a8k052522exhibit101






Exhibit 10.1            TRANSITION SERVICES AGREEMENT    by and among    NATIONAL GRID USA SERVICE COMPANY, INC.,    NATIONAL GRID USA  (solely with respect to Section 4.6)    and    THE NARRAGANSETT ELECTRIC COMPANY             Dated as of May 25, 2022                       





 






  i    TABLE OF CONTENTS  Page  ARTICLE I    TRANSITION SERVICES  Section 1.1 General Intent...........................................................................................................1  Section 1.2 Provision and Purchase of Transition Services ........................................................2  Section 1.3 Omitted and Additional Services .............................................................................2  Section 1.4 Service Standards .....................................................................................................3  Section 1.5 Premises Access Rights ...........................................................................................4  Section 1.6 Points of Contact ......................................................................................................4  Section 1.7 Cooperation ..............................................................................................................4  Section 1.8 Subcontracting; Third-Party Warranties ..................................................................4  Section 1.9 Third-Party Consents ...............................................................................................5  Section 1.10 Limitation on Transition Services ............................................................................6  Section 1.11 Operations Protocols ................................................................................................6  ARTICLE II    FEES AND EXPENSES  Section 2.1 Fees for Transition Services.....................................................................................6  Section 2.2 Invoicing and Payment ............................................................................................7  Section 2.3 Taxes ........................................................................................................................8   Section 2.4 No Right to Suspend Performance; Interest.............................................................9  ARTICLE III    TERM AND TERMINATION  Section 3.1 Duration of the Transition Services .......................................................................10  Section 3.2 Effectiveness; Term ...............................................................................................10  Section 3.3 Termination for Material Breach ...........................................................................11  Section 3.4 Survival ..................................................................................................................11   ARTICLE IV    CONFIDENTIALITY AND INTELLECTUAL PROPERTY; ADDITIONAL AGREEMENTS   Section 4.1 Confidentiality .......................................................................................................11  Section 4.2 Disclosure of Confidential Information .................................................................12  Section 4.3 Ownership of Intellectual Property ........................................................................12  Section 4.4 Non-Solicitation; Offers of Employment...............................................................13  Section 4.5 Security, Privacy and Data Use .............................................................................13  Section 4.6 Newquay Guarantee ...............................................................................................14  





 






ii    ARTICLE V    LIMITATION OF LIABILITY; INDEMNIFICATION; DISCLAIMER OF WARRANTY  Section 5.1 LIMITATION OF LIABILITY .............................................................................14  Section 5.2 Indemnification ......................................................................................................15  Section 5.3 Indemnification Procedures ...................................................................................15  Section 5.4 Claims ....................................................................................................................15  Section 5.5 LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. ..........................15  ARTICLE VI    MISCELLANEOUS  Section 6.1 Force Majeure ........................................................................................................16  Section 6.2 Incorporation by Reference....................................................................................16  Section 6.3 Notices ...................................................................................................................17  Section 6.4 Successors and Assigns; No Third-Party Beneficiaries .........................................17  Section 6.5 Independent Contractors; No Relationship ............................................................18  Section 6.6 Governing Law ......................................................................................................18  Section 6.7 Dispute Resolution; Jurisdiction; Venue; Specific Performance; Waiver of  Trial by Jury ...........................................................................................................18   Section 6.8 Entire Agreement ...................................................................................................19   Section 6.9 Consents; Waivers; Amendment............................................................................19    Exhibit A Transition Services  Exhibit B Coordinators  Exhibit C Information Security Addendum      





 






    TRANSITION SERVICES AGREEMENT  This TRANSITION SERVICES AGREEMENT (including all Exhibits and any other  attachments hereto, this “Agreement”), is entered into as of May 25, 2022 by and among National  Grid USA Service Company, Inc., a Massachusetts corporation (“Service Provider”), The  Narragansett Electric Company, a Rhode Island corporation (“Rover” and together with Service  Provider, the “Parties” and each individually a “Party”), and, solely with respect to Section 4.6,  National Grid USA, a Delaware corporation (“Newquay”).  Capitalized terms used in this  Agreement and not otherwise defined shall have the respective meanings ascribed to them in that  certain Share Purchase Agreement (as it may be amended, modified or supplemented from time to  time in accordance with its terms, the “Share Purchase Agreement”), dated as of March 17, 2021,  by and among PPL Energy Holdings, LLC, a Delaware limited liability company (“Pluto”),  Newquay, and PPL Corporation, a Pennsylvania corporation.  W I T N E S S E T H:  WHEREAS, pursuant to the Share Purchase Agreement, Pluto agreed, among other things,  to purchase from Newquay, and Newquay agreed to sell to Pluto, one hundred percent (100%) of  the outstanding shares of common stock of Rover;  WHEREAS, Newquay and its Affiliates will derive a substantial benefit from the  transactions contemplated by the Share Purchase Agreement; and  WHEREAS, in connection with the transactions contemplated by the Share Purchase  Agreement, Newquay and Pluto desire that Service Provider, an Affiliate of Newquay, provide  Rover with certain transitional services as set forth in this Agreement; and  WHEREAS, the Parties have agreed to enter into such transitional arrangements to be  effective as of the Closing under the Share Purchase Agreement on the terms and conditions set  forth in this Agreement.  NOW, THEREFORE, for valid consideration, the sufficiency of which is hereby  acknowledged and in consideration of the foregoing and the mutual agreements contained herein,  the Parties hereby agree as follows:  ARTICLE I    TRANSITION SERVICES  Section 1.1 General Intent.  Each Party acknowledges and understands that the  services provided hereunder are transitional in nature and are furnished by Service Provider solely  for the purpose of facilitating the transactions contemplated by the Share Purchase Agreement and  the operation of Rover and its Affiliates for a limited period of time, as set forth herein, and in  furtherance thereof each Party expresses its intention to cooperate in good faith to provide  information and assistance as reasonably requested by the other Party to effectuate a smooth  transition.  For the duration of the Transition Period (as defined in Section 3.2), to the extent not  otherwise acquired by Pluto pursuant to the Share Purchase Agreement, Pluto and Rover shall have  access during regular business hours and upon reasonable advance notice to such documents,  





 






