TERM AND PROVISION OF SERVICES. 2.1 Subject to Section 12, the term of this Agreement shall be for the Transition Period. Subject to Section 12, each Service shall be provided for the period of time following the Distribution that is indicated on the Schedules for such Service and each Additional Service, Omitted Service or Migration Service, if any, shall be provided for the period of time as specified in a supplemental written schedule (i) mutually agreed upon by the Parties acting reasonably and in good faith, in the case of Additional Services or Migration Services, or (ii) subject to prior confirmation in good faith by Service Provider acting reasonably, delivered by Service Recipient, in the case of Omitted Services (each such supplemental written schedule, a “Supplemental Schedule”) setting forth the terms of such Additional Service, Omitted Service or Migration Service to be provided (any such period of time with respect to a Service, an Additional Service, an Omitted Service or a Migration Service, including any extension period agreed to by the Parties pursuant to Section 2.12, a “Term”); provided that in no event shall any Term exceed a period of time of one year or, if extended by Service Recipient pursuant to Section 2.12, up to two years, after the Distribution Date. 2.2 During the Transition Period, but subject to Section 12, the applicable Term and the provisions set forth in this Agreement, Service Provider shall provide to Service Recipient (or cause to be provided by its Affiliates or third parties to Service Recipient) each Service set forth on Schedule I hereto, which Schedule I shall also include the scope of such Service and fees associated with such Service. For the avoidance of doubt, any Supplemental Schedule shall be deemed to be part of Schedule I hereto. 2.3 Except as otherwise expressly provided in the Schedules, Service Provider shall provide each Service to Service Recipient (i) in at least substantially the same manner, scope and nature, at substantially the same level of professionalism, workmanship and quality, with substantially equal priority and substantially equal treatment as such Service was provided, or caused to be provided, by Service Provider or any of its Affiliates to the Spinco Business, in the case of a Transition Service, and to the IP Business, in the case of a Reverse Transition Service, during the Reference Period and (ii) in compliance with all applicable Laws; provided, that, in the case of clause (i) above, for the purposes of determining the manner, scope, nature, professionalism, workmanship, quality and priority of any Service during the Reference Period, appropriate and reasonable modifications in manner of delivery may be made for security, confidentiality, and data integrity so long as such modifications do not adversely affect the scope, nature, professionalism, workmanship, quality or priority to the Service Recipient of the Services delivered hereunder in any material respect. 2.4 Service Provider and Service Recipient shall, and shall cause their respective Affiliates to, comply with applicable privacy and data security Laws in the provision or receipt of Services. 2.5 Service Recipient shall comply with all of Service Provider’s security policies, procedures and requirements relating to the Service Delivery Environment that have been, from time to time, previously provided in writing to Service Recipient (including those adopted after the date hereof to the extent so provided) in connection with its access and use of the Services (the “Security Policies”), and shall not tamper with, compromise or circumvent any security or audit measures employed by Service Provider. 2.6 Service Provider shall limit access to the Service Delivery Environment to Service Provider personnel who are specifically authorized to have such access, and shall take such measures to prevent unauthorized access, use, destruction, alteration or loss of Spinco Business data and other information contained therein as employed with respect to IP Business data. Service Recipient shall access and use only that portion of the Service Delivery Environment for which Service Recipient has been granted the right to access and use; provided, however, that Service Provider shall not unreasonably limit the grant of such access and use by authorized personnel. Neither Party shall establish any type of external network connectivity into the other Party’s systems or network, including WAN or Internet connectivity, without the prior written consent of the other Party. Service Recipient shall limit access of its personnel to the Service Delivery Environment to those personnel who are specifically authorized to have such access and shall cause such personnel to comply with the Security Policies in accessing the Service Delivery Environment in accordance with the terms of Section 2.5. 2.7 If, at any time, a Party determines that (a) any of its personnel has sought to circumvent, or has circumvented, the Security Policies, (b) any unauthorized personnel of such Party has accessed the Service Delivery Environment, or (c) any of its personnel has engaged in activities that may reasonably be expected to lead to the unauthorized access, use, destruction, alteration or loss of data, information or software, such Party shall promptly terminate such personnel’s access to the Service Delivery Environment and promptly notify the other Party in writing. In addition, Service Provider shall have the right to deny personnel of Service Recipient access to the Service Delivery Environment upon at least 24 hours’ written notice to Service Recipient in the event that Service Provider reasonably believes that such personnel have engaged in any of the activities set forth in this Section 2.7 or otherwise pose a security concern. Each Party will reasonably cooperate with the other Party in investigating any apparent unauthorized access to or use of the Service Delivery Environment. 2.8 The Parties acknowledge that, subject to Section 2.3, the manner, means, and resources to provide the Services are in the reasonable discretion of Service Provider; provided that Service Provider shall in good faith discuss and consider any reasonable suggestions of Service Recipient with respect to the foregoing that are consistent with the terms of this Agreement. 