EX-10.19






Exhibit 10.19




      




Transition Services Agreement




by and between




The Procter & Gamble Company

and

The Folgers Coffee Company




Effective as of November 6, 2008




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	2. TERM
	 	 	6	 
	 
	 	 	 	 
	3. SERVICES AND CONTROLS PROCESS
	 	 	6	 
	 
	3.1 Base Services
	 	 	6	 
	 
	3.2 Substantive Business Decisions Prohibited
	 	 	6	 
	 
	3.3 Controls Process
	 	 	7	 
	 
	 	 	 	 
	4. SERVICE PROVIDER SUBCONTRACTORS AND THIRD PARTY CONTRACTS
	 	 	8	 
	 
	4.1 Subcontractors
	 	 	8	 
	 
	4.2 Customer Compliance with Third Party Contracts
	 	 	8	 
	 
	 	 	 	 
	5. RELATIONSHIP MANAGEMENT
	 	 	8	 
	 
	5.1 Relationship Managers
	 	 	8	 
	 
	5.2 Regulatory Review
	 	 	8	 
	 
	5.3 Books and Records
	 	 	9	 
	 
	5.4 Change Management Process
	 	 	9	 
	 
	5.5 Dispute Resolution
	 	 	9	 
	 
	5.6 Continued Performance
	 	 	9	 
	 
	 	 	 	 
	6. FACILITIES
	 	 	9	 
	 
	6.1 Use of Customer Facilities
	 	 	9	 
	 
	6.2 Service Provider Facilities and Systems
	 	 	10	 
	 
	 	 	 	 
	7. TECHNOLOGY, SOFTWARE AND PROPRIETARY RIGHTS
	 	 	10	 
	 
	7.1 Customer Owned Technology
	 	 	10	 
	 
	7.2 Service Provider Owned Technology
	 	 	10	 
	 
	7.3 No Implied Licenses; Residuals
	 	 	11	 
	 
	7.4 Required Consents
	 	 	11	 
	 
	 	 	 	 
	8. CUSTOMER DATA AND PHYSICAL SECURITY
	 	 	12	 
	 
	8.1 Definition
	 	 	12	 
	 
	8.2 Ownership
	 	 	12	 






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	8.3 Data Security
	 	 	12	 
	 
	8.4 Physical Security for Facilities
	 	 	12	 
	 
	 	 	 	 
	9. CONFIDENTIALITY
	 	 	12	 
	 
	9.1 Confidential Information
	 	 	12	 
	 
	9.2 Obligations
	 	 	12	 
	 
	9.3 Exceptions to Confidential Treatment
	 	 	13	 
	 
	9.4 Return or Destruction
	 	 	13	 
	 
	 	 	 	 
	10. COMPENSATION
	 	 	13	 
	 
	10.1 One-time Charges
	 	 	13	 
	 
	10.2 Monthly Charges
	 	 	13	 
	 
	10.3 Other Expenses
	 	 	14	 
	 
	10.4 Taxes
	 	 	14	 
	 
	10.5 Invoicing and Payment
	 	 	14	 
	 
	 	 	 	 
	11. REPRESENTATIONS AND WARRANTIES
	 	 	14	 
	 
	11.1 Authority
	 	 	14	 
	 
	11.2 Compliance with Laws
	 	 	15	 
	 
	11.3 Standard of Performance; Standard of Care
	 	 	15	 
	 
	11.4 Disclaimer
	 	 	16	 
	 
	 	 	 	 
	12. INSURANCE
	 	 	16	 
	 
	12.1 Coverages
	 	 	16	 
	 
	12.2 Policies
	 	 	16	 
	 
	12.3 Risk of Loss
	 	 	16	 
	 
	 	 	 	 
	13. INDEMNITIES, PROCEDURES AND LIMITATIONS
	 	 	16	 
	 
	13.1 Indemnification by Customer
	 	 	16	 
	 
	13.2 Indemnification by Service Provider
	 	 	17	 
	 
	13.3 Reductions For Insurance Proceeds And Other Recoveries
	 	 	18	 
	 
	13.4 Indemnification Procedure
	 	 	19	 
	 
	13.5 Limitations on Liability
	 	 	21	 
	 
	13.6 Indemnification and Limitations on Liability Relating to Negligence and
Strict Liability
	 	 	21	 
	 
	13.7 Waiver of Subrogation
	 	 	22	 
	 
	 	 	 	 
	14. TERMINATION
	 	 	22	 
	 
	14.1 Termination Rights
	 	 	22	 






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	14.2 Termination for Non-Payment
	 	 	22	 
	 
	14.3 Survival
	 	 	22	 
	 
	14.4 Rights Upon Termination or Expiration
	 	 	23	 
	 
	 	 	 	 
	15. GENERAL
	 	 	23	 
	 
	15.1 Construction
	 	 	23	 
	 
	15.2 Binding Effect; No Assignment
	 	 	23	 
	 
	15.3 Counterparts
	 	 	23	 
	 
	15.4 Entire Agreement
	 	 	24	 
	 
	15.5 Force Majeure
	 	 	24	 
	 
	15.6 Further Assurances
	 	 	24	 
	 
	15.7 Governing Law
	 	 	25	 
	 
	15.8 Independent Contractors
	 	 	25	 
	 
	15.9 Notices
	 	 	25	 
	 
	15.10 Publicity
	 	 	26	 
	 
	15.11 Amendments and Waivers
	 	 	26	 
	 
	15.12 Severability
	 	 	26	 
	 
	15.13 Limitation
	 	 	27	 






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SCHEDULES



Schedule A — Services



Schedule A-1 – Supply Network Solutions

Schedule A-2 – Purchasing

Schedule A-3 – Market Development Organization

Schedule A-4 – North America Product Supply Operations

Schedule A-5 – Workplace & Infrastructure Solutions

Schedule A-6 – Intentionally Omitted

Schedule A-7 – Decision Support Solutions

Schedule A-8 – Global Data Management

Schedule A-9 – Financial Services & Solutions

Schedule A-10 – Consumer Relations

Schedule A-11 – Customer & Consumer Solutions

Schedule A-12 – Intentionally Omitted

Schedule A-13 – Service Provider Professional Sales

Schedule A-14 – Intentionally Omitted

Schedule A-15 – Market Measurements

Schedule A-16 – Product Innovation Capability Services

Schedule A-17 – Administration of Historical Workers’ Compensation Claims




Schedule B  —  Recipients

Schedule C  —  Pricing

Schedule D  —  Certain Service Provider Agreements




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TRANSITION SERVICES AGREEMENT




          This Transition Services Agreement (this “Agreement”) is entered into effective
November 6, 2008 (the “Effective Date”) by and between The Folgers Coffee Company, a
Delaware corporation (“Customer”) and The Procter & Gamble Company, an Ohio corporation
(“Service Provider”).




          WHEREAS, Customer desires to obtain from Service Provider the information technology and
business process services described in this Agreement on the terms and conditions as set forth in
this Agreement.




          NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and for
other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:



1. DEFINITIONS



“Action” means any demand, charge, claim, action, suit, counter suit, arbitration, hearing,
inquiry, proceeding, audit, review, complaint, litigation or investigation, or proceeding of any
nature whether administrative, civil, criminal, regulatory or otherwise, by or before any federal,
state, local, foreign or international Governmental Authority or any arbitration or mediation
tribunal.



“Affiliate” means, with respect to any specified Person, those other Persons who Control,
are Controlled by, or under common Control with such specified Person.



“Agreement” has the meaning given in the preamble.



“Base Services” has the meaning set forth in Section 3.1(a).



“Change Management Process” has the meaning set forth in Section 5.4.



“Charges” means the amounts payable by Customer to P&G pursuant to Article 10.



“Claim” has the meaning set forth in Section 13.1.



“Claim Notice” has the meaning set forth in Section 13.3(a).



“Confidential Information” has the meaning set forth in Section 9.1.



“Contract” means any contract, agreement, lease, license, sales order, purchase order,
instrument or other commitment, whether written or oral, that is binding on any Person or any part
of its property under applicable Law.



“Control” and its derivatives mean, with respect to any Person (other than an individual):
(a) the legal, beneficial, or equitable ownership, directly or indirectly, of (i) at least 50% of
the aggregate of all voting equity interests in such Person or (ii) equity interests having the
right to at least 50% of the profits of an entity or, in the event of dissolution, to at least 50%
of the assets of such Person; or (b) the right to appoint, directly or indirectly, a majority of
the board of directors or equivalent governing body of such Person; or (c) the right to control,
directly or indirectly, the


1









 






management or direction of such Person by contract or corporate governance document; or (d) in the
case of a partnership, the holding of the position of sole general partner.



“Controls Processes and Procedures” has the meaning set forth in Section 3.3(a).



“Customer” has the meaning set forth in the Preamble. References herein to “Customer”
shall include the “Recipients” to the extent the context requires.



“Customer Group” has the meaning set forth in Section 5.5.



“Customer Data” has the meaning set forth in Section 8.1.



“Customer Equipment” means all Equipment owned or leased (other than from Service Provider)
by Customer that is used in connection with the Services.



“Customer Facilities” has the meaning set forth in Section 6.1(a).



“Customer Owned Technology” has the meaning set forth in Section 7.1.



“Customer Parties” has the meaning set forth in Section 13.2.



“Customer Software” means all Software owned by, or provided under license (other than from
Service Provider) to, Customer that is used in connection with the Services (and all modifications,
replacements, upgrades, enhancements, documentation, materials and media relating to the
foregoing).



