MASTER PROCUREMENT AGREEMENT
BETWEEN
ELECTRONIC DATA SYSTEMS CORPORATION
AND
ANACOMP, INC.
TABLE OF CONTENTS
FOR
MASTER PROCUREMENT AGREEMENT
ARTICLE I. AGREEMENT, TERM AND DEFINITIONS
1.1 Agreement and Term...................................................................................1
1.2 Certain Definition...................................................................................2
ARTICLE II PURCHASE ORDERS
2.1 Preparation of Purchase Orders.......................................................................3
2.2 Issuance and Acceptance of Purchase orders...........................................................3
2.3 Purchase Order Alterations...........................................................................4
2.4 Evaluation Purchase Orders...........................................................................4
2.5 Cancellation of Purchase orders......................................................................4
ARTICLE III PROVISION OF PRODUCTS AND SERVICES
3.1 General..............................................................................................4
3.2 Transportation of Products...........................................................................4
3.3 Title and Risk of Loss...............................................................................5
3.4 Site Preparation.....................................................................................5
3.5 Installation of Products.............................................................................5
3.6 Right to Cancel for Delays...........................................................................5
3.7 Assignment of right to Purchase......................................................................6
3.8 Time and Materials Services..........................................................................6
3.9 Services in General..................................................................................7
3.10 Further Acts........................................................................................8
3.11 Time of Performance.................................................................................8
3.12 EDS Business Practices..............................................................................8
3.13 Hardware Support and Maintenance Services...........................................................8
3.14 Education Services..................................................................................8
3.15 National Account Management.........................................................................8
ARTICLE IV PROVISION OF HARDWARE
4.1 Acceptance of Hardware...............................................................................8
4.2 Performance and Reliability Testing..................................................................9
4.3 Support, Maintenance, and Spare Parts Availability...................................................9
4.4 Duplication of documentation.........................................................................9
ARTICLE V PROVISION OF LICENSED SOFTWARE
5.1 Acceptance of Licensed Software......................................................................9
5.2 Grant of License.....................................................................................10
5.3 Transfer of Licensed Software........................................................................11
5.4 Ownership of Licensed Software and Modifications.....................................................11
5.5 Proprietary Markings.................................................................................11
5.6 Duplication of Documentation.........................................................................11
5.7 Non-Disclosure.......................................................................................11
5.8 Licensed Software Support Services...................................................................12
5.9 Provision of Source Code.............................................................................13
5.10 Acquisition of Third Party Software.................................................................14
5.11 Software from an Authorized Third Party.............................................................14
ARTICLE VI WARRANTIES, INDEMNITIES, AND LIABILITIES
6.1 Warranty.............................................................................................15
6.2 Proprietary Rights Indemnification...................................................................16
6.3 Cross Indemnification................................................................................16
6.4 Anacomp Indemnity....................................................................................16
6.5 Limitation of Liability..............................................................................17
6.6 Insurance............................................................................................17
6.7 Survival of Article VI...............................................................................17
ARTICLE VII PAYMENTS TO SUPPLIER
7.1 Charges, Prices, and Fees for Products and Services..................................................17
7.2 Auto Payment.........................................................................................18
7.3 Payment Through Invoicing............................................................................19
7.4 Taxes................................................................................................19
ATICLE VIII TERMINATION
8.1 Termination for Cause................................................................................20
8.2 Termination for Insolvency or Bankruptcy.............................................................20
8.3 Termination for Non-Payment..........................................................................20
8.4 Termination of Software License......................................................................21
8.5 Rights Upon Termination..............................................................................21
ARTICLE IX MISCELANEOUS
9.1 Binding Nature, Assignment, and Subcontracting.......................................................21
9.2 Counterparts.........................................................................................21
9.3 Headings.............................................................................................21
9.4 Authorized Agency....................................................................................21
9.5 Relationship of Parties..............................................................................22
9.6 Confidentiality......................................................................................22
9.7 Media Releases.......................................................................................23
9.8 Dispute Resolution...................................................................................23
9.9 Electronic Communications............................................................................23
9.10 Proposals and Special Projects......................................................................23
9.11 Governmental Customers..............................................................................23
9.12 International Business..............................................................................23
9.13 Compliance with Laws................................................................................24
9.14 Labor...............................................................................................24
9.15 Export..............................................................................................24
9.16 Notices.............................................................................................24
9.17 Force Majeure.......................................................................................24
9.18 Severability........................................................................................25
9.19 Waiver..............................................................................................25
9.20 Remedies............................................................................................25
9.21 Survival of Terms...................................................................................25
9,22 Nonexclusive Market and Purchase Rights.............................................................25
9,23 GOVERNING LAW.......................................................................................26
9.24 Entire Agreement....................................................................................26
MASTER PROCUREMENT AGREEMENT
THIS MASTER PROCUREMENT AGREEMENT (the "Agreement"), effective as of August
1, 1996 (the "Effective Date"), is between ANACOMP, INC., an Indiana corporation
("Anacomp"), and ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation
("EDS").