2    books and manuals as are reasonably necessary to obtain the benefit of the use of the Transition  Services and to transition away from the use of the Transition Services by the end of the Transition  Period.  As part of each of the Transition Services, Service Provider will (a) cooperate with and  use commercially reasonable efforts to assist Rover and its Affiliates in effectuating an orderly  transition of each Transition Service to Pluto’s or Rover’s own internal organization or other third- party suppliers no later than the expiration of the term set forth herein applicable to such Transition  Service, including by making employees of Service Provider and its Affiliates reasonably available  during normal business hours for knowledge transfer to Pluto, Rover or its designee, and each  Party shall otherwise reasonably cooperate with the other Party to facilitate such orderly transition,  (b) transfer, or cause to be transferred, the books, records, files, information and data held, received  or created by Service Provider or its Affiliates for the benefit of Pluto, Rover, or each of their  Affiliates as reasonably requested by Pluto or Rover as related to the Rover Business, subject to  reasonable mutually agreed transfer timetables and staging and (c) provide to Rover, subject to  reasonable mutually agreed transfer timetables and staging or as otherwise more specifically set  forth on Exhibit A, copies of data generated by Service Provider in providing the Transition  Services that relate to Pluto’s, Rover’s or each of their Affiliates’ businesses, including its  customers, products, technologies and assets, subject to any third-party confidentiality or other use  restrictions (with Service Provider to use commercially reasonable efforts to communicate the  applicable information to Rover in a way that would not violate such restrictions); provided, for  the avoidance of doubt, that costs and expenses of Service Provider with respect to the foregoing  will be charged to Rover consistent with Section 2.1.  Section 1.2 Provision and Purchase of Transition Services.  Subject to and upon  the terms and conditions set forth in this Agreement and on Exhibit A annexed hereto, Service  Provider agrees to provide, or cause to be provided, to Pluto and Rover, and Rover agrees to  purchase from Service Provider, each of the services set forth on Exhibit A (collectively the  “Transition Services” and separately a “Transition Service”) for the applicable service period for  such Transition Service set forth on Exhibit A (as such service period may be extended in  accordance with Section 3.1(a)(i)).  For the avoidance of doubt, each of the Transition Services  shall include all of the underlying services and tasks that are necessary for the proper performance  of, or that are inherent to or necessarily part of, the provision of such Transition Service.  Section 1.3 Omitted and Additional Services.    (a) In the event that within twelve (12) months after the date hereof, Pluto  identifies a service that Service Provider or any of its Affiliates provided to Rover in the twelve  (12) months prior to the Closing, and that Pluto reasonably needs in order to continue to operate  the business operations of Rover in substantially the same manner in which Rover operated prior  to the Closing, and such service was not included (and not otherwise expressly excluded) in Exhibit  A (each, an “Omitted Service”), then Rover may submit a written request to Service Provider to  provide such Omitted Service.  Upon receipt of such written request for an Omitted Service,  Service Provider will, so long as Service Provider has not ceased performing services substantially  similar to the Omitted Service for the benefit of itself or its Affiliates, respond in writing within  ten (10) days of the written request, notifying Rover (i) whether Service Provider is able, through  the use of commercially reasonable efforts, to provide such Omitted Service and (ii) the earliest  date upon which Service Provider expects it can begin providing such Omitted Service through  the use of commercially reasonable efforts, which date shall be within a reasonable period after  





 






3    Rover’s request; provided that, Service Provider shall inform Rover (which may be through  communication between the Coordinators) as promptly as possible if it anticipates that it will not  be able to commence providing such Omitted Service within fifteen (15) days after Rover’s request  and the Parties shall cooperate in good faith to attempt to expedite commencement or implement  earlier partial provision of such Omitted Service.  Within ten (10) days of Service Provider’s  notice, the Parties shall negotiate in good faith to execute amendments to Exhibit A, as applicable,  for such Omitted Service to be provided that shall set forth, among other things, (A) a description  of such Omitted Service in reasonable detail, (B) the applicable service period for such Omitted  Service, (C) the fees and expenses for such Omitted Service (it being agreed that the fees for such  service shall be determined on a basis consistent with Article II unless otherwise mutually agreed)  and (D) any additional reasonable terms and conditions specific to such Omitted Service.  For  clarity, each Omitted Service that Service Provider commences providing pursuant to the  foregoing provisions will thereafter be deemed to be a Transition Service hereunder.  (b) In the event that within twelve (12) months after the Closing, Rover  requests a service that was not included (and not otherwise expressly excluded) in Exhibit A (each,  an “Additional Service”), Service Provider shall consider such request in good faith and, to the  extent that the Parties reach an agreement on the provision of such Additional Service, the Parties  shall cooperate to amend Exhibit A, as applicable, for such Additional Service that shall set forth,  among other things, (i) a description of such Additional Service in reasonable detail, (ii) the  applicable service period for such Additional Service, (iii) the fees and expenses for such  Additional Service (it being agreed that the charge for such service to the extent performed by  Service Provider or its Affiliates for Rover in the ordinary course of business prior to the Closing  shall be determined on a basis consistent with Article II unless otherwise mutually agreed) and (iv)  any additional reasonable terms and conditions specific to such Additional Service.  For clarity,  each Additional Service that is agreed to be provided by Service Provider pursuant to the foregoing  provisions thereafter will be deemed to be a Transition Service hereunder.  Notwithstanding  anything to the contrary herein, the provision of any Additional Services shall be subject to the  receipt of any required regulatory approvals in connection therewith.  Section 1.4 Service Standards.  Subject to any limitations expressly set forth in  Exhibit A, Service Provider shall provide and perform, or cause to be provided and performed, the  Transition Services that it is required to provide under this Agreement using the same degree of  care and skill as it utilizes in rendering such services for its own utility Affiliates’ operations, and  in any event, in accordance with Good Utility Practice; provided that nothing in this Agreement  shall require Service Provider to favor the business of Pluto or Rover over Service Provider’s own  or its Affiliates’ business operations.  Nothing in this Agreement shall restrict or prohibit Service  Provider from, with reasonable advance notice to Rover with respect to material changes made to  a Transition Service, modifying the manner in which it provides, or systems utilized in providing,  any Transition Service, in order to (a) automate, update, upgrade or enhance the provision of such  Transition Service or the provision of similar services to Service Provider’s Affiliates or  (b) otherwise satisfy a legitimate business purpose, so long as such change does not materially  adversely impact Rover’s receipt of the Transition Service.  The quantity of each Transition  Service to be provided shall be that which Rover may reasonably require for the operation of Rover  in the ordinary course of business consistent in all material respects with the operation of Rover  prior to the Closing and, in any event, in accordance with Good Utility Practice.  Service Provider  





 






4    agrees to assign sufficient resources and qualified personnel as are reasonably required to perform  the Transition Services in accordance with the standards set forth in this Section 1.4.   Section 1.5 Premises Access Rights.  During the Transition Period, Rover shall  grant to the employees, agents and authorized third-party vendors of Service Provider access to  Rover’s premises and equipment as may be reasonably necessary for Service Provider to perform  its obligations under this Agreement, subject to (a) Rover’s existing premises and equipment  access policies and (b) Rover’s subsequently updated premises and equipment access policies of  which Service Provider has been informed and given reasonable advance notice and that do not  unreasonably interfere with the provision of Transition Services consistent with past practice.  Section 1.6 Points of Contact.  Each of Service Provider and Rover shall  designate one individual to serve as principal transaction coordinator (each a “Coordinator”) with  regard to this Agreement, and such Coordinators, including addresses and email addresses for  notices, shall be identified on Exhibit B.  Each Coordinator shall be responsible for the overall  implementation of this Agreement between Service Provider and Rover, including resolution of  any issues that may arise during the performance hereunder on a day-to-day basis.  The  Coordinators may designate by written notice to the other Party additional sub-coordinators to be  primarily responsible for the implementation of this Agreement with respect to specific functional  areas.  To ensure overall coordination and administration of this Agreement on a consistent basis,  the Coordinators and sub-coordinators shall report to each other regarding any ongoing  implementation issues, including any disputes.  Either Party may change its designated  Coordinator or sub-coordinators upon written notice to the other Party.  The Coordinators and sub- coordinators shall communicate with each other on an as-needed basis, including participating in  a telephone conference regarding the Transition Services at least once a month, with specific sub- coordinators designated to meet more frequently.  Section 1.7 Cooperation.  Each Party will perform all of its obligations under  this Agreement in good faith and reasonably cooperate with the other Party in all matters relating  to the provision and receipt of the Transition Services in order to facilitate the provision and receipt  of the Transition Services and effect a smooth and orderly transition of the Transition Services  provided hereunder.  Each Party shall provide updates to the other Party regarding the achievement  of key transition milestones or any delays or expected delays with respect to transitioning any  Transition Service by the expiration of the applicable service period for such Transition Service.   The Parties will reasonably cooperate with each other in making information available as needed  in the event of any and all internal or external audits, including regulatory audits.  From time to  time after the date hereof, each Party shall use reasonable efforts to take, or cause to be taken, all  appropriate action, do or cause to be done all things reasonably necessary, proper or advisable  under applicable Requirements of Law, and execute and deliver such documents as may be  required or appropriate to carry out the provisions of this Agreement and to consummate, perform  and make effective the transactions contemplated hereby.  Section 1.8 Subcontracting; Third-Party Warranties.   (a)  Subject to any limitations expressly set forth in Exhibit A, Service  Provider may in its discretion provide the Transition Services either through its own resources or  the resources of its Affiliates or by contracting with third-party subcontractors (each a  





