Exhibit 10.11
Conformed Copy
AGREEMENT
FOR
INFORMATION TECHNOLOGY SERVICES
between
DEL MONTE CORPORATION
and
ELECTRONIC DATA SYSTEMS CORPORATION
TABLE OF CONTENTS
ARTICLE I. AGREEMENT, TERMS AND SOFTWARE
1.1 Agreement............................................. 6
1.2 Term of Agreement..................................... 7
1.3 Defined Terms......................................... 7
(a) Access............................................ 7
(b) Additional Services............................... 7
(c) Consortium Services............................... 7
(d) Del Monte Software................................ 7
(e) EDS Software...................................... 7
(f) IT Services....................................... 7
(g) Services.......................................... 7
(h) Software.......................................... 8
(i) Telecommunications Services....................... 8
(j) Vendor Software................................... 8
ARTICLE II. SERVICES TO BE PERFORMED BY EDS
2.1 EDS Personnel and Management.......................... 8
(a) EDS Account Director.............................. 8
(b) Transition of Personnel........................... 8
(c) Financial Resoonsibility for EDS Personnel........11
2.2 EDS Services..........................................11
2.3 Additional Services...................................11
2.4 Compliance with Laws..................................11
2.5 EDS Financial Obligations.............................12
2.6 Reviews and Inspections...............................12
2.7 Insurance.............................................12
ARTICLE III. FOODS INDUSTRY CONSORTIUM
3.1 Goal of Consortium....................................12
3.2 Initial Formation.....................................12
(a) Recruitment of Consortium members.................12
(b) Development of Charter............................13
(c) Initial Projects..................................13
3.3 Consortium Advisory Board.............................13
3.4 Schedule and Compensation.............................13
3.5 Royalties.............................................14
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ARTICLE IV. INFORMATION TECHNOLOGY ASSETS AND
RELATED AGREEMENTS
4.1 Purchase of Information Technology Assets by EDS......15
4.2 Related Agreements....................................16
4.3 Del Monte-Leased Equipment............................16
4.4 Third Party Approvals.................................16
4.5 Return of Equipment...................................17
4.6 Further Assurances....................................17
ARTICLE V. DEL MONTE OBLIGATIONS
5.1 Del Monte Personnel and Management....................17
(a) Del Monte Representative..........................17
(b) Transitioned Employees............................17
(c) Bonuses...........................................17
5.2 Del Monte Obligations.................................18
5.3 Del Monte Financial Obligations.......................18
ARTICLE VI. PAYMENTS TO EDS
6.1 Charges...............................................18
(a) Migration Charge..................................18
(b) Monthly Base Charge...............................18
(c) Adjustments to Monthly Base Charge................18
(d) Out-of-Pocket Expenses............................19
(e) Extension Period Charges..........................19
6.2 Cost of Living Adustment..............................19
(a) Adjustment........................................19
(b) Change of Index...................................19
6.3 Time of Payment.......................................20
6.4 Taxes.................................................20
6.5 Verification of Costs.................................21
6.6 Supporting Documentation..............................21
ARTICLE VII. PROPRIETARY RIGHTS AND SOFTWARE
7.1 Vendor Software.......................................21
7.2 EDS Software..........................................22
(a) Operators.........................................22
(b) Del Monte Work....................................22
(c) Confidentiality...................................22
(d) Irreparable Harm..................................23
7.3 EDS Development Tools.................................23
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ARTICLE VIII. DATA, CONFIDENTIALITY AND AUDIT RIGHTS
8.1 Del Monte's Data......................................23
8.2 Confidentiality.......................................24
8.3 Security..............................................24
8.4 Audit Rights..........................................24
ARTICLE IX. DISPUTE RESOLUTION
9.1 Status Reviews........................................25
9.2 Annual Quality Review.................................25
9.3 Performance Review....................................25
9.4 Dispute Resolution....................................25
(a) Generally.........................................25
(b) Mini-Trial........................................25
(c) Final Offers......................................26
(d) Arbitration.......................................27
(e) Principal.........................................28
ARTICLE X. TERMINATION
10.1 Termination for Cause.................................28
10.2 Termination for Nonpayment............................28
10.3 Termination for Insolvency............................29
10.4 Termination Without Cause.............................29
10.5 Transition Services upon Termination..................30
(a) Services..........................................30
(b) Charges...........................................31
10.6 Survival of Provisions................................31
ARTICLE XI. WARRANTIES, INDEMNITIES AND LIABILITY
11.1 Warranties............................................32
(a) EDS Warranties....................................32
(b) General Disclaimer................................32
(c) Telecommunications Services Disclaimer............33
11.2 Cross Indemnification.................................33
11.3 Intellectual Property Indemnification.................34
11.4 Indemnification by EDS................................34
11.5 Indemnification of EDS for Certain Third
Party Claims .........................................35
11.6 Equipment and Related Agreement Indemnification.......35
11.7 Telecommunications Indemnification....................35
11.8 Indemnification of Del Monte for Certain
Employee Benefits ....................................35
11.9 Indemnification Procedures............................36
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(a) Notice and Control...............................36
(b) Settlement.......................................36
11.10 Limitation of Liability .............................36
(a) Of EDS...........................................36
(b) Of Del Monte.....................................37
(c) Survival.........................................37
11.11 Contractual Statute of Limitations ..................37
11.12 Acknowledgement .....................................37
ARTICLE XII. MISCELLANEOUS
12.1 Right of EDS to Engage in Other Activities............38
12.2 Binding Nature and Assignment.........................38
(a) Generally.........................................38
(b) EDS Subcontracts..................................38
(c) Permitted Transactions............................38
12.3 Notices...............................................38
12.4 Counterparts..........................................40
12.5 Headings..............................................40
12.6 Relationship of Parties...............................40
12.7 Approvals and Similar Actions.........................40
12.8 Force Majeure.........................................40
12.9 Severability..........................................41
12.10 Regulatory Requirements ..............................41
12.11 Waiver ...............................................41
12.12 Attorneys' Fees ......................................41
12.13 Media Releases .......................................41
12.14 No Third Party Beneficiary ...........................41
12.15 Entire Agreement .....................................41
12.16 Governing Law ........................................42
SCHEDULES
Schedules 1.3-Section 1A - Del Monte-Owned Equipment
Schedule 1.3-Section 1B - Del Monte-Owned Software
Schedule 1.3-Section 2 - Del Monte-Leased Equipment
Schedule 1.3-Section 3 - Vendor Software Licensed to Del Monte
Schedule 2.1(b) - Transitioned Employees
Schedule 2.2-Section 1 - Data Center Services
Schedule 2.2-Section 2 - Telecommunications Services
Schedule 2.2-Section 3 - Personal Computing Services
Schedule 2.2-Section 4 - Applications Maintenance Services
Schedule 2.2-Section 5 - Applications Development Services
Schedule 2.8 - Insurance Requirements
Schedule 3.4 - Plan for Initial Consortium Formation
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Schedule 4.2 - Hardware Maintenance Agreements List
Schedule 5.2 - Del Monte Obligations
Schedule 6.1-Section 1 - Monthly Base Charge
Schedule 6.1-Section 2 - EDS Fee Credits to Del Monte
Schedule 7.1-Section 1 - Vendor Software to be Converted
Before Migration
Schedule 7.1-Section 2 - Vendor Software Not to be Converted
Schedule 10.4 - Termination Fee Schedule
Exhibit A
Exhibit A - Form Xxxx of Sale
Exhibit B - Form of Assignment and Assumption Agreement
Exhibit C - Service Level Agreements
v
AGREEMENT
FOR
INFORMATION TECHNOLOGY SERVICES
THIS AGREEMENT, effective as of November 1, 1992 (the "Effective
Date"), is between Del Monte Corporation, a New York corporation
("Del Monte"), and Electronic Data Systems Corporation, a Texas
corporation ("EDS")
RECITALS
A. Del Monte issued a Request for Proposal dated July 31,
1992 (the "RFP") to provide services and administration to Del
Monte in support of its information services functions, including
(i) the operation and maintenance of data center operations with
respect to Del Monte's San Francisco office, Walnut Creek
research center, and all domestic field locations and (ii)
various aspects of its telecommunications operations. As part of
the transaction outlined in the RFP, it was contemplated that
substantially all of the Del Monte employees engaged in
information services activities would be afforded the opportunity
to assume comparable employment positions with the selected
vendor. The RFP also contemplated that the vendor would provide
certain services in connection with the formation and operation
of a foods industry consortium, and that certain Del Monte
hardware and software assets would be acquired by the vendor for
subsequent use in providing services to Del Monte.
B. EDS submitted to Del Monte its response to the RFP dated
August 14, 1992 (the "Response"), which represented that
EDS had the capacity and willingness to provide the
services required by Del Monte in accordance with the RFP
specifications as modified by the Response, to transition
the Del Monte employees, and to acquire the specified Del
Monte hardware and software assets.
C. Del Monte has selected EDS as the vendor for the services
and administration described in the Response and this
Agreement and EDS has agreed to provide such services and
administration, in accordance with the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained in this Agreement, the parties agree:
ARTICLE I. AGREEMENT, TERMS AND SOFTWARE
1.1 Agreement. During the term of this Agreement, EDS will
supply to Del Monte, and Del Monte will purchase from
EDS, Del Monte's requirements for those information
technology services described in this Agreement all
upon and subject to the terms and conditions specified
in this Agreement.
1.2 Term of Agreement. The term of this Agreement will
begin on the Effective Date, and will end on the 10th
year anniversary of the Effective Date. Thereafter,
the term of this Agreement will automatically extend
for successive one-year periods unless ether of the
parties notifies the other party in writing at least
six months prior to such anniversary date or the end
of any such one-year extension
period, as the case may be, that this Agreement will
not be so extended. The date which this Agreement
expires is referred to herein as the "Expiration
Date". This Agreement may be terminated prior to the
Expiration Date in accordance with Article X.
1.3 Defined Terms. As used in this Agreement, the following
terms have the meanings set forth below.
(a) Access. The term "Access" means the enjoyment of
physical and legal use and operation of Software
in order for EDS to provide Services.
(b) Additional Services. The term "Additional
Services" means any services outside of the scope
of those Services expressly provided for by this
Agreement and which Del Monte expressly
authorizes in advance in writing. Del Monte shall
have no obligation to make any payments for any
Additional Services except to the extent it so
agrees in advance in writing.
(c) Consortium Services. The term "Consortium
Services" means those services to be provided by
EDS under Article III which are included in the
Monthly Base Charge as specified in Article III.
(d) Del Monte Software. The term "Del Monte Software"
means any Software which is owned by Del Monte
(and not proprietary to any other party) and is
to be operated by or on behalf of Del Monte and
which is identified in Section 1(b) of Schedule
1.3.
(e) EDS Software. The term "EDS Software" means any
Software which is owned by EDS (and not
proprietary to any other party) and operated by
EDS in connection with the performance of
Services. After the date of the purchase of the
Del Monte Software by EDS under this Agreement,
the Del Monte Software will be EDS Software.
(f) IT Services. The term "IT Services" means the
information technology services provided by EDS
under Article II, including without limitation
the services specified in Schedule 2.2 to this
Agreement and Sections III, IV, VII and X of the
Response, which Sections are incorporated in this
Agreement by reference.
(g) Services. The term "Services" means the Consortium
Services, the IT Services and the Telecommunications
Services.
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(h) Software. The term "Software" means computer
programs together with input and output formats,
program listings, narrative descriptions,
operating instructions, and supporting
documentation and shall include the tangible
media upon which such programs and documentation
are recorded. Except as otherwise provided in
this agreement, Software includes any
enhancements, translations, modifications,
updates, new releases, and other changes.
(i) Telecommunications Services. The term
"Telecommunications Services" means the data
and voice telecommunications services provided or
managed by EDS under this Agreement.
(j) Vendor Software. The term "Vendor Software" means
any Software which is proprietary to any party
other than Del Monte or EDS. Vendor Software
initially obtained by Del Monte by means of third
party licenses which the parties anticipate will
be assigned to EDS by Del Monte pursuant to this
Agreement is identified in Section 3 of Schedule
1.3.
Other capitalized terms used in this Agreement are defined herein
from time to time.