“Customer System” means an interconnected grouping of Customer Equipment and/or Customer
Software that is used in connection with the Services, and all additions, modifications,
substitutions, upgrades or enhancements thereto.



“Customer Technology” means Customer Owned Technology and Customer Third Party Technology.



“Customer Third Party Technology” means all Technology licensed (other than by Service
Provider) to Customer that is provided to Service Provider for use in connection with the Services.



“Direct Claim” has the meaning set forth in Section 5.5.



“Effective Date” has the meaning set forth in the Preamble.



“Equipment” means computer and telecommunications equipment (without regard to the entity
owning or leasing such equipment) including: (i) servers, personal computers, and associated
attachments, accessories, peripheral devices and other equipment; and (ii) private branch
exchanges, multiplexors, modems, CSUs/DSUs, hubs, bridges, routers, switches and other
telecommunications equipment.



“Final Determination” means the final resolution of any Tax liability for any Tax period by
or as a result of (i) a final and unappealable decision, judgment, decree or other order by any
court of competent jurisdiction, (ii) a final settlement with the Internal Revenue Service, a
closing


2









 






agreement or accepted offer in compromise under Code Sections 7121 or 7122, or a comparable
arrangement under the laws of another jurisdiction, (iii) any allowance of a Refund in respect of
an overpayment of Tax, but only after the expiration of all periods during which such amount may be
recovered by the jurisdiction imposing such Tax, or (iv) any other final disposition, including by
reason of the expiration of the applicable statute of limitations.



“Financial Transactions” has the meaning set forth in Section 3.3(a).



“Force Majeure Event” has the meaning set forth in Section 15.5(a).



“Governmental Authority” means any federal, state, local, foreign or international court,
government, department, commission, board, bureau, agency, official or other regulatory,
administrative or governmental authority.



“Indemnitee” has the meaning set forth in Section 13.3.



“Indemnifying Party” has the meaning set forth in Section 13.3.



“Information” means information, whether or not patentable or copyrightable, in written,
oral, electronic or other tangible or intangible forms, stored in any medium, including studies,
reports, records, books, Contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software,
marketing plans, customer names, communications by or to attorneys (including attorney-client
privileged communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial, employee or business
information or data, but in any case excluding back-up tapes.



“Insurance Proceeds” means those monies: (i) received by an insured from an insurance
carrier; or (ii) paid by an insurance carrier on behalf of the insured.



“Intellectual Property Rights” means any and all common law, statutory and other
intellectual property rights, including copyrights, trademarks, trade secrets, patents and other
proprietary rights issued, honored and/or enforceable under any applicable Laws anywhere in the
world.



“Laws” means any statute, law, ordinance, regulation, rule, code or other requirement of,
or Order issued by, a Governmental Authority.



“Losses” has the meaning set forth in Section 13.1.



“Orders” means any orders, judgments, injunctions, awards, decrees, writs or other legally
enforceable requirement handed down, adopted or imposed by, including any consent decree,
settlement Contract or similar written Contract with, any Governmental Authority.



“Parties” shall mean Customer and Service Provider.



“Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.



“Pricing Schedule” means Schedule C to this Agreement.




3









 







“Recipient” has the meaning set forth in Section 3.1(c).



“Recipient Personnel” means any employees of any Recipient, and employees of any third
party contractors providing Services to Customer.



“Refund” means any cash refund of Taxes or reduction of Taxes by means of credit, offset or
otherwise, together with any interest received thereon.



“Relationship Manager” has the meaning set forth in Section 5.1.



“Required Consents” means (i) all consents required at any time to grant Service Provider
the right to use and/or access Customer Third Party Technology, Customer Software, Customer
Equipment, the Customer System and Recipient software and equipment in connection with providing
the Services; (ii) all consents required at any time to grant Customer and the Recipients, to the
extent necessary to exercise their rights or perform their obligations under this Agreement, the
right to use and/or access Service Provider Technology, Service Provider Software, Service Provider
Equipment and the Service Provider System; and (iii) all other consents, including consents to
modification of third party licenses or other Contracts, required from third parties at any time in
connection with Service Provider’s provision of the Services.



“Separation Agreement” means that certain Separation Agreement, dated as of June 4, 2008,
herewith, by and between Customer and Service Provider, relating to the separation of Customer’s
business from Service Provider.



“Service Provider Equipment” means all Equipment owned or leased by Service Provider or a
Service Provider Affiliate or Subcontractor and used in connection with the Services.



“Service Provider Facilities” has the meaning given in Section 6.2(a).



“Service Provider Group” has the meaning set forth in Section 5.5.



“Service Provider Owned Technology” has the meaning set forth in Section 7.2.



“Service Provider Parties” has the meaning set forth in Section 13.1(a).



“Service Provider Personnel” means those employees, representatives, contractors,
subcontractors and agents of Service Provider, Subcontractors and Service Provider Affiliates who
perform any Services under this Agreement.



“Service Provider Software” means all software programs and programming owned by, or
provided under license to, Service Provider and used to provide the Services (and all
modifications, replacements, upgrades, enhancements, documentation, materials and media relating to
the foregoing).



“Service Provider System” means an interconnected grouping of Service Provider Equipment
and/or Service Provider Software used in connection with the Services, and all additions,
modifications, substitutions, upgrades or enhancements thereto.



“Service Provider Technology” means Service Provider Owned Technology and Service Provider
Third Party Technology.




4









 







“Service Provider Third Party Technology” means any third party Technology (other than
Customer Third Party Technology) used by Service Provider, a Service Provider Affiliate or
Subcontractor in connection with the Services.



“Services” means the Base Services and any Termination Assistance Services.



“Software” means programs and programming (including the supporting documentation, media,
on-line help facilities and tutorials).



“Statements of Work” or “SOWs” means the descriptions of services in Schedules
A-1 through A-17.



“Subcontractors” means Service Provider’s contractors or other service providers that
perform a portion of the Services.



“Subsidiary” of any Person, means a corporation or other organization whether, incorporated
or unincorporated, of which at least a majority of the securities, or interests having by the terms
thereof ordinary voting power to elect at least a majority of the Board of Directors or others
performing similar functions with respect to such corporation or other organization, is directly or
indirectly owned or controlled by such Person or by any one or more of its Subsidiaries;
provided, however, that a Person that is not directly or indirectly wholly-owned by
any other Person will not be a Subsidiary of such other Person unless such other Person Controls,
or has the right, power or ability to Control, that other Person.



“Tax” or “Taxes” shall mean all forms of taxation, whenever created or imposed, and
whether of the United States or elsewhere, and whether imposed by a federal, state, municipal,
governmental, territorial, local, foreign or other body, and without limiting the generality of the
foregoing, shall include net income, gross income, gross receipts, sales, use, value added, ad
valorem, transfer, recording, franchise, profits, license, lease, service, service use, payroll,
wage, withholding, employment, unemployment insurance, workers compensation, social security,
excise, severance, stamp, business license, business organization, occupation, premium, property,
environmental, windfall profits, customs, duties, alternative minimum, estimated or other taxes,
fees, premiums, assessments or charges of any kind whatever imposed or collected by any
governmental entity or political subdivision thereof, together with any related interest and any
penalties, additions to such tax or additional amounts imposed with respect thereto by such
governmental entity or political subdivision.



“Technology” means all formulae; algorithms; processes; procedures; designs; ideas;
concepts; research; inventions and invention disclosures (whether or not patentable or reduced to
practice); know-how, proprietary information and methodologies; trade secrets; technology; computer
software (in both object and source code form); databases; specifications; and all records thereof,
including documentation, design documents and analyses, studies, programming tools, plans, models,
flow charts, reports and drawings, and all Intellectual Property Rights subsisting in each of the
foregoing.



“Term” has the meaning set forth in Section 2.1.



“Termination Assistance Services” has the meaning set forth in Section 14.4.




5









 







“Third-Party Claims” has the meaning set forth in Section 13.1.



“Transaction Agreement” means that certain Transaction Agreement, dated as of June 4, 2008,
among Customer, Service Provider and certain Affiliates of Customer and Service Provider.



2. TERM



The term of this Agreement will begin on the Effective Date and will end at midnight on May 6, 2009
(the “Term”), unless earlier terminated in accordance with the terms of this Agreement.
Customer may extend the Term as to all or any individual Service(s) (to the extent such individual
Service(s) can be segregated from the other Services which are not being extended) for one month
periods up to an aggregate of six (6) additional months by providing to Service Provider sixty (60)
days advance written notice.




3. SERVICES AND CONTROLS PROCESS




          3.1 Base Services.




               (a) Performance. Service Provider will provide the Services described in Schedule
A (the “Base Services”). Services provided by Service Provider under this Agreement
may be provided by Service Provider directly or through any of its Subsidiaries at Service
Provider’s discretion.



               (b) Commencement of Services. Unless otherwise specified in the applicable Statements
of Work, Service Provider will begin to provide the Base Services on the Effective Date.



               (c) Recipients. Service Provider will provide the Base Services to Customer and to
Customer’s Subsidiaries, to the extent specified in Schedule B (which may be updated by
Customer from time to time upon notice to Service Provider) (each, a “Recipient”).



