodologies, tools, documentation, materials and media related thereto
that are provided pursuant to the licenses for such Third Party Software and/or
Materials) during the Term and any Termination Assistance Services period. In
addition, at no additional Charge, and subject to obtaining any Required Consents,
Supplier hereby grants to ABM Third Party Contractor(s) a non-exclusive, royalty-free
right and license to access and/or use such Materials and Software (including all
modifications, substitutions, Upgrades, enhancements, methodologies, tools,
documentation, materials and media related thereto provided to Supplier pursuant to the
applicable licenses), during the Term and any Termination Assistance Services period,
for the benefit of ABM and the Eligible Recipients. Such license and other rights
described in the two preceding sentences shall be granted to ABM, the Eligible
Recipients, and ABM Third Party Contractors only for the following purposes:






	 	(i)	 	The receipt by ABM and the Eligible Recipients of the full
benefit of the Services provided by Supplier;
	 
	 	(ii)	 	The performance by ABM, the Eligible Recipients or ABM Third
Party Contractors for ABM and/or the Eligible Recipients of services or
functions that are ancillary to, but not part of, the Services provided by
Supplier, including related application management, telecommunication, IT
infrastructure, help desk, and information technology services and functions;
and
	 
	 	(iii)	 	The performance by ABM, the Eligible Recipients or ABM Third
Party Contractors of services or functions previously performed by Supplier in
circumstances in which the services or functions in question have not been
terminated or taken completely away from Supplier.






	 	 	 	ABM and the Eligible Recipients shall comply with relevant contractual obligations,
including use restrictions and nondisclosure obligations, imposed on Supplier by
such licenses to the extent such duties and restrictions have been disclosed in
advance by Supplier to ABM. In addition, each ABM Third Party Contractor using
Supplier licensed Third Party Software shall sign a written agreement that is
consistent with the terms contained herein applicable to such Third Party Software
and that contains any relevant contractual obligations, including use restrictions
and nondisclosure obligations, imposed on Supplier by such license(s). The rights
and obligations of ABM, the Eligible Recipients and ABM Third Party Contractors with
respect to such Third Party Software following the expiration or termination of the
Agreement or termination of any Service are set forth in Section 14.6(d).





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	 	(b)	 	To the extent an ABM Third Party Contractor requires a license to Supplier
licensed Third Party Software for the purposes described in Section 6.9(a)(iii)
and such Third Party Software is generally commercially available at established
market rates, ABM or the Third Party Contractor shall either pay Supplier’s then
standard rate for such Third Party Software license, including any additional charges
based on increased or changed usage (if Supplier sells such product) or obtain such
license from other sources. In addition, to the extent a Third Party Contractor
requires access to or the use of such Third Party Software for the purposes described
in Section 6.9(a)(iii) and a Required Consent may be obtained only by paying a
third party fee, ABM or the ABM Third Party Contractor shall pay or reimburse Supplier
for such fee, provided that Supplier notifies ABM of such fee, obtains ABM’s approval
prior to incurring it; and uses commercially reasonable efforts to minimize any fee to
be paid or reimbursed by ABM or the ABM Third Party Contractor. Except as provided in
this Section 6.9(b), neither ABM or the Eligible Recipients nor the ABM Third
Party Contractors shall be required to pay any other fees or expenses in connection
with the granting of such licenses to Third Party Software or obtaining of such
Required Consents.






	 	(c)	 	Supplier shall provide or obtain maintenance, support and/or enhancements as
and to the extent necessary to support the use of Supplier licensed Third Party
Software for the purposes described in Section 6.9(a)(i)-(iii). ABM or the
applicable ABM Third Party Contractor shall reimburse Supplier for any incremental
Out-of-Pocket Expenses incurred by Supplier in providing such maintenance, support
and/or enhancements to an ABM Third Party Contractor using such Supplier licensed Third
Party Software for the purposes described in Section 6.9(a)(iii); provided that
Supplier notifies ABM of such incremental expenses, obtains ABM’s approval prior to
incurring them; and uses commercially reasonable efforts to minimize such expenses.
Supplier shall not be obligated to provide source code to ABM Third Party Contractors
under such circumstances.






	6.10	 	Managed Third Parties






	 	(a)	 	Fully Managed Third Parties. With respect to Managed Third Parties designated
on Schedule K as “Fully Managed Third Parties” and any substitute or
replacement therefor (each a “Fully Managed Third Party”), Supplier shall ensure that
such Fully Managed Third Parties perform in accordance with this Agreement, including
Service Levels, and comply with all applicable duties and obligations imposed on
Supplier under this Agreement. Unless otherwise specified in Schedule K or
agreed in writing by the Parties, the performance of such Fully Managed Third Parties
shall be included in determining Supplier’s compliance with applicable Service Levels
in Schedule G and Supplier shall be responsible for any Service Level Credits
incurred as a result of any failure by such Fully Managed Third Parties or their
personnel to perform in accordance with such Service Levels. Supplier shall manage
each such Fully Managed Third Party and administer each such Third Party Contract as
described in Section 6.10(b)(i)-(ix) below. Upon the expiration or
termination for cause or convenience of a Fully Managed Third Party contract, Supplier
shall be responsible for the continued performance of the services in accordance with
this Agreement and shall either provide such services itself or enter into a contract
for such services with a replacement Fully Managed Third Party.






	 	(b)	 	General Managed Third Parties. With respect to Managed Third Parties
identified on Schedule K as “General Managed Third Parties,” and any substitute
or replacement therefor (each a “General Managed Third Party”), Supplier shall perform
the following activities with respect to the management and administration of Third
Party Contracts between ABM (and/or the Eligible Recipients) and such General Managed
Third Parties, except as modified in Schedule K:






	 	(i)	 	manage the Managed Third Parties, including monitoring
operational day-to-day service delivery, monitoring performance, escalating
problems for resolution, and maintaining technical support relationships;





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	 	(ii)	 	as requested by ABM, work with ABM to manage new and existing
contractual relationships between ABM and Managed Third Parties as needed to
provide the Services;
	 
	 	(iii)	 	oversee Managed Third Party delivery of services and
compliance with the Service Levels and the performance standards contained in
ABM’s agreement with the Managed Third Party;
	 
	 	(iv)	 	notify ABM and the Managed Third Party of each Managed Third
Party failure to perform in accordance with the Service Levels contained in
Schedule G or the performance standards or other terms and conditions
contained in ABM’s agreement with the Managed Third Party;
	 
	 	(v)	 	escalate Managed Third Party performance failures to Managed
Third Party management as necessary to achieve timely resolution;
	 
	 	(vi)	 	monitor and manage the Managed Third Party’s efforts to remedy
a failure of performance;
	 
	 	(vii)	 	communicate to ABM the status of the Managed Third Party’s
efforts to remedy a failure of performance;
	 
	 	(viii)	 	recommend retention, replacement, modification, or termination of an Managed
Third Party based on the performance or cost benefits to ABM as tracked by
Supplier;
	 
	 	(ix)	 	participate and assist in the re-sourcing (e.g., extension,
renegotiation or replacement) of such Managed Third Parties as and to the
extent described in Schedule K; and
	 
	 	(x)	 	except as otherwise provided in Schedule K, Supplier
shall be responsible for meeting or exceeding the applicable Service Levels
even where doing so is dependent on the provision of services by a Managed
Third Party Provider.






	 	(c)	 	Financial Responsibility. Unless otherwise specified in Schedule K or
Schedule J.1 or agreed in writing by the Parties, the invoiced charges of
Managed Third Parties shall be treated as a Pass-Through Expense. Supplier shall be
ABM’s and the Eligible Recipients’ sole point of contact regarding the services
provided by such Managed Third Parties.






	6.11	 	Notice of Defaults.
	 
	 	 	ABM and Supplier shall promptly inform the other Party in writing of any breach of, or
misuse or fraud in connection with, any Third Party Contract, Equipment lease or Third Party
Software license used in connection with the Services of which it becomes aware and shall
cooperate with the other Party to prevent or stay any such breach, misuse or fraud.






	6.12	 	Environmental






	 	(a)	 	ABM Obligations. ABM shall (i) notify Supplier of the procedures and
precautions to be taken at ABM Sites where Hazardous Materials are used or produced in
operations performed by ABM in accordance with Section 6.3(a), (ii) provide at
its expense any special equipment or training required by Supplier to provide safely
and properly the Services in the presence of such Hazardous Materials, (iii) be
responsible for complying with all material applicable Laws concerning the treatment,
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	 	 	 	disposal of or reporting about, Hazardous Materials
used or produced in operations performed by ABM at the ABM Sites, and (iv) be
responsible for remedying any violation of Law with respect to the treatment, storage,
registration, handling or disposal of or reporting about Hazardous Materials used or
produced in operations performed by ABM at the ABM Sites.
	 
	 	(b)	 	Supplier Obligations. Supplier shall (i) notify ABM of the procedures and
precautions to be taken at ABM or Supplier facilities where Hazardous Materials are
used or produced by Supplier or its Affiliates or Subcontractors in the performance of
the Services, (ii) provide at its expense any special equipment or training required by
ABM to perform its operations safely and properly in the presence of such Hazardous
Materials, (iii) be responsible for complying with all material applicable Laws
concerning the treatment, storage, registration, handling or disposal of or reporting
about Hazardous Materials used or produced by Supplier or its Affiliates or
Subcontractors in the performance of the Services, and (iv) be responsible for
remedying any violation of Law with respect to the treatment, storage, registration,
reporting, handling or disposal of any Hazardous Materials used or produced in the
performance by Supplier or its Affiliates or Subcontractors of the Services.
	 
	 	(c)	 	Response. In the event that Hazardous Materials are present at any ABM Site
during the Term of this Agreement, Supplier may cease performance of any affected
portion of the Services if and to the extent Supplier’s ability to perform such portion
of the Services safely is impacted by the presence of such Hazardous Materials and the
unsafe condition cannot reasonably be circumvented by Supplier through the use of
alternative approaches, workaround plans or other means; provided that ABM shall
reimburse Supplier for any incremental costs incurred in implementing such alternative
approaches, workload plans or other means as long as (i) Supplier notifies ABM of such
incremental costs and obtains ABM Service’ approval prior to incurring such costs; and
(ii) Supplier uses commercially reasonable efforts to minimize the incremental costs to
be reimbursed by ABM.
	 
	 	(d)	 	Responsibility. ABM shall be liable for and indemnify Supplier against all
costs, expenses or other Losses incurred or suffered by Supplier as a result of the
treatment, storage, registration, handling, disposal or release of or reporting about
Hazardous Materials used or produced by operations performed by ABM at the ABM Sites or
ABM Facilities, except to the extent that such costs, expenses or Losses were caused by
the conduct of Supplier, Supplier Affiliates or Supplier Subcontractors or their
employees, subcontractors, agents, invitees or representatives. Supplier shall be
liable for and indemnify ABM and the Eligible Recipients against all costs, expenses or
other Losses incurred or suffered by ABM or any Eligible Recipient as a result of the
treatment, storage, registration, handling, disposal or release of or reporting about
Hazardous Materials used or produced by Supplier in the performance of the Services,
except to the extent such costs, expenses or Losses were caused by the conduct of ABM,
ABM employees, invitees, contractors or other persons for whom ABM is legally
responsible (which specifically excludes Supplier or Supplier’s employees,
subcontractors, agents or representatives). Neither Supplier nor ABM shall be liable
to the other for any special, indirect, incidental or consequential damages.






	7.	 	SERVICE LEVELS






	7.1	 	General.
	 
	 	 	Supplier shall perform the Services at levels of accuracy, quality, completeness,
timeliness, responsiveness and productivity that are equal to or higher than the documented
or otherwise verifiable levels of accuracy, quality, completeness, timeliness,
responsiveness and productivity received by ABM or the Eligible Recipients in the twelve
(12) months prior to the Commencement Date. Without limiting the generality of the
foregoing or the other obligations of Supplier, Supplier shall perform the Services so as to
meet or exceed the Service Levels set forth in Schedule G. If more than one Service
Level applies to any particular obligation of Supplier, Supplier shall perform in accordance
with the most stringent such Service Levels. Supplier shall be responsible for meeting or
exceeding the applicable Service Levels even where doing so is dependent on the provision of
Services by (i) Subcontractors, (ii) except as otherwise provided in Section 6.11 or
Schedule K, Managed Third Parties, or (iii) non-Supplier Personnel, including ABM
employees,





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	 	 	for whom Supplier is financially or operationally responsible under this
Agreement; provided that ABM will provide reasonable assistance in rectifying any problem
affecting Supplier’s ability to meet the Service Levels which may be attributed to Managed
Third Parties and/or ABM employees.






	7.2	 	Service Level Credits and Deliverable Credits.






	 	(a)	 	Service Level Credits. Supplier recognizes that ABM is paying Supplier to
deliver the Services at specified Service Levels. If Supplier fails to meet such
Service Levels, then Supplier shall pay or credit to ABM the performance credits
specified in Schedule G (“Service Level Credits”) in recognition of the
diminished value of the Services resulting from Supplier’s failure to meet the agreed
upon level of performance, and not as a penalty. Under no circumstances shall the
imposition of Service Level Credits be construed as ABM’s sole or exclusive remedy for
any failure to meet the Service Levels. If ABM recovers monetary damages from Supplier
as a result of Supplier’s failure to meet a Service Level, Supplier shall be entitled
to set-off against such damages any Service Level Credits paid for the failure giving
rise to such recovery. For avoidance of doubt, unless otherwise specified in
Schedule G, Supplier’s performance under the Master Agreement and all Companion
Agreements shall be aggregated together for purposes of determining Supplier’s
compliance with applicable Service Levels and calculating and assessing any resulting
Service Level Credits.
	 
	 	(b)	 	Deliverable Credits. Supplier recognizes that ABM is paying Supplier to
provide certain Critical Deliverables by the time and in the manner agreed by the
Parties. If Supplier fails to meet its obligations with respect to such Critical
Deliverables, then, in addition to other remedies available to ABM, Supplier shall pay
or credit to ABM the Deliverable Credits specified in Attachment G.7 to
Schedule G and/or Schedule H or established by the Parties as part of
the Project approval process on a case by case basis in recognition of the diminished
value of the Services resulting from Supplier’s failure to meet the agreed upon level
of performance (not as a penalty). If ABM recovers monetary damages from Supplier as a
result of Supplier’s failure to meet its obligations with respect to one (1) or more
Critical Deliverables, Supplier shall be entitled to set-off against such damages any
Deliverable Credits paid for the failure(s) giving rise to such recovery. Deliverable
Credits are not counted toward and are not subject to the overall cap on Supplier’s
liability and are in addition to Service Level Credits.






	7.3	 	Problem Analysis.
	 
	 	 	If Supplier fails to provide Services in accordance with the Service Levels and this
Agreement, Supplier shall (after restoring service or otherwise resolving any immediate
problem) (i) promptly investigate and report on the causes of the problem; (ii) provide a
Root Cause Analysis of such failure as soon as practicable, after such failure or ABM’s
request; (iii) use commercially reasonable efforts to implement remedial action and begin
meeting the Service Levels as soon as practicable; (iv) advise ABM of the status of remedial
efforts being undertaken with respect to such problem; and (v) demonstrate to ABM’s
reasonable satisfaction that, to the extent reasonably possible, the causes of such problem
have been or will be corrected on a permanent basis. Supplier shall use commercially
reasonable efforts to complete the Root Cause Analysis within the period specified in
Attachment G.2 to Schedule G; provided that, if it is not capable of being
completed within such period using reasonable diligence, Supplier shall complete such Root
Cause Analysis as quickly as possible and shall notify ABM prior to the end of the period
specified in Attachment G.2 as to the status of the Root Cause Analysis and the
estimated completion date.






	7.4	 	Continuous Improvement Reviews.






	 	(a)	 	Improvement of Services Quality. Supplier acknowledges that the quality of the
Services provided in certain Service areas can and will be improved during the Term and
agrees that the Service Levels in such Service areas will be enhanced periodically in
recognition of the anticipated improvement in service quality. Supplier will improve
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	 	 	 	provided in such areas to meet or exceed the enhanced
Service Levels and will do so at no additional charge to ABM.
	 
	 	(b)	 	Increase of Service Levels. In addition to the foregoing, ABM and Supplier
shall periodically review the Service Levels and the performance data collected and
reported by Supplier in accordance with Schedule G. As part of this review
process, the Parties shall, at no additional cost to ABM, increase the Service Levels
to reflect the higher performance levels actually attained by Supplier in accordance
with Schedule G. In addition, subject to Section 11.5, the Parties
shall use commercially reasonable efforts to agree, to the extent reasonable and
appropriate, to (i) increase the Service Levels to reflect improved performance
capabilities associated with advances in the proven processes, technologies and methods
generally available and in regular commercial use to perform services like the
Services; (ii) add new Service Levels to permit further measurement or monitoring of
the accuracy, quality, completeness, timeliness, responsiveness, cost-effectiveness, or
productivity of the Services; (iii) modify or increase the Service Levels to reflect
changes in the processes, architecture, standards, strategies, needs or objectives
defined by ABM; and (iv) modify or increase the Service Levels to reflect agreed upon
changes in the manner in which the Services are performed by Supplier.






	7.5	 	Measurement and Monitoring.
	 
	 	 	Supplier shall implement measurement and monitoring tools and metrics as well as standard
reporting procedures, all acceptable to ABM, to measure and report Supplier’s performance of
the Services against the applicable Service Levels. Supplier shall provide ABM with on-line
access to up-to-date problem management data and other data regarding the status of service
problems, service requests and user inquiries received by Supplier. Supplier also shall
provide ABM with access to the data used by Supplier to calculate its performance against
the Service Levels and the measurement and monitoring tools and procedures utilized by
Supplier to generate such data for purposes of audit and verification. Except as otherwise
provide in Attachment G.5 to Schedule G, ABM shall not be required to
separately pay for such measurement and monitoring tools or the resource utilization
associated with their use.






	7.6	 	Satisfaction Surveys.






	 	(a)	 	Supplier Conducted Surveys. Beginning on the Commencement Date, Supplier
(and/or independent third parties engaged by Supplier) shall conduct satisfaction
surveys at the intervals and in accordance with the survey protocols and procedures
specified in Schedule Q. To the extent Supplier engages an independent third
party to perform all or any part of any satisfaction survey, such third party shall be
approved in advance by ABM.
	 
	 	(b)	 	ABM Conducted Surveys. In addition to the satisfaction surveys to be conducted
by Supplier pursuant to Section 7.6(a), ABM may survey Authorized User
satisfaction with Supplier’s performance in connection with and as part of broader
Authorized User satisfaction surveys periodically conducted by ABM. At ABM’s request,
Supplier shall cooperate and assist ABM
with the formulation of the survey questions, protocols and procedures and the
execution and review of such surveys.
	 
	 	(c)	 	Survey Follow-up. If the results of any satisfaction survey conducted pursuant
to Section 7.6(a) or (b) indicate that the level of satisfaction with
Supplier’s performance of the Services is less than the target level specified in
Schedule G and/or Q, Supplier shall promptly: (i) analyze and report on
the root cause of the management or Authorized User dissatisfaction; (ii) develop an
action plan to address and improve the level of satisfaction; (iii) present such plan
to ABM for its review, comment and approval; and (iv) take action in accordance with
the approved plan and as necessary to improve the level of satisfaction. ABM and
Supplier shall establish a schedule for completion of a Root Cause Analysis and the
preparation and approval of the action plan which shall be reasonable and consistent
with the severity and materiality of the problem; provided, that the time for
completion of such tasks shall not exceed thirty (30) days from the date such user
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	 	 	 	results are finalized and reported or as otherwise agreed. The action plan
developed hereunder shall specify the specific measures to be taken by Supplier and the
dates by which each such action shall be completed. The Parties may, by agreement,
establish Deliverable Credits associated with the completion of particular activities
by specified dates. Supplier shall implement such action plan in accordance with its
terms. Following implementation of such action plan, Supplier will conduct follow-up
surveys with the affected ABM users and management to confirm that the cause of any
dissatisfaction has been addressed and that the level of satisfaction has improved. The
Parties recognize that Supplier’s failure to attain the prescribed levels of
satisfaction or to take the actions set forth in such action plan by the agreed upon
dates may have an adverse impact on the business and operations of ABM and the Eligible
Recipients and that certain damages resulting from Supplier’s failure to do so may not
be capable of precise determination. Accordingly, if Supplier fails to attain the
levels of satisfaction prescribed in Schedule G, then, in addition to any other
remedies available to ABM under this Agreement, at law or in equity, Supplier shall pay
to ABM the Service Level Credits specified in Schedule G. In addition, if
Supplier fails take the actions set forth in the action plan by the agreed upon dates,
then, in addition to any other remedies available to ABM under this Agreement, at law
or in equity, Supplier shall pay to ABM the applicable Deliverable Credits, if any,
specified and agreed upon in such action plan for such failure.






	7.7	 	Notice of Adverse Impact.
	 
	 	 	If Supplier becomes aware of any failure by Supplier to comply with its obligations under
this Agreement or any other situation that has had or reasonably could have any other
material adverse impact on the Services in question or the impacted business operations of
ABM or the Eligible Recipients, then Supplier shall immediately inform ABM in writing of
such situation and the impact or expected impact on the Services and Supplier and ABM shall
meet to formulate an action plan to minimize or eliminate the impact of such situation.






	8.	 	PROJECT PERSONNEL






	8.1	 	Transitioned Personnel.






	 	(a)	 	Offers and Employment.






	 	(i)	 	Supplier Offers of Employment. On September 12, 2006, Supplier
extended offers of employment to the Affected Employees specified on
Schedule M. Supplier represents and warrants that such offers of
employment are consistent in all material respects with this Article 8.
Such offers of employment were and are contingent upon the Parties’ final
approval and execution of this Agreement, and upon the Affected Employees’
completion of Supplier’s employment application and standard pre-employment
process. Supplier, however, has waived background checks, drug testing and
medical examinations as preconditions to such employment. Such offers were and
are for employment with
Supplier in positions reasonably comparable to those held by such
individuals at ABM, and with initial base wages or salaries at least equal
to that paid or provided by ABM to such individuals as of the date of such
offers. The offers were and are for employment with Supplier for a period
of six (6) months following the Commencement Date (the “Interim Period”).
If such offers of employment are accepted, Supplier shall not reduce the
base wages or salaries of such individuals (“Transitioned Employees”) during
the Interim Period. Unless otherwise specified in Schedule M and/or
agreed by the Parties, Affected Employees accepting such offers shall
become employees of Supplier as of the start date set forth in their offer
letters, which shall be referred to herein as their “Employment Effective
Date.” It is understood and agreed that, on or before the end of their term
of employment, Supplier may offer certain of the Affected Employees
employment for an indeterminate period of time.





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	 	(ii)	 	Subsequent Offers of Regular Employment. It is understood and
agreed that, on or before the end of their term of employment, Supplier may
offer certain of the Affected Employees employment for an indeterminate period
of time. Supplier shall use commercially reasonable efforts to make any such
offers of employment “Qualified Offers,” defined as regular employment in a
position that reasonably matches the Transitioned Employee’s skills, with base
wages or salary as described in Section 8.1(a)(i) and employee benefits
as described in Section 8.2. If such offer is not a “Qualified Offer,”
and the Transition Employee declines such offer, he or she shall be
eligible for severance benefits as defined in Section 8.2(k)(ii). In
addition, even if a Qualified Offer is extended, if the Transitioned
Employee rejects the offer because it requires a change in work location
that meets Supplier’s requirements for benefits under its U.S Mobility Plan
(relocation plan), then the Transitioned Employee shall also be eligible for
severance benefits as defined in Section 8.2(k)(ii). To qualify for
benefits under Supplier’s U.S. Mobility Plan, the Transitioned Employee must
be changing work location at the request of the Supplier, the change in work
location must increase his or her one-way commute from his or her current
residence by at least twenty (20) miles, and the resulting commute must be
greater than fifty (50) miles.
	 
	 	(iii)	 	Leave. With respect to any Affected Employee identified on
Schedule M who is on medical, family, disability, military or sick
leave on the Commencement Date, but who returns to work within three (3) months
after the Commencement Date with physician’s release or other appropriate
documentation stating that such employee may return to work with or without an
accommodation, Supplier shall offer employment to such Affected Employee for
the remainder of the Interim Period. Such offer and any resulting employment
shall be subject to and in strict accordance with this Article 8. If
such offer is accepted, the individual in question shall thereafter be treated
as a Transitioned Employee for all purposes.
	 
	 	(iv)	 	Transitioned Employees. All Affected Employees listed in
Schedule M who receive and accept offers of employment and begin work
with Supplier pursuant to the foregoing paragraphs are herein referred to as
“Transitioned Employees.”






	 	(b)	 	Additional Transitioned Employees. During the Interim Period, the Parties may
agree upon additional ABM Personnel to whom offers of employment are to be extended by
Supplier. The compensation and other terms and conditions of such offers of employment
shall be as set forth in this Article 8, and ABM Personnel accepting such
offers shall be treated as Transitioned Employees for all purposes.
	 
	 	(c)	 	Reemployment of Transitioned Employees. During the Interim Period, the Parties
may agree upon one or more Transitioned Employees to whom ABM may extend offers of
reemployment. Supplier shall not unreasonably interfere with ABM’s efforts to reemploy
any such Transitioned Employee; provided, however, ABM shall inform Supplier at least
ten (10) business days in advance of any intended solicitation or other efforts by ABM
to recruit or otherwise reemploy any Transitioned Employee during this period, and the
Parties shall agree that any such solicitation and/or reemployment of a Transitioned
Employee(s) will not unduly hinder the Suppliers ability to delivery the agreed to
services to ABM.
	 
	 	(d)	 	Minimum Retention. Supplier shall not terminate the employment of a
Transitioned Employee during the Interim Period for any reason other than “cause” or
“performance,” unless and to the extent ABM initiates a change and/or a reduction in
the scope of Services provided by Supplier necessitating such termination of a
Transitioned Employee. For purposes of this provision, “cause” shall mean flagrant
disregard of Supplier’s rules (including any violation of Supplier’s Business Conduct
Guidelines), insubordination or misconduct (as defined in Supplier’s human resource
policies), or criminal conduct, and “performance” shall mean that the Transitioned
Employee’s job performance is at a level that would justify dismissal under Supplier’s
established human resource policies. Unless otherwise agreed by the Parties, Supplier
also shall not relocate a





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	 	 	 	Transitioned Employee or his or her assigned “work location,”
as such term is defined in the Supplier’s Relocation guidelines, during the Interim
Period, unless ABM initiates a change and/or a reduction in the scope of Services
provided by Supplier necessitating such relocation or reassignment, or Supplier
identifies another assignment off of the ABM contract that is acceptable to the
Transitioned Employee, and provided that Supplier shall inform ABM in advance of any
such relocation or reassignment during this period.






	 	(e)	 	No Coverage of Collective Bargaining Unit Employees. ABM has confirmed that no
individual eligible to be hired by Supplier pursuant to this Agreement is covered under
a collective bargaining agreement.
	 
	 	(f)	 	Subcontractors. Unless otherwise specified in Schedule M, all offers
of employment to Affected Employees must be for employment by Supplier. To the extent
offers of employment are made to Affected Employees identified on Schedule M by
Supplier Affiliates or Subcontractors, rather than by Supplier, Supplier shall cause
such offers and any resulting employment to be subject to and in strict accordance with
this Article 8.





8.2 Employee Benefit Plans.





	 	(a)	 	General. Except as otherwise provided in this Article 8, each
Transitioned Employee and his or her eligible dependents (as determined under
Supplier’s plans), shall be eligible effective as of his or her Employment Effective
Date to enroll and participate in the employee plans that are made available to
similarly situated employees of Supplier. Such participation shall be in accordance
with the terms of such employee plans, which Supplier may change from time to time.
During the Term of this Agreement and any extensions thereof, the employee benefits
provided by Supplier to Transitioned Employees shall be, in the aggregate, no less
favorable than the employee benefits generally available to similarly situated Supplier
employees. Unless otherwise specified in this Section 8.2, the rights and
benefits described in this Section 8.2 shall be provided to Transitioned
Employees during the Interim Period and, if such period is extended or an offer of
employment for an indefinite period is made, for the remainder of their employment with
Supplier.
	 
	 	(b)	 	Years of Service Credit. Except as otherwise provided in this Article
8, the service of a Transitioned Employee with ABM prior to his or her Employment
Effective Date shall be recognized by the applicable Supplier employee plan for
vacation (prorated based upon full months of employment during first calendar year),
short term disability, long term disability and access to post-retirement medical group
rates when such Transitioned Employee is no longer employed by Supplier.
	 
	 	(c)	 	Employee Welfare Benefit Plans. Each Transitioned Employee and his or her
eligible dependents shall be eligible as of such Transitioned Employee’s Employment
Effective Date to participate immediately in Supplier’s employee health and welfare
benefit plans provided to similarly situated Supplier employees (“Welfare Plans”).
Such participation shall be in accordance with the terms of such Welfare Plans. The
Welfare Plans shall include, to the extent applicable, medical benefits,
hospitalization, prescription drug benefits, dental benefits, vision benefits,
short-term disability, long-term disability and travel accident insurance (which
includes an accidental death and dismemberment provision). Any eligible deductible
expense incurred by the Transitioned Employee at ABM, shall be applied against any
similar deductible requirement under the Supplier’s medical plans. Subject to the
general comparability requirements in Section 8.2(a), eligibility for, the
benefits of, and the amount, if any, of employee contributions toward Welfare Plan
coverage will be determined by Supplier; provided, however, that each of Supplier’s
Welfare Plans shall waive all pre-existing conditions, exclusionary provisions,
eligibility service requirements, and/or waiting periods for each such Transitioned
Employee and any eligible covered dependents.





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	 	(d)	 	Vacation and Personal Time Off. Prior to their hire date, ABM will cash out
each Transitioned Employee for their accrued and unused vacation. Subject to
Section 8.2(b) above and beginning on their Employment Effective Date, Supplier
shall provide vacation and sick leave benefits to all Transitioned Employees in
accordance with its applicable plans. Transitioned Employees shall receive credit for
their years of service with ABM for purposes of determining vacation eligibility,
benefit calculation and benefit accrual under Supplier’s vacation plan. Transitioned
Employees shall immediately begin accruing vacation benefits. The vacation and
personal time off benefits provided by Supplier to such Transitioned Employees shall be
no less favorable than the vacation and personal time off benefits generally available
to similarly situated Supplier employees.
Supplier shall recognize vacation plans made by the Transitioned Employees for the
current calendar year, provided such vacation plans have been approved by ABM and
communicated to Supplier prior to their Employment Effective Date.
	 
	 	(e)	 	Holidays. Each Transitioned Employee shall be eligible as of his or her
Employment Effective Date to participate in the Supplier Holiday Plan, which currently
includes twelve (12) annual paid holidays. Supplier Personnel, including Transitioned
Employees, assigned to perform Services under this Agreement will observe ABM local
site national holidays and, if less than twelve (12), any remaining days will be
treated as personal holidays.
	 
	 	(f)	 	Stock Purchase Plan. Each Transitioned Employee shall be eligible to enroll
and participate in the then current Supplier Stock Purchase Plan during the first
eligible open enrollment period following such Transitioned Employee’s Employment
Effective Date.
	 
	 	(g)	 	Defined Contribution Plans. Each Transitioned Employee shall be eligible as of
his or her Employment Effective Date to participate immediately in Supplier’s Employee
Savings 401(k) Plan, and shall be immediately vested in all such employee
contributions. Also, each Transitioned employee shall be eligible for the then current
Supplier matching funds after completing twelve (12) months of employment with
Supplier. Such defined contribution plans shall be no less favorable than the defined
contribution plans generally available to similarly situated Supplier employees. Any
changes to such defined contribution plans, including any changes in the vesting period
for matching employer contributions, must be applicable to all similarly situated
Supplier employees.
	 
	 	(h)	 	Reimbursement Account and Flexible Spending Account Plans. Transitioned
Employees shall be eligible to participate immediately in all reimbursement account and
flexible spending account plans offered to similarly situated Supplier employees.
	 
	 	(i)	 	Tuition Assistance. ABM shall remain financially responsible for courses which
are in progress as of the enrolled Transitioned Employee’s Employment Effective Date
and courses for which tuition assistance has already been approved and paid by ABM.
For purposes of the preceding sentence, “courses” refers to specific classes in
progress and does not refer to a degree program. Transitioned Employees shall be
eligible to participate, with prior Supplier management approval, in any tuition
assistance programs provided by Supplier to its similarly situated employees. For
courses and degree programs approved by ABM that are not scheduled to begin until after
the Employment Effective Date and for which ABM has not yet paid the applicable
tuition, Supplier shall review each such course and degree program, and if Supplier
independently approves such course under Supplier’s tuition reimbursement policies and
procedures, Supplier shall reimburse Transitioned Employees in accordance with
Supplier’s policy.
	 
	 	(j)	 	Bonus Programs. Beginning in their second calendar year of employment with
Supplier, Transitioned Employees shall be eligible to participate in the Employee
Performance Bonus program provided by Supplier to its similarly situated employees, in
accordance with Supplier’s guidelines for such program. .





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	 	(k)	 	Severance Pay Plans.






	 	(i)	 	General. Transitioned Employees who are offered and accept
regular employment for an indeterminate period of time shall be eligible to
participate in all severance pay plans provided by Supplier to its similarly
situated employees. Except as provided in subsection (ii) below, Transitioned
Employees shall not receive credit for their years of service with ABM for
purposes of calculating their payments under Supplier’s severance plans.
Supplier shall be financially responsible for all severance payments made to
such Transitioned Employees.
	 
	 	(ii)	 	Special Arrangement. Notwithstanding Section
8.2(k)(i), if (1) Supplier terminates a Transitioned Employee’s employment
(A) at the end of the Interim Period or any
extensions thereof agreed to by Supplier and the applicable employee or (B)
prior to the end of the Interim Period for any reason other than “cause” or
“performance” (as defined in Section 8.1(d)), or (2) a Transitioned
Employee rejects a employment offer that does not qualify as a Qualified
Offer (as defined in Section 8.1(a)(ii) above), or (3) the
Transitioned Employee rejects a Qualified Offer because it requires a change
in work location that meets Suppliers requirements for benefits under its
U.S Mobility Plan, then Supplier shall pay such Transitioned Employee, upon
receipt of a signed general release covering both ABM and IBM, a severance
payment equal to one (1) week of their base pay for each fully completed
combined (ABM and Supplier) year of employment, with a six (6) week minimum
payment and a twenty-six (26) week maximum payment. Each such Transitioned
Employee also shall be eligible for Supplier’s Career Transition Services
(CTS), subsidized Transitional Medical Program (COBRA) and Transitional
Group Life Insurance (GLI) programs based upon combined ABM and IBM service.
Supplier shall be financially responsible for all severance payments and
other separation benefits provided to such Transitioned Employees. Thirty
(30) days after the close of the Interim Period, Supplier shall calculate
the total cost of the severance payments and other separation benefits
provided to Transitioned Employees who were released by Supplier at the end
of the Interim Period. Supplier will then either invoice or reimburse ABM,
as appropriate, for any amounts above or below the planned eight hundred
fifty thousand dollars ($850,000) budgeted for such expenses.
Notwithstanding the foregoing, if, during his or her specified term of
employment, a Transitioned Employee is offered and accepts regular
employment for an indeterminate period of time, such Transitioned Employee
shall not be entitled to the enhanced severance benefits described in this
Section 8.1.2(k)(ii).






	 	(l)	 	Access to Retiree Medical. Transitioned Employees shall be eligible to
participate in Supplier’s post retirement medical coverage plans at group rates, based
on Supplier age and service requirements and combined years of service with ABM and
Supplier, provided they elect to participate in the program upon exit from Supplier.





8.3 Other Employee Matters.





As of the Employment Effective Date, the Transitioned Employees shall be employees of
Supplier for all purposes. Supplier shall be responsible for funding and distributing
benefits under the benefit plans in which Transitioned Employees participate on or after the
Transitioned Employee’s Employment Effective Date and for paying any compensation and
remitting any income, disability, withholding and other employment taxes for such
Transitioned Employees beginning on the Employment Effective Date. ABM shall be responsible
for funding and distributing benefits under the ABM benefit plans in which Transitioned
Employees participated prior to the Employment Effective Date and for paying any
compensation and remitting any income, disability, withholding and other employment taxes
for such Transitioned Employees for the period prior to the Employment Effective Date of
such Transitioned Employee. ABM shall provide Supplier with such information in ABM’s
possession reasonably requested by Supplier in order to fulfill its obligations under this
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8.4 Key Supplier Personnel





	 	(a)	 	Approval of Key Supplier Personnel.






