By IBM. IBM covenants and agrees that during the Term and the Termination Assistance Period:
(1) IBM shall comply in all material respects with all applicable Federal, state, local or other laws and regulations applicable to IBM and shall obtain and maintain all applicable permits and business licenses required of IBM in connection with its obligations under this Agreement;
(2) IBM shall (a) use commercially reasonable efforts to avoid the introduction of viruses into the Software or Machines operated by IBM and IBM Agents to provide the Services; (b) not, without the prior consent of EMW, intentionally insert into the IBM Software any code (such as locks) for the IBM Confidential May 12, 2000 Page 36 of 52 EMW Confidential Agreement purpose of disabling the IBM Software; (c) inform EMW of any such disabling code which it becomes aware is contained in IBM Software; and (d) not invoke any such disabling code without EMW's consent;
(3) If IBM uses any third party products (including Software and Machines) in providing the Services ("IBM THIRD PARTY PRODUCTS"), IBM shall pass through to EMW all intellectual property infringement indemnities it receives from third parties for such IBM Third Party Products, to the extent it is able to do so. If
(1) EMW or its affiliates, and their respective employees, officers and directors suffer, incur or sustain any Losses or become subject to any Losses resulting from, arising out of or relating to any third party claim that any IBM Third Party Product infringes such party's patent, copyright, trade xxxx, service xxxx, trade secret, domain name or any similar proprietary rights and (2) IBM is not able to pass through to EMW an intellectual property indemnity in respect of such IBM Third Party Product, then at EMW's request IBM shall (a) enforce IBM's indemnification rights, if any, against the applicable third party in respect of the applicable infringement claim for the benefit of EMW and, if applicable, IBM and (b) with respect to any sum recovered by IBM (including through settlement), pay to EMW a portion of such sum equal to EMW's proportional Losses resulting from such infringement claim as compared to IBM's proportional Losses resulting from such infringement claim.
(4) That none of the Deliverable Materials, non-commercial IBM Proprietary Software, non-commercial IBM Proprietary Tools, or non-commercial IBM-logoed Machines infringe a third party's patent, copyright, trade xxxx, service xxxx, trade secret, domain names or s...
By IBM. Subject to the terms and conditions of this Agreement:
By IBM for Integration of Future Releases of WAS-AE with the Termination Level Code. IBM grants Vision a nonexclusive, worldwide license to use, execute, reproduce, transmit, display, and perform the IBM Code in Object Code form only for the purpose of integrating the selected level of the IBM Code (provided by IBM to Vision pursuant IBM's exercise of the option defined in Section 10.6.3 of this Agreement) with the latest version or release of the Vision Code distributed as part of the Integrated Code at the time of termination or expiration of this Agreement.
By IBM. 35 20.03 DISCLAIMER.....................................................................................36
By IBM. IBM represents and warrants that:
(1) IBM is a corporation duly organized, validly existing and in good standing under the laws of the State of New York;
(2) IBM has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;
(3) IBM is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on IBM's ability to fulfill its obligations under this Agreement;
(4) The execution, delivery and performance of this Agreement has been duly authorized by IBM;
(5) IBM is in compliance with all applicable Federal, state, local or other laws and regulations applicable to IBM and has obtained all applicable permits and business licenses required of IBM in connection with its obligations under this Agreement;
(6) There is no outstanding litigation, arbitrated matter or other dispute to which IBM is a party which, if decided unfavorably to IBM, would reasonably be expected to have a potential or actual material adverse effect on EMW's or IBM's ability to fulfill its respective obligations under this Agreement; IBM Confidential May 12, 2000 Page 35 of 52 EMW Confidential Agreement
(7) IBM has not breached the terms of any Confidentiality Agreement entered into with EMW prior to the Effective Date; and
(8) IBM does not have any commitments to third parties that conflict with IBM's obligations to EMW in this Agreement.