2.9 If any services (other than Excluded Services) that either (i) were previously provided to or for the benefit of either Party or their respective Subsidiaries, or caused to be provided to or for the benefit of either Party or their respective Subsidiaries, in each case by the other Party or its Subsidiaries, or (ii) are not of the type described in clause (i) but that Spinco reasonably believes are necessary for Spinco to operate the Spinco Business as currently conducted, have been omitted from Schedule I hereto (“Omitted Services”), then at the request of Service Recipient (in the case of clause (i), made within one year after the Distribution Date, and in the case of clause (ii), made within six months after the Distribution Date), (A) in the case of services pursuant to the foregoing clause (i), Service Provider shall provide such services, or cause such services to be provided, as promptly as reasonably practicable, pursuant to a Supplemental Schedule and (B) in the case of services pursuant to the foregoing clause (ii), so long as (x) Service Provider has the capability and existing capacity to provide such services, (y) Service Provider has provided such services to any of its other businesses within six months prior to the date of such request and (z) Service Recipient is unable to secure such services from a third party on commercially reasonable terms, Service Provider shall use its reasonable best efforts to provide such services, or cause such services to be provided, as promptly as reasonably practicable, pursuant to a Supplemental Schedule; provided, in each case, that the obligations of Service Provider to provide any Omitted Services shall be subject to Service Recipient’s use of its reasonable best efforts to cooperate with Service Provider in the provision of such services, and to the extent that changes to the systems, operations or business of Service Recipient implemented in connection with the transactions contemplated by the Contribution and Distribution Agreement or Merger Agreement or after the Distribution Date require alterations in the means of providing any such service, Service Provider shall be obligated only to use its reasonable best efforts to make such alterations. Service Recipient shall use its reasonable best efforts to cooperate with Service Provider in the provision of such services. Any Omitted Service that is provided or caused to be provided by Service Provider pursuant to this Section 2.9 shall be a “Transition Service” or a “Reverse Transition Service”, as applicable, for the purposes of this Agreement (other than as specifically indicated herein). 2.10 Subject to the service level requirements set forth in Section 2.3, Service Provider may use third parties to provide some or all of the Services. Service Provider agrees that, to the extent such third-party Services are provided to Service Recipient pursuant to contracts between Service Provider and the third-party service provider, Service Provider will (i) to the extent such contracts allow Service Provider to take such actions for the benefit of Service Recipient (after the use by Service Provider of its reasonable best efforts to obtain consent to do so, if applicable), pass-through or grant to Service Recipient any license to Intellectual Property granted to Service Provider to the extent such license is necessary for Service Recipient to receive or utilize the Services; and (ii) enforce its rights and remedies, including indemnification obligations and obligations of the third-party service provider to comply with specified service levels and warranties, against any such third parties relating to the Services to the extent it would otherwise enforce such rights and remedies on behalf of itself or any of its Affiliates under similar circumstances relating to similar matters. Any reasonable and out-of-pocket costs incurred by Service Provider in pursuing remedies on Service Recipient’s behalf and at Service Recipient’s direction and request, to the extent associated with a failure to provide Services hereunder, shall be invoiced to Service Recipient as Service Fees. Unless specifically agreed in writing by the Parties, Service Recipient will be responsible for incremental costs incurred and associated with third-party contracts initiated during the Transition Period by Service Provider, subject to Section 3.3; provided, that Service Provider shall use its reasonable best efforts to minimize such incremental costs. Service Provider will consult with and obtain the prior written consent of (such consent to be provided within five (5) Business Days and not to be unreasonably withheld) Service Recipient prior to retaining any third party to provide Services where such third party (a) is not also providing substantially similar services to Service Provider for Service Provider’s business, or (b) did not provide the Services (or substantially similar
Appears in 6 contracts
Samples: Transition Services Agreement (Veritiv Corp), Transition Services Agreement (Veritiv Corp), Transition Services Agreement (Veritiv Corp)
TERM AND PROVISION OF SERVICES. 2.1 Subject to Section 12, the term of this Agreement shall be for the Transition Period. Subject to Section 12, each Service shall be provided for the period of time following the Distribution Closing that is indicated on the Schedules for such Service and each Additional Service, Omitted Service or Migration Service, if any, shall be provided for the period of time as specified in a supplemental written schedule (i) mutually agreed upon by the Parties acting reasonably and in good faith, in the case of Additional Services or Migration Services, or (ii) subject to prior confirmation in good faith by Service Provider acting reasonably, delivered by Service Recipient, in the case of Omitted Services (each such supplemental written schedule, a “Supplemental Schedule”) setting forth the terms of such Additional Service, Omitted Service or Migration Service to be provided (any such period of time with respect to a Service, an Additional Service, an Omitted Service or a Migration Service, including any extension period agreed to by the Parties pursuant to Section 2.122.11, a “Term”); provided that in no event shall any Term exceed a period of time of one year or, if extended by Service Recipient pursuant to Section 2.122.11, up to two yearseighteen months, after the Distribution Closing Date.
