Exhibit 10.13


 


Execution Copy


 


AMENDED
AND RESTATED


 


GLOBAL
MASTER SERVICES AGREEMENT


 


BETWEEN


 


 


COORS BREWING COMPANY


 


 


and


 


 


EDS
INFORMATION SERVICES, L.L.C.


 

















 


TABLE
OF CONTENTS


 


	
  Article 1 DEFINITIONS

  	
   

  
	
   

  	
  1.1 Certain Definitions

  	
   

  
	
   

  	
  1.2 Other Definitions

  	
   

  
	
  Article 2 TERM

  	
   

  
	
   

  	
  2.1 Term

  	
   

  
	
   

  	
  2.2
  Renewal Term

  	
   

  
	
  Article 3 SERVICES

  	
   

  
	
   

  	
  3.1
  General

  	
   

  
	
   

  	
  3.2
  Resources

  	
   

  
	
   

  	
  3.3 Local Country Agreements

  	
   

  
	
   

  	
  3.4 Other Recipients of Services

  	
   

  
	
   

  	
  3.5 Migration of Service Locations

  	
   

  
	
   

  	
  [*****]

  	
   

  
	
   

  	
  3.7 EDS Services to Others

  	
   

  
	
   

  	
  3.8 Transition Services

  	
   

  
	
  Article
  4 SERVICE
  LEVELS

  	
   

  
	
   

  	
  4.1 Initial Service Levels

  	
   

  
	
   

  	
  4.2 Review of Service Levels

  	
   

  
	
   

  	
  4.3 Measurement and Monitoring Tools

  	
   

  
	
   

  	
  4.4 Failure to Meet Service Levels

  	
   

  
	
   

  	
  4.5 Additional Performance Requirements

  	
   

  
	
  Article 5 TRANSFERS OF EQUIPMENT, FACILITIES AND THIRD
  PARTY CONTRACTS

  	
   

  
	
   

  	
  5.1 Transfer of Equipment

  	
   

  
	
   

  	
  5.2 Golden Data Center and Equipment

  	
   

  
	
   

  	
  5.3 Third Party Contracts

  	
   

  
	
  Article 6 PERSONNEL

  	
   

  
	
   

  	
  6.1 Terms of Employment; [*****]

  	
   

  
	
   

  	
  6.2 Key Transferred Employees

  	
   

  
	
   

  	
  6.3 Key EDS Positions

  	
   

  
	
   

  	
  6.4 Removal of EDS Employees from Coors
  Account

  	
   

  
	
   

  	
  6.5 Excessive Turnover

  	
   

  
	
   

  	
  6.6 No Employment Offers

  	
   

  
	
   

  	
  6.7 Security

  	
   

  
	
   

  	
  6.8
  Safety

  	
   

  
	
  Article 7 INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS

  	
   

  
	
   

  	
  7.1
  Coors Software

  	
   

  
	
   

  	
  7.2
  EDS Software

  	
   

  
	
   

  	
  7.3 Third Party Software

  	
   

  
	
   

  	
  7.4 Other Intellectual Property

  	
   

  
	
   

  	
  7.5 Residual Rights

  	
   

  
	
   

  	
  7.6
  Non-Infringement

  	
   

  



 


i

















 


	
   

  	
  7.7
  Disabling Code

  	
   

  
	
   

  	
  7.8 [*****]

  	
   

  
	
  Article 8 CONFIDENTIALITY

  	
   

  
	
   

  	
  8.1
  Definitions

  	
   

  
	
   

  	
  8.2 Rights, Restrictions and Obligations of the Receiving Party

  	
   

  
	
   

  	
  8.3 Return/Destruction of Confidential
  Information

  	
   

  
	
   

  	
  8.4 Nondisclosure Agreements

  	
   

  
	
   

  	
  8.5
  Privacy Laws

  	
   

  
	
  Article 9 CONTRACT MANAGEMENT

  	
   

  
	
   

  	
  9.1 Project Executives

  	
   

  
	
   

  	
  9.2
  Steering Committee

  	
   

  
	
   

  	
  9.3
  Use of Coors Facilities

  	
   

  
	
   

  	
  9.4 Coors Office Space at Data Center

  	
   

  
	
   

  	
  9.5
  Meetings

  	
   

  
	
   

  	
  9.6
  Reports

  	
   

  
	
   

  	
  9.7
  Procedures Manual

  	
   

  
	
   

  	
  9.8
  Technical Change Control

  	
   

  
	
   

  	
  9.9
  Contract Change Control

  	
   

  
	
   

  	
  9.10
  [*****]

  	
   

  
	
   

  	
  9.11
  Subcontracting

  	
   

  
	
  Article 10 AUDITS

  	
   

  
	
   

  	
  10.1
  Audit Rights

  	
   

  
	
   

  	
  10.2
  Payments

  	
   

  
	
   

  	
  10.3
  EDS and External Audits

  	
   

  
	
   

  	
  10.4
  Survival

  	
   

  
	
  Article 11 INSURANCE; RISK OF LOSS

  	
   

  
	
   

  	
  11.1 Required Insurance Coverages

  	
   

  
	
   

  	
  11.2 General Insurance Provisions

  	
   

  
	
   

  	
  11.3
  Risk of Loss

  	
   

  
	
  Article 12 CHARGES

  	
   

  
	
   

  	
  12.1
  Charges in Exhibit C

  	
   

  
	
   

  	
  12.2 Managed and Pass-Through Expenses

  	
   

  
	
   

  	
  12.3 Taxes

  	
   

  
	
   

  	
  12.4 Charges Pursuant to Change Control
  Procedures

  	
   

  
	
   

  	
  12.5
  Significant Events

  	
   

  
	
   

  	
  12.6
  Recordkeeping

  	
   

  
	
   

  	
  12.7
  Coors Payment

  	
   

  
	
   

  	
  12.8 Hyperinflation Protection

  	
   

  
	
   

  	
  12.9
  Gainsharing

  	
   

  
	
   

  	
  12.10 Monthly Current Asset Payments.

  	
   

  
	
  Article 13 INVOICING AND PAYMENT

  	
   

  
	
   

  	
  13.1
  Invoices

  	
   

  
	
   

  	
  13.2
  Payment; Late Charges

  	
   

  
	
   

  	
  13.3
  Proration

  	
   

  
	
   

  	
  13.4
  Refunds

  	
   

  
	
   

  	
  13.5
  [*****]

  	
   

  



 


ii

















 


	
  Article 14 CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS

  	
   

  
	
   

  	
  14.1 Mutual Representations and Warranties

  	
   

  
	
   

  	
  14.2
  Coors Representations and Warranties

  	
   

  
	
   

  	
  14.3 EDS Representations and Warranties

  	
   

  
	
   

  	
  14.4
  Mutual Covenants

  	
   

  
	
   

  	
  14.5
  EDS Covenants

  	
   

  
	
  Article 15 INDEMNIFICATION

  	
   

  
	
   

  	
  15.1 [*****]

  	
   

  
	
   

  	
  15.2 [*****]

  	
   

  
	
   

  	
  15.3 [*****]

  	
   

  
	
   

  	
  15.4 [*****]

  	
   

  
	
   

  	
  15.5 [*****]

  	
   

  
	
  Article 16 LIMITATIONS ON LIABILITY

  	
   

  
	
   

  	
  16.1
  General Intent

  	
   

  
	
   

  	
  16.2 [*****]

  	
   

  
	
   

  	
  16.3 [*****]

  	
   

  
	
   

  	
  16.4
  Force Majeure

  	
   

  
	
   

  	
  16.5
  [*****]

  	
   

  
	
   

  	
  16.6 [*****]

  	
   

  
	
  Article 17 TERMINATION

  	
   

  
	
   

  	
  17.1
  [*****]

  	
   

  
	
   

  	
  17.2 [*****]

  	
   

  
	
   

  	
  17.3 [*****]

  	
   

  
	
   

  	
  17.4
  [*****]

  	
   

  
	
   

  	
  17.5 [*****]

  	
   

  
	
   

  	
  17.6 Extension of Expiration/Termination
  Effective Date

  	
   

  
	
   

  	
  17.7
  Effect of Termination

  	
   

  
	
   

  	
  17.8 Expiration/Termination Assistance

  	
   

  
	
   

  	
  17.9
  Purchase of Equipment

  	
   

  
	
   

  	
  17.10
  EDS Software License

  	
   

  
	
   

  	
  17.11
  Third Party Contracts

  	
   

  
	
   

  	
  17.12
  Offers to EDS Employees

  	
   

  
	
   

  	
  17.13 Return of Confidential Information

  	
   

  
	
  Article 18 DISPUTE RESOLUTION

  	
   

  
	
   

  	
  18.1 General

  	
   

  
	
   

  	
  18.2
  Informal Dispute Resolution

  	
   

  
	
   

  	
  18.3
  Arbitration

  	
   

  
	
   

  	
  18.4
  Continued Performance

  	
   

  
	
   

  	
  18.5
  Applicable Law

  	
   

  
	
   

  	
  18.6
  Jurisdiction and Venue

  	
   

  
	
   

  	
  18.7
  Fees and Costs

  	
   

  
	
   

  	
  18.8
  Remedies

  	
   

  
	
  Article 19 MISCELLANEOUS

  	
   

  
	
   

  	
  19.1
  Interpretation

  	
   

  
	
   

  	
  19.2
  Binding Nature and Assignment

  	
   

  
	
   

  	
  19.3
  Expenses

  	
   

  



 


iii

















 


	
   

  	
  19.4
  Amendment and Waiver

  	
   

  
	
   

  	
  19.5
  Further Assurances

  	
   

  
	
   

  	
  19.6
  Publicity

  	
   

  
	
   

  	
  19.7
  Severability

  	
   

  
	
   

  	
  19.8
  Entire Agreement

  	
   

  
	
   

  	
  19.9
  Notices

  	
   

  
	
   

  	
  19.10
  Survival

  	
   

  
	
   

  	
  19.11
  Independent Contractor

  	
   

  
	
   

  	
  19.12 No Third Party Beneficiaries

  	
   

  
	
   

  	
  19.13
  Export Control

  	
   

  
	
   

  	
  19.14
  Counterparts

  	
   

  



 


iv

















 


Exhibits


 


[*****]


 


Schedules


 


[*****]


 


v

















 


[*****]


 


vi

















 


AMENDED AND RESTATED GLOBAL MASTER SERVICES
AGREEMENT


 


THIS AMENDED AND RESTATED GLOBAL MASTER SERVICES AGREEMENT, effective
as of January 1, 2004, is entered into between Coors Brewing Company, a
Colorado corporation (“Coors”), and EDS Information Services, L.L.C., a
Delaware limited liability company (“EDS”), and amends and restates that
certain Master Services Agreement, dated as of the Commencement Date (as
defined below), between Coors and EDS (the “Original Agreement”).


 


BACKGROUND


 


A.                                   Coors
and its Affiliates (as defined below) are in the business of manufacturing,
distributing and selling beer and other malt-based and alcoholic beverages. 
EDS is an independent systems consulting firm which offers systems
integration, network and systems operations, data center management,
applications development, field services, and management consulting.


 


B.                                     Coors
desires to obtain from EDS, and EDS desires to provide to Coors, certain
information technology services, all subject to and in accordance with the
provisions of this Agreement (as defined herein).


 


C.                                     Coors
and EDS now desire to amend and restate the Original Agreement in order to
(i) provide for the provision of certain information technology services
to CBL (as defined below), (ii) facilitate the future provision of
information technology services by EDS to other Coors Affiliates in countries
outside of the United States of America, if EDS and Coors mutually agree to
such an arrangement in the future, and (iii) revise certain other
provisions of the Original Agreement, in each case as further provided in this
Agreement (as defined below).


 


AGREEMENT


 


Coors and EDS hereby agree as follows:


 


Article 1


DEFINITIONS


 


1.1                                 Certain Definitions


 


In this Agreement, the following terms shall have the indicated
meanings:


 


(a)                                  “Affiliate”
means, with respect to any specified person or entity, any other person or
entity that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by, or is under common Control with, the specified
person or entity.


 


(b)                                 “Agreement”
means this Amended and Restated Global Master Services Agreement, all Local
Country Agreements and all Schedules. 
For purposes of clarity, the Parties


 


1

















 


acknowledge that the term “Agreement” specifically excludes [*****]


 


(c)                                  “Amendment
Effective Date” means January 1, 2004.


 


(d)                                 “Applications
Software” means those programs and programming (including the supporting
documentation and media) that perform in the conduct of the Services specific
user related data processing and telecommunications tasks.


 


(e)                                  “Assigned
Contracts” has the meaning given in Section 5.3(a)(i).


 


(f)                                    “Benchmarker”
has the meaning given in Section 9.10(c).


 


(g)                                 “Business
Day” means any day other than a Saturday, Sunday, December 26 or legal holiday
in the State of Colorado.


 


(h)                                 “CBL”
means Coors Brewers Limited, a company organized under the laws of England and
Wales.


 


(i)                                     “CBL
Monthly Current Asset Payment” has the meaning given in Section 12.10(b).


 


(j)                                     “CBL
Transferred Equipment” has the meaning given in Section 5.1(c).


 


(k)                                  “CBL
Transition Plan” has the meaning given in Section 3.8(b).


 


(l)                                     “CBL
Transition Services” has the meaning given in Section 3.8(b).


 


(m)                               “Change
Control Procedures” has the meaning given in Section 9.9(a).


 


(n)                                 “Commencement
Date” means August 1, 2001.


 


(o)                                 “Confidential
Information” has the meaning given in Section 8.1.


 


(p)                                 “Confidential
Materials” has the meaning given in Section 8.1.


 


(q)           [*****]


 


(r)                                    “Coors
Applications Software” means Applications Software owned by Coors or its
Affiliates (specifically excluding Third Party Software) and used to provide
the Services. [*****]


 


2

















 


(s)                                  “Coors
Competitor” means any person or entity whom directly or indirectly, at any time
during the Term, has as its primary business the manufacturing and/or
distribution of beer and other malt-based or
alcoholic beverages, and any Affiliate of such person or entity.


 


(t)                                    “Coors
Data” means [*****]


 


(u)                                 “Coors
Monthly Current Asset Payment” has the meaning given in Section 12.10(a).


 


(v)                                 [*****]


 


(w)                               “Coors
Software” means Coors Systems Software and Coors Applications Software.


 


(x)                                   “Coors
Systems Software” means Systems Software owned by a Coors Recipient or its
Affiliates (specifically excluding Third Party Software) and used to provide
the Services.  [*****]


 


(y)                                 “Coors
Transferred Equipment” has the meaning given in Section 5.1(a).


 


(z)                                   “Coors
Transition Plan” shall have the meaning given in Section 3.8(a).


 


(aa)                            “Coors
Transition Services” shall have the meaning given in Section 3.8(a).


 


(bb)                          “Critical
Service Level” has the meaning given in Section 1 of Exhibit B.


 


3

















 


(cc)                            “Data
Center” means (i) the Golden Data Center and (ii) subject to Coors
written consent as provided in Section 3.5, any other data center which
any EDS Provider uses to provide any Services.


 


(dd)                          “Disaster
Recovery Plan” means: (i) with respect to Coors, the disaster recovery
plan applicable to Coors, as it exists on the Commencement Date and is modified
or replaced thereafter in accordance with the Change Control Procedures;
(ii) with respect to CBL, the disaster recovery plan applicable to CBL, as
it exists on the Amendment Effective Date and is modified or replaced
thereafter in accordance with the Change Control Procedures; and (iii) any
enterprise disaster recovery plan applicable to both CBL and Coors developed
following the Amendment Effective Date in accordance with the Change Control
Procedures.


 


(ee)                            “Dispute
Resolution Committee” has the meaning given in Section 18.2(a).


 


(ff)                                “EDS
Applications Software” means Applications Software owned by any EDS Provider or
EDS Affiliate [*****] and used to provide the Services.


 


(gg)                          “EDS
Personnel” means employees of EDS Providers or their Affiliates, or EDS
Subcontractors assigned to perform Services.


 


(hh)         [*****]


 


(ii)                                  “EDS
Systems Software” means Systems Software owned by EDS Providers or their
Affiliates (specifically excluding Third Party Software) and used to provide
the Services.


 


(jj)                                  “EDS
Software” means EDS Applications Software and EDS Systems Software.


 


(kk)                            “EDS
Subcontractor” means any contractor or subcontractor of an EDS Provider or an
Affiliate of an EDS Provider (including, without limitation, individuals
engaged as independent contractors) used by an EDS Provider to provide any
Services.


 


(ll)                                  “EDS-UK”
shall mean Electronic Data Systems Limited.


 


(mm)                      “Effective
Date” shall mean:  (i) with respect
to this Amended and Restated Global Master Services Agreement, the Commencement
Date; (ii) with respect to the


 


4

















 


Local Country Agreement between CBL and EDS-UK, the Amendment Effective
Date; and (iii) with respect to any other Local Country Agreement, such
Local Country Agreement’s Local Country Agreement Effective Date.  References to an “applicable Effective
Date,” “an Effective Date applicable it,” or words of similar import shall be
construed as referencing the Effective Date of the particular agreement (either
this Amended and Restated Global Master Services Agreement or a Local Country
Agreement, as applicable) to which the entity or entities referenced is/are a
party/parties.


 


(nn)                          “Environmental
Laws” means any Federal, state, local or foreign law, order, regulation,
ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof as of the Commencement Date and as may be
amended or modified after the Commencement Date, including, without limitation,
any judicial or administrative order, consent decree, or judgment, relating to
the environment, health or safety.


 


(oo)         [*****]


 


(pp)                          “Force
Majeure Events” has the meaning given in Section 16.4.


 


(qq)                          “Golden
Data Center” means the real property and improvements commonly known as 1819
Denver West Drive, Golden, Colorado.


 


(rr)                                “Golden
Data Center Lease” means the Denver West Office Building Lease between Denver
West Office Building No. 26 Venture, as Landlord, and Coors, as Tenant, dated
February 1, 1994.


 


(ss)                            “Hazardous
Substance” means (i) any petroleum or petroleum products or fractions
thereof, radioactive materials, friable asbestos, urea formaldehyde, foam
insulation, radon gas and transformers or other equipment that contains
dielectric fluid containing polychlorinated biphenyls, and (ii) any
chemicals, materials or substances defined as or included in the definition of
“hazardous substances,” “extremely hazardous substances,” “hazardous wastes,”
“hazardous materials,” “extremely hazardous wastes,” “restricted hazardous
wastes,” “universal hazardous wastes,” “toxic substances,” “toxic pollutants,”
or words of similar import under any applicable Environmental Law; and (iii)
any natural or artificial substance (whether in the form of a solid, liquid,
gas, or vapour) the presence of which (whether alone or in combination with any
other substance) gives rise to a risk of causing harm to human health or
causing damage to the environment.


 


(tt)                                [*****]


 


(uu)                          “Key
EDS Positions” has the meaning given in Section 6.3.


 


5

















 


(vv)                          “Key
Transferred Employees” has the meaning given in Section 6.2.


 


(ww)                      “Local
Country Agreement” means an agreement (including any Schedules thereto) between
an EDS Provider (other than EDS) and a Coors Recipient (other than Coors),
pursuant to which such EDS Provider agrees to provide Services to such Coors
Recipient in accordance with terms set forth in this Agreement.


 


(xx)                              “Local
Country Agreement Effective Date” means, with respect to each Local Country
Agreement, the date designated therein as the effective date.


 


(yy)                          “Local
Country Agreement Term” has the meaning given in Section 2.1.


 


(zz)                              
“Local Country Asset Transfer Agreement” means an agreement between a Coors
Recipient and its corresponding EDS Provider who are parties to a Local Country
Agreement pursuant to which the Coors Recipient transfers certain assets to the
EDS Provider.


 


(aaa)                      “Local
Country Assigned Contracts” has the meaning given in Section 5.3(b)(i).


 


(bbb)                   “Local
Country Employee Transition Agreement” has the meaning given in
Section 6.1(b).


 


(ccc)                      “Losses”
means all losses, liabilities, damages and claims, and all related costs and
expenses (including any and all reasonable legal fees and reasonable costs of
investigation, litigation, settlement, judgment, appeal, interest and
penalties) incurred by an indemnified party hereunder in connection with an
indemnified claim.


 


(ddd)                   “Managed
Expenses” means [*****]


 


(eee)                      “Monthly
Current Asset Payments” [*****]


 


(fff)                            “Parties”
means Coors and EDS, and “Party” means either one of them.


