New York corporation
("Supplier").
RECITALS
WHEREAS, Supplier desires to provide to Michaels, and Michaels desires to obtain
from Supplier, the information technology services and related services and the
business process services and related services described in this Agreement on
the terms and conditions set forth in this Agreement;
WHEREAS, Michaels and Supplier have engaged in extensive discussions and
negotiations that have culminated in the formation of the relationship described
in this Agreement.
NOW, THEREFORE, for and in consideration of the agreements set forth below,
Michaels and Supplier agree as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions.
The terms used in this Agreement with initial capital
letters that are not defined herein have the meanings set forth in Exhibit 1.
1.2
Interpretation.
(A)
THE EXHIBITS, AS AMENDED FROM TIME TO TIME, ATTACHED TO THIS
AGREEMENT ARE HEREBY INCORPORATED INTO AND DEEMED PART OF THIS AGREEMENT.
ALL
REFERENCES TO "AGREEMENT" HEREIN INCLUDE THE EXHIBITS TO THIS AGREEMENT.
ALL
REFERENCES TO "EXHIBITS" HEREIN INCLUDE THE ATTACHMENTS AND APPENDICES TO SUCH
EXHIBITS.
(B)
ANY REFERENCE TO AN "ARTICLE," "SECTION," OR "EXHIBIT" SHALL BE TO
SUCH ARTICLE, SECTION OR EXHIBIT OF THIS AGREEMENT, UNLESS OTHERWISE EXPRESSLY
PROVIDED.
(C)
THE HEADINGS PRECEDING THE TEXT OF ARTICLES AND SECTIONS AND THE
HEADINGS TO EXHIBITS, THE TABLE OF CONTENTS, AND OTHER PORTIONS OF THIS
AGREEMENT ARE USED FOR CONVENIENCE ONLY AND ARE NOT TO BE CONSIDERED IN
CONSTRUING OR INTERPRETING THIS AGREEMENT.
(D)
THE USE OF THE TERMS "INCLUDING," "INCLUDE" OR "INCLUDES" SHALL IN
ALL CASES MEAN "INCLUDING WITHOUT LIMITATION," "INCLUDE WITHOUT LIMITATION" OR
"INCLUDES WITHOUT LIMITATION," RESPECTIVELY.
(E)
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT:
(I) CONSENTS
AND APPROVALS TO BE GIVEN BY A PARTY UNDER THIS AGREEMENT SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED; (II) EACH PARTY SHALL MAKE ONLY REASONABLE
REQUESTS UNDER THIS
1
AGREEMENT; AND (III) ALL NOTICES, REQUESTS, CONSENTS, APPROVALS, AGREEMENTS,
AUTHORIZATIONS, ACKNOWLEDGEMENTS, WAIVERS AND OTHER COMMUNICATIONS REQUIRED OR
PERMITTED UNDER THIS AGREEMENT MUST BE MADE IN WRITING AND BY A REPRESENTATIVE
WHO, IN THE CIRCUMSTANCES, CAN BE REASONABLY EXPECTED TO CARRY THE NECESSARY
AUTHORITY IN ORDER TO BE BINDING.
(F)
THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE NEGOTIATED THE
TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT ANY PROVISION CONTAINED HEREIN
WITH RESPECT TO WHICH AN ISSUE OF INTERPRETATION OR CONSTRUCTION ARISES SHALL
NOT BE CONSTRUED TO THE DETRIMENT OF THE DRAFTER ON THE BASIS THAT SUCH PARTY OR
ITS PROFESSIONAL ADVISOR WAS THE DRAFTER, BUT SHALL BE CONSTRUED ACCORDING TO
THE INTENT OF THE PARTIES AS EVIDENCED BY THE ENTIRE AGREEMENT.
1.3
Order of Precedence.
Except as otherwise expressly set forth in
the body of this Agreement or in an Exhibit, in the event of a conflict,
ambiguity or inconsistency between the provisions in the body of this Agreement,
any Exhibit, any attachment or any document incorporated by reference, then such
conflict, ambiguity or inconsistency shall be resolved by giving precedence to
the document higher in the following order of priority:
(A)
FIRST, THE PROVISIONS IN THE BODY