THE PERFORMANCE OF OR COMPLIANCE WITH THE TERMS AND
CONDITIONS HEREOF OR THEREOF, OR (B) TO ENSURE THE LEGALITY, VALIDITY AND
ENFORCEABILITY OF ANY OF THE ALLIANCE AGREEMENTS.
SECTION 3.07.
NO LITIGATION.
AS OF THE DATE HEREOF, THERE IS NO LITIGATION OR
OTHER PROCEEDING PENDING OR, TO THE KNOWLEDGE OF IBM, THREATENED AGAINST IBM OR
ANY OF ITS AFFILIATES WHICH, IF ADVERSELY DETERMINED, COULD REASONABLY BE
EXPECTED TO ADVERSELY AFFECT THE ABILITY OF IBM TO PERFORM ITS OBLIGATIONS
HEREUNDER OR UNDER ANY OF THE OTHER ALLIANCE AGREEMENTS.
SECTION 3.08.
PROVISION OF ASSISTANCE.
IBM SHALL PROVIDE THE IBM ASSISTANCE
USING REASONABLE CARE AND SKILL IN ACCORDANCE WITH THE ENABLEMENT ASSISTANCE
AGREEMENT.
SECTION 3.09.
GENERAL.
(A)
THE IBM SOFTWARE AND DELIVERABLES FURNISHED BY IBM PURSUANT TO THE
ENABLEMENT ASSISTANCE AGREEMENT, PRIOR TO ITS USE ON ANY SYSTEM OR OTHER MEDIUM
IN CONNECTION WITH THE ENABLEMENT ASSISTANCE AGREEMENT, SHALL BE TESTED (IN
ACCORDANCE WITH IBM'S APPLICABLE TESTING STANDARDS) FOR, AND WILL NOT, TO IBM'S
KNOWLEDGE, CONTAIN, HARMFUL CODE.
13
ACI WORLDWIDE, INC. HAS REQUESTED THAT
THE PORTIONS OF THIS DOCUMENT DENOTED
BY BOXES AND ASTERISKS BE ACCORDED
CONFIDENTIAL TREATMENT PURSUANT TO
RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934.
(B)
EXCEPT AS EXPRESSLY SET FORTH IN ANY OF THE ALLIANCE AGREEMENTS, IBM
EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT
AS EXPRESSLY SET FORTH IN ANY ALLIANCE AGREEMENT, ANY IBM RESOURCES, IBM
ASSISTANCE, IBM SOFTWARE AND OTHER ITEMS FURNISHED BY IBM PURSUANT TO THE
ENABLEMENT ASSISTANCE AGREEMENT, THE STAFF AUGMENTATION AGREEMENT OR ANY OTHER
ALLIANCE AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS.
ARTICLE IV
COVENANTS
SECTION 4.01.
[_*_]
SECTION 4.02.
NOTICES.
EACH OF ACI AND IBM SHALL FURNISH TO THE OTHER PARTY
PROMPT WRITTEN NOTICE OF THE FOLLOWING:
(A)
ANY NOTICE OR OTHER COMMUNICATION FROM ANY GOVERNMENTAL AUTHORITY IN
CONNECTION WITH THE ALLIANCE; AND
(B)
ANY COMMENCEMENT OF ANY LITIGATION AGAINST ACI OR IBM, AS THE CASE MAY BE,
IN RESPECT OF THE ALLIANCE.
SECTION 4.03.
FURTHER ACTION.
FROM TIME TO TIME AFTER THE DATE HEREOF, ACI AND
IBM AGREE TO EXECUTE AND DELIVER, AND TO CAUSE THEIR RESPECTIVE SUBSIDIARIES TO
EXECUTE AND DELIVER, SUCH OTHER DOCUMENTS, CERTIFICATES, AGREEMENTS AND OTHER
WRITINGS AND TO TAKE SUCH OTHER ACTIONS AS MAY BE NECESSARY OR DESIRABLE IN
ORDER TO CONSUMMATE OR IMPLEMENT THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE
OTHER ALLIANCE AGREEMENTS.
SECTION 4.04.
[_*_]
SECTION 4.05.
[_*_]
14
ARTICLE V
MANAGEMENT AND GOVERNANCE
SECTION 5.01.
ALLIANCE MANAGEMENT TEAMS.
PROMPTLY AFTER THE DATE HEREOF, EACH
OF THE PARTIES SHALL ESTABLISH AN ALLIANCE MANAGEMENT TEAM (EACH, AN "AMT")
RESPONSIBLE FOR THE SUCCESSFUL IMPLEMENTATION OF THE ALLIANCE AND THE
FACILITATION OF SUCCESSFUL COMMUNICATION BETWEEN IBM AND ACI.
ONE OF THE
DEDICATED REPRESENTATIVES OF THE AMT OF EACH PARTY WILL BE DESIGNATED AS THAT
PARTY'S ALLIANCE EXECUTIVE (THE "ALLIANCE EXECUTIVE") AND WILL (I) BE
RESPONSIBLE FOR REACHING AGREEMENT ON TARGETS FOR SALES, MARKETING, DEVELOPMENT
AND SERVICES PRIORITIES, (II) BE RESPONSIBLE FOR MANAGING