               (d) Subsequent Adjustments. The Parties acknowledge that certain items of Equipment
or Software or certain Contracts, existing as of the Effective Date, may have been inadvertently
omitted from, included in or mischaracterized under, the applicable schedules. Accordingly, the
Parties agree that to the extent any such omitted, included or mischaracterized item is discovered,
the discovering Party shall promptly notify the other Party and the Parties shall promptly amend
the relevant schedule. If such discovered information results in a material increase in cost that
is not covered by Service Provider’s cost allocation that is used to determine its Charges to
Customer, using Service Provider’s normal cost allocation methodology, then the Parties will make
an equitable adjustment to the Charges and impacted schedules, all of which adjustments will be
reviewed and considered through the Change Management Process. In no event shall any adjustment to
the Service provide Service Provider with a greater degree of discretion than it has with respect
to the existing Services.



          3.2 Substantive Business Decisions Prohibited. Notwithstanding anything to the
contrary contained in this Agreement or the accompanying schedules, none of Service Provider
Parties, Subcontractors or Service Provider Personnel shall make any substantive business decisions
with respect to Customer in performing Services (including, without limitation, by performing any
sales or marketing activities for customer). Each provision of this Agreement and the accompanying
schedules shall be interpreted in a manner consistent with this Section 3.2.




6









 








          3.3 Controls Process.




               (a) For purposes of this Section 3.3:



                    (i) the term “Controls Processes and Procedures” means the control self-assessments,
internal audits and controls objectives and other regular reviews conducted by Service Provider in
the ordinary course of business; and



                    (ii) the term “Financial Transactions” means those finance and accounting transactions
resulting from the performance of the following Statements of Work: Supply Network Solutions,
Purchasing, Marketing Development Organization, North America Product Supply Operations, Workplace
& Infrastructure Solutions, Global Data Management, and Financial Services & Solutions.



               (b) During the Term, Service Provider will conduct, in the ordinary course of business, the
Controls Processes and Procedures on Service Provider’s services environment. The Controls
Processes and Procedures may or may not include Customer specific transactions resulting from the
performance by Service Provider of the Financial Transactions.



               (c) At a time mutually agreed upon by Service Provider and Customer, once during each calendar
quarter of the Term, a Service Provider designated representative will be available to designated
Customer representative to do the following:



                    (i) Review any material modifications to Service Provider’s systems that may adversely impact
the processing of the Financial Transactions;



                    (ii) Review any errors specific to a Financial Transaction and legal entity owned by Customer
detected during Service Provider’s Controls Processes and Procedures and review Service Provider’s
action plan to address any specific errors noted during Service Provider’s Controls Processes and
Procedures, including timing to implement the action plan; and



                    (iii) Review any errors specific to a Financial Transaction and legal entity owned by Customer
detected during any external audit of Service Provider’s processes or systems utilized to process
the Financial Transactions and discuss Service Provider’s action plan to address any detected
errors or issues, including timing to implement the action plan.



               (d) At a time mutually agreed upon by Customer and Service Provider but at least once during
each calendar quarter of the Term, a designated representative of Service Provider’s Global
Internal Audit organization will be available to a designated Customer representatives to do the
following:



                    (i) Review any deficiencies or weaknesses in the Financial Transactions detected by Service
Provider in Service Provider’s services environment that meet Service Provider’s threshold of a
significant deficiency or material weakness; and



                    (ii) Review any instances of fraud that are actually known by Service Provider and proven by
Service Provider and adversely affects Customer’s business
operations.



7









 





               (e) During the Term and upon at least 30 days written notice, Service Provider will make
available to Customer access to Service Provider’s and Customer’s books and records that Service
Provider maintains to execute the Financial Transactions, solely and only to the extent necessary
for the purpose of supporting the external and internal audits of Customer’s accounting. Customer
or its authorized representative will have the right to audit the books and records during normal
business hours and will be responsible for any costs incurred by Service Provider related to
Customer’s audit that exceed the ordinary course of business.



4. SERVICE PROVIDER SUBCONTRACTORS AND THIRD PARTY CONTRACTS




          4.1 Subcontractors.




               (a) Use of Subcontractors. Service Provider reserves the right to use Subcontractors
to assist Service Provider in the provision of the Services as Service Provider deems appropriate.



               (b) Service Provider Responsibility for Subcontractors. Unless otherwise agreed,
Service Provider will be responsible for the Services performed by the Subcontractor and Service
Provider will be Customer’s sole point of contact regarding the Services, including with respect to
payment.



          4.2 Customer Compliance with Third Party Contracts. Customer agrees to be bound by
and comply with the terms and conditions of Services Provider’s agreements with the third parties
listed in Schedule D (as such schedule may be amended from time to time upon mutual written
agreement of the Parties), other than Service Provider’s payment obligations under such agreements,
in each case to the extent services are directly or indirectly provided to Customer under such
agreements. In addition, Customer will comply with any obligations (e.g., use restrictions,
confidentiality) to be performed under any Contracts (other than Service Provider’s payment
obligations under such agreements) applicable to Customer’s receipt and use of the Services and to
the extent Customer is informed of such obligations.




5. RELATIONSHIP MANAGEMENT




          5.1 Relationship Managers. Each Party will appoint an individual (each, a
“Relationship Manager”) who, from the Effective Date until replaced by the appointing
Party, will serve as that Party’s representative under this Agreement during the Term. Each
Relationship Manager will (a) have overall responsibility for managing and coordinating the
performance of the appointing Party’s obligations under this Agreement, and (b) be authorized to
act for and on behalf of the appointing Party concerning all matters relating to this Agreement.
Neither Party will reassign a Relationship Manager, unless it provides at least ten (10) days prior
written notice to the other Party. If a Party terminates the employment of or reassigns its
Relationship Manager or its Relationship Manager resigns, dies or becomes disabled, such Party will
appoint a new Relationship Manager within thirty (30) days after the reassignment, resignation,
death or disability.




          5.2 Regulatory Review. Each Party will notify the other promptly of any formal




8









 







request or Order by a Government Authority to examine records regarding Customer that are
maintained by Service Provider or to examine Service Provider’s performance of the Services.
Service Provider will cooperate with any such examination. Customer will reimburse Service
Provider for the reasonable costs Service Provider incurs in connection with such examination.




          5.3 Books and Records. During the Term, Service Provider shall be provided with
access, at no cost to Service Provider, to Customer’s books and records to the extent necessary for
Service Provider to fulfill its obligations under this Agreement.




          5.4 Change Management Process. Service Provider will use the same change management
process for changes to the Services that Service Provider uses to manage changes for Service
Provider’s own businesses that use the same or similar services (“Change Management
Process”).




          5.5 Dispute Resolution. Any dispute, controversy or claim by Service Provider or any
of its Subsidiaries (collectively, “Service Provider Group”) against Customer or any of its
Subsidiaries (collectively, “Customer Group”) in connection with this Agreement
(collectively “Direct Claims”) shall be resolved by the Parties in accordance with
Article 6 of the Separation Agreement, except that any executive level discussions to be
held pursuant to Article 6 of the Separation Agreement with regard to such dispute,
controversy or claim shall be held by Customer’s Chief Executive Officer (or his designee) and
Service Provider’s President of Global Business Services (or his designee).




          5.6 Continued Performance. Each Party agrees that it will, unless otherwise directed
by the other Party, continue performing its obligations under this Agreement while any dispute is
being resolved until this Agreement expires or is terminated in accordance with its terms, except
in the case of a dispute with regards to Customer’s alleged failure to pay amounts in excess of
$500,000; provided, however, that if Customer pays such disputed amounts, (a)
Service Provider shall continue to perform its obligations under this Agreement and (b) such
payment shall not constitute a waiver of any claims by Customer may have with respect to such
disputed amounts.




6. FACILITIES




          6.1 Use of Customer Facilities.




                    (a) General. Customer will provide Service Provider, at no charge, the space, office
furnishings, janitorial service, telephone service, utilities (including air conditioning) and
office-related equipment, supplies, and duplicating services at Customer’s premises that Service
Provider may reasonably need to provide the Services (collectively, the “Customer
Facilities”). In addition, Customer will provide necessary storage space for backup data files
and will provide additional storage space that may be required by any change in retention schedules
required by Customer. Service Provider’s employees will have reasonable access to the Customer
Facilities twenty-four (24) hours a day, seven (7) days a week.



                    (b) Service Provider’s Obligations. To the extent Service Provider is using any part
of a Customer Facility to perform the Services, Service Provider will comply with Customer’s
standard policies and procedures, as made available to Service Provider, regarding access to and
use of the Customer Facilities.



9









 





          6.2 Service Provider Facilities and Systems.




               (a) Service Provider Facilities. Service Provider may perform the Services in such
facilities maintained by Service Provider or its Subcontractors or Affiliates (collectively,
“Service Provider Facilities”) as Service Provider reasonably deems appropriate.



               (b) Access to Service Provider Systems. Customer will, and will require that all
Recipient Personnel who have access to Service Provider Systems in accordance with the provisions
of Section 11.3, including computer or electronic data storage systems, limit their access
to those portions of such systems for which they are authorized in connection with their receipt
and use of the Services. Customer will (i) limit such access to those Recipient Personnel who are
authorized to use the Services in accordance with the provisions of Section 11.3, (ii)
maintain and make available to Service Provider a written list of the names of each individual who
will be granted such access, and (iii) adhere to Service Provider’s security rules and procedures
for use of Service Provider Systems. All user identification numbers and passwords disclosed to
Recipients to permit any Recipient Personnel to access the Service Provider Systems will be deemed
to be, and will be treated as, Service Provider’s Confidential Information. Customer will
cooperate with Service Provider in the investigation of any apparent unauthorized access by
Recipient Personnel to Service Provider Systems. Service Provider shall, in its sole discretion,
be entitled to approve or restrict access to Service Provider Systems by any Customer contractor.