 


(ggg)                   “Pass-Through
Expenses” [*****]


 


(hhh)                   “Privacy
Laws” has the meaning given in Section 8.5.


 


(iii)                               “Procedures
Manual” has the meaning given in Section 9.7(a).


 


6

















 


(jjj)                               “Project”
has the meaning given in Section 1.2.21 of Exhibit A.


 


(kkk)                      “Project
Executive” has the meaning given in Section 9.1.


 


(lll)                               “Retention
Bonus” has the meaning given in Section 6.2(c).


 


(mmm)             “Schedules”
means, with respect to this Agreement, any schedule, exhibit, agreement or
other document either (i) attached to this Agreement, (ii) executed
by the Parties concurrently with the Original Agreement or any Local Country
Agreement, or (iii) executed by the Parties at any time after any
Effective Date, if such document states that it is a Schedule to this
Agreement.  Notwithstanding the
foregoing, “Schedules” shall not include any Local Country Asset Transfer
Agreement and any Local Country Employee Transition Agreement.  For ease of reference, Schedules attached to
this Agreement that are applicable to a particular Local Country Agreement are
labeled in the following formats: 
“Schedule X.X(x) (LCA — [name of country])” or “Exhibit X(LCA- [name of
country])”.  When referring to a
Schedule applicable to Local Country Agreements in the generic sense in this
Agreement, the reference may be simply to a “Schedule X.X (LCA),” or “Exhibit
X(LCA)”.


 


(nnn)                   “Service
Credit” has the meaning given in Section 1 of Exhibit B.


 


(ooo)                   “Service
Level “ has the meaning given in Section 1 of Exhibit B.


 


(ppp)                   
“Service Level Termination Event” has the meaning given in Section 1 of Exhibit
B.


 


(qqq)                   “Service
Tower” has the meaning given in Section 1.3 of Exhibit A.


 


(rrr)                            “Services”
has the meaning given in Section 3.1.


 


(sss)                      “Software”
means Applications Software and Systems Software.


 


(ttt)                            “Steering
Committee” has the meaning given in Section 9.2.


 


(uuu)                   “Systems
Software” means [*****]


 


(vvv)                   “Tenancy
Agreement” has the meaning given in Section 9.3(c).


 


(www)             “Term”
has the meaning given in Sections 2.1 and 2.2.


 


(xxx)                         “Termination
Assistance” has the meaning given in Section 17.8(a).


 


7

















 


(yyy)                   
“Third Party Applications Software” means Applications Software licensed
pursuant to a Third Party Applications Software License.


 


(zzz)                         “Third
Party Applications Software Licenses” means, [*****]


 


(aaaa)                
“Third Party Consents” has the meaning given it in Section 5.3(g).


 


(bbbb)            
“Third Party Contracts” means, collectively, Third Party Applications Software
Licenses, Third Party Systems Software Licenses and Third Party Service
Contracts.


 


(cccc)                
“Third Party Service Contracts” means, collectively, [*****]


 


(dddd)            “Third
Party Software” means, collectively, Third Party Applications Software and
Third Party Systems Software.


 


(eeee)                “Third
Party Systems Software” means Systems Software licensed pursuant to a Third
Party Systems Software License.


 


(ffff)                        “Third
Party Systems Software Licenses” means, collectively,
[*****]


 


8

















 


including
in each case any associated maintenance, support, upgrade, subscription and
similar agreements.


 


(gggg)            “Transferred
Employees” has the meaning given in Section 6.1.


 


(hhhh)            “Transferred
Equipment” means the Coors Transferred Equipment, the CBL Transferred
Equipment, and any equipment transferred by any other Coors Recipient to an EDS
Provider in connection with the execution of a Local Country Agreement.


 


(iiii)                            “U.K.
Asset Transfer Agreement” means that certain Asset Transfer Agreement, dated as
of the Amendment Effective Date, by and between CBL and EDS-UK, which agreement
constitutes a Local Country Asset Transfer Agreement.


 


(jjjj)                            “U.K.
Employee Transition Agreement” means
that certain Employee Transition Agreement, dated as of the Amendment Effective
Date, by and between CBL and EDS-UK, which agreement constitutes a Local
Country Employee Transition Agreement.


 


(kkkk)                “Unidentified
Third Party Contract” has the
meaning given in Section 5.3(h).


 


1.2                                 Other Definitions


 


Other terms
used in this Agreement are defined where they first appear and have the
respective meanings there indicated.


 


Article 2


TERM


 


2.1                                 Term


 


The term of
this Amended and Restated Global Master Services Agreement (the “Term”) shall
begin at 12:01 a.m. Colorado time on the Commencement Date and shall end at
11:59 p.m. Colorado time on December 31, 2010, unless earlier terminated or
extended in accordance with the provisions hereof.  The term of each Local Country Agreement (each a “Local Country
Agreement Term”) shall begin at 12:01 local time in the applicable country to
which the Local Country Agreement applies on the applicable Local Country
Agreement Effective Date and shall end on the last day of the Term, unless
earlier terminated or extended in accordance with the provisions hereof.


 


2.2                                 Renewal
Term


 


[*****]  All of the terms of this Agreement shall
continue to apply without change during any extension period(s), and “the Term”
as used in this 


 


9

















 


Agreement shall refer to both
the original Term (as described in Section 2.1 hereof) and any
extension(s) thereof.


 


Article 3


SERVICES


 


3.1                                 General


 


(a)                      Except as set forth in Section
3.1(b), which applies to Services provided pursuant to a Local Country
Agreement, throughout the Term, EDS shall provide and perform (i) the
services, functions and responsibilities described in this Agreement (including
without limitation Exhibit A), as it may be amended and
supplemented from time to time pursuant to the Change Control Procedures;
(ii) the services, functions and responsibilities provided or performed at
any time during [*****] by the personnel who were displaced or whose functions
were displaced as a result of the Original Agreement (provided that those
services, functions and responsibilities were not discontinued by Coors during
[*****] with the intent that such discontinuation be permanent);
(iii) except as expressly provided otherwise in this Agreement, the
services, functions and responsibilities which, prior to the Commencement Date,
are documented as being funded by [*****]; and (iv) any services,
functions or responsibilities not specifically described in clauses (i), (ii)
or (iii) but that are inherent in or necessary for the proper provision and
performance of such services, functions and responsibilities.


 


(b)                     With respect to each Local Country
Agreement, throughout its applicable Local Country Agreement Term, the
applicable EDS Provider which is a party to such Local Country Agreement shall
provide and perform: (i) the services, functions and responsibilities described
in this Agreement (including without limitation Exhibit A) as being
applicable to the Coors Recipient to which such Local Country Agreement
applies, as this Agreement may be amended and supplemented from time to time
pursuant to the Change Control Procedures; (ii)  except as expressly
provided otherwise in this Agreement, the services, functions and
responsibilities which, prior to the Local Country Agreement Effective Date,
are documented as being funded by [*****] and (iii) any services, functions
or responsibilities not specifically described in clauses (i) or (ii) but that
are inherent in or necessary for the proper provision and performance of such
services, functions and responsibilities.


 


(c)                      The services, functions and
responsibilities described in Sections 3.1(a) and (b) are referred to
collectively as the “Services”. 
Pursuant to Section 9.9 (Contract Change Control), EDS shall be
responsive to the current and future information technology requirements of the
Coors Recipients.  The EDS Providers
shall provide, and Coors Recipients shall receive, the Services in accordance
with all of the terms of this Agreement.


 


10

















 


3.2                                 Resources


 


Except as
otherwise expressly provided in this Agreement, the EDS Providers shall
provide, [*****] all of the facilities, personnel, Equipment, Software,
services and other resources necessary to provide the Services.  Subject to the approval rights granted to
Coors (or any Coors Recipient) in this Agreement, the EDS Providers shall
maintain, expand, extend, upgrade and replace [*****] all such resources
(including, without limitation, any resources sold, transferred or assigned to
any EDS Provider pursuant to this Agreement) as necessary to provide the
Services.  No Coors Recipient shall
remove or relocate from its current location any Equipment, Software, and other
resources owned or leased by an EDS Provider (other than Equipment, Software
and other resources that are intended by their nature to be moved, such as laptop
computer equipment and PDAs) [*****], through which the applicable EDS Provider
shall have notice of, and shall perform, the relocation and/or removal of such
Equipment, Software, and other resources to the new location.


 


3.3                                 Local Country Agreements


 


(a)                                  Non-US
Affiliates; Completion of Local Country Agreements.


 


(i)                                     Notwithstanding
anything in this Agreement to the contrary, all Services provided pursuant to
this Agreement outside of the United States and used outside of the United
States shall, unless the Parties agree otherwise, be provided on a local basis
by a non-US Affiliate of EDS to a non-US Affiliate of Coors, pursuant to a
Local Country Agreement substantially in the form attached hereto as Exhibit
H.


 


(ii)                                  Concurrently
with the execution of a Local Country Agreement, this Amended and Restated
Global Master Services Agreement shall be amended as mutually agreed by the
Parties, including, without limitation by amending the then-current Schedules
hereto and by attaching appropriate Schedules designated as being applicable to
a particular Local Country Agreement. 
Such added Schedules shall be designated in the following format:
“Schedule X.X(x)(LCA-[name of country])” or “Exhibit X (LCA-[name of country])”.


 


(iii)                               EDS,
acting through the EDS Project Executive (and his or her designees(s)), shall
be responsible for the administration of this Agreement on a day-to-day basis
on behalf of all EDS Providers and their Affiliates (including decisions,
consents, notices, acceptances and approvals) and only EDS, acting through the
EDS Project Executive (and his or her designees(s)) shall be authorized to act
on behalf of any EDS Provider to amend, modify, change, waive or discharge such
EDS Provider’s rights and obligations under this Agreement.


 


(iv)                              Coors,
acting through the Coors Project Executive (and his or her designees(s))  shall be responsible
for the administration of this Agreement on a day-to-day basis on behalf of all
Coors Recipients and their Affiliates (including decisions, consents, notices,
acceptances and approvals) and only Coors acting through the Coors Project
Executive (and his or her designees(s)) shall be authorized to act on behalf of
any Coors Recipient to amend, modify, change, waive or discharge such Coors
Recipient’s rights and obligations under this Agreement.


 


11

















 


(v)                                 [*****]


 


(b)                                 Unless
the Local Country Agreement(s) specifically provides otherwise, such Local
Country Agreement(s) shall reference, and be subject to, the terms and
conditions of this Amended and Restated Global Master Services Agreement and
shall not be construed as altering or superceding any of the terms of this
Amended and Restated Global Master Services Agreement as those terms apply to
the EDS Providers and Coors Recipients.


 


(c)                                  EDS
shall cause each EDS Provider that is a party to a Local Country Agreement to
perform such EDS Provider’s responsibilities, functions and obligations
thereunder (including any responsibilities, functions and obligations under
this Amended and Restated Global Master Services Agreement adopted pursuant
thereto).  [*****]  Coors shall cause each Coors Recipient that
is a party to a Local Country Agreement to perform such Coors Recipient’s
responsibilities, functions and obligations thereunder (including any
responsibilities, functions and obligations under this Amended and Restated
Global Master Services Agreement adopted pursuant thereto).  [*****]


 


3.4                                 Other Recipients of Services


 


Unless
otherwise agreed by the Parties, each EDS Provider shall provide the Services,
throughout the Term (or Local Country Agreement Term, as applicable), to its
corresponding Coors Recipient, such Coors Recipient’s present and future
Affiliates located in the same country as such Coors Recipient, and such other
third parties as Coors may authorize from time to time in


 


12

















 


the ordinary course of business
to receive Services.  The Coors
Recipients acknowledge and agree that the foregoing is not intended to permit
the Coors Recipients to resell or wholesale the Services to non-Affiliate third
parties.  The Coors Recipients and the
EDS Providers shall each have all of the same rights and obligations with
respect to Services provided to Affiliates of Coors Recipients and other
authorized third parties as they do with respect to Services provided to the
Coors Recipients.  Except as otherwise
provided in this Agreement with respect to Coors Recipients, the EDS Providers
are authorized to deal exclusively with Coors in connection with any Services
to be provided to Coors’ Affiliates or other authorized third parties.  An EDS Provider’s provision of the Services
to entities that are not receiving the Services as of the Local Country
Agreement Effective Date of the Local Country Agreement to which it is a party
will be subject to Sections 9.9 (Change Control) and 12.4 (Changes Pursuant to
Change Control).


 


3.5                                 Migration of Service Locations


 


(a)                      Except as set forth in Attachment
A-12 to Exhibit A, , throughout the Term each applicable EDS Provider shall
provide the Services to its corresponding Coors Recipient from the locations
from which each of such Services is currently provided unless Coors approves
the migration of such Services to one or more other locations.


 


(b)                     Each migration of Services to
another location shall be conducted by the EDS Providers pursuant to a written
migration plan prepared by an EDS Provider and approved by the applicable Coors
Recipient.  Each migration plan shall
describe in detail how the EDS Provider shall perform the migration and any
assumptions and dependencies relating to such EDS Provider’s performance of
such migration, including any obligations of any Coors Recipient.  [*****] Unless otherwise expressly provided
in this Agreement, the obligations of the EDS Providers and Coors Recipients
contained in this Agreement, including, without limitation, the EDS Providers’
obligations to meet Service Levels, shall continue to apply during and after
each such migration.  [*****] Services
to a new platform and/or any change to or addition of Applications Software
shall be done pursuant to the Change Control Procedures.


 


3.6                                 No
Exclusivity


 


Any Coors
Recipient may obtain the Services during the Term from an EDS Provider or, at
Coors’ option exercised from time to time during the Term, a Coors Recipient
may obtain any or all of the Services from a third party or provide them
internally.  [*****]. No Coors Recipient
shall have any obligation to obtain from any EDS Provider any services which do
not fall within the definition


 


13

















 


of Services.  The EDS Providers
and their Affiliates shall cooperate with the Coors Recipients and their
Affiliates and contractors to allow the proper performance of any services
(whether or not included within the definition of Services) being provided
internally by any Coors Recipient or a Coors Affiliate or by any third party
contractors.  Such cooperation shall
include, without limitation, providing access to any Services reasonably
necessary for Coors Recipients or their Affiliates or such contractors to
perform their work, and providing (subject to Section 14.5) such
information regarding the operating environment, system constraints and other
operating parameters reasonably necessary for the work performed by the Coors
Recipients or their Affiliates or such contractors to be compatible with the
Services provided by the EDS Providers. 
Under no circumstances shall the EDS Providers or their Affiliates be
obligated to provide such third party contractors with access to, or use of,
any information of the EDS Providers’ or an EDS Affiliate’s other clients.


 


3.7                                 EDS Services to Others


 


Subject to the
other provisions of this Agreement, including, without limitation,
Section 6.3(d) (Key EDS Positions), Article 7 (Intellectual Property
Rights) and Article 8 (Confidentiality), the EDS Providers shall have the right
to provide services (including services that are the same as or similar to the
Services) to third parties during the Term.


 


3.8                                 Transition Services


 


(a)                                  EDS
shall complete the Services summarized in the portion of Attachment A-12
to Exhibit A applicable to the transition of certain Services for Coors
(the “Coors Transition Services”) by the dates set forth therein.  [*****] EDS shall deliver to Coors for
review and comment a draft of a plan (the “Coors Transition Plan”) describing
in detail how EDS shall perform the Coors Transition Services and any
assumptions and dependencies relating to EDS’ performance of the Coors Transition
Services, including any obligations of Coors. 
The Coors Transition Plan shall describe the activities EDS proposes to
undertake in order to provide the Coors Transition Services.  EDS shall incorporate any reasonable
comments and suggestions made by Coors and shall deliver a revised Coors
Transition Plan [*****].  The final
Coors Transition Plan shall be subject to Coors’ approval.  [*****] 
Unless otherwise expressly provided in this Agreement, all of EDS’
obligations contained in this Agreement, including, without limitation, the
obligation to meet Service Levels, shall continue to apply during
implementation of the Coors Transition Plan. 
[*****]


 


(b)                                 EDS-UK
shall complete the Services summarized in the portion of Attachment A-12
to Exhibit A applicable to the transition of certain Services for CBL
(the “CBL Transition Services”) by the dates set forth therein.  [*****] EDS-UK shall deliver to CBL for
review and comment a draft of a plan (the “CBL Transition Plan”) describing in
detail how EDS-UK shall perform the CBL Transition Services and any assumptions
and dependencies relating to EDS-UK’s performance of the CBL Transition
Services, including any obligations of CBL. 
The CBL Transition Plan shall describe the activities EDS-UK proposes to
undertake in order to provide the CBL Transition Services.


 


14

















 


EDS-UK shall incorporate any
reasonable comments and suggestions made by CBL and shall deliver a revised CBL
Transition Plan [*****].  The final CBL
Transition Plan shall be subject to CBL’s approval.  [*****]  Unless otherwise
expressly provided in this Agreement, all of each EDS Provider’s obligations
contained in this Agreement, including, without limitation, the obligation to
meet Service Levels, shall continue to apply during implementation of the CBL
Transition Plan.  [*****]  CBL agrees that EDS-UK shall be approved to
migrate the Help Desk Services performed by EDS-UK on the Amendment Effective
Date in Burton-on-Trent, England to EDS-UK’s leveraged facility in New Zealand
upon the date that EDS-UK can demonstrate to CBL that EDS has achieved each of
the following Service Levels described in Exhibit B hereto for [*****] EDS’
migration of the Coors Help Desk Services to the leveraged facility in New
Zealand:  Level of Service for Average
Speed to Answer, Average Speed to Answer, First Call Resolution and Abandon
Rate.


 


Article 4


SERVICE LEVELS


 


4.1                                 Initial Service Levels


 


Exhibit B establishes Service Levels for
certain specified Services and groupings of Services provided by EDS
hereunder.  Each Exhibit B (LCA)
establishes Service Levels for certain specified Services and groupings of
Services provided by the applicable EDS Provider.  Except as otherwise provided in Exhibit B (or an
applicable Exhibit B (LCA)), with respect to each Service or groupings of
Services which has an associated Service Level, the EDS Provider to which such
Service Level applies shall provide such Service or groupings of Services from
the applicable Effective Date throughout the remainder of the Term in a manner
which meets or exceeds such associated Service Level with respect to the Coors
Recipient to which such Service Level applies.


 


4.2                                 Review of Service Levels


 


(a)                      At the following intervals the
Parties shall jointly review all then-applicable Service Levels (including any
Service Levels applicable to Coors Recipients other than Coors) and adjust them
to reflect any improved performance capabilities associated with advances in
the technology and methods used to perform the Services:


 


[*****]


 


(b)                     The Coors Recipients and the EDS
Providers will reasonably attempt to continuously improve the Service Levels
identified in Exhibit B (and each Exhibit B (LCA)) throughout the Term,
by mutual agreement, and that they will reasonably attempt to jointly


 


15

















 


identify and add to Exhibit
B (or the applicable Exhibit B (LCA)) additional Service Levels and
associated Service Credits during the Term. 
Throughout the Term, EDS shall identify and notify Coors of commercially
reasonable methods of improving the Service Levels.


 


4.3                                 Measurement and Monitoring Tools


 


EDS shall
implement any measurement and monitoring tools and procedures necessary to
measure performance of the Services by the EDS Providers to each Coors
Recipient individually and compare such performance to the Service Levels
applicable to each such Coors Recipient. 
Upon Coors’ request, EDS shall provide Coors or its auditors with any
information and access to the measurement and monitoring tools reasonably
necessary to measure each EDS Provider’s performance against the Service Levels
applicable to the individual Coors Recipients.