2.2 During the Transition Period, but subject to Section 12, the applicable Term and the provisions set forth in this Agreement, Service Provider shall provide to Service Recipient (or cause to be provided by its Affiliates or third parties to Service Recipient) each Service set forth on Schedule I hereto, which Schedule I shall also include the scope of such Service and fees associated with such Service. For the avoidance of doubt, any Supplemental Schedule shall be deemed to be part of Schedule I hereto.
2.3 Except as otherwise expressly provided in the Schedules, Service Provider shall provide each Service to Service Recipient (i) in at least substantially the same manner, scope and nature, at substantially the same level of professionalism, workmanship and quality, with substantially equal priority and substantially equal treatment nature as such Service was provided, or caused to be provided, by Service Provider or any of its Affiliates to the Spinco Business, in the case of a Transition Service, and to the IP Business, in the case of a Reverse Transition Service, Transferred Business during the Reference Period and (ii) in compliance with all applicable Laws; provided, provided that, in the case of clause (i) above, for the purposes of determining the manner, scope, nature, professionalism, workmanship, quality scope and priority nature of any Service during the Reference Period, appropriate and reasonable modifications in manner of delivery may be made for security, confidentiality, and data integrity so long as such modifications do not adversely affect the scopemanner, nature, professionalism, workmanship, quality or priority to the Service Recipient scope and nature of the Services delivered hereunder in any material respect.
2.4 Service Provider and Service Recipient shall, and shall cause their respective Affiliates to, comply with applicable privacy and data security Laws in the provision or receipt of Services.
2.5 Service Recipient shall comply with all of Service Provider’s security policies, procedures and requirements relating to the Service Delivery Environment that have been, from time to time, previously provided in writing to Service Recipient (including those adopted after the date hereof to the extent so provided) in connection with its access and use of the Services (the “Security Policies”), and shall not tamper with, compromise or circumvent any security or audit measures employed by Service Provider.
2.6 Service Provider shall limit access to the Service Delivery Environment to Service Provider personnel who are specifically authorized to have such access, and shall take such measures to prevent unauthorized access, use, destruction, alteration or loss of Spinco Transferred Business data and other information contained therein as employed with respect to IP Transferor Business data. Service Recipient shall access and use only that portion of the Service Delivery Environment for which Service Recipient has been granted the right to access and use; provided, however, that Service Provider shall not unreasonably limit the grant of such access and use by authorized personnel. Neither Party shall establish any type of external network connectivity into the other Party’s systems or network, including WAN or Internet connectivity, without the prior written consent of the other Party; provided that if Service Provider requires such external network connectivity into Service Recipient’s systems or network to provide, or for Service Recipient to receive, the Services and Service Recipient declines to provide such consent, Service Provider shall be relieved from any obligation to provide the Services requiring such external network connectivity. Service Recipient shall limit access of its personnel to the Service Delivery Environment to those personnel who are specifically authorized to have such access and shall cause such personnel to comply with the Security Policies in accessing the Service Delivery Environment in accordance with the terms of Section 2.5.
2.7 If, at any time, a Party determines that (ai) any of its personnel has sought to circumvent, or has circumvented, the Security Policies, (bii) any unauthorized personnel of such Party has accessed the Service Delivery Environment, or (ciii) any of its personnel has engaged in activities that may reasonably be expected to lead to the unauthorized access, use, destruction, alteration or loss of data, information or software, such Party shall promptly terminate such personnel’s access to the Service Delivery Environment and promptly notify the other Party in writing. In addition, Service Provider shall have the right to deny personnel of Service Recipient access to the Service Delivery Environment upon at least 24 hours’ written notice to Service Recipient in the event that Service Provider reasonably believes that such personnel have engaged in any of the activities set forth in this Section 2.7 or otherwise pose a security concern. Each Party will reasonably cooperate with the other Party in investigating any apparent unauthorized access to or use of the Service Delivery Environment.
2.8 The Parties acknowledge that, subject to Section 2.3, the manner, means, and resources to provide the Services are in the reasonable discretion of Service Provider; provided that Service Provider shall in good faith discuss and consider any reasonable suggestions of Service Recipient with respect to the foregoing that are consistent with the terms of this Agreement.