7. TECHNOLOGY, SOFTWARE AND PROPRIETARY RIGHTS




          7.1 Customer Owned Technology.




               (a) Definition. The term “Customer Owned Technology” means: (i) Technology
owned by Customer on the Effective Date; (ii) Technology developed or acquired by Customer or its
third-party service providers (other than Service Provider) after the Effective Date; (iii)
derivative works, modifications and enhancements to any of the foregoing; and (iv) all Intellectual
Property Rights subsisting in any of the foregoing.



               (b) Ownership by Customer; License to Service Provider. Customer Owned Technology
will be owned exclusively by Customer. As of the Effective Date, Customer hereby grants to Service
Provider (and solely to the extent necessary for Service Provider to provide the Services, to the
Subcontractors) a non-exclusive, worldwide, non-transferable (except as provided in Section
15.2), revocable, fully paid-up, royalty-free right and license, solely during the Term, to
access, use, execute, reproduce, display, perform, modify, enhance, distribute and create
derivative works of the Customer Owned Technology made available by Customer to Service Provider
pursuant to this Agreement for the express and sole purpose of providing the Services. Except as
otherwise requested or approved by Customer, Service Provider will, and will cause the Service
Provider Personnel to, cease all use of Customer Owned Technology upon the later of the end of the
Term and the completion of any Termination Assistance Services.



          7.2 Service Provider Owned Technology.




               (a) Definition. The term “Service Provider Owned Technology” means Technology
owned by Service Provider or a Service Provider Affiliate or Subcontractor and used in connection
with the Services, including any modifications, enhancements or derivative works



10









 




of such Technology or any new Technology developed by Service Provider.




               (b) Ownership by Service Provider; License to Customer. Service Provider Owned
Technology will be owned exclusively by Service Provider. In addition to any other license rights
granted hereunder, Service Provider hereby grants to each Recipient a non-exclusive, worldwide,
non-transferable (except as provided in Section 15.2), fully paid-up, royalty-free right
and license during the Term, to the extent required to fully and completely use the Services, to
use all Intellectual Property Rights in Service Provider Technology. The Parties acknowledge that
such right and license may be subject to additional terms and conditions, and, except as otherwise
provided herein, will terminate upon the termination of the Services. As between the Parties, all
Internet addresses, network identification, access codes and telephone numbers provided or issued
to Customer or its users by Service Provider or Service Provider Personnel, and not transferred to
Customer pursuant to the Separation Agreement, shall be and remain the sole property of Service
Provider.



          7.3 No Implied Licenses; Residuals. Except as expressly specified in this Agreement,
nothing in this Agreement will be deemed to grant to one Party, by implication, estoppel or
otherwise, license rights, ownership rights or any other Intellectual Property Rights in any
Technology owned by the other Party or any Affiliate of the other Party. Service Provider shall be
free to use its general knowledge, skills and experience, and any ideas, concepts, know how, and
techniques that are required or used in the course of providing the Services.




          7.4 Required Consents.




               (a) Prior to the Effective Date, Service Provider used its commercially reasonable efforts to
identify and obtain Required Consents with respect to the Service Provider supplied Software,
materials, Equipment and third party Contracts that are necessary for Service Provider to provide
Services under this Agreement. Service Provider shall, in consultation with Customer, continue to
use commercially reasonable efforts to obtain any Required Consents not obtained by the Effective
Date with respect to such Software, materials, Equipment and third party Contracts. Service
Provider makes no warranty as to the receipt of any Required Consents by the Effective Date.



               (b) If at any time after the Effective Date either Party identifies or becomes aware of the
need to obtain a Required Consent, such Party shall promptly inform the other Party.



               (c) If Service Provider or Customer, as applicable, is unable to obtain a Required Consent,
regardless of when the need to obtain such consent arises, then, unless and until such Required
Consent is obtained, the Parties will use their commercially reasonable efforts to determine and
adopt such alternative approaches as are necessary and sufficient to provide the Services without
such Required Consent. If despite using commercially reasonable efforts, the Parties are unable to
adopt an alternative approach, then the affected Services shall be terminated and the Parties will
equitably adjust the pricing to reflect the reduced scope of Services; provided,
however, that Service Provider may elect, at its sole discretion, to provide an affected
Service despite the absence of a Required Consent; provided, further that, in the event that
Service Provider makes such election without the prior approval of Customer, Service Provider shall
be solely responsible for any liability arising as a result of Service Provider providing such
Service despite the absence of a Required Consent.



11









 





8. CUSTOMER DATA AND PHYSICAL SECURITY




          8.1 Definition. The term “Customer Data” means (i) any Information of
Customer, its Affiliates or Recipients, or their respective vendors, customers or other business
partners that is provided to or obtained by Service Provider in the performance of its obligations
under this Agreement, including data and Information regarding Customer’s businesses, customers,
operations, facilities, products, consumer markets, assets and finances, and (ii) any data or
Information specific to Customer or Customer’s business that is collected or processed in
connection with the Services. For avoidance of doubt, Customer Data does not include data about
the Service Provider Systems or Service Provider Technology.




          8.2 Ownership. As between Customer and Service Provider, Customer owns and will
continue to own all right, title and interest in and to all Customer Data. Service Provider shall
not sell, assign, lease or otherwise dispose of or commercially exploit Customer Data.




          8.3 Data Security. Service Provider will establish and maintain safeguards against
the destruction, loss or alteration of Customer Data in its possession that are no less rigorous
than those in effect for Service Provider’s operations.




          8.4 Physical Security for Facilities. Service Provider will be responsible for all
security procedures at any Service Provider Facilities. Customer will provide all necessary
security personnel and security equipment at the Customer Facilities.




9. CONFIDENTIALITY




          9.1 Confidential Information. As used herein, “Confidential Information”
means any Information of Service Provider or Customer that is not generally known to the public and
at the time of disclosure is identified, or would reasonably be understood by the receiving Party,
to be proprietary or confidential, whether disclosed in oral, written, visual, electronic or other
form, and which the receiving Party (or its contractors or agents) observes or learns in connection
with this Agreement. Confidential Information includes: (a) business plans, strategies,
forecasts, projects and analyses; (b) financial information and fee structures; (c) business
processes, methods and models; (d) employee and vendor information; (e) hardware and system
designs, architectures, structure and protocols; (f) product and service specifications; (g)
manufacturing, purchasing, logistics, sales and marketing information; and (h) the terms and
conditions of this Agreement.




          9.2 Obligations. The receiving Party will use the same care and discretion to avoid
disclosure, publication or dissemination of any Confidential Information received from the
disclosing Party as the receiving Party uses with its own similar information that it does not wish
to disclose, publish or disseminate (and in any event will use commercially reasonable efforts in
such regard). The receiving Party will: (a) use the disclosing Party’s Confidential Information
only in connection with the performance of its obligations under this Agreement or the full
enjoyment of its rights hereunder; and (b) not disclose the disclosing Party’s Confidential
Information except to (i) its employees, agents and contractors, who have a need to know such
Confidential Information in connection with the performance of its obligations under this Agreement
or the full enjoyment of its rights hereunder and who have executed Contracts obligating them to
keep the Confidential Information confidential, or (ii) its legal, financial or other professional
advisors as reasonably necessary. The receiving Party is liable for any




12









 







unauthorized disclosure or use of Confidential Information by any of its personnel, agents,
subcontractors or advisors. The receiving Party will promptly report to the disclosing Party any
breaches in security of the receiving Party that may materially and adversely affect the disclosing
Party and specify the corrective action taken.




          9.3 Exceptions to Confidential Treatment.




               (a) The obligations set forth in Section 9.2 do not apply to any Confidential
Information that the receiving Party can demonstrate: (i) is or becomes generally available to the
public, other than as a result of a disclosure by the receiving Party or its Affiliates not
otherwise permissible hereunder; (ii) was or became available to the receiving Party from a source
other than the disclosing Party or its Affiliates; or (iii) is developed independently by the
receiving Party without reference to the Confidential Information, except that, in the case of
clause (ii), the source of such Confidential Information was not known by the receiving
Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary
obligation of confidentiality to, the disclosing Party with respect to such Confidential
Information. Notwithstanding anything in this Section 9.3(a) to the contrary, Confidential
Information of Customer related to Customer’s business which was separated from Service Provider
will in no event be included within any exception herein and will be subject to Section 9.2
above.



               (b) If a receiving Party is requested or required (by oral question, interrogatories, requests
for information or documents, subpoena, civil investigative demand or similar process) by any
Governmental Authority or pursuant to applicable Law to disclose or provide any Confidential
Information of the other Party, the Party receiving such request or demand will use commercially
reasonable efforts to provide the other Party with written notice of such request or demand as
promptly as practicable under the circumstances so that such other Party will have an opportunity
to seek an appropriate protective Order. The Party receiving such request or demand agrees to
take, and cause its representatives to take, at the requesting Party’s expense, all other
reasonable steps necessary to obtain confidential treatment by the recipient. Subject to the
foregoing, the Party that received such request or demand may thereafter disclose or provide any
such Confidential Information, as the case may be, to the extent (and only in such amount) required
by such Law (as so advised by counsel) or by lawful process or such Governmental Authority.