 


[*****]


 


16

















 


[*****]


 


4.5                                 Additional Performance Requirements


 


(a)                      With respect to any Service or
obligation which does not have an associated Service Level, each EDS Provider
shall perform such Service or obligation with respect to its corresponding
Coors Recipient with a level of accuracy, quality, completeness, timeliness and
responsiveness which [*****].  Each EDS
Provider shall perform all Services and obligations promptly, diligently, and
in a workmanlike and professional manner, using qualified individuals.  Each time Coors notifies EDS that Coors believes
an EDS Provider has failed to meet the applicable standard set forth in the
preceding sentence with respect to any individual Coors Recipient, EDS
shall:  [*****]


 


(b)                     As one of several ways of
measuring the EDS Providers’ compliance with this Section, [*****]


 


Article 5


TRANSFERS OF EQUIPMENT, FACILITIES AND THIRD
PARTY CONTRACTS


 


5.1                                 Transfer of Equipment 


 


(a)                      On the Commencement Date, Coors
shall transfer or cause to be transferred to EDS, and EDS shall receive from
Coors or its Affiliates, the equipment, leasehold improvements and fixtures
listed and/or described on Schedule 5.1(a) (the “Coors Transferred
Equipment”).  Except as set forth in
Section 14.2(a)(i) (Coors Representations and Warranties), Coors and its
Affiliates are transferring the Coors Transferred Equipment, and EDS is
receiving the Coors Transferred Equipment, [*****]


 


17

















 


(b)                     On the Commencement Date Coors
shall deliver to EDS or its designee one or more bills of sale in the form attached
as Schedule 5.1(b), and EDS shall deliver to Coors, [*****]


 


(c)                      On the Amendment Effective Date,
CBL shall transfer or cause to be transferred to EDS-UK, and EDS-UK or its
designee shall receive from CBL, the equipment, leasehold improvements and fixtures
listed and/or described in Schedule 1 of the Local Country Asset Transfer
Agreement between CBL and EDS-UK (the “CBL Transferred Equipment”).  Except as set forth in Section 14.2(b)(i)
(Coors Representations and Warranties), CBL is transferring the CBL Transferred
Equipment, and EDS-UK (or its designee) is receiving the CBL Transferred
Equipment, [*****]


 


(d)                     On the Amendment Effective Date
CBL and EDS-UK shall each execute and deliver to one another a Local Country
Asset Transfer Agreement in the form attached as Schedule 5.1(b)(LCA-UK)


 


5.2                                 Golden Data Center and Equipment 


 


(a)                      On the Commencement Date, Coors
shall assign to EDS, and EDS shall assume from Coors, Coors’ interest in the
Golden Data Center Lease and the Golden Data Center.  Except as set forth in Section 14.2(a)(iii) (Coors
Representations and Warranties), Coors is assigning the Golden Data Center
Lease and its interest in the Golden Data Center, and EDS is assuming the
Golden Data Center Lease and Coors’ interest in the Golden Data Center, [*****]


 


18

















 


(b)                     Coors shall allow EDS to use
[*****] the furniture located at the Golden Data Center on the Commencement
Date during such time as EDS is providing Services to Coors from the Golden Data
Center.  During such time period, EDS
shall maintain such furniture [*****] in the same condition it is in on the
Commencement Date, reasonable wear and tear excepted, and shall not remove such
furniture from the Golden Data Center. 
Coors shall remove such furniture from the Golden Data Center upon
expiration of such time period.


 


(c)                      On or before the Commencement
Date, Coors and EDS shall each execute and deliver to the other an Assignment
of Lease and Consent to Assignment of Lease in the form of Schedule 5.2(c)
attached to this Agreement (the “Golden Data Center Assignment”), and on or
before the Commencement Date the Parties shall cause the lessor under the
Golden Data Center Lease to execute and deliver to Coors the Golden Data Center
Assignment. [*****]


 


5.3                                 Third Party Contracts


 


(a)                      Coors Third Party Contracts


 


(i)                         Subject to EDS having received
any Third Party Consents which it is required to obtain pursuant to
Section 5.3(g), as of the Commencement Date Coors shall assign to EDS, and
EDS shall assume from Coors, the following (collectively, the “Assigned
Contracts”):


 


(A)                              the
Third Party Software Licenses and Third Party Software listed on
Schedule 5.3(a)(i) for which EDS is identified as the licensee; and


 


(B)                                the
Third Party Service Contracts used by Coors immediately before the Commencement
Date to provide any services included within the Services, as such contracts
are listed on Schedule 5.3(a)(ii), excepting therefrom those contracts
identified on Schedule 5.3(a)(ii) as “Managed Contracts.”


 


[*****] (i) with respect to Assigned Contracts listed on Schedule
5.3(a)(ii), each Party shall have the obligations described in Section 7.3(a)
relating to periods on or after the Commencement Date, and (ii) with
respect to Assigned Contracts listed on Schedule 5.3(a)(ii), [*****]  If EDS is unable to obtain any such Third
Party Consent, it shall identify and adopt, [*****] subject to Coors’ prior
approval, such alternative approaches as are necessary to provide the Services
without such Third Party Consent.


 


19

















 


(b)                     Other Coors Recipients’ Third
Party Contracts


 


(i)                         As of each applicable Local
Country Agreement Effective Date, and subject to the EDS Provider which is a
party to such Local Country Agreement having received any Third Party Consents
which it is required to obtain pursuant to Section 5.3(g), such EDS
Provider’s corresponding Coors Recipient shall assign to such EDS Provider and
such EDS Provider shall assume from such Coors Recipient the following
(collectively, the “Local Country Assigned Contracts”):


 


(A)                              the
Third Party Software Licenses and Third Party Software listed on the applicable
Schedule 5.3(a)(i) (LCA) for which such EDS Provider is identified as the
licensee; and


 


(B)                                the
Third Party Service Contracts used by the applicable Coors Recipient
immediately before the Local Country Agreement Effective Date to provide any
services included within the Services, as such contracts are listed on the
applicable Schedule 5.3(a)(ii) (LCA), excepting therefrom those contracts
identified on the applicable Schedule 5.3(a)(ii) (LCA) as “Managed
Contracts.”


 


Regardless of whether the EDS Provider has obtained a Third Party
Consent with respect to any Local Country Assigned Contracts, on and after the
applicable Local Country Agreement Effective Date (i) with respect to
Local Country Assigned Contracts listed on the applicable
Schedule 5.3(a)(ii) (LCA), each Party shall have the obligations described
in Section 7.3(a) relating to periods on or after the Local Country Agreement
Effective Date, and (ii) with respect to Local Country Assigned Contracts
listed on the applicable Schedule 5.3(a)(ii) (LCA), [*****]  If the applicable EDS Provider is unable to
obtain any such Third Party Consent, it shall identify and adopt, [*****]
subject to the applicable Coors Recipient’s prior approval, such alternative
approaches as are necessary to provide the Services without such Third Party
Consent.


 


(c)                      Beginning in September 2001 and
continuing each month thereafter through August 2002, EDS shall pay to Coors
[*****] in consideration of payments made by Coors under the contracts listed
on Schedule 5.3(c) attributable to the period on or after the Commencement
Date.


 


(d)                     Beginning in January 2004 and
continuing each month thereafter through  December 2004, EDS-UK shall pay to CBL
[*****] in consideration of payments made by


 


20

















 


CBL under the contracts listed
on Schedule 5.3(c)(LCA-UK) attributable to the period on or after the Amendment
Effective Date.


 


(e)                      Subject to an EDS Provider having
received any Third Party Consents which it is required to obtain pursuant to
Section 5.3(g), the corresponding Coors Recipient, as of its applicable
Effective Date, shall grant to such EDS Provider, for the sole purpose of
providing the Services (and to the extent necessary for such EDS Provider to
provide the Services), rights of access to, and use of:


 


(i)                         the Third Party Software
Licenses and Third Party Software listed on Schedule 5.3(a)(i) or any
applicable Schedule 5.3(a)(i) (LCA) for which such Coors Recipient is
identified as the licensee; and


 


(ii)                      the Third Party Service Contracts
identified on Schedule 5.3(a)(ii) or any applicable
Schedule 5.3(a)(ii)(LCA) as “Managed Contracts,” to which such Coors
Recipient is a party.


 


If an EDS Provider is unable to obtain any such Third Party Consent, it
shall identify and adopt, [*****] subject to Coors’ prior approval, such
alternative approaches as are necessary to permit EDS to provide the Services
without such Third Party Consent or otherwise to eliminate the need for such
Third Party Consent.


 


(f)                        Schedule 5.3(f) and any
applicable Schedule 5.3(f)(LCA) lists contracts which, at Coors’ option, a
Coors Recipient which is party to such contract may cancel, or otherwise deal
with.  The EDS Providers shall provide
the Services without the benefit or use of such contracts.


 


(g)                     Subject to clause (h) below, on or
before the Effective Date applicable to it, each EDS Provider shall obtain:
(i) from each third party to an Assigned Contract or a Local Country
Assigned Contract (as applicable) any required consent by such third party to
the assignment to and assumption by such EDS Provider of such Assigned Contract
or Local Country Assigned Contract; and (ii) from each third party to a
Third Party Contract for which a right of access and use is granted to an EDS
Provider in Section 5.3(e), any required consents by such third party to
such EDS Provider’s or its Affiliate’s access to and use of such Third Party
Contract (collectively, the “Third Party Consents”).  The EDS Providers shall use commercially reasonable efforts
[*****] any Third Party Consents and shall identify to Coors any practical ways
to eliminate the need for such Third Party Consents.  In connection with each Assigned Contract (or Local Country
Assigned Contract), the EDS Providers shall use commercially reasonable efforts
to obtain a complete release of the Coors Recipients with respect to all
obligations arising under the related Assigned Contract (or Local Country
Assigned Contract) on or after the applicable Effective Date.  [*****]


 


(h)                     With respect to any Third Party
Contract which is not listed on Schedule 5.3(a)(i), 5.3(a)(ii), 5.3(f), or
on any applicable Schedule 5.3(a)(i)(LCA),


 


21

















 


5.3(a)(ii)(LCA) or 5.3(f)(LCA)
(an “Unidentified Third Party Contract”), the following shall apply:


 


(i)                         if the Unidentified Third
Party Contract is a Third Party Service Contract, such Unidentified Third Party
Contract shall be retained or cancelled by the Coors Recipient which is a party
to such contract unless the Parties mutually agree that such contract be
assigned to an EDS Provider on terms and conditions mutually agreeable to the
Parties, in which case the Unidentified Third Party Contract shall be added to
the appropriate portion of Schedule 5.3(a)(ii) or the applicable
Schedule 5.3(a)(ii)(LCA), as agreed by the Parties;


 


(ii)                      if the Unidentified Third Party
Contract is a Third Party System Software License or a Third Party Applications
Software License: (A) the appropriate EDS Provider shall, at the Coors
Receipient’s request, obtain any applicable Third Party Consent (either a
consent to assignment of the contract to such EDS Provider (with respect to
Third Party System Software Licenses), or (with respect to Third Party
Applications Software Licenses), a consent to such EDS Provider’s access to and
use of the Third Party Applications Software subject to such Third Party
Applications Software License during the Term); (B) the EDS Providers
shall use commercially reasonable efforts [*****] of any required Third Party
Consent (including identifying to the Coors Recipient any practical ways to
eliminate the need for such Third Party Consents), (C) as soon as such
Third Party Consent has been obtained, or determined to be unnecessary, the
Third Party Systems Software License or the Third Party Applications Software
licensed pursuant to the Third Party Applications Software License shall be
added to the appropriate section of Schedule 5.3(a)(i) or the applicable
Schedule 5.3(a)(i)(LCA) (in the case of unidentified Third Party
Applications Software Licenses to the “Managed Contracts” section of such
Schedule, and in the case of unidentified Third Party Systems Software Licenses
to such Schedule, but not as “Managed Contracts”); (D) on
Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) the
appropriate EDS Provider shall be designated as the licensee of any
unidentified Third Party Systems Software License added to
Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) pursuant
to clause (C) and the Coors Recipient shall be designated the licensee of any
unidentified Third Party Applications Software License added to
Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) pursuant
to clause (C); (E) on Schedule 5.3(a)(i) or the applicable
Schedule 5.3(a)(i)(LCA) the appropriate EDS Provider shall be assigned
[*****] Software License added to Schedule 5.3(a)(i) or the applicable
Schedule 5.3(a)(i)(LCA) pursuant to clause (C); and (F) the EDS
Provider obtaining such consent [*****] 
If an EDS Provider is unable to obtain any such Third Party Consent, it
shall identify and adopt, [*****] of its corresponding Coors Recipient (on a
Managed Expense basis), subject to the Coors Recipient’s prior approval, such
alternative approaches as are necessary to permit such EDS Provider to provide
the Services without such Third Party Consent or otherwise to eliminate the
need for such Third Party Consent.


 


(i)                         [*****]


 


22

















 


Article 6


PERSONNEL


 


6.1                                 Terms of Employment; [*****]


 


(a)                      For United States Employees


 


(i)                         [*****]


 


(ii)                      [*****]


 


23

















 


(iii)                   [*****]


 


(iv)                  [*****]


 


(v)                     [*****]


 


(b)                     For Non-United States Employees


 


(i)                                     [*****]


 


24

















 


(ii)                                            [*****]


 


6.2                                 Key Transferred Employees


 


(a)                      [*****]


 


25

















 


(b)                     [*****]


 


(c)                      [*****]


 


26

















 


6.3                                 Key EDS Positions


 


(a)                      Each EDS Provider acknowledges
that the personnel filling the positions identified in Schedule 6.3 or any
applicable Schedule 6.3(LCA) (the “Key EDS Positions”) are critical to
providing the Services throughout the Term (or throughout each Local Country
Agreement Term, as applicable).  Coors
may change or add to the Key EDS Positions from time to time during the Term
with EDS’ consent.  Each EDS Provider
shall cause the personnel filling the Key EDS Positions and employed by it to
devote to the provision of the Services the time and effort described in
Schedule 6.3 or in any applicable Schedule 6.3(LCA).


 


(b)                     The individuals who will fill the
Key EDS Positions on the Commencement Date are listed in Schedule 6.3. The
individuals who will fill the Key EDS Positions on the Local Country Agreement
Effective Date for the Local Country Agreement between EDS-UK and CBL are
listed in Schedule 6.3(LCA-UK).  Neither
EDS nor EDS-UK shall, from the date an individual first fills a Key EDS
Position until completion of the period set forth next to such Key EDS Position
in Schedule 6.3 or Schedule 6.3(LCA-UK), without Coors prior written
approval, transfer any individual from such Key EDS Position to another
position within EDS or an EDS Affiliate.


 


(c)                      Before an individual is assigned
to fill a Key EDS Position, EDS shall notify Coors of the proposed assignment,
shall introduce the individual to appropriate Coors representatives, and shall
provide Coors with a resume and such other information as Coors may reasonably
request.  [*****]  Nothing in this Section shall be deemed to
prevent an EDS Provider from hiring such individual or to require an EDS
Provider to terminate the employment of such individual.


 


(d)                     Each EDS Provider acknowledges
that the personnel filling the Key EDS Positions are particularly likely to
have access to sensitive Coors Confidential Information which is critical to
Coors’ global competitiveness.  Neither
any EDS Provider nor any EDS Affiliate shall use any personnel filling the Key
EDS Positions from time to time during the Term (or for Key EDS Positions
applicable to a particular Local Country Agreement, throughout the applicable
Local Country Agreement Term) to provide any services (whether similar or
dissimilar to the Services) to any Coors Competitor at any time while they fill
such Key EDS Position, and: (i) with respect to personnel employed in Key
EDS Positions in the United States, [*****] (ii) with respect to personnel
employed in Key EDS Positions in the United Kingdom, [*****]; and (C) with
respect to personnel employed in Key EDS Positions in countries other than the
United States or the United Kingdom, [*****]


 


27

















 


6.4                                 Removal of EDS Employees from Coors
Account


 


Coors shall
have the right to notify EDS if Coors determines in good faith that the
continued assignment to the Coors account of any EDS Personnel is not in the
best interests of Coors or a Coors Recipient. 
Upon receipt of such notice, EDS shall have a reasonable time period to
investigate the matters stated therein, discuss its findings with Coors and
attempt to resolve such matters in a manner acceptable to Coors.  If Coors continues to request the replacement
of such individual after such period, the applicable EDS Provider shall remove
the individual from the Coors account. 
Nothing in this Section shall be deemed to require any EDS Provider to
terminate the employment of such individual.


 


6.5                                 Excessive Turnover


 


The Parties
agree that it is generally in the best interest of both Parties to keep the
turnover rate of the employees of the EDS Providers providing the Services to a
reasonably low level.  On each
anniversary of the Commencement Date EDS shall provide Coors with such data as
Coors may request regarding the turnover rate of such employees in the
preceding one (1) year and the turnover rate of all EDS Provider employees in
the preceding one (1) year.  If Coors
notifies EDS that Coors believes the turnover rate of the employees of the EDS
Providers providing the Services is unreasonably high, [*****]


 


6.6                                 No Employment Offers


 


Except as set
forth in Section 17.12 (Offers to EDS Employees), [*****] Coors shall not;
and during the Local Country Agreement Term applicable to it, each other Coors
Recipient shall not, extend offers of employment to, or directly or indirectly
solicit the employment of, any employee of an EDS Provider who provided the
Services during [*****], while an EDS Provider is providing any Termination
Assistance, no EDS Provider shall extend offers of employment to, or directly
or indirectly solicit the employment of, any Coors Recipient employees
providing information technology services.


 


6.7                                 Security


 


(a)                      EDS shall, upon Coors’ reasonable
request, inspect and search the employees, agents and representatives of EDS
and EDS Subcontractors, and their respective vehicles or belongings, on a
non-routine basis to ensure compliance with Coors’ security policies.  EDS shall ensure (or, with respect to EDS
Subcontractors, cause such subcontractors to ensure) that any of the employees,
agents and representatives of EDS and any EDS Subcontractors who will be on
Coors’ premises (or on the premises of a Coors Affiliate, other than the
premises of CBL, which CBL premises shall be subject to subsection (b) of this
Section 6.7) will have given their consent to the inspections and/or
searches contemplated by this subsection.


 


(b)                     EDS-UK shall, upon the reasonable
request of CBL, take all reasonable steps to inspect and search the employees,
agents and representatives of EDS-UK and EDS


 


28

















 


Subcontractors providing
Services to CBL, and their respective vehicles or belongings, on a non-routine
basis to ensure compliance with CBL’s security policies.  EDS-UK shall take all reasonable steps to
ensure (or, with respect to EDS Subcontractors, cause such subcontractors to
ensure) that any of the employees, agents and representatives of the EDS-UK and
any EDS Subcontractors who will be on the CBL’s premises (or on premises of a
CBL Affiliate in the United Kingdom) will have given their consent to the
inspections and/or searches contemplated by this subsection.


 


6.8                                 Safety


 


(a)                      EDS shall ensure (and with
respect to EDS Subcontractors shall cause such subcontractors to ensure) that
each employee, agent and representative of EDS or an EDS Subcontractor shall
comply with the terms and conditions set forth in “U.S. Environmental, Health
and Safety Commitment and Policy” attached hereto as Exhibit E, and as
may be updated from time to time in accordance with the Change Control
Procedure.


 


(b)                     In respect of the Local Country
Agreement executed by CBL and EDS-UK, EDS-UK shall take all reasonable steps to
ensure that it, its subcontractors and their respective employees, agents and
representatives comply with CBL’s health and safety policies (attached hereto
as Exhibit G, and as may be updated from time to time in accordance with the
Change Control Procedure) while they are performing Services on the premises of
CBL; provided, however, that (i) in the event of a conflict between the
provisions of Exhibit G and Articles 1 through 19 of the Amended and Restated
Global Master Services Agreement, Articles 1 through 19 of the Amended and
Restated Global Master Services Agreement shall prevail; (ii) in the event of a
conflict between the provisions of Exhibit G and the terms of the Tenancy
Agreement, the terms of the Tenancy Agreement shall prevail; and (iii)
notwithstanding anything to the contrary in Exhibit G, neither EDS nor EDS-UK
shall have any obligation to indemnify CBL unless such indemnity obligation is
set forth in Article 15 of this Amended and Restated Global Master Services
Agreement.


 


Article 7


INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS


 


7.1                                 Coors
Software


 


As of the
applicable Effective Date, each Coors Recipient grants to the EDS Providers a
[*****] license during the Term and each Local Country Agreement Term, as
applicable, to use the Coors Software for the sole purpose of providing the
Services pursuant to this Agreement.  No
EDS Provider shall use Coors Software for any other purpose, and no EDS
Provider shall have the right to grant sublicenses without Coors’ consent, which
may be withheld in Coors’ sole discretion. 
The EDS Providers shall cease all use of Coors Software when such Coors
Software is no longer required to perform the Services, including without
limitation, upon expiration or earlier termination of the Term or a Local
Country Agreement Term, as applicable. 
Except for the foregoing license, the Coors Recipients retain all right,
title and interest in and to the Coors Software.


 


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7.2                                 EDS
Software


 


The EDS
Providers shall install, operate and maintain [*****] any EDS Software needed
to provide the Services.  No EDS
Provider shall use in performing the Services any EDS Software unless such EDS
Software is available to the Coors Recipients following the Term or the Local
Country Agreement Term, as applicable, [*****] and upon reasonable terms.  As of the applicable Effective Date, each
EDS Provider grants to the applicable Coors Recipient, its Affiliates, each of
the third parties described in Section 3.4 and their respective
contractors and subcontractors, a [*****] license during the Term or the Local
Country Agreement Term, as applicable, to use EDS Software for the benefit of
each Coors Recipient and its Affiliates. 
Except for the foregoing license, the EDS Providers retain all right,
title and interest in and to the EDS Software.