WITNESSETH:
WHEREAS, it is EDS' intent to utilize Anacomp as its first source and
primary provider of micrographics and related products and services from time to
time; and
WHEREAS, Anacomp is willing to provide products and services to EDS
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, Anacomp acknowledges that some portion of EDS' needs for such
products and services will be dependent upon issues to include, but not limited
to customer requirements; and
WHEREAS, the parties hereto have entered into a Master Purchase Agreement
dated August 1, 1989, and various other agreements (the "Prior Agreements"),
under which EDS obtained certain products and services from Anacomp; and
WHEREAS, as of the Effective Date, this Agreement supersedes in all
respects such Prior Agreements, such Prior Agreements are terminated (except any
provisions that need to survive and any claims which arose under the Prior
Agreements shall survive such termination) and any and all products and services
obtained under such Prior Agreements shall be deemed to have been obtained by
EDS under the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration received and to be received, Anacomp and EDS agree as
follows:
ARTICLE I. AGREEMENT, TERM, AND DEFINITIONS
1.1 Agreement and Term. The parties agree that the terms and conditions of this
Agreement apply to the provision of products and services to EDS by
Anacomp. It is EDS' intent to utilize Anacomp as its first source and
primary provider of micrographics and related products and services during
the term of this Agreement. The term of this Agreement commences on the
Effective Date and the Agreement shall continue to be in effect until the
earlier of (i) August 1, 2001; or (ii) termination by either party as set
forth in this Agreement.
1.2 Certain Definitions. The following definitions apply to this Agreement:
(a) "Affiliate" means an entity which controls, is controlled by or shares
common control with EDS.
(b) "Applicable Specifications" means the functional, performance,
operational, compatibility, and other specifications or
characteristics of a Product described in applicable Documentation and
such other specifications or characteristics of a Product agreed upon
in writing by the parties.
(c) "Documentation" means user guides, operating manuals, education
materials, product descriptions and specifications, technical manuals,
supporting materials, and other information relating to the Products
or used in conjunction with the Services, whether distributed in
print, magnetic, electronic, or video format, in effect as of the date
(i) a Product is shipped to or is accepted by EDS, as applicable, or
(ii) the Service is provided to EDS. Documentation does not include
maintenance manuals and related documentation.
(d) "Employee" means those employees, agents, subcontractors, consultants,
and representatives of Anacomp provided or to be provided by Anacomp
to perform Services pursuant to this Agreement.
(e) "Hardware" means equipment and spare parts intended for the input,
output, storage, manipulation, communication, reproduction,
transmission, and retrieval of information, images and data, whether
in print, magnetic, electronic, voice, or video format, provided or to
be provided by Anacomp pursuant to this Agreement.
(f) "Implementation Plan" means that mutually agreed upon, evolving
document defining the engagement parameters between the parties at
specific EDS locations. The Implementation Plan will provide a
guideline for EDS micrographics requirements and will include new
Products, Services and consolidations. Upon its approval by the
parties, the Implementation Plan will be attached hereto as Appendix
1.
(g) "Licensed Software" means computer programs in object code (including
micro code) and/or source code (if provided under Section 5.9), as
applicable, provided or to be provided by Anacomp pursuant to this
Agreement. The definition of Licensed Software also includes any
enhancements, translations, modifications, updates, releases, or other
changes to Licensed Software which are provided or to be provided as
part of Anacomp's performance of warranty Service obligations or
prepaid support Services pursuant to this Agreement.