By IBM. IBM represents, warrants and covenants that:
(a) IBM has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the execution, delivery and performance of this Agreement has been duly authorized by IBM;
(b) IBM shall comply with all applicable global, transnational, federal, state, local or other laws and regulations to the extent in effect and applicable to IBM’s performance of the Services under this Agreement in it’s capacity as an information technology services provider and, except as otherwise provided by this Agreement, shall obtain all applicable permits and licenses required of IBM to comply with its obligations under this Agreement;
(c) The Services will be performed in a professional and workmanlike manner in accordance with reasonable industry standards applicable to services of a similar scope and nature and the Service Levels;
(d) IBM will use adequate numbers of qualified individuals with suitable training, education, experience, competence and skill to perform the Services;
(e) IBM will use commercially reasonable efforts through the use of industry standard virus protection software and other customary procedures to prevent the introduction of Harmful Code into WSI’s environment and any Deliverables; provided that IBM’s sole obligation under this warranty and WSI’s exclusive remedy is for IBM to replace any such Deliverable with the same Deliverable not containing such Harmful Code; and
(f) IBM shall not insert into the Deliverables any code that could be invoked to disable or otherwise shut down such Deliverable intentionally, without the consent of WSI, and shall not invoke any such disabling code at any time, including upon expiration or termination of this Agreement.
By IBM. Prior to any relocation initiated by IBM of any of the IBM Service Locations that will result in a Change, IBM will seek Federal-Mogul’s prior approval. Prior to seeking Federal-Mogul’s approval for any such relocation, IBM will fully examine and evaluate the impact of such relocation, including the operational, technical, security, regulatory, and other impacts and identify any other issues or conditions that may impact the delivery of the Services or the Service Levels as a result of the proposed relocation and will prepare and provide a report to Federal-Mogul regarding same. IBM will be financially responsible for all additional costs, taxes, or expenses related to any such relocation, including reasonable costs or expenses incurred by Federal-Mogul as a result of such relocation. In addition, IBM shall reimburse Federal-Mogul for Federal-Mogul’s reasonable internal and external costs and expenses incurred in connection with its evaluation of IBM’s proposal.
By IBM. In the event of a failure by SCA to make timely payment of any undisputed Fees, or a breach by SCA of Section 9.8 (Disputed Payment), which failure or breach is not cured within thirty (30) days from the date that SCA receives written notice of such failure or breach, then IBM may, by giving written notice to SCA in accordance with Section 18.9 (Notifications and Approvals), terminate this Master Agreement, as of the date specified in the notice of termination. SCA's failure to perform its responsibilities set forth in this Master Agreement (other than as provided in this Section 11.2) shall not be deemed to be grounds for termination by IBM.
By IBM. IBM represents, warrants and covenants that: (1) it is a corporation validly existing and in good standing under the laws of New York, (2) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, (3) the execution, delivery and performance of this Agreement has been duly authorized by IBM, (4) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement, (5) in connection with providing the Services, it shall comply with all applicable Federal, state and local laws and regulations and has obtained all applicable permits, rights and licenses (including, without limitation, all rights and licenses which are necessary to use the Systems), (6) the IBM Proprietary Software does not, and the provision of the Services and the Developed Software (except for any code or materials provided or created by UHS or its Agents) does not, infringe upon the proprietary rights of any third party, (7) it has not disclosed as of the Effective Date any Confidential Information relating to UHS, (8) it is either the owner or authorized by the owner of the IBM Machines to use such IBM Machines in accordance with the terms of this Agreement, and (9) UHS shall not be required to pay any pass-through charges under this Agreement.
By IBM. Subject to the limits and other provisions of Article 30, IBM shall indemnify and hold UHS harmless from, any liability, damages or expenses, including reasonable attorneys' fees, arising out of or relating to (1) any claim by a third party that (a) the Services, (b) the IBM Proprietary Software or (c) any code or materials provided or created by IBM or its Agents that is contained in the Developed Software infringe upon the proprietary rights of any third party (except as may have been caused by (i) a modification by UHS' ---------------------------- *** Represents text deleted pursuant to a confidentiality request filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. employees (which was not directed by IBM) or (ii) UHS' combination, operation or use with devices, data or programs furnished by UHS or its Agents to the extent that the infringement would not have occurred but for such modification, combination, operation or use), (2) any amounts including taxes, interest and penalties assessed against UHS or its Affiliates which are obligations of IBM pursuant to Article 20, (3) the inaccuracy or untruthfulness of any representation, warranty or covenant made by IBM pursuant to Section 23.02, (4) claims arising out of IBM's breach or violation of IBM's subcontracting arrangements, (5) tangible personal or real property damage, net of insurance recovery, resulting from IBM's acts or omissions, to the extent such damage exceeds *** in the aggregate, (6) a breach of the safety or physical security procedures in effect (i) at the IBM Service Locations or (ii) at the UHS service locations to the extent the breach results from IBM's acts or omissions and (7) breaches of IBM's obligations under this Agreement.