          9.4 Return or Destruction. Upon the termination or expiration of the Services, each
Party will return or certify the destruction of the other Party’s Confidential Information in such
other Party’s possession or control.




10. COMPENSATION




          10.1 One-time Charges. Customer will pay to Service Provider a one-time $11,624,000
payment as reimbursement of the fees and expenses incurred by Service Provider and it Subsidiaries
in connection with the preparation of providing the Services to Customer.




          10.2 Monthly Charges. Customer will pay Service Provider $3,017,000 per month. Upon
early termination of any individual Service(s) pursuant to Section 14.1(b) hereof, the parties will
cooperate in good faith to adjust the monthly charges paid by Customer hereunder to correspond with
the actual Service(s) being provided. Upon the extension of any individual Service(s) pursuant to
Section 2 hereof, Customer will pay to Service Provider the charges set




13









 







forth in Schedule C for such Service(s) for each month of additional service;
provided, however, that if Customer extends only certain individual Services within
a “Service Bundle” set forth in Schedule C, the parties will cooperate in good faith to
adjust the monthly charges paid by Customer to correspond with the scope of Services in such
“Service Bundle” which are being extended.




          10.3 Other Expenses. Customer will reimburse Service Provider for those reasonable
out-of-pocket expenses incurred by Service Provider solely in connection with its performance of
the Services and not included in the Charges; provided, however, that such
out-of-pocket expenses will not include payments to third parties for items that were routinely
incurred by Service Provider prior to the Effective Date (such as for overhead and utilities,
supplies, and the like) and provided further that Service Provider will consult with Customer prior
to incurring any out of pocket expense which is outside the ordinary course of the business related
to the Services.




          10.4 Taxes. In addition to the amounts described in Sections 10.1 through
10.3, Customer shall pay, and hold Service Provider harmless against, all sales, use or
other Taxes, or other fees or assessments imposed by Law in connection with the provision of the
Services, other than any income or franchise Taxes. As soon as practicable after the Effective
Date, Customer shall apply for and use its best efforts to obtain and thereafter maintain, and
timely provide to Service Provider, a direct pay permit. Customer shall also provide Service
Provider with timely resale or other applicable exemption certificates. Service Provider and
Customer shall cooperate with each other and use commercially reasonable efforts to assist the
other in entering into such arrangements as the other may reasonably request in order to minimize,
to the extent lawful and feasible, the payment or assessment of any Taxes relating to the
transactions contemplated by this Agreement, including, where appropriate, requiring their
Affiliates within a country to enter into a companion Contract for purchase of Services within such
country; provided, however, that nothing in this Section 10.4 shall
obligate Service Provider to cooperate with, or assist, Customer in any arrangement proposed by
Customer that would, in Service Provider’s reasonable discretion, have a detrimental effect on
Service Provider or any of Service Provider’s Affiliates.




          10.5 Invoicing and Payment. Service Provider will invoice Customer monthly. Payment
is due thirty (30) days following the date of invoice. Payments past due shall bear interest
calculated on a per annum basis from the due date to the date of actual payment at a fluctuating
interest rate equal at all times to the prime rate of interest announced publicly from time to time
by Citibank, N.A. (or its successor or another major money center commercial bank agreed to by the
Parties), plus three percent (3%), but in no case higher than the maximum rate permitted by Law.
Customer shall make payments under this Agreement by electronic funds transfer in accordance with
payment instructions provided by Service Provider from time to time. In the event the Parties’
Affiliates enter into companion Contracts for the Services, Customer will remain responsible for
paying any amounts which are not paid when due by Customer’s Affiliates under such companion
Contracts.




11. REPRESENTATIONS AND WARRANTIES




          11.1 Authority. Each Party represents and warrants to the other that: (i) it has all
requisite legal and corporate power to execute and deliver this Agreement; (ii) it has taken all
corporate action necessary for the authorization, execution and delivery of this Agreement; (iii)
no Contract with any other person, firm, corporation or other entity exists or will exist which




14









 







would interfere with its obligations hereunder; and (iv) this Agreement is a legal, valid and
binding obligation of it, enforceable against it in accordance with the terms of this Agreement.
Each Party’s warranty in clause (iii) above is subject to the obtainment of all Required
Consents.




          11.2 Compliance with Laws. Each Party represents and warrants that it is duly
licensed or qualified to do business and is in good standing in every jurisdiction in which a
license or other qualification is required for the conduct of its business, except where the
failure to be so licensed or qualified would have no material adverse effect on its ability to
fulfill its obligations under this Agreement.




          11.3 Standard of Performance; Standard of Care.




               (a) Each Statement of Work is the central document that describes Service Provider’s scope of
responsibility with respect to the specific service outlined in the SOW.



               (b) Unless otherwise specified in this Agreement or any SOW, the Services will be performed
initially in substantially the same manner and in the same locations that such Services were
generally performed by Service Provider for Customer’s business immediately prior to the Effective
Date, and thereafter will continue to be performed in the same locations and in substantially the
same manner as Service Provider generally performs such services for its own retained businesses,
except to the extent such Services are limited or changed because of the separation of Customer’s
and Service Provider’s businesses as contemplated by the Separation Agreement. The Services will
include reports provided by Service Provider for Customer’s business immediately prior to the
Effective Date, and thereafter will continue to be provided in substantially the same manner as
Service Provider generally provides such reports for its own retained businesses, except to the
extent the reports are limited or changed because of the separation of Customer’s and Service
Provider’s businesses as contemplated by the Separation Agreement.



               (c) In no event will Service Provider be required to do any of the following: (i) make any
customization to the Services (or Service Provider’s associated systems or processes) that are
unique to Customer, beyond the customizations that Service Provider elects to make to support its
own shared services environment, except for customizations that are expressly agreed upon in
writing by Service Provider and Customer, (ii) provide access to Service Provider’s Systems to
Recipient Personnel, other than those Recipient Personnel who (x) were employees of Service
Provider prior to the Effective Date (or a person hired after the Effective Date to replace such
Recipient Personnel) and (y) had access to Service Provider systems prior to the Effective Date,
(iii) provide Services in a location other than locations where Services were provided prior to the
Effective Date or (iv) provide reports incremental to those provided prior to the Effective Date.



               (d) Service Provider reserves the right to make changes to the Services in the ordinary course
of business, including with respect to Service Provider planned maintenance activities. The
provision of the Services will be subject, in all cases, to Customer’s compliance with Service
Provider’s then-current work processes, policies and procedures for the Services and in compliance
with all material Laws.



               (e) Notwithstanding the foregoing, Service Provider has no obligation to perform its
obligations pursuant to this Section in a manner that exceeds Service Provider’s past practices,
policies and procedures for Services. Nothing in this Agreement shall require Service Provider or
any of its Affiliates to perform the Services in a manner that would constitute a



15









 







violation of applicable Laws.



          11.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 11, SERVICE
PROVIDER MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ANY, REPRESENTATION OR WARRANTY OF ANY KIND OR
NATURE WHATSOEVER, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING
OUT OF COURSE OF DEALING OR USAGE OF TRADE.




12. INSURANCE




          12.1 Coverages. At all times during the Term, both Parties shall procure and
maintain, at their own expense and for their own benefit, Comprehensive/Commercial General
Liability insurance (including Professional Liability and Contractual Liability coverages) with a
bodily injury, death and property damage combined single limit of not less than $5,000,000 per
occurrence and in the aggregate. Each policy of insurance to be maintained hereunder shall name
the other Party, including its Affiliates, and the officers, directors and employees of each, as
additional insureds.




     In addition, both Parties shall maintain in full force and effect during the Term the
following insurance coverage:



                    (i) Comprehensive Automobile Liability insurance covering owned, hired and non-owned vehicles
with minimum limits of $2,000,000 per person and $2,000,000 per occurrence for bodily injury and
$2,000,000 property damage or combined single limit of $2,000,000.



                    (ii) Workers’ Compensation insurance with limits as required by the Laws of the states in
which the Party’s employees are employed, and Employer’s Liability insurance with minimum limit of
$1,000,000 per occurrence.



          12.2 Policies. Upon the written request of Customer, Service Provider will cause its
insurers to issue certificates of insurance evidencing that the coverages and policy endorsements
required under this Agreement are in force.




          12.3 Risk of Loss. Service Provider shall be responsible for the risk of loss of, or
damage to, any property of Customer or the other Recipients at a Service Provider Facility, unless
such loss or damage was caused by the acts or omissions of Customer or an agent of Customer.
Customer shall be responsible for the risk of loss of, or damage to, any property of Service
Provider and its Affiliates and subcontractors at a Customer Facility unless such loss or damage
was caused by the acts or omissions of Service Provider or an agent of Service Provider.