 


7.3                                 Third Party Software


 


(a)                      With respect to Third Party
Software Licenses, each Coors Recipient or EDS Provider shall be the licensee
of any Third Party Software License for which it is the designated licensee
pursuant to Schedule 5.3(a)(i) or any applicable
Schedule 5.3(a)(i)(LCA) and each Coors Recipient or EDS Provider shall
have [*****] allocated to it on Schedule 5.3(a)(i) or any applicable
Schedule 5.3(a)(i)(LCA), as the case may be (in each case, as such
Schedule is amended from time to time pursuant to Section 5.3(h)(ii),
subsections (b) or (c) of this Section 7.3, or Section 9.9).  Notwithstanding the preceding sentence and
the obligations of the Coors Recipient or EDS Provider set forth in
Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA), when an
EDS Provider acquires refresh Equipment, or additional Equipment for which a
Coors Recipient is charged an ARC, such EDS Provider shall have [*****] for the
OEM license for the operating system for such Equipment.


 


(b)                     With respect to Third Party
Systems Software Licenses entered into by an EDS Provider after the Effective
Date applicable to it: (i) such Third Party Systems Software Licenses
shall be added to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA),
as appropriate (but not as “Managed Contracts);” (ii) such EDS Provider
shall be the designated licensee under any such Third Party Systems Software
Licenses so added to Schedule 5.3(a)(i) or any applicable
Schedule 5.3(a)(i)(LCA) (and shall comply with all obligations imposed on
the licensee thereunder); and (iii) such EDS Provider shall be allocated
[*****] any such Third Party Systems Software Licenses so added to
Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA), as appropriate.  No EDS Provider shall introduce any Third
Party Systems Software unless such Third Party Systems Software is generally
available to the Coors Recipients or a successor provider of the Services on
commercially reasonable terms from a recognized provider of software.


 


(c)                      Each EDS Provider shall install,
operate and support additional Third Party Applications Software designated by
Coors from time to time during the Term in accordance with the Change Control
Procedures.  Unless otherwise agreed in
the Change Control Procedures, with respect to Third Party Applications
Software Licenses entered into after the Commencement Date (or after the
applicable Local Country Agreement Effective Date in the case of Third Party
Applications Software used to perform Services in a country where there is a


 


30

















 


Local Country Agreement):
(i) such Third Party Applications Software Licenses shall be added to
Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i) (LCA), as
appropriate (but not under “Managed Contracts”); (ii) the appropriate
Coors Recipient shall be the designated licensee under any such Third Party
Applications Software Licenses so added to Schedule 5.3(a)(i) or any
applicable Schedule 5.3(a)(i) (LCA), as appropriate; and (iii) the
appropriate EDS Provider shall be allocated [*****] for any such Third Party
Applications Software Licenses so added to Schedule 5.3(a)(i) or any
applicable Schedule 5.3(a)(i) (LCA), as appropriate.  Each EDS Provider shall obtain, [*****] from
each party to a Third Party Applications Software License entered into by such
Coors Recipient after the applicable Effective Date any required consent by
such third party to such EDS Provider’s access to and use of the associated
Third Party Applications Software during the Term or the Local Country
Agreement Term, as applicable.  If an
EDS Provider is unable to obtain the consent of any such third party, it shall
identify and adopt, [*****] upon mutual agreement of the Parties, such
alternative approaches as are necessary to permit the EDS Provider to provide
the Services without such consent or otherwise to eliminate the need for such
consent.  No EDS Provider shall
introduce any Third Party Applications Software which will be used or accessed
by any Coors Recipient’s end-users without Coors’ prior written consent.


 


(d)                     Subject to any applicable
obligations of a Coors Recipient set forth in Schedule 5.3(a)(i), in any
applicable Schedule 5.3(a)(i) (LCA), and to Section 9.8, each EDS
Provider shall, to the extent necessary or appropriate to provide the Services
to its corresponding Coors Recipient: 
(i) maintain Third Party Software used by such Coors Recipient on
its applicable Effective Date; 
(ii) upgrade, enhance, expand the scope of licenses for, and implement
new versions of Third Party Systems Software and, at Coors’ request, Third
Party Applications Software; and (iii) replace or add to Third Party
Systems Software and, pursuant to the Change Control Procedures, Third Party
Applications Software.


 


7.4                                 Other Intellectual Property


 


(a)                      Each Coors Recipient and EDS
Provider shall be the sole owner of all Intellectual Property owned by it as of
its Effective Date or developed by it during the Term (or the Local Country
Agreement Term, as applicable) independent of the Services and this Agreement.


 


(b)                     Coors (or one or more Coors
Recipients designated by Coors) shall be the sole and exclusive owner(s) of all
trade secret rights and copyrights in any reports, diagrams, charts and
illustrative graphics, run books, manuals (including the Procedures Manuals)
and other works prepared by any EDS Provider for use by or on behalf of any
Coors Recipient pursuant to this Agreement and in any enhancements to and
modifications of Coors Software created by the EDS Providers and/or implemented
in the course of providing Services under this Agreement, and an EDS Provider
designated by EDS shall retain and be the sole owner of all patent rights
therein (except to the extent that such patent rights relate specifically to manufacturing,
distributing and selling beer or other malt-based or alcoholic beverages  (as opposed to generic process control,
data processing and data communications), in which case such patent rights
shall be owned solely by a Coors Recipient designated by Coors).  In the case of such works that are
derivative from EDS Software (“EDS Enhancements”), an EDS Provider


 


31

















 


shall continue to own all
Intellectual Property rights in the EDS Enhancements and such EDS Provider
shall be deemed to have granted to the Coors Recipients a perpetual,
non-exclusive, royalty-free right and license to copy and use as part of the
EDS Enhancements the items of EDS Software underlying such EDS Enhancements.  All works described in this
Section 7.4(b) (other than EDS Enhancements) and fixed in any tangible
medium shall be considered as “works for hire” commissioned by Coors under the
copyright laws of the United States.  If
any such tangible work is not considered a work for hire under applicable local
law, each EDS Provider hereby irrevocably assigns to Coors (or to one or more
Coors Recipient(s) designated by Coors), effective immediately on the creation
of such work, all of such EDS Provider’s right, title and interest in and to copyright
and trade secret rights embodied in such tangible work, subject to the EDS
Providers’ continuing ownership of EDS Software underlying EDS Enhancements and
the corresponding license thereof to the Coors Recipients as set forth above.  Each EDS Provider shall provide on a timely
basis all assistance (including without limitation the execution and delivery
of all required documents and instruments) to the Coors Recipients reasonably
requested by the Coors Recipients for the reflection of the ownership by the
Coors Recipients and their Affiliates of the Intellectual Property rights the
Coors Recipients own pursuant to this Section 7.4(b).


 


(c)                      Each EDS Provider grants to the
Coors Recipients during the Term (and any applicable Local Country Agreement Term)
and thereafter a [*****] license to copy, distribute, make, use and otherwise
exploit all Intellectual Property owned by any EDS Provider used in providing
any of the Services during the Term (and the applicable Local Country Agreement
Term), solely for use by the Coors Recipients and their Affiliates and by each
of the third parties described in Section 3.4  (or by any third party
service provider) for the benefit of the Coors Recipients and their Affiliates
in the performance of activities encompassed within the scope of the Services
or activities that are reasonable extensions or expansions of such
activities.  The Coors Recipients
acknowledge and agree that in the event that during the Term any EDS Software
is modified pursuant to this Agreement by any Coors Recipient or its Affiliate
or any third party described in Section 3.4, the EDS Providers will not be
required to support or maintain such modifications and the EDS Providers shall
be relieved of any obligation hereunder to the extent that such modifications
adversely affect the EDS Providers’ ability to perform the Services or meet the
Service Levels.


 


(d)                     EDS Providers shall be the sole
and exclusive owner of all Intellectual Property in any enhancements to and
modifications of Third Party Software developed by the EDS Providers in the
ordinary course pursuant to this Agreement to the extent such enhancements and
modifications are not owned by the licensor of such Third Party Software;
provided, however, that, to the extent an EDS Provider is the owner of such
enhancements and modifications, such EDS Provider hereby grants to the Coors
Recipients a [*****] license to use, modify, create derivative works from, and
sublicense any such enhancements and modifications, as well as the right to
practice all patents, if any, required to permit such use, modification and
creation of derivative works.  To the
extent the EDS Providers have the right to do so, the EDS Providers shall
provide to the Coors Recipients at the Coors Recipient’s request during the Term
(or the applicable Local Country Agreement Term) or within one (1) year
thereafter all source code, object code and documentation reasonably required
to make full use of the foregoing licenses.


 


32

















 


(e)                      Neither Party (nor their
respective Affiliates) shall use any trademarks, servicemarks, tradenames,
logos or other indicia of the other Party (or its Affiliates) without such
other Party’s prior written consent, which may be withheld in such other
Party’s sole discretion.


 


(f)                        All Intellectual Property in
Coors Data created by the EDS Providers or their Affiliates during the
performance of the Services shall be owned by the Coors Recipients or their
Affiliates and the EDS Providers hereby irrevocably assign to the Coors
Recipients all of the EDS Providers’ and their Affiliates’ right, title and
interest in and to such Intellectual Property.


 


7.5                                 Residual Rights


 


Nothing in
this Agreement shall restrict any Coors Recipient or EDS Provider from the use
of any ideas, concepts, know-how, methods or techniques not fixed in a tangible
medium during the Term (“Residual Subject Matter”) relating to data processing
that it, individually or jointly, develops or discloses under this Agreement,
except to the extent such use (a) infringes the patent rights of a Coors
Recipient or EDS Provider and is not otherwise authorized under this Agreement
or (b) involves a disclosure of the Confidential Information of a Coors
Recipient or EDS Provider.  Each EDS
Provider specifically acknowledges that any information relating to the
manufacturing of beer or other malt-based or
alcoholic beverages learned by EDS Personnel during the course of (and
as a result of) providing Services is not Residual Subject Matter under this
Section.


 


7.6                                 Non-Infringement


 


Each Coors
Recipient and EDS Provider shall perform its obligations 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.


 


7.7                                 Disabling
Code


 


No EDS
Provider shall insert into any Software any code which would have the effect of
disabling any Software, Equipment or portion of the Services.  With respect to any disabling code that may
be part of the Software, no EDS Provider shall invoke such disabling code at
any time (whether during or after the Term (or the applicable Local Country
Agreement Term)) for any reason.


 


33

















 


7.8                                 [*****]


 


Article 8


CONFIDENTIALITY


 


8.1                                 Definitions


 


(a)                      “Disclosing Party” means any
Coors Recipient or EDS Provider furnishing Confidential Information and
“Receiving Party” means, when the Disclosing Party is an EDS Provider, any
Coors Recipient receiving the Confidential Information disclosed by such EDS
Provider, and, when the Disclosing Party is a Coors Recipient, any EDS Provider
receiving the Confidential Information disclosed by such Coors Recipient.


 


(b)                     “Confidential Information” means
information designated as confidential or which ought to be considered as
confidential from its nature or from the circumstances surrounding its
disclosure.  EDS Confidential
Information includes, without limiting the generality of the foregoing, EDS
Software.  Coors Confidential Information
includes, without limiting the generality of the foregoing, Coors Software and
information relating to manufacturing, distributing and selling beer or other
malt-based or alcoholic beverages.  The Disclosing Party’s Confidential
Information includes, without limiting the generality of the foregoing, the
terms of this Agreement, and information:


 


(i)                         relating to the Disclosing
Party’s or its Affiliates’ software or hardware products or services, or to its
or its Affiliates’ research and development projects or plans;


 


(ii)                      relating to the Disclosing
Party’s or its Affiliates’ business, policies, strategies, operations,
finances, plans or opportunities, including the identity of, or particulars
about, the Disclosing Party’s or its Affiliates’ clients or suppliers; and


 


(iii)                   marked “Official Business Use Only,”
“Confidential,” “Highly Confidential” or otherwise identified as confidential,
restricted, secret or proprietary, including, without limiting the generality
of the foregoing, information acquired by inspection or oral disclosure
provided such information was identified as confidential at the time of
disclosure or inspection and is confirmed in writing within ten Business Days
after the disclosure or inspection.


 


Notwithstanding
the foregoing, Confidential Information does not include information which the
Receiving Party can establish:


 


34

















 


(A)                              has
become generally available to the public or commonly known in either Party’s
business other than as a result of a breach by the Receiving Party of any
obligation to the Disclosing Party;


 


(B)                                was
known to the Receiving Party prior to disclosure to the Receiving Party by the
Disclosing Party by reason other than having been previously disclosed in
confidence to the Receiving Party;


 


(C)                                was
disclosed to the Receiving Party on a non-confidential basis by a third party
who did not owe an obligation of confidence to the Disclosing Party with
respect to the disclosed information; or


 


(D)                               was
independently developed by the Receiving Party without any recourse to any part
of the Confidential Information.


 


(c)                      “Confidential Materials” means
the part of any tangible media upon or within which any part of the
Confidential Information is recorded or reproduced in any form, excluding any
storage device which forms a part of computer hardware.


 


8.2                                 Rights,
Restrictions and Obligations of the Receiving
Party


 


(a)                      During the Term, the Receiving
Party may:


 


(i)                         disclose Confidential
Information received from the Disclosing Party only to its subcontractors,
equipment lessors, agents, representatives, advisors, employees, officers,
directors and Affiliates who have a need to know such information exclusively
for the purpose of executing its obligations or exercising its rights under
this Agreement;


 


(ii)                      reproduce the Confidential
Information received from the Disclosing Party only as required to execute its
obligations or exercise its rights under this Agreement; and


 


(iii)                   disclose Confidential Information as
required by law, provided the Receiving Party gives the Disclosing Party prompt
notice prior to such disclosure to allow the Disclosing Party to make a
reasonable effort to obtain a protective order or otherwise protect the
confidentiality of such information.


 


(b)                     Except as otherwise specifically
provided in this Agreement, the Receiving Party shall not during the Term (or
the applicable Local Country Agreement Term) and after expiration or earlier
termination hereof:


 


(i)                         disclose, in whole or in part,
any Confidential Information received directly or indirectly from the
Disclosing Party; or


 


(ii)                      to the maximum extent such
prohibition is permitted under applicable law, sell, rent, lease, transfer,
encumber, pledge, reproduce, publish, transmit, translate, modify, reverse
engineer, compile, disassemble or otherwise use the Confidential Information in
whole or in part.


 


35

















 


(c)                      The Receiving Party shall
exercise the same care in preventing unauthorized disclosure or use of the
Confidential Information that it takes to protect its own information of a
similar nature, but in no event less than reasonable care.  Reasonable care includes, without limiting
the generality of the foregoing:


 


(i)                         informing the Receiving
Party’s subcontractors, agents, representatives and Affiliates who have access
to the Confidential Information, and, where applicable, their respective
advisors, directors, officers and employees, of the confidential nature of the
Confidential Information and the terms of this Agreement, directing them to
comply with these terms, and, if the circumstances warrant, or upon the
Disclosing Party’s reasonable request, obtaining their written acknowledgment
that they have been so informed and directed, and their written undertaking to
abide by these terms; and


 


(ii)                      notifying the Disclosing Party
immediately upon discovery of any loss, unauthorized disclosure or use of
Confidential Information, or any other breach of this Article by the Receiving
Party, and assisting the Disclosing Party in every reasonable way to help the
Disclosing Party regain possession of the Confidential Information and to
prevent further unauthorized disclosure or use.


 


(d)                     The Receiving Party acknowledges
that:


 


(i)                         the Disclosing Party possesses
and will continue to possess Confidential Information that has been created,
discovered or developed by or on behalf of the Disclosing Party, or otherwise
provided to the Disclosing Party by third parties, which information has
commercial value and is not in the public domain;


 


(ii)                      unauthorized use or disclosure of
Confidential Information is likely to cause injury not readily measurable in
monetary damages, and therefore irreparable;


 


(iii)                   in the event of an unauthorized use
or disclosure of Confidential Information, the Disclosing Party shall be
entitled, without waiving any other rights or remedies, to such injunctive or
equitable relief as may be deemed proper by any court of competent
jurisdiction;


 


(iv)                  subject to the rights expressly
granted to the Receiving Party in this Agreement, (A) the Disclosing Party
and its licensors retain all right, title and interest in and to the
Confidential Information, including without limiting the generality of the
foregoing, title to all Confidential Materials regardless of whether provided
by or on behalf of the Disclosing Party or created by the Receiving Party, and
(B) at no time during or after the Term (or the applicable Local Country
Agreement Term) shall the Receiving Party have, and the Receiving Party hereby
waives, any interest in or statutory or common law lien, claim or encumbrance
on the Confidential Information of the Disclosing Party; and


 


(v)                     any disclosure by the
subcontractors, agents, representatives, advisors, directors, officers,
employees and Affiliates of the Receiving Party and, where applicable, their
directors, officers and employees shall be deemed to be disclosure by the
Receiving Party and the Receiving Party shall be liable for any such disclosure
as if the Receiving Party had disclosed the Confidential Information.


 


36

















 


8.3                                 Return/Destruction of Confidential
Information


 


(a)                      Subject to the rights expressly
granted to the Coors Recipients in this Agreement with respect to the EDS
Providers’ Confidential Information, immediately upon the Disclosing Party’s
request, and at the expiration or earlier termination of this Amended and
Restated Global Master Services Agreement or a Local Country Agreement, as
applicable, the Receiving Party shall unconditionally:


 


(i)                                     return
all Confidential Materials, including, without limitation, all originals,
copies, reproductions and summaries of Confidential Information; and


 


(ii)                                  destroy
all copies of Confidential Information in its possession, power or control, which
are present on magnetic media, optical disk, volatile memory or other storage
device, in a manner that assures the Confidential Information is rendered
unrecoverable.


 


Upon completion of those tasks an officer of the Receiving Party shall
provide written confirmation to the Disclosing Party that the requirements of
this Section have been complied with.


 


(b)                     The Disclosing Party may visit the
Receiving Party’s premises, upon reasonable prior notice and during normal
business hours, to review the Receiving Party’s compliance with the terms of
this Section.


 


8.4                                 Nondisclosure Agreements


 


Each EDS
Provider shall require each of its employees and each Subcontractor to be bound
by a confidentiality agreement with confidentiality restrictions that are no
less restrictive than those set forth herein.


 


8.5                                 Privacy
Laws


 


(a)                      The Coors Recipients and EDS
Providers acknowledge and agree that the Coors Recipients will be and remain
the controller of the Coors Data for purposes of all applicable laws,
regulations and codes of practice relating to data privacy, personal data,
transborder data flow, human rights and data protection (collectively, the
“Privacy Laws”), with rights to determine the purposes for which the Coors Data
is processed, and nothing in this Agreement will restrict or limit in any way
the Coors Recipients’ rights or obligations as owner and/or controller (or
Affiliate of the owner and/or controller) of the Coors Data for such
purposes.  As the controller of the Coors
Data, Coors is directing the EDS Providers to process the Coors Data solely in
accordance with the terms of this Agreement, including without limitation,
terms relating to security, data retention, data disclosure and the
instructions of the Coors Recipients’ authorized representatives given pursuant
to, and in accordance with, the provisions of this Agreement (including the
Change Control Procedures).  The EDS
Providers shall assist any Coors Recipient with respect to subject access
requests made pursuant to applicable Privacy Laws to the extent such EDS
Provider can reasonably do so using the systems, Software, Equipment and
personnel then being utilized to perform the Services.


 


37



















(b)                     The Coors
Recipients and EDS Providers also acknowledge and agree that the EDS Providers
have certain responsibilities prescribed by applicable Privacy Laws as a
processor of the Coors Data, and the EDS Providers hereby acknowledge and
undertake to comply with such responsibilities to the extent required for full
compliance therewith by processors of data and agrees that such
responsibilities will be considered as a part of the Services to be provided by
the EDS Providers under this Agreement; provided, however, that
in the event that Privacy Laws to which the activities contemplated by this
Agreement are subject are modified or new Privacy Laws that are applicable to
such activities come into effect, the EDS Providers will work with the Coors
Recipients in an effort to continue to comply with such Privacy Laws, as so
modified or added, but to the extent that such modifications or additions
expand the scope or increase the cost of the activities previously undertaken
by the EDS Providers pursuant to this Section, the EDS Providers and Coors
Recipients will address such modified or new Privacy Laws in accordance with
the Change Control Procedure.