ARTICLE II. SERVICES TO BE PERFORMED BY EDS
2.1 EDS Personnel and Management.
(a) EDS Account Director. During the term of
this Agreement, EDS will provide an EDS
Account Director (the "EDS Account Director")
who will maintain an office in Del Monte's
facilities in San Francisco, California,
who will have overall responsibility
for managing and coordinating the
delivery of the Services and who will
be responsible to the Del Monte
Representative and will coordinate
and consult with the Del Monte
Representative (as defined in
Section 5.1) and the Del Monte
Representative's direct staff (the
"Del Monte Management Cadre"). EDS'
assignment of the initial EDS Account
Director will be subject to Del
Monte's prior approval, as will any
subsequent replacement of that person,
all in accordance with Section XI-4 of
the Response, which is incorporated
by this reference.
(b) Transition of Personnel. Within one week
after the Effective Date, EDS
will offer employment to the data
processing employees of Del Monte
identified in Schedule 2.1(b) (the
"Transitioned Employees") in
accordance with EDS' normal employment
policies as stated in Section
IX-3 of the Response, except as
modified by the special considerations
listed below, which employment will
be effective with respect to each
Transitioned Employee on the date
specified on Schedule 2.1(b) for such
Transitioned Employee. EDS will
offer employment to the members of
8
the Del Monte Management Cadre in
accordance with EDS' normal
employment policies as stated in
Section IX-3 of the Response except as
modified by the special considerations
listed below, at such time, if any,
that Del Monte discontinues the
Management Cadre. Until such time, if
any, that Del Monte discontinues
the Management Cadre, EDS will not
seek to employ or otherwise disrupt
the employment relationship between
Del Monte and the staff of the Del
Monte Management Cadre or between
Del Monte and any other employee of
Del Monte. The following special
considerations will apply to the
offer of employment of Transitioned
Employees and the offer of employment,
if any, to the Del Monte Management
Cadre:
(i) Each of the Transitioned Employees will be
offered employment with EDS at his or her
salary (including any applicable shift
differentials) as of the Effective Date.
Each member of the Del Monte Management
Cadre will be offered employment with EDS at
his or her salary as of the date of the
offer of employment by EDS.
(ii) EDS will waive its normal pre-employment
drug testing requirement with respect to the
Transitioned Employees and the Del Monte
Management Cadre.
(iii)Each Transitioned Employee and each member
of the Del Monte Management Cadre will be
given credit for his or her previous years
of service with Del Monte for purposes of
vesting (but not accrual) of EDS' normal
retirement plan benefits.
(iv) EDS will waive its two-year waiting period
regarding dependent health coverage for the
Transitioned Employees and the Del Monte
Management Cadre.
(v) EDS will waive all waiting periods under
EDS' health plan for any pre-existing
conditions which are normally covered by
such health plan.
(vi) EDS will credit 1992 year-to-date
medical deductibles of the Transitioned
Employees toward 1992 deductibles under EDS'
health plan. EDS will credit the
year-to-date medical deductibles of each
member of the Del Monte Management Cadre for
the calendar year in which such member
accepts employment with EDS toward that
calendar year's deductibles under EDS'
health plan.
(vii) EDS will waive the annual dental maximum
benefits payable under EDS' dental plan for
each Transitioned Employee and each member
9
of the Del Monte Management Cadre if he or
she is enrolled at the time he or she
accepts employment with EDS.
(viii) EDS will recognize the vacation level
under Del Monte's vacation schedule in
effect as of the Effective Date attained by
a Transitioned Employee, or in effect as of
the date of EDS' offer of employment
attained by a member of the Del Monte
Management Cadre, if that vacation level is
higher than the vacation allowance under
EDS' normal vacation schedule then in
effect. Transitioned Employees and each
member of the Del Monte Management Cadre
will be given the option of carrying over
accrued vacation to their EDS employment or,
alternatively, having such accrued vacation
cashed out at the time of transition. For
each Transitioned Employee or member of the
Del Monte Management Cadre who elects to
cash out his or her accrued vacation, EDS
and Del Monte agree each to pay 50% of the
accrued vacation pay at the time of
transition.
(ix) EDS will permit the Transitioned Employees
to use their remaining Del Monte floating
holidays or 1992.
(x) EDS will allow the Transitioned Employees
to maintain their respective FY 1993 AIAP
objectives and target award levels. For
each Transitioned Employee who achieves his
or her defined AIAP objectives with Del Monte's
FY 1993, EDS will pay appropriate compensation
to that individual according to the AIAP target
award levels. Subsequent to Del Monte's FY 1993,
Transitioned Employees will participate in EDS'
performance compensation plan, and will not
participate in the AIAP program.
(xi) Del Monte and EDS acknowledge and agree that
Transitioned Employees and members of the
Del Monte Management Cadre who accept
employment with EDS will not be entitled to
receive severance pay from Del Monte. Such
acknowledgment and agreement by EDS shall
not be construed to impose any additional
responsibility or liability on EDS with
respect to the Transitioned Employees and
members of the Del Monte Management Cadre
except as expressly assumed under this
Agreement.
(xii) EDS agrees to provide a separation package,
consisting of a lump sum payment and
outplacement assistance, in an amount or
level identical to that provided in the Del
Xxxxx Xxxxxxxxx and Outplacement Assistance
Plan dated October 6, 1992, to any
Transitioned Employee as to whom ED
initiates termination within 180 days after
transition. However, such separation package
10
will not be provided if the termination
results from a violation by the Transitioned
Employee of EDS' rules, policies,
guidelines, or standards of conducts.
(xiii) EDS further agrees to provide a separation
package, consisting of a lump sum payment
and outplacement assistance, in an amount or
level identical to that provided in the Del
Xxxxx Xxxxxxxxx and Outplacement Assistance
Plan dated October 6, 1992, to any
Transitioned Employee who, within 90 days
after EDS' offer of employment, declines to
accept EDS' offer of employment for a
position which is located at least 35 miles
greater than the distance between the
employee's former job location and his or
her then-residence.
(xiv) Del Monte and EDS agree and acknowledge
that the transition of any Del Monte
employees pursuant to this Agreement shall
be without any intervening cessation or
termination of employment. Such
acknowledgment and agreement by EDS shall
not be construed to impose any additional
responsibility or liability on EDS with
respect to any Del Monte employees except as
expressly assumed under this Agreement.
(c) Financial Responsibility for EDS Personnel. EDS
will pay for all personnel expenses, including
wages, required travel and travel related
expenses, of its employees performing the
Services. Any request in writing by Del Monte for
travel by any EDS employee which EDS in good
faith judgment considers outside the scope of
Services will be considered and treated as a
request for Additional Services.
2.2 EDS Services. During the term of this Agreement, and
in accordance with the provisions of this Agreement,
EDS will provide the Services (except Consortium
Services for which separate or additional compensation
is expressly contemplated under Article III) to Del
Monte in consideration of payment of the Monthly Base
Charge, as adjusted pursuant to this Agreement.
2.3 Additional Services. Upon the reasonable written
request of Del Monte, EDS will provide Del Monte such
Additional Services as Del Monte and EDS agree on
terms mutually agreed upon by EDS and Del Monte. Any
services rendered by EDS in addition to the Services
will not be subject to any charges or payment
obligation except to the extent such charges or
payment obligations are agreed to in advance in
writing by Del Monte.
2.4 Compliance with Laws. During the term of this Agreement,
EDS will, on a timely basis, perform the Services and
discharge the obligations set forth in this Agreement
in material compliance with all applicable laws,
regulations, and ordinances, including without
limitation the Americans with Disabilities Act, the
11
requirements of S.B. 198, and Cal/OSHA. As of the
Effective Date, EDS has obtained all necessary and
material approvals from regulatory or other authorities
with jurisdiction over its business, facilities, and
assets to enter into and perform its obligations
under this Agreement.
2.5 EDS Financial Obligations. In addition to any other
financial responsibilities of EDS expressly provided
herein, EDS will pay all costs and expenses related to
each item which is to be provided by EDS pursuant
hereto, unless with respect to Additional Services the
parties agree otherwise in writing in advance.
2.6 Reviews and Inspections. In connection with Del
Monte's review of documentation supporting EDS'
charges and expenses as provided in Section 6.6 and
Del Monte's audits and inspections of Del Monte's
business as provided in Section 8.4, EDS agrees to
cooperate and provide assistance as reasonably
requested by Del Monte and that such cooperation and
assistance is included in the Monthly Base Charge.
2.7 Insurance. EDS and Del Monte each agree to comply with
the insurance requirements set forth in Schedule 2.8.
ARTICLE III. FOODS INDUSTRY CONSORTIUM
3.1 Goal of Consortium. EDS acknowledges that a material
consideration in Del Monte's selection of EDS to perform
the Services was EDS' representations set forth in
Section XV of the EDS Response with respect to its
experience in developing industrywide consortia and
its commitment to establishing a foods industry consortium
(the "Consortium") in which Del Monte will serve as a
founding member. Del Monte's goals in establishing
the Consortium are generally to use information technology
to make Positive business impact across the supply
chain and reduce Systems development costs while
enhancing systems delivery capabilities and gaining
additional leverage from the Del Monte Transitioned
Employees. EDS represents that it will exercise its
best good faith efforts to further Del Monte's goals.
Del Monte represents that it will exercise its best
good faith efforts to cooperate with and assist EDS
at EDS' request in facilitating the establishment of
the Consortium and the fulfillment of its and Del
Monte's goals.
3.2 Initial Formation. EDS will be responsible for the
initial formation of the Consortium. Del Monte will
provide one executive level employee on a half-time
basis to participate in the initial recruitment of
Consortium members and other Consortium formation
activities. Within 30 days after the Effective Date,
designated representatives of EDS and Del Monte will
meet at Del Monte's offices to address the following
issues (the "Initial Meeting").
(a) Recruitment of Consortium members. The parties
will identify potential members with common
interests, determine who will be responsible for
12
presenting the Consortium concept to potential
members and the date by which such presentations
will take place, which will be not later than 90
days following the Initial Meeting. Each member
will appoint one executive level employee to
serve on the Consortium Advisory Board (the
"Board"), which shall convene no later than June
30, 1993.
(b) Development of Charter. At the initial meeting,
EDS will present its proposal for a formal written
charter for the Consortium (the "Charter") .
The Charter will address, at a minimum, the topics
set forth at Page 144 of the Response, under the
heading, "Charter". Within 30 days after receipt
of the draft Charter, Del Monte will provide EDS
with its written comments and EDS will revise the
charter accordingly, or promptly notify Del Monte
of any modifications or exceptions to Del Monte's
comments and schedule a meeting for the resolution
of any remaining open points. The revised Charter,
reflecting the resolution of any such open points,
will be presented to the Board at its first meeting.
(c) Initial Projects. Before the Initial Meeting, EDS
and Del Monte will each develop a list of potential
Consortium projects. At the Initial Meeting, the
parties will compile and expand the list of potential
projects. Within 60 days after the Initial Meeting,
Del Monte will provide EDS with a preliminary analysis
of the relative priority of the potential projects
from Del Monte's perspective and EDS will provide Del
Monte with a preliminary estimate of the time and the
costs associated with each potential project including
identification of variable factors and the impact
of various assumptions regarding the membership of
the Consortium on such factors. The parties will
prepare a revised list of potential projects
and time and costs estimates for such projects
for presentation at the first meeting of the Board.
The Board will request further information
regarding the potential projects, as the Board
deems necessary and will select the initial project(s)
and establish the timing for commencement and
completion of such projects.
3.3 Consortium Advisory Board. The initial task of the Board
will be to institute the Charter. The rights and duties
of the Board will be specified in the Charter. Each
meeting of the Board will be attended by an attorney,
retained by the Consortium, who is experienced in antitrust
law to advise the Board in avoiding antitrust violations
during such meetings, in the selection of projects, and
in all other matters pertaining to the Consortium. The
fees and expenses of such attorney for attending meetings
of the Board will be shared by the members of the Board.
3.4 Schedule and Compensation.
(a) During the period beginning with the Effective
Date and ending June 30, 1993, the Consortium
will engage only in formation and project
13
planning activities and other administration
functions necessary to permit projects to begin
July 1, 1993. Such functions shall be performed
substantially in accordance with Schedule 3.4.
All formation, project planning and
administrative activities performed by EDS
including such activities performed after June
30, 1993, will be performed as part of the
Services.
(b) If EDS performs services with respect to the
Consortium other than services included in the
Services, EDS shall be compensated only for such
service by Del Monte only to the extent that Del
Monte has expressly agreed in advance in writing.
Such services shall be deemed Additional Services
and subject to the written terms and conditions
agreed to by the parties.