13. INDEMNITIES, PROCEDURES AND LIMITATIONS.




          13.1 Indemnification by Customer. Customer agrees to indemnify, hold harmless and
defend Service Provider and its Affiliates and their respective directors, officers and employees
(the “Service Provider Parties”), from and against any and all claims, losses, demands,
damages, liabilities, costs, judgments and expenses (including reasonable attorneys’ fees)
(collectively, “Losses”) as set forth below:




16









 








               (a) any claim by any Affiliate of Customer, or a Customer third party contractor asserting
rights under this Agreement (other than an express right of indemnification under this Section
13) or direct or indirect purchasers of Customer’s products or products of Customer’s
Affiliates; and



               (b) any third party arising out of:



                    (i) Customer’s failure to observe or perform any duties or obligations to be observed or
performed after the Effective Date under any of the third party Software licenses, Equipment leases
or other Contracts to the extent Customer is financially or operationally responsible for such
compliance under this Agreement;



                    (ii) Customer’s breach of its obligations under Article 9 with respect to Service
Provider’s Confidential Information;



                    (iii) Infringement or misappropriation or alleged infringement or alleged misappropriation of
a patent, trade secret, copyright or other proprietary rights arising from Software or materials
that Customer provides for Service Provider’s use in connection with the Services;
provided, however, that Customer shall not have any obligation or liability to the
extent any infringement or misappropriation is caused by: (1) modifications made by Service
Provider or its Subcontractors, without the knowledge or approval of Customer or the unauthorized
use by Service Provider or its Subcontractors of such Software outside the scope of the Services;
(2) Service Provider’s combination of Customer’s Software or materials with items not furnished,
specified or reasonably anticipated by Service Provider or contemplated by this Agreement; (3) the
failure of Service Provider to use corrections or modifications provided by Customer for the
infringing Software or materials; or (4) third party Software or materials, except to the extent
that such infringement or misappropriation arises from Customer’s failure to perform its
obligations with regard to obtaining a Required Consent;



                    (iv) Taxes, together with interest and penalties, that are the responsibility of Customer
under Section 10.4; or



                    (v) personal injury to employees of Customer or its Affiliates (or any other entity(ies)
designated by Customer) while at Service Provider’s facility to receive Services under this
Agreement, to the extent such Losses do not result from the negligence of Service Provider.



          13.2 Indemnification by Service Provider. Service Provider agrees to indemnify, hold
harmless and defend Customer and its Affiliates and their respective directors, officers and
employees (the “Customer Parties”), from and against any and all Losses set forth below:




               (a) any claim by a Service Provider Affiliate or Subcontractor asserting rights under this
Agreement (other than an express right of indemnification under this Section 13).



               (b) any third party claim arising out of:



                    (i) Service Provider’s failure to observe or perform any duties or obligations to be observed
or performed after the Effective Date under any of the third party Software licenses, Equipment
leases or third party Contracts to the extent Service Provider is



17









 







financially or operationally responsible for such compliance under this Agreement, provided
that such failure does not arise from or relate to any failure by Customer to obtain a Required
Consent which is Customer’s responsibility pursuant to this Agreement;



                    (ii) Service Provider’s breach of its obligations under Article 9 with respect to
Customer’s Confidential Information;



                    (iii) Infringement or misappropriation or alleged infringement or alleged misappropriation of
a patent, trade secret, copyright or other proprietary rights arising from Software or materials
that Service Provider provides for Customer’s use in connection with the Services;
provided, however, that Service Provider shall not have any obligation or liability
to the extent any infringement or misappropriation is caused by: (1) modifications made by
Customer or its contractors or users, without the knowledge or approval of Service Provider or the
unauthorized use by Customer or its Subcontractors of such Software outside the scope of the
Services; (2) Customer’s combination of Service Provider’s Software or materials with items not
furnished, specified or reasonably anticipated by Customer or contemplated by this Agreement; (3)
the failure of Customer to use corrections or modifications provided by Service Provider for the
infringing Software or materials; or (4) third party Software or materials;



                    (iv) Taxes, together with interest and penalties, that are the responsibility of Service
Provider under Section 10.4; or



                    (v) personal injury to employees of Service Provider or its Affiliates while at facilities of
Customer to provide Services under this Agreement, to the extent such Claims do not result from the
negligence of Customer.



          13.3 Reductions For Insurance Proceeds And Other Recoveries.




               (a) Insurance Proceeds. The amount that any Indemnifying Party is or may be required
to provide indemnification to or on behalf of any Indemnified Party pursuant to Sections
13.1 or 13.2, as applicable, will be reduced (retroactively or prospectively) by any
Insurance Proceeds or other amounts actually recovered from unaffiliated third-parties (and
excluding any captive insurance companies of the Indemnified Party or its Affiliates) by or on
behalf of such Indemnified Party in respect of the related Claims (net of any corresponding
increase in premium payments or other related increases in insurance expenses of the Indemnified
Party). The existence of a claim by an Indemnified Party for monies from an insurer or against a
third-party in respect of any indemnifiable Claims will not, however, delay any payment pursuant to
the indemnification provisions contained herein and otherwise determined to be due and owing by an
Indemnifying Party. Rather, the Indemnifying Party will make payment in full of the amount
determined to be due and owing by it against an assignment by the Indemnified Party to the
Indemnifying Party of the entire claim of the Indemnified Party for Insurance Proceeds or against
such third-party. Notwithstanding any other provisions of this Agreement, it is the intention of
the Parties that no insurer or any other third-party will be (i) entitled to a “wind-fall” or other
benefit it would not be entitled to receive in the absence of the foregoing indemnification
provisions or otherwise have any subrogation rights with respect thereto, or (ii) relieved of the
responsibility to pay any claims for which it is obligated.



               (b) Tax Detriment/Tax Benefit. The amount that any Indemnifying Party is or may be
required to provide indemnification to or on behalf of any Indemnified Party pursuant to



18









 




Sections 13.1 or 13.2, as applicable, will be (i) decreased to take into
account any Tax benefit actually realized by the Indemnified Party (or an Affiliate thereof)
arising from the incurrence or payment of the relevant indemnified item, and (ii) increased to take
into account any Tax cost actually incurred by the Indemnified Party (or an Affiliate thereof)
arising from the receipt of the relevant indemnity payment. Any indemnity payment hereunder will
initially be made without regard to this Section 13.3(b) and will be reduced or increased
to reflect any applicable Tax benefit or Tax cost, as the case may be, within 30 days after the
Indemnified Party (or an Affiliate thereof) realizes such Tax benefit or incurs such Tax cost by
way of a Refund, an increase in Taxes or otherwise. The Indemnified Party will, within 30 days
after the Indemnified Party (or its Affiliate) realizes or incurs the applicable Tax benefit or
cost, provide the Indemnitee with notice thereof and supporting documentation addressing, in
reasonable detail, the amount of any reduction or increase in Taxes of the Indemnified Party (or
its Affiliate), the parties will promptly make any payments necessary to reflect the relevant
reduction or increase in Tax liability, and the parties agree to adjust the amount of any such
payments within 30 days after a Final Determination affecting the amount of the relevant Tax
benefit or Tax cost.




          13.4 Indemnification Procedure. The Party or Parties making a claim for
indemnification under Section 13.1 or Section 13.2 (collectively, “Third-Party
Claims”) shall be, for the purposes of this Agreement, referred to as the “Indemnitee”
and the Party against which such claims are asserted under this Section 13 shall be, for
the purposes of this Section 13, referred to as the “Indemnifying Party”. All
Third-Party Claims by any Indemnitee under this Section 13 shall be asserted and resolved
as follows:




               (a) If an Indemnitee receives notice or otherwise learns of the assertion by a Person
(including any Governmental Authority) who is not a member of the Service Provider Group or
Customer Group of any Third-Party Claim or of the commencement by any such Person of any Action
with respect to a Third-Party Claim, such Indemnitee will give such Indemnifying Party prompt
written notice (a “Claim Notice”) thereof but in any event within 15 calendar days after
becoming aware of such Third-Party Claim. Any such notice will describe the Third-Party Claim in
reasonable detail. Notwithstanding the foregoing, the delay or failure of any Indemnitee or other
Person to give notice as provided in this Section 13.4(a) will not relieve the related
Indemnifying Party of its obligations under this Section 13, except to the extent that such
Indemnifying Party is actually prejudiced by such delay or failure to give notice.



               (b) The Indemnifying Party has the right, exercisable by written notice to the Indemnitee
within 30 days after receipt of a Claim Notice from the Indemnitee of the commencement of an Action
or assertion of any Third-Party Claim in respect of which indemnity may be sought under this
Section 13, to assume and conduct the defense of such Third-Party Claim in accordance with
the limits set forth in this Agreement with counsel selected by the Indemnifying Party and
reasonably acceptable to the Indemnitee; provided, however, that the (A) defense of
such Third-Party Claim by the Indemnifying Party will not, in the reasonable judgment of the
Indemnitee, (x) if Service Provider is the Indemnifying Party, affect Customer or any of its
Controlled Affiliates in a materially adverse manner, and (y) if Customer is the Indemnifying
Party, affect Service Provider or any of its Controlled Affiliates in a materially adverse manner;
(B) the Third-Party Claim solely seeks (and continues to seek) monetary damages and/or equitable
relief (with or without monetary damages) which equitable relief would not reasonably be expected
to affect in any material and adverse respect the operations of (x) Service Provider or its
Controlled Affiliates, if Customer is the Indemnifying Party, or (y)



19









 