2.9 If any services (other than Excluded Services) that either (i) were previously provided to or for the benefit of either Party or their respective Subsidiariesthe Transferred Business, or caused to be provided to or for the benefit of either Party or their respective Subsidiariesthe Transferred Business, in each case by the other Party Transferor or its Subsidiaries, or (ii) are not of the type described in clause (i) but that Spinco reasonably believes are necessary for Spinco to operate the Spinco Business as currently conducted, have been omitted from Schedule I hereto (“Omitted Services”), then at the request of Service Recipient (in the case of clause (i), made within one year after the Distribution Date, and in the case of clause (ii), made within six three months after the Distribution Closing Date), (A) in the case of services pursuant to the foregoing clause (i), Service Provider shall provide such services, or cause such services to be provided, as promptly as reasonably practicable, pursuant to a Supplemental Schedule and (B) in the case of services pursuant to the foregoing clause (ii), so long as (x) Service Provider has the capability and existing capacity to provide such services, (y) Service Provider has provided such services to any of its other businesses within six months prior to the date of such request and (z) Service Recipient is unable to secure such services from a third party on commercially reasonable terms, Service Provider shall use its reasonable best efforts to provide such services, or cause such services to be provided, as promptly as reasonably practicable, pursuant to a Supplemental Schedule; provided, in each case, provided that the obligations of Service Provider to provide any Omitted Services shall be subject to Service Recipient’s use of its reasonable best efforts to cooperate with Service Provider in the provision of such services, and to the extent that changes to the systems, operations or business of Service Recipient implemented in connection with the transactions contemplated by the Contribution and Distribution Agreement or Merger Transaction Agreement or after the Distribution Closing Date require alterations in the means of providing any such service, Service Provider shall be obligated only to use its reasonable best efforts to make such alterations. Service Recipient shall use its reasonable best efforts to cooperate with Service Provider in the provision of such services. Any Omitted Service that is provided or caused to be provided by Service Provider pursuant to this Section 2.9 shall be a “Transition Service” or a “Reverse Transition Service”, as applicable, for the purposes of this Agreement (other than as specifically indicated herein).
2.10 . Subject to the service level requirements set forth in Section 2.3, Service Provider may use third parties to provide some or all of the Services. Service Provider agrees that, to the extent such third-party Services are provided to Service Recipient pursuant to contracts between Service Provider and the third-party service provider, Service Provider will (i) to the extent such contracts allow Service Provider to take such actions for the benefit of Service Recipient (after the use by Service Provider of its reasonable best efforts to obtain consent to do so, if applicable), pass-through or grant to Service Recipient any license to Intellectual Property granted to Service Provider to the extent such license is necessary for Service Recipient to receive or utilize the Services; and (ii) enforce its rights and remedies, including indemnification obligations and obligations of the third-party service provider to comply with specified service levels and warranties, against any such third parties relating to the Services to the extent it would otherwise enforce such rights and remedies on behalf of itself or any of its Affiliates under similar circumstances relating to similar matters. Any reasonable and out-of-pocket costs incurred by Service Provider in pursuing remedies on Service Recipient’s behalf and at Service Recipient’s direction and request, to the extent associated with a failure to provide Services hereunder, shall be invoiced to Service Recipient as Service Fees. Unless specifically agreed in writing by the Parties, Service Recipient will be responsible for incremental costs incurred and associated with third-party contracts initiated during the Transition Period by Service Provider, subject to Section 3.3; provided, provided that Service Provider shall use its reasonable best efforts to minimize such incremental costs. Service Provider will consult with and obtain the prior written consent of (such consent to be provided within five (5) Business Days and not to be unreasonably withheld) Service Recipient prior to retaining any third party to provide Services where such third party (a) is not also providing substantially similar services to Service Provider for Service Provider’s business, or (b) did not provide the Services (or substantially similarsimilar services) to the Transferred Business during the Reference Period. Notwithstanding any such use of third parties, Service Provider shall remain fully obligated for the provision of such Services to the Service Recipient in accordance with the terms hereof; provided, however, if (x) Service Provider elects to use a third-party service provider for all or substantially all of its and its Subsidiaries’ requirements and/or needs and (y) Service Provider is able to assign, and has assigned, to Service Recipient, Service Provider’s rights and remedies against such third-party service provider, such that Service Recipient may pursue such rights and remedies directly, Service Provider shall have no liability to Service Recipient in connection with a failure to perform by such third party that is not caused by the action or inaction of Service Provider.