3.5 Royalties. EDS shall pay Del Monte royalties as follows:
(a) Royalties on Software developed for and owned by
Del Monte, or which incorporates the Del Monte
Software purchased by EDS under this Agreement or
functional elements of its code, which is sold, leased,
licensed or distributed by EDS or any subsidiary
or affiliate of EDS to third parties, or used by
EDS or any subsidiary or affiliate of EDS in the
course of providing services to third parties
shall be in amounts and payable as mutually agreed
by EDS and Del Monte; but in any event the
amount of royalties due shall be no less than
5% of the base value of the Software established (i)
at the time of the development with respect to new
Software developed for and owned by Del Monte, or
(ii) in connection with the transfer of the Del
Monte Software purchased by EDS under this
Agreement based upon an allocation of the
consideration for such Del Monte Software among
the modules thereof. The allocation of the
consideration for the Del Monte Software
purchased by EDS under this Agreement will be
completed no later than 60 days after the
Effective Date, and the allocation will be made
by EDS, subject to the review and approval of Del
Monte, which shall not be unreasonably withheld.
(b) Royalties on Consortium developed software which
is sold, leased, licensed or distributed by EDS
or any subsidiary or affiliate of EDS to third
parties, or used by EDS or any subsidiary or
affiliate of EDS in the course of providing
services to third parties shall be determined in
writing on a project by project basis, but in any
event the amount of royalties shall be no less
than 5% of the base value of the Software
established at the time of its development.
(c) For each project, the parties will specify:
(i) the base value on which the royalty will be
calculated;
(ii) what event(s) will trigger the obligation to
pay a royalty;
14
(iii) how advances, guarantees, and nonmonetary
consideration received by EDS will be handled;
(iv) how discounts, sales concessions, and the
like will be handled, as well as deals in
which Consortium developed Software and
Software developed for and owned by Del
Monte or which incorporates the Del Monte
Software purchased by EDS under this
Agreement is bundled by EDS with other
products and services;
(v) how often accountings will be rendered and
payments made; and
(vi) whether EDS can credit royalties due against
services fees.
ARTICLE IV. INFORMATION TECHNOLOGY ASSETS AND
RELATED AGREEMENTS
4.1 Purchase of Information Technology Assets by EDS. On
the terms and subject to the conditions set forth in
this Article, EDS agrees to purchase from Del Monte,
and Del Monte agrees to sell, transfer and deliver to
EDS, as of the completion of the Migration to the EDS
Data Center, the equipment listed in Section 1(a) of
Schedule 1.3 (the "Del Monte-Owned Equipment") and Del
Monte Software listed in Section 1(b) of Schedule 1.3
(the "Purchased Assets"), free and clear of any liens,
pledges, mortgages, security interests, options, charges,
adverse claims or other encumbrances. Del Monte
represents and warrants to EDS that, as of the
Effective Date, each item of Purchased Assets is in
good operating condition and repair (reasonable wear
and tear excepted) and to the best of Del Monte's
knowledge conforms in all material respects to all
applicable laws, ordinances, statutes, rules and
regulations relating to its use and operation at the
Del Monte facilities at which it is being operated as
of the Effective Date. Del Monte agrees that the
representations and warranties contained in this
Section will be true and correct as of the completion
of the Migration. On the terms and subject to the
conditions set forth in this Article and in addition
to any royalties payable to Del Monte pursuant to
Section 3.5(a) with respect to the Del Monte Software,
EDS agrees to pay to Del Monte $6,000,000.00 as
consideration for the sale of the Purchased Assets
($2,000,000 for the Del Monte-Owned Equipment and
$4,000,000 for the Del Monte Software), payable within
240 days after the Effective Date, but in no event
later than June 30, 1993. Upon receipt of payment of
the consideration for the purchase of the Purchased
Assets, Del Monte agrees to execute and deliver to EDS
a xxxx of sale in substantially the form of Exhibit A
evidencing the purchase and sale of the Purchased
Assets. Commencing on the Effective Date and until the
completion of the Migration, Del Monte will furnish
and provide Access to the Purchased Assets to EDS, for
EDS' use at no charge, in connection with providing
the Services under this Agreement.
15
4.2 Related Agreements. On the terms and subject to the
conditions set forth in this Article, Del Monte agrees
to assign to EDS, as of the completion of the Migration
to the EDS Data Center, all of Del Monte's right, title
and interest in and to the agreements listed in Schedule
4.2 (the "Maintenance Agreements") relating to the
maintenance of the Purchased Equipment, and EDS agrees
to assume as of the Effective Date Del Monte's financial
obligations arising under the Maintenance Agreements and
as of the completion of the Migration all of Del Monte's
obligations arising under the Maintenance Agreements
subsequent to the assignment thereof to EDS. Del Monte
and EDS will each perform its obligations with respect
to the transfer of the Maintenance Agreements as specified
in Section IX-2 of the Response. Del Monte represents
and warrants to EDS that, as of the Effective Date, (i)
to the best of its knowledge, neither Del Monte nor the
providerof the maintenance services is in default in any
material respect under any of the Maintenance Agreements,
and (ii) Del Monte has delivered to EDS full and
complete copies of the Maintenance Agreements (including
any amendments thereto). Del Monte agrees that the
representations and warranties contained in
this Section will be true and correct as of the date
of the assignment of the Maintenance Agreements to EDS.
Del Monte agrees that it will not amend any of
the Maintenance Agreements between the Effective Date
and the date of the assignment of the Maintenance
Agreements to EDS without the prior written
consent of EDS. Del Monte and EDS agree to execute
and deliver an assignment and assumption agreement in
substantially the form of Exhibit B evidencing the
assignment and assumption of the Maintenance Agreements
contemplated by this Section.
4.3 Del Monte-Leased Equipment. During the term of this
Agreement, Del Monte will furnish to EDS, for EDS' use
at no charge, the equipment leased by Del Monte that is
listed in Section 2 of Schedule 1.3 (the "Del Monte-Leased
Equipment"). Commencing on the Effective Date through
the Migration, Del Monte will pay, and EDS will reimburse
Del Monte for, all costs and expenses with respect to the
Del Monte-Leased Equipment including without limitation
lease payments, insurance and taxes. After the Migration,
EDS will pay all costs and expenses with respect to the
Del Monte-Leased Equipment including, without limitation
lease payments, insurance and taxes. Upon the request of
EDS from time to time and as mutually agreed upon by EDS
and Del Monte, Del Monte will, to the extent permitted by
such lease agreements, terminate or assign to EDS
any such lease agreements or purchase any such Del
Monte-Leased Equipment and will immediately transfer it
to EDS. EDS will at Del Monte's option pay, or
reimburse Del Monte for, any amounts incurred in
terminating or assigning any such lease or in purchasing
any such Del Monte-Leased Equipment.
4.4 Third Party Approvals. Del Monte and EDS will each perform
its obligations as set forth in Section IX-2 of the Response
with respect to obtaining any consents, approvals or
authorizations from third parties necessary for EDS to
access, operate and use (at or from any location where
Services are to be provided) the Del Monte-Leased Equipment,
16
including without limitation the payment of all costs and
expenses associated therewith. Del Monte hereby appoints
EDS as its sole agent for all matters pertaining to the
Del Monte-Leased Equipment and will promptly notify all
appropriate third parties of such appointment.
4.5 Return of Equipment. Subject to the second to last
sentence of Section 4.3, upon the expiration or
termination of this Agreement, EDS will return each
item of the Del Monte-Leased Equipment to Del Monte in
substantially the same condition it was in when
initially provided to EDS, reasonable wear and tear
excepted.
4.6 Further Assurances. Del Monte and EDS agree to execute
and deliver such other instruments and documents as
either party reasonably requests to evidence or effect
the transactions contemplated by this Article.
ARTICLE V. DEL MONTE OBLIGATIONS
5.1 Del Monte Personnel and Management.
(a) Del Monte Representative. During the term of
this Agreement, Del Monte will maintain a
designated representative (the "Del Monte
Representative") who will be the Chief
Information Officer of Del Monte and who will be
authorized to act as the primary point of contact
for EDS in dealing with Del Monte with respect to
each party's obligations under this Agreement.
(b) Transitioned Employees. Del Monte will cooperate
with EDS in the performance by EDS of its obligations
to offer employment to and hire the Transitioned
Employees. Del Monte has not and will not make any
representation, promise, or other communication,
whether written or oral, to the Transitioned Employees
regarding employment with EDS, or the employment
benefits, plans, or practices of EDS and Del Monte
will direct any questions Del Monte receives on such
issues to designated EDS representatives. Should EDS
request that Del Monte continue to make payments to
such employees after they are hired by EDS, Del Monte
will do so as an administrative convenience until
such personnel can be integrated into the EDS payroll
system. In such event, Del Monte will be acting solely
as an accommodation to EDS and EDS will reimburse Del
Monte for all wages paid and employer's contributions
made by Del Monte in connection therewith.
(c) Bonuses. Del Monte will pay to EDS an amount equal to
one month's salary as of the Effective Date of each
Transitioned Employee which amount will be payable
as bonuses to such Transitioned Employee who accepts
EDS' offer of employment and who remains an employee
of EDS 180 days after the Transitioned Employee'
employment date with EDS. EDS will provide the payment
17
of such bonus to the individuals with payment to be made
within a mutually agreed upon period following the
completion of 180 days of EDS employment and Del Monte
will pay such amount to EDS immediately prior to the
payment by EDS to the individuals.
5.2 Del Monte Obligations. During the term of this Agreement,
to enable EDS to perform the Services, Del Monte will, on
a timely basis and at no charge to EDS, perform the support
services and discharge the obligations described in Schedule
5.2. Del Monte will, on a timely basis, comply with its
material obligations under all laws, regulations, and
ordinances governing Del Monte's business, facilities
and assets directly related to material obligations
under this Agreement. As of the Effective Date, Del
Monte has obtained all necessary and material approvals
from regulatory or other authorities with jurisdiction
over its business, facilities, and assets to enter into
and perform its obligations under this Agreement.
5.3 Del Monte Financial Obligations. In addition to
any other financial responsibilities of Del Monte
expressly provided herein, Del Monte will pay all
costs and expenses related to each item which is to be
provided by Del Monte pursuant hereto and for without
the financial responsibility has not been expressly
assumed by EDS under this Agreement including, without
limitation, the items set forth in Section 5.1 and
5.2.
ARTICLE VI. PAYMENTS TO EDS
6.1 Charges. In consideration for the performance by EDS
of the Services (except Consortium Services for which
separate or additional compensation is expressly
contemplated under Article III), Del Monte will make
payments to EDS as set forth below.
(a) Migration Charge. The Monthly Base Charge
(as defined below) includes the migration charges
set forth in Schedule 6.1 (the "Migration Charge").
(b) Monthly Base Charge. For each month following the
Effective Date, Del Monte will pay EDS the
monthly base charge set forth in Section 1 of
Schedule 6.1 (the "Monthly Base Charge"), subject
to the credits specified in Section 2 of Schedule
6.1. Each such Monthly Base Charge will be
invoiced on the fifteenth calendar day of the
month to which it relates, and the Monthly Base
Charge for any partial month will be prorated on
a per diem basis.
(c) Adjustments to Monthly Base Charge. In the event
that the processing levels rise above or fall
below Del Monte's average processing levels as of
June, 1992 as previously provided to EDS by Del
Monte in connection with the RFP (the "Baseline
Processing Levels") by more than ten percent
18
(10%) over any six-month period, then EDS and Del
Monte will negotiate in good faith an appropriate
adjustment to the Monthly Base Charge to reflect
such increased or decreased processing levels.
(d) Out-of-Pocket Expenses. Del Monte will pay, or
reimburse EDS for, the reasonable out-of-pocket
expenses, including, but not limited to, travel and
travel-related expenses, incurred by EDS in
connection with the performance of its obligations
hereunder or incurred by EDS at the request
or with the approval of Del Monte. Such payments
and reimbursements will be limited to expenses
which are expressly approved by Del Monte in
advance in writing and conditioned upon the
provision of such documentation as Del Monte may
reasonably require substantiating payment by EDS.
(e) Extension Period Charges. In the event this Agreement
is extended for any period pursuant to Section 1.2,
the charges for the Services for such period
will be such charges as will be mutually
agreed upon by the parties for such period;
provided, however, that in the absence of such an
agreement the charges will be the charges in
effect during the period immediately prior to
such extension period as adjusted pursuant to
Section 6.2.