Customer or its Controlled Affiliates, if Service Provider is the Indemnifying Party; and (C)
the Indemnifying Party expressly agrees with the Indemnitee in writing to be fully responsible for
all of the Losses that arise from the Third-Party Claim (the conditions set forth in clauses (A)
through (C) are, collectively, the “Litigation Conditions”). For purposes of clause (C) of
the preceding sentence, if a Third-Party Claim consists of multiple claims by a plaintiff or group
of plaintiffs, and it is reasonably practicable for an Indemnifying Party to control the defense of
a subset of the such claims, the Indemnifying Party may elect to agree to be fully responsible for
only all of the Losses that arise from such subset of claims, and may elect to control the defense
of only such subset of claims, provided that the other Litigation Conditions set forth in clauses
(A) and (B) of the preceding sentence are satisfied. If the Indemnifying Party does not assume the
defense of a Third-Party Claim in accordance with this Section 13.4(b), the Indemnitee may
continue to defend the Third-Party Claim. If the Indemnifying Party has assumed the defense of a
Third-Party Claim as provided in this Section 13.4(b), the Indemnifying Party will not be
liable for any legal expenses subsequently incurred by the Indemnitee in connection with the
defense of the Third-Party Claim; provided, however, that if (x) any of the
Litigation Conditions ceases to be met or (y) the Indemnifying Party fails to take reasonable steps
necessary to defend diligently such Third-Party Claim, the Indemnitee may assume its own defense,
and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in
connection with such defense. The Indemnifying Party or the Indemnitee, as the case may be, has
the right to participate in (but, subject to the prior sentence, not control), at its own expense,
the defense of any Third-Party Claim that the other is defending as provided in this Agreement.
The Indemnifying Party, if it has assumed the defense of any Third-Party Claim as provided in this
Agreement, may not, without the prior written consent of the Indemnitee, consent to a settlement
of, or the entry of any judgment arising from, any such Third-Party Claim that does not include as
an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a
complete release from all liability in respect of such Third-Party Claim. The Indemnitee has the
right to settle any Third-Party Claim, the defense of which has not been assumed by the
Indemnifying Party, with the prior written consent of the Indemnifying Party, not to be
unreasonably withheld.



               (c) From and after the delivery of a Claim Notice under this Section 13, at the
reasonable request of the Indemnifying Party, the Indemnitee shall grant the Indemnifying Party and
its representatives all reasonable access to the books, records and properties of such Indemnitee
to the extent reasonably related to the matters to which the Claim Notice relates. All such access
shall be granted during normal business hours and shall be granted under conditions that will not
unreasonably interfere with the businesses and operations of such Indemnitee. The Indemnifying
Party will not, and shall cause its representatives not to, use (except in connection with such
Claim Notice or such Third-Party Claim) or disclose to any third person or entity other than the
Indemnifying Party’s representatives (except as may be required by Laws) any information obtained
pursuant to this Section 13.3(c), which is designated as confidential by the Indemnitee.



               (d) With respect to any Third-Party Claim for which Customer or Service Provider may have
liability under this Agreement, the Parties agree to cooperate fully and maintain a joint defense
(in a manner that will preserve the attorney-client privilege, joint defense or other privilege
with respect thereto) so as to minimize such liabilities and defense costs associated therewith.
The Party that is not responsible for managing the defense of such Third-Party Claims will, upon
reasonable request, be consulted with respect to significant



20









 







matters relating thereto and may retain counsel to monitor or assist in the defense of such
claims at its own cost.



          13.5 Limitations on Liability.




               (a) Subject to the specific provisions and limitations of this Section 13.4 and this
Section 13.5, it is the intent of the Parties that each Party shall be liable to the other
Party for any Losses as to which it is entitled to indemnification under Sections 13.1 and
13.2 and, with respect to a breach of the Agreement for any Losses with respect to Direct
Claims under Section 5.6 resulting from a breaching Party’s unexcused failure to perform
its obligations under this Agreement; provided, however, that with respect to Direct
Claims, “Losses” will not include attorneys’ fees or other arbitration or litigation expenses
(including without limitation experts’ fees and administrative costs) incurred in connection with
the prosecution of such Direct Claim under the provisions set forth in Article 6 of the
Separation Agreement.



               (b) Except for Losses arising out of or relating to (i) Service Provider’s gross negligence or
willful misconduct or breach of Article 9, or (ii) claims covered by Service Provider’s
indemnity obligations set forth in Section 13.2(b), the total aggregate liability of
Service Provider for breach of this Agreement shall be limited to $6,000,000.



               (c) Except for Losses arising out of or relating to (i) Customer’s obligation to pay the
Charges due under this Agreement, gross negligence or willful misconduct or breach of Article
9, or (ii) claims covered by Customer’s indemnity obligations set forth in Section
13.1(b), the total aggregate liability of Customer for breach of this Agreement shall be
limited to $6,000,000.



               (d) Each Party shall use its commercially reasonable efforts to mitigate Losses for which it
seeks recourse hereunder, including by promptly pursuing recovery under available insurance
policies, provided, however, that the failure of such Party to successfully
mitigate such Losses shall not affect such Party’s right to seek recourse with respect to such
Losses so long as such Party shall have used its commercially reasonable efforts to mitigate.



               (e) EXCEPT IN THE CASE OF WILLFUL MISCONDUCT, NO PARTY TO THIS AGREEMENT OR ITS AFFILIATES
SHALL BE LIABLE TO OR OTHERWISE RESPONSIBLE TO ANY OTHER PARTY HERETO OR ITS AFFILIATES FOR
EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, LOST PROFITS,
LOST SALES, BUSINESS INTERRUPTION OR LOST BUSINESS OPPORTUNITIES THAT ARISE OUT OF OR RELATE TO
THIS AGREEMENT OR THE PERFORMANCE (OR FAILURE TO PERFORM) HEREUNDER, REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE OR SUCH PARTY HAD BEEN APPRISED OF THE LIKELIHOOD THEREOF.



               (f) Regardless of any other rights under any other agreements or mandatory provisions of Law,
neither Service Provider nor Customer shall have the right to set-off the amount of any Loss it may
have under this Agreement, whether contingent or otherwise, against any amount owed by such Party
to the other Party, whether under this Agreement or otherwise.



          13.6 Indemnification and Limitations on Liability Relating to Negligence and Strict
Liability. ALL INDEMNITIES AND LIMITATIONS ON LIABILITY CONTAINED IN THIS




21









 







SECTION 13 SHALL APPLY WHETHER OR NOT THE INDEMNITEE OR PARTY CLAIMING DAMAGES WAS OR
IS CLAIMED TO BE PASSIVELY, CONCURRENTLY OR ACTIVELY NEGLIGENT, AND REGARDLESS OF WHETHER LIABILITY
WITHOUT FAULT IS IMPOSED OR SOUGHT TO BE IMPOSED ON SUCH INDEMNITEE OR PARTY.




          13.7 Waiver of Subrogation. Service Provider shall use commercially reasonable
efforts to cause its insurers to waive their rights of subrogation against Customer with respect to
any Losses. Likewise, Customer shall use commercially reasonable efforts to cause its insurers to
waive their rights of subrogation against Service Provider with respect to any Loss.




14. TERMINATION




          14.1 Termination Rights.




               (a) Termination for Cause. In addition to, and not in limitation of, any other
termination rights set forth in this Agreement, either Party may, by giving written notice to the
other Party, terminate this Agreement if such other Party commits a material breach of this
Agreement (a “Default”) which Default is not cured within ten (10) days after notice of the
Default. For purposes hereof, non-payment by Customer shall be deemed a Default.



               (b) Termination for Convenience. Customer may terminate this Agreement or any
individual Service (including any individual Service within a “Service Bundle” set forth in
Schedule C), if such individual Service(s) can be segregated from the other Services that
will continue to be provided, at any time by giving Service Provider at least sixty (60) days prior
written notice designating the termination date. Upon any such termination for convenience,
Customer will remain liable for fees and expenses for all properly performed Services up to the
effective date of termination.



               (c) For Insolvency. If either Party (i) files for bankruptcy, (ii) becomes or is
declared insolvent, or is the subject of any proceedings (not dismissed within sixty (60) days)
related to its liquidation, insolvency or the appointment of a receiver or similar officer for
Service Provider, (iii) makes an assignment for the benefit of all or substantially all of its
creditors, (iv) takes any corporate action for its winding-up, dissolution or administration, or
(v) enters into a Contract for the extension or readjustment of substantially all of its
obligations, then the other Party may terminate this Agreement for cause as of a date specified in
a written termination notice.



          14.2 Termination for Non-Payment. Service Provider may, upon written notice to
Customer, terminate this Agreement if Customer has failed to pay any undisputed charges within
thirty (30) days after receiving written notice from Service Provider of the possibility of
termination for failure to make such payments.




          14.3 Survival. Any provision of this Agreement which contemplates performance or
observance subsequent to any termination or expiration of this Agreement will survive any
termination or expiration of this Agreement and continue in full force and effect including, but
not limited to, the following: this Section 14.3, Sections 7.1(b), 8.2, Articles 9, 13 (subject
to Section 15.13) and 15.




22









 








          14.4 Rights Upon Termination or Expiration. At Customer’s request and expense,
Service Provider will provide Customer with reasonable information and assistance to facilitate the
transition responsibility for the Services to Customer or its designee (“Termination Assistance
Services”). The provision of such Termination Assistance Services shall be subject to the
Parties’ agreement on a detailed work plan and the availability of the applicable Service Provider
resources. In no event shall Service Provider be required to provide any specialized or customized
services as part of the Termination Assistance Services.




15. GENERAL




          15.1 Construction.




               (a) References to Customer Includes Recipients. Customer is fully responsible and
liable for the Recipients’ compliance with this Agreement, and any actions, omissions, or materials
provided by any Recipients other than Customer shall be deemed to be Customer’s actions, omissions,
or materials provided by Customer.