 






5    “Subcontractor”) consistent with Service Provider’s practices in rendering such services for its  own utility Affiliates’ operations.  Notwithstanding the foregoing, (i) such delegation or  subcontracting shall not relieve Service Provider of any of its obligations under the Agreement  and (ii) Service Provider shall be responsible for the actions or inactions of its Affiliates, and for  the Specified Subcontractor Acts (as defined below), to the same extent it would have been  responsible had Service Provider itself provided or failed to provide the applicable Transition  Services (or portion thereof).  Except as set forth on Exhibit A, to the extent Service Provider has  during the twelve (12) months prior to the Closing provided certain services to Rover through  Service Provider’s own resources or the resources of its Affiliates, Service Provider shall use  commercially reasonable efforts to maintain such practice with respect to the same Transition  Services, except (A) as consistent with changes in Service Provider’s practices in rendering similar  services for its own utility Affiliates operations, (B) for changes to adjust for personnel that  previously supported such services being hired by or transferred to Rover, Pluto or their Affiliates  or (C) for changes that otherwise satisfy a legitimate business purpose, so long as such change  does not materially adversely impact Rover’s receipt of the applicable Transition Service.  In the  event Service Provider fails to comply with the preceding sentence in contracting with a  Subcontractor to provide Transition Services, Service Provider shall be responsible for the actions  or inactions of such Subcontractor in providing the applicable Transition Service (or portion  thereof) that Service Provider previously provided through its own resources or the resources of  its Affiliates during the twelve (12) months prior to the Closing (such actions or inactions, the  “Specified Subcontractor Acts”) in accordance with clause (ii) above.  (b) Notwithstanding Section 1.8(a), to the extent that a Subcontractor is  performing Transition Services: (i) Service Provider’s sole liability (other than with respect to  Specified Subcontractor Acts) shall be to transfer or otherwise pass through to Rover the benefit  of any warranties or remedies available under Services Provider’s contracts with such  Subcontractor in a manner that is equitable given the value of services, goods, inventory or  equipment received by Rover; and (ii) Service Provider shall negotiate such contracts with  Subcontractors that perform Transition Services using the same degree of care and skill as it  utilizes in negotiating similar contracts for its own utility Affiliates’ operations, and in any event,  using Good Utility Practice, including with respect to the negotiation of available warranties and  remedies.  Section 1.9 Third-Party Consents.  This Agreement shall not constitute an  agreement by Service Provider to provide any Transition Service or portion thereof if the provision  thereof, without the consent of a third party, would constitute a breach of a third party contract or  a violation of any Requirements of Law.  Service Provider shall use commercially reasonable  efforts to timely obtain all third-party consents and licenses necessary to provide the Transition  Services to Pluto, Rover or each of its Affiliates, with any out-of-pocket third-party consent fees  (collectively, “Consent Expenses”) incurred since the date of the Share Purchase Agreement to be  borne by Rover.  Service Provider shall keep Rover informed of the status of such negotiations  and the amount of such Consent Expenses on a reasonably current basis and shall not, without  Rover’s written consent, incur Consent Expenses in excess of $100,000 individually or $1,000,000  in the aggregate in connection with obtaining any individual or series of related third-party  consents or licenses.  Rover shall provide assistance as Service Provider may reasonably require  to obtain such third-party consents or licenses, including assistance with negotiating the terms of  consents with third-party suppliers and, as Service Provider or Rover may request, being  





 






6    responsible for negotiations with respect to any additional licenses required for Pluto, Rover or  their Affiliates to use third-party software.  If any such consents or licenses are not obtained,  Service Provider shall cooperate with Rover and use commercially reasonable efforts to determine  and implement alternative equivalent services, as necessary for the Transition Services to be  provided to or obtained by Pluto, Rover or their Affiliates, and Rover shall reasonably cooperate  in good faith in connection therewith.  To the extent that any such consents or licenses are not  obtained or alternative arrangements made by Service Provider, the Parties shall cooperate in good  faith to arrange for alternative services from a third-party provider and Service Provider shall, at  Rover’s request, use commercially reasonable efforts to purchase substantially similar services  from a third party provider as a Transition Service (subject to Rover paying the fees and expenses  for such Transition Service consistent with ARTICLE II), and shall use commercially reasonable  efforts to ensure there is no material disruption to the business operations of Rover.  Section 1.10 Limitation on Transition Services.  In connection with the  performance of the Transition Services, unless otherwise expressly required to be performed by  Service Provider as set forth on Exhibit A or agreed to by the Parties as an Additional Service in  accordance with Section 1.3, Service Provider shall have no obligation to (a) upgrade, enhance or  otherwise modify any computer hardware, software or network environment currently used by  Rover; provided that, subject to the second sentence of Section 1.4, the foregoing clause (a) shall  not relieve Service Provider from its obligation to maintain its computer hardware, software or  network environment in a manner, consistent with Good Utility Practice, to avoid a material  degradation in Transition Services as compared to the functionality provided during the twelve  (12) months prior to the Closing; (b) convert from one format to another any data of Rover for use  by Rover or any other person in connection with the Transition Services or otherwise, so long as  the data and electronic files are readable to Rover through commercially reasonable means;  (c) prepare financial statements, financial information or related certifications to be attributed to  Service Provider or its Affiliates for incorporation in any reporting required by the U.S. Securities  and Exchange Commission; or (d) provide legal advice to Rover or its Affiliates (it being  understood that any analysis or recommendations provided by Service Provider or its Affiliates  with respect to legal or regulatory matters shall not be construed as legal advice or create any  professional client relationship and Rover shall be responsible for obtaining its own legal advice  from internal or external legal counsel).  Section 1.11 Operations Protocols. If, from time to time, the Parties reasonably  determine any Transition Service, the more general terms of which are set forth on Exhibit A,  requires a more detailed operations protocol pursuant to which Service Provider will provide such  Transition Service to Rover, the Parties will cooperate in good faith to document the terms of an  appropriate operations protocol for such Transition Service, provided that such terms shall be  consistent with the terms for such Transition Service as provided on Exhibit A.  ARTICLE II    FEES AND EXPENSES  Section 2.1 Fees for Transition Services.  In consideration for receiving the  Transition Services, Rover shall pay to Service Provider an amount equal to (a) the Fully Loaded  Costs (as defined below) plus (b) a five percent (5%) mark-up on such Fully Loaded Costs (the  





 