(h) "Net New Hardware" means those Anacomp XFP model ("COM") recorders
acquired by EDS from Anacomp on or after the Effective Date of this
Agreement.
(i) "Products" means, individually or collectively as appropriate,
Hardware, Net New Hardware, Systems, Licensed Software, Documentation,
supplies, accessories, and other commodities, provided or to be
provided by Anacomp pursuant to this Agreement.
(j) "Services" includes, but is not limited to, installation, education,
acceptance testing, support, maintenance, computer output to microfilm
("COM"), warranty, and time and materials services, provided or to be
provided by Anacomp pursuant to this Agreement.
(k) "Site" means geographically contiguous buildings, each of which, in
whole or in part, is occupied or accessed by EDS or a customer of EDS.
"Geographically contiguous" means adjacent tracts or parcels of real
property separated, if at all, only by publicly dedicated rights of
way or private easements.
(l) "System" means individual Products provided or to be provided by
Anacomp pursuant to this Agreement intended to be integrated and
operated cooperatively.
(m) "Warranty Period" means the period during which Anacomp is obligated
to perform its warranty obligations and during which EDS will not be
charged for maintenance Service. The Warranty Period is sixty (60)
days on the first Net New Hardware installed at each EDS site except
for Net New Hardware installed at the EDS Troy, Michigan site, which
shall have a Warranty Period of ninety (90) days.
ARTICLE II. PURCHASE ORDERS
2.1 Preparation of Purchase Orders. Anacomp agrees that products and services
which Anacomp generally makes available to other customers shall be made
available to EDS under the terms and conditions of this Agreement. EDS may
request information about products and services in order to prepare
purchase orders and Anacomp shall promptly provide to EDS, at no charge,
sufficiently detailed information which is responsive to EDS' request. From
time to time and/or at EDS' request, Anacomp shall provide written
information to EDS about products and services, and options related
thereto, available or to be available from Anacomp.
2.2 Issuance and Acceptance of Purchase Orders. References in this Section to
purchase orders also apply to alterations to Purchase Orders (as later
defined in this Section). The following governs the issuance and acceptance
of purchase orders under this Agreement:
(a) EDS may issue to Anacomp written purchase orders identifying the
Products and Services EDS desires to obtain from Anacomp. Each
purchase order may include other terms and conditions applicable to
the Products and Services ordered; such other terms shall be
consistent with the terms and conditions of this Agreement, or shall
be necessary to place a purchase order, such as billing and shipping
information, required delivery dates, installation locations, and
Charges (as later defined in this Agreement).
(b) Anacomp shall promptly accept purchase orders by providing to EDS a
written acceptance of such purchase order, or by commencing
performance pursuant to such purchase order. Anacomp shall accept
purchase orders which do not establish new or conflicting terms and
conditions from those set forth in this Agreement. Anacomp shall also
accept purchase orders incorporating terms and conditions which have
been separately agreed upon in writing by authorized representatives
of the parties.
(c) Anacomp may reject a purchase order which does not meet the conditions
described in subsection (b) above by promptly providing to EDS a
written explanation of the reasons for such rejection. Anacomp shall
accept an alteration to the originally issued purchase order if such
alteration remedies the items set forth in Anacomp's written
rejection.
Purchase orders accepted in accordance with this Section are referred
to as "Purchase Orders." EDS shall have no responsibility or liability
for Products or Services provided without a Purchase Order.
2.3 Purchase Order Alterations. EDS may issue an alteration to a Purchase Order
in order to, without limitation, (i) change a location for delivery, (ii)
modify the quantity or type of Products and Services to be delivered or
performed, (iii) implement any change or modification as required by or
permitted in this Agreement, (iv) correct typographical or clerical errors,
or (v) order Products or Services which are of superior quality, or are
enhancements to or are new releases or new options of the Products or
Services set forth in the Purchase Order.
2.4 Evaluation Purchase Orders. If agreed to by both parties, EDS may issue a
purchase order to Anacomp for Product evaluation by EDS at no charge for an
evaluation period agreed upon in advance by the parties. Anacomp shall
provide the Products listed in the evaluation Purchase Order to EDS and EDS
shall pay all related transportation and insurance costs. Licensed Software
provided pursuant to an evaluation Purchase Order shall be protected by EDS
in accordance with the non-disclosure requirements specified in this
Agreement which are applicable to Licensed Software. At the conclusion of
the evaluation period, EDS shall have the option to acquire such Products
pursuant to this Agreement or to return such Products to Anacomp at EDS'
expense without obligation to Anacomp. Products which Anacomp and EDS agree
to be the subject of beta testing by EDS shall be subject to a separate
agreement between the parties containing applicable beta test terms and
conditions.