6.2 Cost of Living Adjustment.
(a) Adjustment. If the Consumer Price Index for all
Urban Consumers, U.S. City Average, for All Items
(1982-84 = 100), as published in the Bureau
of Labor Statistics of the Department of Labor
(the "CPI"), shall at any anniversary of the Effective
Date (the "Current Index") be higher or lower
than the CPI at the previous anniversary of
the Effective Date or, with respect to the first
anniversary of the Effective Date, at the Effective
Date (the "Base Index"), then, effective as of such
anniversary, all charges under this Agreement
attributable to the period following such anniversary
date (other than charges based upon then current
EDS rates), as previously adjusted pursuant to
this Section, shall be increased or decreased, as the
case may be, by the percentage that the Current
Index increased or decreased, as the case may be,
from the Base Index.
(b) Change of Index. In the event that the Bureau of
Labor Statistics should stop publishing the CPI or
should substantially change the content of
format thereof, the parties hereto shall substitute
therefor another comparable measure published by a
mutually acceptable source; provided, however, that
is such change is merely to redefine the base year
for the CPI from 1982-84 to some other year, the
parties shall continue to use the CPI but shall,
if necessary, convert either the Base Index or the
19
Current Index to the same basis as the other by
multiplying such index by the appropriate conversion
factor.
6.3 Time of Payment. Any sum due EDS hereunder for which a
time for payment is not otherwise specified will be due and
payable 10 days after receipt by Del Monte of an invoice from
EDS. Any sum due Del Monte hereunder for which a time for payment
is not otherwise specified will be due and payable 30 days after
receipt by EDS of an invoice from Del Monte. Any sum due one
party hereunder that is not paid when due by the other party
shall thereafter bear interest until paid at the lesser of (i)
two percent per annum more than the prime rate established from
time to time by Citibank N.A., New York, or (ii) the maximum rate
of interest allowed by applicable law.
6.4 Taxes. Del Monte shall be responsible for the
payment of sales or use tax, if any, attributable to
the consideration for the purchase by EDS of Del
Monte-Owned Equipment and the Del Monte Software.
The parties acknowledge that as of the Effective Date, the
charges for the Services are not subject to any sales, use,
ad valorem or similar tax in California and certain other
jurisdictions. If during the term or any extension period
the charges for the rendering of the Services or any
Additional Services become subject to sales, ad valorem, or
use tax, or any tax of a similar nature in California or in
any other jurisdiction in which no such tax was in effect
as of the Effective Date, then until the fifth anniversary
of the Effective Date, Del Monte shall be responsible for
the payment of any such tax and after the fifth anniversary
of the Effective Date, Del Monte shall be responsible for
the payment of any such tax and after the fifth anniversary
of the Effective Date, Del Monte and EDS will each bear
financial responsibility for 50% of such tax. Del Monte
shall be responsible for the payment of any such tax in
effect as of the Effective Date.
In no event shall Del Monte pay or be responsible or
otherwise obligated for EDS' federal, state, or local
income taxes or any taxes in lieu of income taxes, nor
shall Del
Monte pay or be responsible or otherwise obligated (except
as specified above in this Section 6.4) for any other
federal, state, or local taxes, levies, or other exactions
of to which EDS or its property is subject, including but
not limited to, property or ad valorem, franchise,
transfer, value added, privilege, excise, occupation, or
gross receipts taxes.
In no event shall Del Monte or EDS seek from one another
tax payment or reimbursement, except as to amounts actually
remitted in accordance with the terms of this Article, and
the parties shall fully credit one another for all taxes
paid or reimbursed in excess of amounts actually due under
applicable law. In the event that one party shall obtain or
receive a refund of tax which was reimbursed by the other
party, the receiving party shall promptly forward such
refund amount to the reimbursing party. Del Monte and EDS
shall fully credit one another for all applicable
exclusions and exemptions from tax for which one party is
liable but as to which the other party is obligated to make
reimbursement, including but, not limited to, charges for
(i) the sales or transfer of tangible personal property
20
used to transmit Del Monte-furnished information; (ii) the
sale or transfer of custom computer programs, including Del
Monte Software; (iii) the processing of Del Monte-furnished
information; (iv) training and other nontaxable services;
(v) pick-ups and deliveries; (vi) computer rentals; (vii)
transportation; (viii) installation; and (ix) testing.
6.5 Verification of Costs. The terms set forth in this
Agreement are based upon information furnished by Del
Monte to EDS in the RFP and this Agreement. Del Monte
believes that such information is accurate and
complete. If any such information should prove to be
inaccurate or incomplete in any material respect, the
parties may exercise the procedures established in
Section 9.3 and 9.4 for appropriate adjustments to the
provisions hereof.
6.6 Supporting Documentation. Upon the reasonable
request of Del Monte, EDS shall make available to Del
Monte for review the documentation which supports EDS'
charges and expenses hereunder. Such supporting
documentation may include, without limitation,
computer resource usage report, time sheets and
receipts. EDS shall make such supporting documentation
available for review by Del Monte and/or Del Monte's
independent auditors, provided that such independent
auditors execute an agreement with EDS which restricts
the independent auditors from disclosing such
information to third parties or using such information
in any manner other than in connection with their
review on behalf of Del Monte.
ARTICLE VII. PROPRIETARY RIGHTS AND SOFTWARE
7.1 Vendor Software. As of the Effective Date, subject to
the terms and conditions of this Agreement, Del Monte will
transfer to EDS all of its rights to Access the Vendor Software
licensed to Del Monte, except the Vendor Software identified in
Schedule 7.1, to which EDS will not have access. Prior to
completion of the Migration, Del Monte will operate and maintain
the Vendor Software identified in Section 1 of Schedule 7.1 and
provide to EDS the Del Monte data being processed by such Vendor
Software for conversion of such data for processing on substitute
Software products and Del Monte will deinstall such Vendor
Software prior to the completion of the Migration. Until the
completion of the Migration, Del Monte will continue to operate
and maintain the Vendor Software identified in Section 2 of
Schedule 7.1, which Vendor Software will not be migrated to the
EDS Data Center. Del Monte and EDS will each perform its
obligations as specified in Section IX-2 of the Response to
obtain any consents from third parties necessary for the transfer
of all of Del Monte's rights to access the Vendor Software except
the Vendor Software identified in Schedule 7.1. The Vendor
Software licensed to Del Monte so transferred to EDS will be made
available to EDS in such form and on such media as it exists on
the Effective Date, together with appropriate documentation and
other materials. Nothing contained in this Agreement will require
21
EDS or Del Monte to violate the proprietary rights of any third
party in any Software. In the event that Del Monte is unable to
transfer to EDS such rights to Access the Vendor Software
licensed to Del Monte, except the Vendor Software identified in
Schedule 7.1, then Del Monte and EDS will negotiate in good faith
to agree upon the terms of mutually agreeable alternatives to
enable EDS to provide the Services hereunder. Until the parties
have agreed upon the terms of such alternatives, EDS will not be
required to perform any of the Services which require EDS to
Access such Vendor Software the rights to which Del Monte is
unable to transfer to EDS.
7.2 EDS Software. EDS will remain EDS' property, except that
EDS shall grant to Del Monte a perpetual, nontransferable (except
for Permitted Transactions or Change of Control in accordance
with Section 12.2), nonexclusive, royalty-free license to use,
effective as of the Expiration Date or the date of termination as
the case may be, the application software programs (including
existing documentation) of any EDS Software, including any Del
Monte Software acquired by EDS under this Agreement, then being
used by EDS in rendering services to Del Monte (the "Licensed
Programs"), subject to Del Monte and EDS entering into an
agreement, in form and substance reasonably satisfactory to EDS
and Del Monte, containing such terms and conditions as may be
appropriate including, without limitation, the following terms
and conditions to protect the confidentiality of the Licensed
Programs:
(a) Operators. Except With the prior written consent of
EDS or to the extent required by natural disaster or
similar emergency, the Licensed Programs will not be
operated, directly or indirectly, (i) by persons other
than bona fide employees of Del Monte or independent
contractors of Del Monte under its direct supervision
and control (and who are not outsourcing competitors
of EDS) with whom Del Monte has written confidentiality
agreements protecting the confidentiality of the
Licensed Programs or (ii) on equipment that is not
under the control of Del Monte.
(b) Del Monte Work. Except with the prior written consent
of EDS, the Licensed Programs will only be used for
processing activities within the scope of Del Monte's
normal course of business as of the Expiration Date.
Del Monte will not use the Licensed Programs to
perform data processing operations on behalf of any
Del Monte customers or make the Licensed Programs
available for any Del Monte customers' use. As used
in this Section 7.1(b), the term "Del Monte work"
includes the data of Del Monte and its subsidiaries.
(c) Confidentiality. Except as otherwise provided in this
Agreement, Del Monte will keep the Licensed Programs
confidential, will not at any time allow the Licensed
Programs, or any of their various components or any
modifications, to be disclosed to any party, or sold,
licensed, assigned, leased or commercially exploited
22
or marketed in any way, with or without charge, by
Del Monte or its employees or agents and, except to
the extent required for normal operation of the
Licensed Programs as permitted in this Agreement in
the day to day business operations of Del Monte, Del
Monte will not permit the Licensed Programs to be copied
or reproduced, in whole or in part, by any party at
any time. Notwithstanding the foregoing, the exception
in Section 8.2(a) will not apply with respect to
any Del Monte Software which is included in the Licensed
Programs.
(d) Irreparable Harm. Del Monte acknowledges that
the Licensed Programs are the valuable property
of EDS, that violation in any material respect of
any provision of this Section may cause EDS
irreparable injury for which it would have no
adequate remedy at law and that EDS shall be
entitled to seek preliminary and other injunctive
relief against any such violation. Such
injunctive relief shall be in addition to, and in
no way in limitation of, any and all other
remedies or rights which EDS shall have at law or
in equity.
If the parties fail to enter into an agreement by the Expiration
Date or the effective date of termination (as the case may be),
the terms and conditions in this Section 7.2 shall be deemed the
terms and conditions of the license of the Licensed Programs.
7.3 EDS Development Tools. EDS retains all right, title and
interest in and to any and all Software, software development
tools, know how, methodologies, processes, technologies or
algorithms used in providing the Services and the Additional
Services which are based upon trade secrets or proprietary
information of EDS or otherwise owned or licensed by EDS.
Notwithstanding the foregoing, the rights of Del Monte will be no
less than those of any member of the general public with respect
to any such Software, software development tools, know how,
methodologies, processes, technologies or algorithms used by EDS
which are or become part of the public domain.
ARTICLE VIII. DATA, CONFIDENTIALITY AND AUDIT RIGHTS
8.1 Del Monte's Data. Information relating to Del Monte or
its customers contained in Del Monte's data files ("Del Monte's
Data") is the exclusive property of Del Monte. EDS is authorized
to have access to and make use of Del Monte's Data as appropriate
for the performance by EDS of its obligations under this
Agreement. Upon the termination or expiration of this Agreement,
EDS will, at Del Monte's written request within a reasonable time
and expense which will be limited to reimbursement of direct,
out-of-pocket expenses reasonably incurred by EDS, return to Del
Monte all of Del Monte's Data in EDS' then existing machine-
readable format and media. EDS will not use Del Monte's Data for
any purpose other than providing the Services or Additional
Services.
23
8.2 Confidentiality. Except as otherwise provided Agreement,
EDS and Del Monte each agree that all information communicated to
it by the other or the other's affiliates, whether before or
after the Effective Date, including without limitation the terms
of this Agreement, will be received in strict confidence, will be
used only for purposes of this Agreement, and will not be
disclosed by the recipient party, its agents, subcontractors or
employees without the prior written consent of the other party.
Each party agrees to use the same means it uses to protect its
own confidential information, but in any event not less than
reasonable means, to prevent the disclosure of such information
to outside parties. However, neither party shall be prevented
from disclosing information which belongs to such party or is (a)
already known by the recipient party without an obligation of
confidentiality other than pursuant to this Agreement; (b)
publicly known or becomes publicly known through no unauthorized
act of the recipient party; (c) rightfully received from a third
party; (d) independently developed without use of the other
party's confidential information; (e) disclosed without similar
restrictions to a third party by the party owning the
confidential information; (f) approved by the other party for
disclosure; or (g) required to be disclosed pursuant to a
requirement of a governmental agency or law if the disclosing
party provides the other party with written notice of this
requirement prior to disclosure. The provisions of this Section
will survive the expiration or termination of this Agreement for
any reason.