	 	(i)	 	Before assigning an individual to act as one of the Key
Supplier Personnel whether as an initial assignment or a subsequent assignment,
Supplier shall notify ABM of the proposed assignment, shall introduce the
individual to appropriate ABM representatives, shall provide reasonable
opportunity for ABM representatives to interview the individual, and shall
provide ABM with a resume and such other information about the individual as
may be reasonably requested by ABM. If ABM objects to the proposed assignment,
the Parties shall attempt to resolve ABM’s concerns on a mutually agreeable
basis. If the Parties have not been able to resolve ABM’s concerns within five
(5) business days, or as
otherwise agreed, of ABM communicating its concerns, Supplier shall not
assign the individual to that position and shall propose to ABM the
assignment of another individual of suitable ability and qualifications.
	 
	 	(ii)	 	ABM may designate up to ten (10) positions to be held by Key
Supplier Personnel during the period up to the migration to the Supplier data
center (as provided for in Schedule H), and up to five (5) positions to
be held by Key Supplier Personnel during the remainder of the Term. Supplier
shall identify and obtain ABM’s approval of all Key Supplier Personnel prior to
the Commencement Date. The Key Supplier Personnel that have been approved as
of the Effective Date are listed in Schedule C.
	 
	 	(iii)	 	ABM may from time to time change the positions designated as
Key Supplier Personnel under this Agreement with Supplier’s approval which
shall not be unreasonably withheld.






	 	(b)	 	Continuity of Key Supplier Personnel. Supplier shall cause each of the Key
Supplier Personnel to devote full time and effort for, at a minimum, the period
specified in Schedule C after the date he or she assumes the position in
question (provided that, in the case of Key Supplier Personnel assigned prior to the
Commencement Date, the minimum period shall be the specified period from the
Commencement Date). Supplier shall not transfer, reassign or remove any of the Key
Supplier Personnel (except as a result of voluntary resignation, involuntary
termination for cause, illness, disability, death or approved leave in accordance with
Supplier’s standard employment policies) or announce its intention to do so during the
specified period without ABM’s prior approval, which ABM may withhold in its reasonable
discretion based on its own self interest. In the event of the voluntary resignation,
involuntary termination for cause, illness, disability, death or approved leave in
accordance with Supplier’s standard employment policies of one of its Key Supplier
Personnel during or after the specified period, Supplier shall (i) give ABM as much
notice as reasonably possible of such development, and (ii) expeditiously identify and
obtain ABM’s approval of a suitable replacement. In addition, even after the period
specified in Schedule C, Supplier shall transfer, reassign or remove one of its
Key Supplier Personnel only after (i) giving ABM at least forty five (45) days prior
notice of such action, (ii) identifying and obtaining ABM’s approval of a suitable
replacement at least thirty (30) days prior to the effective date of such transfer,
reassignment or removal, (iii) demonstrating to ABM’s reasonable satisfaction that such
action will not have an adverse impact on Supplier’s performance of its obligations
under this Agreement, and (iv) completing any and all necessary knowledge transfer
between the departing Key Supplier Personnel and his or her ABM-approved replacement.
Under no circumstances shall Supplier transfer, reassign or remove more than two (2)
Key Supplier Personnel in any twelve (12) month period.
	 
	 	(c)	 	Retention Program. Supplier will implement and maintain a reasonable retention
strategy designed to retain Key Supplier Personnel on the ABM account for the
prescribed period, which shall be at least as favorable as the retention strategy it
implements and maintains for similarly situated Supplier employees. Supplier shall
implement various retention strategies to retain Key Supplier Personnel, including but
not limited to, granting stock options, awards, salary increases,





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	 	 	 	recognition events
and other retention and incentive programs offered to similarly situated Supplier
employees.





8.5 Supplier Account Executive.





Supplier shall designate a “Supplier Account Executive” for this ABM engagement.. The
Supplier Account Executive shall (i) be one of the Key Supplier Personnel; (ii) be a full
time employee of Supplier; (iii) devote his or her full time and effort to managing the
Services; (iv) remain in this position for a minimum period of two (2) years from initial
assignment; (v) serve as the single point of accountability for the Services, and (vi) have
day-to-day authority for acting on behalf of Supplier in matters pertaining to this
Agreement and for achieving customer satisfaction and attainment of all Service Levels.



8.6 Supplier Personnel Are Not ABM Employees.





As of the Commencement Date and except as otherwise expressly set forth in this Agreement,
the Parties intend to create an independent contractor relationship and nothing in this
Agreement shall operate or be construed as making ABM (or the Eligible Recipients) Supplier
partners, joint venturers, principals, joint employers, agents or employees of or with the
other. As of the Commencement Date no officer, director, employee, agent, Affiliate,
contractor or subcontractor retained by Supplier to perform work on ABM’s behalf hereunder
shall be deemed to be an officer, director, employee, agent, Affiliate, contractor or
subcontractor of ABM for any purpose. Supplier, not ABM, has the right, power, authority
and duty to supervise and direct the activities of the Supplier Personnel and to compensate
such Supplier Personnel for any work performed by them on ABM’s behalf pursuant to this
Agreement. Supplier, and not ABM, shall be responsible and therefore solely liable for all
acts and omissions of Supplier Personnel, including acts and omissions constituting gross
negligence, willful misconduct and/or fraud.



8.7 Replacement, Qualifications, and Retention of Supplier Personnel.





	 	(a)	 	Sufficiency and Suitability of Personnel. Supplier shall assign (or cause to
be assigned) sufficient Supplier Personnel to provide the Services in accordance with
this Agreement and such Supplier Personnel shall possess suitable competence, ability
and qualifications and shall be properly educated and trained for the Services they are
to perform.
	 
	 	(b)	 	Requested Replacement.






	 	(i)	 	In the event that ABM determines in good faith that the
continued assignment to ABM of any Key Supplier Personnel is not in the best
interests of ABM or the Eligible Recipients, then ABM shall give Supplier
notice to that effect requesting that such Key Supplier Personnel be replaced.
Promptly after its receipt of such a request by ABM, Supplier shall replace (or
cause to be replaced) such Key Supplier Personnel with an individual of
suitable ability and qualifications. Nothing in this provision shall operate
or be construed to limit Supplier’s responsibility for the acts or omission of
the Supplier Personnel, or be construed as joint employment.
	 
	 	(ii)	 	In the event that ABM determines in good faith that the
continued assignment to ABM of any individual Supplier Personnel (other than
Key Supplier Personnel) is not in the best interests of ABM or the Eligible
Recipients, then ABM shall give Supplier notice to that effect requesting that
such Supplier Personnel be replaced. Supplier shall have ten (10) days
following ABM’s request for removal of such Supplier Personnel in which to
investigate the situation, correct any deficient performance and provide ABM
with assurances that such deficient performance shall not recur (provided that,
if requested to do so by ABM for actual or suspected violations of ABM Rules,
Supplier shall immediately remove (or cause to be removed) the individual in
question from all ABM Sites pending completion of Supplier’s investigation and
discussions with ABM). If, following such ten (10) day period, ABM is not
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	 	 	 	Supplier’s efforts to correct the
deficient performance and/or to ensure its non-recurrence, Supplier shall, as
soon as possible, remove and replace such Supplier Personnel with an individual
of suitable ability and qualifications, without cost to ABM.






	 	(iii)	 	Nothing in Section 8.7(b) shall operate or be
construed to limit Supplier’s responsibility for the acts or omission of the
Supplier Personnel, or be construed as joint employment.






	 	(c)	 	Turnover Rate and Data. If ABM reasonably determines that Supplier’s turnover
rate is unacceptable and so notifies Supplier, Supplier shall within ten (10) business
days (i) provide ABM with data concerning Supplier’s turnover rate, (ii) meet with ABM
to discuss the reasons for the turnover rate, and (iii) submit a proposal for reducing
the turnover rate to an acceptable level for ABM’s review and reasonable approval.
Notwithstanding any transfer or turnover of Supplier
Personnel, Supplier shall remain obligated to perform the Services without
degradation and in accordance with the Service Levels.
	 
	 	(d)	 	Background Check/Drug Screening. Supplier shall complete (or caused to be
completed) a satisfactory background check of each Supplier Personnel (except
Transitioned Employees) prior to such Supplier Personnel first entering any ABM
Facility or Site; provided that, if a satisfactory background check was completed in
connection with the hiring of such Supplier Personnel, it need not be repeated.
	 
	 	(e)	 	Restrictions on Performing Services to Competitors. Neither Supplier nor any
Subcontractor shall cause or permit any Key Supplier Personnel engaged in the provision
of Services to ABM, to perform services directly or indirectly for a Direct ABM
Competitor either while engaged in the provision of Services to ABM or the Eligible
Recipients or during the twelve (12) months immediately following the termination of
his or her involvement in the provision of such Services without ABM’s prior written
consent.





8.8 Training/Career Opportunities.





Supplier shall offer training, skills development and career growth opportunities to
Transitioned Employees that are at least as favorable as those offered generally to its
similarly situated employees.



8.9 Conduct of Supplier Personnel.





	 	(a)	 	Conduct and Compliance. While at ABM Sites, Supplier Personnel shall (i)
comply with the ABM Rules and other rules and regulations regarding personal and
professional conduct generally applicable to personnel at such ABM Sites (and
communicated orally or in writing to Supplier or Supplier Personnel or made available
to Supplier or Supplier Personnel by conspicuous posting at an ABM Facility, electronic
posting or other means generally used by ABM to disseminate such information to its
employees or contractors), (ii) comply with reasonable requests of Affected Employees
pertaining to personal and professional conduct, (iii) attend workplace training
offered by ABM at ABM’s request, and (iv) otherwise conduct themselves in a
businesslike manner.
	 
	 	(b)	 	Identification of Supplier Personnel. All Supplier Personnel shall clearly
identify themselves as Supplier Personnel and not as employees of ABM. This shall
include any and all communications, whether oral, written or electronic. Each Supplier
Personnel shall wear a badge indicating that he or she is not an employee of ABM.
	 
	 	(c)	 	Restriction on Marketing Activity. Except for the Supplier Project Executive,
none of the Supplier Personnel shall conduct any marketing activities at ABM, other
than reporting potential marketing opportunities to Supplier’s designated marketing
representatives.






In addition, except for the Supplier Personnel occupying the positions designated
with an asterisk in Schedule C, in no event shall Supplier pay any Supplier
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delivering Services under this Agreement
(including, for example, business aligned service delivery managers or service
delivery executives), any incentive compensation or bonuses based upon revenue from
sales to ABM or any other Eligible Recipient. For the avoidance of doubt, nothing
in this provision is intended to compromise Supplier’s Employee Performance
Bonus program or the Supplier executive incentive bonus program which consider
total IBM and IBM Global Services revenue.



8.10 Restrictions on Changes in Supplier Staffing/Facilities.





	 	(a)	 	Supplier shall not move Services in a Functional Service Area or sub-Functional
Service Area provided from an approved Supplier Facility and country to a Supplier
Facility and country from which such Services had not previously been provided by
Supplier without ABM’s prior approval.
	 
	 	(b)	 	To the extent Services in the same Functional Service Area or sub-Functional
Service Area are provided by Supplier Personnel from Supplier Facilities in different
countries, Supplier shall not change the extent to which such Services are provided by
Supplier Personnel from each such Supplier Facility and country, as specified in
Schedule O.2, by more than ten percent (10%), in the aggregate, without ABM’s
prior approval. In addition, even if such a change in Supplier staffing is less than
ten percent (10%) in the aggregate, Supplier shall use commercially reasonable efforts
to provide ABM with advance notice of each such change. For avoidance of doubt, the
foregoing is measured as the cumulative impact of the movement of FTEs and work between
and among Supplier Facilities and countries, not by any single change, and changes
attributable solely to changes in service volumes are not subject to the limits
described in this Section 8.10(b).





8.11 Substance Abuse.





To the extent permitted by applicable Laws, Supplier agrees to immediately remove (or cause
to be removed) any Supplier Personnel who is known to be or reasonably suspected of engaging
in substance abuse while on ABM Sites, in an ABM vehicle or while performing Services. (In
the case of reasonable suspicion, such removal shall be pending completion of the applicable
investigation.) Substance abuse includes the sale, attempted sale, possession or use of
illegal drugs, drug paraphernalia, or alcohol, or the misuse of prescription or
non-prescription drugs. Supplier represents and warrants that it has and will maintain a
substance abuse policy and that such policy will be applicable to all Supplier Personnel
performing Services under this Agreement. Supplier represents and warrants that it shall
require its Subcontractors and Affiliates providing Services to have and maintain such
policy and practices and to adhere to this provision.



8.12 Collective Bargaining Agreements and WARN Act.





	 	(a)	 	Supplier represents that, as of the Effective Date, it does not have collective
bargaining agreements with unionized personnel in the United States. Notwithstanding
the foregoing, Supplier shall provide ABM not less than ninety (90) days notice of the
expiration of any collective bargaining agreement with unionized Supplier Personnel if
the expiration of such agreement or any resulting labor dispute could potentially
interfere with or disrupt the business or operations of ABM or an Eligible Recipient or
impact Supplier’s ability to timely perform its duties and obligations under this
Agreement.
	 
	 	(b)	 	WARN Act Commitment. Unless otherwise agreed by the Parties, Supplier shall
not, for a period of sixty (60) days after the Commencement Date, cause any of the
Transitioned Employees to suffer “employment loss” as that term is construed under the
Worker Adjustment and Retraining Notification Act (“WARN Act”), if such employment loss
could create any liability for ABM, the Eligible Recipients, or its or their
Affiliates, unless Supplier delivers notices under the WARN Act in a manner and at a
time such that ABM, the Eligible Recipients, or its or their Affiliates bear no
liability with respect thereto. For purposes of this Section 8.12(b), employee





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	 	 	 	terminations by ABM, the Eligible Recipients and/or its or their Affiliates during such
period shall not be considered.





9. SUPPLIER RESPONSIBILITIES




9.1 Policy and Procedures Manual.





	 	(a)	 	Delivery and Contents. As part of the Services, and at no additional cost to
ABM, Supplier shall deliver to ABM for its review, comment and approval (i) a
preliminary draft of the Policy and Procedures Manual applicable to the performance of
the Services during the period preceding the migration to the Supplier data center not
later than fifty (50) days after the Commencement Date, and (ii) a final draft of the
Policy and Procedures Manual applicable to the performance of such Services not later
than one hundred ten (110) days after the Commencement Date.
	 
	 	 	 	Thereafter, as part of the Services, and at no additional cost to ABM, Supplier
shall deliver to ABM for its review, comment and approval (i) a preliminary draft of
a revised Policy and Procedures Manual containing additions and modifications
applicable to the performance of the Services following the migration to the
Supplier data center not later than thirty (30) days prior to the scheduled
migration date), and (ii) a final draft of the revised Policy and Procedures Manual
containing such modifications not later than the scheduled migration date.
	 
	 	(b)	 	At a minimum, each such Policy and Procedures Manual shall include the
following:






	 	(i)	 	a detailed description of the Services and the manner in which
each will be performed by Supplier, including (A) the Equipment, Software, and
Systems to be procured, operated, supported or used; (B) documentation
(including the ITS Systems Life Cycle documentation, operations manuals, user
guides, specifications, policies/procedures and disaster recovery plans)
providing further details regarding such Services; (C) the specific activities
to be undertaken by Supplier in connection with each Service, including, where
appropriate, the direction, supervision, monitoring, staffing, reporting,
planning and oversight activities to be performed by Supplier under this
Agreement; and (D) the processes, methodologies and controls to be implemented
and used by Supplier to ensure compliance with applicable Laws;
	 
	 	(ii)	 	the procedures for ABM/ Supplier interaction and communication,
including (i) call lists; (ii) procedures for and limits on direct
communication by Supplier with Affected Employees prior to the Affected
Employees becoming employees of Supplier; (iii) Change Management, Problem
Management and escalation procedures; (iv) priority and project procedures; (v)
Acceptance procedures; (vi) Acceptance testing; and (vii) Quality Assurance
procedures, internal controls and checkpoint reviews; and
	 
	 	(iii)	 	practices and procedures addressing such other issues and
matters as ABM shall reasonably require.






	 	 	 	Supplier shall incorporate ABM’s then current policies and procedures in the Policy
and Procedures Manual to the extent it is directed to do so by ABM.






	 	(c)	 	Revision and Maintenance. Supplier shall incorporate any reasonable comments
or suggestions of ABM into the Policy and Procedures Manual and shall deliver a final
revised version to ABM within fifteen (15) days of its receipt of such final comments
and suggestions for ABM’s approval. The Policy and Procedures Manual will be delivered
and maintained by Supplier in electronic format and will be accessible electronically
to ABM IT management and Authorized Users in a manner consistent with ABM’s security
policies and the confidentiality requirements included in this Agreement. For avoidance
of doubt, Supplier shall prepare and maintain a single Policy and





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	 	 	 	Procedures Manual for
this Master Agreement and all Companion Agreements, rather than a separate Policy and
Procedures Manual for each Master Agreement and Companion Agreement.






	 	(d)	 	Compliance. Supplier shall perform the Services in accordance with ABM’s
then-current policies and procedures, including the ITS Systems Life Cycle
documentation, until the Policy and Procedures Manual is finalized and agreed upon by
the Parties. Thereafter, Supplier shall perform the Services in accordance with the
Policy and Procedures Manual. In the event of a conflict between the provisions of
this Agreement and the Policy and Procedures Manual, the provisions of this Agreement
shall control unless the Parties expressly agree otherwise and such agreement is set
forth in the relevant portion of the Policy and Procedures Manual.
	 
	 	(e)	 	Modification and Updating. Supplier shall promptly modify and update the
Policy and Procedures Manual periodically to reflect changes in the operations or
procedures described therein and shall provide the proposed changes to ABM for review,
comment and approval. To the extent any such change would (i) increase ABM’s total
costs of receiving the Services; (ii) require material changes to ABM Facilities,
systems, software or equipment; (iii) have a material adverse impact on the
functionality, interoperability, performance, accuracy, speed,
responsiveness, quality or resource efficiency of the Services; or (iv) violate or
be inconsistent with the ABM Standards, ABM may withhold such approval in its sole
discretion.





9.2 Reports.





	 	(a)	 	Reports. Supplier shall provide ABM with reports pertaining to the performance
of the Services and Supplier’s other obligations under this Agreement permitting ABM to
monitor and manage Supplier’s performance (“Reports”). The Reports to be provided by
Supplier shall include those described in Schedule R in the format and at the
frequencies provided therein. In addition, from time to time, ABM may identify
additional Reports to be generated by Supplier and delivered to ABM on an ad hoc or
periodic basis. All Reports shall be provided to ABM as part of the Services and at no
additional charge to ABM. The Reports described in Schedule R and, to the
extent reasonably applicable, all other Reports shall be provided to ABM by secure
on-line connection in an electronic format capable of being accessed by Microsoft
Office components, with the information contained therein capable of being displayed
graphically and accessible from a web browser.
	 
	 	(b)	 	Back-Up Documentation. As part of the Services, Supplier shall provide ABM with
such documentation and other information available to Supplier as may be reasonably
requested by ABM from time to time in order to verify the accuracy of the Reports
provided by Supplier. In addition, Supplier shall provide ABM with all documentation
and other information reasonably requested by ABM from time to time to verify that
Supplier’s performance of the Services is in compliance with the Service Levels and
this Agreement; provided that Supplier shall not be required to provide ABM with any
confidential information subject to third party confidentiality agreements.
	 
	 	(c)	 	Correction of Errors. As part of the Services and at no additional charge to
ABM, Supplier shall promptly correct any errors or inaccuracies in or with respect to
the Reports, the information or data contained in such Reports, or other contract
deliverables caused by (i) Supplier, (ii) Subcontractors, (iii) Managed Third Parties
(except as otherwise provided in Section 6.11 or Schedule K), or (iv)
non-Supplier Personnel, including ABM employees, for whom Supplier is financially or
operationally responsible under this Agreement; provided that ABM will provide
reasonable assistance in rectifying any problems correcting any errors or inaccuracies
with respect to the Reports which may be attributed to Managed Third Parties and/or ABM
employees.





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9.3 Governance; Meetings.





	 	(a)	 	Governance. The Parties shall manage their relationship under this Agreement
using the governance model in Schedule T.
	 
	 	(b)	 	Meetings. During the Term, representatives of the Parties shall meet
periodically or as requested by ABM to discuss matters arising under this Agreement.
Such meetings shall include, at a minimum, the following:






	 	(i)	 	a periodic meeting at least monthly to review performance and
monthly reports, planned or anticipated activities and changes that might
impact performance, and such other matters as appropriate;
	 
	 	(ii)	 	a quarterly management meeting to review the monthly reports
for the quarter, review Supplier’s overall performance under the Agreement,
review progress on the resolution of issues, provide a strategic outlook for
ABM’s information systems requirements, and discuss such other matters as
appropriate;
	 
	 	(iii)	 	an annual meeting of senior management of both Parties to
review relevant contract and performance issues; and
	 
	 	(iv)	 	such other meetings of ABM and Supplier Personnel, including
senior management of Supplier, as ABM may reasonably request or are otherwise
provided for in Schedule T or the Policy and Procedures Manual.






	 	(c)	 	Agenda and Minutes. For each such meeting, upon ABM request, Supplier shall
prepare and distribute an agenda, which will incorporate the topics designated by ABM.
Supplier shall distribute such agenda in advance of each meeting so that the meeting
participants may prepare for the meeting. In addition, Supplier shall record and
promptly distribute minutes for every meeting for review and approval by ABM.
	 
	 	(d)	 	Authorized User and Eligible Recipient Meetings. Supplier shall notify the ABM
Contract Manager in advance of scheduled meetings with Authorized Users or Eligible
Recipients (other than meetings pertaining to the provision of specific Services on a
day-to-day basis) and shall invite the ABM Contract Manager to attend such meetings or
to designate a representative to do so.





9.4 Quality Assurance and Internal Controls.





	 	(a)	 	Supplier shall develop and implement Quality Assurance and internal control
processes and procedures to ensure that the Services are performed in an accurate and
timely manner, in accordance with (i) the Agreement, including the Service Levels, (ii)
generally accepted accounting principles, (iii) the accepted practices of first tier
providers in the ITO Services outsourcing industry, (iv) the ISO 9001 standard, (v) the
CMMi standard, (vi) ITIL standard, and (vii) subject to Section 15.10, the Laws
applicable to ABM and the Eligible Recipients. Such procedures shall include
verification, checkpoint reviews, testing, acceptance, and other procedures for ABM to
assure the quality and timeliness of Supplier’s performance.
	 
	 	(b)	 	Without limiting the foregoing, Supplier shall develop, implement/execute
(subject to ABM’s approval) and maintain processes, procedures and controls that
provide for:






	 	(i)	 	a strong control process for day-to-day operations designed to
assure that the following fundamental control objectives regarding the Services
are met: (A) financial and operational information is valid, complete and
accurate; (B) operations are performed efficiently and achieve effective
results, consistent with the requirements of this





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	 	 	 	Agreement; (C) assets are
safeguarded; and (D) actions and decisions of Supplier are, subject to
Section 15.10, in compliance with applicable Laws;






	 	(ii)	 	the following basic control activities into Supplier work
processes related to the Services: (A) accountability clearly defined and
understood; (B) access properly controlled; (C) adequate supervision; (D)
transactions properly authorized; (E) transactions accurately recorded; (F)
transactions recorded in proper accounting period; (G) policies, procedures,
and responsibilities documented; (H) adequate training and education; (I)
adequate separation of duties; and (J) recorded assets compared with existing
assets;
	 
	 	(iii)	 	a process designed to ensure periodic control self-assessments
are performed with respect to all Services;
	 
	 	(iv)	 	an internal audit function to sufficiently monitor the
processes and Systems used to provide the Services (i.e., perform audits, track
control measures, communicate status to management, drive corrective action,
etc.). As part of such internal audit function, Supplier will:






	 	(A)	 	Develop and execute an annual risk assessment
process to evaluate risk in the Services. This assessment shall become
the basis to create an annual risk-based audit plan of Services. The
plan shall be provided to ABM for its review and approval thirty (30)
days before the end of each calendar year.
	 
	 	(B)	 	If such an audit reveals a significant
deficiency in the Services, promptly provide a summary of the audit
reports resulting from such audit activity to ABM, and make related
work papers available to ABM upon request.
	 
	 	(C)	 	Adopt a qualitative methodology (e.g. high,
medium, low effectiveness) of reporting the level of controls and
internal audit results.
	 
	 	(D)	 	Provide a summary of audit activity performed,
associated significant findings, and status of follow-up activity, and
a summary of control incidents (i.e., frauds, conflict of interest
situations, etc.) and related corrective action, at least quarterly, in
each case, to the extent related to any significant deficiency in the
Services.






	 	(c)	 	Supplier shall submit such processes and procedures to ABM for its review not
later than fifteen (15) days after the Commencement Date. Such processes, procedures
and controls shall be included in the Policy and Procedures Manual. Prior to
Supplier’s delivery of such processes and procedures, Supplier shall adhere strictly to
ABM’s then current policies, procedures and controls, including the ITS Systems Life
Cycle documentation. No failure or inability of the quality assurance procedures to
disclose any errors or problems with the Services shall excuse Supplier’s failure to
comply with the Service Levels and other terms of this Agreement.





9.5 Architecture, Standards and Information Technology Planning.





	 	(a)	 	Supplier Support. As requested by ABM and subject to Section 15.10,
Supplier shall assist ABM in defining application management, telecommunication, IT
infrastructure, help desk, and information technology policies, processes, procedures,
controls, products, systems, architectures and standards on an ongoing basis to be
adhered to by Supplier in the performance of the Services and to be provided, operated,
managed, supported and used by Supplier in connection therewith (collectively, the “ABM
Standards”) and in preparing long-term Strategic Plans and short-term implementation
plans on an annual basis. The assistance to be provided by Supplier shall include (i)
active participation with ABM representatives on permanent and ad-hoc committees and
working groups addressing such issues; (ii) assessments of the then-current ABM
Standards; (iii)





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	 	 	 	analyses of the appropriate direction for such ABM Standards in light
of business priorities, business strategies, Supplier’s technical knowledge/expertise
and competitive market forces; and (iv) recommendations regarding application
management, telecommunication, IT infrastructure, help desk, and information technology
architectures and platforms, software and hardware products, strategies and directions
and other enabling technologies and processes. With respect to each recommendation,
Supplier shall provide estimates and analysis of the following at a level of detail
reasonably sufficient to permit ABM to make an informed business decision: (i) cost
projections and cost/benefit analyses; (ii) the changes, if any, in the personnel and
other resources required to operate and support the changed environment; (iii) the
resulting impact on ABM’s application management, telecommunication, IT infrastructure,
help desk, and information technology costs; (iv) the expected performance, quality,
responsiveness, efficiency, reliability, security risks and other service levels; and
(v) general plans and projected time schedules for development and implementation.






	 	(b)	 	ABM Authority and Supplier Compliance. ABM shall have final authority to
promulgate ABM Standards and to modify or grant waivers from such ABM Standards.
Supplier shall (i) comply with the ABM Standards and work with ABM to enforce such ABM
Standards, (ii) modify the Services as and to the extent necessary to conform to such
ABM Standards, and (iii) obtain ABM’s prior written approval for any deviations from
such ABM Standards.
	 
	 	(c)	 	Financial, Forecasting and Budgeting Support. On a monthly basis on the dates
and in accordance with the procedures set by ABM and reflected in the Policy and
Procedures Manual, Supplier shall provide a twelve (12) month rolling forecast to ABM
for ABM’s forecasting and budgeting purposes, including: (i) actual and forecasted
utilization of Resource Units; and (ii) changes to the environment impacting ABM’s
costs or utilization. In addition, on an annual basis,
Supplier shall provide information to ABM regarding opportunities to modify or
improve the Services, and reduce the Charges and/or total cost to ABM of receiving
the Services.





9.6 Change Control.





	 	(a)	 	Compliance with Change Control Procedures. In making any System Change, the
Parties shall comply with the Change Control Procedures specified in the Policy and
Procedures Manual. Prior to making any System Change or using any new (e.g., not
tested in or for the ABM environment) Software or Equipment to provide the Services,
Supplier shall have verified by appropriate testing (with ABM’s cooperation and
involvement, to the extent reasonably requested), that the change or item has been
properly installed, is operating in accordance with its specifications, is performing
its intended functions in a reliable manner and is compatible with and capable of
operating as part of the ABM environment. This obligation shall be in addition to any
unit testing done by Supplier as part of routine deployment or installation of Software
or Equipment.
	 
	 	(b)	 	System Change Costs. Unless otherwise specified in Schedule E or
approved in accordance with Section 9.6(c) or otherwise, Supplier shall bear
all charges, fees and costs associated with any System Change desired by Supplier,
including all charges, fees and costs associated with (i) the design, installation,
implementation, testing and rollout of such System Change, (ii) any modification or
enhancement to, or substitution for, any impacted Software, Equipment, Services,
Materials or System, (iii) any increase in the total cost to ABM or the Eligible
Recipients of operating, maintaining or supporting any impacted Software, Equipment,
Services, Materials or System, and (iv) subject to Section 9.6(h), any increase
in resource usage to the extent it results from a System Change.
	 
	 	(c)	 	ABM Approval – Cost, Adverse Impact. Supplier shall make no System Change
which may (i) increase ABM’s total cost of receiving the Services; (ii) require
material changes to or have an adverse impact on ABM’s or the Eligible Recipients’
business, operations, facilities, systems, software, utilities, tools or equipment;
(iii) require Supplier, ABM or the Eligible Recipients to install a new version,
release, upgrade of, or replacement for, any Software or Equipment or to





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	 	 	 	modify any
Software or Equipment, (iv) have a material adverse impact on the functionality,
interoperability, performance, accuracy, speed, responsiveness, quality or resource
efficiency of the Services, (v) have an adverse impact on any Applications run by ABM
or Eligible Recipients, or (vi) have an adverse impact on Supplier’s ability to
adequately deliver the Services, (vii) have an adverse impact on the cost, either
actual or planned, to ABM of terminating all or any part of the Services or exercising
its right to in-source or use third parties; (viii) have an adverse impact on ABM’s or
Eligible Recipients’ environment (including its flexibility to deal with planned future
changes, interoperability and its stability), (ix) introduce new technology to (A)
ABM’s or an Eligible Recipient’s environment or business or (B) Supplier’s environment,
to the extent that such introduction has or may have an impact on ABM’s environment; or
(x) violate or be inconsistent with ABM Standards or plans as specified in Section
9.5 without first obtaining ABM’s approval, which approval ABM may withhold in its
sole discretion. If Supplier desires to make such a System Change, it shall provide to
ABM a written proposal describing in detail the extent to which the desired System
Change may affect the functionality, performance, price or resource efficiency of the
Services and any benefits, savings or risks to ABM or Eligible Recipients associated
with such System Change.






	 	(d)	 	ABM Approval – IVR/VRU Solutions. Except to the extent the following is in use
on the Commencement Date, Supplier shall not implement or use in performing the
Services an IVR or VRU solution having one or more of the following characteristics
without first obtaining the approval of the ABM General Counsel or his or her designee:
(i) the entry by callers of distinct customer verification data that is compared to
information stored in a database to determine if the caller is qualified to continue
using the system; (ii) the IVR system provides the caller with computer generated
confirmation numbers; (iii) the use by callers of temporary PINs with the ability to
change the PIN; or (iv) the generation of automatic screen pops at the operator
terminal based on caller-specific information entered by the caller.
	 
	 	(e)	 	ABM Approval – Retained Systems and Business Processes. Supplier shall make no
System Change that may require ABM to install a new version, release or upgrade of, or
replacement for, any Software or Equipment or to modify any Software or Equipment or
otherwise have an adverse impact on the functionality, interoperability, performance,
accuracy, speed, responsiveness, quality, cost or resource efficiency of ABM’s Retained
Systems and Business Processes without first obtaining ABM’s approval, which approval
ABM may withhold in its sole discretion.
	 
	 	(f)	 	Temporary Emergency Changes. Notwithstanding the foregoing, Supplier may make
temporary System Changes required by an emergency if it has been unable to contact the
ABM Contract Manager to obtain approval after making reasonable efforts. Supplier
shall document and report such emergency changes to ABM as soon as practicable, but in
no event later than two (2) business days after the change is made. Such System
Changes shall not be implemented on a permanent basis unless and until approved by ABM.
	 
	 	(g)	 	Implementation. Supplier will schedule and implement all System Changes in
accordance Change Management and in all events so as not to (i) disrupt or adversely
impact the business or operations of ABM or the Eligible Recipients, (ii) degrade the
Services then being received by them, or (iii) interfere with their ability to obtain
the benefit of the Services.
	 
	 	(h)	 	Planning and Tracking. On a monthly basis, Supplier will prepare a rolling
quarterly “look ahead” schedule for ongoing and planned System Changes for the next
three (3) months. The status of System Changes will be monitored and tracked by
Supplier against the applicable schedule.
	 
	 	(i)	 	Comparisons. For any System Change, Supplier shall, upon ABM’s request,
perform a comparison at a reasonable and mutually agreed level of detail, between the
amount of resources required by the affected Software or Equipment to perform a
representative sample of the processing being performed for ABM and Eligible Recipients
immediately prior to the System





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	 	 	 	Change and immediately after the System Change. ABM
shall not be required to pay for increased resource usage due to a System Change except
to the extent that such System Change is requested or approved by ABM with notice of
the increased usage or ABM approves such System Change after notice from Supplier of
such increased resource usage.





9.7 Software Currency.





	 	(a)	 	Currency of Software. Subject to and in accordance with Sections 6.4, 6.5,
9.5, 9.6, 9.7(c) and Schedule J, Supplier agrees to maintain reasonable
currency for Software for which it is financially responsible under this Agreement and
provide maintenance and support for new releases and versions of Software for which it
is operationally responsible. For purposes of this Section 9.7(a), “reasonable
currency” shall mean that, unless otherwise directed by ABM, Supplier shall install
Major Releases and Minor Releases in accordance with the applicable Service
Responsibilities Matrices (SRM’s) set forth in Schedule E.
	 
	 	(b)	 	Evaluation and Testing. Prior to installing a new Major Release or Minor
Release, Supplier (with ABM’s cooperation and involvement, to the extent reasonably
requested), shall evaluate and test such Release to verify that it will perform in
accordance with this Agreement and the ABM Standards and that it will not (i) increase
ABM’s total cost of receiving the Services; (ii) require material changes to ABM
Facilities, systems, software or equipment; or (iii) adversely impact the
functionality, interoperability, performance or resource efficiency of the Services.
The evaluation and testing performed by Supplier (with ABM’s cooperation and
involvement, to the extent reasonably requested), shall be at least consistent with the
reasonable and accepted industry norms applicable to the performance of such Services
and shall be at least as rigorous and comprehensive as the evaluation and testing
usually performed by qualified service providers under such circumstances.
	 
	 	(c)	 	Approval by ABM. Notwithstanding Section 9.7(a), Supplier shall confer
with ABM prior to installing any Major Release or Minor Release, shall provide ABM with
the results of its testing and evaluation of such Release and a detailed implementation
plan and shall not install such Release if directed not to do so by ABM. Where
specified by ABM, Supplier shall not install new Software releases or make other
Software changes until their Acceptance by ABM. Supplier shall not install new
Software releases or make other Software changes if doing so would require ABM or the
Eligible Recipients to install new releases of, replace, or make other changes to
Applications Software or other Software for which ABM is financially responsible unless
ABM consents to such change. Supplier shall install, operate and support multiple
releases and/or versions of the same Software as and to the extent directed to do so by
ABM and, subject to Sections 9.7(e), (f) and 15.2(b), without any
increase in the Monthly Base Charges. To the extent Third Party Software for which
Supplier is operationally responsibility under Schedules E and J.1 is
no longer supported by the applicable licensor or manufacturer, Supplier shall use
commercially reasonable efforts to perform maintenance for such Software as required.
	 