2.5 Cancellation of Purchase Orders. Except as otherwise agreed upon by the
parties, EDS may cancel all or a portion of a Purchase Order without charge
or penalty at any time prior to the scheduled delivery date of the affected
Product(s)or time of performance of the Services specified in such Purchase
Order; provided, however that Anacomp shall be entitled to charge EDS
non-recoverable, documented and reasonable costs incurred by Anacomp as a
result of such cancellation. In the event that cancellation occurs after
shipment, EDS will return the Products at EDS' expense.
ARTICLE III. PROVISION OF PRODUCTS AND SERVICES
3.1 General. EDS is entitled to obtain Products and Services for the benefit of
and use by Affiliates. Such Affiliates and their respective employees are
entitled to use the Products and Services in accordance with this Agreement
and have and are entitled to all rights, benefits, and protections granted
to EDS pursuant to this Agreement with respect to such Products and
Services. However, an Affiliate shall only be entitled to obtain Products
and Services directly from Anacomp pursuant to this Agreement if EDS so
provides written notice to Anacomp. EDS is responsible for compliance by
its Affiliates with the terms and conditions (including, without
limitation, payment obligations) set forth in this Agreement. EDS and its
Affiliates have the right to transfer or remarket the Products and Services
to third parties.
3.2 Transportation of Product. Anacomp shall deliver Products to EDS on the
delivery date set forth in the applicable Purchase Order or as otherwise
agreed upon by the parties. Except as otherwise set forth in this
Agreement, reasonable Charges for rigging, drayage, required packing, and
transportation of Products (but not including surcharges or additional
expenses due to Anacomp's failure to allow sufficient time for
transportation) and required unpacking shall be paid by EDS. Unless
otherwise agreed upon by the parties, the method and mode of all required
rigging, drayage, packing, and transportation shall be those selected by
Anacomp so long as Anacomp obtains EDS' consent prior to the use of air
freight.
3.3 Title and Risk of Loss. Title to Hardware shall pass to EDS on the
applicable Acceptance Date (as defined herein) of such Hardware. Except for
loss of, or damage to, the Products attributable solely to the negligence
of EDS, all risk of loss of, or damage to, Products shall be borne by
Anacomp until receipt of delivery of such Products by EDS. Cost of freight
will be added to the invoice for the applicable Hardware.
3.4 Site Preparation. If specific environmental conditions are required for
installation, operation, warranty, or maintenance of Products, Anacomp
shall, upon acceptance of a purchase order for the Products, provide to EDS
sufficient information or Documentation which describes such required
conditions, as well as provide a description of any site preparations,
telecommunications lines and equipment required for use of the Products.
EDS shall be responsible for taking any reasonable actions necessary to
prepare the site for the Products. Upon request by EDS, Anacomp shall
examine the installation location at no charge to EDS and shall notify EDS
of any existing site preparation and/or environmental conditions which, if
not remedied, will impact EDS' ability to receive installation, warranty,
or maintenance Services.
3.5 Installation of Products. If installation is set forth in the governing
Purchase Order or is included in the Charge for a Product, Anacomp shall
install Products in good working order at the designated location on or
before the installation date set forth in the applicable Purchase Order or
as otherwise agreed upon by the parties. Installation Services shall
include performance of Anacomp's usual and customary diagnostic tests to
determine the operational status of the Product. Anacomp shall inform EDS
of any education Services which are included with installation, and such
education may be performed at a time mutually agreed upon by Anacomp and
EDS.