2.10 In the event that Service Recipient requires any additional services (excluding any Excluded Services and other than Omitted Services or Migration Services, which shall be governed by Sections 2.9 and 5.2, respectively) (“Additional Services”), Service Recipient may submit a written request describing such services to Service Provider’s Project Manager, and the Project Managers of each of Service Recipient and Service Provider shall meet to discuss such request. Service Provider shall act reasonably and in good faith in determining whether to provide such additional services. Any Additional Service that is provided or caused to be provided by Service Provider pursuant to this Section 2.10 shall be a “Transition Service” for the purposes of this Agreement (other than as specifically indicated herein).
2.11 In the event that any Service is required beyond its Term, Service Recipient shall provide Service Provider with a written notice of extension no later than forty-five (45) days prior to the expiration of the Term of such Service. Such notice shall indicate the period during which Service Recipient wishes to receive such Service after the date of expiration of the Term for such Service; provided that such period shall not extend beyond the date which is eighteen months from the Closing Date. Subject to obtaining any necessary third-party consents, Service Provider shall provide, or cause to be provided, the Service to Service Recipient for such period. Service Recipient will reimburse Service Provider for any reasonable and documented incremental fees charged by third-party service providers in connection with granting any consent or otherwise extending the Service, in each case, solely with respect to an extension beyond the Term.
2.12 Service Provider shall not be required to provide a Service to the extent the provision of such Service by Service Provider conflicts with any contract or agreement to which Service Provider is a party prior to the date hereof or the rights of any third party with respect thereto or violates any applicable Law. Service Provider shall use reasonable best efforts to obtain any consents from third-parties that Service Provider reasonably believes are necessary in order for Service Provider to provide the Services. In the event that Service Provider is unable to obtain any such consent, Service Provider will cooperate with Service Recipient in obtaining an alternative arrangement for the provision of such Services.
2.13 Notwithstanding anything to the contrary that may be set forth or implied elsewhere in this Agreement or in the Transaction Agreement, Service Provider shall not, and shall be under no obligation to, provide any Excluded Services after the Closing Date.
2.14 Unless otherwise provided for in this Agreement, the Parties shall use their reasonable best efforts to cooperate with each other in all matters relating to the provision and receipt of the Transition Services. Such cooperation shall include exchanging information, providing electronic access to systems used in connection with the Transition Services and obtaining all consents, licenses, sublicenses or approvals necessary (including the payment of any reasonable fees or expenses) to permit each Party to perform its obligations hereunder, in each case, subject to the restrictions of Section 11. Each Party shall cooperate with the other Party in determining the extent to which any Tax is due and owing with respect to any of the Transition Services and in providing and making available appropriate documentation or information reasonably requested by the other Party including, but not limited to, applicable resale and/or exemption certificates.
Appears in 2 contracts
Samples: Transaction Agreement (Graphic Packaging Holding Co), Transaction Agreement (International Paper Co /New/)
TERM AND PROVISION OF SERVICES. 2.1 Subject 1.1 Unless otherwise terminated pursuant to Section 129, the term of this Agreement shall will be for the Transition Period. Subject to Section 129, each Service shall will be provided for the period of time following the Distribution Closing that is indicated on the Schedules for such Service and each Additional Service, Omitted Service or Migration Service, if any, shall will be provided for the period of time as specified in a supplemental written schedule (i) agreement mutually agreed upon by the Parties acting reasonably and in good faith, in the case of Additional Services or Migration Services, or (ii) subject to prior confirmation in good faith by Service Provider acting reasonably, delivered by Service Recipient, in the case of Omitted Services (each such supplemental written schedule, a “Supplemental Schedule”) setting forth the terms of such Additional Service, Omitted Service or Migration Service to be provided (any such period of time with respect to a Service, an Additional Service, an Omitted Service or a Migration Service, including any extension period agreed to by the Parties pursuant to Section 2.121.7, a “Term”); provided that in no event shall will any Term exceed a period of time of one year or, if extended by Service Recipient pursuant to Section 2.12, up to two years, after extend beyond the Distribution End Date.
2.2 1.2 During the Transition Period, but subject to Section 129, the applicable Term and the provisions set forth in this Agreement, Service Provider shall will provide to Service Recipient (or cause to be provided by its Affiliates or third parties to Service Recipient) each Service set forth on Schedule I hereto. Service Provider will assign sufficient resources and qualified personnel as are reasonably required to perform the Services in accordance with the standards set forth in this Agreement, which Schedule I provided that Service Provider shall also include not be obligated to (i) hire any additional employees, (ii) maintain the scope employment of such any one or more specific employees, or (iii) purchase, lease or license any additional equipment, software (including additional seats or instances under existing software license agreements) or other resources. Notwithstanding the preceding sentence, and except for any employees of Service Provider retained by Service Recipient or its Affiliates, Service Provider will use commercially reasonable efforts to maintain sufficient resources to provide information technology-related Services under this Agreement with the same quality and fees associated with such Service. For the avoidance standard of doubt, any Supplemental Schedule shall be deemed to be part of Schedule I heretocare as historically provided.