	 	(d)	 	Updates by ABM. ABM and the Eligible Recipients shall have the right, but not
the obligation, to install new releases of, replace, or make other changes to
Applications Software or other Software for which ABM is financially responsible under
this Agreement.
	 
	 	(e)	 	Notwithstanding the other provisions of Section 9.7, Supplier’s failure
to meet the Service Levels or its other obligations under this Agreement shall be
excused if and to the extent such failure is attributable to ABM’s rejection of
Supplier’s proposed Upgrade or replacement of a Software version that is back-leveled
such that it is no longer supported by the applicable Software manufacturer, but only
if (i) Supplier notifies ABM prior to its final decision that Supplier is not likely to
be able, using commercially reasonable efforts, to meet such Service Level or other
obligation under such circumstances; (ii) Supplier uses commercially reasonable efforts
to identify and consider reasonable alternatives available to address and avoid the
impending performance failure; and (iii) Supplier uses commercially reasonable efforts
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obligation notwithstanding ABM’s rejection of or
insistence on the Software release or Software change.




	 	(f)	 	Notwithstanding the other provisions of Section 9.7, and subject to
Section 15.2(b), if ABM rejects Supplier’s proposed Upgrade or replacement of a
Software version that is back-leveled such that it is no longer supported by the
applicable Software manufacturer and Supplier is thereafter required to incur
additional fees and expenses to obtain necessary maintenance for such Software version
from such Software manufacturer in order to meet its obligations under this Agreement,
ABM shall reimburse Supplier for the reasonable fees and expenses thus incurred, but
only if (i) Supplier is unable, using commercially reasonable efforts, to perform such
maintenance using Supplier Personnel, (ii) ABM has rejected Supplier’s proposed Upgrade
or replacement of such Software version after being notified by Supplier that it will
not able to provide certain required maintenance for such Software version using
Supplier Personnel, (iii) Supplier notifies ABM of its intent to use such Software
manufacturer to perform maintenance and the anticipated fees and expenses associated
therewith and obtains ABM’s approval prior to incurring such fees and expenses, and
(iv) Supplier uses commercially reasonable efforts to minimize the fees and expenses to
be reimbursed by ABM.





9.8 [RESERVED]




9.9 Access to Specialized Supplier Skills and Resources.





Upon ABM’s request, Supplier shall use commercially reasonable efforts to provide ABM with
access to Supplier’s specialized services, personnel and resources on an expedited basis
taking into account the relevant circumstances (the “Specialized Services”). The Parties
acknowledge that the provision of such Specialized Services may, in some cases, constitute
New Services for which Supplier is entitled to additional compensation, but in no event
shall Supplier be entitled to any additional compensation for New Services under this
subsection unless the ABM Contract Manager and Supplier Account Executive, or their
authorized designee, expressly agree upon such additional compensation or Supplier’s
entitlement to additional compensation is established through the dispute resolution
process. If ABM authorizes Supplier to proceed but the Parties disagree as to whether the
authorized work constitutes New Services and ABM reasonably believes that such work is
material and is required on an urgent basis, Supplier shall proceed with such work if
directed to do so by ABM. In such event, the invoiced Charges for such work shall be deemed
disputed payments under Section 12.4, and the disagreement shall be submitted to
dispute resolution pursuant to Article 19.



9.10 Audit Rights.





	 	(a)	 	Contract Records. Supplier shall maintain complete and accurate records of and
supporting documentation for all Charges and all financial and non-financial
transactions relevant to the performance of the Services and Supplier’s financial and
operational obligations under this Agreement, including authorizations, System Changes
and other changes, implementations, soft document accesses, reports, filings, returns,
analyses, procedures, controls, records, data or information created, generated,
collected, processed or stored by Supplier (excluding Supplier’s internal costs, except
to the extent such costs are the basis on which ABM is charged). In addition, Supplier
shall, and/or shall cause its Subcontractors and suppliers to, maintain accurate
records of and supporting documentation for non-financial transactions (excluding
internal audit reports, but including notice to ABM of any finding of material
non-compliance relating to Supplier’s provision of the Services) to the extent Supplier
is required to maintain such records and documentation under this Agreement or such
records and documentation result from or are created in connection with the performance
of Supplier’s obligations under this Agreement (collectively, “Contract Records”).
With respect to the amounts chargeable to and payments made by ABM under this
Agreement, Contract Records shall be kept in accordance with generally accepted
accounting principles applied on a consistent basis. Supplier shall retain Contract
Records in accordance with ABM’s record retention policy as it may be reasonably
adjusted from





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	 	 	 	time to time and provided to Supplier in writing during the Term and any
Termination Assistance Services period and thereafter through the end of the second
(2nd) full calendar year after the calendar year in which Supplier stopped
performing Services (the “Audit Period”).
	 
	 	(b)	 	Operational Audits. During the Audit Period, Supplier shall, and (upon ABM’s
reasonable request) shall cause its Subcontractors to, provide to ABM (and internal and
external auditors, inspectors, regulators and other representatives that ABM may
designate from time to time, including customers, vendors, licensees and other third
parties to the extent ABM or the Eligible Recipients are legally or contractually
obligated to submit to audits by such entities) access at reasonable hours to Supplier
Personnel, to the facilities at or from which Services are then being provided and to
Contract Records and other pertinent information, all to the extent relevant to
performance of the Services and Supplier’s obligations under this Agreement. Such
access shall be provided for the purpose of performing audits and inspections, to (i)
verify the integrity of ABM Data, in accordance with the terms of this Agreement, (ii)
examine the systems that process, store, support and transmit that data, (iii) examine
the controls (e.g., organizational controls, input/output controls, system modification
controls, processing controls, system design controls, and access controls) and the
security, disaster recovery and back-up practices and procedures; (iv) examine
Supplier’s performance of the Services, in accordance with the terms of this Agreement;
(v) verify Supplier’s reported performance against the applicable Service Levels; (vi)
examine the accuracy of Supplier’s measurement, monitoring and management tools; and
(vii) enable ABM and the Eligible Recipients to meet applicable legal and regulatory
and contractual requirements (including those associated with the Sarbanes-Oxley Act of
2002 and the implementing regulations promulgated by the United States Securities and
Exchange Commission and Public Company Accounting Oversight Board), in each case to
the extent applicable to the Services performed by Supplier and/or the variable charges
for such services. Supplier shall (i) provide any assistance reasonably requested by
ABM or its designee in conducting any such audit, including installing and operating
audit software during the Term and any Termination Assistance Services period, (ii)
make requested personnel (to the extent still employed by Supplier or its applicable
Affiliate or Subcontractor), records and information available to ABM or its designee,
and (iii) in all cases, provide such assistance, personnel, records and information in an
expeditious manner to facilitate the timely completion of such audit.
	 
	 	(c)	 	Financial Audits. During the Audit Period, Supplier shall, and shall cause its
Subcontractors to, provide to ABM (and internal and external auditors, inspectors,
regulators and other representatives that ABM may designate from time to time,
including customers, vendors, licensees and other third parties to the extent ABM or
the Eligible Recipients are legally or contractually obligated to submit to audits by
such entities) access at reasonable hours to Supplier Personnel and to Contract Records
and other pertinent information, all to the extent relevant to the performance of
Supplier’s financial obligations under this Agreement. Such access shall be provided
for the purpose of performing audits and inspections to (i) verify the accuracy and
completeness of Contract Records, (ii) verify the accuracy and completeness of the
Charges and Pass-Through Expenses and Out-of-Pocket Expenses (iii) examine the
financial controls, processes and procedures utilized by Supplier in connection with
the Services, (iv) examine Supplier’s performance of its other financial obligations to
ABM under this Agreement, and (v) enable ABM and the Eligible Recipients to meet
applicable legal and regulatory and contractual requirements in each case to the extent
applicable to the Services performed by Supplier and/or the charges for such Services.
Supplier shall (i) provide any assistance reasonably requested by ABM or its designee
in conducting any such audit, (ii) make requested personnel (to the extent still
employed by Supplier or its applicable Affiliate or Subcontractor), records and
information available to ABM or its designee, and (iii) in all cases, provide such
assistance, personnel, records and information in an expeditious manner to facilitate
the timely completion of such audit. If any such audit reveals an overcharge by
Supplier, and Supplier does not successfully dispute the amount questioned by such
audit, Supplier shall promptly pay to ABM the amount of such overcharge (subject to
Section 12.1(d), net of any undercharges uncovered by the audit), together with
interest at the rate of twelve percent (12%) per annum from the date of Supplier’s
receipt of such overcharge. In addition, if any such audit reveals an overcharge of
more than five percent





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	 	 	 	(5%) of the audited Charges in any Charges category, Supplier
shall promptly reimburse ABM for the actual cost of such audit (provided that (i) the
amount of such reimbursement shall not exceed the amount of the overcharge, and (ii) if
ABM retains an auditor or inspector on a contingent fee basis, such contingent fee is
reasonable and in accordance with customary industry arrangements). Subject to
Section 12.1(d) if any such audit reveals an underpayment by ABM and ABM does
not successfully dispute the finding, ABM shall promptly pay Supplier the amount of
such undercharge.






	 	(d)	 	Audit Assistance. ABM and certain Eligible Recipients are subject to
regulation and audit by governmental bodies, standards organizations and other
regulatory authorities under applicable Laws, rules, regulations, standards and
contract provisions. If a governmental body, standards organization or other
regulatory authority exercises its right to examine or audit ABM’s or an Eligible
Recipient’s books, records, documents or accounting practices and procedures pursuant
to such Laws, rules, regulations, standards or contract provisions, Supplier shall
provide all assistance requested by ABM or the Eligible Recipient in responding to such
audits or requests for information.
	 
	 	(e)	 	General Procedures.






	 	(i)	 	Supplier shall obtain audit rights equivalent to those
specified in this Section 9.10 from all Subcontractors and will cause
such rights to extend to ABM.
	 
	 	(ii)	 	Notwithstanding the intended breadth of ABM’s audit rights, ABM
shall not be given access to the proprietary information of other Supplier
customers or to Supplier locations that are not related to ABM, Eligible
Recipients or the Services.
	 
	 	(iii)	 	In performing audits, ABM shall endeavor to avoid unnecessary
disruption of Supplier’s operations and unnecessary interference with
Supplier’s ability to perform the Services in accordance with the Service
Levels. Unless otherwise agreed, such audits will be conducted during
Supplier’s normal business hours.
	 
	 	(iv)	 	Following any audit, ABM shall conduct (in the case of an
internal audit), or request its external auditors or examiners to conduct, an
exit conference with Supplier to obtain factual concurrence with issues
identified in the review.
	 
	 	(v)	 	ABM shall be given reasonable private workspace in which to
perform an audit, plus access to photocopiers, telephone, facsimile machines,
computer hook-ups and any other facilities or equipment needed for the
performance of the audit.
	 
	 	(vi)	 	ABM shall provide Supplier with notice at least three (3)
business days prior to any operational or financial audit by ABM or its
authorized agents or representatives; provided that no such notice shall be
required with respect to audits conducted by government auditors, inspectors,
regulators or representatives. To the extent ABM has advance notice of a
governmental audit, it shall provide reasonable notice to Supplier.
	 
	 	(vii)	 	Prior to receiving access to Supplier Proprietary Information
or Supplier Facilities, external auditors and examiners designated by ABM
(other than government auditors and examiners) shall execute a non-disclosure
agreement substantially in the form attached hereto as Exhibit 1.
ABM’s external auditors and examiners shall not be Direct Supplier Competitors.






	 	(f)	 	Supplier Internal Audit. If Supplier determines as a result of its own
internal audit that it has overcharged ABM, then Supplier shall promptly pay or credit
to ABM the amount of such overcharge, together with interest from the date of
Supplier’s receipt of such overcharge at the Prime Rate. In the event such an audit
results in a determination that Supplier has undercharged





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	 	 	 	ABM, then, subject to
Section 12.1(d) and ABM’s right to dispute the amount of such undercharge,
Supplier shall immediately report such undercharge to ABM and invoice ABM for such
undercharged amounts.
	 
	 	(g)	 	Supplier Response. Supplier and ABM shall meet to review each audit report
prepared in connection with this Section 9.10 promptly after the issuance
thereof. Supplier will respond to each audit report in writing within thirty (30) days
from receipt of such report, unless a shorter response time is reasonable under the
circumstances. Supplier and ABM shall develop and agree upon an action plan to
promptly address and resolve any deficiencies, concerns and/or recommendations in such
audit report and Supplier, at its own expense, shall undertake remedial action in
accordance with such action plan and the dates specified therein.
	 
	 	(h)	 	Supplier Response to Government Audits. If an audit by a governmental body,
stock exchange or regulatory authority having jurisdiction over ABM, an Eligible
Recipient or Supplier results in a finding that Supplier is not in compliance with any
generally accepted accounting principle or other audit requirement or any Law relating
to the performance of its obligations under this Agreement, then unless otherwise
agreed, Supplier shall address and resolve the deficiency(ies) identified by such
governmental body, stock exchange or regulatory authority in accordance with
Section 15.10 and within the time period specified by such auditor.
Supplier shall do so at its own expense if and to the extent such audit deficiency or
finding of non-compliance results from Supplier’s failure to comply with its obligation
under this Agreement.
	 
	 	(i)	 	SAS70 Audit. In addition to its other obligations under this Section
9.10, Supplier shall cause a Statement of Auditing Standards (“SAS”) 70 Type II
audit (or equivalent audit) to be conducted by an independent public accounting firm on
a quarterly basis (e.g., February 28, May 31, August 31 and November 30) for Supplier
Facilities in North America at or from which outsourcing services are provided,
including the Supplier Facilities at or from which Services are provided under this
Agreement. Each quarterly SAS 70 Type II audit shall focus in general on Supplier’s
policies, procedures and internal controls during the preceding twelve (12) months, and
in particular on those applicable to a random sample of Supplier’s customers selected
by the independent public accounting firm. Supplier shall promptly provide ABM and its
independent auditors with a copy of the resulting audit report (and in all events shall
provide such report within sixty (60) days after the end of the defined quarterly
period). Such report shall be provided at no
additional charge to ABM. Supplier shall respond to the portions of such report
that are relevant to ABM or the Eligible Recipients in accordance with Section
9.10(g).
	 
	 	(j)	 	Audit Costs.






	 	(i)	 	Except as provided in Section 9.10(j)(ii) below,
Supplier and its Subcontractors shall provide the Services described in this
Section 9.10 as part of the Monthly Base Charges and at no additional
Charge to ABM.
	 
	 	(ii)	 	As part of the Monthly Base Charges, Supplier shall provide, at
ABM’s request, up to 1,000 FTE hours of audit assistance for audits initiated
by ABM in any Contract Year (“Baseline Audit FTEs”). The ABM Contract Manager
or his or her designee shall request, define and set the priority for such
audit assistance. Supplier shall report monthly on the level of effort
expended by Supplier in the performance of such audit assistance and shall not
exceed the Baseline Audit FTEs without ABM’s prior approval. Subject to
Sections 9.10(j)(iii), (iv) and (v), if ABM authorizes
Supplier to exceed the Baseline Audit FTEs in any Contract Year, ABM shall
either pay Supplier for such additional FTE hours at the rates specified in
Schedule J or apply such additional FTE hours against the Baseline
Project FTEs described in Section 11.8(a).
	 
	 	(iii)	 	Notwithstanding Section 9.10(j)(ii), to the extent the
level of audit assistance requested by ABM and provided by Supplier Personnel
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	 	 	 	ABM is, in the aggregate, eight (8)
FTE hours or less, there shall be no additional Charge to ABM for such
assistance and such FTE hours shall not be counted against the Baseline Audit
FTE pool described in Section 9.10(j)(ii) above.






	 	(iv)	 	Notwithstanding Section 9.10(j)(ii), to the extent the
audit assistance requested by ABM can be provided by Supplier using personnel
already assigned to ABM hereunder without impacting Service Levels, there will
be no additional charge to ABM for such audit assistance. If the audit
assistance requested by ABM cannot be provided by Supplier using such personnel
then assigned to ABM without impacting Service Levels, ABM, in its sole
discretion, may forego or delay any work activities or temporarily or
permanently adjust the work to be performed by Supplier, the schedules
associated therewith or the Service Levels to permit the performance of such
audit assistance using personnel already assigned to perform the Services.
	 
	 	(v)	 	Notwithstanding Section 9.10(j)(ii), there will be no
additional charge to ABM for audit assistance if, in performing such an audit,
ABM uncovers evidence that Supplier has breached any material obligation(s)
under this Agreement.





9.11 Agency and Disbursements.





	 	(a)	 	Disbursements. Beginning on the Commencement Date, Supplier shall make
payments to certain lessors, licensors and suppliers as paying agent of ABM or the
Eligible Recipients, or shall reimburse ABM for payments made by ABM or the Eligible
Recipients to such lessors, licensors and suppliers, if and to the extent such payments
relate to Third Party Contracts, Equipment leases or Third Party Software licenses for
periods on or after the Commencement Date as to which Supplier is financially
responsible, but which have not been formally transferred to Supplier.
	 
	 	(b)	 	Limited Agency. ABM hereby appoints Supplier as its limited agent during the
Term solely for the purposes of the administration of and payment of Pass-Through
Expenses, amounts under Managed Third Party agreements and amounts under Third Party
Contracts, Equipment leases and Third Party Software licenses for which Supplier is
financially responsible under Schedules E or J.1. ABM shall provide,
on a timely basis, such affirmation of Supplier’s authority to such lessors, licensors,
suppliers and other third parties as Supplier may reasonably request.
	 
	 	(c)	 	Reimbursement for Substitute Payment. If either Party in error pays to a third
party an amount for which the other Party is responsible under this Agreement, the
Party that is responsible for such payment shall promptly reimburse the paying Party
for such amount.
	 
	 	(d)	 	Notice of Decommissioning. Supplier agrees to notify ABM promptly if and to
the extent any ABM or Eligible Recipient owned Equipment or ABM or Eligible Recipient
leased Equipment will no longer be used to provide the Services. The notification will
include the identification of the Equipment and location, and the date it will no
longer be needed by Supplier, along with the reason for decommissioning. Upon receipt
of any such notice, ABM may (or may cause the applicable Eligible Recipient to), in its
sole discretion, terminate the Equipment lease for such leased Equipment as of the date
specified in such notice and sell or otherwise dispose of or redeploy such ABM or
Eligible Recipient owned Equipment that is the subject of such a notice as of the date
specified in such notice. Upon Supplier ceasing to use any Equipment (or, in the case
of leased Equipment, upon the last day ABM or Eligible Recipient is obligated to make
such leased Equipment available to Supplier, if earlier), Supplier shall return the
same to ABM in condition at least as good as the condition thereof on the Commencement
Date, ordinary wear and tear excepted. Supplier shall pack and prepare such Equipment
for shipping and shall arrange for the shipping of such Equipment to the location
designated by ABM. For Equipment located at a Supplier Facility, Supplier shall pay to
ship such Equipment to the designated location; for Equipment located at an ABM
Facility, ABM shall pay for any such shipping.





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9.12 Subcontractors.





	 	(a)	 	Use of Subcontractors. Except as provided in Section 9.12(b), Supplier
shall not subcontract any of its responsibilities without ABM’s prior written approval,
which may be withheld in ABM’s sole discretion. Prior to entering into a subcontract
with a third party for the Services, Supplier shall (i) give ABM reasonable prior
notice specifying the components of the Services affected, the scope of the proposed
subcontract, the identity and qualifications of the proposed Subcontractor, the extent
to which ABM will have the right to hire employees of the proposed Subcontractor, the
additional Service Taxes, if any, associated with the use of the proposed
Subcontractor, and the reasons for subcontracting the work in question; and (ii) obtain
ABM’s prior written approval of such Subcontractor. ABM shall have the right to revoke
its prior approval of a Subcontractor for reasonable cause and direct Supplier to
replace such Subcontractor as soon as possible. Subcontractors listed on Schedule
D as of the Effective Date are deemed to be approved by ABM.
	 
	 	(b)	 	Shared Subcontractors. Supplier may, in the ordinary course of business,
subcontract (i) for third party services or products that are not exclusively dedicated
to ABM and that do not include regular direct contact with ABM or Eligible Recipient
personnel or the performance of services at ABM Sites, or (ii) with temporary personnel
firms for the provision of temporary contract labor (collectively, “Shared
Subcontractors”); provided, that such Shared Subcontractors possess the training and
experience, competence and skill to perform the work in a skilled, workmanlike manner.
ABM shall have no approval right with respect to such Shared Subcontractors. If,
however, ABM expresses dissatisfaction with the services or products of a Shared
Subcontractor, Supplier shall work in good faith to resolve ABM’s concerns on a
mutually acceptable basis and, at ABM request, replace such Shared Subcontractor.
	 
	 	(c)	 	Supplier Responsibility. Supplier shall be responsible for any failure by any
Subcontractor or Subcontractor personnel to perform in accordance with this Agreement
or to comply with any duties or obligations imposed on Supplier under this Agreement to
the same extent as if such failure to perform or comply was committed by Supplier or
Supplier employees. Supplier shall be responsible for the performance of all such
Subcontractors and Subcontractor personnel providing any of the Services hereunder.
Supplier shall be ABM’s sole point of contact regarding the Services, including with
respect to payment.





9.13 Telecommunications Matters





	 	(a)	 	Supplier or a Supplier Subcontractor will, at no additional charge to ABM,
perform the functions of a Responsible Organization (“RespOrg”) with respect to all
“called party pays” toll free numbers (e.g., those in the 800, 888 and similar service
access code) (collectively “Toll Free Numbers”) for which ABM requests such RespOrg
services, and will fully and promptly perform all RespOrg functions under applicable
tariffs (including the Bell Operating Company Tariffs) or rules, regulations and
procedures of the FCC and the North American Number Coordinator pertaining to 800
Service Management System functions with respect to such Toll Free Numbers (“800
Service Management Systems SMS/800 Functions”); provided that Supplier and/or its
Subcontractor shall not hold in reserve or otherwise refuse to release such Toll Free
Numbers upon written request of ABM to release or transfer some or all Toll Free
Numbers.
	 
	 	(b)	 	To the extent technologically and operationally compatible and permitted by
applicable Laws, the Services may be connected/interconnected by ABM to other services
provided by Supplier or to services provided by ABM itself or any other vendor.
	 
	 	(c)	 	To the extent Supplier elects to change one or more of its underlying providers
of interexchange facilities, such change shall not, unless otherwise agreed, result in
any interruption, diminution in service quality, or increase in the Charges.
	 
	 	(d)	 	Orders for the installation or relocation of elements of the Services must be
submitted in writing by an authorized ABM representative and evidenced by an ABM
service order number. ABM shall only be responsible for orders placed, and information
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orders delivered to Supplier by such
authorized ABM representatives. Supplier will accept service orders only from
authorized ABM representatives identified on such list and will not solicit the
placement of orders by unauthorized employees of ABM or Eligible Recipients. Supplier
shall send ABM written confirmation of service orders not initiated by an authorized
ABM or an Eligible Recipient representative and submitted in writing to Supplier within
one (1) business day of Supplier’s receipt of each such order. Supplier shall
implement such service order(s) only upon receipt of ABM’s written ratification of such
order(s). Unless otherwise agreed by ABM in its sole discretion, in the event Supplier
implements a service order placed by an individual without authorization without first
receiving ratification of the order by an authorized representative, the order shall be
deemed null and void ab initio, Supplier will promptly discontinue the affected
Services, and Supplier will not charge ABM any deinstall or other charge that would
otherwise apply.




	 	(e)	 	With respect to the compatibility of the Services provided by Supplier with
Equipment for which ABM is financially and operationally responsible, Supplier agrees
to consult with ABM on request concerning the compatibility of Services with such
Equipment including, in the case of Equipment and related software that ABM proposes to
acquire, informing ABM of the likely effects (if any) of the use of such Equipment and
related software on the quality, operating characteristics and efficiency of the
Services and the effects (if any) of the Services on the operating characteristics and
efficiency of such Equipment and related software. Supplier further agrees to provide
all interface specifications requested by ABM with respect to any Service.





9.14 FCC Actions





	 	(a)	 	If Supplier and/or its Subcontractors are required to file a tariff or other
regulatory submission pursuant to Section 9.14(b), below, and the initial
tariff option or submission that Supplier or its Subcontractors file to implement this
Agreement is not permitted to become effective by the Federal Communications Commission
or if any ruling, order or determination shall materially and adversely affect
Supplier’s or its Subcontractors’ ability to offer the Services under the terms and
conditions set forth herein, Supplier shall develop a proposal the purpose of which
will be to provide comparable service to ABM on terms and conditions substantially
equivalent to those contained in this Agreement, to the extent permissible under
applicable legal and regulatory requirements. ABM shall cooperate with Supplier in the
development of such a proposal. Such service may be provided under (i) other existing
Supplier or Subcontractor tariffs (if that can be done at such tariffs’ then-effective
rates without further revision), (ii) newly-filed tariffs or
regulatory submissions, or (iii) public postings by Supplier or its Subcontractors
of rates and other terms of service. If Supplier is unwilling or unable to develop
such proposal within thirty (30) days of any such event, such proposal is not
reasonably acceptable to ABM, or such proposal fails to take effect within thirty
(30) days of the Parties’ agreement to such proposal, ABM shall have the right to
terminate any affected portions of this Agreement without payment of Termination
Charges or other liability. A proposal shall be deemed not reasonably acceptable to
ABM if it fails to comply with applicable legal or regulatory requirements,
increases ABM’s total costs of receiving the Services, requires material changes to
ABM facilities, systems, software or equipment, or has a material adverse impact on
the functionality, interoperability, performance or resource efficiency of the
Services.





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	 	(b)	 	To the extent required by Law, and within thirty (30) days after the Effective
Date of this Agreement, Supplier and/or its Subcontractors will file any tariff, tariff
option or other regulatory submission applicable to Supplier and/or its Subcontractors
and required to implement the Agreement. Such filing shall be consistent in all
material respect with all applicable provisions of this Agreement and shall not be less
favorable to ABM and the Eligible Recipients than the rates and other terms and
conditions of this Agreement. Supplier will make a copy of any applicable filings
available to ABM for ABM’s review and inspection and will provide ABM with a copy of
all amendments to such tariffs or other filings having a bearing on the Agreement when
such amendments are filed with the appropriate governmental agencies. In addition,
Supplier will provide a draft of any revisions that may substantively affect ABM’s
rights and obligations under this Agreement at least ten (10) days before such
revisions are filed with the FCC, where feasible. If Supplier makes revisions to a
tariff, tariff option or other submission that materially and adversely affect ABM’s
rights hereunder without obtaining ABM’s written consent, ABM shall have the right to
terminate any affected portions of this Agreement without payment of Termination
Charges or other liability.
	 
	 	(c)	 	Supplier and ABM shall not (and Supplier shall cause its Subcontractors not to)
interpose as a defense in any action to enforce the other Party’s rights under this
Agreement that such terms and conditions are invalid or unenforceable because of
inconsistency with applicable Law or regulation or with Supplier’s or its
Subcontractors’ tariffs, tariff options or other regulatory submissions, if any, and
will not make such a claim in any tribunal in a dispute with the other Party.
	 
	 	(d)	 	If, at any time during the Term, the Federal Communications Commission or any
other regulatory body with jurisdiction over a material portion of the Services,
pursuant to a final order that is not subject to further appeal, alters the rules or
regulations applicable to Supplier, its Subcontractors or the Services in a manner that
requires or permits Supplier or its Subcontractors to detariff all or any material
portion of the Services, Supplier and/or its Subcontractors shall promptly detariff
(and withdraw any tariff, tariff option or other regulatory submission specifically
relating to) such Services or the affected portions thereof and thereafter perform such
Services solely in accordance with the terms and conditions of this Agreement.
	 
	 	(e)	 	If, at any time during the Term, the Federal Communications Commission or any
other applicable regulatory authority with jurisdiction over a material portion of the
Services determines that it is unlawful for Supplier or its Subcontractors to provide
both regulated and non-regulated Services under a single agreement, the Parties agree
to execute a separate agreement under which the non-regulated services will be provided
and, except as otherwise agreed by the Parties or required by applicable Laws, the
terms and conditions applicable to such non-regulated Services shall be identical in
all non-ministerial respects to those provided herein.
	 
	 	(f)	 	If, at any time during the Term, the Federal Communications Commission or any
other applicable regulatory authority with jurisdiction over a material portion of the
Services promulgates or passes a law, statute, rule, regulation or order that adversely
affects Supplier’s or its Subcontractors’ ability to offer the Services under the terms
and conditions set forth herein, Supplier shall provide service to ABM under other
arrangements with rates, terms and conditions no less favorable to ABM than those set
forth in this Agreement. If any such law, statute, rule, regulation, or order shall
require the enhancement or improvement of a Service provided under this Agreement,
Supplier shall not, and shall cause its Subcontractors not to, resist same and shall
improve or enhance such Service as required.





9.15 Retained Systems and Business Processes.





	 	(a)	 	No Adverse Effect. Supplier shall not, by any act or omission, adversely
affect or alter the functionality, interoperability, performance, accuracy, speed,
responsiveness, quality, cost or resource efficiency of the Retained Systems and
Business Processes without the prior consent of ABM. Nor shall Supplier, by any act or
omission, require changes to the Retained Systems and





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	 	 	 	Business Processes, including
associated business processes, applications, systems, software, utilities, tools or
equipment, without the prior consent of ABM.
	 
	 	(b)	 	Interface. Supplier shall cause the processes, Systems, Software and Equipment
used to provide the Services to interface and integrate with the Retained Systems and
Business Processes.
	 
	 	(c)	 	Keep Informed. Supplier shall use commercially reasonable efforts to inform
itself and maintain up to date knowledge about all aspects of the existing and future
Retained Systems and Business Processes.
	 
	 	(d)	 	Assistance. As part of the Services, Supplier shall provide ABM (upon ABM’s
request) with Services in relation to Retained Systems and Business Processes,
including: (i) liaising with ABM or third parties regarding the impact of any
alterations to the Retained Systems and Business Processes and vice versa; and (ii)
identifying favorable vendors, and acting as ABM’s agent, in relation to the
acquisition, support and development of Retained Systems and Business Processes.





9.16 Network Configuration Data.





Supplier (i) shall provide ABM (and its third party vendors) with network configuration data
in relation to the network Supplier provides for ABM and/or the Eligible Recipients; and
(ii) hereby grants to ABM (and its third party vendors) the right to use such data in
connection with businesses of ABM and the Eligible Recipients.



10. ABM RESPONSIBILITIES




10.1 Responsibilities.





In addition to ABM’s responsibilities as expressly set forth elsewhere in this Agreement,
ABM shall be responsible for the following:




	 	(a)	 	ABM Contract Manager. ABM shall designate one (1) individual (the “ABM
Contract Manager”) to whom all Supplier communications concerning this Agreement may be
addressed (except as otherwise expressly provided in this Agreement), who shall have
the authority to act on behalf of ABM and the Eligible Recipients in all day-to-day
matters pertaining to this Agreement. ABM may change the designated ABM Contract
Manager from time to time by providing notice to Supplier. Additionally, ABM will have
the option, but will not be obligated, to designate additional representatives who will
be authorized to make certain decisions (e.g., regarding emergency maintenance) if the
ABM Contract Manager is not available.
	 
	 	(b)	 	Cooperation. ABM, through the ABM Contract Manager (or his or her designee),
shall cooperate with Supplier by, among other things, making available, as reasonably
requested by Supplier, management decisions, information, approvals and acceptances so
that Supplier may accomplish its obligations and responsibilities hereunder.
	 
	 	(c)	 	Requirement of Writing. To the extent Supplier is required under this
Agreement to obtain ABM’s approval, consent or agreement, such approval, consent or
agreement must be in writing and must be signed by the ABM Contract Manager or an
authorized ABM representative. Notwithstanding the preceding sentence, the ABM
Contract Manager may agree in advance in writing that as to certain specific matters
oral approval, consent or agreement will be sufficient.
	 
	 	(d)	 	ABM Personnel. ABM, and not Supplier, shall be responsible and therefore
solely liable for all acts and omissions of ABM Personnel, including acts and omissions
constituting gross negligence, willful misconduct and/or fraud.





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10.2 Savings Clause.





Supplier’s failure to perform its responsibilities under this Agreement or to meet the
Service Levels shall be excused if and to the extent such Supplier non-performance is caused
by (i) the wrongful or tortious actions of ABM, an Eligible Recipient or an ABM Third Party
Contractor performing obligations on behalf of ABM under this Agreement, or (ii) the failure
of ABM, an Eligible Recipient or an ABM Third Party Contractor to perform ABM’s obligations
under this Agreement (unless and to the extent, as to ABM Third Party Contractors, such
failure is attributable to Supplier’s failure to properly manage such ABM Third Party
Contractor in accordance with Section 6.11 and Schedule K), but only if (A)
Supplier expeditiously notifies ABM of such wrongful or tortious action or failure to
perform and its inability to perform under such circumstances, (B) Supplier provides ABM
with a reasonable opportunity to correct such failure to perform and thereby avoid such
Supplier non-performance, (C) Supplier uses commercially reasonable efforts to avoid or
mitigate the impact of such failure to perform, (D) Supplier uses commercially reasonable
efforts to perform notwithstanding such failure to perform, and (E) if there are questions
as to causation, Supplier conducts a Root Cause Analysis and thereby demonstrates that such
failure to perform is the cause of Supplier’s non-performance.



11. CHARGES




11.1 General.





	 	(a)	 	Payment of Charges. In consideration of Supplier’s performance of the
Services, ABM agrees to pay Supplier the applicable Charges set forth in Schedule
J.
	 
	 	(b)	 	No Additional Charges. ABM shall not pay any Charges for the Services in
addition to those set forth in this Article 11, or Schedule J. Any
costs incurred by Supplier prior to the Effective Date are included in the Charges set
forth in Schedule J and are not to be separately paid or reimbursed by ABM.
	 
	 	(c)	 	No Charge for Reperformance. At no additional expense to ABM, Supplier shall
reperform (including, subject to Section 13.2(c), any required backup or
restoration of data) any Services that result in incorrect outputs to the extent due to
an error or breach by Supplier, and the resources required for such performance shall
not be counted in calculating the Charges payable or resources utilized by ABM
hereunder.
	 
	 	(d)	 	Charges for Contract Changes. Unless otherwise agreed, System Changes, changes
in the Services (including changes in the ABM Standards) and changes in the rights or
obligations of the Parties under this Agreement (collectively, “Contract Changes”) will
result in changes in the applicable Charges only if and to the extent (i) the Agreement
expressly provides for a change in the Supplier Charges in such circumstances; (ii) the
agreed upon Charges or pricing methodology expressly provides for a price change in
such circumstances (for example, Schedule J specifies the number of FTEs or
hours of coverage to be provided for the quoted price, or defines a Resource Baseline
for the Resource Unit in question with ARCs and RRCs for increased or decreased usage);
or (iii) the Contract Change meets the definition of New Services and additional
Charges are applicable in accordance therewith.
	 
	 	(e)	 	Eligible Recipient Services.






	 	(i)	 	Eligible Recipients. Supplier shall provide the Services to
Eligible Recipients designated by ABM. To the extent a designated Eligible
Recipient will receive less than all of the Services, ABM shall identify the
categories of Services to be provided by Supplier to such Eligible Recipient.





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	 	(ii)	 	New Eligible Recipients. From time to time ABM may request,
pursuant to the Change Control Process, that Supplier provide Services to
Eligible Recipients not previously receiving such Services. Except as provided
in Section 11.5 or otherwise agreed by the Parties, such Services shall
be performed in accordance with the terms, conditions and prices (excluding any
non-recurring transition or start-up activities specific to such Eligible
Recipients for which Supplier is not otherwise financially responsible under
this Agreement) then applicable to the provisions of the same Services to
existing Eligible Recipients.
	 