7    “Mark-up”); provided, that the Mark-up shall not be charged on the costs and expenses of third- party services, goods (including gas and electricity sales arranged by Service Provider), inventory  or equipment (collectively, “Third-Party Expenses”).  For purposes hereof, “Fully Loaded Costs”  shall mean fully loaded direct and indirect costs and expenses of providing the Transition Services  (including employee salaries, wages, pensions, benefits and health insurance, office supplies and  expenses, property insurance, injuries and damages, miscellaneous general expenses,  administrative, supervisory and support costs, rents, maintenance of structures and equipment,  capital expenditures, depreciation and amortization, payroll and other taxes, and compensation for  the use of capital).  Rover acknowledges that an extension to the Transition Services as provided  herein beyond the 24-month anniversary of the Closing may result in incremental costs to Service  Provider or its Affiliates related to projects and/or initiatives within Service Provider or its  Affiliates, and, accordingly, Rover agrees that all such incremental costs in connection with such  projects and/or initiatives, to the extent such costs are a consequence of an extension to a Transition  Service, shall be included within “Fully Loaded Costs”.  Subject to the terms of this Agreement,  Fully Loaded Costs shall be charged to Rover on the same general basis as has been in effect prior  to the date hereof, as may be more specifically set forth on Exhibit A with respect to individual  Transition Services.  In the event that any Transition Services continue beyond the 24-month  anniversary of the Closing, the Mark-up shall be increased by an additional ten percent (10%) for  the first three (3) months after the 24-month anniversary of the Closing (resulting in an aggregate  Mark-up of 15%) and thereafter shall be increased by an additional five percent (5%) for each  subsequent three (3) month period.  Section 2.2 Invoicing and Payment.   (a) Unless otherwise specified in Exhibit A and subject to Section 2.3,  Service Provider shall render to Rover within fifteen (15) days of the beginning of each month an  invoice that includes estimates of all fees payable to it and all charges and expenses incurred by it  for the then-current calendar month of the Transition Period, itemizing all such fees, charges and  expenses in reasonable detail.  These estimated amounts subsequently will be adjusted by Service  Provider to reflect final amounts and included on the subsequent monthly invoice.  Rover shall  pay, or cause to be paid, any undisputed amounts set forth in each such invoice from Service  Provider within fifteen (15) days after receipt by it of each such invoice.  Payment to Service  Provider of all invoices in respect of the Transition Services shall be made in United States dollars  ($).  Neither Party shall offset any amounts owing to it by the other Party or under the Share  Purchase Agreement against amounts payable hereunder.  Service Provider and Rover shall  reasonably cooperate to develop a form of monthly report itemizing the fees, costs and expenses  to Rover for each calendar month of the Transition Period to be included with the invoices to be  delivered under this Section 2.2(a).  (b) If there is a dispute between the Parties regarding the amounts shown  as billed to Rover on any invoice, Rover shall pay the full amount of such invoice that is not in  dispute within the time periods set forth herein for such payment, and Service Provider shall, where  applicable and practicable, furnish to Rover such additional supporting documentation to  substantiate the amounts billed as Rover shall reasonably request.  Upon delivery of such  additional documentation, the Parties shall cooperate in good faith and use their commercially  reasonable efforts to resolve such dispute.  If the Parties are unable to resolve such dispute within  twenty (20) Business Days after the delivery of such additional supporting documentation by  





 






8    Service Provider or notice from Service Provider that additional supporting documentation will  not be provided, as applicable, with respect to a final amount included on an invoice then the  dispute shall be referred for resolution to a firm of independent accountants mutually agreed upon  in good faith by the Parties in writing (the “Accounting Referee”).  If the parties are unable to  agree on an Accounting Referee, the matter shall be referred for resolution to KPMG, which will  serve as the Accounting Referee.  The Accounting Referee shall be instructed to determine the  validity of the disputed amounts within thirty (30) days of the referral of such dispute to the  Accounting Referee.  The determination of the Accounting Referee shall be binding on the Parties;  provided that such determination shall not require Rover to pay more than the amount in dispute  (except as provided herein with respect to interest and fees and expenses of the Accounting  Referee).  The fees and expenses of the Accounting Referee shall be borne by the Parties based on  the percentage which the portion of the disputed amount not awarded to each Party bears to the  amount actually contested by such Party.  (c) For a period of seven (7) years after the Closing, each Party shall keep  and maintain books, records, accounts and other documents related to the provision of the  Transition Services consistent with historical practices.  Such records shall include receipts,  invoices, memoranda, vouchers, inventories, timesheets and accounts pertaining to the Transition  Services, as well as complete copies of all written contracts, purchase orders, service agreements  and other such written arrangements entered into in connection therewith.  (d) Notwithstanding the payment by Rover of any charges, Rover shall  have the right, by written notice given to Service Provider no later than six (6) months following  the delivery of the applicable invoice (including any invoice adjusting the applicable estimated  amounts to reflect final amounts), to review and contest the charges.  Rover shall have the right to  audit Service Provider or any of its Affiliate’s relevant books, records, documents, accounting  practices or internal controls; provided that such audit (i) relates solely to the Transition Services  and (ii) shall not unreasonably interrupt the business or operations of Service Provider and its  Affiliates.  Subject to the foregoing limitations, upon written request by Rover, Service Provider  shall, or shall cause its Affiliates to, within a reasonable period of time, provide, at the sole cost  and expense of Rover, assistance, records and access reasonably requested by Rover in responding  to such audit (including documents related to testing methodologies, test results, audit reports of  significant findings, and remediation plans with respect to any material deficiencies in Service  Provider’s or its Affiliates’ internal controls or procedures), to the extent that such assistance,  records or access is within the reasonable control of Service Provider or its Affiliates and relates  to the Transition Services provided hereunder by Service Provider.  Section 2.3 Taxes.  (a) All charges and fees to be paid by Rover under this Agreement are  exclusive of any sales Tax, goods and services Tax, value added Tax or any other similar Tax or  assessment that is required to be paid in connection with the Transition Services (each a “Sales  and Services Tax”, and collectively, “Sales and Services Taxes”).  If any Sales and Services Taxes  are assessed on the provision of any Transition Services under this Agreement, (i) Service Provider  shall deliver to Rover an invoice (or other valid and customary documentation) reflecting such  Sales and Services Taxes in accordance with applicable Requirements of Law, (ii) Rover shall pay  to Service Provider the amount shown as due on such invoice in accordance with Section 2.2, and  





 






9    (iii) Service Provider shall timely remit to the applicable Governmental Authority any Sales and  Services Taxes that are paid by Rover to Service Provider pursuant to clause (ii) hereof or that are  otherwise required to be collected and remitted to the applicable Governmental Authority under  applicable Law; provided that, for the avoidance of doubt, except to the extent reflected in Fully  Loaded Costs charged pursuant to Section 2.1, each of Rover and Service Provider shall be  responsible for (A) any real or personal property Taxes on property it owns or leases, (B) franchise,  margin, privilege and similar Taxes on its business, (C) the employment Taxes or contributions  imposed on it or required from it with respect to its employees and (D) Taxes based on its income,  gross receipts or capital.  (b) Notwithstanding any other provision in this Agreement to the  contrary, Rover and each of its Affiliates shall be entitled to deduct and withhold (or cause to be  deducted and withheld) from amounts otherwise payable to any person pursuant to this Agreement  such amounts as it is required to deduct and withhold with respect to the making of such payment  under any provision of any U.S. federal, state, local or non-U.S. Tax law (“Withholding Taxes”).   To the extent that amounts are so withheld by Rover or any of its Affiliates and remitted to the  appropriate Governmental Authority, such withheld and remitted amounts shall be treated for all  purposes of this Agreement as having been paid to the relevant person in respect of which such  deduction and withholding was made.  Each of the Parties agrees to use reasonable best efforts to  mitigate the imposition of any Withholding Taxes.  (c) Rover shall be entitled to any refund of any Sales and Services Tax  for which it is responsible under this Section 2.3, and if Service Provider or any of its Affiliates  receives a refund of such Sales and Services Taxes borne by Rover, Service Provider shall remit,  or cause to be remitted, to Rover within ten (10) days, the amount of such refund.   (d) Each Party shall, and shall cause its Affiliates to, reasonably  cooperate with the other Party (in accordance with Section 1.7) in connection with (i) mitigating  the imposition of any Sales and Services Taxes required to be paid or collected, including by the  provision of documentation necessary to support Sales and Services Tax exemptions, and (ii) the  reporting of, or any audit, assessment, refund, claim or proceeding relating to, any such Sales and  Services Taxes, including by the provision of information or data (including any resale certificate,  other exemption certificates, and information regarding out-of-state use of materials, services or  sale) as reasonably requested from time to time.  Each Party shall promptly notify the other Party  of any material deficiency claim or similar notice by a Governmental Authority connected to the  provision of any Transition Services under this Agreement.  (e) Notwithstanding anything to the contrary contained in this  Agreement, this Section 2.3 shall survive expiration or termination of this Agreement.  Section 2.4 No Right to Suspend Performance; Interest.  (a) Neither Party shall suspend the performance of its obligations  hereunder notwithstanding any dispute that may be pending between the Parties or their Affiliates,  whether under this Agreement or otherwise.  If it is mutually agreed by the Parties or otherwise  determined pursuant to Section 2.2 that Service Provider has incorrectly invoiced or billed Rover  for excess fees or insufficient fees, as applicable, Service Provider shall remit any excess amounts  