8.3 Security. EDS will comply with the written security
procedures that are in effect at the Del Monte Data Center on the
Effective Date as reasonably required by Del Monte. EDS will also
institute such additional security procedures at the Del Monte
Data Center as Del Monte reasonably requests as an Additional
Service. Del Monte will provide all necessary security personnel
and related equipment at the Del Monte Data Center. Except as
provided in Sections 8.2 and 8.4, without the prior consent of
EDS, no employee, agent, contractor or invitee of Del Monte will
operate or assist in operating equipment or Software to be used
by EDS under this Agreement.
8.4 Audit Rights. EDS will provide auditors and inspectors
that Del Monte designates in writing with reasonable access to
the EDS Data Center for the limited purpose of performing audits
or inspections of Del Monte's business. EDS will provide
reasonable assistance of a routine nature to such auditors and
inspectors. EDS will not be required to provide such auditors and
inspectors access to data of EDS customers other than Del Monte.
Del Monte will cause any auditors or inspectors which are not Del
Monte employees to comply with the confidentiality obligations of
Del Monte under this Agreement with respect to confidential
information of EDS in connection with any such audit or
inspection.
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ARTICLE IX. DISPUTE RESOLUTION
9.1 Status Reviews. EDS will provide regular status
reports to Del Monte on system operations that include
production system availability and performance and
resource utilization. The EDS Account Director will
meet on a mutually agreeable schedule with the Del
Monte Representative to review such status reports and
to discuss service level performance, to identify and
attempt to resolve problems and to determine user
satisfaction.
9.2 Annual Quality Review. At least annually, EDS and Del Monte
will meet to review the performance of their obligations under
this Agreement.
9.3 Performance Review. During the course of the long-term
relationship provided for in this Agreement, disputes,
controversies or claims may arise between the parties. To
minimize the expense to and impact on each party of formally
resolving such disputes, controversies and claims, the parties
will meet regularly to review the performance of each party of
its obligations under this Agreement. If the parties are unable
to resolve a dispute controversy or claim through this
performance review process, upon the written request of either
party, each party will appoint a representative whose task it
will be to meet for the purpose of resolving the dispute,
controversy or claim. Such officers will discuss the dispute,
controversy or claim and negotiate a resolution in good faith,
without the necessity of any formal proceeding relating thereto.
If such officers do not achieve a mutually satisfactory
resolution of the dispute, controversy or claim within 30 days
after appointment of the representatives, either party may, by
giving notice to the other, elect to proceed with the disputes
resolution procedures set forth in Section 9.4 below.
9.4 Dispute Resolution.
(a) Generally. All disputes that arise between Del Monte
and EDS that cannot be settled through negotiation
pursuant to Section 9.3 shall be resolved in
the following manner: First, through
participation in a non-binding mini-
trial, as more fully described in Section
9.4(b), below, and, if such mini-
trial is unsuccessful in resolving
the dispute, then; Second, by the
mandatory, simultaneous exchange of
written Final Offers followed by a
final pre-arbitration meeting of
Principals, as more fully set forth in
Section 9.4(c), below, and if such Final
Offers and pre-arbitration meeting
is unsuccessful in resolving the dispute,
then; Third, by arbitration in
accordance with Section 9.4(d).
(b) Mini-Trial Within thirty (30) days of a written
demand by Del Monte or EDS, a mini-trial
will be held at an agreed-upon location.
The mini-trial shall take place in accordance
with such rules and procedures as the parties
agree upon in advance. While non-binding,
the purpose of this mini-trial
will be to inform the senior business
management of Del Monte and EDS
25
(referred to in this Article as
"Principals" and more fully described in
Section 9.4(e), below) of the positions
of each of the parties and to require
each such party to endeavor to fully
set forth its position regarding
entitlement and quantum. In addition,
a neutral advisor, agreed to in
advance by the parties, may attend the
mini-trial, not as an active
participant, but solely for the
purpose of commenting privately to the
Principals regarding the relative
strengths and weaknesses of each party's
position. Failure to agree upon a
neutral advisor shall not delay
commencement of the mini-trial.
Presentations at the mini-trial will be
informal; rules of evidence will not
apply. Attorneys may or may not
participate on behalf of a party, at
such party's option. Principals and the
attorneys for the Principals may
question witnesses. Unless otherwise
agreed by the Principals, the mini-trial
proceedings shall take no longer
than two (2) days, held consecutively.
At the conclusion of the
proceedings, the Principals shall meet
and attempt to resolve the dispute.
Each Principal may meet separately
with the neutral advisor or the
Principals may invite the neutral advisor
to confer with them jointly. If
the Principals cannot resolve the
dispute within seven (7) days following
conclusion of the proceedings, the
mini-trial process shall be deemed
terminated. No transcript or recording
shall be made of the mini-trial
proceedings, and all statements, materials,
and presentations in connection
therewith shall be treated as confidential
and inadmissible as evidence,
even for purposes of impeachment, in
any pending or future court action
directly or indirectly involving these
parties or this dispute, provided,
however, that evidence which would
otherwise be admissible in such court
action shall not be rendered inadmissible
as a result of its use at the mini-
trial. The neutral advisor, if any,
shall be disqualified as a witness,
consultant, or expert for either party in
this or any other dispute arising out
of or relating to this Agreement.
(c) Final Offers Within thirty (30) days
after a written demand for Final
Offer by Del Monte or EDS, Del Monte
and EDS shall each present to an
escrow agent a written Final Offer.
Promptly after receipt of all Final
Offers, the escrow agent shall
simultaneously deliver a copy of each Final
Offer to the other party (the escrow
agent will retain the original of each
Final Offer) at which time the Principals
will meet in an attempt to resolve
the dispute. Unless the Principals
agree otherwise, if the matter is not
resolved within ten (10) days of the
exchange of Final Offers, the Final
Offer procedure shall be deemed
terminated. The written Final Offers and
all negotiations relating to them shall
be treated as confidential, and,
except as provided below, shall be
inadmissible as evidence, even for
purposes of impeachment, in any pending
or future court action directly or
indirectly involving these parties
or this dispute, provided, however, that
evidence which would otherwise be
admissible as a result of its use during
negotiations. At any time after
termination of the Final Offer procedure,
26
Del Monte or EDS may commence an
arbitration action in accordance
with Section 9.4(d).
(d) Arbitration
(i) Procedures. Any dispute, controversy or
claim arising out of or related to this
Agreement, or the creation, validity,
interpretation, breach or termination of
this Agreement, that the parties are unable
to resolve through informal discussions or
negotiations pursuant to Section 9.2 or
pursuant to Sections 9.3(b) or (c), will be
submitted to binding arbitration using the
following procedure:
(A) The arbitration will be held in San
Francisco, California, before a panel
of three arbitrators. Either party may
demand arbitration in writing, by
serving on the other party a statement
of the dispute, controversy or claim,
and the facts relating or giving rise
thereto, in reasonable detail, and the
name of the arbitrator selected by it.
(B) Within 30 days after such demand, the
other party will name its arbitrator,
and the two arbitrators named by the
parties will, within 60 days after such
demand, select the third arbitrator.
(C) The arbitration will be governed by the
Commercial Arbitration Rules of the American
Arbitration Association (the "AAA" except as
expressly provided in this Section. However,
the arbitration will be administered by any
organization mutually agreed upon by the parties.
If the parties are unable to agree upon the
organization to administer the arbitration,
it will be administered by the AAA. The
arbitrators may not amend or disregard any
provision of this Section.
(D) The arbitrators will allow such
discovery as is appropriate to the
purposes or arbitration in
accomplishing fair, speedy and cost
effective resolution of disputes. The
arbitrators will reference the rules of
evidence of the Federal Rules of Civil
Procedure then in effect in setting the
scope and direction of such discovery.
The arbitrators will not be required to
make findings of fact or render
opinions of law.
(E) The decision of and award rendered by
the arbitrators will be final and
binding on the parties. Judgment on the
award may be entered in and enforced by
any court of competent jurisdiction.
27
(ii) Enforcement. Other than those matters
involving injunctive relief as a remedy, or
any action necessary to enforce the award of the
arbitrators, the provisions of this Section
are a complete defense to any suit, action
or other proceeding instituted in any court
or before any administrative tribunal with
respect to any dispute, controversy or claim
arising out of or related to this Agreement
or the creation, validity, interpretation,
breach or termination of this Agreement. The
provisions of this Section will survive the
expiration or termination of this Agreement
for any reason. Nothing in this Section
prevents the parties from exercising the
termination rights set forth in this
Agreement.
(iii) Services during Arbitration. Unless EDS is
bringing an action under this Section for
nonpayment of undisputed amounts by Del
Monte for failure of Del Monte to pay any
disputed amount into escrow as provided in
Section 10.2, EDS will continue to provide
the Services, and Del Monte shall continue
to make payments to EDS, in accordance with
this Agreement during the arbitration
proceedings.
(e) Principal. For purposes of this Article, the term
"Principal" shall have the following meanings: (i) as
to EDS, "Principal" shall mean the President of
the Manufacturing & Distribution Services Division
of EDS of his successor or anyone of senior rank
within EDS' organization), who shall be fully vested
by EDS with the authority to resolve the dispute in
question, (ii) as to Del Monte, "Principal" shall mean
the Chief Financial Officer of Del Monte or his successor
for anyone of senior rank within Del Monte's organization),
who shall be fully vested by Del Monte with the
authority to resolve the dispute in question.
ARTICLE X. TERMINATION
10.1 Termination for Cause. If either party materially
defaults in the performance of any of its obligations
(except for a default by Del Monte in its obligation
to pay undisputed amount to EDS, which will be subject
to Section 10.2) under this Agreement, which default
shall not be substantially cured within 60 days after
written notice is given to the defaulting party
specifying the default, or, with respect to any
default which cannot reasonably be cured within 60
days, if the defaulting party fails to proceed within
60 days to commence curing said default and thereafter
to proceed with all due diligence to substantially
cure that default, then the party not in default, by
giving written notice to the defaulting party, may
terminate this Agreement as of a date specified in the
notice of termination.
10.2 Termination for Nonpayment. If Del Monte defaults in
the payment when due of any undisputed amount due to
EDS or fails to pay any disputed amount into escrow as
28
provided below and does not cure such default within
ten days after being given written notice of such
default, then EDS, by giving written notice thereof to
Del Monte, may terminate this Agreement as of a date
specified in such notice of termination. Del Monte
will pay any disputed amounts into an interest-bearing
escrow account, structured by agreement of the
parties, until the dispute with respect to such amount
is resolved pursuant to Section 9.3 or 9.4 or by
arbitration.
10.3 Termination for Insolvency. Subject to the provisions
of Title II, United States Code, if either party
becomes or is declared insolvent or bankrupt, is the
subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a
receiver or similar officer for it and any such
proceeding continues undismissed for a period of (60)
days, then the other party, by giving written notice
to such party, may terminate this Agreement as of a
date specified in such notice of termination.
10.4 Termination Without Cause. Del Monte may terminate
this Agreement effective as of the second or any
subsequent anniversary of the Effective Date by
notifying EDS in writing of its intention to terminate
this Agreement at least twelve months prior to the
third or such subsequent anniversary of the Effective
Date, as long as Del Monte is not then and does not
become in default under any of the terms of this
Agreement prior to the termination date specified;
provided, however, that Del Monte pays to EDS the
termination fee set forth in Schedule 10.4 (the
"Termination Fee") on or before such specified
termination date. The parties intend that the charges
payable to EDS for such a termination will be limited
to the Termination Fee and any amounts otherwise
payable to EDS under this Agreement for Services
performed through the specified termination date. The
Termination Fee will be prorated in the event of
termination noticed on any date other than the second
or any subsequent anniversary of the Effective Date.
Payment of the Termination Fee by Del Monte as
provided in this Article is not intended as a
fortfeiture or penalty, but instead is intended to
compensate EDS for the damages it will suffer as a
result of such termination without cause by Del Monte.
In agreeing to such termination fee, Del Monte
acknowledges that the amount of EDS' actual damages by
reason of Del Monte's termination will be substantial
but would be extremely difficult to ascertain, and the
amount provided for herein is a reasonable estimate of
such damages. In addition, Del Monte and EDS desire to
have a limitation put on the liability of Del Monte to
EDS in the event of termination without cause.
Accordingly, the parties have examined and negotiated
the concept of the termination fee set forth herein,
with the amount thereof having been the subject of
specific agreement between the parties. By their
initials hereto, EDS and Del Monte specifically
acknowledge their acceptance and approval of the
foregoing termination fee provision.