2.3 1.3 Except as otherwise expressly provided in this Agreement or the Schedules, Service Provider shall provide each Service will be provided to Service Recipient (i) in at least substantially the same manner, scope manner and nature, at substantially the same level of professionalism, workmanship and quality, with substantially equal priority and substantially equal treatment quality as such Service was provided, or caused to be provided, by Service Provider or any of its Affiliates to the Spinco Business, in the case of a Transition Service, and to the IP Business, in the case of a Reverse Transition Service, during the Reference Period and (ii) in compliance with all applicable Lawstwelve-month period ending on the Closing Date, if applicable; provided, that, in the case of clause (i) above, provided that for the purposes of determining the manner, scope, nature, professionalism, workmanship, manner and quality and priority of any Service during the Reference Periodtwelve-month period prior to Closing, appropriate and reasonable modifications in manner of delivery may be made for security, confidentiality, confidentiality and data integrity integrity, or other modifications in the process for providing Services reasonably resulting from or necessitated by the separation of Service Recipient's business pursuant to the Transactions, so long as such modifications do would not reasonably be expected to adversely affect the scope, nature, professionalism, workmanship, manner or quality or priority to the Service Recipient of the Services delivered hereunder in any material respect.
2.4 1.4 Service Provider and Service Recipient shallwill, and shall will cause their respective Affiliates to, comply with (i) Applicable Laws, including applicable privacy and data security Laws laws, in the provision or receipt of Services.
2.5 Service Recipient shall comply with all of Service Provider’s security policies, procedures and requirements relating to the Service Delivery Environment that have been, from time to time, previously provided in writing to Service Recipient (including those adopted after the date hereof to the extent so provided) in connection with its access and use of the Services (the “Security Policies”), and shall not tamper with, compromise or circumvent any (ii) all reasonable information security or audit measures employed by Service Provider.
2.6 Service Provider shall limit access to the Service Delivery Environment to Service Provider personnel who are specifically authorized to have such access, policies and shall take such measures to prevent unauthorized access, use, destruction, alteration or loss procedures of Spinco Business data and other information contained therein as employed with respect to IP Business data. Service Recipient shall access and use only that portion of the Service Delivery Environment for which Service Recipient has been granted the right to access and use; provided, however, that Service Provider shall not unreasonably limit the grant of such access and use by authorized personnel. Neither Party shall establish any type of external network connectivity into the other Party’s systems or network, including WAN or Internet connectivity, without the prior written consent of the other Party. Service Recipient shall limit access of its personnel to the Service Delivery Environment to those personnel who are specifically authorized to have such access and shall cause such personnel to comply with the Security Policies in accessing the Service Delivery Environment in accordance with the terms of Section 2.5.
2.7 If, at any time, a Party determines that (a) any of its personnel has sought to circumvent, or has circumvented, the Security Policies, (b) any unauthorized personnel of such Party has accessed the Service Delivery Environment, or (c) any of its personnel has engaged in activities that may reasonably be expected to lead to the unauthorized access, use, destruction, alteration or loss of data, information or software, such Party shall promptly terminate such personnel’s access to the Service Delivery Environment and promptly notify the other Party in writingconnection with their access to the others information technology systems in connection with the provision, receipt and use of Services. In additionService Provider and Service Recipient shall have no obligation (pursuant to this Agreement, as part of or in connection with the Services, as a result of storing or maintaining any data or otherwise) to prepare or deliver any notification or report to any Governmental Authority or other Person on behalf of, in the case of Service Provider, Service Recipient or any of its Affiliates and in the case of Service Recipient, Service Provider shall have the right to deny personnel of Service Recipient access to the Service Delivery Environment upon at least 24 hours’ written notice to Service Recipient in the event that Service Provider reasonably believes that such personnel have engaged in or any of the activities set forth in this Section 2.7 or otherwise pose a security concern. Each Party will reasonably cooperate with the other Party in investigating any apparent unauthorized access to or use of the Service Delivery Environmentits Affiliates.
2.8 The Parties acknowledge that, subject to Section 2.3, the manner, means, and resources to provide the Services are in the reasonable discretion of Service Provider; provided that Service Provider shall in good faith discuss and consider any reasonable suggestions of Service Recipient with respect to the foregoing that are consistent with the terms of this Agreement.