 


Article 9

CONTRACT MANAGEMENT


 


9.1                                 Project Executives


 


(a)                      On or before
the Commencement Date, and from time to time thereafter, Coors and (subject to
Section 6.3 (Key EDS Positions)) EDS shall each designate an individual as
its project executive (the “Project Executive”).  EDS’ Project Executive shall be the executive account manager for
the Coors account (including the accounts of the Coors Recipients which are
parties to Local Country Agreements) and shall devote substantially full time
and effort to the Coors account.  Coors’
Project Executive shall be authorized to act as the primary contact for all
Coors Recipients with respect to all matters relating to this Agreement.   EDS’ Project Executive shall be authorized
to act as the primary contact for all EDS Providers with respect to all matters
relating to this Agreement.


 


9.2                                 Steering Committee


 


On or before the
Commencement Date, the Parties shall form a joint committee (the “Steering
Committee”), consisting of three (3) members selected from time to time by
Coors and three (3) members selected from time to time by EDS.  On or before the Amendment Effective Date,
the Parties shall expand the Steering Committee so that it consists of four (4)
members selected by Coors and four (4) members selected by EDS.  The members of the Steering Committee, as it
is expanded at the Amendment Effective Date, shall consist of (i) the
Relationship Managers and the Contract Administrators from each of Coors and
CBL, and (ii) the Client Delivery Executive and Program Manager from each
of EDS and EDS-UK.  The Steering
Committee shall meet monthly during the pendency of the completion of the
Transition Services and the CBL Transition Services, and quarterly during all
other parts of the Term (and the applicable Local Country Agreement Term).  The Steering Committee shall (i) review
monthly performance reports for the period since its last meeting,
(ii) review the overall performance of the EDS Providers in providing the
Services, (iii) attempt to resolve any outstanding issues,
(iv) discuss long-term strategies for ensuring the Coors Recipients
receives the information technology services they require, and (v) such
other matters as the Parties desire.


 


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Upon the execution of any
Local Country Agreement, the Parties shall determine whether it would be
appropriate to expand the number of representatives of each Party on the
Steering Committee, and if they mutually determine it is appropriate, agree
upon the number of additional representatives of each Party to participate on
the Steering Committee.


 


9.3                                 Use of Coors Facilities


 


(a)                      On the
Commencement Date and continuing throughout the Term, Coors shall make
available to EDS [*****] space in Coors’ facilities in Golden, Colorado,
Memphis, Tennessee, and Shenandoah, Virginia, for use by Transferred Employees
(or their respective replacements) and other EDS Personnel as reasonably
necessary to provide the Services (excluding Services to be provided from the
Data Center and/or the Sacramento Service Management Center and/or New
Zealand).  In addition, beginning on the
Amendment Effective Date and continuing through the remainder of the Term (or
until such earlier time as the Local Country Agreement between CBL and EDS-UK
is terminated), CBL shall make available to EDS and EDS-UK [*****] space in
CBL’s facilities in Burton-on-Trent, England and Leeds, England, for use by
Non-United States Transitioned Employees transitioned by CBL to EDS-UK (or
their respective replacements) and other EDS Personnel as reasonably necessary
to provide the Services (excluding Services to be provided from New Zealand or
the United States).  For the avoidance
of doubt, in the case of the [*****] space at Leeds, England such space shall
be made available on a non-exclusive basis with CBL retaining the right to move
such Non-United States Transitioned Employees transitioned by CBL to EDS-UK (or
their respective replacements) and other EDS Personnel as permitted pursuant to
this Section in such space to alternative space within the same building with
reasonable advance notice. Each Coors Recipient shall determine in its
reasonable discretion the space to be provided to such EDS Personnel; provided,
that such space shall, if available, be comparable to the space provided to
similarly situated Coors or CBL employees. 
Each Coors Recipient shall also provide at each of the foregoing
locations, [*****] (i) a staging area for deployment of desktop and
notebook computers, and (ii) a secure storage area for storage of spare
equipment used to provide the Services. 
The EDS Providers shall not be required to [*****].  The Coors Recipients shall provide at their
expense shared office equipment and services such as photocopiers, mail
service, janitorial service, heat, light, and air conditioning as reasonably
required by the EDS Personnel, to provide the Services, up to but not exceeding
the level provided by the Coors Recipients for the Transferred Employees or
Non-United States Transitioned Employees immediately before any applicable
Effective Date.


 


(b)                     After the
migration of the Services provided from the Golden Data Center on of the
Commencement Date to EDS’ Sacramento Service Management Center, Coors shall
also make available to EDS [*****] space at the appropriate Coors facility(ies)
as is reasonably necessary to house equipment that was not moved as part of the
migration to EDS’ Sacramento Service Management Center and is used to provide
the Services.


 


39

















 


(c)                      Each EDS
Provider shall:  (i) use the space
provided to such EDS Provider pursuant to this Section for the sole purpose of
providing the Services; (ii) comply with the leases and other agreements
applicable to such space, including, without limitation, the tenancy agreement
entered into between EDS-UK and CBL pursuant to the Local Country Agreement
between EDS-UK and CBL relating to the use of the data centre space within the
CBL facilities in Burton-on-Trent, England (the “Tenancy Agreement”);
(iii) comply with all policies and procedures governing access to and use
of such space; and (iv) at the end of Term or on such earlier date that
such EDS Provider ceases to use such space return such space to the appropriate
Coors Recipient in the same condition it was in on the applicable Effective
Date, ordinary wear and tear excepted.


 


9.4                                 Coors Office Space at Data Center


 


Each EDS Provider shall
provide to Coors [*****] office space at any Data Center used to provide
Services for the occasional use of the Coors Project Executive or his or her
designees when visiting such Data Center. 
The Coors Project Executive or his or her designees shall comply with
all policies and procedures governing access to and use of such Data Centers
and shall leave such space in the same condition it was in immediately before
they used the space, ordinary wear and tear excepted.


 


9.5                                 Meetings


 


The Coors Recipients and
EDS Providers shall hold the meetings set forth in Schedule 9.5 (or the
applicable Schedule 9.5(LCA)) at the frequency set forth therein.  [*****] 
An EDS Provider shall distribute an agenda sufficiently before each
meeting to enable the participants to prepare for it.  An EDS Provider shall distribute minutes of each meeting within
seven days after its conclusion, and the meeting participants shall sign such
minutes once they have been approved.


 


9.6                                 Reports


 


EDS shall prepare and
deliver to Coors the reports described in Attachment A-5 to Exhibit A by
the respective deadlines specified elsewhere in this Agreement or, if not so
specified, within five (5) Business Days after the end of each calendar month.
Such reports shall be in such format and medium and shall include such
information as Coors may reasonably request.


 


9.7                                 Procedures Manual


 


(a)                      Each EDS
Provider shall, [*****] after the Effective Date applicable to it, deliver to
Coors for review and comment a draft of a manual (each a “Procedures Manual”)
describing in detail how such EDS Provider shall perform the Services to be
performed by such EDS Provider, the Equipment and Software used to provide the
Services, the documentation (such as operations manuals, user guides, and forms
of Service Level reports and requests for approvals or information) which
provides further information regarding the Services, and the interfaces between
such EDS Provider and its corresponding Coors Recipient and Coors.  Such Procedures Manual shall describe the
activities such EDS Provider proposes to undertake in order to provide the
Services, including, where appropriate,


 


40

















 


those direction,
supervision, monitoring, quality assurance, staffing, reporting, planning and
oversight activities normally undertaken at facilities that provide services of
the type such EDS Provider shall provide under this Agreement, and further
including acceptance testing and quality assurance procedures approved by
Coors.  Such EDS Provider shall
incorporate any reasonable comments and suggestions made by Coors [*****]
Coors’ receipt of such EDS Provider’s draft of its Procedures Manual and shall
deliver a revised Procedures Manual to Coors [*****] after the Effective Date
applicable to it.  Such EDS Provider’s
final Procedures Manual shall be subject to Coors’ approval.  Notwithstanding the provisions of subsection
(b) below, the timeframes in this subsection (a) shall also be applicable to
the revisions of the EDS/Coors Procedures Manual necessary as a result of the
execution of the Local Country Agreement between EDS-UK and CBL and the
migration of the Coors Help Desk from the Sacramento Data Center to New
Zealand.


 


(b)                     The EDS
Providers shall update their respective Procedures Manuals throughout the Term
(including, if necessary, within thirty (30) days following the execution by
another EDS Provider of a Local Country Agreement) to reflect changes in the
Services and the procedures and resources used to provide the Services (including,
for purposes of clarity, any changes an EDS Provider is required to make to its
provision of the Services as a result of another EDS Provider’s execution of a
Local Country Agreement).  Each EDS
Provider shall also update its Procedures Manual within thirty (30) days of its
receipt of a request to do so from Coors, to address the matters identified in
Coors’ request.  Updates to the
Procedures Manuals shall also be provided to Coors for review, comment and approval.


 


(c)                      Each EDS
Provider shall perform the Services in accordance with its then-existing
Procedures Manual.  In the event of a
conflict between the provisions of this Agreement and a Procedures Manual, the
provisions of this Agreement shall control.


 


9.8                                 Technical Change Control


 


EDS Providers shall
implement any changes in the technical environments and systems used to provide
the Services in accordance with Section 2.3.10 of Exhibit A
and with the applicable Procedures Manual. 
Until an EDS Provider’s Procedures Manual is finalized (or updated as
described in Section 9.7(b) above), such EDS Provider shall follow Coors’ or
the applicable Coors Recipient’s existing procedures for the implementation of
technical changes.  Notwithstanding
anything to the contrary in any Procedures Manual or any Coors Recipient’s
existing procedures:


 


(a)                      No EDS
Provider shall make any change that would have a material effect on the
Services (including, without limitation, changes in Equipment, Software and
systems configurations, changes that would affect the remigration of the
Services back to the Coors Recipients or to a third party service provider,
system-architecture changes, or changes that would affect end users), Service
Levels, the amounts payable to the EDS Providers under this Agreement or other
costs and expenses of the Coors Recipients without Coors’ prior written
consent, [*****].  Notwithstanding the
foregoing, the EDS Providers may make temporary changes required by an
emergency but shall, if reasonably practicable, contact appropriate Coors
personnel to obtain prior approval.  The
EDS Providers shall promptly document and report such emergency changes to
Coors.


 


41

















 


(b)                     The EDS
Providers shall move programs from development and test environments to production
environments in a controlled and documented manner, and shall not permit any
changes to be introduced into such programs during such move without first
obtaining Coors’ approval.


 


9.9                                 Contract Change Control


 


(a)                      From time to
time during the Term, Coors or EDS may propose changes in or additions to the
Services or other aspects of this Agreement. 
Subject to clause (d) below, all such changes shall be implemented
pursuant to the procedures set forth in this Section (the “Change Control
Procedures”).


 


(b)                     If Coors
desires to propose a change in or addition to the Services or other aspects of
this Agreement (including any changes in or additions to the Services for which
there is a Local Country Agreement), Coors shall deliver a written notice to
the EDS Project Executive describing the proposal.  EDS shall respond to such proposal as promptly as reasonably
possible by preparing [*****] and delivering to the Coors Project Executive a
written document (a “Change Control Document”), indicating:  (i) the effect of the proposal, if any,
on the amounts payable by the Coors Recipients hereunder (which effect shall be
determined in the manner set forth in Section 12.4 (Charges Pursuant to
Change Control Procedures)) and the manner in which such effect was calculated;
(ii) the effect of the proposal, if any, on Service Levels; (iii) the
anticipated time schedule for implementing the proposal; and (iv) any
other information requested in the proposal or reasonably necessary for Coors
to make an informed decision regarding the proposal, including, without
limitation, the effect of the proposal on [*****] relating to their human
resources, Equipment and Software.  If
EDS desires to propose a change in or addition to the Services or other aspects
of this Agreement, it may do so by preparing [*****] and delivering a Change
Control Document to the Coors Project Executive.  A Change Control Document shall constitute an offer by EDS to
implement the proposal described therein on the terms set forth therein, and
shall be [*****].


 


(c)                      No change in
or addition to the Services or any other aspect of this Agreement shall become
effective without the written approval of both the Coors Project Executive and
the EDS Project Executive.  If Coors
elects to accept the offer set forth in the Change Control Document, as
evidenced by the written approval of the Coors Project Executive, any changes
in or additions to the Services described in the Change Control Document shall
thereafter be deemed “Services,” any other changes described in the Change
Control Document shall be deemed to have amended this Agreement, and the
Parties shall agree on any further modifications to the Agreement required to
reflect the Change Control Document.


 


(d)                     Routine
changes made in the ordinary course of the EDS Providers’ provision of the
Services that are performed within the then-existing chargeable resources used
to provide the Services and that do not affect Service Levels (such as changes
to operating protocols, schedules and Equipment configurations) shall be made
[*****] Coors Recipients and shall be made and documented in accordance with
the applicable Procedures Manual(s).


 


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9.10                           [*****]


 


43

















 


9.11                           Subcontracting


 


(a)                      No EDS
Provider shall delegate or subcontract any of its obligations under this
Agreement without the applicable Coors Recipient’s prior written consent, which
may be withheld in such Coors Recipient’s sole discretion.  Notwithstanding the preceding sentence, but
subject to clauses (c) and (d) below, the EDS Providers may, in the ordinary
course of business: (i) enter into umbrella-type subcontracts (i.e., those
that apply to Coors Recipients as well as other clients of the EDS Providers)
with third parties to provide support services which will not cause such third
parties to directly interact with Coors Recipients’ personnel or end users
(such as umbrella software licenses, equipment purchase agreements, and
agreements for janitorial or plumbing services); and (ii) subcontract with
third parties to provide services that are specific to the Coors Recipients
(including subcontracts which might cause such third parties to directly
interact with the Coors Recipients’ personnel or end users) provided that each
such subcontract (together with any related subcontracts) [*****].  Schedule 9.11 and any applicable
Schedule 9.11(LCA) respectively list each EDS Provider subcontractor, for
which a Coors Recipient’s approval would otherwise be required pursuant to this
Section 9.11(a), that has been pre-approved by the applicable Coors
Recipient as of the Commencement Date or as of an applicable Local Country
Agreement Effective Date and the scope of services for which such approval has
been granted.  All subcontracts that are
Assigned Contracts or Local Country Assigned Contracts shall be deemed to be
approved by the Coors Recipients.


 


(b)                     If an EDS
Provider desires to delegate or subcontract any of its obligations under this
Agreement in circumstances under which Coors’ approval is required pursuant to
clause (a), it shall submit to Coors in writing a proposal specifying
(i) the specific tasks which such EDS Provider proposes to subcontract,
(ii) the reason for having a subcontractor perform such tasks instead of
such EDS Provider, (iii) the identity and qualifications of the proposed
subcontractor and (iv) any other information reasonably requested by Coors
or relevant to Coors’ approval of the subcontractor.


 


(c)                      If an EDS
Provider delegates or subcontracts any of its obligations under this Agreement
(regardless of whether Coors’ prior written consent to such delegation or
subcontracting is required pursuant to clause (a) of this Section 9.11),
such EDS Provider shall include in such subcontract provisions (A) substantially
similar to Article 8 (Confidentiality), Article 10 (Audits), Sections 18.3
through 18.8, inclusive (Dispute Resolution) and (B) any other provisions
necessary for such EDS Provider to fulfill its obligations under this Agreement
(including without limitation, the obligation and restrictions set forth in
Sections 6.7, 6.8, 8.4 and clause (d) below).  With respect to any subcontract entered into on or after the
Commencement Date, for which Coors’ consent is required pursuant to clause (a)
of this Section 9.11, each EDS Provider shall, in addition to including
the clauses identified in the preceding sentence, use commercially reasonable
efforts to include in such subcontract a provision naming Coors as an intended
third-party beneficiary of such subcontract. 
In addition, no EDS Provider shall disclose any Coors Confidential
Information to any subcontractor until such subcontractor has agreed in writing
to assume the obligations described in Article 8 (Confidentiality).


 


(d)                     Coors may
revoke approval of a subcontractor previously approved, or object to an EDS
Providers’ use of a subcontractor for which Coors’ approval was not required


 


44

















 


pursuant to clause (a),
if the subcontractor’s performance has been materially deficient, good faith
doubt exists concerning the subcontractor’s ability to render future
performance, or there have been material misrepresentations by or concerning
the subcontractor.  Coors may, in its
discretion, allow EDS up to thirty (30) days to convince Coors that such
revocation or objection is unwarranted. 
Upon such revocation or objection, the subcontracting EDS Provider shall
remove such subcontractor from performing the Services.


 


(e)                      The EDS
Providers shall remain liable for obligations performed by subcontractors to
the same extent as if an EDS Provider’s employee had performed such
obligations, and for purposes of this Agreement such work shall be deemed work
performed by the EDS Providers.


 


(f)                        EDS
acknowledges that it supports and recognizes the need to utilize small, small
disadvantaged minority and/or women-owned business enterprises (“SDWBEs”) in
the United States.  In support of such
initiative within the United States, EDS as a corporation has set a goal of
spending [*****] with SDWBEs.  EDS’
“Supplier Diversity Database” contains hundreds of certified SDWBEs, and EDS
will use reasonable efforts to use these entities when appropriate as EDS
Subcontractors to perform the Services in the United States.   In the United States, EDS uses national
associations and councils, state and federal government agencies, and local
chamber organizations to gain access to SDWBEs.  The EDS Supplier Diversity team is active in local, regional and
national organizations. EDS also participates in trade shows, vendor fairs, and
annual commemorative events.  EDS
designs and facilitates classes, seminars and site visits to educate, share and
enhance minority and women suppliers. 
In furtherance of the foregoing goals and commitments, for Services
performed by EDS in the United States, EDS shall comply with the “Coors
Supplier Toolkit” attached hereto as Exhibit F including, without
limitation, by submitting a report to the Coors Project Executive, in the form,
and at the frequency specified in such Exhibit F.  If Coors notifies EDS that Coors believes
that EDS’ use of minority-owned subcontractors is unreasonably low, the
appropriate EDS officials shall meet with Coors to discuss the reasons for the
low usage, and EDS shall develop and implement a plan reasonably anticipated to
increase such usage in the United States as practicable given the nature and
scope of the Services and the quality requirements of Coors.


 


Article 10

AUDITS


 


10.1                           Audit Rights


 


Each EDS Provider shall
maintain at all times while this Article survives (as specified in
Section 10.4 (Survival)) a complete audit trail of all financial and
non-financial transactions under this Agreement for the preceding three (3)
complete calendar years (or the preceding seven (7) calendar years for Services
performed under the Local Country Agreement between EDS-UK and CBL) in
accordance with good practice in its industry and generally accepted accounting
principles, consistently applied.  The
EDS Providers shall provide to the Coors Recipients, their internal and
external auditors, inspectors, regulators and such other representatives as
Coors may designate from time to time access at reasonable times and after
reasonable notice (unless circumstances reasonably preclude such notice) to (i) the
parts of any facility at which or from


 


45

















 


which an EDS Provider is
providing the Services (subject to compliance with such EDS Provider’s safety
and security policies), (ii) EDS Personnel providing the Services, and
(iii) all relevant data and records relating to the Services, for the
purpose of performing audits and inspections of the Coors Recipients and their
business, to verify the integrity of the Coors Recipients’ data, to examine the
systems that process, store, support and transmit that data, and to examine the
EDS Providers’ charges and performance of the Services under this
Agreement.  The foregoing audit rights
shall include, without limitation, audits (A) of practices and procedures,
(B) of systems, (C) of general controls and security practices and
procedures, (D) of disaster recovery and backup procedures, (E) of
the efficiency (in accordance with Section 9.10 [*****] of the EDS
Providers in performing the Services, (F) of the EDS Providers charges
under the Agreement and (G) necessary to enable the Coors Recipients and
their Affiliates to meet applicable regulatory requirements.  The EDS Providers shall provide full
cooperation to such auditors, inspectors, regulators and representatives, including
the installation and operation of audit software.


 


10.2                           Payments


 


If an audit reveals that
a EDS Provider has overcharged a Coors Recipient for Services during the
audited period, such EDS Provider shall reimburse the applicable Coors
Recipient for (i) such overpayment [*****].  Each EDS Provider shall pay such amount to the appropriate Coors
Recipient within thirty (30) days after the Coors Recipient’s written request
(which shall include the relevant portions of the audit report).