 






10    to Rover or Rover shall remit such insufficient amount, in each case, within fifteen (15) days  following such determination.  (b) Any amounts payable by a Party to the other Party shall accrue  interest at a rate of 7.00% per annum as of the date payment was due until the date such payment  is made.  Neither Party may deduct from or set off against any amounts such Party or any Affiliate  of such Party may owe to the other Party or its Affiliates.  ARTICLE III    TERM AND TERMINATION  Section 3.1 Duration of the Transition Services.  (a) Each Transition Service described in Exhibit A shall continue until  the earlier of (i) the expiration of the applicable service period for such Transition Service set forth  in Exhibit A, provided that Rover shall have the right, upon written notice to Service Provider at  least one hundred eighty (180) days prior to the date set forth in Exhibit A (provided that, if the  date set forth on Exhibit A is less than or equal to one hundred eighty (180) days after the date  hereof, then such written  notice must be delivered within ten (10) Business Days of the date  hereof), to extend such date with respect to any Transition Service as and if reasonably expected  to be necessary to complete the successful transition to Pluto, (ii) the termination of this  Agreement, and (iii) such time as Rover terminates such Transition Service in accordance with  Section 3.1(b).  (b) Rover may terminate all or a portion of any Transition Service that is  being provided by Service Provider, subject to any limitations on the termination of individual  Transition Services described in Exhibit A, upon written notice to Service Provider identifying the  Transition Service to be terminated and the effective date of termination, which date shall not be  earlier than one hundred eighty (180) days after receipt of such notice unless either (i) Service  Provider otherwise agrees or (ii) Rover reimburses Service Provider for Service Provider’s  incremental costs in connection with such earlier termination along with payment of all remaining  Fully Loaded Costs in accordance with Section 2.1 that Service Provider cannot reasonably  eliminate for the period beginning on the effective date of termination until the one hundred  eightieth (180th) day after receipt of such notice.  Effective upon the termination of such Transition  Service, Service Provider shall have no further obligation under this Agreement to provide such  Transition Service and the fees associated with such Transition Service shall be equitably reduced  to reflect the removal of the terminated Transition Services (if such terminated Transition Services  are not reasonably required to be performed by Service Provider to continue to provide other  Transition Services that are not terminated in accordance herewith to Rover) with respect to any  period commencing on or after the effective date of such termination.  Section 3.2 Effectiveness; Term.  The effectiveness of this Agreement and the  Parties’ rights and obligations hereunder is conditioned upon the occurrence of the Closing under  the Share Purchase Agreement.  The term of this Agreement (including as it may be extended  pursuant to clause (a) below, the “Transition Period”) shall commence upon Closing and end,  subject to earlier termination, on the earlier of (a) the 24-month anniversary of the Closing,  





 






11    provided that Rover shall have the right, upon written notice to Service Provider at least one  hundred eighty (180) days prior to the 24-month anniversary of the Closing, to extend such date  as and if reasonably expected to be necessary to complete the successful transition to Pluto and (b)  the cessation by Rover of the purchase of all of the Transition Services under this Agreement.  Upon the termination of the Share Purchase Agreement, this Agreement shall immediately and  automatically terminate and shall be of no further force and effect, and the Parties shall have no  rights or obligations hereunder from and after any such termination.  Section 3.3 Termination for Material Breach.  Rover may terminate this  Agreement or any specific Transition Service upon any material breach of this Agreement by  Service Provider that remains uncured for thirty (30) days after written notice thereof.   Service  Provider may terminate its obligations to provide any Transition Service if Rover fails to pay any  sum due and payable to Service Provider with respect to such Transition Services within  fifteen (15) days after written notice thereof of such failure to pay a payment when due, unless  such amount is being disputed by Rover in good faith in accordance herewith.   Section 3.4 Survival.  Notwithstanding any termination or expiration of this  Agreement (whether terminated by Service Provider or Rover) or any Transition Service, each  Party will remain liable to the other Party for the payment of fees and expenses accruing to the  other Party for the period prior to such termination or expiration even though such fees may not  become due until after termination or expiration.  Further, the provisions of Section 2.3 (Taxes),  Section 2.4(b) (Interest), Section 4.1 (Confidentiality), Section 4.2 (Disclosure of Confidential  Information), Section 4.3 (Ownership of Intellectual Property), Section 4.4 (Non-Solicitation;  Offers of Employment), Section 4.5 (Security, Privacy and Data Use), Article V (Limitation of  Liability; Indemnification; Disclaimer of Warranty) and Article VI (Miscellaneous) shall survive  any termination or expiration of this Agreement or any Transition Service.  ARTICLE IV    CONFIDENTIALITY AND INTELLECTUAL PROPERTY; ADDITIONAL AGREEMENTS  Section 4.1 Confidentiality.  All confidential or proprietary information or  documentation, regardless of its form, including, for the avoidance of doubt, Personal Information  (as defined in the Information Security Addendum appended hereto as Exhibit C) (“Confidential  Information”), of either Party or of its past, present or prospective customers or employees which  is disclosed to, is acquired by or comes into the possession of, the other Party through operation  of this Agreement shall be held in confidence by the other Party (including its Affiliates) and shall  be protected against unauthorized disclosure to the same extent and in the same manner as such  Party protects its own confidential or proprietary information of like nature.  Neither Party shall  disclose, publish, release, transfer or otherwise make available Confidential Information of the  other Party in any form to, or for the use or benefit of, any person or entity, or duplicate or  reproduce the same, without such other Party’s prior written approval.  Each Party shall, however,  be permitted to disclose relevant aspects of the other Party’s Confidential Information to its  officers, agents, employees and authorized representatives and to the officers, agents, employees  and authorized representatives of its Affiliates, only to the extent that such disclosure is reasonably  necessary to the performance of its duties and obligations under this Agreement; provided, that  such Party shall take all reasonable measures to ensure that Confidential Information of the other  





 