	 	(iii)	 	Eligible Recipients Described in Section 2.1(44)(h) and
(i). Unless otherwise agreed by the Parties, to the extent ABM designates
as an Eligible Recipient a person or Entity engaged in the provision of
products or services to ABM and/or the Eligible Recipients described in
Sections 2.1(44)(a)-(g), the Services provided by Supplier to such
Eligible Recipient shall be limited to and in support of the provision of such
products or services to ABM and/or the Eligible Recipients. Unless otherwise
agreed by the Parties, to the extent ABM designates as an Eligible Recipient a
customer of an Eligible Recipient described in Sections 2.1(44)(a)-(g)
or a subcontractor to such an Eligible Recipient, the Services provided by
Supplier shall be limited to and in support of the provision of products or
services to such customer or subcontractor.
	 
	 	(iv)	 	Election Procedure. Within ninety (90) days after the
consummation of a transaction described in Section 2.1(44)(c) or
(d), ABM shall elect, on behalf of the Eligible Recipient in question,
either (i) that such Eligible Recipient shall continue to obtain Services in
some or all Functional Service Areas subject to and in accordance with the
terms and conditions of this Agreement for the remainder of the Term, or (ii)
that the Term shall be terminated as to such Eligible Recipient with respect to
some or all Functional Service Areas as of a specified date, subject to its
receipt of Termination Assistance Services pursuant to Section 4.3. If
there shall be no election within such ninety (90) day period, the Term shall
be terminated as to such Eligible Recipient with respect to all Services,
subject to its receipt of Termination Assistance Services pursuant to
Section 4.3.





11.2 Pass-Through Expenses.





	 	(a)	 	Procedures and Payment. Unless otherwise agreed by the Parties, ABM shall pay
all Pass-Through Expenses directly to the applicable suppliers following review,
validation and approval of such Pass-Through Expenses by Supplier. Before transmitting
an invoice to ABM for any Pass-Through Expense, Supplier shall (i) confirm that ABM,
rather than Supplier, is financially responsible for the invoiced charges under
Schedule J, (ii) review and validate the invoiced charges, (iii) identify any
errors or omissions on such invoice, (iv) communicate with the applicable supplier to
correct any errors or omissions, resolve any questions or issues and obtain any
applicable credits for ABM, and (v) code the applicable invoice to the proper ABM’s
cost center or account. Supplier shall transmit to ABM the supplier invoice, together
with any documentation supporting such invoice and a statement that Supplier has
reviewed and validated the invoiced charges, within ten (10) days after Supplier’s
receipt of notice of such invoice, or, if earlier, within five (5) days prior to the
date on which payment is due if such invoice was electronically received by Supplier at
least five (5) days prior to such due date. In addition, if the supplier offers a
discount for payment prior to a specified date, Supplier shall use commercially
reasonable efforts to transmit such invoice and associated documentation to ABM at
least ten (10) days prior to such date. To the extent either Party fails to comply
with its obligations hereunder, it shall be financially responsible for any discounts
lost or any late fees or interest charges incurred. Supplier shall deliver a monthly
Pass-Through Expense Report to ABM as specified in Schedule R.





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	 	(b)	 	Efforts to Minimize. Supplier will use commercially reasonable efforts to
identify methods of reducing and minimizing ABM’s retained and Pass-Through Expenses
and will notify ABM of such methods and the estimated potential savings associated with
each such method.





11.3 Incidental Expenses.





Supplier acknowledges that, except as expressly provided otherwise in the Agreement,
expenses that Supplier incurs in performing the Services are included in Supplier’s charges
and rates set forth in this Agreement. Accordingly, such Supplier expenses are not
separately reimbursable by ABM unless ABM has agreed in advance to reimburse Supplier for
the expense.



11.4 Taxes.





The Parties’ respective responsibilities for taxes arising under or in connection with this
Agreement shall be as follows:




	 	(a)	 	Income Taxes. Each Party shall be responsible for its own Income Taxes.
	 
	 	(b)	 	Sales, Use and Property Taxes. Each Party shall be responsible for any sales,
lease, use, personal property, stamp duty or other such taxes on Equipment, Software or
property it owns or leases from a third party, including any lease assigned pursuant to
this Agreement, and/or for which it is financially responsible under this Agreement.
	 
	 	(c)	 	Taxes on Goods or Services Used by Supplier. Supplier shall be responsible for
all sales, service, value-added, lease, use, personal property, excise, consumption,
and other taxes and duties payable by Supplier on any goods or services used or
consumed by Supplier in providing the Services where the tax is imposed on Supplier’s
acquisition or use of such goods or services and the amount of tax is measured by
Supplier’s costs in acquiring such goods or services and not by ABM’s cost of acquiring
such goods or services from Supplier.
	 
	 	(d)	 	Service Taxes.






	 	(i)	 	Subject to Sections 11.4(d)(ii) and (iii), ABM
shall be financially responsible for all Service Taxes enacted prior to the
Effective Date and assessed against Supplier, ABM or the Eligible Recipients by
Tax Authorities in jurisdictions in which the Services are delivered to ABM or
the Eligible Recipients by Supplier (“ABM Service Taxes”)
	 
	 	(ii)	 	If, following the Effective Date, new or higher ABM Service
Taxes become applicable to the Services as a result of either Party moving all
or part of its operations to a different jurisdiction (e.g., ABM or an Eligible
Recipient opening a new facility, Supplier relocating the performance of the
Services to a new service location or Supplier using an Affiliate or
Subcontractor to perform all or part of the Services) and such move was not
contemplated as of the Effective Date, the Party initiating such move shall be
financially responsible for such new or higher ABM Service Taxes.
	 
	 	(iii)	 	Notwithstanding Section 11.4(d)(i) and (ii), if new or
higher ABM Service Taxes are enacted on or after the Effective Date (or, in the
case of Section 11.4(d)(ii), the move date), the Parties shall identify
and diligently seek to agree upon legally permissible means of avoiding or
minimizing such new or higher Service Taxes and/or sharing financial
responsibility for such Service Taxes. If the Parties are unable to agree upon
such measures within thirty (30) days and the financial impact of all such new
or higher Service Taxes exceeds one percent (1%) of the then-current Annual
Service Charge, ABM may elect to terminate this Agreement in its entirety or to
terminate any portions impacted by such new or higher Service Taxes (unless
Supplier agrees to assume financial responsibility for all new or higher
Service Taxes exceeding the one percent





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	 	 	 	threshold). If ABM elects to terminate on this basis, ABM shall not be
obligated to pay any Termination Fee, but shall pay Wind Down Charges in
accordance with Schedule N.






	 	(iv)	 	Supplier shall be financially responsible for any Service Taxes
assessed against either Party by Tax Authorities in the jurisdictions from
which the Services are provided by Supplier or any Service Taxes otherwise
attributable to the provision of Services by Supplier from such jurisdictions
(“Supplier Service Taxes”). Notwithstanding the foregoing, to the extent
Supplier provides the Services from the same jurisdiction in which such
Services are delivered to ABM or the applicable Eligible Recipient, then such
Service Taxes shall be treated in accordance with Section 11.4(e)(i)
above.
	 
	 	(v)	 	If required under applicable Laws, Supplier shall invoice ABM
for the full amount of any such Supplier Service Taxes and then credit or
reimburse ABM for that portion of such Service Taxes for which Supplier is
financially responsible under this provision.
	 
	 	(vi)	 	With respect to Service Taxes for which Supplier is financially
responsible under this Agreement, Supplier shall include on each invoice
delivered to ABM pursuant to Section 12.1(a) the identity and amount of
each such Service Tax and a representation that Supplier has paid such tax.






	 	(e)	 	Withholding. Any withholding tax or other tax of any kind that ABM is required
by applicable Law to withhold and pay on behalf of Supplier with respect to amounts
payable to Supplier under this Agreement will be deducted from such amount prior to
remittance to Supplier. ABM will provide to Supplier reasonable assistance, which
shall include the provision of reasonable documentation as required by revenue
authorities, to enable Supplier to claim exemption from or obtain a repayment of such
withheld taxes and will, upon request, provide Supplier with a copy of the withholding
tax certificate.
	 
	 	(f)	 	Telecommunication Surcharges or User Fees. To the extent ABM is responsible
under Schedule J for telecommunication surcharges or user fees imposed by
government authorities and associated with the Services and the allocation of such fees
or surcharges is within Supplier’s or its Subcontractors’ discretion, Supplier and its
Subcontractors shall act fairly and equitably in allocating such fees and surcharges to
ABM, and ABM and the Eligible Recipients shall not receive an unfair or inequitable
share of such fees and surcharges. In addition, in the event any such fee or surcharge
for which ABM or an Eligible Recipient is responsible is subsequently reduced or
vacated by the appropriate regulatory authority or court of competent jurisdiction,
Supplier shall seek on behalf of ABM a refund of any overpayment of such fee or
surcharge by ABM or the Eligible Recipient.
	 
	 	(g)	 	Notice of New Taxes and Charges. Supplier shall promptly notify ABM when it
becomes aware of any new taxes or other charges (including changes to existing taxes or
charges) to be passed through and/or collected by Supplier under this Section. Such
notification (which may be separate from the first invoice reflecting such taxes or
other charges) shall contain a detailed explanation of such taxes or charges, including
the effective date of each new tax or charge.
	 
	 	(h)	 	Efforts to Minimize Taxes. The Parties agree to cooperate fully with each
other to enable each to more accurately determine its own tax liability and to minimize
such liability to the extent legally permissible. Supplier’s invoices shall separately
state the Charges that are subject to taxation and the amount of taxes included
therein. Each Party will provide and make available to the other any resale
certificates, information regarding out-of-state sales or use of equipment, materials,
or services, and other exemption certificates or information reasonably requested by
either Party. At ABM’s reasonable request, Supplier shall provide ABM with written
evidence of Supplier’s filing of all required tax forms and returns required in
connection with any Service Taxes collected from ABM, and its collection and remittance
of all applicable Service Taxes.





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	 	(i)	 	Tax Audits or Proceedings.






	 	(i)	 	The provisions of this Section 11.4(i)(i) shall apply
with respect to any audit, proceeding or claim by any Tax Authority that
relates to taxes assessed by such Tax Authority for which the other Party is
financially responsible under this Agreement and that relates solely to such
other Party and, with respect to Supplier, does not involve claims for taxes
assessed in connection with any other customer of Supplier. Each Party shall
promptly notify the other Party of, and coordinate with the other Party the
response to and settlement of, any claim for taxes asserted by applicable Tax
Authorities for which the other Party is financially responsible hereunder.
Each Party also shall have the right to challenge the imposition of any tax
liability for which it is financially responsible under this Agreement or, if
necessary, to direct the other Party to challenge the imposition of such tax
liability. If either Party requests the other to challenge the imposition of
any tax liability, such other Party ultimately imposed by the Tax Authority in
connection therewith, except to the extent, that the fines, penalties,
interest, additions to taxes or similar liabilities resulted from the other
Party’s failure to properly and timely execute its filing and remittance
obligations (unless such failure resulted from the requesting Party’s failure
to provide reasonable cooperation, information and assistance), plus (ii) the
reasonable legal, accounting and other professional fees and expenses the other
Party incurs provided that the requesting Party has approved the selection of
the legal, accounting and other professional service providers, which approval
shall not be unreasonably withheld. Each Party shall be entitled to any tax
refunds or rebates obtained with respect to taxes for which such Party has
borne financial responsibility under this Agreement.
	 
	 	(ii)	 	The provisions of this Section 11.4(i)(ii) shall apply
to any audit, proceeding or claim by any Tax Authority that relates to taxes
assessed by such Tax Authority to one Party for which the other Party is
financially responsible under this Agreement and for which Supplier or other
Supplier customers are also financially responsible in other similar
transactions. Each Party shall promptly notify the other of any claim for
taxes assessed by applicable Tax Authorities for which the other Party is
responsible hereunder. Each Party shall provide any reasonable information
related to such claim reasonably requested by the other Party. If either Party
has a reasonable basis for a challenge and requests the other to so challenge
the imposition of any tax liability, such other Party shall do so (unless and
to the extent it assumes financial responsibility for the tax liability in
question), and the requesting Party shall reimburse the other for all (i) any
fines, penalties, interest, additions to taxes or similar liabilities
ultimately imposed by the Tax Authority in connection therewith, except to the
extent that the fines, penalties, interest, additions to taxes or similar
liabilities resulted from the other Party’s failure to properly and timely
execute its filing and remittance obligations(unless such failure resulted from
the requesting Party’s failure to provide reasonable cooperation, information
and assistance), plus (ii) reasonable legal, accounting or other professional
fees and expenses the other Party incurs in such challenge provided that the
requesting Party has approved the selection of the legal, accounting and other
professional service providers, which approval shall not be unreasonably
withheld. In addition, neither Party shall enter into a settlement of any tax
liability that creates a binding financial obligation for the other Party
without the other Party’s approval, which shall not be unreasonably withheld;
provided that the other Party assumes financial liability for any interest,
penalties or fines which accrue on the claimed amount, and provided further
that this subsection (ii) shall not limit Supplier’s right or ability to settle
similar claims related to other customers or amounts for which Supplier has
financial responsibility. Each Party shall be entitled to any tax refunds or
rebates obtained with respect to taxes for which such Party has borne financial
responsibility under this Agreement.






	 	(j)	 	Tax Filings. Each Party represents, warrants and covenants that it will file
appropriate tax returns, and pay applicable taxes owed arising from or related to the
provision of the Services in





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applicable jurisdictions. Supplier represents, warrants and covenants that it is
registered to and will collect and remit Service Taxes in all applicable
jurisdictions.



11.5 New Services.





	 	(a)	 	Procedures. If ABM requests that Supplier perform any New Services, Supplier
shall promptly prepare a New Services proposal for ABM’s consideration. Unless
otherwise agreed by the Parties, Supplier shall prepare such New Services proposal at
no additional charge to ABM and shall deliver such proposal to ABM within the time
frames set forth in Section 4.2 of Schedule G.6 (Governance SLA Definitions);
provided, that Supplier shall use commercially reasonable efforts to respond more
quickly in the case of a pressing business need or an emergency situation. ABM shall
provide such information as Supplier reasonably requests in order to prepare such New
Service proposal. Such New Services proposal shall include, among other things, the
following at a level of detail reasonably sufficient to permit ABM to make an informed
business decision: (i) a project plan and fixed price or price estimate for the New
Service; (ii) a breakdown of such price or estimate, including any applicable Service
Charges, (iii) a description of the service levels to be associated with such New
Service (if applicable), (iv) a schedule for commencing and completing the New Service,
(v) a description of the new hardware or software to be provided by Supplier in
connection with the New Service, (vi) a description of the software, hardware and other
resources, including Resource Unit utilization, necessary to provide the New Service,
(vii) any new or different ownership terms in connection with such New Services or any
Developed Materials to be created in connection therewith, and (viii) any additional
facilities or labor resources to be provided by ABM in connection with the proposed New
Service. ABM may accept or reject any New Services proposal in its sole discretion and
Supplier shall not be obligated to perform any New Services if the applicable proposal
is rejected. Unless the Parties otherwise agree, if ABM accepts Supplier’s proposal,
Supplier will perform the New Services and be paid in accordance with the proposal
submitted by Supplier and the provisions of this Agreement. Upon ABM’s acceptance of a
Supplier proposal for New Services, the scope of the Services will be expanded and this
Agreement will be modified to include such New Services. Supplier shall not be
obligated to perform any New Service unless and until such New Service is reflected in
a written amendment to this Agreement. Notwithstanding any provision to the contrary,
(i) Supplier shall act reasonably and in good faith in formulating such pricing
proposal, (ii) Supplier shall use commercially reasonable efforts to identify potential
means of reducing the cost to ABM, including utilizing Subcontractors as and to the
extent appropriate, (iii) such pricing proposal shall be no less favorable to ABM than
the pricing and labor rates set forth herein for comparable Services (if any), and (iv)
such pricing proposal shall take into account the existing and future volume of
business between ABM and Supplier.
	 
	 	(b)	 	Use of Third Parties. ABM may elect to solicit and receive bids from third
parties to perform any New Services. If ABM elects to use third parties to perform New
Services, (i) such New Services shall not be deemed “Services” under the provisions of
this Agreement and (ii) Supplier shall reasonably cooperate with such third parties as
provided in Section 4.4.
	 
	 	(c)	 	Services Evolution and Modification. The Parties anticipate that, as provided
in Section 4.1(a), the Services will evolve and be supplemented, modified,
enhanced or replaced over time to keep pace with technological advancements and
improvements in the methods of delivering services and changes in the business of ABM
and the Eligible Recipients. The Parties acknowledge and agree that this evolution
will modify the “Services” and will not be deemed to result in New Services unless the
changed services meet the definition of New Services.
	 
	 	(d)	 	Authorized User and Eligible Recipient Requests. Supplier will promptly inform
the ABM Contract Manager of requests for New Services from Authorized Users or Eligible
Recipients, and shall submit any proposals for New Services to the ABM Contract Manager
or his or her designee. Supplier shall not agree to provide New Services to any
Authorized Users or Eligible Recipients without the prior written approval of the ABM
Contract Manager or his or her designee. If





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Supplier fails to obtain ABM’s approval in
accordance with this Section 11.5(d), it shall receive no compensation for any
services rendered to any person or entity in violation of such provision.




	 	(e)	 	Efforts to Reduce Costs and Charges. From time to time, ABM may request that
the Parties work together to identify ways to achieve reductions in the cost of service
delivery and corresponding reductions in the Charges to be paid by ABM by modifying or
reducing the nature or scope of the Services to be performed by Supplier, the
applicable Service Levels or other contract requirements. If requested by ABM,
Supplier shall promptly prepare a proposal identifying viable means of achieving the
desired reductions without adversely impacting business objectives or requirements
identified by ABM. In preparing such a proposal, Supplier shall give due consideration
to any means of achieving such reductions proposed by ABM. Supplier shall negotiate in
good faith with ABM and, without disclosing the actual cost of providing the Services,
shall identify for ABM if and to what extent the price of service delivery may be
reduced by implementing various changes in the contract requirements. ABM shall not be
obligated to accept or implement any proposal; and Supplier shall not be obligated to
implement any change that affects the terms of this Agreement unless and until such
change is reflected in a written amendment to this Agreement.





11.6 Extraordinary Events.





	 	(a)	 	Definition. As used in this Agreement, an “Extraordinary Event” shall mean a
circumstance in which an event or discrete set of events has occurred or is planned
with respect to the business of ABM or the Eligible Recipients or their receipt of the
Services that results or will result in a sustained change in the scope, nature or
volume of the Services that ABM and the Eligible Recipients will require from Supplier,
and which is expected to cause the estimated average monthly amount of chargeable
resource usage in any category used to provide the Services to increase or decrease by
twenty-five percent (25%) or more. Examples of the kinds of events that might cause
such substantial increases or decreases include the following:






	 	(i)	 	changes in locations where ABM or the Eligible Recipients
operate;
	 
	 	(ii)	 	changes in products of, or in markets served by, ABM or the
Eligible Recipients;
	 
	 	(iii)	 	mergers, acquisitions, divestitures or reorganizations of ABM
or the Eligible Recipients;
	 
	 	(iv)	 	changes in the method of service delivery;
	 
	 	(v)	 	changes in the applicable regulatory environment;
	 
	 	(vi)	 	changes in market priorities; or
	 
	 	(vii)	 	changes in the business units being serviced by Supplier.






	 	(b)	 	Consequence. If an Extraordinary Event occurs, ABM may, at its option, request
more favorable pricing with respect to some or all of the Charges categories specified
in Schedule J in accordance with the following:






	 	(1)	 	Supplier and ABM shall mutually determine on a reasonable basis
the efficiencies, economies, savings and resource utilization changes capable
of being achieved in connection with an Extraordinary Event. Supplier shall
then develop a plan to modify the Services to implement such efficiencies,
economies, savings and resource utilization changes as quickly as practicable
and shall submit such plan to ABM for its review and approval. Upon ABM’s
approval, Supplier shall implement the plan in accordance with the agreed upon
schedule. As the efficiencies, economies, savings or resource utilization
change are realized, the Charges specified on Schedule J and any affected
Resource





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	 	 	 	Baselines shall be promptly and equitably adjusted to pass through to
ABM the full benefit of such efficiencies, economies, savings and resource
changes; provided, that ABM shall reimburse Supplier for any net costs incurred
to realize such efficiencies, economies, savings or resource utilization
reductions if and to the extent (i) such costs are
identified in the implementation plan and approved in advance by ABM, (ii)
Supplier uses commercially reasonable efforts to identify and consider
practical alternatives, and reasonably determines that there is no other
practical way to obtain such savings without incurring such costs, and (iii)
Supplier uses commercially reasonable efforts to minimize the additional
costs to be reimbursed by ABM. ABM may, at its option and expense, employ
an accredited and independent auditor, subject to the confidentiality
obligations set forth in this Agreement, to verify Supplier’s methodology
for calculating the efficiencies, economies, savings and resource changes,
if any, from such Extraordinary Event.






	 	(2)	 	An Extraordinary Event shall not result in Charges to ABM being
higher than such Charges would have been if the RRCs, ARCs and other terms
specified in Schedule J had been applied unless and to the extent such
Extraordinary Event results in New Services (e.g., ABM requires that Supplier
create a new infrastructure to support an acquired Entity). ABM may, at its
sole option, elect at any time to forego its rights under this Section
11.6 and instead, apply RRCs, ARCs and other rates and charges specified in
Schedule J to adjust the Charges.





11.7 Technology.





	 	(a)	 	Currency. Subject to Section 9.5, Supplier shall use commercially
reasonable efforts to provide the Services using current technologies that will enable
ABM to take advantage of technological advancements in the ITO Services industry and
support ABM’s efforts to maintain competitiveness in the markets in which it competes.
To the extent necessary and appropriate, the Parties shall equitably modify and adjust
the Resource Units to be measured and the Resource Baselines associated with such
Resource Units to be consistent with such technological advancements.
	 
	 	(b)	 	Unanticipated Change. In the event of a significant and unanticipated change
that would materially reduce Supplier’s costs in providing the Services, ABM may, at
its option, request more favorable pricing with respect to some or all of the Charges
categories specified in Schedule J. If ABM makes such a request, the Parties
shall use the procedures in Section 11.6 to equitably adjust such Charges,
recognizing that Supplier expects the entire benefit of the price performance evidenced
in its pricing.
	 
	 	(c)	 	Supplier Developed Advances. If Supplier develops technological advances or
changes Supplier’s systems used to provide the same or substantially similar services
to other Supplier customers or Supplier develops new or enhanced processes, services,
software, tools, products or methodologies that are or will be commercially offered to
such customers (collectively, “New Advances”), Supplier shall, subject to Section
11.5, consider ABM for (i) the opportunity to serve as a pilot customer in
connection with the implementation of such New Advances; and (ii) if ABM declines such
opportunity, the opportunity to be among the first of the Supplier customer base to
implement and receive the benefits of any New Advances.
	 
	 	(d)	 	Supplier Briefings. Supplier shall meet with ABM at least semi-annually to
brief ABM regarding technological developments and advances as well as new or enhanced
services, software, tools, products or methodologies in application management,
telecommunication, IT infrastructure, help desk, and information technology of possible
interest or applicability to ABM, including opportunities to serve as a pilot customer
or early adopter of technological advances. Such briefing shall include Supplier’s
assessment of the business impact, performance improvements and cost savings associated
with each.





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11.8 Project Resources.





	 	(a)	 	Performance of Projects. As part of the Monthly Base Charges, Supplier shall
provide the number of FTE Project Hours per Contract Year specified in Schedule
J to perform AMS-type
Projects (the “Baseline AMS FTE Project Hours”) and the annual dollar pool specified
in Schedule J to perform other Projects (including AMS-type Projects
(“Baseline FTE Project Dollars”). The Baseline FTE Project Hours and Baseline FTE
Project Dollars shall be known collectively as the “Project Pool.” A “Project” is a
discrete unit of non-recurring work (i) that is not an inherent, necessary or
customary part of the day to day Services, (ii) that is not required to be performed
by Supplier to meet the existing Service Levels (other than any Service Levels
related to Project performance), (iii) that imposes unique requirements, accelerated
deadlines and/or other extraordinary demands on ABM generally and the IT/IS
organizations in particular, and (iv) that, due to the magnitude, complexity and
urgency of the work to be performed, ABM has historically used external resources
to perform. By way of example, the information technology support of a substantial
corporate acquisition (such as the recent acquisition of ) or the accelerated
deployment of complex new business systems (such as Active Directory) would be
considered a Project. A Project may consist of or include work that would otherwise
be treated as New Services. The Supplier Personnel assigned to perform such
Projects shall possess the training, education, experience, competence and skill to
perform such work. Supplier shall maintain appropriate continuity of Supplier
Personnel assigned to perform Projects.
	 
	 	(b)	 	Project Priority and Process. The ABM Contract Manager or his or her designee
shall request, define and set the priority for Projects. The process to be followed
with respect to Projects requested by ABM is described in Schedule E and in the
Policy and Procedure Manual. Supplier may not decline to perform a Project requested
by ABM. Supplier shall report monthly on Projects in accordance with Schedule
R. Such reports shall specify, among other things, the Supplier Charges, FTEs,
resources and expenses for each Project for the applicable month and Contract Year and
any other pertinent information requested by ABM
	 
	 	(c)	 	Projects/Pricing. The FTE Project rates for project personnel performing
Projects are specified in Schedule J. If and to the extent ABM authorizes
Supplier to exceed the Baseline FTE Project Hours or Baseline FTE Project Dollars in
any Contract Year, ABM shall pay Supplier for such additional FTE Project Hours at the
rates specified in Schedule J; provided, however, to the extent the level of
effort requested by ABM and provided by Supplier Personnel in connection with a Project
is, in the aggregate, eight (8) hours or less, there shall be no additional Charge to
ABM for such assistance and such hours shall not be counted against the Project Pools.
At ABM’s request, Supplier shall provide fixed pricing for new Projects. In such
instances, the fixed price proposed by Supplier shall be no less favorable to ABM than
the price obtained by multiplying the FTE rates specified in Schedule J by the
projected level of effort. ABM also may use such FTE Project rates for ad hoc time and
materials projects from time to time that utilize resources having skills similar to
the Supplier Personnel then delivering the Services.
	 
	 	(d)	 	Project Requirements. Supplier shall scope, price and perform each Project in
accordance with the Project formation process and Project implementation methodology
developed by Supplier and included in the Policy and Procedures Manual, as agreed to by
ABM. Before beginning work on any Project, Supplier shall obtain ABM’s approval and
must follow the Project formation process. Projects performed without such approval
shall be at Supplier’s sole expense. If, after initially approving a Project, ABM
makes material changes in the scope or requirements of the Project, the Parties shall
confer and agree upon any resulting change in the Project pricing in accordance with
the Project management procedures specified in the Policy and Procedures Manual.
	 
	 	(e)	 	Project Proposals/Reporting. The hours expended by Supplier in preparing
proposals or plans or reporting on the status of Projects shall not be counted as FTE
Project Hours or counted against the Project Pools and shall not be charged
incrementally.





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	 	(f)	 	Additional Work or Reprioritization. In addition to the foregoing, the ABM
Contract Manager or his or her designee may identify new or additional work activities
to be performed by Supplier Personnel (including work activities that would otherwise
be treated as Projects or New Services) or reprioritize or reset the schedule for
existing work activities to be performed by Supplier Personnel on ABM’s behalf. Unless
otherwise agreed, ABM shall incur no additional charges for the performance of such
work activities by Supplier Personnel then assigned to ABM. Supplier
shall use commercially reasonable efforts to perform such work activities without
impacting the established schedule for other tasks or the performance of the
Services in accordance with the Service Levels. If it is not possible to avoid such
an impact, Supplier shall notify ABM of the anticipated impact and obtain its
consent prior to proceeding with such work activities. ABM, in its sole discretion,
may forego or delay such work activities or temporarily adjust the work to be
performed by Supplier, the schedules associated therewith or the Service Levels to
permit the performance by Supplier of such work activities.
	 
	 	(g)	 	Current Projects. Notwithstanding Section 11.8(a) and (c), the
performance of the Projects identified in Schedule L shall be included in the
Monthly Base Charges. Supplier shall perform the listed Projects at no additional
Charge to ABM and the FTE hours expended in the performance of such Projects shall not
be counted against the Project Pools.
	 
	 	(h)	 	J.D. Edwards Upgrade Project. As part of the Services, Supplier shall perform
the J.D. Edwards Upgrade Project described in Attachment L.1. Such Project
shall be performed in accordance with the terms, conditions and pricing in
Attachment L.1, which may in certain circumstances be in addition to or
different from the terms, conditions and pricing in the remainder of this Agreement.
IBM shall manage and coordinate the Project Services to be provided under
Attachment L.1 with the other Services to be provided under this Agreement.
Such management and coordination shall be provided as part of the Monthly Base Charges
and shall not be separately chargeable or included in the time and material efforts
under Attachment L.1.





11.9 Proration.





Periodic charges under this Agreement are to be computed on a calendar month basis, and
shall be prorated for any partial month on a calendar day basis.



11.10 Refundable Items.





	 	(a)	 	Prepaid Amounts. Where ABM and/or the Eligible Recipients have prepaid for a
service or function for which Supplier is assuming financial responsibility under this
Agreement, Supplier shall credit to ABM, upon either Party identifying the prepayment,
that portion of such prepaid expense which is attributable to periods on and after the
Commencement Date. If approved by ABM in advance or assumed by ABM pursuant to
Section 4.3(b)(6), ABM shall reimburse Supplier for that portion of any amount
prepaid by Supplier that is attributable to the period on or after the expiration of
the Term or (if such item is being used in the performance of Termination Assistance
Services) the completion of Termination Assistance Services.
	 
	 	(b)	 	Refunds and Credits. If Supplier should receive a refund, credit, discount or
other rebate for goods or services paid for by ABM and/or the Eligible Recipients on a
Pass-Through Expense, ABM retained expense, cost-plus or cost-reimbursement basis, then
Supplier shall (i) notify ABM of such refund, credit, discount or rebate and (ii) pay
or credit the full amount of such refund, credit, discount or rebate to ABM.





11.11 ABM Benchmarking Reviews.





	 	(a)	 	Benchmarking Review. Beginning in the third Contract Year and from time to
time thereafter during the Term, ABM may, subject to this Section 11.11, engage
the services of an independent third party (a “Benchmarker”) to compare the quality and
price of the Services against the quality





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	 	 	 	and price of well managed ITO Services
providers performing similar outsourcing services to ensure that ABM is obtaining
pricing and levels of service that are competitive with market rates, prices and
service levels, given the nature, volume and type of Services provided by Supplier
hereunder (“Benchmarking”). The Benchmarker shall perform a price-based and a
service-based benchmark, comparing the total charges, in aggregate, applicable to the
Services or any Functional Service Area (the “Benchmark Price”), against the total
charges applicable to similar services and transactions. In making this comparison,
the Benchmarker shall consider the
following factors and other similar variables and shall normalize or adjust the
prices as and to the extent appropriate: (i) whether supplier transition charges
are paid by the customer as incurred or amortized over the term of the agreement;
(ii) the extent to which supplier pricing includes the purchase of the customer’s
existing assets; (iii) the extent to which supplier pricing includes the cost of
acquiring future assets; (iv) the extent to which this Agreement calls for supplier
to provide and comply with unique ABM requirements; and (v) whether Service Taxes
are included in such pricing or stated separately in supplier invoices. ABM shall
not initiate more than one Benchmarking in any Contract Year, provided that such
Benchmarking may include all or any number of Functional Service Areas.
Notwithstanding the foregoing, if a Benchmarking of any Functional Service Area
reveals an unfavorable pricing variance of greater than five percent (5%), ABM may,
at its option, initiate a second Benchmarking of some or all of the remaining
Functional Service Areas in the same Contract Year.
	 
	 	(b)	 	General. Any Benchmarker engaged by ABM shall agree in writing to be (i) bound
by the confidentiality and security provisions specified in this Agreement. ABM shall
not engage such a Benchmarker on a contingent fee basis (i.e., where the Benchmarker’s
compensation is based on a percentage of the reported pricing variance). Supplier and
ABM shall cooperate fully with each other and the Benchmarker and will provide
reasonable access to the Benchmarker during such effort, all at each Party’s respective
cost and expense, provided that Supplier shall not be obligated to provide the
Benchmarker with: (i) proprietary and confidential information of Supplier not related
to ABM, the Eligible Recipients or the Services; (ii) any internal cost data; or (iii)
proprietary information of other Supplier customers. The Benchmarking shall be
conducted so as not to unreasonably disrupt Supplier’s operations under this Agreement.
	 
	 	(c)	 	Benchmarker and Methodology Selection. The Parties shall use commercially
reasonable efforts to agree on the selection of the Benchmarker to perform any
Benchmarking, provided that, if the Parties fail to reach agreement, ABM may select (i)
any Benchmarker listed on Schedule S (as reasonably modified by ABM from time
to time), or (ii) any other Benchmarker subject to Supplier’s reasonable approval,
provided that the Benchmarker shall not be a Direct Supplier Competitor. ABM shall
confer with Supplier in good faith regarding the methodology to be used to perform any
Benchmarking, provided that if the Parties fail to agree on the appropriate
methodology, ABM may select such methodology in its reasonable discretion.
	 
	 	(d)	 	Result of Benchmarking. If the Benchmarker finds that the Charges paid by ABM,
in the aggregate, for the benchmarked Services or any benchmarked Functional Service
Area are greater than the lowest twenty-fifth percentile (25%) of the prices charged by
other well managed ITO Services providers for work of a similar nature, type or volume,
(the “Benchmark Standard”), the Benchmarker shall submit a written report setting forth
such findings and conclusions. The Parties shall then meet and negotiate in good faith
as to reductions in the Charges to eliminate any unfavorable variance. If the Parties
are unable to agree upon the amount and timing of such reductions, ABM may, at its
option, terminate the Services in whole or in part. If ABM elects to terminate on this
basis, ABM shall not be obligated to pay any Termination Fee, but shall pay Wind Down
Charges in accordance with Schedule N. If the Services are terminated in part,
Supplier’s Charges shall be equitably adjusted in accordance with Schedule J.
	 
	 	(e)	 	Supplier Review and Dispute. The Benchmarker shall provide the Parties with a
copy of the Benchmarker’s report and each Party shall have thirty (30) days to review
such report and contest the Benchmarker’s findings. Such report shall describe the
methodology used by the Benchmarker in performing the Benchmarking. If the Parties are
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	 	 	 	of such findings, the matter shall be resolved pursuant to the dispute resolution
procedures set forth in Article 19. Reductions in Supplier’s Charges shall be
implemented effective thirty (30) days after the Benchmarker’s report was first provided to
Supplier.






	11.12	 	Transport Rate Review






	 	(a)	 	If Supplier and AT&T (or any other Subcontractor utilized by Supplier to
provide transport services) conduct a benchmarking or other review of the
competitiveness of the pricing provided to Supplier under the applicable Subcontract
based on the then prevailing market rates and pricing for such services (a “Subcontract
Pricing Review”) and, as a result of such Subcontract Pricing Review, the actual voice
and/or data charges under such Subcontract (each, a “Subcontract Transport Rate”) are
reduced, then Supplier shall promptly notify ABM of such reduction and shall reduce the
corresponding voice and/or data Charges under this Agreement (each, a “Transport Rate”)
by an equal amount. ABM shall not be entitled to a price reduction if and to the
extent Supplier’s pricing under the applicable Subcontract is reduced for reasons not
related to a benchmarking or other market based review of the competitiveness of the
Subcontract pricing. Any reduction of a Transport Rate under this Agreement shall be
effective as of the date on which the corresponding reduction in the Subcontract
Transport Rate is effective.
	 
	 	(b)	 	Notwithstanding the foregoing, Supplier shall not be obligated to disclose to
ABM, and ABM shall not be entitled to audit or review, the terms of Supplier’s contract
with AT&T (or any other Subcontractor utilized by Supplier to provide transport
services), including pricing terms. However, at ABM’s request, Supplier shall cause
the independent auditing firm that certifies Supplier’s annual financial statements, or
another independent auditing firm of national standing agreed upon by the Parties, to
review the pertinent information and methodology to verify Supplier’s compliance with
this provision. ABM shall reimburse Supplier for any fees or expenses of such
independent auditor(s) reasonably incurred by Supplier in connection with any requested
review, provided (i) Supplier notifies ABM of such fees and expenses and obtains ABM’s
approval prior to incurring them; and (ii) Supplier uses commercially reasonable
efforts to minimize the amounts to be paid or reimbursed by ABM.