 


10.3                           EDS and External Audits


 


EDS shall promptly report
to Coors any material issues or problems discovered by any EDS Provider as a
result of any internal or external review or audit conducted by the EDS
Providers or their Affiliates, or by their respective contractors, agents or
representatives relating to this Agreement or the Services, including reports
of corrective actions taken as a result of such review or audit.  EDS shall make available promptly to Coors
each year upon request [*****] an external audit complying with SAS 70 Type II
(or any successor standard approved by Coors) of the EDS Provider’s practices
and procedures relating to its performance of the Services hereunder.


 


10.4                           Survival


 


This Article shall
survive the expiration or earlier termination of the Term or any Local Country
Agreement Term and shall continue to the third (3rd)  anniversary of the last day an EDS Provider provides any
Termination Assistance.


 


46

















 


Article 11

INSURANCE; RISK OF LOSS


 


11.1                           Required Insurance Coverages


 


Throughout the Term EDS
shall maintain in force the following insurance coverages:


 


(a)                      Commercial
General Liability Insurance, including Products/Completed Operations and
Advertising Injury coverage, with a minimum combined single limit of Ten
Million Dollars ($10,000,000) per occurrence;


 


(b)                     Worker’s
Compensation Insurance, including occupational illness or disease coverage,
disability insurance (or other similar social insurance in accordance with the
laws of the country, state or territory exercising jurisdiction over EDS
Personnel providing the Services) and Employer’s Liability Insurance with a
minimum limit of One Million Dollars ($1,000,000) per employee by accident/ One
Million Dollars ($1,000,000) per employee by disease/ One Million Dollars
($1,000,000) policy limit by disease;


 


(c)                      Professional
Liability (Errors and Omissions Liability Insurance) in an amount of at least
Ten Million Dollars ($10,000,000) per occurrence;


 


(d)                     Automotive
Liability Insurance covering use of all owned, non-owned and hired automobiles
with a minimum combined single limit of One Million Dollars ($1,000,000) per
occurrence for bodily injury and property damage liability;


 


(e)                      “All Risk”
Property Insurance, including, without limitation, coverage against damage by
earthquake or flood, in an amount equal to the replacement value of the
Equipment; and


 


(f)                        Crime
Insurance (including Computer Fraud Insurance) in a minimum amount of Ten
Million Dollars ($10,000,000) per loss.


 


11.2                           General Insurance Provisions


 


All insurance policies
EDS is required to carry pursuant to this Article shall:  (i) be primary as to EDS’ negligence
and non-contributing with respect to any other insurance or self-insurance
Coors may maintain; (ii) for the policies described in
Sections 11.1(a) and 11.1(d), name Coors, its Affiliates and their
respective officers, directors and employees as additional insureds, as such
parties’ interests may appear with respect to this Agreement; (iii) for
the policies described in Sections 11.1(e) and 11.1(f), name Coors, its
Affiliates and their respective officers, directors and employees as “Loss
Payee;” (iv) be provided by reputable and financially responsible
insurance carriers with a Best’s minimum rating of “A-” (or any future equivalent);
and (v) require the insurer to notify Coors in writing at least thirty
(30) days in advance of cancellation or material modification.  In addition, the insurance policies EDS is
required to carry pursuant to clauses, 11.1(a), 11.1(b), 11.1(d), and 11.1(e)
shall be endorsed to provide for a waiver of subrogation against Coors, its
Affiliates and their respective officers, directors,


 


47

















 


employees, agents,
successors and assigns.  EDS shall cause
its insurers to issue to Coors on or before the Commencement Date and each
policy renewal date certificates of insurance evidencing that the coverages and
policy endorsements required by this Article are in effect.


 


11.3                           Risk of Loss


 


Each Coors Recipient and
EDS Provider shall be responsible for risk of loss of, and damage to, any
Equipment, Software or other materials in its possession or under its control.


 


Article 12

CHARGES


 


12.1                           Charges in Exhibit C


 


(a)                      Subject to
the other provisions of this Agreement, each Coors Recipient shall pay to its
counterpart EDS Provider the amounts set forth in Exhibit C applicable
to Services performed for such Coors Recipient as payment in full for the
Services and all other obligations performed by the EDS Providers during the
Term (or the Local Country Agreement Term, as applicable).    The
Local Country Agreements shall provide for invoicing by each EDS Provider and
payment by the corresponding Coors Recipient in local currency for Services
performed for such Coors Recipient.


 


(b)                     Except as
otherwise expressly set forth in this Agreement, the Coors Recipients shall not
be obligated to pay any amounts to the EDS Providers for their performance of
the Services and their other obligations under this Agreement other than the
amounts set forth in Exhibit C. 
Without limiting the foregoing, the Coors Recipients shall not be
required to [*****] provided, however, that the Coors Recipients acknowledge
that the EDS Providers’ personnel rates do not include [*****].  If the Term or any Local Country Agreement
Term, as applicable, is extended pursuant to Sections 2.2 or 17.6, the amounts
and terms set forth in Exhibit C and in this Agreement for the calendar
year ending December 31, 2010 shall continue to apply during the extension
period(s) except as provided in Schedule 17.2. 
Throughout the Term (or Local Country Agreement Term, as applicable),
and consistent with their other obligations pursuant to this Agreement, the EDS
Providers shall use commercially reasonable efforts to perform the Services in
a manner which [*****] to the Coors Recipients, including without limitation
through the efficient use of resources.


 


12.2                           Managed and Pass-Through Expenses


 


(a)                      Each EDS
Provider shall promptly (i) review for accuracy any third party invoice
for any Managed Expenses, (ii) use commercially reasonable efforts to
resolve with the invoicing third-party any discrepancy or inaccuracy in such
invoice, and (iii) send the original third party invoice (together with
all relevant information regarding any disputed items on such invoice) to the
Coors Project Executive (or his or her designee for a Local Country Agreement)
not less than ten (10) Business Days prior to the date such invoice is payable;
provided, that


 


48

















 


voice and
telecommunications invoices shall be sent directly to the applicable Coors
Recipient by the invoicing party and the EDS Providers shall not have the
responsibilities set forth in clauses (i), (ii) and (iii) above with respect
thereto.  Notwithstanding the foregoing
sentence, if (A) an EDS Provider receives such invoice from the invoicing
third party within such ten (10) Business Day period, or (B) an EDS
Provider’s compliance with clause (iii) above will not afford it sufficient time
to comply with clauses (i) and (ii) above, such EDS Provider shall immediately
upon receipt forward a copy of such invoice to the Coors Project Executive (or
his or her designee for a Local Country Agreement) via facsimile with a clear
notation stating that the invoice has not yet been reviewed by such EDS
Provider, and such EDS Provider shall promptly thereafter perform the functions
described in clauses (i) and (ii) above. 
[*****]  Each EDS Provider shall
use commercially reasonable efforts to minimize the amount of Managed
Expenses.  Coors shall have the right,
in its sole discretion to revise, terminate or replace any contract resulting
in Managed Expenses, [*****] provided, however, that any revision, termination
or replacement of any Third Party Contract identified as a “Managed Contract”
on Schedules 5.3(a)(i) or 5.3(a)(ii) (or a Schedule 5.3(a)(i) (LCA) or
Schedule 5.3(a)(ii) (LCA)) shall be subject to the Change Control
Procedures specified in Section 12.4


 


(b)                     Each EDS
Provider shall review for accuracy the third party invoice for any Pass-Through
Expenses and shall pay when due to such third party all valid amounts set forth
on such invoice.  Such EDS Provider
shall include the amount of such payment on its next invoice to its
corresponding Coors Recipient and shall include with such invoice a copy of the
third party invoice.  [*****]  Each EDS Provider shall use commercially
reasonable efforts to minimize the amount of Pass-Through Expenses.  With respect to materials or services paid
for on a Pass-Through Expenses basis, each Coors Recipient shall have the right
to:  (i) obtain such materials or
services directly from a third party, (ii) designate the third party
source for such materials or services; (iii) designate the particular
materials or services its corresponding EDS Provider shall obtain;
(iv) require its corresponding EDS Provider to identify and consider
multiple sources for such materials or services; and (v) review and
approve the Pass-Through Expenses for such materials or services before its
corresponding EDS Provider enters into a subcontract for such materials or
services.  No Coors Recipient shall
require any EDS Provider to incur obligations for Pass-Through Expenses beyond
the then-remaining portion of the Term (or Local Country Agreement Term, as
applicable).


 


12.3                           Taxes


 


(a) [*****]


 


(b) [*****]


 


49

















 


(c) [*****]


 


(d) [*****]


 


50

















 


(e)          The Coors Recipients and
EDS Providers shall cooperate with each other to enable each of them to
determine accurately their respective tax liabilities and to reduce such
liabilities to the extent permitted by law. 
[*****]


 


(f)            At Coors’ request,
where permissible by the applicable taxing authority, audits of the taxes
payable by Coors in the United States pursuant to this Agreement shall be
handled as part of EDS’ U.S. state and local sales and use tax audits.


 


(g)         [*****]


 


(h)         [*****]


 


12.4                           Charges Pursuant to Change Control
Procedures


 


(a)                      If either Coors
or EDS proposes a change in or addition to the Services pursuant to the Change
Control Procedures, the price for such change or addition shall be determined
in the manner set forth in this Section.


 


(b)                     To the extent
the proposed change or addition can be accommodated within the existing level
of chargeable resources then being used by the EDS Providers to provide the
Services and without degradation to existing Service Levels (unless otherwise
agreed by Coors in writing), [*****]


51

















 


 


(c)                      To the
extent the proposed change or addition will require the addition or subtraction
of resources for which a pricing metric exists under this Agreement, the
resulting change to the charges payable by the Coors Recipients hereunder
shall, subject to Section 2 of Exhibit C (Minimum Revenue
Commitment) and Section 12.5 (Significant Events), be calculated in
accordance with that pricing metric.


 


(d)                     To the extent
the proposed changes or additional Services are not subject to clauses (b) or
(c) above, [*****].


 


12.5                           Significant Events


 


(a)                      The charges
provided for in this Article and Exhibit C and the [*****] provided for
in Schedule 17.2 [*****] and any affected Schedules 17.2(LCA) shall be
equitably adjusted in the manner described in this Section if a “Significant
Event” occurs.  A Significant Event
shall mean [*****].


 


(b)                     If Coors
notifies EDS of the occurrence of a Significant Event (which notice shall be
accompanied by an explanation by Coors of the basis for its determination of
such occurrence), the relevant Baseline Resource Levels for the affected Coors
Recipients (as defined in Exhibit C) [*****] the anticipated resource
usage during the remainder of the Term (or Local Country Agreement Term, as
applicable) in the following manner:


 


(i)                                     [*****]


 


52

















 


(ii)                                  [*****]


 


(iii)                               [*****]


 


(c)                      [*****]


 


(d)                     [*****]


 


53

















 


12.6                           Recordkeeping


 


The EDS Providers shall
maintain complete and accurate records of, and supporting documentation for,
the amounts billed to and payments made by the Coors Recipients under this
Agreement [*****].  The EDS Providers
shall retain such records in accordance with their respective Coors Recipient’s
record retention policy in effect from time to time.  A copy of Coors records retention policy in effect on the
Commencement Date is attached hereto as Schedule 12.6.  A copy of CBL’s records retention policy as
of the Amendment Effective Date is attached hereto as
Schedule 12.6(LCA-UK).  Each EDS
Provider shall provide Coors, at Coors’ request, with paper and electronic
copies of documents and information reasonably necessary to verify the EDS
Providers’ compliance with this Agreement. 
Coors and its authorized agents and representatives shall have access to
such records for audit purposes during normal business hours during the Term
(or Local Country Agreement Term, as applicable) and thereafter for the period
during which the EDS Providers are required to maintain such records.


 


12.7                           Coors/CBL Payments


 


(a)                                  On
the Commencement Date Coors shall pay to EDS, by wire transfer, the [*****].


 


(b)                                 On
the Amendment Effective Date, CBL shall pay to EDS-UK, by wire transfer,
[*****].


 


(c)                                  On
the first anniversary of the Amendment Effective Date, CBL shall pay to EDS-UK,
by wire transfer, [*****].


 


(d)                                 On
the Amendment Effective Date, Coors shall pay to EDS, by wire transfer,
[*****].


 


(e)                                  On
the first anniversary of the Amendment Effective Date, Coors shall pay to EDS, by
wire transfer, [*****].


 


12.8                           Hyperinflation Protection


 


(a)                      As used in this Section 12.8, the following
terms shall have the indicated meanings:


 


(i)                                     “Blended
COLA Percentage Change” means, for each anniversary of the Commencement Date, a
percentage equal to the sum of (A) the product of (1) 66.6% and
(2) the ECI Percentage Change for that anniversary of the Commencement
Date, and (B) the product of (1) 33.3%, and (2) the CPI
Percentage Change for that anniversary of the Commencement Date.


 


54

















 


(ii)                                  “COLA
Adjustable Charges” means the Monthly Baseline Charges applicable to Coors
(excluding the Coors Monthly Current Asset Payments), ARC/RRC rates applicable
to Coors, and personnel rates specified in Exhibit C applicable to
Coors.


 


(iii)                               “CBL
Adjustable Charges” means the Monthly Baseline Charges applicable to CBL
(excluding the CBL Monthly Current Asset Payments), ARC/RRC rates applicable to
CBL, and personnel rates specified in Exhibit C applicable to CBL.


 


(iv)                              “CBL
Base Index” means the CBL Index from the immediately prior anniversary of the
Amendment Effective Date (or, for the first anniversary, the CBL Index most
recently published as of the Amendment Effective Date).


 


(v)                                 “CBL
Current Index” means the most recently published CBL Index as of any
anniversary of the Amendment Effective Date.


 


(vi)                              “CBL
Percentage Change” means, for each anniversary of the Amendment Effective Date,
the percentage by which the CBL Current Index on that anniversary exceeds the
CBL Base Index for that anniversary of the Amendment Effective Date.


 


(vii)                           “CBL
Index” means the Retail Price Index, the UK’s main domestic measure of
inflation as published by the Office for National Statistics (January 1987 =
100). .


 


(viii)                         “CPI Base
Index” means the CPI Current Index from the immediately prior anniversary of
the Commencement Date (or, for the first anniversary, the CPI Index most
recently published as of the Commencement Date).


 


(ix)                                
“CPI Current Index” means the most recently published CPI Index as of any
anniversary of the Commencement Date.


 


(x)                                   “CPI
Percentage Change” means, for each anniversary of the Commencement Date, the
percentage by which the CPI Current Index on that anniversary exceeds the CPI
Base Index for that anniversary of the Commencement Date.


 


(xi)                                “CPI
Index” means the Consumer Price Index for All Urban Consumers, U.S. City
Average, 1982-84=100, as published by the Bureau of Labor Statistics.


 


(xii)                              “ECI
Base Index” means the ECI Current Index from the immediately prior anniversary
of the Commencement Date (or, for the first anniversary, the ECI Index most
recently published as of the Commencement Date).


 


(xiii)                          “ECI
Current Index” means the most recently published ECI Index as of any
anniversary of the Commencement Date.


 


(xiv)                         “ECI
Index” means the Employment Cost Index for Total Compensation for Private
Industry, All Workers (Not Seasonally Adjusted), June 1989 = 100, as published
by the Bureau of Labor Statistics.


 


55

















 


(xv)                            “ECI
Percentage Change” means, for each anniversary of the Commencement Date, the
percentage by which the ECI Current Index on that anniversary exceeds the ECI
Base Index for that anniversary of the Commencement Date.


 


(b)                     [*****]


 


(c)                      [*****]


 


12.9                           Gainsharing


 


(a)                      In the event either Party proposes a change to
the way Services are provided hereunder or requests new services and
(i) such change or new services results in a readily quantifiable
out-of-pocket savings in cost to the Coors Recipients, and (ii) the cost
of such change or new services is shared by the Coors Recipients and the EDS
Providers, the [*****].


 


(b)                     A Coors Recipient may request that the EDS
Providers provide personnel resources for new or changed Services implemented
pursuant to the Change Control Procedures on [*****].  In such event, if an EDS Provider is able to perform such new or
changed Services using less than the agreed upon [*****].


 


12.10                     Monthly Current Asset Payments.


 


(a)                      During each
of the first thirty (30) months during the Term, Coors shall pay to EDS the
amount described as the “Coors Monthly Current Asset Payment” in Exhibit C-3
(the “Coors Monthly Current Asset Payment”). 
The first Coors Monthly Current Asset Payment shall be invoiced by EDS
on the Commencement Date, and subsequent Coors Monthly Current Asset Payments
shall be invoiced on the first Business Day of each of the twenty-nine (29)
months thereafter.  Each Coors Monthly
Current Asset Payment shall be due and payable by Coors to EDS (or, at EDS’ direction,
directly to EDS’ lessor of the Coors Transferred Equipment) thirty (30) days
after it is invoiced.


 


(b)                     During each
of the first thirty (30) months following the Amendment Effective Date, CBL
shall pay to EDS-UK the amount described as the “CBL Monthly Current Asset
Payment” in Exhibit C-3 (the “CBL Monthly Current Asset Payment”).  The first CBL Monthly Current Asset Payment
shall be invoiced by EDS-UK on the Amendment Effective Date, and subsequent CBL
Monthly Current Asset Payments shall be invoiced on the first


 


56

















 


Business Day of each of
the twenty nine (29) months thereafter. 
Each CBL Monthly Current Asset Payment shall be due and payable by CBL
to EDS-UK (or, at EDS-UK’s direction, directly to EDS-UK’s lessor of the CBL
Transferred Equipment) thirty (30) days after it is invoiced.


 


(c)                      The Monthly
Current Asset Payments [*****] to Section 13.5 [*****] , nor shall the
Monthly Current Asset Payments be subject to adjustment pursuant to
Section 9.10 [*****] or Section 12.5 
(Significant Events). 
Disposition of the Transferred Assets upon the expiration or any
termination of this Agreement is addressed in Section 17.9 (Purchase of
Equipment). In the event CBL fails to pay EDS-UK a CBL Monthly Current Asset
Payment for any reason, [*****].


 


Article 13

INVOICING AND PAYMENT


 


13.1                           Invoices


 


(a)                                  EDS
shall issue to Coors, [*****].  Each
invoice shall separately state charges for each category of Service [*****], if
any, and shall otherwise be in such detail as Coors may reasonably request for
its internal accounting needs (including, without limitation, the chargeback
information described in Section 5.5.3.6 of Exhibit A).  Each invoice shall include any calculations
used to establish the charges.


 


(b)                                 Each
EDS Provider that is a party to a Local Country Agreement shall issue to the
Coors Recipient for that Local Country Agreement, [*****], if any, and shall
otherwise be in such detail as such Coors Recipient may reasonably request for
its internal accounting needs.  Each
invoice shall include any calculations used to establish the charges.


 


(c)                                  EDS
shall deliver each Coors invoice to the Coors Project Executive.  Invoices under a Local Country Agreement
shall be delivered by the applicable EDS Provider to the Local


 


57

















 


Country Agreement
designee of the Coors Project Executive, with a copy to the Project
Executive.  Additionally, together with
each invoice delivered to Coors for Services provided to Coors, EDS shall
deliver to the Coors Project Executive a consolidated invoice, [*****].


 


13.2                           Payment; Late Charges


 


(a)                      Subject to
Section 13.5 [*****],  any amount
due by a Coors Recipient or an EDS Provider under this Agreement for which a
payment date is not otherwise specified, including, without limitation, each
invoice delivered to Coors or another Coors Recipient pursuant to
Section 13.1 for Services provided to Coors or another Coors Recipient,
[*****] such invoice is received by the Coors Project Executive (or another
Coors Recipient pursuant to Section 13.1, or an EDS Provider other than EDS,
the designee of the the EDS Project Executive).


 


(b)                     Unless
otherwise expressly provided in this Agreement, to the extent that a Coors
Recipient is entitled to a credit pursuant to this Agreement, the corresponding
EDS Provider shall provide such Coors Recipient [*****].


 


(c)                      Any amount
owed by a Coors Recipient to an EDS Provider or by an EDS Provider to a Coors
Recipient and not paid or credited when due shall [*****].  The Coors Recipients and EDS Providers agree
that [*****].


 


13.3                           Proration


 


All periodic charges
under this Agreement ([*****]) shall be computed [*****].