12    Party is not disclosed or duplicated in contravention of the provisions of this Agreement by any  such officer, agent, employee or authorized representative (it being understood that each Party  shall be responsible for any breach of such Party’s obligations caused by the acts or omissions of  its Affiliates, officers, agents, employees or authorized representatives).  Notwithstanding the  foregoing, information of a Party disclosed to the other Party shall not be deemed Confidential  Information if such information (a) is at the time of such disclosure in the public domain, or  thereafter comes into the public domain from a third party and through no fault of the receiving  Party; (b) can be demonstrably shown to have been in the possession of the receiving Party at the  time of disclosure by the disclosing Party or to have been independently developed by the receiving  Party; or (c) shall have become legally available to the receiving Party from a third party having  no obligation of confidentiality with respect thereto, provided that information that would be  Confidential Information but not for this sentence is considered Confidential Information pursuant  to this Agreement even if it has become public as a result of a Security Breach (as defined in the  Information Security Addendum appended hereto as Exhibit C).  To the extent practicable, upon  request of any disclosing Party, the other Party will, and will cause its Affiliates, agents and  authorized representatives to, promptly return to such disclosing Party (or, if requested by the  disclosing Party, destroy) all copies of the Confidential Information received from the disclosing  Party and will destroy all memoranda, notes and other writings prepared by such Party based on  the Confidential Information.  No Party shall use Confidential Information for any purpose other  than in connection with performing its obligations under this Agreement.  The rights and  obligations of the Parties hereunder with respect to any Confidential Information disclosed or  obtained prior to termination shall survive for a period of three (3) years following any termination  or expiration of this Agreement, and, with regard to Personal Information, for as long as such  information is Processed (as defined in the Information Security Addendum appended hereto as   Exhibit C) by the receiving Party.  Section 4.2 Disclosure of Confidential Information. Notwithstanding  Section 4.1, either Party may disclose Confidential Information in the following circumstances (or  as otherwise provided by the provisions of this Agreement): (a) in response to a court order or  formal discovery request, (b) in compliance with the order of any governmental or regulatory  authority of competent jurisdiction (including a reasonable request by a Governmental Authority),  or (c) as otherwise required by applicable Requirements of Law; provided, in each such case, that  the disclosing Party may only disclose such information if (i) it shall first have used commercially  reasonable efforts to obtain, and, if practicable, shall have afforded the other Party the opportunity  to obtain, an appropriate protective order or other satisfactory assurance of confidential treatment  of the information required to be so disclosed, and (ii) if such protective order or other remedy is  not obtained, or the other Party waives such person’s compliance with the provisions of this  Section 4.2, it will only furnish that portion of the Confidential Information which is legally  required to be so disclosed.  Section 4.3 Ownership of Intellectual Property. Except as expressly set forth in  this Agreement, no provision of this Agreement is intended to, or will, (a) assign or otherwise  transfer any title in any goods, equipment or software, or any associated Intellectual Property  rights, from any Party to any Party, or (b) assign any contract, or rights under contracts, from any  Party to any other Party.  Notwithstanding any materials, deliverables or other products that may  be created or developed by Service Provider or its Affiliates during the Transition Period, no title,  right or interest in such related Intellectual Property shall be obtained by Rover, unless Service  





 






13    Provider specifically agrees otherwise in response to a request from Rover.  All rights not expressly  granted in this Agreement by a Party are expressly reserved to such Party and its licensors and  information, content and software providers.  Notwithstanding the foregoing, solely to the extent  required for the provision or receipt of the Transition Services (as applicable) in accordance with  this Agreement, each Party (the “Licensor”), for itself and on behalf of its Affiliates, hereby grants  to the other party (the “Licensee”) (and the Licensee’s Affiliates) a non-exclusive, non-transferable  (other than in accordance with Section 6.4), royalty-free, worldwide license to use the Intellectual  Property rights (and any and all improvements, modifications, enhancements or derivative works  thereof) of the Licensor only to the extent and for the duration necessary for the Licensee to provide  or receive (as applicable) the applicable Transition Services under this Agreement.  Upon the  expiration or termination of a Transition Service in accordance with this Agreement, the license to  the relevant Intellectual Property rights shall automatically and immediately terminate, and all  licenses granted hereunder shall automatically and immediately terminate upon the expiration or  earlier termination of this Agreement in accordance with the terms hereof.  Section 4.4 Non-Solicitation; Offers of Employment.  For the duration of the  Transition Period and for a period of one year thereafter, neither Rover, nor any of its Affiliates or  Representatives shall, directly or indirectly, solicit for employment or hire any employee of  Service Provider or its Affiliates or otherwise initiate any offer or promise of employment with  any employee of Service Provider or its Affiliates without Service Provider’s prior written consent;  provided, that this prohibition does not apply to solicitations or hiring as the result of solicitations  made to the public or the industry generally, and Rover is not prohibited from employing any such  individual who (a) ceases to be employed by Service Provider or any of its Affiliates or (b) reaches  out to Rover on his or her own initiative, in either case without prior solicitation or encouragement  to terminate such employment from Rover or its Affiliates or Representatives in violation of this  Agreement, provided, further, that during the Transition Period, Pluto, Rover or one of their  Affiliates may (but shall not be required to) offer employment to one or more of the TSA  Employees as permitted by Section 6.9(a)(vi) of the Share Purchase Agreement.  Section 4.5 Security, Privacy and Data Use.  If either Party (the “Accessing  Party”) or any of its Affiliates gains access to the other Party’s, or any of its Affiliates’ computer,  electronic or data storage systems in connection with the provision or receipt of the Transition  Services, the Accessing Party shall use such access solely for the purpose of providing or receiving  the Transition Services, as applicable.  The Accessing Party shall use commercially reasonable  efforts to (a) limit such access to the Accessing Party’s employees who reasonably require such  access in connection with the Transition Services being provided or received, as applicable, and  (b) follow the other Party’s security, privacy and data use rules and procedures regarding the use  of such Party’s computer, electronic or data storage systems of which Accessing Party has been  informed and is given reasonable advance notice (including, for the avoidance of doubt, the  Information Security Addendum appended hereto as Exhibit C).  Any employees, contractors or  other representatives of the Accessing Party or any of its Affiliates gaining access hereunder shall  as a condition precedent to gaining such access or use be directed to comply with the procedures  that the other Party requires for third party access pursuant to such Party’s security, privacy and  data use rules and procedures of which the Accessing Party has been informed and is given  reasonable advance notice.  All user names and passwords disclosed to, or discovered by, the  Accessing Party and any information of the other Party or its Affiliates obtained by the Accessing  Party or its Affiliates as a result of the Accessing Party’s access to the other Party’s computer,  





 






14    electronic or data storage systems (other than the Accessing Party’s Confidential Information)  shall be deemed to be, and shall be treated as, the other Party’s Confidential Information.  The  Information Security Addendum shall also apply to Service Provider’s Processing of Personal  Information regardless of whether such Processing involves access to Rover’s systems.  Section 4.6 Newquay Guarantee.  Newquay shall cause Service Provider to  comply with all Service Provider’s agreements, covenants and obligations under this Agreement  and hereby unconditionally and irrevocably guarantees to Rover the full and complete performance  of all of Service Provider’s agreements, covenants and obligations under this Agreement on a  timely basis, including the due and punctual payment by Service Provider of Service Provider’s  payment obligations and liabilities under this Agreement (the “Guaranteed Obligations”).  The  foregoing sentence is an absolute, unconditional and continuing guarantee of the full and punctual  discharge and performance of the Guaranteed Obligations.  If Service Provider defaults in the  discharge and performance of all or any portion of its payment obligations under this Agreement,  the obligations of Newquay hereunder shall become immediately due and payable.  Newquay  hereby waives diligence, presentment, demand of performance, filing of any claim, any right to  require any proceeding first against Service Provider, protest, notice and all demands whatsoever  in connection with the performance of its obligations set forth in this Section 4.6 or elsewhere in  this Agreement.    ARTICLE V    LIMITATION OF LIABILITY; INDEMNIFICATION; DISCLAIMER OF WARRANTY  Section 5.1 LIMITATION OF LIABILITY.  EXCEPT IN THE CASE OF  ACTUAL FRAUD OR WILLFUL MISCONDUCT, OR AMOUNTS DUE AND PAYABLE  PURSUANT TO SECTION 5.2, NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL  BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL INDIRECT,  SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING ANY SUCH DAMAGES FOR  LOST REVENUE, INCOME OR PROFITS, DIMINUTION IN VALUE OF THE BUSINESS  OR ASSETS OF THE OTHER PARTY OR ANY OF ITS AFFILIATES, ARISING FROM ANY  CLAIM RELATING TO THIS AGREEMENT OR ANY OF THE TRANSITION SERVICES TO  BE PROVIDED HEREUNDER OR THE PERFORMANCE OF OR FAILURE TO PERFORM  SUCH PARTY’S OBLIGATIONS UNDER THIS AGREEMENT, WHETHER SUCH CLAIM  IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT  LIABILITY) OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE  FORESEEABLE OR AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS  ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. EXCEPT IN  THE CASE OF (A) SERVICE PROVIDER’S OR ITS AFFILIATES’ WILLFUL  MISCONDUCT, GROSS NEGLIGENCE OR ACTUAL FRAUD, (B) WILLFUL  MISCONDUCT, GROSS NEGLIGENCE OR ACTUAL FRAUD IN THE PERFORMANCE OF  A SPECIFIED SUBCONTRACTOR ACT BY THE APPLICABLE SUBCONTRACTOR OR  (C ) INDEMNIFICATION CLAIMS UNDER SECTION 5.2, THE AGGREGATE DAMAGES  FOR ANY CAUSE WHATSOEVER FOR WHICH SERVICE PROVIDER SHALL BE LIABLE  UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL OF ALL FEES RECEIVED  BY SERVICE PROVIDER UNDER THIS AGREEMENT (EXCLUDING, FOR THE  AVOIDANCE OF DOUBT, ANY THIRD-PARTY EXPENSES) IN THE TEN (10) MONTH  