               (b) General. The descriptive headings herein are inserted for convenience of reference
only and are not intended to be a substantive part of or to affect the meaning or interpretation of
this Agreement. All references to Sections contained herein mean Sections of this Agreement unless
otherwise stated and except in the schedules hereto, wherein references to Sections shall mean
Sections of such schedule unless otherwise stated. Whenever required by the context, any pronoun
used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns, pronouns, and verbs will include the plural and vice versa. Reference to
any agreement, document, or instrument means such agreement, document, or instrument as amended or
otherwise modified from time to time in accordance with the terms thereof, and if applicable
hereof. The use of the words “include” or “including” in this Agreement will be by way of example
rather than by limitation. The use of the words “or,” “either” or “any” will not be exclusive.
The Parties have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this Agreement will be construed
as if drafted jointly by the Parties hereto, and no presumption or burden of proof will arise
favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this
Agreement.



          15.2 Binding Effect; No Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors, permitted assigns and legal
representatives. Except as expressly provided in this Section 15.2, this Agreement is not
assignable by either Party without the prior written consent of the other Party and any other
purported assignment shall be null and void.




          15.3 Counterparts. This Agreement may be executed in multiple counterparts (any one
of which need not contain the signatures of more than one Party), each of which will be deemed to
be an original but all of which taken together will constitute one and the same agreement. This
Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile
machine or other electronic transmission, will be treated in all manner and respects as an original
agreement and will be considered to have the same binding legal effects as if it were the original
signed version thereof delivered in person. At the request of any Party, the other Party will
re-execute original forms thereof and deliver them to the requesting Party. No Party will raise
the use of a facsimile machine or other electronic means to deliver a signature or




23









 







the fact that any signature was transmitted or communicated through the use of facsimile
machine or other electronic means as a defense to the formation of a Contract and each such Party
forever waives any such defense.




          15.4 Entire Agreement. This Agreement represents the entire agreement among the
Parties relating to the matters described herein and therein, and no prior representations or
agreements, whether written or oral, will be binding on any Party unless incorporated into this
Agreement or agreed to by the Party in a writing signed by the Party on or after the date of this
Agreement. While purchase orders, invoices or similar routine documents may be used to implement
or administer provisions of this Agreement, any provisions of these documents that add to, vary,
modify or are at conflict with the provisions of this Agreement shall be deemed deleted and shall
have no force or effect on either Party’s rights or obligations under this Agreement.




          15.5 Force Majeure.




               (a) “Force Majeure Event” means any event beyond the reasonable control of the Party
affected that significantly interferes with the performance by such Party of its obligations under
this Agreement, including acts of God, strikes, lockouts or industrial disputes or disturbances,
civil disturbances, arrests or restraint from rulers or people, interruptions by Orders, present
and future valid Orders of any regulatory body having proper jurisdiction, acts of the public
enemy, wars, riots, blockades, insurrections, inability to secure labor, or secure materials upon
terms deemed practicable by the Party affected (including inability to secure materials by reason
of allocations, voluntary or involuntary, promulgated by authorized governmental agencies),
epidemics, landslides, lightning, earthquakes, fire, storm, floods, washouts, explosions, breakage
or accident to machinery.



               (b) If a Force Majeure Event is claimed by either Party, the Party making such claim shall
orally notify the other Party as soon as reasonably possible after the occurrence of such Force
Majeure Event and, in addition, shall provide the other Party with written notice of such Force
Majeure Event within five (5) days after the occurrence of such Force Majeure Event.



               (c) Except for Customer’s obligations to make payments hereunder, neither Party hereto will be
liable for any nonperformance or delay in performance of the terms of this Agreement when such
failure is due to a Force Majeure Event. If either Party relies on the occurrence of a Force
Majeure Event as a basis for being excused from performance of its obligations hereunder, such
Party relying on the Force Majeure Event shall (i) provide an estimate of the expected duration of
the Force Majeure Event and its probable impact on performance of such Party’s obligations
hereunder and (ii) provide prompt notice to the other Party of the cessation of the Force Majeure
Event.



               (d) Upon the occurrence of a Force Majeure Event, the same will, so far as possible, be
remedied using commercially reasonable efforts. It is understood and agreed that nothing in this
Section 15.5(d) shall require the settlement of strikes, lockouts or industrial disputes or
disturbances by acceding to the demands of any opposing party therein when such course is
inadvisable in the discretion of the Party having the difficulty.



          15.6 Further Assurances. In addition to the actions specifically provided for
elsewhere in this Agreement, each of the Parties hereto will cooperate with each other and use



24









 







commercially reasonable efforts to take, or to cause to be taken, all actions, and to do, or
to cause to be done, all things reasonably necessary on its part under applicable Law or
contractual obligations to consummate and make effective the transactions contemplated by this
Agreement.



          15.7 Governing Law. The validity, interpretation and enforcement of this Agreement
will be governed by the Laws of the State of Ohio, other than the choice of Law provisions thereof.




          15.8 Independent Contractors. Service Provider is an independent contractor, with all
of the attendant rights and liabilities of an independent contractor, and not an employee of
Customer or, except for authorizations specifically described in a schedule with respect to a
particular function, an agent of Customer. Any provision in this Agreement, or any action by
Customer, that may appear to give Customer the right to direct or control Service Provider in
performing under this Agreement means that Service Provider shall follow the desires of Customer in
results only.




          15.9 Notices. Any notice, demand, claim or other communication under this Agreement
will be in writing and will be deemed to have been given (i) on the delivery if delivered
personally, return receipt requested, postage prepaid; (ii) on the date on which delivery thereof
is guaranteed by the carrier if delivered by a national courier guaranteeing delivery within a
fixed number of days of sending; or (iii) on the date of transmission thereof if delivery is
confirmed, but, in each case, only if addressed to the Parties in the following manner at the
following addresses or facsimile numbers (or at the other address or other number as a Party may
specify by notice to the other):




If to Service Provider:



The Procter & Gamble Company

One Procter & Gamble Plaza

Cincinnati, Ohio 45202

Attn: Tom Buescher, Relationship Manager

Facsimile: (513) 386-1279




25









 








     With a copy to:


The Procter & Gamble Company

One Procter & Gamble Plaza

Cincinnati, Ohio 45202

Attn: General Counsel

Facsimile: (513) 983-7635



If to Customer:



The Folgers Coffee Business

One Strawberry Lane

Orrville, Ohio 44667

Attn: Jeff Eshelman, Relationship Manager

Facsimile: (330) 684-3186




     With a copy to:


The J. M. Smucker Company

One Strawberry Lane

Orrville, Ohio 44667

Attn: General Counsel

Facsimile: (330) 684-3026




          15.10 Publicity. Except as otherwise required by Law, each of Service Provider and
Customer will consult with the other and obtain the prior written consent of the other before
issuing, or permitting any agent or Affiliate to issue, any press releases or otherwise making, or
permitting any agent or Affiliate to make, any public statements with respect to this Agreement or
the transactions contemplated hereby.




          15.11 Amendments and Waivers. This Agreement may be amended and any provision of this
Agreement may be waived, provided that any such amendment or waiver shall be binding upon a Party
only if such amendment or waiver is set forth in a writing executed by such Party. No course of
dealing between or among any Persons having any interest in this Agreement shall be deemed
effective to modify, amend or discharge any part of this Agreement or any rights or obligations of
any Party hereto under or by reason of this Agreement. No delay or failure in exercising any
right, power or remedy hereunder shall affect or operate as a waiver thereof; nor shall any single
or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right,
power or remedy preclude any further exercise thereof or of any other right, power or remedy. The
rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any
Party hereto would otherwise have. Any waiver, permit, consent or approval of any kind or
character of any breach or default under this Agreement or any such waiver of any provision of this
Agreement must satisfy the conditions set forth in this Section 15.11 and shall be
effective only to the extent in such writing specifically set forth.




          15.12 Severability. The Parties agree that (i) the provisions of this Agreement shall
be severable in the event that for any reason whatsoever any of the provisions hereof are invalid,
void or otherwise unenforceable, (ii) any such invalid, void or otherwise unenforceable provisions
shall be replaced by other provisions which are as similar as possible in terms to such invalid,
void or otherwise unenforceable provisions but are valid and enforceable, and (iii) the




26









 







remaining provisions shall remain valid and enforceable to the fullest extent permitted by
applicable Law.




          15.13 Limitation. Any Action to pursuant to this Agreement must be commenced within
six (6) months after the expiration or termination of this Agreement.




[Signature Page Follows]




27









 








          IN WITNESS WHEREOF, the Parties have caused this Transition Services Agreement to be executed
by their authorized representatives, to be effective as of the Effective Date.




	 	 	 	 	 	 	 
	THE PROCTER & GAMBLE COMPANY	 	THE FOLGERS COFFEE COMPANY
	 
	 	 	 	 	 	 
	By:

	 	/s/ Jon R. Moeller
	 	By:
	 	/s/ Jon R. Moeller
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Name:

	 	Jon R. Moeller
	 	Name:
	 	Jon R. Moeller
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Title:

	 	Vice President & Treasurer
	 	Title:
	 	Vice President & Treasurer
	 

	 	 
	 	 	 	 





 









 






Schedule A

Services




[Omitted.]




 









 





Schedule B

Recipients




[Omitted.]




 









 





Schedule C

Pricing




[Omitted.]




 









 





Schedule D

Certain Service Provider Agreements




[Omitted.]