 


58

















 


13.4                           Refunds


 


If any Coors Recipient or
EDS Provider should receive a refund, credit or other rebate for goods or
services paid for by its corresponding EDS Provider or Coors Recipient, the
recipient of such refund, credit or rebate shall promptly notify the
corresponding party and shall pay such amount to such other party (or, if
applicable, provide a credit on the next delivered invoice) within thirty (30)
days after receipt thereof.


 


13.5                           [*****]


(a)                       Each Coors
Recipient and EDS Provider shall pay when due, [*****] any undisputed amounts
owed to a corresponding party pursuant to the terms of this Agreement; [*****].


 


(b)                     [*****]
amount otherwise payable to an EDS Provider, such Coors Recipient shall notify
the applicable EDS Provider on or prior to the date the payment would have
otherwise been due of [*****].


 


Article
14

CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS


 


14.1                           Mutual Representations and Warranties


 


(a)                      Each Party
represents and warrants that, as of the Commencement Date:


 


(i)                                     It
is a corporation duly incorporated (or, in the case of EDS, it is a limited
liability company duly organized), validly existing and in good standing under
the laws


 


59

















 


of the state in which it
is incorporated (or, in the case of EDS, organized), and is good standing in
each other jurisdiction where the failure to be in good standing would have a
material adverse affect on its business or its ability to perform its
obligations under this Agreement.


 


(ii)                                  It
has all necessary company power and authority to own, lease and operate its
assets and to carry on its business as presently conducted and as it will be
conducted pursuant to this Agreement.


 


(iii)                               It
has all necessary company power and authority to enter into this Amended and
Restated Global Master Services Agreement and to perform its obligations
hereunder, and the execution and delivery of this Amended and Restated Global
Master Services Agreement and the consummation of the transactions contemplated
by this Amended and Restated Global Master Services Agreement have been duly
authorized by all necessary company actions on its part.


 


(iv)                              This
Amended and Restated Global Master Services Agreement constitutes a legal,
valid and binding obligation of such party, enforceable against it in
accordance with its terms, subject only to the effect of bankruptcy laws or
equitable relief which a court may grant.


 


(v)                                 It
is not a party to, and is not bound or affected by or subject to, any
instrument, agreement, charter or by-law provision, law, rule, regulation, judgment
or order which would be contravened or breached as a result of the execution of
this Amended and Restated Global Master Services Agreement or consummation of
the transactions contemplated by this Amended and Restated Global Master
Services Agreement, excluding only (with respect to Coors) any Third Party
Consents required for the assignment by Coors to EDS of Third Party Contracts
or the grant by Coors to EDS of access to and use of Third Party Contracts.


 


(b)                     Coors
represents and warrants with respect to CBL, and EDS represents and warrants
with respect to EDS-UK, that as of the Amendment Effective Date:


 


(i)                                     It
is a corporation duly incorporated, validly existing and in good standing under
the laws of the state or country in which it is incorporated, and is good
standing in each other jurisdiction where the failure to be in good standing
would have a material adverse affect on its business or its ability to perform
its obligations under this Agreement.


 


(ii)                                  It
has all necessary company power and authority to own, lease and operate its
assets and to carry on its business as presently conducted and as it will be
conducted pursuant to this Agreement.


 


(iii)                               It
has all necessary company power and authority to enter into the Local Country
Agreement and to perform its obligations under such agreement, and the
execution and delivery of such agreement and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
company actions on its part.


 


(iv)                              The
Local Country Agreement to which it is a party constitutes the legal, valid and
binding obligations of such party, enforceable against it in accordance with


 


60

















 


their respective terms,
subject only to the effect of bankruptcy laws or equitable relief which a court
may grant.


 


(v)                                 It
is not a party to, and is not bound or affected by or subject to, any
instrument, agreement, charter or by-law provision, law, rule, regulation,
judgment or order which would be contravened or breached as a result of the
execution of the Local Country Agreement to which it is a party or consummation
of the transactions contemplated by such agreement, excluding only (with
respect to CBL) any Third Party Consents required for the assignment by CBL to
EDS-UK of Third Party Contracts or the grant by CBL to EDS-UK of access to and
use of Third Party Contracts.


 


14.2                           Coors Representations and Warranties


 


(a)          Coors represents and
warrants to EDS that, as of the Commencement Date:


 


(i)                                     Coors
or its Affiliates own the Coors Transferred Equipment free and clear of all
liens, mortgages, pledges and security interests, and each has the right to
transfer the Coors Transferred Equipment owned by it to EDS.


 


(ii)                                  To
the actual knowledge of the Coors manager with direct operational
responsibility for administering the Third Party Contracts to which Coors is a
party as of the Commencement Date: (i) each such Third Party Contract
existing on the Commencement Date is in full force and effect, and
(ii) there is no material default under any such Third Party Contract by
Coors or the other parties thereto.


 


(iii)                               To
the actual knowledge of the Coors property manager with direct operational
responsibility for the Golden Data Center: 
(i) the Golden Data Center  Lease is in full force and effect, and
(ii) there is no material default under the Golden Data Center Lease by
Coors or the lessor thereunder.


 


(iv)                              It
has as of the Commencement Date, and shall have throughout the Term, the right
and authority to use the Coors Software and to grant to EDS the licenses to
Coors Software and other Coors Intellectual Property described in this
Agreement, and that the use of such Coors Software and other Coors Intellectual
Property does not and will not infringe upon the proprietary rights of any
third party.


 


(b)                     Coors
represents and warrants to EDS that, as of the Amendment Effective Date:


 


(i)                                     CBL
or its Affiliates own the CBL Transferred Equipment free and clear of all
liens, mortgages, pledges and security interests, and each has the right to
transfer the CBL Transferred Equipment owned by it to EDS-UK.


 


(ii)                                  To
the actual knowledge of the CBL manager with direct operational responsibility
for administering the Third Party Contracts to which CBL is a party as of the
Amendment Effective Date: (i) each such Third Party Contract existing on
the Amendment Effective Date is in full force and effect, and (ii) there
is no material default under any such Third Party Contract by CBL or the other
parties thereto.


 


61

















 


(iii)                               CBL
has as of the Amendment Effective Date, and shall have throughout the remainder
of the Term, the right and authority to use the Coors Software and to grant to
the EDS Providers the licenses to Coors Software and other Coors Intellectual
Property described in this Agreement, and that the use of such Coors Software
and other Coors Intellectual Property does not and will not infringe upon the
proprietary rights of any third party.


 


14.3                           EDS Representations and Warranties


 


EDS represents and
warrants to Coors that:


 


(a)                      As of the
Commencement Date and the Amendment Effective Date, it has not violated any
applicable laws or regulations or any Coors policies regarding the offering of
unlawful inducements in connection with this Agreement.


 


(b)                     As of the
Commencement Date and the Amendment Effective Date, EDS-UK has not violated any
applicable laws or regulations or any Coors or CBL policies regarding the
offering of unlawful inducements in connection with this Agreement.


 


(c)                      As of the Commencement
Date and the Amendment Effective Date, it is appropriately skilled, experienced
and trained to perform the Services to be performed by it.


 


(d)                     As of the
Amendment Effective Date, EDS-UK is appropriately skilled, experienced and
trained to perform the Services to be performed by EDS-UK.


 


(e)                      It has as of
the Commencement Date, and shall have throughout the Term, the right and
authority to use the EDS Software to provide Services and to grant the licenses
to EDS Software and other EDS Intellectual Property described in this
Agreement, and that the use of such EDS Software and other EDS Intellectual
Property does not and will not infringe upon the proprietary rights of any
third party.


 


(f)                        EDS-UK has
as of the Amendment Effective Date, and shall have throughout the remainder of
the Term, the right and authority to use the EDS Software to provide Services
and to grant the licenses to EDS Software and other EDS Intellectual Property
described in this Agreement, and that the use of such EDS Software and other
EDS Intellectual Property does not and will not infringe upon the proprietary
rights of any third party.


 


14.4                           Mutual Covenants


 


(a)                      Each Coors
Recipient and EDS Provider shall perform its obligations under this Agreement
in compliance with all applicable laws, rules, regulations, ordinances,
treaties and orders.  The EDS Providers
shall obtain all permits, certificates, approvals, and inspections required in
connection with the provision of the Services. 
Each Party will be responsible for making any reasonable accommodation
required under the Americans with Disabilities Act with respect to the
facilities that it owns or leases in the United States.


 


(b)                     Whenever this
Agreement requires or contemplates any action, consent or approval, each Coors
Recipient and EDS Provider shall act reasonably and in good faith and


 


62

















 


(unless the Agreement
expressly allows exercise of a party’s sole discretion) shall not unreasonably
withhold or delay such action, consent or approval.


 


14.5                           EDS Covenants


 


The EDS Providers shall
cooperate with the Coors Recipients’ third party auditors, contractors and
service providers, provided that such third parties comply with the EDS
Providers’ reasonable security and confidentiality requirements and, to the
extent the third parties are performing work on EDS Provider-owned, -licensed
or -leased Software or Equipment, comply with the EDS Provider’s reasonable
work standards, methodologies and procedures.


 


Article 15

INDEMNIFICATION


 


15.1                           [*****]


 


63

















 


15.2                           [*****]


 


64

















 


[*****]


 


65

















 


15.3                           [*****]


 


66

















 


15.4                           [*****]


 


15.5                           [*****]


 


67

















 


Article 16

LIMITATIONS ON LIABILITY


 


16.1                           General Intent


 


[*****]


 


16.2                           


 


(a)                      [*****]


 


(b)                     [*****]


 


16.3                           [*****]


 


(a)                      [*****]


 


(b)                     [*****]


 


68

















 


(c)                      [*****]


 


16.4                           Force Majeure


 


(a)                        [*****]


 


(b)                     [*****]


 


(c)                      [*****]


 


69

















 


 


(ii)                      [*****]


 


(d)                     [*****]


 


16.5         [*****]


 


70

















 


16.6                           [*****]


 


Article 17

TERMINATION


 


17.1                           [*****]


 


(a)                      [*****]


 


(b)                     [*****]


 


71

















 


(c)                      [*****]


 


(d)                     [*****]


 


(e)                      [*****]


 


72

















 


17.2                           [*****]


 


(a)                      [*****]


 


(b)                     [*****]


 


73

















 


17.3                           [*****]


 


17.4                           [*****]


 


Either Party shall have
the option, but not the obligation, to terminate this Agreement in its entirety
without payment of a termination fee if the other Party (i) becomes insolvent
or is unable to meet its debts as they mature, (ii) files a voluntary
petition in bankruptcy or seeks reorganization or to effect a plan or other
arrangement with creditors, (iii) files an answer or other pleading
admitting, or fails to deny or contest, the material allegations of an
involuntary petition filed against it pursuant to any act of Congress relating
to bankruptcy, arrangement or reorganization, (iv) shall be adjudicated a
bankrupt or shall make an assignment for the benefit of its creditors
generally, (v) shall apply for, consent to or acquiesce in the appointment
of any receiver, or trustee for all or a substantial part of its property, or
(vi) any such receiver, or trustee shall be appointed and shall not be
discharged within thirty (30) days after the date of such appointment.   EDS shall have the option, but not the
obligation, to cause an EDS Provider, and Coors shall have the option, but not
the obligation, to cause a Coors Recipient, to terminate its applicable Local
Country Agreement in its entirety without payment of a termination fee if the
other party to such Local Country Agreement (i) becomes insolvent or is
unable to meet its debts as they mature, (ii) files a voluntary petition
in bankruptcy or seeks reorganization or to effect a plan or other arrangement
with creditors, or passes a resolution for its winding up, or if a court of
competent jurisdiction makes an order for the winding up or dissolution of the
other party to a Local Country Agreement, (iii) files an answer or other
pleading admitting, or fails to deny or contest, the material allegations of an
involuntary petition filed against it pursuant to any act of Congress or local
law relating to bankruptcy, insolvency, arrangement or reorganization,
(iv) shall be adjudicated a bankrupt or shall make an assignment for the
benefit of its creditors generally, (v) shall apply for, consent to or
acquiesce in the appointment of any receiver, administrative receiver or
trustee for all or a substantial part of its property, or (vi) any such
receiver, trustee or administrative receiver shall be appointed and shall not
be discharged within thirty (30) days after the date of such appointment.   A Party (or a party to a Local Country
Agreement) may exercise its termination option pursuant to this Section by
delivering to the other Party (or its corresponding party in the case of the
termination of a Local Country Agreement) written notice of such termination
identifying the termination date.  Notwithstanding
the foregoing, no EDS Provider shall have the right to terminate this Agreement
or a Local Country Agreement as permitted by this Section if the Coors
Recipients continue to pay pursuant to this Agreement for Services during the
pendency of any such bankruptcy, insolvency or such other specified event.


 


74

















 


17.5                           [*****]


 


17.6                           Extension of
Expiration/Termination Effective Date


 


(a)                      Coors may,
at its option, extend the expiration date of the Term or the termination date
of the Term (regardless of whether the Agreement has been terminated by Coors
or EDS), or the expiration date or termination date of any Local Country
Agreement Term one or more times by delivering written notice of such extension
to EDS at least thirty (30) days before such expiration date or termination
date (as such expiration date or termination date may have been extended
pursuant to the previous exercise of such extension option one or more times);
provided, however, that:


 


(i)                                     Coors
may also extend the expiration date or termination date (as it may have been
extended pursuant to the previous exercise of the option granted by this
Section) without providing at least thirty (30) days written notice if Coors
indicates to EDS in good faith that Coors requires such extension because any
Coors Recipients’ transition to a new outsourcer or to providing the Services
internally has been delayed; and


 


(ii)                                  the
total of all extensions pursuant to this Section shall not exceed eighteen (18)
months; and


 


(iii)                               the
total length of the Term or any Local Country Agreement Term, including any
extensions pursuant to this Section shall not extend beyond December 31, 2012.


 


(b)         This Agreement shall
continue to govern the performance of all Services during such extension
period(s), except that if the Agreement was terminated by EDS for a Coors


 


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Recipient(s) nonpayment
pursuant to Section 17.1(d)(i) [*****].


 


(c)                      [*****]


 


17.7                           Effect of Termination


 


Termination of this
Agreement, any Local Country Agreement or any Service Towers for any reason
under this Article shall not affect (i) any liabilities or obligations of
any Coors Recipient or EDS Provider arising before such termination or out of
the events causing such termination or (ii) any damages or other remedies
to which a an EDS Provider or Coors Recipient may be entitled under this
Agreement, at law or in equity arising from any breaches of such liabilities or
obligations.


 


17.8                           Expiration/Termination Assistance


 


(a)                      Commencing
one (1) year before the expiration of the Term or, if applicable, upon delivery
of a termination notice by Coors or EDS pursuant to this Article 17
(Termination), and continuing until six (6) months after the expiration of the
Term or, if applicable, six (6) months after the termination date of this
Agreement or a Local Country Agreement (as such expiration date or termination
date may be extended pursuant to Section 17.6 (Extension of
Expiration/Termination Effective Date)), the EDS Providers shall provide to the
Coors Recipients and/or Coors’ designee the assistance reasonably requested by
Coors to facilitate the orderly transfer of the Services to the Coors
Recipients or to Coors’ designee, including, without limitation, the assistance
described in Exhibit D (or any applicable Exhibit D(LCA))
(collectively, “Termination Assistance”). 
This Agreement shall continue to govern the performance of all such
Termination Assistance before or after the expiration or termination of the
Term; provided, however, that:


 


(i)                                     [*****]
for any Termination Assistance rendered before or on the expiration date of the
Term or a Local Country Agreement Term or, if applicable, the termination date
(as such expiration date or termination date may be extended pursuant to
Section 17.6 (Extension of Expiration/Termination Effective Date)), but
the Coors Recipients [*****].


 


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(ii)                                  after
such expiration date or termination date (unless extended pursuant to Section
17.6), the EDS Providers shall have no obligation to continue performing
Services other than the Termination Assistance unless mutually agreed by the
Parties.  In the event that Coors
requests that the EDS Providers perform Termination Assistance after such
expiration date or termination date, the Coors Recipients receiving such
assistance shall pay the EDS Providers providing such assistance for:


 


(A)      [*****]


 


(B)        [*****]


 


(iii)                               [*****]


 


(b)                     The EDS
Providers shall provide Coors and its auditors upon request the information
used by the EDS Providers to determine their charges pursuant to clause
(a) above.  If Coors’ auditors
determine that the amounts charged by the EDS Providers did not coply with such
clause, such EDS Providers [*****].


 


(c)                      Each EDS
Provider acknowledges that,  [*****].


 


17.9                           Purchase of Equipment


 


(a)          [*****]


 


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(b)         [*****] 


 


(c)          [*****] 


 


(d)         [*****]


 


(e)          [*****]


 


78

















 


(f)            [*****]


 


17.10                     EDS Software License


 


Upon expiration or
earlier termination of the Term (or the Local Country Agreement Term, as
applicable), the EDS Providers shall grant to the Coors Recipients or to Coors’
designee (for the internal use of the Coors Recipients and their Affiliates and
the other entities described in Section 3.4)  a [*****] license to use,
copy, maintain, modify, enhance and create derivative works of EDS Software
used to provide the Services at the end of the Term, and EDS shall maintain,
modify and update such EDS Software on reasonable terms and conditions no less
favorable than those offered to other EDS customers.  If for any reason any such EDS Software is not available to the
Coors Recipients or such Coors’ designee or cannot be licensed to the Coors
Recipients or such Coors’ designee at the expiration or earlier termination of
the Term, EDS shall procure [*****] license for substitute Software with
substantially equivalent functionality, [*****].


 


17.11                     Third Party Contracts


 


Upon expiration or
earlier termination of the Term or any Local Country Agreement Term, each EDS
Provider shall, at Coors’ request, and to the extent permitted by the
applicable Third Party Contract and any applicable Third Party Consent, assign
to the appropriate Coors Recipient(s) or to Coors’ designee any Third Party
Software Licenses (excluding EDS licenses also used to provide services to
other EDS customers) and any Third Party Service Contracts (excluding EDS
agreements also used to provide services to other EDS customers) used to
provide goods or Services at the end of the Term or such Local Country
Agreement Term.  Each EDS Provider shall
use commercially reasonable efforts to obtain any necessary third party
consents to such assignment.  Each Coors
Recipient shall [*****] in order to obtain the third party’s consent to such
assignment to such Coors Recipient. 
Concurrently with such assignment, each Coors Recipient shall deliver to
the assigning EDS Provider [*****] pursuant to such Third Party Software
Licenses and Third Party Services Contracts attributable to the period after
such assignment.  If any of the Third
Party Contracts reassigned to a Coors Recipient are Third Party Contracts
listed on Schedule 5.3(c) or Schedule 5.3(c) (LCA-UK), the assigning
EDS Provider shall also assign to the Coors Recipient, [*****] any remaining
portion of the prepayments listed on such Schedule, concurrently with such
reassignment.


 


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17.12                     Offers to EDS Employees


 


[*****]


 


17.13                     Return of Confidential Information


 


Immediately upon
termination or expiration of the Term (or the Local Country Agreement Term, as
applicable), or otherwise at Coors’ request, the EDS Providers shall
unconditionally return to the Coors Recipients all of Coors’ Confidential
Information, including, without limitation, Coors Data, Coors Software, and
Third Party Software licensed to Coors Recipients, in each case in the form
maintained by the EDS Providers or as otherwise reasonably requested by
Coors.  No EDS Provider shall have any
right to retain, encrypt, corrupt or destroy any of Coors’ Confidential
Information, and each EDS Provider hereby waives any and all statutory or
common law liens, claims of lien or similar rights, remedies or encumbrances
that may now or hereafter exist and might limit or condition such EDS
Provider’s obligations under this Section.


 


Article 18

DISPUTE RESOLUTION


 


18.1                           General


 


Any dispute or
controversy between the Coors Recipients and EDS Providers with respect to the
interpretation or application of any provision of this Agreement (including any
provision of any Local Country Agreement) or the performance by the EDS
Providers or Coors Recipients of their respective obligations hereunder shall
be exclusively resolved as provided in this Article.  For purposes of clarity, other than as specifically provided in
this Article 18, it is the intent of the Parties that all disputes with respect
to the interpretation or application of any provision of a Local Country
Agreement be resolved by EDS on behalf of the applicable EDS Provider and Coors
on behalf of the applicable Coors Recipient (as opposed to by the parties to a
Local Country Agreement themselves) in accordance with the provisions of this
Article.