 






15    PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE EVENT OR  ACTION GIVING RISE TO SUCH DAMAGES.  Section 5.2 Indemnification.  (a) Rover shall indemnify Service Provider and each of its Affiliates  from, and defend and hold Service Provider and each of its Affiliates harmless from and against,  any and all damages, losses, liabilities, costs and expenses (including reasonable fees and expenses  of counsel) (collectively referred to as “Damages”) paid to third parties in connection with any  claims arising from or relating to this Agreement or the Transition Services, except to the extent  that such Damages are the direct result of Service Provider’s or its Affiliates’ (i) gross negligence  or willful misconduct or (ii) breach of Section 4.1 or Section 4.2 of this Agreement.  (b) Service Provider shall indemnify Rover and each of its Affiliates  from, and defend and hold Rover and each of its Affiliates harmless from and against, any and all  Damages paid to third parties in connection with any claims arising from or relating to this  Agreement or the Transition Services to the extent that such Damages are the direct result of  Service Provider’s or its Affiliates’ (i) gross negligence or willful misconduct or (ii) breach of  Section 4.1 or Section 4.2 of this Agreement.  Section 5.3 Indemnification Procedures. The provisions of Section 10.4 of the  Share Purchase Agreement shall govern the procedures for indemnification under this Article V;  provided that each reference in Section 10.4 of the Share Purchase Agreement to Article X of the  Share Purchase Agreement shall be deemed a reference to this Article V.  Section 5.4 Claims.  Should either Party or its Affiliates be named as defendant  in any third-party claim or cause of action arising out of or relating to the Transition Services, the  Parties will reasonably cooperate with each other in the joint defense of their common interests to  the extent permitted by law.  Section 5.5 LIMITED WARRANTY; DISCLAIMER OF WARRANTIES.  (a) EXCEPT AS OTHERWISE PROVIDED HEREIN, THE  TRANSITION SERVICES ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND  WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY  WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE  OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT.  (b) SERVICE PROVIDER IS ACTING AS ROVER’S PURCHASING  AGENT OR OTHERWISE AS A RESELLER WITH RESPECT TO ALL THIRD PARTY  SERVICES, GOODS, INVENTORY AND EQUIPMENT PROVIDED HEREUNDER BY  THIRD PARTIES OTHER THAN SERVICE PROVIDER’S AFFILIATES, AND, AS SUCH,  DOES NOT PROVIDE ANY WARRANTY FOR SUCH THIRD PARTY SERVICES, GOODS,  INVENTORY OR EQUIPMENT PROVIDED TO ROVER HEREUNDER.  ALL SUCH THIRD  PARTY SERVICES, GOODS, INVENTORY AND EQUIPMENT ARE PROVIDED AS IS,  WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS  OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS  FOR ANY PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF NON- 





 






16    INFRINGEMENT.  ROVER’S SOLE REMEDY IN CONNECTION WITH ANY DEFECTS IN  OR FAILURES OF SUCH THIRD PARTY SERVICES, GOODS, INVENTORY OR  EQUIPMENT (WHETHER A CLAIM FOR SUCH DEFECT ARISES UNDER CONTRACT,  TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE  THEORY OR PRINCIPLE INCLUDING NEGLIGENCE) SHALL BE TO SEEK RECOURSE  EXCLUSIVELY FROM THE COUNTERPARTIES TO THE THIRD PARTY CONTRACTS,  UNLESS THE DEFECT WAS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL  MISCONDUCT OF SERVICE PROVIDER OR ITS AFFILIATES.  ROVER SHALL PASS  THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF GOODS, INVENTORY AND  EQUIPMENT.   ARTICLE VI    MISCELLANEOUS  Section 6.1 Force Majeure.  No Party shall be liable or deemed to be in breach  of or default under this Agreement or any provisions thereof to the extent resulting from any delay  or failure in performance under this Agreement resulting from acts of God, civil or military  authority, acts of a public enemy, war, terrorism, fires and explosions (other than to the extent  resulting from the gross negligence or willful misconduct of a Party), earthquakes, floods, the  elements, pandemics (including the COVID-19 virus or any COVID-19 Measures), labor disputes,  strikes, lockouts, disruption of supplies or transportation, delays by unaffiliated suppliers or  carriers (to the extent delayed by a force majeure event with respect to such supplier or carrier),  and acts, omissions or delays in acting by any Government Entity, impossibility due to operation  of Requirements of Law (including without limitation by decree of a court of competent  jurisdiction) or any cause beyond the Party’s reasonable control (each, a “Force Majeure Event”);  provided that (a) the foregoing may not be raised as a defense or excuse for the failure of Rover to  pay any amount due and payable to Service Provider pursuant to this Agreement and (b) in  connection with the delay, reduction or failure in, or suspension or resumption of, performance of  the Transition Services, Service Provider shall treat Rover on a non-discriminatory basis as  compared to Service Provider’s utility Affiliates.  Upon the occurrence of a Force Majeure Event,  the affected Party shall promptly give written notice to the other Party of the Force Majeure Event  upon which it intends to rely to excuse its performance, and of the expected duration of such Force  Majeure Event.  The duties and obligations of such Party hereunder shall be tolled for the duration  of the Force Majeure Event, but only to the extent that the Force Majeure Event prevents such  Party from performing its duties and obligations hereunder. During the duration of a Force Majeure  Event, the affected Party shall use commercially reasonable efforts to avoid, mitigate, remedy or  remove such Force Majeure Event as promptly as practicable and resume its performance under  this Agreement with the least practicable delay.    Section 6.2 Incorporation by Reference.  Sections 11.1, 11.2, 11.8 and 11.11 of  the Share Purchase Agreement are hereby incorporated by reference in this Agreement in all  respects as though fully set forth herein.  In the event of a conflict between any provision contained  herein and Sections 11.1, 11.2, 11.8 and 11.11 of the Share Purchase Agreement, the provision of  the Share Purchase Agreement shall supersede and replace such conflicting provision of this  Agreement.  