2.9 1.5 If any services (other than Excluded Services) that either (i) were previously provided to or for the benefit of either Party or their respective Subsidiariesprovided, or caused to be provided provided, by Service Provider to or the Business during the twelve-month period ending on the Closing Date and are reasonably necessary for the benefit of either Party or their respective Subsidiaries, in each case by the other Party or its Subsidiaries, or (ii) are not continued operation of the type described in clause (i) but that Spinco reasonably believes are necessary for Spinco to operate the Spinco Business as currently conductedBusiness, have been inadvertently omitted from Schedule I hereto (“Omitted Services”), and such services cannot reasonably and promptly be provided or sourced from a third party by Service Recipient, then at the request of Service Recipient (in the case of clause (i), made within one year after the Distribution Date, and in the case of clause (ii), made within six months after the Distribution Date), (A) in the case of services pursuant to the foregoing clause (i)Recipient, Service Provider shall provide such services, or cause such services to be provided, as promptly as reasonably practicable, pursuant to a Supplemental Schedule and (B) in the case of services pursuant to the foregoing clause (ii), so long as (x) Service Provider has the capability and existing capacity to provide such services, (y) Service Provider has provided such services to any of its other businesses within six months prior to the date of such request and (z) Service Recipient is unable to secure such services from a third party on will use commercially reasonable terms, Service Provider shall use its reasonable best efforts to provide such services, or cause such services to be provided, as promptly as reasonably practicable, pursuant subject to a Supplemental Schedule; provided, in each case, that the obligations of mutual written agreement by Service Provider and Service Recipient with respect to provide any Omitted Services shall be subject the terms applicable to Service Recipient’s use of its reasonable best efforts to cooperate with Service Provider in the provision of such servicesthereof, and to which terms the extent that changes to the systems, operations or business of Service Recipient implemented parties will negotiate in connection with the transactions contemplated by the Contribution and Distribution Agreement or Merger Agreement or after the Distribution Date require alterations in the means of providing any such service, Service Provider shall be obligated only to use its reasonable best efforts to make such alterations. Service Recipient shall use its reasonable best efforts to cooperate with Service Provider in the provision of such servicesgood faith. Any Omitted Service that is provided or caused to be provided by Service Provider pursuant to this Section 2.9 shall 1.5 will be a “Transition Service,” or a “Reverse Transition Service”, as applicable, for the purposes of this Agreement (other than as specifically indicated herein)Agreement.
2.10 Subject to the service level requirements set forth in Section 2.3, 1.6 Service Provider may use third parties to provide some or all of the Services; provided, that (a) Service Provider uses the same degree of care in selecting any such third party as it would if such third party was being retained to provide similar services to Service Provider, (b) Service Provider will in all cases remain primarily responsible for all of its obligations under this Agreement and (c) to the extent that a Service was historically provided directly by Service Provider, Service Provider must obtain Service Recipient’s prior written consent to the use of a third party to provide for such Service, and such consent will not be unreasonably withheld, delayed or conditioned. Service Provider will retain responsibility for the provision of any Services regardless of which Person is performing such Services.
1.7 In the event that any Service is required beyond its Term, Service Recipient will provide Service Provider with a written notice of extension by the later of forty five (45) days prior to the expiration of the Term of such Service and the date that is five (5) days after the date hereof. Such notice will indicate the period during which Service Recipient wishes to receive such Service after the date of expiration of the Term for such Service; provided that such period will not (i) extend beyond September 30, 2016 with respect to Services set forth in Schedule I Parts A, C, D, E, and F or (ii) extend beyond the End Date with respect to Services set forth in Schedule I Part B. Subject to obtaining any necessary third-party consents (including with respect to any consent necessary to extend the term of an applicable third-party contract), Service Provider will provide, or cause to be provided, the Service to Service Recipient for such period at a price equal to the Service Fees payable by Service Recipient to Service Provider for such Service. Service Recipient will reimburse Service Provider for any incremental fees charged by third-party service providers in connection with extending the Service, prorated for the Term of the Service to the extent such extension was not obtained solely for the benefit of Service Recipient. In addition, Service Recipient agrees that if Service Provider is required to extend the term of any third-party contract in order to continue to provide any Service after the Term, then (i) Service Recipient shall be required to pay Service Provider the amount of any renewal fees or purchase commitments applicable to the relevant Service for the full renewal period specified in the applicable third-party contract, regardless of whether the Term or Service Provider’s provision of the relevant Service ends prior to the end of the relevant renewal period, and (ii) Service Provider will not be required to provide any such Service to the extent it is unable to renew any applicable third-party contract (but Service Provider shall use its commercially reasonable efforts to renew such contract). Upon the reasonable request of Service Provider, the parties will discuss the steps that have been taken to transition off of the Services within the original Term for each Service set forth in this Agreement.