 


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18.2                           Informal Dispute Resolution


 


The disputing parties
may, if they mutually agree to do so, attempt to resolve the dispute informally
in the following manner:


 


(a)                      Any Coors
Recipient or EDS Provider may submit the dispute to a joint committee (the
“Dispute Resolution Committee”), consisting of (i) Coors’ Chief
Information Officer, and (ii) EDS’ Western Region Client Executive  (or,
in each case, any successor office assuming substantially all of such office’s
responsibility).  The Dispute Resolution
Committee shall meet as often as the Parties reasonably deem necessary to
gather and analyze any information relevant to the resolution of the
dispute.  The Dispute Resolution
Committee shall negotiate in good faith in an effort to resolve the dispute.


 


(b)                     If the
Dispute Resolution Committee determines in good faith that resolution through
continued discussions by the Dispute Resolution Committee does not appear
likely, the dispute shall be referred to the Steering Committee to negotiate a
resolution of the dispute.


 


(c)                      During the
course of negotiations, all reasonable requests made by one Party to the other
for non-privileged information, reasonably related to the dispute, shall be
honored in order that each of the Parties may be fully advised of the other’s
position.


 


(d)                     The specific
format for the discussions shall be determined at the discretion of the Dispute
Resolution Committee or the Steering Committee, but may include the preparation
of agreed upon statements of fact or written statements of position.


 


(e)                      Proposals
and information exchanged during the informal proceedings described in this
Article between the Parties shall be privileged, confidential and without
prejudice to a Party’s legal position in any formal proceedings.  All such proposals and information, as well
as any conduct during such proceedings, shall be subject to Colorado Rules of
Evidence, Rule 408, and shall be inadmissible in any subsequent
proceedings (but this provision shall not be construed to render inadmissible
documents or other evidence merely because they were referred to, transmitted
or otherwise used in any such informal proceedings).


 


(f)                        Notwithstanding
this Section 18.2, either Coors (on behalf of itself or on behalf of any other
Coors Recipient which is a party to a dispute) or EDS (on behalf of itself or
on behalf of any other EDS Provider which is a party to the dispute) may
commence formal dispute resolution proceedings pursuant to Section 18.3(a)
(Arbitration) with respect to any dispute without first observing the procedures
set forth in this Section.


 


18.3                           Arbitration


 


(a)                      Except as
set forth in clause (b) below, any controversy or claim arising out of or
relating to this Agreement (including for purposes of clarification, any
controversy or claim arising out of or relating to a Local Country Agreement),
or any alleged breach hereof, including any controversy regarding the
arbitrability of any dispute, shall be settled at the request of either Coors
(on behalf of itself or on behalf of any other Coors Recipient which is a party
to a dispute) or EDS (on behalf of itself or on behalf of any other EDS
Provider which is a party to


 


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the dispute) exclusively
by binding arbitration in metropolitan Denver, Colorado before and in accordance
with the then existing Commercial Arbitration Rules of the American Arbitration
Association (the “Rules”).  In any
dispute in which the amount in controversy is less [*****], there shall be one
(1) arbitrator agreed to by the Parties or, if the Parties are unable to agree
within thirty (30) days after demand for arbitration is made, selected in
accordance with the Rules.  In all other
cases there shall be three (3) arbitrators, one (1) of whom shall be selected
by Coors within thirty (30) days after demand for arbitration is made, one (1)
of whom shall be selected by EDS within thirty (30) days after demand for
arbitration is made, and one (1) of whom shall be selected by the two
Party-appointed arbitrators within thirty (30) days after the date the last of
them was selected.  If one or more
arbitrator(s) is not selected within the time period stated in the preceding
sentence, such arbitrator(s) shall be selected pursuant to Rule 13 of the
Rules.  Any arbitrator(s) proposed by
the American Arbitration Association shall have at least five (5) years
experience in complex data processing transactions.  The arbitrators shall apply the law set forth in
Section 18.5 to govern this Agreement and shall have the power to award
any remedy available at law or in equity; provided, however, that the
arbitrators shall have no jurisdiction to amend this Agreement or grant any
relief not permitted herein or beyond the relief permitted herein.  Any award rendered by the arbitrators shall
be final and binding on the Coors Recipients and EDS Providers, and judgement
on such award may be entered in any court having jurisdiction thereof.


 


(b)                     Notwithstanding
clause (a) above:


 


(i)                                     Coors
(on behalf of itself or on behalf of any other Coors Recipient which is a party
to a dispute) or EDS (on behalf of itself or on behalf of any other EDS
Provider which is a party to the dispute) may request a court of competent
jurisdiction described in Section 18.6 to grant provisional injunctive or other
relief to such Party solely for the purpose of maintaining the status quo until
an arbitrator can render an award on the matter in question and such award can
be confirmed by a court having jurisdiction thereof.


 


(ii)                                  If
a third party brings a claim or lawsuit against any or all Coors Recipients or any
or all EDS Providers relating in any way to this Agreement, the EDS Provider(s)
or Coors Recipient(s) named in such claim or lawsuit may, at its (or their)
option, file a cross-complaint against one or more EDS Provider(s) or one or
more Coors Recipient(s), as the case may be, in such lawsuit with respect to
the controversy or claim, in which case the controversy or claim shall be
resolved by such court in lieu of arbitration.


 


(iii)                               If
a controversy or claim is related in any way to a breach or threatened breach
of provisions of this Agreement concerning Confidential Information or
intellectual property, such controversy or claim shall, at the request of the
affected Coors Recipient (which is a party to such controversy or claim) or the
affected EDS Provider (which is a party to such controversy or claim), be
resolved by a court of competent jurisdiction described in Section 18.6.


 


(iv)                              If a
controversy or claim is related in any way to a breach or threatened breach of
any provision of this Agreement expressly providing for equitable remedies, the
Party entitled to seek such remedies (as described in such provision) may, at
its option, do so in a court of competent jurisdiction described in Section
18.6.


 


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18.4                           Continued Performance


 


Subject to
Section 13.5 ([*****]), the Coors Recipients and EDS Providers shall
continue performing their respective obligations and responsibilities under
this Agreement while any dispute is being resolved in accordance with this
Article, unless and until such obligations are terminated or expire in
accordance with the provisions of this Agreement.


 


18.5                           Applicable Law


 


All questions concerning
the validity, interpretation and performance of this Agreement (including, for
purpose of clarification, any Local Country Agreement) shall be governed by and
decided in accordance with the laws of the State of Colorado, as such laws are
applied to contracts between Colorado residents that are entered into and
performed entirely within the State of Colorado.


 


18.6                           Jurisdiction and Venue


 


Coors and EDS hereby
submit and consent to the exclusive (other than as described in Section 18.8
below) jurisdiction of any state or federal court with jurisdiction over
Jefferson County, Colorado, and irrevocably agree that all actions or
proceedings relating to this Agreement, other than any action or proceeding
required by this Article to be submitted to arbitration, shall be litigated in
such courts, and each of Coors and EDS waives any objection which it may have
based on improper venue or forum non conveniens to the conduct of any
such action or proceeding in such court. 
Notwithstanding the foregoing, Coors and EDS also consent to the
jurisdiction of any court described in Section 18.3(b)(ii), with respect
to claims and controversies described in such Section, and irrevocably agree
that all such claims and controversies may be litigated in any such court, and
waive any objection which they may have based on improper venue or forum non
conveniens to the conduct of any such action or proceeding in any
such court.  Nothing in this Section
shall affect the obligation of Coors and EDS with respect to the arbitration of
disputes pursuant to Section 18.3.


 


18.7                           Fees and Costs


 


[*****]


 


18.8                           Remedies


 


The Coors Recipients and
EDS Providers agree that in the event of any breach or threatened breach of any
provision of this Agreement (i) concerning Confidential Information,
(ii) concerning intellectual property rights or (iii) for which
equitable remedies are expressly provided in this Agreement, money damages may
be an inadequate remedy.  Accordingly,


 


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provisions concerning
Confidential Information or intellectual property rights may be enforced by the
preliminary or permanent, mandatory or prohibitory injunction or other order of
a court of competent jurisdiction described in Section 18.6, and any Coors
Recipient (including, but not limited to Coors) or EDS Provider (including, but
not limited to EDS) may seek from a court of competent jurisdiction equitable
remedies for breaches of any provisions expressly providing for such
remedies.  In the case of Coors or EDS,
such court of competent jurisdiction shall be the courts described in Section
18.6 above.  In the case of an EDS
Provider other than EDS or a Coors Recipient other than Coors, such court of
competent jurisdiction may be any court of competent jurisdiction in the
country to which the Local Country Agreement to which such EDS Provider or
Coors Recipient applies, notwithstanding the provisions of Section 18.6
above.  Notwithstanding the foregoing,
any equitable relief sought or obtained by an EDS Provider (other than EDS) or
a Coors Recipient (other than Coors) by courts other than those described in
Section 18.6 above shall only be intended to maintain the status quo while any
underlying substantive issues are resolved by EDS and Coors in accordance with
the provisions of this Article 18.


 


Article 19

MISCELLANEOUS


 


19.1                           Interpretation


 


(a)                      All
Schedules are hereby incorporated into this Agreement by reference.  In the event of any conflict or
inconsistency among this Amended and Restated Global Master Services Agreement
(excluding any Schedules hereto), the Local Country Agreements (excluding any
Schedules thereto) and the Schedules, such conflict or inconsistency shall be
resolved by giving precedence first to this Amended and Restated Global Master
Services Agreement (excluding the Schedules hereto) second to the Local Country
Agreements (excluding any Schedules thereto), and third to the Schedules.  For purposes of clarity, to the extent that
any Local Country Agreement (but not any Schedule) expressly states that a
provision therein applies “notwithstanding anything to the contrary in the
Amended and Restated Global Master Services Agreement,” or words of similar
effect, such provision of the Local Country Agreement shall not be deemed to
conflict with or otherwise be inconsistent with this Amended and Restated
Global Master Services Agreement.


 


(b)                     In this
Agreement, words importing the singular number include the plural and vice
versa and words importing gender include all genders.  The word “person” includes, subject to the context in which it
appears, an individual, partnership, association, corporation, trustee,
executor, administrator or legal representative.


 


(c)                      In this
Agreement, unless otherwise specifically provided:


 


(i)                                     In
the computation of a period of time from a specified date to a later specified
date, the word “from” means “from and including” and the words “to” and “until”
each mean “to but excluding.”


 


(ii)                                  References
to a specified Article, Section, clause, subsection, Schedule or other
subdivision shall be construed as references to that specified Article,
Section,


 


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clause, subsection,
Schedule or other subdivision of this Amended and Restated Global Master
Services Agreement unless the context otherwise requires.


 


(iii)                               The
word “dollar” and the symbol “$” refer to the United States dollar, and the
words “Pounds Sterling” and the symbol “£” refer to English pounds sterling.


 


(iv)                              As
provided in Section 14.4(b) (Mutual Covenants), any reference to an
approval or consent required of a party shall be deemed to include the phrase
“which approval or consent shall not be unreasonably withheld” unless this
Agreement grants such party the right to withhold such approval or consent in
its sole discretion.


 


(d)                     The Coors
Recipients and EDS Providers are sophisticated and have been represented by
counsel during the negotiation of this Agreement.  As a result, the Coors Recipients and EDS Providers believe the
presumption of any laws or rules relating to the interpretation of contracts
against the drafter thereof should not apply, and hereby waive any such
presumption.


 


19.2                           Binding Nature and Assignment


 


Neither Party may assign
(whether by merger, operation of law or otherwise) any of its rights or
obligations under this Agreement without the prior written consent of the other
Party; provided, however, that Coors may in its sole discretion assign its
rights and obligations under this Agreement to an Affiliate or to an entity
which acquires all or substantially all of its assets or to any successor in a
merger or acquisition; and provided further, that EDS may grant to its third
party equipment lessors with respect to the Transferred Equipment EDS’ right to
receive and collect the Monthly Current Asset Payments in accordance with this
Agreement.  No assignment by a Party
shall relieve such Party of its rights and obligations under this
Agreement.  Subject to the foregoing,
this Agreement shall be binding on the Parties and their respective successors
and assigns.


 


19.3                           Expenses


 


In this Agreement, unless
otherwise specifically provided, all costs and expenses (including the fees and
disbursements of legal counsel) incurred in connection with this Agreement and
the completion of the transactions contemplated by this Agreement shall be paid
by the party incurring such expenses.


 


19.4                           Amendment and Waiver


 


No supplement,
modification, amendment or waiver of this Agreement or any portion thereof
shall be binding unless executed in writing by Coors and EDS.  No waiver of any of the provisions of this
Agreement shall constitute a waiver of any other provision (whether or not
similar) nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.


 


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19.5                           Further Assurances


 


Each Coors Recipient and
EDS Provider shall provide such further documents or instruments required by
the other as may be reasonably necessary or desirable to give effect to this
Agreement and to carry out its provisions.


 


19.6                           Publicity


 


(a)          All media releases,
public announcements and other disclosures by any Coors Recipient relating to
this Agreement or the subject matter hereof, including promotional or marketing
material, but excluding announcements intended solely for internal distribution
or to meet legal or regulatory requirements, shall be coordinated with and
approved by EDS prior to release.


 


(b)         All media releases,
public announcements and other disclosures by any EDS Provider relating to this
Agreement or the subject matter hereof, including promotional or marketing
material, but excluding announcements intended solely for internal distribution
or to meet legal or regulatory requirements, shall be coordinated with and
approved by Coors prior to release.


 


19.7                           Severability


 


Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.


 


19.8                           Entire Agreement 


 


This Agreement, including the Schedules, constitutes
the entire agreement between the Coors Recipients and EDS Providers pertaining
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the Coors Recipients and EDS Providers pertaining to the subject
matter hereof, including, without limitation, the SAP Hardware Purchase Letter
Agreement dated July 16, 2001 between EDS and Coors; provided, that the
Consultant Agreement Number [*****] dated [*****] among Coors, EDS and
Electronic Data Systems Corporation, and all Authorization Letters (as defined
below), shall continue in force with respect to the matters described therein.  There are no warranties, representations or
other agreements between the Coors Recipients and EDS Providers in connection
with the subject matter hereof except as specifically set forth in this
Agreement.  For purposes of this Section
19.8, the term “Authorization Letters” means all letter agreements designated
as “Authorization Letters” entered into between EDS and Coors under the
Original Agreement that remain unexpired as of the Amendment Effective
Date.  For purposes of clarification,
all Authorization Letters (as defined above) shall remain in full force and
effect under this Agreement in accordance with their original terms.  References in such Authorization Letters to
various Sections and Schedules to the Original Agreement shall be deemed to be
references to the corresponding Sections and Schedules hereof .


 


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19.9                           Notices


 


Any notice, demand or
other communication required or permitted to be given under this Agreement
shall be in writing and shall be deemed delivered to a Party (i) when
delivered by hand or courier, (ii) when sent by confirmed facsimile with a
copy sent by another means specified in this Section, or (iii) six (6)
days after the date of mailing if mailed by United States certified mail, return
receipt requested, postage prepaid, in each case to the address of such Party
set forth below (or at such other address as the party may from time to specify
by notice delivered in the foregoing manner):


 


 


	
  If to EDS or any other
  EDS Provider, to:

  
	
   

  
	
  EDS Information Services,
  L.L.C.

  
	
  833 W.S. Boulder Road

  
	
  Louisville, CO 80027

  
	
  Attn: Mike O’Hair

  
	
  Tel: (303) 666-3948

  
	
  Fax: (303) 666-3965

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  EDS Information
  Services, L.L.C.

  
	
  5400 Legacy Drive

  
	
  Mailstop H3-3A-05

  
	
  Plano, TX 75024

  
	
  Attn: General Counsel

  
	
  Tel: (972) 605-5500

  
	
  Fax: (972) 605-3491

  
	
   

  
	
  If to Coors or to any
  other Coors Recipient, to:

  
	
   

  
	
  Coors Brewing Company

  
	
  Mail Number CE130

  
	
  P.O. Box 4030

  
	
  Golden, CO 80401

  
	
  Attn:  Tammy Berberick

  
	
  Tel: (303) 277-2545

  
	
  Fax: 303-277-7086

  



 


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  with a copy to:

  
	
   

  
	
  Coors Brewing Company

  
	
  Mail No. NH312

  
	
  P.O. Box 4030

  
	
  Golden, CO 80401

  
	
  Attn:  U.S. General Counsel

  
	
  Tel: (303) 277-2164

  
	
  Fax: 303-277-6212

  



 


19.10                     Survival


 


Any provision of this
Agreement which contemplates performance or observance subsequent to any
termination or expiration of this Agreement, including, without limitation,
Section 6.6 (No Employment Offers), Section 7.4 (Other Intellectual
Property), Section 7.5 (Residual Rights), Article 8 (Confidentiality),
Article 10 (Audits), Section 12.1 (Charges) with respect to Services rendered
during the Term, Section 12.3 (Taxes), Section 12.6 (Recordkeeping),
Article 15 (Indemnification), Article 16 (Limitations on Liability), Sections
17.7 through 17.13, inclusive (Termination), and Article 18 (Dispute
Resolution) shall survive the expiration or earlier termination of the Term (or
any Local Country Agreement Term) and continue in full force and effect.  Without limiting the foregoing, it is the
Parties’ specific intent that [*****].


 


19.11                     Independent Contractor


 


The EDS Providers shall
perform their obligations under this Agreement as independent contractors of
the Coors Recipients.  Nothing herein
shall be deemed to constitute the EDS Providers and Coors Recipients as
partners, joint venturers, or principal and agent.  No EDS Provider has authority to bind any Coors Recipient legally
or equitably by contract, admission, acknowledgment or undertaking, or to
represent any Coors Recipient as to any matters, except as expressly authorized
in this Agreement.


 


19.12                     No Third Party Beneficiaries


 


Except as set forth in
Article 15 (Indemnification), nothing in this Agreement, express or implied, is
intended to confer rights, benefits, remedies, obligations or liabilities on
any person (including, without limitation, any employees of the Parties) other
than the Coors Recipients and EDS Providers or their respective successors or
permitted assigns.  For the avoidance of
doubt, the Parties agree that other than the Coors Recipients and EDS Providers
and their respective Affiliates, successors or permitted assigns no express
term of this Agreement, including the terms of the Local Country Agreement
between CBL and EDS-UK or its Affiliate, is enforceable pursuant to the Contracts
(Rights of Third Parties) Act of 1999 by any person who is not a party to it,
and for any person who is a party to it, only to the extent permissible
hereunder or thereunder.


 


88

















 


19.13                     Export Control


 


This Agreement is
expressly made subject to any United States government laws, regulations,
orders or other restrictions regarding export from the United States of
computer hardware, software, technical data or derivatives of such hardware,
software or technical data. 
Notwithstanding anything to the contrary in this Agreement, no Coors
Recipient or EDS Provider will directly or indirectly export (or reexport) any
computer hardware, software, technical data or derivatives of such hardware,
software or technical data, or permit the shipment of same:  (a) into (or to a national or resident
of) Cuba, North Korea, Iran, Libya, Syria or any other country to which the
United States has embargoed goods; (b) to anyone on the U.S. Treasury
Department’s List of Specially Designated Nationals, List of Specially
Designated Terrorists or List of Specially Designated Narcotics Traffickers, or
the U.S. Commerce Department’s Denied Parties List; or (c) to any country
or destination for which the United States government or a United States
governmental agency requires an export license or other approval for export
without first having obtained such license or other approval.  Each Coors Recipient and EDS Provider will
reasonably cooperate with the other parties and will provide to such other
parties promptly upon request any end-user certificates, affidavits regarding
reexport or other certificates or documents as are reasonably requested to
obtain approvals, consents, licenses and/or permits required for any payment or
any export or import of products or services under this Agreement.


 


19.14                     Counterparts


 


This Amended and Restated
Global Master Services Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.


 


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IN WITNESS WHEREOF the
Parties have executed this Amended and Restated Global Master Services
Agreement as of the day and year first above written.


 


	
  COORS BREWING COMPANY

  	
  EDS INFORMATION
  SERVICES, L.L.C.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Timothy V. Wolf

  	
   

  	
  By:

  	
  /s/ Mike O'Hair

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Timothy V. Wolf

  	
   

  	
  Name:

  	
  Mike O'Hair

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  CFO, (Global) Coors
  Brewing Company

  	
   

  	
  Title:

  	
  CE

  	
   

  



 


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  COORS BREWING COMPANY

  
	
   

  
	
  By:

  	
  /s/ Virginia Guthrie

  	
   

  
	
   

  
	
  Name:

  	
  Virginia Guthrie

  	
   

  
	
   

  
	
  Title:

  	
  Group VP/CIO

  	
   

  



 












 


*****  Redacted pursuant to Confidential Treatment
request.


 


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