	11.13	 	Procurement
	 
	 	 	Supplier shall procure certain products and services for which ABM will be financially
responsible on an Out-of Pocket Expense basis, as further described in Schedule J,
and, at ABM’s request, shall participate with ABM in the procurement of certain products and
services from Managed Third Parties for which ABM will be financially responsible on a
Pass-Through Expense basis, as further described in Schedule J and Attachment
K.
	 
	 	 	In procuring such products and services, Supplier shall comply with the following:






	 	(a)	 	In procuring such products and services basis, Supplier shall: (i) give ABM and
the Eligible Recipients the benefit of Supplier’s most favorable vendor arrangements
where permitted by such vendors; (ii) use commercially reasonable efforts to obtain the
most favorable pricing and terms and conditions then available from any source for such
products and services; (iii) to the extent practicable, use the aggregate volume of
Supplier’s procurements on behalf of itself, ABM, the Eligible Recipients and other
customers as leverage in negotiating such pricing or other terms and conditions; and
(iv) adhere to the procurement procedures specified in the Policy and Procedures
Manual, as such procedures may be modified from time to time by the Parties. Supplier
shall adhere to ABM’s product and services standards as specified by ABM or set forth
in the Policies and Procedures Manual and as applicable to Supplier’s obligations under
this Section 11.12 and
shall not deviate from such standards without ABM’s prior approval. To the extent
an authorized ABM representative specifies the vendor, pricing and/or terms and
conditions for a procurement, Supplier shall not deviate from such instructions
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	 	 	 	agreed by the Parties, the
procurement price of such products and services shall be treated as an Out-of-Pocket
Expense and shall be passed through to ABM without Supplier markup.
	 
	 	(b)	 	Supplier may, with ABM’s prior approval, use master agreements existing as of
the Commencement Date between ABM and various third party vendors to procure products
and services requested by ABM. Supplier’s use of such ABM master agreements shall be
conditioned on and subject to the following ABM obtaining any Required Consents to the
use of such master agreements; (ii) Supplier complying with the terms and conditions of
such master agreements; and (iii) Supplier accepting responsibility for curing any
breaches by Supplier of such master agreements.
	 
	 	(c)	 	Supplier also may use existing agreements between Supplier and third party
vendors if permitted by such agreement or enter into new agreements with third party
vendors to procure such products and services. Supplier’s use of such agreements shall
be conditioned on and subject to the following: (i) ABM approving in advance the terms,
conditions and pricing of such agreements and any financial or other commitments made
therein by or on behalf of ABM or the Eligible Recipients; (ii) Supplier complying with
the terms and conditions of such agreements and accepting responsibility for meeting
any minimum volumes; (iii) Supplier passing through to ABM any refunds, credits,
discounts or other rebates to the extent such amounts are directly allocable to ABM or
the Eligible Recipients; (iv) Supplier retaining responsibility for curing any breaches
of such agreements; and (v) such agreements offering more favorable pricing and
equivalent or better terms and conditions for the requested product or service than the
master agreements existing as of the Commencement Date between ABM and third party
vendors.
	 
	 	(d)	 	If, at any time, ABM determines that the pricing and terms and conditions
available through Supplier are not as favorable as those ABM could obtain on its own,
ABM reserves the right to select and negotiate with the provider of such third party
products and services and Supplier shall comply with ABM’s decision with respect
thereto.
	 
	 	(e)	 	With respect to all products and services procured by Supplier for ABM and/or
the Eligible Recipients pursuant to this Section 11.12, Supplier shall pass
through, or otherwise provide, to ABM and/or the applicable Eligible Recipient(s) all
benefits offered by the manufacturers and/or vendors of such products and
services(including all warranties, refunds, credits, rebates, discounts, training,
technical support and other consideration offered by such manufacturers and vendors)
except to the extent otherwise agreed by ABM. If Supplier is unable to pass through
any such benefit to ABM and/or the applicable Eligible Recipient(s), it shall notify
ABM in advance and shall not procure such product or service without ABM’s prior
approval.






	12.	 	INVOICING AND PAYMENT
	 
	12.1	 	Invoicing.






	 	(a)	 	Invoice. No later than the first day of each month, Supplier shall deliver to
ABM one invoice setting forth: (i) the Monthly Base Charges for the then current
calendar month, (ii) the Charges for Transition Services, if any, for the then current
calendar month, (iii) the variable Charges (other than the ARCs and RRCs) due for the
month preceding the most recent month, and (iv) any Service Level Credits or
Deliverable Credits due for the month preceding the most recent month (the “Monthly
Invoice”). For example, the Monthly Invoice delivered to ABM on December 1, 2006 shall
include (i) the Monthly Base Charges for December 2006, (ii) the Transition Charges
for December 2006, (iii) the variable Charges (other than the ARCs and RRCs), e.g.,
Project charges, due for October 2006, and (iv) any Service Level Credits or
Deliverable Credits due for October 2006. In addition, within ten (10) days after
the end of each calendar quarter, Supplier shall present ABM with an invoice for any
ARCs and RRCs due and owing for the preceding three months for any Resource Unit
category (the “Quarterly Invoice”).





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	 	(b)	 	Format and Data. Each invoice shall be delivered electronically and shall be
in the form specified in Exhibit 2. Each invoice shall include all details
necessary to meet ABM’s reasonable requirements, including compliance with applicable
legal, accounting and other rules and regulations, validation of volumes and fees, and
satisfaction of ABM’s internal accounting, chargeback and Eligible Recipient billing
requirements to the extent communicated to Supplier by ABM. Supplier shall include the
pricing calculations and related data utilized to establish the Charges. Each invoice
shall be accompanied by the certain Reports, as specified in Schedule R.
	 
	 	(c)	 	Credits. To the extent a Service Level Credit or Deliverable Credit may be due
to ABM pursuant to this Agreement, Supplier shall provide ABM with an appropriate
credit as described in Section 12.1(a) against amounts then due and owing. If
no further payments are due to Supplier, Supplier shall pay such credit amounts to ABM
within thirty (30) days.
	 
	 	(d)	 	Time Limitation. If Supplier fails to invoice ABM for any amount within one
hundred twenty (120) days after the date on which the invoice for the Services or
expenses in question could first properly have been rendered, Supplier shall waive any
right it may otherwise have to invoice for and collect such amount.






	12.2	 	Payment Due.






	 	(a)	 	Subject to the other provisions of this Article 12, payment for each
Monthly Invoice shall be due on or before the last day of the applicable month, unless
the amount in question is disputed in accordance with Section 12.4 (and
provided that, if the Monthly Invoice is received by ABM after the first day of the
month, the payment due date shall be extended one day for each day the invoice is
late). Subject to the other provisions of this Article 12, each Quarterly
Invoice shall be due thirty (30) days after the date such invoice is received by ABM,
unless the amount in question is disputed in accordance with Section 12.4. Any
undisputed amount due under this Agreement for which a time for payment is not
otherwise specified also shall be due and payable within thirty (30) days.
	 
	 	(b)	 	ABM shall pay each invoice by check, wire transfer or other electronic means
acceptable to Supplier to an account specified by Supplier.
	 
	 	(c)	 	If ABM fails to pay undisputed invoiced amounts within ten (10) days after the
payment due date, as specified in Section 12.2(a) above, Supplier may
thereafter assess interest on the unpaid balance to and until the date of payment at
the lesser of twelve percent (12%) per annum or the maximum rate allowed by applicable
Law.






	12.3	 	Set Off.
	 
	 	 	Subject to Section 12.4, with respect to any amount to be paid or reimbursed by ABM
hereunder, ABM may set off against such amount any undisputed amount that Supplier is
obligated to pay ABM hereunder, provided that ABM notifies Supplier in writing of the amount
of, and the basis for, such set off.






	12.4	 	Disputed Charges.
	 
	 	 	ABM may withhold payment of any Charges that ABM reasonably disputes in good faith subject
to the following:






	 	(a)	 	Notice of Dispute. If Supplier’s invoice includes sufficient detail and
supporting documentation to enable ABM to reasonably determine whether Supplier’s
Charges are in accordance with this Agreement, ABM shall notify Supplier on or before
the payment due date of such invoice if it disputes any of the Charges in such invoice.





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	 	(b)	 	Notice of Insufficient Detail, Documentation and Dispute. If Supplier’s
invoice does not include sufficient detail and supporting documentation to enable ABM
to reasonably determine whether Supplier’s Charges are in accordance with this
Agreement, ABM shall so notify Supplier within ten (10) days of ABM’s receipt of such
invoice. Supplier shall promptly provide such reasonable detail and supporting
documentation, and ABM shall notify Supplier within ten (10) business days after
receipt thereof by the ABM Contract Manager whether it disputes any of the Charges in
Supplier’s invoice.
	 
	 	(c)	 	Description and Explanation. If ABM disputes any Supplier Charges, ABM’s
notice to Supplier shall include a description of the particular charges in dispute and
an explanation of the reason why ABM disputes such Charges.
	 
	 	(d)	 	Continued Performance. Each Party agrees to continue performing its
obligations under this Agreement while any dispute is being resolved unless and until
such obligations are terminated by the termination or expiration of this Agreement.
	 
	 	(e)	 	Escrow. To the extent the disputed Charges exceed, in the aggregate, an amount
equal to the average total monthly Charges for the preceding six (6) months (i.e., the
total Charges for the preceding six (6) months, divided by six), the excess disputed
Charges shall be paid or deposited by ABM in an interest bearing escrow account for the
benefit of both Parties at a financial institution reasonably acceptable to Supplier
until such dispute has been resolved. Upon resolution of such dispute, the prevailing
party shall be entitled to such escrowed amounts and interest earned on such escrowed
amounts.
	 
	 	(f)	 	Service Level Credits. If ABM is obligated to pay disputed Charges into escrow
under Section 12.4(e) and fails to comply with such obligation, then,
in addition to any other right expressly provided in this Agreement, Supplier shall
have no obligation to pay or credit to ABM any Service Level Credits until ABM either
pays such disputed amounts into escrow or pays them to Supplier under protest.
	 
	 	(g)	 	Limited Arbitration Right






	 	(i)	 	If ABM is obligated to pay disputed Charges into escrow under
Section 12.4(e) and fails to either pay such disputed amounts into
escrow or pay them to Supplier under protest, Supplier may pursue
expedited arbitration solely to resolve the dispute(s) which is the basis of
ABM withholding payments hereunder.
	 
	 	(ii)	 	If Supplier elects to arbitrate in accordance with this
Section 12.4(g) the arbitration shall be conducted in accordance with
the expedited, commercial arbitration rules of the American Arbitration
Association and the Supplementary Procedures for Large, Complex Disputes,
except as the AAA Rules are modified below: (a) the arbitration decision shall
be binding, except the decision and/or award shall be subject to review in a
court of
competent jurisdiction with respect to the arbitrators’ issuance of an award
or decision that exceeds or violates their limited powers described herein;
(b) the findings of fact and conclusions of law shall be detailed and in
writing; (c) the arbitration decision shall be supported by law and
substantial evidence; (d) the fees and expenses associated with the
arbitration shall be borne by the Parties in inverse proportion of the
arbitration decision (e.g., if the decision is that 80% of the amounts that
Supplier asked be paid from escrow to Supplier as disputed amounts will be
so paid, Supplier will only pay 20% of the arbitration costs); (e) the
arbitration shall take place in San Francisco, California; (f) there shall
be three arbitrators; one selected by Supplier in its notice of intent to
arbitrate, one selected by ABM within five (5) business days after receipt
of notice from Supplier and one selected by the first two arbitrators within
fourteen (14) days after ABM’s receipt of the notice from Supplier; and (g)
the arbitration process shall be completed and a decision rendered within
sixty (60) days after Supplier’s notice is received by ABM. Moreover,





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	 	 	 	the
powers and authority of the arbitrators are subject to the following
limitations: (a) the arbitrators will have no power to amend or disregard
contract provisions including the limitation of liability provisions; (b)
the arbitrators will have no power or authority to award any damages or
attorneys’ fees, or any awards based on third party claims, nor shall the
arbitrators have any power or authority to grant any award or permit any
other recourse that would be precluded by the terms of the Agreement (for
example, by way of illustration but not limitation, the arbitrators shall
not award damages that would be in excess of any limitation of liability in
the Agreement, nor shall the arbitrators permit a claim to proceed that
would otherwise be time barred by the terms of the Agreement as construed
under the law applicable to the Agreement); and (c) the arbitrators may only
require the production of relevant documentary and testimonial evidence not
protected by the attorney-client, attorney work-product, or other recognized
legal privileges and otherwise in accordance with the Federal Rules of
Evidence.






	 	(h)	 	No Waiver. Neither the failure to dispute any Charges or amounts prior to
payment nor the failure to withhold any amount shall constitute, operate or be
construed as a waiver of any right ABM may otherwise have to dispute any Charge or
amount or recover any amount previously paid.






	13.	 	ABM DATA AND OTHER PROPRIETARY INFORMATION
	 
	13.1	 	ABM Ownership of ABM Data.
	 
	 	 	ABM Data are and shall remain the property of ABM (and/or the applicable Eligible
Recipient). Supplier shall promptly deliver ABM Data to ABM in the format and on the media
reasonably prescribed by ABM (i) at any time at ABM’s request, (ii) at the end of the Term
and the completion of all requested Termination Assistance Services (except Contract
Records, which Supplier shall retain for the Audit Period specified in Section
9.10(a) unless and to the extent Supplier is directed by ABM to deliver such Contract
Records to ABM prior to the expiration of such Audit Period), or (iii) with respect to
particular ABM Data, at such earlier date that such data are no longer required by Supplier
to perform the Services. Thereafter, Supplier shall return or destroy, as directed by ABM,
all copies of the ABM Data in Supplier’s possession or under Supplier’s control within ten
(10) business days and deliver to ABM written notification of such return or destruction
signed by an authorized representative of Supplier. Subject to Section 14.5(b), ABM
Data shall not be utilized by Supplier for any purpose other than the performance of
Services under this Agreement and the resolution of disputes (consistent with Section
13.3(b)(iii)), but in no event shall Supplier withhold any ABM Data as a means of
resolving any dispute. Nor, subject to Section 14.5(b), shall ABM Data be sold,
assigned, leased, or commercially exploited by or on behalf of Supplier or Supplier.
Supplier shall not possess or assert any lien or other right against or to ABM Data.
Supplier shall promptly notify ABM if it believes that any use of ABM Data by Supplier
contemplated under this Agreement or to be undertaken as part of the Services is
inconsistent with the foregoing.
	 
	13.2	 	Safeguarding ABM Data.






	 	(a)	 	Safeguarding Procedures. Supplier shall establish and maintain environmental,
safety and facility procedures, data security procedures and other safeguards against
the destruction, loss, unauthorized access or alteration of ABM Data in the possession
of Supplier which are (i) no less rigorous than those maintained by ABM as of the
Commencement Date (or implemented by ABM in the future to the extent deemed necessary
by ABM and disclosed in writing to Supplier), and (ii) subject to Section
15.10, adequate to meet the requirements of ABM’s privacy, security and record
retention policies and applicable Laws. ABM shall have the right to establish backup
security for ABM Data and to keep backup copies of the ABM Data in ABM possession at
ABM expense if ABM so chooses. Supplier shall remove all ABM Data from any media taken
out of service and shall destroy or securely erase such media in accordance with the
Policy and Procedures Manual. No media on which ABM Data is stored may be used or
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	 	 	 	of any other customer of Supplier or to deliver data to, or store
data of another Supplier customer, unless securely erased in accordance with the Policy
and Procedures Manual.
	 
	 	(b)	 	Response to Security Breach. In the event Supplier discovers or is notified of
a breach or potential breach of security relating to ABM Data, Supplier shall (i)
expeditiously notify ABM of such breach or potential breach, (ii) investigate such
breach or potential breach and perform a Root Cause Analysis thereon, (iii) remediate
the effects of such breach or potential breach of security in areas of Supplier
responsibility, (iv) assist ABM in remediating the effects of such breach or potential
breach of security in areas beyond Supplier responsibility and (v) provide ABM with
such assurances as ABM shall request that such breach or potential breach will not
recur.
	 
	 	(c)	 	Data Backup, Storage, Retention and Restoration Requirements. Supplier shall
comply with the data backup, storage, retention and restoration requirements set forth
in the Policy and Procedures Manual as such requirements may be modified by ABM in its
reasonable discretion.
	 
	 	(d)	 	Reconstruction Procedures. As part of the Services, Supplier shall be
responsible for developing and maintaining procedures for the reconstruction of lost
ABM Data which are (i) no less rigorous
than those maintained by ABM as of the Commencement Date (or implemented by ABM in
the future to the extent reasonably deemed necessary by ABM and communicated in
writing to Supplier), and (ii) no less rigorous than those maintained by Supplier
for its own information of a similar nature.
	 
	 	(e)	 	Corrections. Supplier shall at all times adhere to the procedures and
safeguards specified in Section 13.2(a) and (b), and shall (i) restore,
at no charge to ABM, any destruction, loss or alternation of ABM Data using generally
accepted data restoration techniques, and (ii) correct, at no charge to ABM, any
destruction, loss or alteration of any ABM Data caused by the failure of Supplier or
Supplier Personnel to comply with Supplier’s obligations under this Agreement.






	13.3	 	Confidentiality.






	 	(a)	 	Proprietary Information. Supplier and ABM each acknowledge that the other
possesses and will continue to possess information that has been developed or received
by it, has commercial value in its or its customer’s business and is not in the public
domain. Except as otherwise specifically agreed in writing by the Parties,
“Proprietary Information” shall mean (i) this Agreement and the terms thereof; (ii) all
information marked confidential, restricted or proprietary by either Party; or (iii)
any other information that is treated as confidential by the disclosing Party and would
reasonably be understood to be confidential, whether or not so marked. In the case of
ABM and Eligible Recipients, Proprietary Information also shall include Software
provided to Supplier by or through ABM or the Eligible Recipients, Developed Materials,
ABM Data, attorney-client privileged materials, attorney work product, customer lists,
customer data, information and pricing, strategic plans, account information, rate case
strategies, research information, chemical formulae, information that ABM notifies
Supplier contains trade secrets, financial/accounting information, human resources and
personnel information, marketing/sales information, information or data regarding
businesses, plans, operations, assets, billings, collections, revenues, expenditures,
finances, regulatory compliance, competitors, consumer markets, third party contracts,
internal or external audits, rate cases, law suits or other information or data of ABM
or the Eligible Recipients obtained, received, transmitted, processed, stored, archived
or maintained by Supplier under this Agreement. By way of example, ABM Proprietary
Information shall include plans for changes in ABM or Eligible Recipient facilities,
business units and product lines, plans for business mergers, acquisitions or
divestitures, rate information, plans for the development and marketing of new
products, financial forecasts and budgets, technical proprietary information, employee
lists and company telephone or e-mail directories. In the case of Supplier,
Proprietary Information shall include financial information, account information,
information regarding Supplier’s business plans and operations, and proprietary
software, tools and methodologies owned by Supplier and used in the performance of the
Services.





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	 	(b)	 	Obligations.






	 	(i)	 	During the term of this Agreement and for the period specified
in Section 13.3(f), at all times thereafter, Supplier and ABM shall not
disclose, and shall maintain the confidentiality of, all Proprietary
Information of the other Party (and in the case of Supplier, the Eligible
Recipients). ABM and Supplier shall each use at least the same degree of care
to safeguard and to prevent disclosing to third parties the Proprietary
Information of the other as it employs to avoid unauthorized disclosure,
publication, dissemination, destruction, loss, or alteration of its own like
information (or information of its customers) of a similar nature, but not less
than reasonable care. Supplier shall require all Supplier Personnel having
access to ABM Proprietary Information to have executed a written agreement
consistent with the terms of Article 13. Supplier shall provide
authorized Supplier Personnel with access to ABM Proprietary Information only
to the extent permitted under the Agreement and only as necessary for such
person to
perform his or her obligations under or with respect to this Agreement or as
otherwise naturally occurs in such person’s scope of responsibility.
	 
	 	(ii)	 	The Parties may disclose Proprietary Information to their
Affiliates, auditors, attorneys, accountants, consultants, contractors and
subcontractors, where (A) use by such person or entity is authorized under this
Agreement, (B) such disclosure is necessary for the performance of such
person’s or entity’s obligations under or with respect to this Agreement or
otherwise naturally occurs in such person’s or entity’s scope of
responsibility, (C) the person or entity (and its applicable officers and
employees) agree in writing to assume obligations consistent with those
obligations described in this Section 13.3, (D) the disclosing Party
remains responsible for any breach of this section even if the acts or
omissions are those of such person or entity, and (E) the disclosing Party
causes such person or entity to take reasonable measures to ensure that the
Proprietary Information is not disclosed or used in contravention of this
Agreement. Any disclosure to such person or entity shall be under the terms
and conditions as provided herein. Each Party’s Proprietary Information shall
remain the property of such Party.
	 
	 	(iii)	 	Neither Party shall (A) make any use or copies of the
Proprietary Information of the other Party except as contemplated by this
Agreement, (B) acquire any right in or assert any lien against the Proprietary
Information of the other Party, (C) sell, assign, transfer, lease, or otherwise
dispose of Proprietary Information to third parties or commercially exploit
such information, including through Derivative Works, or (D) refuse for any
reason (including a default or material breach of this Agreement by the other
Party) to promptly provide the other Party’s Proprietary Information (including
copies thereof) to the other Party if requested to do so. Notwithstanding the
foregoing, ABM may disclose Proprietary Information to a Benchmarker in
accordance with Section 11.11 or in connection with the solicitation of
proposals for or the procurement of the same or similar services from ABM Third
Party Contractors. Upon expiration or any termination of this Agreement and
completion of each Party’s obligations under this Agreement, each Party shall
return or destroy, as the other Party may direct, all documentation in any
medium that contains the other Party’s Proprietary Information within ten (10)
business days (except Contract Records, which Supplier shall retained for the
Audit Period specified in Section 9.10(a) unless and to the extent
Supplier is directed by ABM to deliver such Contract Records to ABM prior to
the expiration of such Audit Period). Each Party shall deliver to the other
Party written certification of its compliance with the preceding sentence
signed by an authorized representative of such Party, provided, that each Party
may retain one (1) copy of the other Party’s Proprietary Information to the
extent necessary to comply with applicable Laws or to enforce its rights under
this Agreement. In addition, each Party shall take all necessary steps to
ensure that its employees comply with these confidentiality provisions.





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	 	(c)	 	Exclusions. Section 13.3(b) shall not apply to any particular
information which the receiving Party can demonstrate (i) is, at the time of disclosure
to it, in the public domain other than through a breach of the receiving Party’s or a
third party’s confidentiality obligations; (ii) after disclosure to it, is published by
the disclosing Party or otherwise becomes part of the public domain other than through
a breach of the receiving Party’s or a third party’s confidentiality obligations; (iii)
is lawfully in the possession of the receiving Party at the time of disclosure to it;
(iv) is received from a third party that the receiving Party reasonably believes to
have a lawful right to disclose such information; or (v) is independently developed by
the receiving Party without reference to Proprietary Information of the furnishing
Party, provided however, that the exclusions in the foregoing subsections (i) and (ii)
shall not operate to alter either Party’s obligations to the extent such information is
subject to applicable Privacy Laws as further described in Section 15.10(g).
In addition, the receiving Party shall not be considered to have breached its
obligations under this
Section 13.3 for disclosing Proprietary Information of the other Party as
required, in the opinion of legal counsel, to satisfy any legal requirement of a
competent government body, provided that, promptly upon receiving any such request,
such Party advises the other Party of the Proprietary Information to be disclosed
and the identity of the third party requiring such disclosure prior to making such
disclosure in order that the other Party may interpose an objection to such
disclosure, take action to assure confidential handling of the Proprietary
Information, or take such other action as it deems appropriate to protect the
Proprietary Information. The receiving Party shall use commercially reasonable
efforts to cooperate with the disclosing Party in its efforts to seek a protective
order or other appropriate remedy or in the event such protective order or other
remedy is not obtained, to obtain assurance that confidential treatment will be
accorded such Proprietary Information.
	 
	 	(d)	 	Loss of Proprietary Information. Each Party shall: (i) promptly notify the
other Party of any possession, use, knowledge, disclosure, or loss of such other
Party’s Proprietary Information in contravention of this Agreement; (ii) promptly
furnish to the other Party all known details and assist such other Party in
investigating and/or preventing the reoccurrence of such possession, use, knowledge,
disclosure, or loss; (iii) cooperate with the other Party in any third party
investigation or litigation deemed necessary by such other Party to protect its rights;
and (iv) promptly use commercially reasonable efforts to prevent further possession,
use, knowledge, disclosure, or loss of Proprietary Information in contravention of this
Agreement. Each Party shall bear any costs it incurs in complying with this
Section 13.3(d).
	 
	 	(e)	 	No Implied Rights. Nothing contained in this Section 13.3 shall be
construed as obligating a Party to disclose its Proprietary Information to the other
Party, or as granting to or conferring on a Party, expressly or impliedly, any rights
or license to any Proprietary Information of the other Party.
	 
	 	(f)	 	Survival. The Parties’ obligations of non-disclosure and confidentiality shall
survive the expiration or termination of this Agreement for a period of five (5)
years, unless and to the extent, subject to Section 11.5, Supplier receives
notice that a longer or perpetual period is specified in an agreement between ABM or
any of the Eligible Recipients and a third party, in which case such longer period
shall apply; provided, however, that the passage of this five (5) year period shall
not absolve either Party of responsibility for any breach of this Article 13
occurring prior to the expiration of such five (5) year period.






	13.4	 	File Access.
	 
	 	 	ABM will have unrestricted access to, and the right to review and retain the entirety of,
all computer or other files containing ABM Data, as well as all systems and network logs.
At no time will any of such files be stored or held in a form or manner not immediately
accessible to ABM. Supplier shall provide to the ABM Contract Manager all passwords, codes,
comments, keys, documentation and the locations of any such files promptly upon the request
of ABM, including Equipment and Software keys and such information as to format, encryption
(if any) and any other specifications or information necessary for





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	 	 	ABM to retrieve, read,
revise and/or maintain such files. Upon the request of the ABM Contract Manager, Supplier
will confirm that, to the best of its knowledge, all such files provided to ABM are complete
and that no material element, amount, or other fraction of such files to which ABM may
request access or review has been deleted, withheld, disguised or encoded in a manner
inconsistent with the purpose and intent of providing full and complete access to ABM as
contemplated by this Agreement.
	 
	14.	 	OWNERSHIP OF MATERIALS
	 
	14.1	 	ABM Owned Materials.






	 	(a)	 	ABM Owned Materials. ABM shall be the sole and exclusive owner of all ABM
Owned Materials, including ABM Owned Software, and all enhancements and Derivative
Works of such ABM Owned Materials, including United States and foreign intellectual
property rights in such Materials (“ABM Owned Materials”). As between ABM and
Supplier, ABM Owned Materials shall include (i) all intellectual property, Software and
Materials (A) owned by Eligible Recipients, and/or (B) pertaining to ABM products or
services created by or obtained from sellers, distributors, purchasers or users of such
products or service (that are not Supplier Owned Materials or Derivative Works of
Supplier Owned Materials or other intellectual property owned by Supplier), and (ii)
all enhancements or Derivative Works of such intellectual property, Software and
Materials.
	 
	 	(b)	 	License to ABM Owned Materials. As of the Commencement Date, ABM hereby grants
Supplier (and, to the extent necessary for Supplier to provide the Services, to
Subcontractors designated by Supplier that sign a written agreement to be bound by
terms consistent with the terms contained herein including, to the extent applicable,
the terms specified in this Section as well as those pertaining to the ownership of
such ABM Owned Materials and any Derivative Works developed by the Parties, the scope
and term of the license, the restrictions on the use of such ABM Owned Materials, and
the obligations of confidentiality) a non-exclusive, non-transferable, royalty-free
right and license during the Term (and thereafter during the performance of any
Termination Assistance Services requested by ABM) to access, use, execute, reproduce,
display, perform, modify, distribute and create Derivative Works of the ABM Owned
Materials for the express and sole purpose of providing the Services. Supplier and its
Subcontractors shall have no right to the source code to ABM Owned Software unless and
to the extent approved in advance by ABM. ABM Owned Materials shall remain the
property of ABM. Supplier and its Subcontractors shall not (i) use any ABM Owned
Materials for the benefit of any person or Entity other than ABM or the Eligible
Recipients, (ii) separate or uncouple any portions of the ABM Owned Software, in whole
or in part, from any other portions thereof, or (iii) reverse assemble, reverse
engineer, translate, disassemble, decompile or otherwise attempt to create or discover
any source or human readable code, underlying algorithms, file formats or programming
interfaces of the ABM Owned Software by any means whatsoever, without the prior
approval of ABM, which may be withheld at ABM’s sole discretion. Except as otherwise
requested or approved by ABM, Supplier and its Subcontractors shall cease all use of
ABM Owned Materials upon the end of the Term and the completion of any Termination
Assistance Services requested by ABM pursuant to Section 4.3(b)(8) and shall
certify such cessation to ABM in a notice signed by an officer of Supplier and each
applicable Subcontractor. ABM may agree, on a case by case basis, to grant Supplier
the right to use certain ABM Owned Materials (including ABM Owned Software and ABM
owned Developed Materials) for the benefit of other customers of Supplier or for any
other purpose subject to mutually beneficial terms and conditions to be agreed to by
the Parties. THE ABM OWNED MATERIALS ARE PROVIDED BY ABM TO SUPPLIER AND ITS
SUBCONTRACTORS ON AN AS-IS, WHERE-IS BASIS. ABM EXPRESSLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH ABM OWNED MATERIALS, OR
THE CONDITION OR SUITABILITY OF SUCH MATERIALS FOR USE BY SUPPLIER OR ITS
SUBCONTRACTORS TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.





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	14.2	 	Developed Materials.






	 	(a)	 	ABM Ownership of Derivative Works of ABM Owned Materials. Unless the Parties
agree otherwise, ABM shall be the sole and exclusive owner of all Developed Materials
that are Derivative Works of ABM Owned Materials, including all United States and
foreign patent, copyright and other intellectual property rights in such Materials.
Such Developed Materials shall be considered works made for hire (as that term is used
in Section 101 of the United States
Copyright Act, 17 U.S.C. § 101, or in analogous provisions of other applicable Laws)
owned by ABM. If any such Developed Materials may not be considered a work made for
hire under applicable Law, Supplier hereby irrevocably assigns, and shall assign, to
ABM in perpetuity without further consideration, all of Supplier’s worldwide rights,
title and interest in and to such Developed Materials, including United States and
foreign patent, copyright and other intellectual property rights. Supplier
acknowledges that ABM and the successors and assigns of ABM shall have the right to
obtain and hold in their own name any patent, copyright and other intellectual
property rights in and to such Developed Materials. Supplier agrees to execute any
documents and take any other actions reasonably requested by ABM to effectuate the
purposes of this Section 14.2(a). ABM hereby grants Supplier certain
license and other rights with respect to such Developed Materials, as described in
Section 14.1(b). In addition, ABM hereby grants Supplier a perpetual,
irrevocable, non-exclusive, fully paid-up license for the internal use of such
Developed Material by Supplier and not for use by or on behalf of any other person
or Entity, including any Supplier customer (AND PROVIDED THAT SUCH DEVELOPED
MATERIALS ARE PROVIDED TO SUPPLIER ON AN AS-IS, WHERE-IS BASIS AND THAT ABM
EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO
SUCH DEVELOPED MATERIALS, OR THE CONDITION OR SUITABILITY OF SUCH MATERIALS FOR USE
BY SUPPLIER, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE). ABM may, in its sole discretion and upon such terms and
such financial arrangement as ABM and Supplier may agree, grant Supplier a license
to use such Developed Materials for other purposes and to sublicense such Developed
Materials.
	 
	 	(b)	 	ABM Ownership of Original Developed Materials. Unless the Parties otherwise
agree, ABM shall be the sole and exclusive owner of the United States and foreign
copyrights in all Developed Materials that are not Derivative Works of ABM Owned
Materials or Supplier Owned Materials and that are provided to ABM as a Deliverable
under this Agreement. Such Developed Materials shall be considered works made for hire
(as that term is used in Section 101 of the United States Copyright Act, 17 U.S.C. §
101, or in analogous provisions of other applicable Laws) owned by ABM. If any such
Developed Materials may not be considered a work made for hire under applicable Law,
Supplier hereby irrevocably assigns, and shall assign, to ABM in perpetuity without
further consideration, all of Supplier’s worldwide rights, title and interest in and to
the copyrights in such Developed Materials. Supplier acknowledges that ABM and the
successors and assigns of ABM shall have the right to obtain and hold in their own name
any copyrights in and to such Developed Materials. Supplier agrees to execute any
documents and take any other actions reasonably requested by ABM to effectuate the
purposes of this Section 14.2(b). ABM hereby grants Supplier certain license
and other rights with respect to such Developed Materials, as described in Section
14.1(b). ABM may, in its sole discretion and upon such terms and such financial
arrangement as ABM and Supplier may agree, grant Supplier a license to use such
Developed Materials for other purposes and to sublicense such Developed Materials.
Notwithstanding the foregoing, the Parties acknowledge and agree that any idea, design,
concept, technique, invention, discovery or improvement constituting patentable subject
matter and first conceived of and reduced to practice in the course of creating
Developed Materials pursuant to this Section 14.2(b) may be freely used by
either Party, and that any patent rights in such Developed Materials shall be jointly
owned by ABM and Supplier, in all cases without the requirement of either Party to
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	 	(c)	 	Source Code and Documentation. Supplier shall, promptly as it is developed by
Supplier, provide ABM with the source code and object code and documentation for all
ABM owned Developed Materials, as described in Sections 14.2(a) and (b). Such
source code shall be sufficient to allow a reasonably knowledgeable and experienced
programmer to maintain and support such Materials and the user documentation for such
Materials shall accurately describe in
terms understandable by a typical end user the functions and features of such
Materials and the procedures for exercising such functions and features.
	 
	 	(d)	 	Supplier Ownership of Derivative Works of Supplier Owned Materials. Unless the
Parties agree otherwise, Supplier shall be the sole and exclusive owner of all
Developed Materials that are Derivative Works of Supplier Owned Materials (as defined
in Section 14.3(a)), including all United States and foreign patent, copyright
and other intellectual property rights in such Materials. In addition, except as
provided in Sections 14.2(b) and (e) or otherwise agreed by the Parties,
Supplier shall be the sole and exclusive owner of all other Developed Materials that
are not Derivative Works of ABM Owned Materials and do not constitute Deliverables
under this Agreement, including all United States and foreign patent, copyright and
other intellectual property rights in such Materials. ABM acknowledges that Supplier
and the successors and assigns of Supplier shall have the right to obtain and hold in
their own name any intellectual property rights in and to such Supplier owned Developed
Materials. ABM agrees to execute any documents and take any other actions reasonably
requested by Supplier to effectuate the purposes of this Section 14.2(d).
Supplier hereby grants ABM and the Eligible Recipients certain license and other
rights with respect to such Developed Materials, as described in Sections 14.3(b)
and 14.6.
	 
	 	(e)	 	Third Party Materials. The ownership of Derivative Works of Third Party
Materials created by Supplier in connection with the Services shall, as between
Supplier and ABM, be considered Developed Materials owned by the Party designated as
the owner thereof pursuant to Sections 14.2(a) and (d). Each Party
acknowledges and agrees that its ownership of such Derivative Works may be subject to
or limited by the terms of the underlying agreement with the owner of the underlying
Third Party Materials; provided, that Supplier shall notify ABM in advance if the terms
of any such agreement will preclude or limit ABM’s ownership of such Derivative Work
and shall obtain ABM’s consent prior to proceeding with such Derivative Work.
	 
	 	(f)	 	Waiver of Moral Rights. To the extent permitted by law, Supplier hereby waives
any moral rights in the ABM owned Developed Materials, such as the right to be named as
author, the right to modify, the right to prevent mutilation and the right to prevent
commercial exploitation, whether arising under the Berne Convention or otherwise.