1.8 After the date hereof, to the extent the provision of a Service violates Applicable Law, Service Provider will provide, and the Parties will work together in connection with Service Provider’s provision of, such Services through a commercially reasonable alternative arrangement that does not violate Applicable Law.
1.9 At the written request of Service Provider, Service Recipient will provide Reverse Services to Service Provider or its Affiliates in a manner consistent with the terms and conditions applicable to Services under this Agreement, mutatis mutandis; provided, that only employees of Service Provider or its Affiliates as of the date hereof who are retained by Service Recipient or its Affiliates after the date hereof will provide Reverse Services, and only to the extent such Services are consistent with their prior role as an employee of Service Provider or its Affiliates. For the avoidance of doubt, the provision of any Reverse Services by Service Recipient to Service Provider is subject to the applicable Term, and in no event will any Term extend beyond the End Date. The Reverse Services currently identified, and the specific term and fees for such Reverse Services (without limiting the applicability of other provisions applicable to the term and fees and costs that apply, mutatis mutandis, to the provision of Reverse Services), are set forth on Schedule II hereto.
1.10 The parties acknowledge and agree that, to the extent such third-party that the Services are provided or the Reverse Services, respectively, consist of legal advice to Service Recipient pursuant (with respect to contracts the Services) or to Service Provider (with respect to the Reverse Services), the attorney-client privilege and the expectation of client confidence with respect thereto shall belong exclusively to Service Recipient (with respect to the Services) or to Service Provider (with respect to the Reverse Services), and shall not pass to the other party, and the attorney-client privilege (or any waiver thereof) shall be exclusively controlled by Service Recipient (with respect to the Services) or to Service Provider (with respect to the Reverse Services). In furtherance of the foregoing (but, for the avoidance of doubt, without limitation of Section 9.15 of the PSA), the parties agree that Service Recipient (with respect to the Reverse Services that constitute legal advice) and Service Provider (with respect to the Services that constitute legal advice) (i) shall not claim or purport to waive the attorney-client privilege with respect to such legal advice (including in any dispute between Service Provider and Service Recipient), (ii) shall maintain the third-party service providerconfidentiality of such legal advice; provided that the parties may disclose any such legal advice to the extent required, in the opinion of legal counsel, by Applicable Law, including any such requirement (x) in connection with any Proceeding or (y) pursuant to any request from a Governmental Authority; provided, further, however, that, in the event that any such disclosure shall be so required, Service Provider will or Service Recipient, as applicable, shall notify the other of such requirement or request and afford the other the reasonable opportunity to assert the attorney-client privilege and/or seek a protective order with respect to such legal advice to prevent such disclosure, and the notifying party shall cooperate with the other in connection therewith, and (iiii) shall, promptly upon becoming aware that it remains in possession of any privileged documents in respect of such legal advice, notify the other thereof and cause such privileged documents to be removed from its possession and transferred to the extent such contracts allow Service Provider to take such actions for the benefit other without retaining copies of Service Recipient (after the use by Service Provider of its reasonable best efforts to obtain consent to do so, if applicable), pass-through or grant to Service Recipient any license to Intellectual Property granted to Service Provider to the extent such license is necessary for Service Recipient to receive or utilize the Services; and (ii) enforce its rights and remedies, including indemnification obligations and obligations of the third-party service provider to comply with specified service levels and warranties, against any such third parties relating to the Services to the extent it would otherwise enforce such rights and remedies on behalf of itself or any of its Affiliates under similar circumstances relating to similar matters. Any reasonable and out-of-pocket costs incurred by Service Provider in pursuing remedies on Service Recipient’s behalf and at Service Recipient’s direction and request, to the extent associated with a failure to provide Services hereunder, shall be invoiced to Service Recipient as Service Fees. Unless specifically agreed in writing by the Parties, Service Recipient will be responsible for incremental costs incurred and associated with third-party contracts initiated during the Transition Period by Service Provider, subject to Section 3.3; provided, that Service Provider shall use its reasonable best efforts to minimize such incremental costsprivileged documents. Service Provider will consult with and obtain the prior written consent of (Service Recipient acknowledge and agree that any failure to cause any such consent privileged documents to be provided within five (5) Business Days removed from its possession and transferred to the other shall not to be unreasonably withheld) Service Recipient prior to retaining constitute a waiver of or otherwise prejudice any third party to provide Services where such third party (a) is not also providing substantially similar services to Service Provider for Service Provider’s business, or (b) did not provide the Services (or substantially similarclaim of attorney-client privilege.
Appears in 1 contract
Samples: Transition Services Agreement (American Capital Agency Corp)