29
ACKNOWLEDGMENT AS TO ACCEPTANCE OF THE
IMMEDIATELY PRECEDING TERMINATION FEE
PROVISION
/s/ Xxxxx X. Xxxxxx /s/ Xxxx Xxxxxx
----------------------- ----------------------
Del Monte EDS
10.5 Transition Services upon Termination.
(a) Services. In connection with the termination of this
Agreement, EDS will comply with Del Monte's reasonable
directions to cause the orderly transition and migration
to Del Monte from EDS of all Services and Additional
Services then being performed by EDS (the "Termination
Transition"). Del Monte, its employees, and agents will
cooperate in good faith with EDS in connection with EDS'
obligations under this Section and Del Monte will perform
its obligations under the Transition Plan (as defined in
this Section). By no later than the Expiration Date or
the effective date of termination, as the case may be,
EDS will perform the following obligations and in addition
such other obligations as may be contained in the
Transition Plan. In the event of a termination of this
Agreement, the party giving notice to the other party of
termination will take into account the following
obligations in order to determine a reasonable period
of time between the date of the notice of termination and
the effective date of such termination in which such
obligations may be reasonably performed.
(i) EDS and Del Monte will work together to
develop a transition plan (the "Transition
Plan") setting forth the respective tasks to
be accomplished by each party in connection
with the orderly transition and a schedule
pursuant to which the tasks are to be
completed.
(ii) EDS will, upon Del Monte's request, provide
Del Monte with reasonably detailed
specifications for hardware or other
equipment which Del Monte will require to
properly perform the services and procedures
previously performed by EDS.
(iii) EDS will reasonably assist Del Monte in the
installation of any such hardware or
equipment procured by Del Monte in
connection with the transition.
(iv) EDS will deliver to Del Monte and
install on Del Monte's hardware and
equipment the Licensed Programs which are
subject to a mutually agreeable license
30
agreement and will assist in the loading of
Del Monte's data in connection with the
installation of such Licensed Programs.
(v) EDS will reasonably assist Del Monte, at Del
Monte's expense, in Del Monte's acquisition
of any necessary rights to access and use
any Vendor Software and documentation then
being used by EDS in connection with the
processing of Del Monte's information
pursuant to this Agreement.
(vi) EDS will deliver to Del Monte (a) copies of
existing documentation relating to any Del
Monte Software delivered or Licensed Program
licensed to Del Monte pursuant to paragraphs
(iv) and (v) of this Section, and (b) such
documentation for Vendor Software used at
the time of termination of this Agreement by
EDS to provide the Services which is
available to EDS and which EDS is permitted
to furnish to Del Monte.
(vii) EDS will provide appropriate training for
the Del Monte employees who will be assuming
responsibility for operation of the Software
following the Transition Termination.
(b) Charges. For so long as this Agreement remains in effect
and during the Termination Transition, Del Monte will pay
EDS the charges set forth in Article VI. If consistent
with the Transition Plan, Del Monte requires and
authorizes in advance in writing EDS resource in excess
of resources otherwise provided by EDS, Del Monte will
pay EDS for such additional resources at EDS then
current standard commercial rates at such times as
the parties agree. If this Agreement is terminated
by EDS pursuant to Section 10.2 or 10.3, then Del Monte
will pay EDS on this first day of each month and as a
condition to EDS' obligation to provide termination
assistance to Del Monte during that month, an amount
equal to the charges set forth in Article VI and EDS'
reasonable estimate of the total of any charges for
EDS resources in excess of the resources otherwise
provided by EDS which Del Monte has authorized in advance
in writing.
10.6 Survival of Provisions. Notwithstanding any provisions
of this Agreement to the contrary and without limiting
the survivability of any other provision of this
Agreement that, by its terms or operation of law,
survives the expiration or earlier termination of this
Agreement, the provisions of Articles IX and XI
(except Section 10.1), Sections 3.5, 4.5, 6.1, 6.3,
6.4, 7.2 (if the parties fail to enter into an
agreement thereunder for the license of the Licensed
Programs), 7.3, 8.1, 8.2, 10.2, 10.4, 10.5, 12.9,
12.12, 12.14 and this Section 10.6 will survive the
expiration or earlier termination of this Agreement.
31
ARTICLE XI. WARRANTIES, INDEMNITIES AND LIABILITY
11.1 Warranties.
(a) EDS Warranties. EDS represents and warrants that:
(i) To the extent that any third party owns or
controls any rights in or to information, data,
software, material or any other tangible or
intangible property or elements used or
incorporated in any works created, published or
delivered by EDS or otherwise resulting from
EDS' performance of its obligations under this
Agreement, EDS has obtained and will maintain
throughout the term (and any renewal) consents,
licenses, and permissions sufficient to enable
Del Monte to fully exercise and utilize all rights,
results and proceeds to which it is entitled under
this Agreement.
(ii) EDS will perform the Services and meet the
specifications and service level objectives
set forth in this Agreement including
without limitation the Schedules and
Sections III, V and VIII of the Response.
(iii) In all cases where EDS has not committed to
specific performance standard, EDS will use
reasonable care in providing the Services.
(iv) EDS shall comply with the terms of all
agreements assigned to it in connection with
the Agreement, including without limitation,
the Maintenance Agreements, license
agreements for Vendor Software, and any
equipment leases for Del Monte Leased
Equipment actually assigned to EDS.
ARTICLE XI. WARRANTIES, INDEMNITIES AND LIABILITY
(b) General Disclaimer. While EDS is primarily providing
services to Del Monte under this Agreement, EDS may
from time to time provide certain hardware, Software
and other items as an incidental part of the Services.
With the exception of manufacturers' or licensors'
Warranties which EDS is able to pass through for
Del Monte's benefit, such hardware, Software
and other items are provided on an "AS IS" basis
without warranty. EXCEPT AS SPECIFICALLY STATED IN
THIS AGREEMENT, EDS MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER,
INCLUDING THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, FITNESS FOR A PARTICULAR USE OR
PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF
ANY HARDWARE, SOFTWARE OR OTHER ITEMS PROVIDED
UNDER THIS AGREEMENT.
32
(c) Telecommunications Services Disclaimer. EDS
is acting only as Del Monte's agent in procuring
and managing any Telecommunications Services
supplied by or through any third party vendor. All
Telecommunications Services supplied by or through
any third party vendor are supplied "AS IS" by EDS.
EDS MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER
EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS
FOR A PARTICULAR USE OR PURPOSE, DESIGN, ONDITION,
QUALITY, CAPACITY, MATERIAL, OR WORKMANSHIP, OF
ANY OF THE TELECOMMUNICATIONS SERVICES OR AS TO
ANY PATENT OR COPYRIGHT INFRINGEMENT OR THE
LIKE, OR AS TO ANY OF THE RESULTS TO BE DERIVED
FROM THE USE OF ANY OF THE TELECOMMUNICATIONS
SERVICES. EDS disclaims any and all liability
resulting from or arising out of any of the
Telecommunications Services supplied by or through any
third party vendor or any acts or omissions of
the applicable third party vendor. In the event of
any outage, interruption, failure, cable out, degradation
or other loss of the Telecommunications Services
supplied by or through any third party vendor ("Service
Interruption"), Del Monte shall notify EDS. EDS shall
then notify the applicable third party vendor
of the Service Interruption. Resolution of the
Service Interruption shall be handled in accordance
with the applicable tariff or agreement respecting
the Telecommunications Service which is the subject
of such Service Interruption.
11.2 Cross Indemnification. EDS and Del Monte each agree to
indemnify, defend and hold harmless the other from any
and all damages, liabilities, costs and expenses,
including reasonable attorneys' fees and expenses,
arising out of, under or in connection with any claim,
demand, charge, action, cause of action, or other
proceeding:
(a) for rent or utilities at any location where the
indemnitor is financially responsible under this
Agreement for such rent utilities; or
(b) resulting from an act or omission of the
indemnitor in its capacity as an employer of a
person and arising out of or relating to (a)
federal, state or other laws or regulations for
the protection of persons who are members of a
protected class or category of persons, (b)
sexual discrimination or harassment, (c) work
related injury or death, (d) accrued employee
benefits not expressly assumed by the indemnitee,
and (e) any other aspect of the employment
relationship or its termination (including claims
for breach of an express or implied contract of
employment) and which, in all such cases, arose
when the person asserting the claim, demand,
charge, action, cause of action or other
proceeding was an employee of the indemnitor.
33
EDS and Del Monte each agree to insure its own real
and personal property, including equipment for which
it is the lessee; and each agree to waive its
insurer's rights of subrogation with regard to such
property except with respect to (i) equipment for
which it is the lessee but which equipment is in the
care, custody and control of the other party, and (ii)
personal property owned by it but which is in the
care, custody and control of the other party and the
damage or loss of which equipment or personal property
is caused by the acts or omissions of the other party.
In those cases specified in the immediately preceding
sentence in which the property insurer's rights of
subrogation have not been waived, EDS and Del Monte
each agree to indemnify, defend and hold harmless the
other from any and all damages, liabilities, costs and
expenses, including reasonable attorneys' fees and
expenses, arising out of, under or in connection with
any claim, demand, charge, action, cause of action, or
other proceeding arising out of the damage, loss or
destruction of any such equipment or personal property
of the indemnitor which is caused by the acts or
omissions of the indemnitor.
11.3 Intellectual Property Indemnification. EDS and Del
Monte each agree to defend the other against any
action to the extent that such action is based on a
claim that Software or Confidential Information
provided or sold by the indemnitor under this
Agreement, or any part thereof, (i) infringes a
copyright perfected under United States statute, (ii)
infringes a patent granted under United States law or
(iii) constitutes an unlawful disclosure, use, or
misappropriation of another party's trade secret. The
indemnitor will bear the expense of such defense and
pay any damages and attorneys' fees which are
attributable to such claim finally awarded by a court
of competent jurisdiction. Neither EDS nor Del Monte
shall be liable to the other for claims of indirect or
contributory infringement. If the Software or
Confidential Information becomes the subject of a
claim under this Section, or in the indemnitor's
opinion is likely to become the subject of such a
claim, then the indemnitor may, at its option, (a)
replace or modify the Software or Confidential
Information to make it noninfringing or cure any
claimed misuse of another's trade secret, or (b)
procure for the indemnitee the right to continue using
the Software or Confidential Information pursuant to
this Agreement, or (c) replace the Software with
reasonably equivalent Software which is noninfringing
or which is free of claimed misuse of another's trade
secret. Any costs associated with implementing any of
the above alternatives shall be borne by the
indemnitor.
11.4 Indemnification by EDS. EDS agrees to defend,
indemnify, and hold Del Monte harmless from any and
all claims, losses, damages, liabilities, costs and
expenses (including without limitation attorneys'
fees) of any kind and character suffered or incurred
by Del Monte (i) by reason of, arising from, or in any
manner connected with EDS' failure to comply with any
third party agreement assigned to EDS under this
Agreement, including, without limitation, any license
agreement, equipment lease, or Maintenance Agreement,
and (ii) by reason of any violation of law by EDS
arising from performance of the Services.
34
11.5 Indemnification of EDS for Certain Third Party Claims.
Without limiting EDS' liability to Del Monte for
nonperformance under this Agreement, each of the
parties acknowledge and agree that by entering into
and performing its obligations under this Agreement,
EDS will not assume and should not be exposed to the
business and operational risks associated with Del
Monte's business. Therefore Del Monte agrees to
indemnify, defend and hold EDS harmless, from any and
all damages, liabilities, costs, and expenses,
including without limitation, reasonable attorneys'
fees and expenses, arising out of, under or in
connection with any claim, demand, charge, action,
cause of action or other proceeding relating to the
conduct of Del Monte's business, including without
limitation, the acquisition and use by Del Monte of
the products, Services and Additional Services to be
provided by EDS under this Agreement.
11.6 Equipment and Related Agreement Indemnification. EDS
and Del Monte each agree to indemnify, defend and hold
harmless the other from any and all damages,
liabilities, costs and expenses, including reasonable
attorneys' fees and expenses, arising out of, under,
or in connection with any claim, demand, charge,
action, or other proceeding resulting from any breach
by the indemnitor of its obligations, representations
or warranties set forth in Article IV.