	14.3	 	Supplier Owned Materials.






	 	(a)	 	General. Supplier shall be the sole and exclusive owner of the (i) Materials
it lawfully owned prior to the Commencement Date, (ii) Materials acquired by Supplier
on or after the Commencement Date (including any such Materials purchased from ABM
pursuant to this Agreement) other than acquisitions for ABM or an Eligible Recipient in
connection with the performance of the Services, (iii) Derivative Works of Supplier
owned Software created by Supplier in accordance with Section 14.2(c), and (iv)
Materials developed by Supplier other than in the course of the performance of its
obligations under this Agreement or in connection with the use of any ABM Data or ABM
Owned Software or under this Agreement but not as a Deliverable to ABM (“Supplier Owned
Materials”), including United States and foreign intellectual property rights in such
Supplier Owned Materials.
	 
	 	(b)	 	License to Supplier Owned Software and Materials. As of the Commencement Date,
Supplier hereby grants to ABM and the Eligible Recipients, at no additional charge, a
non-exclusive, royalty-free right and license to access, use, execute, reproduce,
display, perform, modify, enhance, distribute and create Derivative Works of the
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	 	 	 	Supplier Owned Materials (including all
modifications, replacements, Upgrades, enhancements, methodologies, tools,
documentation, materials and media related thereto), during the Term and any
Termination Assistance Services period, for the purposes described below. In addition,
at no
additional Charge, Supplier hereby grants to ABM Third Party Contractor(s) a
non-exclusive, royalty-free right and license to access, use, execute, reproduce,
display, perform, modify, enhance, distribute and create Derivative Works of such
Supplier Owned Software and other Supplier Owned Materials (including all
modifications, replacements, Upgrades, enhancements, methodologies, tools,
documentation, materials and media related thereto), during the Term and any
Termination Assistance Services period, for the purposes described below. Such
license and other rights shall be granted to ABM, the Eligible Recipients, and ABM
Third Party Contractors for the following purposes:






	 	(i)	 	The receipt by ABM and the Eligible Recipients of the full
benefit of the Services provided by Supplier;
	 
	 	(ii)	 	The performance by ABM, the Eligible Recipients or ABM Third
Party Contractors for ABM and/or the Eligible Recipients of services or
functions that are ancillary to, but not part of, the Services provided by
Supplier, including related application management, telecommunication, IT
infrastructure, help desk, and information technology services and functions;
and
	 
	 	(iii)	 	The performance by ABM, the Eligible Recipients or ABM Third
Party Contractors of services or functions previously performed by Supplier in
circumstances in which the services or functions in question have not been
terminated or taken completely away from Supplier.






	 	 	 	The rights and obligations of ABM, the Eligible Recipients and ABM Third Party
Contractors with respect to such Supplier Owned Materials following the expiration
or termination of the Agreement or termination of any Service are set forth in
Section 14.6.
	 
	 	(c)	 	Embedded Materials. To the extent that Supplier Owned Materials are embedded
in any Developed Materials owned by ABM pursuant to Section 14.2(a), Supplier
shall not be deemed to have assigned its intellectual property rights in such Supplier
Owned Materials to ABM, but Supplier hereby grants to ABM a worldwide, perpetual,
irrevocable, non-exclusive, fully paid-up license, with the right to grant sublicenses,
to use, execute, reproduce, display, perform, modify, enhance, distribute and create
Derivative Works of such Supplier Owned Materials (including all modifications,
replacements, Upgrades, enhancements, methodologies, tools, documentation, materials
and media related thereto related thereto) for the benefit and use of ABM, ABM
Affiliates and the Eligible Recipients for so long as such Supplier Owned Materials
remain embedded in such Developed Materials and are not separately commercially
exploited. Following the expiration or termination of the Term and the termination of
the Service(s) for which such Materials were used, Supplier shall, at ABM’s request,
provide Upgrades, maintenance, support and other services for such embedded Supplier
Owned Materials in accordance with Section 14.6(b) or (c), as applicable.






	14.4	 	Other Materials.
	 
	 	 	This Agreement shall not confer upon either Party intellectual property rights in Materials
of the other Party (to the extent not covered by this Article 14) unless otherwise
so provided elsewhere in this Agreement.





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	14.5	 	General Rights.






	 	(a)	 	Copyright Legends. Each Party agrees to reproduce copyright legends which
appear on any portion of the Materials which may be owned by the other Party or third
parties.
	 
	 	(b)	 	Residuals. Nothing in this Agreement shall restrict any employee or
representative of a Party from using ideas, concepts or know-how relating to the
provision of application management, telecommunication, IT infrastructure, help desk,
and information products and services that are retained in the unaided memory of such
employee or representative after performing the obligations of such Party under this
Agreement, except to the extent that such use infringes upon any patent, copyright or
trademark right of a Party or its Affiliates (or, in the case of Supplier, any Eligible
Recipient); provided, however, that this Section 14.5(b) shall not operate or
be construed as permitting an employee or representative of Supplier to disclose,
publish, disseminate or use (a) the source of any Proprietary Information of ABM or an
Eligible Recipient, (b) any financial, statistical or personnel information of ABM or
an Eligible Recipient, or (c) any business plans of ABM or the Eligible Recipients. In
addition, this Section 14.5(b) shall not operate or be construed as permitting
an employee or representative of Supplier to disclose, publish, disseminate or use
proprietary applications or systems of ABM or the Eligible Recipients relating to
supply chain management, shelf space management, inventory management, retail floor
space management, and/or order management (including ABM Owned Materials and customized
configurations and uses of ABM licensed Third Party Materials), as such applications
and systems may change from time to time. . An individual’s memory is unaided if the
individual has not intentionally memorized the Proprietary Information for the purpose
of retaining and subsequently using or disclosing it in contravention of Supplier’s
obligations under this Agreement and does not identify the information as Proprietary
Information upon recollection.
	 
	 	(c)	 	No Implied Licenses. Except as expressly specified in this Agreement, nothing
in this Agreement shall be deemed to grant to one Party, by implication, estoppel or
otherwise, license rights, ownership rights or any other intellectual property rights
in any Materials owned by the other Party or any Affiliate of the other Party (or, in
the case of Supplier, any Eligible Recipient).
	 
	 	(d)	 	Incorporated Materials. Should either Party incorporate into Developed
Materials any intellectual property subject to third party patent, copyright or license
rights, any ownership or license rights granted herein with respect to such Materials
shall be limited by and subject to any such patents, copyrights or license rights;
provided that, prior to incorporating any such intellectual property in any Materials,
the Party incorporating such intellectual property in the Materials has disclosed this
fact and obtained the prior approval of the other Party.
	 
	 	(e)	 	Derivative Works. Any rights granted herein with respect to any Developed
Material that is a derivative work of any existing Material shall not limit or expand
the rights, if any, of either Party in the underlying Material.






	14.6	 	ABM Rights Upon Expiration or Termination of Agreement.
	 
	 	 	As part of the Termination Assistance Services, Supplier shall provide the following to ABM
and the Eligible Recipients with respect to Materials and Software:






	 	(a)	 	ABM Owned Materials and Developed Materials. With respect to ABM Owned
Materials and Developed Materials, Supplier shall, at no cost to ABM:






	 	(i)	 	deliver to ABM all ABM Owned Materials and Developed Materials
and all copies thereof in the format and medium in use by Supplier in
connection with the Services as of the date of such expiration or termination;
and





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	 	(ii)	 	following confirmation by ABM that the copies of the ABM Owned
Materials and Developed Materials delivered by Supplier are acceptable and the
completion by Supplier of any Termination Assistance Services for which such
Materials are required, destroy or securely erase all other copies of such
Materials then in Supplier’s possession and cease using such Materials and any
information contained for any purpose.






	 	(b)	 	Commercially Available Supplier Owned Materials. With respect to those
Materials owned by Supplier or Supplier Affiliates or, subject to Section
6.4(c), Subcontractors that are generally commercially available and used by them
to provide the Services (and any modifications, enhancements, methodologies, tools,
documentation, materials and media related thereto used to provide the Services):






	 	(i)	 	Supplier hereby grants to ABM (or, at ABM’s direction, its
designee) a license on standard terms and conditions no less favorable than
those offered generally by Supplier to other commercial customers to use such
Materials following the expiration or termination of the Term or termination of
the Service(s) for which such Materials were used; provided that, in all
events, such terms and conditions must be at least broad enough to permit ABM
(or, at ABM’s direction, its designee) to use such Materials to provide for ABM
and the Eligible Recipients, or have provided for them by third party
contractors, services similar to the Services, and for ABM and the Eligible
Recipients to receive such services;
	 
	 	(ii)	 	Supplier shall (A) deliver a copy of such Materials, and
related documentation to ABM and the Eligible Recipients, and (B) shall deliver
source code and/or object code to the extent such Supplier Owned Materials
include source code or object code and such code is customarily provided to
commercial customers licensing such Materials, and
	 
	 	(iii)	 	Supplier shall offer to provide to ABM (or, at ABM’s
direction, its designee) Upgrades, maintenance, support and other services for
commercial off-the-shelf Materials on Supplier’s then-current standard terms
and conditions for such services to the extent generally available to other
commercial customers.






	 	 	 	Unless ABM has otherwise agreed in advance, ABM and the Eligible Recipients shall
not be obligated to pay any license or transfer fees in connection with its receipt
of the licenses and other rights specified in this Section 14.6(b).
Supplier shall not use any generally commercially available Supplier Owned Materials
for which it is unable to offer such license or other rights without ABM’s prior
written approval (and absent such approval, Supplier’s use of any such Supplier
Owned Materials shall obligate Supplier to provide, at no additional cost to ABM,
such license and other rights to ABM, the Eligible Recipients and ABM’s designees).
	 
	 	(c)	 	Non-Commercially Available Supplier Owned Materials. With respect to those
Materials owned by Supplier or Supplier Affiliates or Subcontractors and used by them
to provide the Services that are not generally commercially available, unless otherwise
agreed prior to the first use of such Materials, Supplier hereby grants to ABM (or, at
ABM’s direction, its designee) a worldwide, perpetual, irrevocable, non-exclusive,
non-transferable (except to the extent this Agreement is assigned in accordance with
Section 21.1(b)) fully paid-up license, to use, execute, reproduce, display,
perform, and distribute such Materials following the expiration or termination of the
Term or termination of the Service(s) for which such Materials were used. Such license
shall be limited to the use of such non-commercially available Supplier Owned Materials
by ABM
(or, at ABM’s direction, its designee) to provide for ABM and the Eligible
Recipients or have provided for them by Third Party Contractors, services similar to
the Services and for ABM and the Eligible Recipients to receive such services.
Unless ABM has otherwise consented prior to the first use of such Materials, ABM
(or, at ABM’s direction, its designee) shall not be obligated to pay any license or
transfer fees in connection with its receipt of the licenses and other rights
specified above; provided that, if an ABM Third Party Contractor uses such Materials
for such





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	 	 	 	purpose for more than one (1) year after the expiration or termination of
the Term or termination of the Service(s) for which such Materials were used, ABM or
such ABM Third Party Contractor shall thereafter pay Supplier a commercially
reasonable license fee to be agreed upon by the Parties.
	 
	 	 	 	If Supplier is unwilling or unable to grant ABM or its designee the license and
other rights described in the preceding paragraph, Supplier shall so notify ABM and
shall not use such non-commercially available Supplier Owned Materials to provide
the Services without ABM’s prior written approval. In seeking ABM’s approval,
Supplier may propose alternative terms, such as a fee for such license, a limitation
on the use of such Materials by ABM Third Party Contractors, a limitation on the
license period and/or the substitution of a functionally equivalent product.
	 
	 	 	 	At ABM’s request, Supplier shall provide Upgrades, maintenance, support and other
services for such non-commercially available Supplier Owned Materials on reasonable
commercial terms and conditions, which shall include pricing no less favorable than
the pricing customarily charged to other commercial customers receiving equivalent
services. If Supplier fails to offer or provide Upgrades, maintenance, support or
other services, Supplier shall deliver source code and object code for such Supplier
Owned Materials to the extent such Materials include source code, together with the
right to modify, enhance and create derivative works of such Materials (provided
that, in such event, the licensed Supplier Owned Materials shall thereafter be
provided on an “as is” basis).
	 
	 	 	 	Notwithstanding the foregoing, during the Termination Assistance Services period,
Supplier may substitute a license for Third Party Software or Materials sufficient
to perform, without additional cost, support or resources and at the levels of
performance and efficiency required by this Agreement, the functions of the
non-commercially available Supplier Owned Materials. If it proposes to do so,
Supplier shall notify ABM and describe in detail the features, functionality and
cost of the substitute product. ABM may, in its sole discretion, elect to use a
different product for such purpose. In such case, Supplier shall direct the amount
it would have expended in procuring the proposed substitute product toward the
procurement of the product selected by ABM.
	 
	 	(d)	 	Third Party Software and Materials. Subject to Section 6.4(c), with
respect to Third Party Software and Materials licensed by Supplier or Supplier
Affiliates or Subcontractors or owned by Subcontractors and used by them to provide the
Services, Supplier hereby grants to ABM (or, at ABM’s election, to ABM’s designee) a
sublicense (with the right to grant sublicenses) offering the same rights and
warranties with respect to such Third Party Software and Materials available to
Supplier (or Supplier Affiliates or Subcontractors), on the same terms and conditions,
for the benefit and use of ABM, ABM Affiliates and the Eligible Recipients upon the
expiration or termination of the Term with respect to the Services for which such Third
Party Software or Materials were used; provided that, during the Termination Assistance
Services period, Supplier may, with ABM’s approval, substitute one of the following for
such sublicense:






	 	(i)	 	the assignment to ABM (or, at ABM’s election, to ABM’s
designee) of the underlying license for such Third Party Software or Materials;
or
	 
	 	(ii)	 	the procurement for ABM (or, at ABM’s election, its designee)
of a new license (with terms comparable to those in the license held by
Supplier or its Affiliates or
Subcontractors and with the right to grant sublicenses) to such Third Party
Software and Materials for the benefit or use of ABM, ABM Affiliates and the
Eligible Recipients; or
	 
	 	(iii)	 	the procurement for ABM (or, at ABM’s election, its designee)
of a substitute license for Third Party Software or Materials sufficient to
perform, without additional cost, support or resources and at the levels of
performance and efficiency required by this Agreement, the functions of the
Third Party Software and Materials necessary to enable ABM or its designee to
provide the Services after the expiration or termination of the Term.





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	 	 	 	In addition, Supplier shall deliver to ABM (or at ABM’s election, to its designee) a
copy of such Third Party Software and Materials (including source code, to the
extent it has been available to Supplier) and related documentation and shall cause
maintenance, support and other services to continue to be available to ABM and the
Eligible Recipients (or, at ABM’s election, to its designee) to the extent it has
been available to Supplier. Unless ABM has otherwise agreed in advance in
accordance with Section 6.4(c), ABM and the Eligible Recipients (or, at
ABM’s election, to its designee) shall not be obligated to pay any license or
transfer fees in connection with its receipt of the licenses, sublicenses and other
rights specified in this Section 14.6(d). Supplier shall not use any Third
Party Software and Materials for which it is unable to offer such license,
sublicense or other rights without ABM’s prior approval (and absent such approval,
Supplier’s use of any such Third Party Software and Materials shall obligate
Supplier to provide, at no additional cost to ABM, such licenses, sublicenses and
other rights). ABM, however, shall be obligated to make monthly or annual payments
attributable to periods after the expiration or termination of the Term with respect
to the Services for which such Third Party Materials were used for the right to use
and receive maintenance or support related thereto, but only to the extent Supplier
would have been obligated to make such payments if it had continued to hold the
licenses in question or ABM has agreed in advance to make such payments.
	 
	 	 	 	To the extent ABM has agreed in advance to pay any fees in connection with its
receipt of such licenses, sublicenses or other rights, Supplier shall, at ABM’s
request, identify the licensing and sublicensing options available to ABM and the
Eligible Recipients and the license or transfer fees associated with each. Supplier
shall use commercially reasonable efforts to obtain the most favorable options and
the lowest possible transfer, license, relicense, assignment or termination fees for
Third Party Software and Materials. Supplier shall not commit ABM or the Eligible
Recipients to paying any such fees or expenses without ABM’s prior approval. If the
licensor offers more than one form of license, ABM (not Supplier) shall select the
form of license to be received by ABM, the Eligible Recipients or designee.






	15.	 	REPRESENTATIONS AND WARRANTIES
	 
	15.1	 	Work Standards.
	 
	 	 	Supplier represents and warrants that the Services shall be rendered with promptness, due
care, skill and diligence and shall be executed in a workmanlike manner, in accordance with
the accepted practices of first tier providers of ITO Services and the Service Levels.
Supplier represents and warrants that it shall use adequate numbers of qualified individuals
with suitable training, education, experience, competence and skill to perform the Services.
Supplier shall provide such individuals with training as to new products and services prior
to the implementation of such products and services in the ABM/ Eligible Recipients
environment.
	 
	15.2	 	Maintenance.






	 	(a)	 	Supplier Responsibility. Supplier represents and warrants that, unless
otherwise agreed, it shall maintain the Equipment and Software so that they operate
substantially in accordance with the Service Levels and their Specifications, including
(i) maintaining Equipment in good operating condition, subject to normal wear and tear,
(ii) undertaking repairs and preventive maintenance on Equipment in accordance with the
applicable Equipment manufacturer’s recommendations and requirements, and (iii)
performing Software maintenance in accordance with the applicable Software supplier’s
documentation, recommendations and requirements.
	 
	 	(b)	 	Out of Support Third Party Equipment and Software. For Third Party Equipment
and Software no longer supported by the licensor or manufacturer for which Supplier has
operational responsibility under Schedules E and J.1, Supplier shall
use commercially reasonable efforts to perform maintenance for such Equipment or
Software as required.





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	 	(c)	 	Refresh. To the extent Supplier has financial responsibility under
Schedules E and J.1 for Equipment or Software, Supplier shall, at no
additional cost to ABM and subject to Section 9.7, Upgrade or replace such
Equipment or Software in accordance with the agreed upon refresh schedule set forth in
Schedule J.1 or as necessary to as necessary to satisfy its obligations under
this Agreement. Notwithstanding the foregoing, if ABM requires Supplier to refresh
Equipment or Software more frequently than the foregoing, the Parties will negotiate in
good faith and agree upon adjustments to the Charges in connection with such additional
refresh.






	15.3	 	Efficiency and Cost Effectiveness.
	 
	 	 	Supplier represents and warrants that it shall use commercially reasonable efforts to
provide the Services in a cost-effective manner consistent with the required level of
quality and performance. Without limiting the generality of the foregoing, such actions
shall include:






	 	(a)	 	Timing of Actions. Making adjustments in the timing of actions (consistent
with ABM priorities and schedules for the Services and Supplier’s obligation to meet
the Service Levels).
	 
	 	(b)	 	Timing of Functions. Delaying or accelerating, as appropriate, the performance
of non-critical functions within limits acceptable to ABM.
	 
	 	(c)	 	Systems Optimization. Tuning or optimizing the Systems (including memory)
and/or Applications Software to optimize performance and minimize costs.
	 
	 	(d)	 	Usage Scheduling. Controlling its use of the System and/or the ABM Data
network by scheduling usage, where possible, to low utilization periods.
	 
	 	(e)	 	Alternative Technologies. Subject to Section 9.5, using alternative
technologies to perform the Services.
	 
	 	(f)	 	Efficiency. Efficiently using resources for which ABM is charged hereunder,
consistent with industry norms, and compiling data concerning such efficient use in
segregated and auditable form whenever possible.






	15.4	 	Software.






	 	(a)	 	Ownership and Use. Supplier represents, warrants and covenants that it is
either the owner of, or authorized to use, any and all Software provided and used by
Supplier in providing the Services.
As to any such Software that Supplier does not own but is authorized to use,
Supplier shall advise ABM as to the ownership and extent of Supplier’s rights with
regard to such Software to the extent any limitation in such rights would materially
impair Supplier’s performance of its obligations under this Agreement.
	 
	 	(b)	 	Performance. Supplier represents, warrants and covenants that any Supplier
Owned Software will perform in all material respects in conformance with its
Specifications and will provide the functions and features and operate in all material
respects in the manner described therein.
	 
	 	(c)	 	Developed Materials Compliance. Supplier warrants and covenants that Developed
Materials shall be free from material errors in operation and performance, shall Comply
in all material respects with the Specifications and other criteria set forth in this
Agreement, and shall provide the functions and features and operate in the manner
described in Schedule E or otherwise agreed by the Parties. Supplier shall
correct any Noncompliance and shall use commercially reasonable efforts to do so as
expeditiously as possible. In the event that Supplier fails or is unable to repair or
replace such any Noncompliance, ABM shall, in addition to any and all other remedies
available to it hereunder, be entitled to obtain from Supplier a copy of the source
code to such Developed Material, provided that with respect to source code for Supplier
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	 	 	 	Materials, ABM (or its designee) may utilize such source code only for
the repair or maintenance of such Supplier owned Developed Material, and/or to
facilitate the Termination Assistance Services to be provided by Supplier during the
Termination Assistance period (to the extent reasonably necessary for ABM to continue
to have Services performed for it pursuant to the terms of this Agreement). The
foregoing will not extend to any Noncompliance attributable to (i) any change or
modification to the Developed Material not contemplated by this Agreement or
recommended, performed or approved by Supplier or (ii) ABM operating such Developed
Material other than (x) in accordance with the applicable documentation and
Specifications, (y) for the purpose contemplated by this Agreement, or (z) on types of
hardware contemplated by this Agreement or recommended, supplied or approved by
Supplier.
	 
	 	(d)	 	Nonconformity. In addition to the foregoing, in the event that the Supplier
Owned Software do not Comply with the Specifications and criteria set forth in this
Agreement (as applicable), and/or materially and adversely affect the Services provided
hereunder, Supplier shall expeditiously repair or replace such Software or Material
with conforming Software or Material.






	15.5	 	Non-Infringement.






	 	(a)	 	Performance of Responsibilities. Except as otherwise provided in this
Agreement, each Party represents and warrants that it shall perform its
responsibilities under this Agreement in a manner that does not infringe, or constitute
an infringement or misappropriation of, any patent, copyright, trademark, trade secret
or other proprietary rights of any third party; provided, however, that the performing
Party shall not have any obligation or liability to the extent any infringement or
misappropriation is caused by (i) modifications made by the other Party or its
contractors or subcontractors, without the approval of the performing Party, (ii) the
other Party’s combination of the performing Party’s work product or Materials with
items not furnished or specified by the performing Party or contemplated by this
Agreement, (iii) a breach of this Agreement by the other Party, (iv) the failure of the
other Party to use corrections or modifications provided by the performing Party
offering equivalent features and functionality, (v) adherence to detailed
specifications provided by the other Party that the performing Party is required to
comply with (provided the performing Party notifies the other Party of the possibility
of infringement or misappropriation if and to the extent it knows or reasonably should
know of such possibility), or (vi) Third Party Software, except to the extent that such
infringement or misappropriation arises from the failure of the performing Party to
obtain the necessary licenses or Required Consents or to abide by the limitations of
the applicable Third Party Software licenses.
	 
	 	(b)	 	Third Party Software Indemnification. In addition, unless otherwise agreed,
with respect to Third Party Software provided by Supplier pursuant to this Agreement,
Supplier covenants that it shall obtain and provide intellectual property
indemnification for ABM and its Affiliates (or obtain intellectual property
indemnification for itself and enforce such indemnification on behalf of ABM and its
Affiliates) from the suppliers of such Software. Unless otherwise approved in advance
by ABM, such indemnification shall be (i) comparable to the intellectual property
indemnification provided by Supplier to ABM and the Eligible Recipients under this
Agreement, or (ii) the standard indemnification offered in the industry for the same or
substantially similar types of software products. In addition to the foregoing,
Supplier shall use commercially reasonable efforts to obtain the indemnification
protection described above for Eligible Recipients that are not Affiliates of ABM.






	15.6	 	Authorization.
	 
	 	 	Each Party represents and warrants to the other that:






	 	(a)	 	Corporate Existence. It is a corporation duly incorporated, validly existing
and in good standing under the Laws of its state of incorporation;





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	 	(b)	 	Corporate Power and Authority. It has the requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
	 
	 	(c)	 	Legal Authority. Except as otherwise provided in Article 5, it has
obtained all licenses, authorizations, approvals, consents or permits required to
perform its obligations under this Agreement under all applicable federal, state or
local laws and under all applicable rules and regulations of all authorities having
jurisdiction over the Services, except to the extent the failure to obtain any such
license, authorizations, approvals, consents or permits is, in the aggregate,
immaterial;
	 
	 	(d)	 	Due Authorization. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement have been duly
authorized by the requisite corporate action on the part of such Party; and
	 
	 	(e)	 	No Violation or Conflict. The execution, delivery, and performance of this
Agreement shall not constitute a violation of any judgment, order, or decree; a
material default under any material contract by which it or any of its material assets
are bound; or an event that would, with notice or lapse of time, or both, constitute
such a default.






	15.7	 	Inducements.
	 
	 	 	Supplier represents and warrants that it has not given and will not give commissions,
payments, kickbacks, lavish or extensive entertainment, or other inducements of more than
minimal value to any employee or agent of ABM in connection with this contract. Supplier
also represents and warrants that, to the best of its knowledge, no officer, director,
employee, agent or representative of Supplier has given any such payments, gifts,
entertainment or other thing of value to any employee or agent of ABM in connection with
this Agreement. Supplier also acknowledges that the giving of any such payments, gifts,
entertainment, or other thing of value is strictly in violation of ABM policy on conflicts
of interest, and may result in the cancellation of this Agreement and all other existing and
future contracts between the Parties.
	 
	15.8	 	Malicious Code.
	 
	 	 	Each Party shall cooperate with the other Party and shall take commercially reasonable
actions and precautions consistent with Schedule E to prevent the introduction and
proliferation of Malicious Code into ABM’s or an Eligible Recipient’s environment or any
System used by Supplier to provide the Services. Without limiting Supplier’s other
obligations under this Agreement, in the event Malicious Code is found in Equipment,
Software or Systems managed or supported by Supplier or used by Supplier to provide the
Services, Supplier shall, at no additional charge to ABM, (i) eliminate or quarantine such
Malicious Code, (ii) restore the Equipment, Software and/or Systems to an operational level
sufficient to perform the Services in accordance with the Service Levels, and (iii) if the
Malicious Code causes a loss of operational efficiency or loss of data, mitigate such losses
and restore such data with generally accepted data restoration techniques.
	 
	15.9	 	Disabling Code.
	 
	 	 	Supplier represents and warrants that, without the prior consent of ABM, Supplier shall not
insert into the Software any code that could be invoked to disable or otherwise shut down
all or any portion of the Services. Supplier further represents and warrants that, with
respect to any disabling code that may be part of the Software, Supplier shall not invoke or
cause to be invoked such disabling code at any time, including upon expiration or
termination of this Agreement for any reason, without ABM’s prior consent. Supplier also
represents and warrants that it shall use commercially reasonable efforts to not use Third
Party Software with disabling code without the prior approval of ABM.





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	15.10	 	Compliance with Laws.






	 	(a)	 	Compliance by Supplier. Subject to Section 15.10(b), (d)(ii) and (e),
Supplier agrees that it is and shall be in compliance in all material respects with all
Laws applicable to its provision of the Services and the performance of its other legal
and contractual obligations hereunder on the Commencement Date and shall remain in
compliance in all material respects with such Laws for the entire Term, including
identifying and procuring applicable permits, certificates, approvals and inspections
required under such Laws. If a written charge of non-compliance by Supplier with any
such Laws occurs and such non-compliance has or potentially could have a material
adverse impact on the receipt or use of the Services by ABM or the Eligible Recipients,
then, Supplier shall promptly notify ABM of such charge.
	 
	 	(b)	 	Compliance by ABM. Subject to Section 15.10(d)(i), ABM agrees that it
is and shall be in compliance in all material respects with all Laws applicable to
ABM, including those processes and functions specific to ABM’s business that are
supported by Supplier under this Agreement (“ABM Laws”) for the entire Term of the
Agreement. If a written charge of non-compliance by ABM with any such ABM Laws occurs
in connection with this Agreement, ABM shall promptly notify Supplier of such charge.
	 
	 	(c)	 	Compliance Data and Reports. At no additional charge, Supplier shall provide
ABM with data and reports in Supplier’s possession necessary for ABM to comply with all
ABM Laws.
	 
	 	(d)	 	Notice of Laws.






	 	(i)	 	Supplier shall notify ABM (expeditiously under the
circumstances) of any Laws and changes in Laws applicable to providers of
application management, telecommunication, IT infrastructure, help desk, and
other information technology services (whether as a service unit within the
receiving organization or as an external contractor) (collectively, “Supplier
Laws’).
	 
	 	(ii)	 	ABM shall notify Supplier of any other Laws and any changes in
such other Laws.
	 
	 	(iii)	 	Supplier shall, through the Supplier Personnel, use
commercially reasonable efforts to maintain general familiarity with ABM Laws
by, among other things, attending any ABM sponsored training, and shall bring
additional or changed requirements of which it becomes aware to ABM’s
attention. Each Party shall use commercially reasonable efforts to advise the
other of Laws and changes in Laws about which such Party becomes aware in the
other Party’s area of responsibility, but without assuming an affirmative
obligation of inquiry, except as otherwise provided herein, and without
relieving the other Party of its obligations hereunder.






	 	(e)	 	Interpretation of Laws or Changes in Laws. ABM shall be responsible, for
interpreting ABM Laws or changes in ABM Laws and, with Supplier’s cooperation and
assistance, for identifying the impact of such ABM Laws or changes in ABM Laws on
Supplier’s performance and ABM’s and/or the Eligible Recipients’ receipt and use of the
Services. Supplier shall be responsible, for interpreting Supplier Laws or changes in
Supplier Laws and, with ABM’s cooperation and assistance, for identifying the impact of
such Supplier Laws or changes in Supplier Laws on Supplier’s performance and ABM’s
and/or the Eligible Recipients’ receipt and use of the Services. To the extent the
impact of any Supplier Law or change in Supplier Law cannot be readily identified by
Supplier, the Parties shall cooperate in interpreting such Law or change in Law and
shall seek in good faith to identify and agree upon the impact on Supplier’s
performance and ABM’s and/or the Eligible Recipients’ receipt and use of the Services.
In such event, Supplier shall inform ABM about such Supplier Law or change in Supplier
Law and propose approaches as to changes in the performance or receipt of the Services
to be made in response thereto. If the Parties are unable to agree upon such impact,
ABM shall retain the right, in its sole discretion, to





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	 	 	 	interpret such Supplier Law or
change in Supplier Law and determine its impact. In addition, if Supplier reasonably
concludes, after due inquiry, that the compliance obligations associated with any
Supplier Law or change in Supplier Law are unclear or that there is more than one
reasonable approach to achieving compliance, Supplier may escalate the issue to ABM for
a final decision. In all events, to the extent ABM makes the final decision as to the
interpretation of a Law or change in Law or its impact on Supplier’s performance and
ABM’s and/or the Eligible Recipients’ receipt and use of the Services and Supplier
complies with such decision, Supplier shall be relieved of responsibility for any
resulting non-compliance with such Law if and to the extent such decision is ultimately
determined to be in error. Supplier shall notify ABM expeditiously of such
non-compliance upon learning thereof and shall work expeditiously to remedy such
non-compliance upon receipt of ABM’s approval.
	 
	 	(f)	 	Implementation of Changes in Laws. In the event of any changes in Laws
(including ABM Laws to the extent Supplier receives prompt notice of such ABM Laws from
ABM or as otherwise provided in Section 15.10(d)(iii)), Supplier shall
implement any necessary modifications to the Services prior to the deadline imposed by
the regulatory or governmental body having jurisdiction for such requirement or change.
Supplier shall bear the costs associated with compliance with changes in Laws
applicable to the Services unless such change meets the definition of New Service, in
which case it shall be treated as a Project. At ABM’s request, Supplier Personnel
shall participate in ABM provided regulatory compliance training programs.
	 
	 	(g)	 	Compliance with Data Privacy Laws Without limiting the foregoing, with respect
to any ABM Personal Data, Supplier shall, with ABM’s prior approval, comply with any
obligations imposed on Supplier under any applicable Data Privacy Laws in connection
with Supplier’s performance of Services and shall provide ABM with such assistance as
ABM may reasonably require to fulfill the responsibilities of ABM and the Eligible
Recipients under such Data Privacy Laws. Supplier shall also comply with the ABM data
privacy policy, as such policy may be modified by ABM and communicated to Supplier in
accordance with the Agreement, as well as the reasonable global data privacy policies
of any self-regulatory organizations to which ABM or Eligible Recipients belong;
provided that, in the case of self-regulatory organizations, Supplier has received
notice of
such self-regulatory organization from ABM and a reasonable period, not to exceed
thirty (30) days, to implement any changes deemed necessary by ABM to achieve
compliance with such organization’s policies. Supplier will act in the capacity of
a processor of ABM Personal Data, and ABM will be the controller of such ABM
Personal Data, under applicable Data Privacy Laws.
	 
	 	(h)	 	Assistance to ABM. As part of the Services and on an ongoing basis, Supplier
shall assist ABM and the Eligible Recipients as they may reasonably require in their
efforts to determine how to change the Services to comply with applicable Laws
(including any changes to Laws) not applicable to Supplier or related to the Services.
Without limiting Supplier’s obligations under this Agreement, this Agreement shall not
be construed as requiring either Party to provide legal, audit or attest advice to the
other Party.
	 
	 	(i)	 	No Liability for ABM Obligations. Supplier shall not be financially
responsible for amounts that ABM or the Eligible Recipients were otherwise legally or
contractually obligated to pay, but that were not paid because of Supplier’s failure to
comply with applicable Laws or its other responsibilities under this Agreement.
However, the foregoing shall not operate or be construed as relieving Supplier of
responsibility for fines, penalties, interest, or other remedies for which Supplier is
otherwise responsible under Section 17.1(f)
	 
	 	(j)	 	Termination. In the event that any change in Laws results in an increase of
ten percent (10%) or more in the estimated average monthly Charges in any Functional
Service Area or otherwise has a material adverse impact on Supplier’s ability to
perform the Services and ABM would not have incurred such additional cost or impact if
it had not outsourced the Services in question, then ABM may, at its option, terminate
the Agreement by giving Supplier at least ninety (90) days prior notice and designating
a date upon which such termination shall be effective. If ABM





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	 	 	 	terminates on this
basis, ABM shall pay Termination Charges calculated in accordance with Schedule
N.






	15.11	 	Interoperability.
	 
	 	 	Supplier represents, warrants and covenants that, upon completion of the Transition
Services, the Software, Equipment and Systems provided through, and used to provide, the
Services will be fully interoperable with the software, equipment and systems used by ABM or
the Eligible Recipients to provide the same or similar services and/or to deliver records
to, receive records form, or otherwise interact with the Software, Equipment and Systems to
receive the Services. Supplier further represents, warrants and covenants that, upon the
transition of any Service to a Supplier Facility, the Software, Equipment and Systems
provided through, and used to provide, such Service will be fully interoperable with the
software, equipment and systems used by ABM or the Eligible Recipients to provide the same
or similar services and/or to deliver records to, receive records form, or otherwise
interact with the Software, Equipment and Systems to receive such Service.
	 
	15.12	 	Disclaimer.
	 
	 	 	EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS,
CONDITIONS OR WARRANTIES TO THE OTHER PARTY, WHETHER EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
	 
	 	 	Subject to Supplier’s obligations under this Agreement, including Service Levels, Supplier
does not assure uninterrupted or error-free operation of the Equipment, Software or
Services.
	 
	16.	 	INSURANCE AND RISK OF LOSS
	 
	16.1	 	Insurance.






	 	(a)	 	Requirements. Supplier agrees to keep in full force and effect and maintain at
its sole cost and expense the following policies of insurance during the term of this
Agreement:






	 	(i)	 	Workers’ Compensation and Employer’s Liability Insurance in
full compliance with the applicable Laws of the state in which the work is to
be performed:






	 	•	 	Statutory Worker’s Compensation including occupational disease in
accordance with the law.
	 
	 	•	 	Employer’s Liability Insurance with minimum limits of $1,000,000 per
employee by accident/$1,000,000 per employee by disease/$1,000,000
policy limit by disease.
	 
	 	•	 	Policy shall include an Alternate Employer Endorsement listing ABM
and the Eligible Recipients as the Alternate Employer.