 






17    Section 6.3 Notices.  Except as otherwise provided in this Agreement, all  notices, requests, claims, demands and other communications hereunder shall be in writing and  shall be given (and, in the case of delivery in person or by overnight courier, shall be deemed to  have been duly given upon receipt) by delivery in person or overnight courier to the respective  Parties at the following addresses, delivery by electronic mail transmission to the respective Parties  at the following email addresses, or at such other address or email address for a Party as shall be  specified in a notice given in accordance with this Section 6.3; provided, however, that delivery  by electronic mail transmission shall be deemed to have been duly given upon receipt only if  promptly confirmed by reply electronic mail transmission or telephone:  If to Rover:  The Narragansett Electric Company   c/o PPL Services Corporation  Two North Ninth Street  Allentown, PA 18101  Attn: Wendy E. Stark  Email: wstark@pplweb.com  If to Service Provider:    National Grid USA Service Company, Inc.  40 Sylvan Road  Waltham, MA 02451-1120  Attn: Duncan Willey  Email: Duncan.willey2@nationalgrid.com    With a copy to:    National Grid USA Service Company, Inc.  300 Erie Blvd W  Syracuse, NY 13202  Attn: Keri Sweet  Email: keri.sweet-zavaglia@nationalgrid.com       Section 6.4 Successors and Assigns; No Third-Party Beneficiaries.  Subject to  the terms of this Section 6.4, this Agreement and all its provisions shall be binding upon and inure  to the benefit of the Parties and their respective permitted successors and assigns.  Nothing in this  Agreement, whether expressed or implied, will confer on any Person, other than the Parties or their  respective permitted successors and assigns, any rights, remedies or liabilities; provided that the  provisions of Article V will inure to the benefit of the Affiliates of the indemnified Party.  No Party  





 






18    may assign its rights or obligations under this Agreement without the prior written consent of the  other Party and any purported assignment without such consent shall be void.  Section 6.5 Independent Contractors; No Relationship.  The Parties to this  Agreement are independent contractors.  Neither Party hereto is an agent or representative of the  other Party.  Nothing in this Agreement shall be deemed to create a partnership, joint venture or  other relationship between or among any of the Parties (other than a vendor-customer relationship),  including their Affiliates, employees, officers, directors or agents.  In no event shall either Party’s  personnel be deemed to be employees of the other Party.  Section 6.6 Governing Law.  This Agreement, and all claims or causes of action  (whether at law, in contract or in tort) that may be based upon, arise out of or relate to this  Agreement or the negotiation, execution or performance hereof, shall be governed by and  construed in accordance with the Requirements of Law of the State of Delaware, without regard  to any choice or conflict of law principles or rules (whether of the State of Delaware or any other  jurisdiction) that would mandate or permit the application of the Requirements of Law of any  jurisdiction other than the State of Delaware.  Section 6.7 Dispute Resolution; Jurisdiction; Venue; Specific Performance;  Waiver of Trial by Jury.  (a) In the event a disagreement should arise with respect to this  Agreement or any Transition Services, subject to the terms hereof, the sub-coordinators with  respect to the applicable subject matter shall refer such disagreement to the Coordinators. In the  event that the Coordinators are unable to resolve such disagreement within fifteen (15) days from  the date of such referral (or such lesser or longer period as the Coordinators may mutually agree  in their reasonable discretion is a useful period for their discussions), the Coordinators shall  escalate such disagreement (i) to the Executive Vice President and Chief Operating Officer of  Pluto and the Chief Transformation Officer of Newquay, who shall discuss and attempt in good  faith to resolve such disagreement and, if the disagreement is not resolved, then (ii) to the Chief  Executive Officers of Rover and Newquay, respectively, who shall do the same.  Should the Parties  fail to reach agreement with respect to any such disagreements within fifteen (15) days of the  escalation referred to in clause (ii) (or such lesser or longer period as they may mutually agree in  their reasonable discretion is a useful period for their discussions), then it is the intent of the Parties  that the resolution for such disagreement or issue will be determined by the formal process for  resolution set forth in Section 6.7(b).  In the event of such a disagreement, the Parties agree to  exhaust the foregoing process set forth in this Section 6.7(a) before pursuing any relief under the  other terms of the Agreement except in the event that a Party reasonably determines that  completing the process set forth herein would unalterably prejudice such Party, in which case, such  Party shall not be required to exhaust the process set forth herein before pursuing any relief under  the other terms of the Agreement.  (b) Each Party agrees that all claims arising out of or in connection with  this Agreement shall be brought in the United States District Court for the District of Delaware or,  if under applicable Requirement of Law exclusive jurisdiction is vested in state courts, in the  Chancery Courts of the State of Delaware located in Wilmington, Delaware.  In connection with  any action or proceeding in any such court, each Party (i) consents to the service of process or  





 






19    other papers in connection with such action or proceeding in the manner provided in Section 6.3  or in such other manner as permitted by Requirements of Law, (ii) submits with regard to any such  action or proceeding, generally and unconditionally, to the personal jurisdiction of any such court,  and (iii) irrevocably waives, to the fullest extent permitted by Requirements of Law, and agrees  not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or  proceeding with respect to this Agreement in such court, any claim that the suit, action or  proceeding in any such court is brought in an inconvenient forum, that the venue of such suit,  action or proceeding is improper, or that this Agreement, or the subject matter hereof, may not be  enforced in or by such court pursuant to this Section 6.7.  (c) The Parties agree that irreparable damage would occur in the event  that any of the provisions of this Agreement were not performed in accordance with their specific  terms or were otherwise breached.  Accordingly, the Parties acknowledge and agree that, to prevent  breaches or threatened breaches by the Parties of any of their respective covenants or obligations  set forth in this Agreement and to enforce specifically the terms and provisions of this Agreement,  the Parties shall be entitled to seek an injunction, specific performance and other equitable relief  to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof,  in addition to any other remedy to which they are entitled in law or in equity.  In connection with  any request for specific performance or equitable relief by any Party, each of the other Parties  waives any requirement for the security or posting of any bond in connection with such remedy.  (d) EACH PARTY HEREBY WAIVES ITS RIGHT TO TRIAL BY  JURY IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATING TO  THIS AGREEMENT OR THE TRANSACTIONS TO THE FULLEST EXTENT PERMITTED  BY APPLICABLE LAW, OR ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN  RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER  OR IN CONNECTION WITH THIS AGREEMENT.  EACH PARTY HERETO (i) CERTIFIES  THAT NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED,  EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF  ANY LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND  (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN  INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE  MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 6.7.  Section 6.8 Entire Agreement.  This Agreement, including Exhibit A and  Exhibit B, together with the Share Purchase Agreement and all annexes and exhibits hereto and  thereto, embody the entire agreement of the Parties with respect to the subject matter hereof and  supersede all prior agreements with respect thereto.  Section 6.9 Consents; Waivers; Amendment.  All waivers and consents given  hereunder shall be in writing.  No waiver by any Party of any breach or anticipated breach of any  provision hereof by any other Party shall be deemed a waiver of any other contemporaneous,  preceding or succeeding breach or anticipated breach, whether or not similar.  Except as provided  in this Agreement, no action taken pursuant to this Agreement, including any investigation by or  on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of  compliance by any other Party with any representations, warranties, covenants or agreements  contained in this Agreement.  The failure of any Party to assert any rights under this Agreement  





 






20    or otherwise shall not constitute a waiver of such rights.  Any amendment to this Agreement shall  be in writing and signed by both Parties.  





 






[Transition Services Agreement Signature Page]     IN WITNESS WHEREOF, the Parties have caused this Transition Services Agreement to  be duly executed as of the date first written above.      THE NARRAGANSETT ELECTRIC  COMPANY   By: /s/ David J. Bonenberger      David J. Bonenberger  President        





 






[Transition Services Agreement Signature Page]       NATIONAL GRID USA SERVICE  COMPANY, INC.   By: /s/ Daniel Davies      Daniel Davies   Senior Vice President          NATIONAL GRID USA  (solely with respect to Section 4.6)   By: /s/ Daniel Davies      Daniel Davies  Senior Vice President