11.7 Telecommunications Indemnification. EDS shall not be
responsible for protection of transmission facilities
except those located on EDS' premises and equipment
located on Del Monte's premises from unauthorized
access. Del Monte agrees to indemnify, defend and hold
harmless EDS from any and all damages, liabilities,
costs and expenses, including reasonable attorneys'
fees and expenses, arising out of, under, or in
connection with any claim, demand, charge, action,
cause of action or other proceeding asserting that (i)
any information, data or message transmitted by Del
Monte or its users over the network which is managed
or provided by EDS as part of the Telecommunications
Services constitutes libel, slander, invasion of
privacy, infringement of copyright, (ii) use of the
Telecommunications Services other than as permitted
hereunder, whether caused by the negligence or willful
acts of the officers, employees, agents or contractors
of Del Monte or its users in the use of the
Telecommunications Services or (iii) the abuse or
unauthorized or fraudulent use of the
Telecommunications Services.
11.8 Indemnification of Del Monte for Certain Employee
Benefits. EDS agrees to indemnify, defend and hold
harmless Del Monte from any and all damages,
liabilities, costs and expenses, including reasonable
attorneys' fees and costs arising out of, under or in
connection with any claim, demand, charge, action,
cause of action or other proceeding related to the
provision of employee benefits to any Transitioned
Employee subsequent to the employment effective date
specified on Schedule 2.1(b) for each such Employee or
such other date upon which such Transitioned Employee
accepts employment and becomes an employee of EDS. EDS
further agrees to indemnify, defend and hold harmless
35
Del Monte from any and all damages, liabilities, costs
and expenses, including reasonable attorneys' fees and
costs arising out of, under or in connection with any
claim, demand, charge, action, cause of action or
other proceeding related to the provision of employee
benefits to any member of the Del Monte Management
Cadre, if any, who accepts employment with EDS. The
claims for which EDS agrees to provide indemnification
pursuant to this Section include, but are not limited
to, all claims for separation package, vacation pay,
health care benefits and any other employment benefit
claimed by any Transitioned Employee or member of the
Del Monte Management Cadre resulting from this
Agreement or arising out of any act or representation
by EDS to such Transcribed Employee or member of the
Del Monte Management Cadre with respect to transition
from employment with Del Monte to employment with EDS
under this Agreement.
11.9 Indemnification Procedures.
(a) Notice and Control. The indemnification
obligations set forth in this Article shall not
apply unless the party claiming indemnification:
(i) notifies the other promptly in writing of
any matters in respect of which the
indemnity may apply and of which the
notifying party has knowledge, in order to
allow the indemnitor the opportunity to
investigate and defend the matter; provided,
however, that the failure to so notify shall
only relieve the indemnitor of its
obligations under this Article XI if and to
the extent that the indemnitor is prejudiced
thereby; and
(ii) gives the other party full opportunity to
control the response thereto and the defense
thereof, including, without limitation, any
agreement relating to the settlement
thereof; provided, however, that the
indemnitee will have the right to
participate in any legal proceeding to
contest and defend a claim for indemnification
involving a third party and to be
represented by legal counsel of its
choosing, all at the indemnitee's cost and
expense.
(b) Settlement. The indemnitor shall not be
responsible for any settlement or compromise made
without its consent provided that the indemnitor
is not in material breach of its indemnity
obligations hereunder. The indemnitee agrees to
cooperate in good faith with the indemnitor at
the request and expense of the indemnitor.
11.10 Limitation of Liability.
(a) Of EDS. In the event EDS shall be held liable
to Del Monte for any matter arising out of, under,
or in connection with this Agreement, whether based
on an action or claim in contract, equity, negligence,
intended conduct, tort or otherwise, the amount of
damages recoverable against EDS for all events, acts
36
or omissions shall not exceed in the aggregate an
amount equal to the lesser of (i) the total amount of
the Monthly Base Charges paid by Del Monte to EDS
under this Agreement during the six (6) month period
immediately preceding the date that such claim is
brought or (ii) $6,000,000. In no event will the
measure of damages payable by EDS include, nor will
EDS be liable for, any amounts for loss of income,
profit or savings or indirect, incidental, consequential,
or punitive damages or any party, including third parties.
(b) Of Del Monte. In the event EDS suffers any damages
or losses as a result of Del Monte's acts or omissions
in connection with this Agreement, whether such damages
or losses are caused by breach of contract, negligence,
fault or other breach of duty, or by any other cause
whatever, and regardless of the form or action, whether
in equity, contract, tort or otherwise, EDS may recover
the amount of damages that are proven and allowed by law,
up to a maximum equal to the lesser of (i) the total
charges paid by Del Monte to EDS for the six (6) months
preceding the date that such claim is brought, or (ii)
$6,000,000; provided, however, that in calculating such
limit applicable to Del Monte's obligations to EDS,
amounts related to the following shall not be included
and applied toward such limit: (i) Del Monte's
obligations to make payments to EDS for Services or
Additional Services and payments otherwise required under
this Agreement and (ii) any claim by EDS for costs and
expenses incurred and which are reimbursable under this
Agreement for which EDS has not been compensated
(collectively, the "Excepted Components"). Notwithstanding
the preceding sentence, except for the Excepted
Components, Del Monte shall have no liability for any
indirect or consequential damages.
(c) Survival. The provisions of this Section will survive
the term or termination of this Agreement for any reason.
11.11 Contractual Statute of Limitations. No claim or cause
of action which arose out of an event or events which
occurred more than two years prior to the filing of a
demand for arbitration or suit alleging a claim or
cause of action may be asserted by either party
against the other party.
11.12 Acknowledgement. EDS and Del Monte each acknowledge
that the limitations and exclusions contained in this
Article have been the subject of active and complete
negotiation between the parties and represent the
parties' agreement based upon the level of risk to EDS
and Del Monte associated with their respective
obligations under this Agreement and the payments to
be made to EDS under this Agreement.
37
ARTICLE XII. MISCELLANEOUS
12.1 Right of EDS to Engage in Other Activities. Del Monte
understands and agrees that EDS may perform data
processing services for third parties at any EDS data
center which EDS may utilize for processing Del
Monte's Data. Nothing in this Agreement will impair
EDS' right to acquire, license, market, distribute,
develop for itself or others or have others develop
for EDS similar technology performing the same or
similar functions as the technology, Services and
Additional Services contemplated by this Agreement.
12.2 Binding Nature and Assignment.
(a) Generally. This Agreement shall be binding on the
parties hereto and their respective successors
and assigns. Neither party may, nor shall have
the power to, assign this Agreement without the
prior written consent of the other party, which
consent shall not be unreasonably withheld. Any
purported assignment not made in accordance with
this Section shall be null and void.
(b) EDS Subcontracts. Notwithstanding Section
12.2(a), EDS will have the right to subcontract
all or any portion of the services or the
Additional Services; provided that such
subcontract relationships between EDS and
subcontractors are clearly delineated in EDS'
reasonable judgment and Del Monte is required to
deal only with EDS; and provided further,
however, that no such subcontract will relieve
EDS of any of its obligations hereunder.
(c) Permitted Transactions. Notwithstanding
Section 12.2(a), Del Monte shall have the right
to assign this Agreement or any interest therein
to a Related party without EDS' consent. Any such
transfer is referred to as a "Permitted
Transaction". "Related Party" means the following
persons or entities: (a) an "Affiliate" of Del
Monte, which term is defined as a subsidiary,
parent, or subsidiary of a parent of Del Monte as
long as the Related Entity has a net worth or at
least Five Million Dollars ($5,000,000); (b) a
successor to Del Monte; (c) an Affiliate of any
of the entities described in clause (b) of this
sentence. For the purposes of this definition, a
"subsidiary" is a corporate fifty percent (50%)
or more of whose voting stock is owned by another
corporation, which latter corporation is referred
to as a "parent".
12.3 Notices. Wherever under this Agreement one party is
required or permitted to give written notice to the
other, such notice shall be deemed given upon receipt
by the other party. Such written notices shall be
addressed as follows:
38
In the case of EDS:
Electronic Data System Corporation
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: President, Manufacturing & Distribution
Services Division
Telecopy Number: (000) 000-0000
Phone Confirmation Number: (000) 000-0000
with a copy to:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy Number: (000) 000-0000
Phone Confirmation Number: (000) 000-0000
In case of Del Monte:
Del Monte Corporation
Xxx Xxxxxx Xxxxx
X.X. Xxx 000000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Information Officer
Telecopy Number: (000) 000-0000
Phone Confirmation Number: (000) 000-0000
with a copy to:
Del Monte Corporation
Xxx Xxxxxx Xxxxx
X.X. Xxx 000000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy Number: (000) 000-0000
Phone Confirmation Number: (000) 000-0000
Any writing which may be mailed pursuant to the
foregoing may also be delivered by hand or transmitted
by telegraph, telex or telecopier and shall be
effective when received by the addressee. Either party
may from time to time specify as its address or
telecopy number for purposes of this Agreement any
other address or telecopy number upon giving ten days
prior written notice thereof to the other party.
39
12.4 Counterparts. This Agreement may be executed in
several counterparts, all of which taken together
shall constitute one single agreement between the
parties thereto.
12.5 Headings. The Article and Section headings and the
table of contents used herein are for reference and
convenience only and shall not enter into the
interpretation hereof.
12.6 Relationship of Parties. FDS, in furnishing Services
and Additional Services to Del Monte hereunder, is
acting only as an independent contractor and under no
circumstances will EDS be deemed to be in any
relationship with Del Monte carrying with it fiduciary
or trust responsibilities, whether through partnership
or otherwise. EDS does not undertake by this Agreement
or otherwise perform any obligation of Del Monte,
whether regulatory or contractual, or to assume any
responsibility for Del Monte's business or operations.
EDS has the sole right and obligation to supervise,
manage, contract, direct, procure, perform or cause to
be performed, all work to be performed by EDS
hereunder unless otherwise provided herein.
12.7 Approvals and Similar Actions. Where agreement,
approval, acceptance, consent or similar action by
either party is required by any provision of this
Agreement, such action shall not be unreasonably
delayed or withheld.
12.8 Force Majeure. Each party shall be excused from
performance hereunder (other than performance of
obligations to make payment) for any period and to the
extent that it is prevented from performing pursuant
hereto, in whole or in part, as a result of delays
causes by the other or third parties or an act of God,
war, civil disturbance, court order, labor dispute, or
other cause beyond its reasonable control, including
failures or fluctuations in electrical power, heat,
light, air conditioning or telecommunications
equipment, and such nonperformance shall not be a
default hereunder or a ground for termination hereof.
If (i) any of the above-described circumstances
prevent, hinder, or delay performance of EDS'
operational obligations hereunder, (ii) as a result
hereof, EDS is unable to support Del Monte's critical
business functions, and (iii) EDS is unable, within
five (5) business days thereafter, to resume
performance of such critical business functions or
arrange alternative performance of such critical
business functions, then, at anytime thereafter and
until such time as EDS is able to resume or so arrange
for alternative performance of such critical business
functions, Del Monte may seek to arrange for
alternative performance by a third party, and EDS will
credit the cost thereof incurred by Del Monte for any
month up to the amount of the Monthly Base Charge for
such month. If any of the above enumerated
circumstances prevent, hinder, or delay performance of
EDS' support of Del Monte's critical business
functions for more than thirty (30) days, Del Monte
may at its option terminate this Agreement without
penalty as of a date specified by Del Monte in a
written notice of termination to EDS.
40
12.9 Severability. If any term or provision (other than a
term or provision relating to any payment obligation)
of this Agreement or the application thereof to any
person or circumstances shall, to any extent, be held
invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision
to persons or circumstances other than those as to
which it is invalid or unenforceable shall not be
affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the extent
permitted by law.
12.10 Regulatory Requirements. Del Monte and EDS agree that
if any Telecommunications Services are required by a
specific decision of applicable regulatory or judicial
authority to be provided under tariff, or if a
decision by a regulatory authority at the federal,
state or local level materially alters this Agreement,
or any material provisions hereof, or if third party
vendor, in its sole discretion, files a tariff for the
Telecommunications Services, then EDS and Del Monte
will negotiate modifications to this Agreement,
including the charges payable to EDS under this
Agreement.
12.11 Waiver. No delay or omission by either party hereto
to exercise any rights or power hereunder shall impair
such right or power or to be construed to be a waiver
thereof. A waiver by either of the parties hereto of
any of the convenants to be performed by the other or
any breach thereof shall not be construed to be a
waiver of any succeeding breach thereof or of any
other covenants herein contained. All remedies
provided for in this Agreement shall be cumulative and
in addition to and not in lieu of any other remedies
available to either party at law, an equity or
otherwise.