	 	(ii)	 	Commercial General Liability Insurance (including contractual
liability coverage for liability assumed by Supplier under this Agreement,
Premises-Operations, Completed Operations—Products and Independent
Contractors) providing coverage for bodily injury, personal and advertising
injury and property damage with combined single limits of not less than
$5,000,000 per occurrence and $10,000,000 in the aggregate (or, if higher, the
limits required by applicable Law).
	 
	 	(iii)	 	Commercial Business Automobile Liability Insurance including
coverage for all owned, non-owned, leased, and hired vehicles providing
coverage for bodily injury and property





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	 	 	 	damage liability with combined single
limits of not less than $5,000,000 per occurrence, except as may otherwise be
required by Law.
	 
	 	(iv)	 	Umbrella / Excess Liability Insurance all on an occurrence
basis with an occurrence and aggregate minimum limit of $50,000,000, all to be
following form over the underlying insurance provided in Section
16.1(a)(i), (ii) and (iii).
	 
	 	(v)	 	Professional Liability (also known as Errors and Omissions
Liability Insurance) covering acts, errors and omissions arising out of
Supplier’s operations or Services in an amount not less than $5,000,000 per
claim and $10,000,000 in the aggregate. Should this coverage be provided on a
claims made basis, a minimum extended reporting period of two (2) years will be
provided for ABM upon termination or expiration of the Term.
	 
	 	(vi)	 	Comprehensive Crime Insurance, including, Employee Dishonesty
and Computer Fraud Insurance, covering losses arising out of or in connection
with any fraudulent or dishonest acts committed by Supplier employees, acting
alone or with others, in an amount not less than $5,000,000 per occurrence.
	 
	 	(vii)	 	All risk property insurance covering loss or damage to ABM
Equipment and other assets in Supplier’s possession and/or control in an amount
not less than the full replacement cost of such Equipment and assets.






	 	(b)	 	Approved Companies. All such insurance shall be procured with reputable
insurance companies and in such form as shall be acceptable to ABM. Such insurance
companies shall maintain a
rating at least “A-” and be at least a Financial Size Category VIII as both criteria
are defined in the most current publication of Best’s Policyholder Guide, except for
Section 16.1(a)(vii) (all risk property insurance) for which Supplier uses a
single owner captive company to evidence coverage.
	 
	 	(c)	 	Endorsements. Supplier’s insurance policies as required herein under
Sections 16.1(a)(ii) and (iii) shall name ABM, ABM Affiliates and
Eligible Recipients, and their respective officers, directors, agents, servants and
employees as Additional Insureds as their interests may appear with respect to
Supplier’s performance under this Agreement. The Supplier insurance policies required
under Section 16.1(a)(vi) shall name ABM, ABM Affiliates and Eligible
Recipients and their respective officers, directors and employees as loss payees as
their interests may appear with respect to Supplier’s performance under this Agreement.
Subject to Section 16.2(a), with respect to matters pertaining to the Services
or Supplier’s obligations under this Agreement, all insurance afforded to ABM under
this Section 16.1 shall be primary insurance and any other valid insurance
existing for ABM’s benefit shall be excess of such primary insurance and
non-contributory with respect to any insurance or self-insurance maintained by ABM or
the Eligible Recipients. Supplier shall obtain such endorsements to its policy or
policies of insurance as are necessary to cause the policy or policies to comply with
the requirements stated herein.
	 
	 	(d)	 	Certificates. Supplier shall provide ABM with certificates of insurance
evidencing compliance with this Article 16 upon execution of this Agreement.
Each certificate of insurance, except for Section 16.1(a)(v) (professional
liability) and Section 16.1(a)(vi) (comprehensive crime), shall include a
statement that the issuing company shall not cancel, nonrenew, reduce, or otherwise
change the insurance afforded under the above policies unless thirty (30) days’ notice
of such cancellation, nonrenewal, reduction or change has been provided to:




ABM Industries Inc.

160 Pacific Avenue, Suite 222

San Francisco, CA 94111



Attention: General Counsel




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	 	 	 	With respect to the insurance provided under Sections 16.1(a)(v)
(professional liability) and Section 16.1(a)(vi) (comprehensive crime),
Supplier shall provide notice to ABM at least thirty (30) days prior to Supplier or
the issuing company canceling, nonrenewing, reducing, or otherwise changing the
insurance afforded under such policies.
	 
	 	(e)	 	No Implied Limitation. The obligation of Supplier to provide the insurance
specified herein shall not limit or expand in any way any obligation or liability of
Supplier provided elsewhere in this Agreement, nor shall the insurance coverage
provided herein override ABM’s indemnification obligations.
	 
	 	(f)	 	Insurance Subrogation. With respect to insurance coverage to be provided by
Supplier pursuant to Sections 16.1 (except Section 16.1(a)(v)
(professional liability) and Section 16.1(a)(vi) (comprehensive crime), which
will follow these words but for which certificates cannot be provided), the applicable
insurance policies shall provide that the insurance companies waive all rights of
subrogation against Supplier, ABM, the Eligible Recipients and their respective
subsidiaries, Affiliates, officers, directors, and employees.






	16.2	 	Risk of Loss.






	 	(a)	 	General. Except as otherwise provided in Section 17.3(b), each Party
shall be responsible for risk of loss of, and damage to, any Equipment, Software or
other materials in its possession or
under its control. Supplier shall be deemed to possess and control all Equipment,
Software and other materials located in Supplier Facilities or in ABM Facilities
used by Supplier to provide the Services. Each Party shall promptly notify the
other of any damage (except normal wear and tear), destruction, loss, theft, or
governmental taking of any item of Equipment, Software or other Materials in the
possession or under the control of such Party (“Event of Loss”). Such Party shall
be responsible for the cost of any necessary repair or replacement of such
Equipment, Software or other Materials due to an Event of Loss. In the event of an
Event of Loss by ABM, such repair or replacement shall not be considered part of
Supplier’s maintenance obligations, but Supplier shall coordinate and oversee repair
or replacement performed by a third-party on a Pass-Through Expenses basis, or by
Supplier at agreed-upon prices.
	 
	 	(b)	 	Waiver. Subject to Section 17.3(b), Supplier and ABM each waive all
rights to recover against the other Party for damage, destruction, loss, theft, or
governmental taking of their respective real or tangible personal property (whether
owned or leased) from any cause to the extent covered by insurance maintained by each
of them, including their respective deductibles or self-insured retentions. Supplier
and ABM will cause their respective insurers to issue appropriate waivers of
subrogation rights endorsements to all property insurance policies maintained by each
Party, including the policy referenced in Section 16.1(a)(vii).






	17.	 	INDEMNITIES
	 
	17.1	 	Indemnity by Supplier.
	 
	 	 	Supplier agrees to indemnify, defend and hold harmless ABM and its Affiliates and the
Eligible Recipients and their respective officers, directors, employees, agents,
representatives, successors, and assigns (collectively, the “ABM Indemnitees”) from any and
all Losses and threatened Losses to the extent due to third party claims arising from or in
connection with any of the following:






	 	(a)	 	Representations, Warranties and Covenants. Supplier’s breach of any of the
representations, warranties and covenants set forth in Sections 15.6, 15.7, 15.9
and 15.10(a);
	 
	 	(b)	 	Assumed Contracts. Supplier’s decision to terminate or failure to observe or
perform any duties or obligations to be observed or performed by Supplier under any of
the Third Party Software





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	 	 	 	licenses, Equipment leases or Third Party Contracts assigned
to Supplier by ABM or the Eligible Recipients or for which Supplier has assumed
financial or operational responsibility pursuant to this Agreement for so long as
Supplier retains financial or operational responsibility for such licenses, leases or
contracts;
	 
	 	(c)	 	Licenses, Leases and Contracts. Supplier’s failure to observe or perform any
duties or obligations to be observed or performed by Supplier under Third Party
Software licenses, Equipment leases or Third Party Contracts used by Supplier to
provide the Services;
	 
	 	(d)	 	ABM Data or Proprietary Information. Supplier’s breach of any of the
restrictions in Sections 13.1 and 13.3 on the disclosure or use of ABM
Data or ABM Proprietary Information.
	 
	 	(e)	 	Infringement. Infringement or misappropriation or alleged infringement or
alleged misappropriation of a patent, trade secret, copyright or other proprietary
rights in contravention of Supplier’s representations, warranties and covenants in
Sections 15.4 and 15.5;
	 
	 	(f)	 	Government Claims. Claims by government regulators or agencies or standards
organizations for fines, penalties, sanctions, underpayments or other remedies to the
extent such fines, penalties,
sanctions, underpayments or other remedies are attributable to Supplier’s failure to
comply with its obligations under Section 15.10(a);
	 
	 	(g)	 	Taxes. Taxes, together with interest and penalties, that are the
responsibility of Supplier under Section 11.4;
	 
	 	(h)	 	Shared Facility Services. Services, products or systems provided by Supplier
to a third party from any shared Supplier facility or using any shared Supplier
resources and not constituting Services provided to an Eligible Recipient pursuant to
this Agreement;
	 
	 	(i)	 	Affiliate or Subcontractor Claims. Any claim, other than an indemnification
claim under this Agreement, initiated by a Supplier Affiliate or Subcontractor
asserting rights under this Agreement or any entity to which Supplier assigned,
transferred, pledged, hypothecated or otherwise encumbered its rights to receive
payments from ABM under this Agreement;
	 
	 	(j)	 	Employment Claims. Any claim (including claims by Transitioned Employees) to
the extent resulting from any (i) violation by Supplier, Supplier Affiliates or
Subcontractors, or their respective officers, directors, employees, representatives or
agents, of Federal, state, provincial, local, international or other Laws or
regulations or any common law protecting persons or members of protected classes or
categories, including laws or regulations prohibiting discrimination or harassment on
the basis of a protected characteristic, (ii) liability arising or resulting from the
employment of Supplier Personnel (including Transitioned Employees) by Supplier,
Supplier Affiliates or Subcontractors (including liability for any social security or
other employment taxes, workers’ compensation claims and premium payments, and
contributions applicable to the wages and salaries of such Supplier Personnel), (iii)
payment or failure to pay any salary, wages or other cash compensation due and owing to
any Supplier Personnel (including Transitioned Employees from and after their
Employment Effective Dates), (iv) Supplier’s failure to pay employee pension or other
benefits of any Supplier Personnel (including Transitioned Employees for benefits due
and owed to any Supplier Personnel and accruing from and after their Employment
Effective Dates), (v) other acts or omissions of Supplier, Supplier Affiliates or
Subcontractors in their capacity as an employer of Supplier Personnel (including
Transitioned Employees) or the termination of such relationship, including claims for
wrongful discharge, claims for breach of express or implied employment contract and
claims of joint employment, and/or (vi) liability resulting from representations (oral
or written) to the employees identified on Schedule M by Supplier, Supplier
Affiliates or Subcontractors (or their respective officers, directors, employees,
representatives or agents), or other acts or omissions with respect to the employees
identified on Schedule M by such persons or entities, including any act,
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	 	 	 	representation made in connection with the interview, selection, hiring
and/or transition process, the offers of employment made to such employees, the failure
to make offers to any such employees, the rescission of such offers of employment, or
the terms and conditions of such offers (including compensation and employee benefits),
except, in each case, to the extent resulting from the wrongful actions of ABM, the
Eligible Recipients, or ABM Third Party Contractors (or their respective officers,
directors, employees, representatives or agents, other than the employees identified on
Schedule M), errors or inaccuracies in the information provided by ABM and
faithfully communicated by Supplier or the failure of ABM, the Eligible Recipients, or
ABM Third Party Contractors (or their respective officers, directors, employees,
representatives or agents, other than the employees identified on Schedule M)
to comply with ABM’s responsibilities under this Agreement.
	 
	 	(k)	 	WARN Act. Supplier’s breach of its obligations under Section 8.11(b)
to the extent such breach results in ABM or an Eligible Recipient being in violation of
the WARN Act or the regulations promulgated thereunder.
	 
	 	(l)	 	Transitioned Employees Claims. Any labor or employment-related liability,
action, judgment, costs, expense or violation of any applicable Law, rule, regulation,
ordinance or governmental order relating to or brought by any Transitioned Employee
which the ABM indemnitees may be subject to incur by reason of any act, omission or
matter arising on or after the Employment Effective Date.






	17.2	 	Indemnity by ABM.
	 
	 	 	ABM agrees to indemnify, defend and hold harmless Supplier and its officers, directors,
employees, agents, representatives, successors, and assigns (collectively, the “Supplier
Indemnitees”), from any Losses and threatened Losses to the extent due to third party claims
arising from or in connection with any of the following:






	 	(a)	 	Representations, Warranties and Covenants. ABM’s breach of any of the
representations, warranties and covenants set forth in Sections 15.6, 15.7 and
15.10(b);
	 
	 	(b)	 	Licenses, Leases or Contracts. ABM’s failure to observe or perform any duties
or obligations to be observed or performed by ABM under any of the applicable Third
Party Software licenses, Equipment leases or Third Party Contracts to the extent ABM is
financially or operationally responsible under this Agreement;
	 
	 	(c)	 	Pre-Commencement Date Matters. ABM’s failure to observe or perform any duties
or obligations to be observed or performed prior to the Commencement Date by ABM under
any of the Third Party Software licenses, Equipment Leases or Third Party Contracts
assigned to Supplier by ABM pursuant to this Agreement;
	 
	 	(d)	 	Supplier’s Proprietary Information. ABM’s breach of any of the restrictions in
Section 13.3 on the disclosure or use of Supplier Proprietary Information;
	 
	 	(e)	 	Infringement. Infringement or misappropriation or alleged infringement or
alleged misappropriation of a patent, trade secret, copyright or other proprietary
rights in contravention of ABM’s representations, warranties and covenants in
Section 15.5;
	 
	 	(f)	 	Government Claims. Claims by government regulators or agencies for fines,
penalties, sanctions, underpayments or other remedies to the extent such fines,
penalties, sanctions, underpayments or other remedies attributable to ABM’s comply with
its obligations under Section 15.10(b);





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	 	(g)	 	Taxes. Taxes, together with interest and penalties, that are the
responsibility of ABM under Section 11.4;
	 
	 	(h)	 	ABM Affiliate, Eligible Recipient or Subcontractor Claims. Any claim, other
than an indemnification claim or insurance claim under this Agreement, initiated by an
ABM Affiliate, an Eligible Recipient (other than ABM) or an ABM Third Party Contractor
asserting rights under this Agreement; and
	 
	 	(i)	 	Employment Claims. Any claim to the extent resulting from any (i) violation by
ABM or its respective officers, directors, employees, representatives or agents, of
Federal, state, provincial, local, international or other Laws or regulations or any
common law protecting persons or members of protected classes or categories, including
laws or regulations prohibiting discrimination or harassment on the basis of a
protected characteristic, (ii) payment or failure to pay any salary, wages or other
cash compensation owed by ABM to any Transitioned Employee
and relating to the period of his or her employment with ABM, (iii) ABM’s failure to
pay any accrued employee pension or other benefits owed by ABM to any Transitioned
Employee and accruing during the period of his or her employment with ABM, (iv)
other acts or omissions of ABM in its capacity as an employer of the Transitioned
Employees, but excluding claims covered by Section 17.1(j) (and provided,
in no event will ABM be liable for any claim related to a Transitioned Employee’s
employment relationship arising after such Transitioned Employee’s Employment
Effective Date regardless of a finding by any court or authoritative body that ABM
is or was an employer of such Transitioned Employee on or after his or her
Employment Effective Date), and/or (v) liability resulting from representations
(oral or written) to the Affected Employees identified on Schedule M by ABM
(or its officers, directors, employees, representatives or agents), except, in each
case, to the extent resulting from the wrongful actions of Supplier, Supplier
Affiliates or Subcontractors (or their respective officers, directors, employees,
representatives or agents), errors or inaccuracies in the information provided by
Supplier and faithfully communicated by ABM, or the failure of Supplier, Supplier
Affiliates or Subcontractors (or their respective officers, directors, employees,
representatives or agents) to comply with Supplier’s responsibilities under this
Agreement.






	17.3	 	Additional Indemnities.
	 
	 	 	Supplier and ABM each agree to indemnify, defend and hold harmless the other, and the
Eligible Recipients and their respective Affiliates, officers, directors, employees, agents,
representatives, successors, and assigns, from any and all Losses and threatened Losses to
the extent they arise from or in connection with any of the following: (a) the death or
bodily injury of any agent, employee, customer, business invitee, business visitor or other
person caused by the negligence or other tortious conduct of the indemnitor or the failure
of the indemnitor to comply with its obligations under this Agreement; and (b) the damage,
loss or destruction of any real or tangible personal property caused by the negligence or
other tortious conduct of the indemnitor or the failure of the indemnitor to comply with its
obligations under this Agreement.
	 
	17.4	 	Infringement.
	 
	 	 	In the event that (1) any Materials, Equipment or Software provided by Supplier or its
Affiliates or Subcontractors pursuant to this Agreement or for which Supplier is financially
responsible under this Agreement are found or, are reasonably likely to be found to infringe
upon the patent, copyright, trademark, trade secrets, intellectual property or proprietary
rights of any third party in any country in which Services are to be performed or received
under this Agreement or (2) the continued provision of such Services or use of such
Materials, Equipment or Software is enjoined, Supplier shall, in addition to defending,
indemnifying and holding harmless ABM as provided in Section 17.1(e) and to the
other rights ABM may have under this Agreement, promptly and at its own cost and expense and
in such a manner as to minimize the disturbance to ABM’s and the Eligible Recipients’
business activities do one of the following:





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	 	(a)	 	Obtain Rights. Obtain for ABM and the Eligible Recipients the right to
continue using such Materials, Equipment or Software.
	 
	 	(b)	 	Modification. Modify the item(s) in question so that it is no longer
infringing (provided that such modification does not degrade the performance or quality
of the Services or adversely affect ABM’s and the Eligible Recipients’ intended use as
contemplated by this Agreement).
	 
	 	(c)	 	Replacement. Replace such item(s) with a non-infringing functional equivalent
acceptable to ABM.
	 
	 	(d)	 	If, despite Supplier using commercially reasonable efforts, the Parties
determine that alternatives (a) – (c) above are not feasible, Supplier may discontinue
its use of such infringing or potentially
infringing Materials, Equipment or Software. However, this shall not limit or
expand ABM’s rights or Supplier’s obligations under the Agreement. Nor shall this
excuse any breach by Supplier of its obligation to provide the Services and to do so
in a non-infringing manner.






	17.5	 	Indemnification Procedures.
	 
	 	 	With respect to third party claims (other than those covered by Section 17.1(f) and
17.2(f) and except as provided in Section 17.6), the following procedures
shall apply:






	 	(a)	 	Notice. Promptly after receipt by any entity entitled to indemnification
(under Sections 17.1 through 17.4 or any other provisions of this
Agreement) of notice of the commencement or threatened commencement of any civil,
criminal, administrative, or investigative action or proceeding involving a claim in
respect of which the indemnitee will seek indemnification pursuant to any such Section,
the indemnitee shall notify the indemnitor of such claim. No delay or failure to so
notify an indemnitor shall relieve it of its obligations under this Agreement except to
the extent that such indemnitor has suffered actual prejudice by such delay or failure.
Within fifteen (15) days following receipt of notice from the indemnitee relating to
any claim, but no later than five (5) days before the date on which any response to a
complaint or summons is due, the indemnitor shall notify the indemnitee that the
indemnitor elects to assume control of the defense and settlement of that claim (a
“Notice of Election”).
	 
	 	(b)	 	Procedure Following Notice of Election. If the indemnitor delivers a Notice of
Election within the required notice period, the indemnitor shall assume sole control
over the defense and settlement of the claim; provided, however, that (i) the
indemnitor shall keep the indemnitee reasonably apprised at all times as to the status
of the defense, and (ii) the indemnitor shall obtain the prior written approval of the
indemnitee before entering into any settlement of such claim asserting any liability
against the indemnitee or imposing any obligations or restrictions on the indemnitee or
ceasing to defend against such claim. In addition to defense costs and expenses
(including reasonable legal fees and disbursements and costs of investigation,
litigation, settlement, judgment, interest and penalties), the indemnitor shall pay any
amounts which a court finally awards to a third party or which are included in a
settlement agreed to by the indemnitor. The indemnitor shall not be liable for any
legal fees or expenses incurred by the indemnitee following the delivery of a Notice of
Election; provided, however, that (i) the indemnitee shall be entitled to employ
counsel at its own expense to participate in the handling of the claim, and (ii) the
indemnitor shall pay the reasonable fees and expenses associated with such counsel if
there is a conflict of interest under applicable rules or with respect to such claim or
if the indemnitor has requested the assistance of the indemnitee in the defense of the
claim or the indemnitor has failed to defend the claim diligently and the indemnitee is
prejudiced or likely to be prejudiced by such failure. The indemnitor shall not be
obligated to indemnify the indemnitee for any amount paid or payable by such indemnitee
in the settlement of any claim if (x) the indemnitor has delivered a timely Notice of
Election and such amount was agreed to without the written consent of the indemnitor,
(y) the indemnitee has not provided the indemnitor with notice of such claim and a





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	 	 	 	reasonable opportunity to respond thereto, or (z) the time period within which to
deliver a Notice of Election has not yet expired.
	 
	 	(c)	 	Procedure Where No Notice of Election Is Delivered. If the indemnitor does not
deliver a Notice of Election relating to any claim for which it is obligated to
indemnify the other Party hereunder within the required notice period, the indemnitee
shall have the right to defend the claim in such manner as it may deem appropriate.
The indemnitor shall promptly reimburse the indemnitee for all such costs and expenses
incurred by the indemnitee, including attorneys’ fees.






	17.6	 	Indemnification Procedures — Governmental Claims.
	 
	 	 	With respect to claims covered by Sections 17.1(f) and 17.2(f), the
following procedures may apply at the sole discretion of the indemnitee:






	 	(a)	 	Notice. Promptly after receipt by either Party of notice of the commencement
or threatened commencement of any action or proceeding involving a claim in respect of
which the indemnitee will seek indemnification pursuant to Section 17.1(f) or
17.2(f), the Party receiving such notice shall notify the other Party of such
claim. No delay or failure to so notify the other Party shall relieve such other Party
of its obligations under this Agreement except to the extent that such other Party has
suffered actual prejudice by such delay or failure.
	 
	 	(b)	 	Procedure for Defense. Each Party shall be entitled to have sole control over
the defense and settlement of such claim brought against it; provided that such Party
shall consult with the other Party on a regular basis regarding claim processing
(including actual and anticipated costs and expenses) and litigation strategy and shall
obtain the prior written approval of such other Party before entering into any
settlement of such claim involving the payment of moneys for which such other Party
will ultimately be financially responsible under Section 17.1(f).






	17.7	 	Subrogation.
	 
	 	 	Except as otherwise provided in Sections 16.1 or 16.2 in the event that an
indemnitor shall be obligated to indemnify an indemnitee pursuant to Sections 17.1
through 17.4 or any other provision of this Agreement, the indemnitor shall, upon
payment of such indemnity in full, be subrogated to all rights of the indemnitee with
respect to the claims to which such indemnification relates.
	 
	18.	 	LIABILITY
	 
	18.1	 	General Intent.
	 
	 	 	Subject to the specific provisions of this Article 18, it is the intent of the
Parties that each Party shall be liable to the other Party for any actual damages incurred
by the non-breaching Party as a result of the breaching Party’s failure to perform its
obligations in the manner required by this Agreement.
	 
	18.2	 	Force Majeure.






	 	(a)	 	General. Subject to Section 18.2(d), no Party shall be liable for any
default or delay in the performance of its obligations under this Agreement if and to
the extent such default or delay is caused, directly or indirectly, by fire, flood,
earthquake, elements of nature or acts of God; wars, riots, civil disorders, rebellions
or revolutions, or any other similar cause beyond the reasonable control of such Party,
except to the extent such default or delay is caused by such Party’s failure to perform
its obligations under this Agreement, and provided that such default or delay can not
reasonably be circumvented by the non-performing Party through the use of commercially
reasonable alternate sources, workaround plans or other commercially reasonable means.
A strike, lockout or labor dispute involving Supplier or a Subcontractor and its own
personnel shall not excuse Supplier from its obligations hereunder. In addition, the
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	 	 	 	enter a facility that is the subject of a labor
dispute shall excuse Supplier from its obligations hereunder only if and to the extent
such refusal is based upon a reasonable fear of harm.
	 
	 	(b)	 	Duration and Notification. In such event the non-performing Party shall be
excused from further performance or observance of the obligation(s) so affected for as
long as such circumstances prevail and such Party continues to use commercially
reasonable efforts to recommence
performance or observance whenever and to whatever extent possible without delay.
To the extent possible, any Party so prevented, hindered or delayed in its
performance shall, as quickly as practicable under the circumstances, notify the
Party to whom performance is due by telephone (to be confirmed in writing within one
(1) day of the inception of such delay) and describe at a reasonable level of detail
the circumstances of the force majeure event, the steps being taken to address such
force majeure event, and the expected duration of such force majeure event.
	 
	 	(c)	 	Substitute Services; Termination. If any event described in Section
18.2(a) has substantially prevented, hindered or delayed or is reasonably expected
to prevent, hinder or delay the performance by Supplier or one of its Subcontractors of
Services necessary for the performance of critical ABM or Eligible Recipient functions
for longer than the recovery period specified in the applicable disaster recovery plan,
ABM may procure such Services from an alternative source, and Supplier shall be liable
for payment for such services from the alternate source for so long as the delay in
performance shall continue up to 180 days; provided that, ABM continues to pay the
applicable Charges for all Services that it continues to receive from Supplier or an
alternate source at Supplier’s expense. In addition, if any event described in
Section 18.2(a) substantially prevents, hinders or delays the performance by
Supplier, its Subcontractors or an alternate source paid by Supplier of Services
necessary for the performance of critical ABM or Eligible Recipient functions (i) for
more than five (5) days, ABM, at its option, may terminate any portion of this
Agreement so affected (provided that, to the extent ABM terminates on this basis, it
shall pay the Wind Down Charges specified in Sections 2(a) and (b) of Schedule N)
and the charges payable hereunder shall be equitably adjusted to reflect those
terminated Services; or (ii) for more than ten (10) days, ABM, at its option, may
terminate this Agreement in its entirety (provided that, to the extent ABM terminates
on this basis, it shall pay the Wind Down Charges specified in Sections 2(a) and (b) of
Schedule N for the impacted Functional Service Areas and the Wind Down Charges
specified in Sections 2(a), (b) and (c) of Schedule N for all other Functional
Service Areas). Supplier shall not have the right to additional payments or increased
usage charges as a result of any force majeure occurrence affecting Supplier’s ability
to perform.
	 
	 	(d)	 	Disaster Recovery. Upon the occurrence of a force majeure event that
constitutes a disaster under the applicable disaster recovery plan, Supplier shall
implement promptly, as appropriate, its disaster recovery plan and provide disaster
recovery services as described in Schedule E. The occurrence of a force
majeure event shall not relieve Supplier of its obligation to implement its disaster
recovery plan and provide disaster recovery services except to the extent a force
majeure event impacts Supplier’s ability to implement such plan and provide such
services.
	 
	 	(e)	 	Payment Obligation. If Supplier fails to provide Services in accordance with
this Agreement due to the occurrence of a force majeure event, all amounts payable to
Supplier hereunder shall be equitably adjusted in a manner such that ABM is not
required to pay any amounts for Services that it is not receiving whether from Supplier
or from an alternate source at Supplier’s expense pursuant to Section 18.2(c).
	 
	 	(f)	 	Allocation of Resources. Without limiting Supplier’s obligations under this
Agreement, whenever a force majeure event or disaster causes Supplier to allocate
limited resources between or among Supplier’s customers and Affiliates, ABM and the
Eligible Recipients shall receive at least the same treatment with respect to such
allocation as comparable Supplier customers.





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	18.3	 	Limitation of Liability.






	 	(a)	 	Limitations. EXCEPT AS PROVIDED IN THIS SECTION 18.3, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY,
OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF
THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
	 
	 	(b)	 	Liability Cap. Additionally, except as provided below, the total aggregate
liability of either Party, for claims asserted by the other Party under or in
connection with this Agreement (excluding claims covered by Section 18.3(c) and
18(g) that are subject to a separate liability cap), regardless of the form or
the action of the theory of recovery, shall be limited to the total Charges for the
twelve (12) months immediately preceding the last act or omission giving rise to such
liability; provided that, for the period ending on the last day of the first Contract
Year, such liability cap shall be not less than the amount specified in Schedule
J as the “Annual Service Charge” for the first Contract Year. For avoidance of
doubt, this liability cap is an aggregate liability cap for the Master Agreement and
all Companion Agreements.
	 
	 	(c)	 	Separate Liability Cap for Supplier Refusal to Perform. If, following its
receipt of a termination notice and prior to its completion of all Termination
Assistance Services requested by ABM under Section 4.3, Supplier refuses to
provide all or a material portion of the Services then required to be provided by
Supplier under this Agreement, the limitations of liability set forth in Section
18.3(a) and (b) shall not apply to the liability, damages and losses
suffered by ABM and/or the Eligible Recipients as a result of such refusal. The total
aggregate liability of Supplier for such liability, damages and losses shall be limited
to the total Charges payable to Supplier during the eight (8) month period immediately
preceding the last act or omission giving rise to such liability; provided that, for
the period beginning on the Effective Date and ending eight (8) months after the
Commencement Date, the total aggregate liability of Supplier for such liability,
damages and losses shall be limited to the greater of the total anticipated Charges
specified in Schedule J for such period or the total actual Charges for the
preceding eight (8) months. For purposes of this provision, “refusal” means the
intentional cessation by Supplier, in a manner impermissible under this Agreement, of
the performance of all or a material portion of the Services then required to be
provided by Supplier under this Agreement.
	 
	 	(d)	 	Cap within Liability Cap for Government Fines, Penalties, Interest and other
Remedies. The limitations of liability set forth in Section 18.3(a) shall not
apply to fines, penalties, sanctions, underpayments or other remedies for which
Supplier is liable under Section 17.1(f). Supplier’s liability for such fines,
penalties, sanctions, underpayments or other remedies shall be applied against the
liability cap set forth in Section 18.3(b); however, the total aggregate
liability of Supplier for all such fines, penalties, sanctions, underpayments and other
remedies shall be limited to the greater of $12,000,000 or the total Charges payable to
Supplier during the six (6) month period immediately preceding the last act or omission
giving rise to such liability (provided that, for the period beginning on the Effective
Date and ending six (6) months after the Commencement Date, the total aggregate
liability of Supplier for all such fines, penalties, sanctions, underpayments and other
remedies shall be limited to the greater of the total anticipated Charges specified in
Schedule J for such period or the total actual Charges for the preceding six
(6) months).
	 
	 	(e)	 	Cap within Liability Cap for Government Fines, Penalties, Interest and other
Remedies. The limitations of liability set forth in Section 18.3(a) shall not
apply to fines, penalties, sanctions, underpayments or other remedies for which ABM is
liable under Section 17.2(f). ABM’s liability for such 
fines, penalties, sanctions, underpayments or other remedies shall be applied
against the liability cap set forth in Section 18.3(b); however, the total
aggregate liability of ABM for all such fines, penalties, sanctions, underpayments and
other remedies shall be limited to the greater of $12,000,000 or the total Charges
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	 	 	 	preceding the last act
or omission giving rise to such liability (provided that, for the period beginning on
the Effective Date and ending six (6) months after the Commencement Date, the total
aggregate liability of ABM for all such fines, penalties, sanctions, underpayments and
other
remedies shall be limited to the greater of the total anticipated Charges specified
in Schedule J for such period or the total actual Charges for the preceding
six (6) months).
	 
	 	(f)	 	Limitations on Supplier’s Liability for Damages Suffered by Eligible Recipients
Described in Sections 2.1(44)(h) and (i). Supplier shall be liable for damages
suffered by an Eligible Recipient described in Sections 2.1(44)(h) and (i) only
if and to the extent (i) ABM or an Eligible Recipient described in Sections
2.1(44)(a)-(g) reimburses such Eligible Recipient for such damages, (ii) such
damages would have been recoverable from Supplier under the Agreement if ABM had
suffered such damages, and (iii) subject to Section 18.3(l), ABM and/or such
Eligible Recipient endeavor to mitigate such damages. Supplier’s liability for damages
suffered by Eligible Recipients described in Sections 2.1(44)(h) and (i) shall
be applied against the liability cap set forth in Section 18.3(b); however, the
total aggregate liability of Supplier for all such damages shall be limited to the
greater of $12,000,000 or the total Charges payable to Supplier during the six (6)
month period immediately preceding the last act or omission giving rise to such
liability (provided that, for the period beginning on the Effective Date and ending six
(6) months after the Commencement Date, the total aggregate liability of Supplier for
all such damages shall be limited to the greater of the total anticipated Charges
specified in Schedule J for such period or the total actual Charges for the
preceding six (6) months).
	 
	 	(g)	 	Separate Liability Cap for J.D. Edwards Project. The total aggregate liability
of either Party, for claims asserted by the other Party under or in connection with the
J.D. Edwards Project described in Attachment L.1, regardless of the form or the
action of the theory of recovery, shall be limited to the greater of the total Charges
for such Project or $7,000,000. This separate liability cap shall be subject to the
exceptions described in Sections 18.3(h), (i) and (j) below. For
avoidance of doubt, to the extent the alleged act(s) and/or omission(s) represent not
only a breach of Attachment L.1, but also a breach of the remainder of the
Agreement, the liability of the breaching Party shall not exceed the aggregate total of
the liability cap specified in Section 18.3(b) and this separate liability cap.
	 
	 	(h)	 	Exceptions to Limitations of Liability. The limitations of liability set forth
in Section 18.3(a) shall not apply with respect to:






	 	(i)	 	Losses paid pursuant to the indemnification obligations under
this Agreement;
	 
	 	(ii)	 	Liability occasioned by any breach of the restrictions in
Sections 13.1 and 13.3 on the disclosure or use of ABM Data,
ABM Proprietary Information, or Supplier Confidential Information;
	 
	 	(iii)	 	Liability occasioned by any breach of a Party’s obligations
under Article 13, other than those covered in Section
18.3(h)(ii) (provided that, unless such breach results from gross
negligence, recklessness or intentional tortious conduct, such liability shall
be subject to the liability caps set forth above; and provided further that, to
the extent the breach involves Personal Data, the total aggregate liability of
the breaching Party for consequential, incidental or special damages shall be
limited to the greater of $6,000,000 or the total Charges payable to Supplier
during the three (3) month period immediately preceding the last act or
omission giving rise to such liability); ; or
	 
	 	(iv)	 	Termination Charges assessed under this Agreement.






	 	(i)	 	Exceptions to Liability Cap. The limitations of liability set forth in
Section 18.3(b) shall not apply with respect to:





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	 	(i)	 	Losses paid pursuant to the indemnification obligations under
this Agreement;
	 
	 	(ii)	 	Liability occasioned by a breach of a Party’s representations,
warranties or covenants set forth in Sections 15.6, 15.7, 15.9, 15.10(a)
(in the case of Supplier) and 15.10(b)( in the case of ABM); or
	 
	 	(iii)	 	Liability occasioned by any breach of the restrictions in
Sections 13.1 and 13.3 on the disclosure or use of ABM Data, ABM Proprietary
Information, or Supplier Confidential Information; or
	 
	 	(iv)	 	Liability occasioned by any breach of a Party’s obligations
under Article 13 (other than those covered in Section 18.3(h)(ii))
resulting from gross negligence, recklessness or intentional tortious conduct.






	 	(j)	 	Items Not Considered Damages. The following shall not be considered damages
subject to, and shall not be subject to the limitations specified in, Section
18.3(a) and shall not be counted toward the liability cap specified in, Section
18.3(b):






	 	(i)	 	Service Level Credits and Deliverable Credits assessed against
Supplier pursuant to this Agreement;
	 
	 	(ii)	 	invoiced Charges that ABM is not obligated to pay under this
Agreement because such Charges are attributable to billing errors or Services
not provided by Supplier; and
	 
	 	(iii)	 	invoiced Charges and other amounts that are due and owing to
Supplier for Services under this Agreement.






	 	(k)	 	Waiver of Liability Cap. In the event (i) either Party incurs liability to the
other Party which equals or exceeds eighty (80%) of one or more of the liability caps
specified in Sections 18.3(b), (c), (d), (e) or (f) and does not fall within an
exception to such liability caps, and (ii) such incurring Party does not waive such
liability cap and/or agree to increase it by a mutually agreeable amount within thirty
(30) days of its receipt of written notice from the other Party, then the other Party
may elect to terminate the Term for convenience. If ABM elects to terminate on this
basis, ABM shall not be obligated to pay any Termination Charges, including any Wind
Down Charges. If Supplier elects to terminate on this basis, ABM shall pay Wind Down
Charges calculated in accordance with Schedule N, but shall not be obligated to
pay any Termination Fee.
	 
	 	(l)	 	Acknowledged Direct Damages. The following shall be considered direct damages
and neither Party shall assert that they are indirect, incidental, collateral,
consequential or special damages or lost profits to the extent they result directly
from either Party’s failure to perform in accordance with this Agreement:






	 	(i)	 	Costs and expenses of restoring any lost, stolen or damaged ABM
Data using generally accepted data restoration techniques;
	 
	 	(ii)	 	Costs and expenses of implementing a work-around in respect of
a failure by Supplier provide the Services or any part thereof in accordance
with this Agreement;
	 
	 	(iii)	 	Costs and expenses of replacing lost, stolen or damaged
Equipment, Software, and Materials;
	 
	 	(iv)	 	Costs and expenses incurred to procure the Services or
corrected Services from an alternate source, to the extent in excess of
Supplier’s Charges under this Agreement;





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	 	(v)	 	Straight time, overtime or related expenses incurred by either
Party, including overhead allocations for employees, wages and salaries of
additional employees, travel expenses, overtime expenses, telecommunication
charges and similar charges, due to failure of Supplier to provide all or a
portion of the Services incurred in connection with (i) through (iv) and only
to the extent they would not have been incurred by ABM or an Eligible Recipient
had it not been for such failure;
	 
	 	(vi)	 	Damages of an ABM Affiliate or (subject to Section
18.3(f)) an Eligible Recipient which would be direct damages under this
Agreement if they had instead been suffered by ABM (including being so
considered under this Section 18.3(k)); and
	 
	 	(vii)	 	Costs and expenses incurred to bring the Services in-house or
to contract to obtain the Services from an alternate source, including the
costs and expenses associated with the retention of external consultants and
legal counsel to assist with any re-sourcing of the Services.






	 	(m)	 	Duty to Mitigate. Each Party shall use appropriate efforts to mitigate its
damages to the extent within its reasonable control and consistent with the Parties
respective performance obligations under this Agreement; provided, however, this
provision is not intended to expand or diminish a Party’s rights or obligations under
this Agreement, alter the plain meaning of the provisions contained herein or limit a
Party’s rights to act in its own self-interest.






	19.	 	DISPUTE RESOLUTION
	 
	19.1	 	Informal Dispute Resolution.






	 	(a)	 	If a dispute arises between the Parties relating to this Agreement, other than
as provided in Section 19.1(d), the Parties agree to use the following
alternative dispute resolution (“ADR”) procedure prior to either Party pursuing other
available remedies:






	 	(i)	 	A meeting shall be held promptly between the Parties, attended
by Supplier’s Contract Manager and ABM’s Project Executive, to attempt in good
faith to negotiate a resolution of the dispute.
	 
	 	(ii)	 	If the foregoing individuals are unable to resolve a dispute in
an amount of time that either Party deems reasonable under the circumstances,
such Party may, upon written notice to the other Party, refer the dispute for
resolution to the senior corporate executives specified below: for Supplier:
General Manager – Small and Medium Industry ; and for ABM: Senior VP and Chief
Administrative Officer.
	 
	 	(iii)	 	The designated senior corporate executives specified above
will confer as often as they deem reasonably necessary in order to gather and
furnish to the other all information with respect to the matter in issue which
the Parties believe to be appropriate and germane in connection with its
resolution. Such designated senior corporate executives shall discuss the
problem and negotiate in good faith in an effort to resolve the dispute without
the necessity of any formal proceeding. The specific format for the
discussions will be left to the discretion of such designated senior corporate
executives, but may include the preparation of agreed-upon statements of fact
or written statements of position






	 	(b)	 	During the course of negotiations under Section 19.1(a) above, all
reasonable requests made by one Party to another for non-privileged information,
reasonably related to the dispute, will be honored in order that each of the Parties
may be fully advised of the other’s position. All negotiation and mediation
proceedings shall be strictly confidential and used solely for the
purposes of settlement. Any materials prepared by one Party for those proceedings
shall not be used as evidence by the other Party in any formal proceedings;
provided, however, the underlying facts supporting such materials may be subject to
discovery.





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	 	(c)	 	Each Party fully understands its specific obligations under the provisions of
this Agreement. Neither Party considers such obligations to be vague or in any way
unenforceable, and neither Party will contend to the contrary at any future time or in
any future proceeding.
	 
	 	(d)	 	This Section 19.1 shall not be construed to prevent or delay a Party
from instituting, and a Party is authorized to institute, formal proceedings to (i)
avoid the expiration of any applicable limitations period, (ii) preserve a superior
position with respect to other creditors, or (iii) seek injunctive relief in the event
(A) Supplier breaches (or attempts or threatens to breach) its obligation to provide
Termination Assistance Services as provided in Section 4.3; (B) Supplier
breaches (or attempts or threatens to breach) its obligation respecting continued
performance in accordance with Section 19.3; (C) Supplier breaches (or attempts
or threatens to breach) its obligation to provide access to computers or files
containing ABM Data in accordance with Section 13.4; (D) either Party breaches
(or attempts or threatens to breach) its obligation with respect to the other Party’s
Proprietary Information under Article 13; (E) either Party infringes or
misappropriates (or attempts or threatens to infringe or misappropriate) the other
Party’s patents, copyrights, trademarks, trade secrets or other proprietary rights in
violation of Article 14; or (F) Supplier breaches (or attempts or threatens to
breach) its obligations under Section 20.6.






	19.2	 	Mediation.
	 
	 	 	If the designated senior corporate executives cannot resolve the dispute within a
reasonable period of time, then either Party may initiate third-party mediation. Unless
otherwise agreed by the Parties, the location of the mediation shall be San Francisco,
California. The Party receiving a notice of mediation shall promptly respond to the
notifying Party so that both Parties can jointly select a neutral and impartial mediator and
schedule the mediation session. The mediation contemplated by the Parties is intended to be
a voluntary process among the Parties to promote understanding and, where possible, to
arrive at a mutually acceptable resolution of their dispute. A Party may withdraw from the
mediation at any time. The mediation process is confidential, and all such confidential
information will be treated as compromise and settlement information for the purposes of any
applicable rules of evidence. The Parties will jointly share the cost of the mediation
services.
	 
	19.3	 	Jurisdiction.
	 
	 	 	Each Party irrevocably agrees that any legal action, suit or proceeding brought by it in any
way arising out of this Agreement must be brought solely and exclusively in San Francisco,
California, and each Party irrevocably submits to the sole and exclusive jurisdiction of the
courts in San Francisco, California in personam, generally and unconditionally with respect
to any action, suit or proceeding brought by it or against it by the other Party. Each Party
hereby agrees to waive any right it might otherwise have to trial by jury.
	 
	19.4	 	Continued Performance.
	 
	 	 	Each Party agrees that it shall, unless otherwise directed by the other Party, continue
performing its obligations under this Agreement while any dispute is being resolved;
provided that this provision shall not operate or be construed as extending the Term of this
Agreement or prohibiting or delaying a Party’s exercise of any right it may have to
terminate the Term as to all or any part of the Services under Article 20 or
Section 4.3(a)(5) Supplier acknowledges and agrees that any interruption to the
Service may cause irreparable harm to ABM and/or the Eligible Recipients, in which case an
adequate remedy at law would
not be available. Supplier expressly acknowledges and agrees that, pending resolution of
any dispute or controversy, it shall not deny, withdraw, or restrict Supplier’s provision of
the Services to ABM and/or the Eligible Recipients under this Agreement, except as
specifically and expressly agreed in writing by ABM and Supplier.





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	19.5	 	Governing Law.
	 
	 	 	This Agreement and performance under it shall be governed by and construed in accordance
with the applicable laws of the State of California, without giving effect to the principles
thereof relating to conflicts of laws. The application of the United Nations Convention on
Contracts for the International Sale of Goods is expressly excluded.
	 
	20.	 	TERMINATION
	 
	20.1	 	Termination for Cause.






	 	(a)	 	By ABM. If Supplier:






	 	(i)	 	fails to meet its Transition Services obligations as provided
in Section 4.2(g);
	 
	 	(ii)	 	commits a material breach of this Agreement, which breach is
not cured within thirty (30) days after notice of the breach from ABM
(provided, that if Supplier begins promptly and works diligently and in good
faith to cure such breach in accordance with this provision and such breach is
not capable of being cured within thirty (30) days, Supplier may have up to
fifteen (15) additional days to cure such breach if it demonstrates that it is
capable of curing such breach within the additional period and the breach does
not materially impair the ability of ABM or an Eligible Recipient to conduct
its business);
	 
	 	(iii)	 	commits a material breach of this Agreement which is not
capable of being cured within the period specified in subsection (ii) above;
	 
	 	(iv)	 	commits numerous breaches of its duties or obligations which
collectively constitute a material breach of this Agreement;
	 
	 	(v)	 	becomes liable for or incurs Service Level Credits under this
Agreement that, in the aggregate, exceed fifty percent (50%) of the cumulative
At Risk Amount during any rolling six (6) month period;
	 
	 	(vi)	 	fails to perform in accordance with the Increased Impact
Service Level of the same Critical Performance Indicator for three (3)
consecutive months or during four (4) months of any six (6) consecutive month
period;






	 	 	 	then ABM may, by giving notice to Supplier, terminate the Term with respect to all
or any part of the Services, in whole or in part, as of a date specified in the
notice of termination. Supplier shall not be entitled to any Termination Charges in
connection with a termination for cause. If ABM chooses to terminate the Agreement
in part, the Charges payable under the Agreement will be adjusted in accordance with
the pricing by charge component, as set forth in Schedule J, to reflect such
partial termination. For avoidance of doubt, the Parties acknowledge and agree that,
to the extent one or more material breaches of a Companion Agreement also constitute
a material breach of this Agreement, viewed in its entirety, the right to terminate
shall extend to this Master Professional Services Agreement and all Companion
Agreements.
	 
	 	 	 	The express acknowledgment that a certain amount of Service Level Credits or number
of Service Level defaults constitutes grounds for termination under Section
20.1(a)(v) and (vi)  does not imply that a lesser amount or number
cannot constitute a material breach of this Agreement and therefore grounds for
termination under other subsections, and no Party shall contend otherwise in any
dispute or controversy between the Parties.
	 
	 	(b)	 	By Supplier. In the event that ABM fails to pay undisputed Supplier Charges in
accordance with Section 12.2 or fails to comply with its obligation to pay
disputed amounts above the specified





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	 	 	 	threshold into escrow in accordance with
Section 12.4(d), and fails to cure such default within thirty (30) days of
notice from Supplier of the possibility of termination for failure to make such
payment, Supplier may, by notice to ABM, terminate the Term.






	20.2	 	Termination for Convenience.
	 
	 	 	ABM may terminate the Term with respect to the entire Agreement, any Functional Services
Area(s) or any Companion Agreement(s) for convenience and without cause at any time. If
ABM elects to terminate all Services provided under this Master Agreement and all Companion
Agreements on this basis, ABM shall give Supplier at least six (6) months prior notice
designating the termination date. If ABM elects to terminate less than all Services and/or
less than all Companion Agreements, ABM shall give Supplier at least ninety (90) days prior
notice designating the termination date. In either event, if ABM elects to terminate on
this basis, it shall pay Supplier the applicable Termination Charge in accordance with
Schedule N.
	 
	20.3	 	Termination Upon Supplier Change of Control.
	 
	 	 	In the event of a change in Control of Supplier (or that portion of Supplier providing
Services under this Agreement) or the Entity that Controls Supplier (if any), where such
Control is acquired, directly or indirectly, in a single transaction or series of related
transactions, or all or substantially all of the assets of Supplier (or that portion of
Supplier providing all or any material portion of the Services under this Agreement) are
acquired by any entity (other than a wholly owned subsidiary of Supplier, and in the case of
such a subsidiary, subject to Section 21.1(b)(i)), or Supplier (or that portion of
Supplier providing all or any material portion of the Services under this Agreement) is
merged with or into another entity (other than a wholly owned subsidiary of Supplier, and in
the case of such a subsidiary, subject to Section 21.1(b)(i)) to form a new entity,
then at any time within six (6) months after the last to occur of such events, ABM may at
its option terminate the Term by giving Supplier at least ninety (90) days prior notice and
designating a date upon which such termination shall be effective; provided, however, if
such change in Control of Supplier involves a Direct ABM Competitor, ABM may terminate the
Term by giving Supplier at least ten (10) days prior notice, and such Direct ABM Competitor
(excluding Supplier Personnel) shall be prohibited from any contact with ABM Data, ABM
Proprietary Information and any and all other information about the ABM account, including
discussions with Supplier Personnel regarding specifics relating to the Services. If ABM
elects to terminate on this basis, ABM shall pay a Termination Charge calculated in
accordance with Schedule N equal to Wind Down Charges and 50% of the applicable
Termination Fee.
	 
	20.4	 	Termination Upon ABM Mergers and Acquisitions.
	 
	 	 	In the event that, in a single transaction or series of transactions, ABM Industries
Incorporated acquires or is acquired by any other Entity (by stock sale, asset sale or
otherwise) or merges with any other Entity, then, at any time within six (6) months after
the last to occur of such events, ABM may at its option terminate the Term by giving
Supplier at least ninety (90) days prior notice and designating a date upon which such
termination shall be effective. If ABM elects to terminate on this basis, ABM shall pay a
Termination Charge calculated in accordance with Schedule N equal to Wind Down
Charges and 50% of
the applicable Termination Fee.. Notwithstanding the foregoing, in the event ABM Corporation
acquires or is acquired by an Entity that has an existing agreement with Supplier for the
provision of services substantially similar to, or broader in scope than, the Services (the
“Entity Agreement”), ABM shall not be required to pay any Termination Charges in connection
with the termination of this Agreement or the Entity Agreement to the extent it enters into
a single agreement with Supplier with respect to the provision of services to the combined
Entity.
	 
	20.5	 	Termination for Insolvency.






	 	(a)	 	In the event that any Party (a) files for bankruptcy, (b) becomes or is
declared insolvent, or is the subject of any proceedings related to its liquidation,
insolvency or the appointment of a receiver or





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	 	 	 	similar officer for it, (c) makes an
assignment for the benefit of all or substantially all of its creditors, or (d) enters
into an agreement for the composition, extension, or readjustment of substantially all
of its obligations, then the other Party may terminate this Agreement as of a date
specified in a termination notice; provided, however, that Supplier will not have the
right to exercise such termination under this Section so long as ABM pays for the
Services to be received hereunder in advance on a month-to-month basis. If any Party
elects to terminate this Agreement due to the insolvency of the other Party, such
termination will be deemed to be a termination for convenience (provided, however, that
if ABM elects to terminate on this basis, it shall not be obligated to pay any
Termination Charges, including any Wind Down Charges).
	 
	 	(b)	 	Notwithstanding any other provision of this Agreement to the contrary and to
the maximum extent permitted by applicable Laws, in the event that Supplier becomes a
debtor under the United States Bankruptcy Code (11 U.S.C. §101 et. seq. or any similar
Law in any other country (the “Bankruptcy Code”)) and rejects this Agreement pursuant
to Section 365 of the Bankruptcy Code (a “Bankruptcy Rejection”), (i) any and all of
the licensee and sublicensee rights of ABM arising under or otherwise set forth in this
Agreement, including without limitation the rights of ABM referred to in Section
14.6, shall be deemed fully retained by and vested in ABM and/or the Eligible
Recipients as protected intellectual property rights under Section 365(n)(1)(B) of the
Bankruptcy Code and further shall be deemed to exist immediately before the
commencement of the bankruptcy case in which Supplier is the debtor; (ii) ABM shall
have all of the rights afforded to non-debtor licensees and sublicensees under Section
365(n) of the Bankruptcy Code; and (iii) to the extent any rights of ABM under this
Agreement which arise after the termination or expiration of this Agreement are
determined by a bankruptcy court to not be “intellectual property rights” for purposes
of Section 365(n), all of such rights shall remain vested in and fully retained by ABM
and/or the Eligible Recipients after any Bankruptcy Rejection as though this Agreement
were terminated or expired. ABM shall not be required to terminate this Agreement
after a Bankruptcy Rejection in order to enjoy or acquire any of its rights under this
Agreement, including without limitation any of the rights of ABM referenced in
Section 14.6 unless and to the extent required by applicable Laws.






	20.6	 	ABM Rights Upon Supplier’s Bankruptcy.
	 
	 	 	In the event of Supplier’s bankruptcy or of the filing of any petition under the federal
bankruptcy laws affecting the rights of Supplier which is not stayed or dismissed within
thirty (30) days of filing, in addition to the other rights and remedies set forth herein,
to the maximum extent permitted by Law, ABM will have the immediate right to retain and take
possession for safekeeping all ABM Data, ABM Proprietary Information, ABM licensed Third
Party Software, ABM owned Equipment, ABM Owned Materials, ABM owned Developed Materials, and
all other Software, Equipment, Systems or Materials to which ABM and/or the Eligible
Recipients are or would be entitled during the Term or upon the expiration or termination of
this Agreement. At ABM’s request, Supplier shall provide reasonable cooperation and
assistance to ABM and assist ABM and the Eligible Recipients in identifying and taking
possession of the
items listed in the preceding sentence. To the maximum extent permitted by applicable Laws,
ABM will have the right to hold such ABM Data, Proprietary Information, Software, Equipment,
Systems and Materials until such time as the trustee or receiver in bankruptcy or other
appropriate court officer can provide adequate assurances and evidence to ABM that they will
be protected from sale, release, inspection, publication, or inclusion in any publicly
accessible record, document, material or filing. Supplier and ABM agree that without this
material provision, ABM would not have entered into this Agreement or provided any right to
the possession or use of ABM Data, ABM Proprietary Information, or ABM Software covered by
this Agreement.





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	21.	 	GENERAL
	 
	21.1	 	Binding Nature and Assignment.






	 	(a)	 	Binding Nature. This Agreement will be binding on the Parties and their
respective successors and permitted assigns.
	 
	 	(b)	 	Assignment. Neither Party may, or will have the power to, assign this
Agreement without the prior written consent of the other, except in the following
circumstances:






	 	(i)	 	Either Party may assign its rights and obligations under this
Agreement, without the approval of the other Party, to an Affiliate which
expressly assumes such Party’s obligations and responsibilities hereunder and
is not a Direct Competitor of the other Party; provided, that the assigning
Party shall remain fully liable for and shall not be relieved from the full
performance of all obligations under this Agreement. Any Party assigning its
rights or obligations to an Affiliate in accordance with this Agreement shall,
within one (1) business day after such assignment, provide notice thereof to
the other Party together with a copy any relevant provisions of the assignment
document.
	 
	 	(ii)	 	ABM may assign its rights and obligations under this Agreement
to an Entity acquiring, directly or indirectly, Control of ABM, an Entity into
which ABM is merged, or an Entity acquiring all or substantially all of ABM’s
assets, without the approval of Supplier. The acquirer or surviving Entity
shall agree in writing to be bound by the terms and conditions of this
Agreement.






	 	(c)	 	Impermissible Assignment. Any attempted assignment that does not comply with
the terms of this Section shall be null and void.






	21.2	 	Entire Agreement; Amendment.






	 	(a)	 	This Agreement, including any Schedules and Exhibits referred to herein and
attached hereto, each of which is incorporated herein for all purposes, constitutes the
entire agreement between the Parties with respect to the subject matter hereof. There
are no agreements, representations, warranties, promises, covenants, commitments or
undertakings other than those expressly set forth herein. This Agreement supersedes
all prior agreements, representations, warranties, promises, covenants, commitments or
undertaking, whether written or oral, with respect to the subject matter contained in
this Agreement; provided that this Agreement shall not be construed to alter the
rights, obligations or liabilities of the Parties with respect to the subject matter of
the Prior Agreement to the extent that it relates to such rights, obligations or
liabilities arising, or based on, the actions of the Parties prior to the Commencement
Date (provided that, unless otherwise expressly provided herein, this Agreement shall
not supersede any software licenses, maintenance contracts, disaster recovery contracts
or other unrelated service contracts between ABM and International Business Machines
Corporation). No amendment, modification, change, waiver, or
discharge hereof shall be valid unless in writing and signed by an authorized
representative of the Party against which such amendment, modification, change,
waiver, or discharge is sought to be enforced.
	 
	 	(b)	 	This Agreement replaces and supersedes the Prior Agreement in its entirety in
all respects as of the Commencement Date and the Prior Agreement shall be thereafter of
no force or effect, except as set forth in Section 21.2(a).





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	21.3	 	Notices.






	 	(a)	 	Any notice, notification, request, demand, or determination provided by a Party
pursuant to the following:






	 	(i)	 	Section 4.3 [Termination Assistance Services];
	 
	 	(ii)	 	Section 6.12 [Notices of Default];
	 
	 	(iii)	 	Section 7.7 [Notice of Adverse Impact];
	 
	 	(iv)	 	Section 10.2 [Savings Clause]
	 
	 	(v)	 	Section 11.6 [Extraordinary Events];
	 
	 	(vi)	 	Section 13.3(d) [Loss of Proprietary Information];
	 
	 	(vii)	 	Section 17.5 [Indemnification Procedures];
	 
	 	(viii)	 	Section 17.6 [Indemnification Procedures — Government Claims]
	 
	 	(ix)	 	Section 18.2 [Force Majeure];
	 
	 	(x)	 	Section 18.3(j) [Waiver of Liability Cap];
	 
	 	(xi)	 	Section 19.1 [Informal Dispute Resolution];
	 
	 	(xii)	 	Article 20 [Termination];and
	 
	 	(xiii)	 	Section 21.1 [Binding Nature and Assignment],






shall be in writing and shall be delivered in hard copy using one of the following
methods: and shall be deemed delivered upon receipt: (i) by hand, (ii) by an express
courier with a reliable system for tracking delivery, or (iii) by registered or
certified mail, return receipt requested, postage prepaid. Unless otherwise agreed,
the foregoing notices shall be delivered as follows:


In the case of ABM:



ABM Industries, Inc.

160 Pacific Avenue, Suite 222

San Francisco, CA 94111

Attention: VP, Chief Information Officer



With a copy to:

ABM Industries, Inc.

160 Pacific Avenue, Suite 222

San Francisco, CA 94111

Attention: General Counsel



In the case of Supplier:



IBM

420 Taylor Street

San Francisco, CA 94111



Attention: Supplier Account Executive; and




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With a copy to:



IBM Global Services

Route 100

Somers, NY 10589

Attention: General Counsel.





	 	(b)	 	All notices, notifications, requests, demands or determinations required or
provided pursuant to this Agreement, other than those specified in Section
21.3(a), may be sent in hard copy in the manner specified in Section
21.3(a), or by e-mail transmission (where receipt is acknowledged by the recipient)
or facsimile transmission (with acknowledgment of receipt from the recipient’s
facsimile machine) to the addresses set forth below:




In the case of ABM:



ABM Industries, Inc.

420 Taylor Street

San Francisco, CA 94111

Attention: VP, Chief Information Officer

and



In the case of Supplier:



IBM

420 Taylor Street

San Francisco, CA 94111

Attention: Supplier Account Executive





	 	(c)	 	Notwithstanding the above, for the purpose of service of legal process and
receipt of notice or pleadings in judicial proceedings before the federal or state
courts of San Francisco, California, as selected by the Parties under Section
19.2 of the Agreement, both Parties to this Agreement and all parties to all
Companion Agreements irrevocably appoint the company below as their agent for service
of process and receipt of such notice or notification, and further elect domicile at
the address of said company in San Francisco, California, as follows:




In the case of ABM:



ABM Industries, Inc.

160 Pacific Avenue, Suite 222

San Francisco, CA 94111

Attention: General Counsel



With a copy to:



ABM Industries, Inc.

160 Pacific Avenue, Suite 222

San Francisco, CA 94111

Attention: Chief Information Officer



and



In the case of Supplier:



IBM Global Services

Route 100




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Somers, NY 10589

Attention: General Counsel.



With a copy to:



IBM

420 Taylor Street

San Francisco, CA 94111

Attention: Supplier Account Executive





	 	(d)	 	A Party may from time to time change its address or designee for notification
purposes by giving the other prior notice of the new address or designee and the date
upon which it shall become effective.






	21.4	 	Counterparts.
	 
	 	 	This Agreement may be executed in several counterparts, all of which taken together shall
constitute one single agreement between the Parties hereto.
	 
	21.5	 	Headings.
	 
	 	 	The article and section headings and the table of contents used herein are for reference and
convenience only and shall not be considered in the interpretation of this Agreement.
	 
	21.6	 	Relationship of Parties.
	 
	 	 	Supplier, in furnishing services to ABM and the Eligible Recipients hereunder, is acting as
an independent contractor, and Supplier has the sole obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed, all work to be performed by
Supplier under this Agreement. Except as expressly provided in this Agreement, Supplier is
not an agent of ABM or the Eligible Recipients and has no right, power or authority,
expressly or impliedly, to represent or bind ABM or the Eligible Recipients as to any
matters, except as expressly authorized in this Agreement.
	 
	21.7	 	Severability.
	 
	 	 	In the event that any provision of this Agreement conflicts with the law under which this
Agreement is to be construed or if any such provision is held invalid or unenforceable by a
court with jurisdiction over the Parties, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in accordance with
applicable law. The remaining provisions of this Agreement and the application of the
challenged provision to persons or circumstances other than those as to which it is invalid
or unenforceable shall not be affected thereby, and each such provision shall be valid and
enforceable to the full extent permitted by law.
	 
	21.8	 	Consents and Approval.
	 
	 	 	Except where expressly provided as being in the sole discretion of a Party, where agreement,
approval, acceptance, consent, confirmation, notice or similar action by either Party is
required under this Agreement, such action shall not be unreasonably delayed or withheld.
An approval or consent given by a Party under this Agreement shall not relieve the other
Party from responsibility for complying with the requirements of this Agreement, nor shall
it be construed as a waiver of any rights under this Agreement, except as and to the extent
otherwise expressly provided in such approval or consent.





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	21.9	 	Waiver of Default; Cumulative Remedies.






	 	(a)	 	Waiver of Default. A delay or omission by either Party hereto to exercise any
right or power under this Agreement shall not be construed to be a waiver thereof. A
waiver by either of the Parties hereto of any of the covenants to be performed by the
other or any breach thereof shall not be construed to be a waiver of any succeeding
breach thereof or of any other covenant herein contained. All waivers must be in
writing and signed by the Party waiving its rights.
	 
	 	(b)	 	Cumulative Remedies. All remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies available to either
Party at law, in equity or otherwise.






	21.10	 	Survival.
	 
	 	 	Any provision of this Agreement which contemplates performance or observance subsequent to
any termination or expiration of this Agreement shall survive any termination or expiration
of this Agreement and continue in full force and effect. Additionally, all provisions of
this Agreement will survive the expiration or termination of this Agreement to the fullest
extent necessary to give the Parties the full benefit of the bargain expressed herein.
	 
	21.11	 	Publicity.
	 
	 	 	Neither Party shall use the other Party’s name or mark or refer to the other Party directly
or indirectly in any media release, public announcement, or public disclosure relating to
this Agreement, including in any promotional or marketing materials, customer lists or
business presentations without the prior written consent of the other Party to each such use
or release, except as required by applicable Law.
	 
	21.12	 	Service Marks.
	 
	 	 	Supplier agrees that it shall not, without ABM’s prior consent, use any of the names,
service marks or trademarks of ABM or the Eligible Recipients in any of its advertising or
marketing materials.
	 
	21.13	 	Export.
	 
	 	 	The Parties acknowledge that certain Equipment, Software and technical data to be provided
hereunder and certain transactions hereunder may be subject to export controls under the
laws and regulations of the United States and other countries. No Party shall export or
re-export any such items or any direct product thereof or undertake any transaction or
service in violation of any such laws or regulations. To the extent within Supplier’s
control, Supplier shall be responsible for, and shall coordinate and oversee, compliance
with such export laws in respect of such items exported or imported hereunder.
	 
	21.14	 	Third Party Beneficiaries.
	 
	 	 	Except as expressly provided herein, this Agreement is entered into solely between, and may
be enforced only by, ABM and Supplier. This Agreement shall not be deemed to create any
rights or causes of action in or on behalf of any third parties, including without
limitation employees, suppliers and customers of a Party, or to create any obligations of a
Party to any such third parties.
	 
	21.15	 	Covenant Against Pledging.
	 
	 	 	Supplier agrees that, without the prior written consent of ABM, it shall not assign,
transfer, pledge, hypothecate or otherwise encumber its rights to receive payments from ABM
under this Agreement for any reason whatsoever, other than to a Supplier Affiliate. Without
limiting the foregoing, in the event of such an assignment, transfer, pledge, hypothecation
or other encumbrance of its rights to receive payments from





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	 	 	ABM under this Agreement, Supplier shall continue to be ABM’s sole point of contact with
respect to this Agreement, including with respect to payment. The person or Entity to which
such rights are assigned, transferred, pledged, hypothecated or otherwise encumbered will
not be considered a third party beneficiary under this Agreement and will not have any
rights or causes of action against ABM.
	 
	21.16	 	Order of Precedence.
	 
	 	 	In the event of a conflict, this Agreement shall take precedence over the Schedules attached
hereto, and the Schedules shall take precedence over any Attachments or Exhibits.
Notwithstanding the foregoing, the Parties acknowledge and agree that the terms, conditions
and pricing in Attachment L.1 may in certain circumstances, be inconsistent with the
terms, conditions and pricing in the remainder of the Agreement. In the event of a direct
conflict or inconsistency between the provisions of Attachment L.1 and the remainder
of the Agreement, then, to the extent possible, such provisions shall be interpreted so as
to make them consistent. If such interpretation is not possible, the provisions of
Attachment L.1 shall take precedence over the Agreement for the purposes of
Attachment L.1 only. Nothing in Attachment L.1 shall be interpreted to
modify or limit Supplier’s obligations or ABM’s rights or remedies in connection with the
other provisions of the Agreement.
	 
	21.17	 	Hiring of Employees.






	 	(a)	 	Solicitation and Hiring. Except as expressly set forth herein, during the Term
and for a period of twelve (12) months thereafter, Supplier will not solicit for
employment directly or indirectly, nor employ, any employees of ABM or an Eligible
Recipient without the prior approval of ABM. Except as expressly set forth herein in
connection with the expiration or termination of this Agreement, during the Term and
for a period of twelve (12) months thereafter, ABM will not solicit for employment
directly or indirectly, nor employ, any employee of Supplier involved in the
performance of Supplier’s obligations under this Agreement without the prior consent of
Supplier. In each case, the prohibition on solicitation and hiring shall extend ninety
(90) days after the termination of the employee’s employment or, in the case of
Supplier employees, the cessation of his or her involvement in the performance of
Services under this Agreement. This provision shall not operate or be construed to
prevent or limit any employee’s right to practice his or her profession or to utilize
his or her skills for another employer or to restrict any employee’s freedom of
movement or association.
	 
	 	(b)	 	Liquidated Damages. The Parties recognize that the damages resulting from a
breach of this Section 21.17 may not be capable of precise determination.
Accordingly, if a Party hires an employee of the other Party in breach of this
provision, the breaching Party shall pay the other Party liquidated damages equal to
three (3) months of his or her base salary and wages for each employee so hired. The
Parties acknowledge and agree that this is a reasonable estimate as of the date of this
Agreement of the damages the other Party will suffer.
	 
	 	(c)	 	Publications. Neither the publication of classified advertisements in
newspapers, periodicals, Internet bulletin boards, or other publications of general
availability or circulation nor the consideration and hiring of persons responding to
such advertisements shall be deemed a breach of this Section 21.17, unless the
advertisement and solicitation is undertaken as a means to circumvent or conceal a
violation of this provision and/or the hiring party acts with knowledge of this hiring
prohibition.






	21.18	 	Further Assurances.
	 
	 	 	Each Party covenants and agrees that, subsequent to the execution and delivery of this
Agreement and without any additional consideration, each Party shall execute and deliver any
further legal instruments and perform any acts that are or may become necessary to
effectuate the purposes of this Agreement.





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	21.19	 	Liens.
	 
	 	 	Supplier will not file, or by its action or inaction permit, any mechanics or materialman’s
liens to be filed on or against property or realty of ABM or any Eligible Recipient. In the
event that any such Liens arise as a result of Supplier’s action or inaction, Supplier will
obtain a bond to fully satisfy such liens or otherwise remove such liens at its sole cost
and expense within ten (10) business days.
	 
	21.20	 	Covenant of Good Faith.
	 
	 	 	Each Party agrees that, in its respective dealings with the other Party under or in
connection with this Agreement, it shall act in good faith.
	 
	21.21	 	Acknowledgment.
	 
	 	 	The Parties each acknowledge that the terms and conditions of this Agreement have been the
subject of active and complete negotiations, and that such terms and conditions should not
be construed in favor of or against any Party by reason of the extent to which any Party or
its professional advisors participated in the preparation of this Agreement.
	 
	21.22	 	Right to Perform Service for Others
	 
	 	 	Each Party recognizes that Supplier Personnel providing Services to ABM under this Agreement
may perform similar services for others and, except as otherwise expressly agreed, this
Agreement shall not prevent Supplier from using personnel and equipment provided to ABM
under this Agreement for such purposes.
	 
	21.23	 	Eligible Recipients






	 	(a)	 	Supplier will provide Services to Eligible Recipients, subject to the terms of
this Section.
	 
	 	(b)	 	ABM is fully responsible for the performance of ABM’s obligations under this
Agreement with respect to the Services provided to such Eligible Recipients.
	 
	 	(c)	 	Nothing in this Section relieves ABM of its obligations or expands Supplier’s
obligations under this Agreement.






	21.24	 	Remarketing
	 
	 	 	Without the prior written consent of Supplier, ABM may not remarket all or any portion of
the Services, or make all or any portion of the Services available to any entity, other than
to the Eligible Recipients and Authorized Users.
	 
	21.25	 	Freedom of Action
	 
	 	 	Subject to and without limiting Supplier’s obligations under this Agreement (including its
obligations with respect to ABM Data, ABM Proprietary Information and ABM Owned and licensed
Materials and Direct ABM Competitors), the Parties acknowledge and agree that Supplier may
enter into similar agreements with other customers to provide equipment, software or
services similar to the Equipment, Software and Services provided under this Agreement.






	21.26	 	Reference
	 
	 	 	Unless otherwise directed by ABM, Supplier shall periodically use ABM as a reference for
prospective Supplier customers interested in purchasing services that include services the
same as or substantially





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similar to the Services. Supplier shall offer to use ABM as a reference in such
circumstances at least once each calendar quarter. In conjunction with the foregoing, ABM’s
VP, Chief Information Officer (or equivalent level of ABM management) shall serve as the
contact point for such prospective Supplier customers and shall respond to all inquiries in
a timely manner. Notwithstanding Section 13.3, Supplier acknowledges and agrees
that ABM’s VP, Chief Information Officer (or equivalent level of ABM management) may freely
discuss all aspects of Supplier’s performance and ABM’s satisfaction with such performance
with prospective Supplier customers. Supplier shall provide such prospective Supplier
customers with appropriate ABM contact information. The identity of such prospective
Supplier customers and all information related thereto shall be considered Supplier
Proprietary Information.



[Signature Page Follows]




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     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective
duly authorized representatives as of the Effective Date.



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	ABM Industries Incorporated	 	International Business Machines

Corporation	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Henrik C. Slipsager
	 	By:
	 	/s/ Harris Warsau	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	Henrik C. Slipsager
	 	Name:
	 	Harris Warsau	 	 
	Title:

	 	President & CEO
	 	Title:
	 	VP — SMB Americas	 	 
	Date:

	 	September 29, 2006
	 	Date:
	 	September 28, 2006	 	 






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