12.12 Attorneys' Fees. If any legal action or other
proceeding is brought for the enforcement of an award
under Schedule 9.4, the prevailing party shall be
entitled to recover reasonable attorneys' fees and
expenses and other costs incurred in that action or
proceeding, in addition to any other relief to which
it may be entitled.
12.13 Media Releases. All media releases, public
announcements and public disclosures by Del Monte or
EDS relating to this Agreement or its subject matter,
including without limitation promotional or marketing
material (but not including any announcement intended
solely for internal distribution at Del Monte or EDS,
as the case may be, or any disclosure required by
legal, accounting or regulatory requirements beyond
the reasonable control of Del Monte or EDS, as the
case may be) shall be coordinated with and approved by
Del Monte and EDS prior to the release thereof.
12.14 No Third Party Beneficiary. Nothing in this Agreement
may be relied upon or shall benefit any party other than
the parties hereto.
12.15 Entire Agreement. This Agreement, including any
Schedules or Exhibits referred to herein and attached
hereto, each of which is incorporated in this
Agreement for all purposes, and any sections or
portions of the RFP or the Response specifically
41
referenced in this Agreement, constitutes the entire
agreement between the parties with respect to the
subject matter of this Agreement and there are no
representations, understandings or agreements relating
to this Agreement which are not fully expressed
herein. In the event of any inconsistency or conflict
between the terms of those portions of the RFP or the
Response referenced in this Agreement and the terms of
this Agreement, including any Schedules or Exhibits
referred to herein, the terms of this Agreement,
including such Schedules or Exhibits, will control
such inconsistent or conflicting term in the RFP or
the Response. No amendment, modification, waiver or
discharge hereof shall be valid unless in writing and
signed by an authorized representative of the party
against which such amendment, modification, waiver or
discharge is sought to be enforced.
12.16 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
California, without giving effect to principles of conflict
of laws.
IN WITNESS WHEREOF, EDS and Del Monte have each caused
this Agreement to be signed and delivered by its duly
authorized officer, all as of the Effective Date.
ELECTRONIC DATA SYSTEM DEL MONTE CORPORATION
CORPORATION
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------------ ------------------------------
Name: Xxxx Xxxxxx Name: Xxxxx X. Xxxxxx
--------------------------- ----------------------------
Title: Regional Vice President Title: CFO
-------------------------- ---------------------------
42
SCHEDULE 5.2
DEL MONTE OBLIGATIONS
In connection with the services provided by EDS hereunder, Del
Monte will on a timely basis:
a) Establish appropriate data processing priorities for
Del Monte and communicate the same to EDS, including
the revalidation and prioritization of requests for
maintenance, enhancements, and development existing on
the Effective Date and continuing for those identified
after the Effective Date.
b) Supply to EDS for processing, required source data and
machine readable data with applicable controls in the
form supplied to the Del Monte IS organization prior
to the Effective Date or in such other form as may be
mutually agreed upon from time to time.
c) Inspect and review all reports prepared by EDS and
reject all incorrect reports within one (1) business
day after receipt thereof for daily and weekly reports
and within three (3) business days after receipt
thereof for monthly or other reports.
d) Maintain user procedure manuals and documentation used
by Del Monte personnel in connection with the Software
operated by EDS hereunder.
e) Train applicable Del Monte personnel to properly
prepare input for and to effectively utilize output
from the Software operated by EDS hereunder.
f) Provide all storage space, in excess of the space
provided by EDS for operations in accordance with
Section 1 of Schedule 2.2, as required for backup data
files and any additional storage space required by any
regulatory authority with jurisdiction over Del Monte.
g) Provide report distribution for output printed by EDS
and submitted to Del Monte's central location (see
Schedule 2.2, Section 1, part (o)), to all necessary
Del Monte locations.
h) Assist EDS by making available, as reasonably
requested by EDS, management decisions, information,
approvals and acceptances in order that the work of
EDS contemplated hereby may be properly accomplished.
i) Assist EDS in connection with the development of the
Migration and Implementation Plan and implementation
of the Migration to the EDS Data Center. Del Monte
agrees to perform its obligations mutually agreed upon
as set forth in the Migration and Implementation Plan.
j) Analyze, and communicate to EDS its needs for disaster
recovery services and otherwise cooperate with and
assist EDS in connection with the development of the
disaster recovery plan.
SCHEDULE 5.2
k) Assist EDS in the development of a long term
strategy for Information Systems based on the goals
and objectives of Del Monte executive management.
1) Working with EDS, define Del Monte user security access
rules, procedures, and processes.
m) Assist EDS in troubleshooting remote data communications
network control problems.
n) Provide EDS such space, office furnishings, janitorial
service, telephone service, utilities (including
air-conditioning), office-related equipment, supplies,
duplicating services, and premises security services
in Del Monte's corporate headquarters facility in San
Francisco as EDS requires in connection with the
performance of the Services. EDS will comply with the
reasonable guidelines of Del Monte which are generally
applicable to Del Monte's employees with respect to
access to Del Monte's facilities.
o) Provide EDS access to and use of Del Monte's data
telecommunications equipment at Del Monte's domestic
U.S. facilities and transmission lines including, but
not limited to, printers, terminals, controllers,
required to enable EDS to perform the
Telecommunications Services.
p) Make payments to the appropriate third party vendor or
vendors of voice telecommunications services managed
by EDS hereunder and will provide maintenance of voice
telecommunications equipment and lines. Del Monte will
pay all costs and expenses of the acquisition
installation, maintenance, taxes, insurance and other
expenses related to such voice telecommunications
equipment and lines.
44
SCHEDULE 6.1
SECTION l
MONTHLY BASE CHARGE
Month Fee
----- ---
- Months l-9 $ 917,000 / Month
- Months 10 - 15 $1,198,000 / Month
- Months 16 - 21 $1,285,000 / Month
- Months 22-27 $1,120,000 / Month
- Months 28-33 $1,275,000 / Month
- Months 34-39 $1,100,000 / Month
- Months 40-45 $1,190,000 / Month
- Months 46-51 $1,125,000 / Month
- Months 52-57 $1,250,000 / Month
- Months 58-117 $1,141,000 / Month
- Months 118 - 120 $1,128,000 / Month
SCHEDULE 6.1
SECTION 2
EDS FEE CREDITS TO DEL MONTE
For each month during the term of this Agreement that Del Monte
furnishes EDS space on Del Monte premises as required by this
Agreement, EDS will grant to Del Monte the credit shown below for
such month against the Monthly Base Charge payable for such
month:
Months 1-6 $37,408/month
Months 7-9 $ 7,482/month
Months 10-21 $ 7,602/month
Months 22-33 $ 7,754/month
Months 34-45 $ 7,910/month
Months 46-57 $ 8,068/month
Months 58-69 $ 8,228/month
Months 70-81 $ 8,394/month
Months 82-93 $ 8,562/month
Months 94-105 $ 8,732/month
Months 106-117 $ 8,906/month
Months 118-120 $ 9,086/month
In addition to the credit above, EDS will grant a credit equal to
$115,000 (credited in equal amounts of $19,166.67 per month from
the first month through the sixth month) against the Monthly Base
Charge for data center utilities costs.
EDS will also credit against the EDS Monthly Base Charge the
salaries and employee-related expenses incurred by Del Monte for
the Transitioned Employees (identified in Schedule 2.1(b)), the
transition for whom will be deferred until either 60 days or 180
days, as the case may be, after November 7, 1992.
DS will also credit against the EDS Monthly Base Charge an amount
representing one-twelfth of the additional annual premium paid by
Del Monte for covering EDS employees under Del Monte's
Crime/Employee Dishonesty Policy. In addition, EDS will reimburse
Del Monte for any deductible up to $100,000 per occurrence paid
by Del Monte under its Crime/Employee Dishonsty Policy for acts
by EDS employees.
SCHEDULE 10.4
TERMINATION FEE SCHEDULE
Termination
Year Fee
---- ---
1 Year 2 $16,000,000
1 Year 3 $14,000,000
1 Year 4 $12,500,000
1 Year 5 $8,000,000
1 Year 6 $4,000,000
1 Year 7 $3,000,000
1 Year 8 $2,750,000
1 Year 9 $2,600,000
AMENDMENT
to
AGREEMENT
for
INFORMATION TECHNOLOGY SERVICES
between
DEL MONTE CORPORATION
and
ELECTRONIC DATA SYSTEMS CORPORATION
THIS AMENDMENT, dated as of September 1, 1993, is between Del
Monte Corporation, a New York corporation ("Del Monte"), and
Electronic Data Systems Corporation, a Texas corporation ("EDS")
and is an amendment to that certain Agreement for Information
Technology Services, effective as of November 1, 1992, between
Del Monte and EDS.
In consideration of the mutual covenants and obligations
contained in this Amendment, Del Monte and EDS agree as follows:
1. EDS Fee Credits to Del Monte. The table included after the
first paragraph of Schedule 6.1, Section 2, of the Agreement
is hereby replaced in its entirety by the following table
and sentences:
Months 1-6 $37,408.00/month
Month 7 $13,144.67/month
Months 8-67 $18,565.98/month
The monthly credit amount shown for months 8 - 67 is the
Minimum Rent payable by EDS to Del Monte under that certain
Sublease between Del Monte and EDS, dated April 5, 1993,
(the "Sublease"). To the extent that the Minimum Rate (as
defined in the Sublease) payable to Del Monte by EDS
pursuant to the Sublease for any calendar month is
increased in accordance with Section 5b of the Sublease,
the monthly credit amount to be credited to Del Monte by
EDS under this Agreement for such month shall be adjusted
by the same amount. The monthly credit amount for month 68
through month 120 shall be the amount, if any, payable to
Del Monte by EDS under any agreement under which Del Monte
furnishes EDS space on Del Monte premises as required under
this Agreement.
2. Agreement. Except as expressly amended by this Amendment,
the Agreement shall remain in full force and effect in
accordance with its terms. Terms used as defined terms in
this Amendment which are defined in the Agreement shall
have the same meaning ascribed thereto in the Agreement.
IN WITNESS WHEREOF, EDS and Del Monte have each caused this
Amendment to be signed and delivered by its duly authorized
officer, all as of the date first written above.
ELECTRONIC DATA SYSTEMS DEL MONTE CORPORATION
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxx Xxxxxxx
--------------------------- -------------------------------
Title: Xxxxx X. Xxxxxxx Title: Xxxxx X. Xxx Xxxxxxx
------------------------ ----------------------------
Date: Account Director Date: Vice President
------------------------- -----------------------------
AMENDMENT TO AGREEMENT FOR
INFORMATION TECHNOLOGY SERVICES
BETWEEN
ELECTRONIC DATA SYSTEMS CORPORATION
AND
DEL MONTE CORPORATION
THIS AMENDMENT, dated as of April 8, 1993, is between
Electronic Data Systems Corporation ("EDS") and Del Monte
Corporation ("Del Monte") and is in amendment of that certain
Agreement for Information Technology Services between EDS and Del
Monte effective as of November 1, 1992 (the "Agreement").
For and in consideration of the mutual agreements of
the parties herein contained and other good and sufficient
consideration the receipt of which is hereby acknowledged, EDS
and Del Monte agree as follows:
1. Section 1A of Schedule 1.3 of the Agreement is amended by
the deletion of the Del Monte Owned Equipment itemized
below:
Item Quantity Item Description
------------- ----------------
2 Fenwal Halon 1301 Fire Suppresion System
3 TraceTeck 1000 Longline system
3 Liebert 75 KVA 208 Output Voltage Model
Type-PPA75C
1 UPS/Exide 413 KVA Model 3330 - 188
EEX15B Batteries
1 Backup Generator 480V Power
11 A/C Pomona Air
12 3480 Cartridge Library Racks - Holds 1200
Cartridges per Xxxx
0 X/X XXX Xxxx
0. Except as expressly amended by this Amendment the Agreement
remains in full force and effect and unchanged.
IN WITNESS WHEREOF, EDS and Company have executed and delivered
this Amendment as of the date first set forth above.
ELECTRONIC DATA SYSTEMS DEL MONTE CORPORATION
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxx Xxxxxxx
--------------------------- -------------------------------
Title: Xxxxx X. Xxxxxxx Title: Xxxxx X. Xxx Xxxxxxx
------------------------ ----------------------------
Date: Account Director Date: Vice President
------------------------- -----------------------------