3.6 Right to Cancel for Delays. In the event of a delay in delivery (except if
caused by EDS) of all or any portion of Products listed on a Purchase Order
or Products listed on a series of Purchase Orders which relate to a
specific project or request for proposal (the Products listed on such
series of Purchase Orders referred to as "Related Products") , or in the
event of a delay in the performance of Services which is not excused in
this Agreement, EDS may cancel without charge all or any portion of the
Products, Related Products or Services for which delivery or performance
has been so delayed. If, in EDS' reasonable opinion, the delivered Products
or Related Products are not operable without the remaining undelivered
Products or Related Products, EDS may, at Anacomp's expense, return any
delivered Products or Related Products to Anacomp. EDS shall not be liable
for any expenses incurred by Anacomp for canceled, undelivered, or returned
Products or Related Products. EDS shall receive a refund of all amounts
paid to Anacomp with respect to the canceled and/or returned Products,
Related Products and Services. EDS shall not be entitled to apply the
remedies set forth in this Section 3.6 in the event that any cancellation
or delay of delivery is caused by EDS' failure to prepare the relevant site
for the delivery of the Products or the Related Products.
3.7 Assignment of Right to Purchase. EDS may assign its right to purchase an
item(s) of Hardware pursuant to this Agreement to a third party for lease
of such Hardware to EDS, but Anacomp shall not owe any obligations to such
third party lessor. In such event, all warranty and indemnification
provisions of this Agreement which relate to or are applicable to the
Hardware shall extend to EDS as if EDS were the original purchaser. All
such purchases by such third parties are deemed, for purposes of
calculating accumulated purchases and any discounts under this Agreement,
to be purchases pursuant to this Agreement.
3.8 Time and Materials Services. If available from Anacomp, EDS may obtain on a
time and materials basis from Anacomp consulting, development and other
Services (excluding maintenance and support Services which are provided
pursuant to other sections of this Agreement) agreed upon by the parties in
accordance with the terms and conditions set forth below.
(a) EDS may specify on a purchase order the names, required number and
skill levels of Employees to perform Services.
(b) During the course of performance of Services, EDS may request
replacement of an Employee or a proposed Employee. In such event,
Anacomp shall, within five (5) working days of receipt of such request
from EDS, provide a substitute Employee of sufficient skill,
knowledge, and training to perform the applicable Services. If, within
the first ten (10) days after an Employee's commencement of Services,
EDS notifies Anacomp that (i) such Employee's level of performance is
unacceptable, (ii) such Employee has failed to perform as required, or
(iii) such Employee, in EDS' sole but reasonable opinion, lacks the
skill, knowledge or training to perform at the required level, then
Anacomp agrees that EDS shall not be required to pay for Services
provided by such Employee during such period and Anacomp shall refund
to EDS all amounts paid for such Employee's Services. If EDS requests
replacement of an Employee for the above-referenced reasons after such
ten (10) day time period, or at any time for a reason other than the
reasons indicated above, EDS shall not be required to pay for, and
shall be entitled to a refund of, any sums paid to Anacomp for such
Employee' s Services after the date of EDS' requested replacement of
such Employee.
(c) Anacomp shall not replace, without EDS' consent (which shall not be
unreasonably withheld), an Employee then currently performing Services
until the governing Purchase Order expires or is terminated; however,
Anacomp may replace, without EDS' consent, an Employee for reasons
relating to the Employee's termination with Anacomp, promotion,
illness, death, or causes beyond Anacomp's control.
(d) EDS shall reimburse Anacomp for reasonable expenses incurred by
Employees in the performance of Services (if requested by Anacomp in
advance and approved by EDS) which are related to travel, lodging, and
meals; such expenses shall be reimbursed in accordance with EDS'
guidelines for its own employees. A copy of such guidelines is
attached hereto as Exhibit H.
(e) Anacomp shall establish and shall retain, for a period of three (3)
years following the performance of time and materials Services,
records which adequately substantiate the applicability and accuracy
of Charges for such Services and related expenses to EDS. Upon receipt
of reasonable advance notice from EDS, Anacomp shall produce such
records for audit by EDS.
(f) Purchase Orders for Services provided or to be provided under this
Section may be canceled at any time without charge or penalty, upon
written notice to Anacomp, except that EDS agrees to pay Anacomp any
direct, verifiable, non-recoverable and reasonable costs incurred by
Anacomp as a result of such cancellation and any amounts due for
Services rendered.
3.9 Services in General. In connection with the performance of any Services
pursuant to this Agreement:
(a) Unless a specific number of Employees is set forth in the governing
Purchase Order, Anacomp warrants it will provide sufficient Employees
to complete the Services ordered within the applicable time frames
established pursuant to this Agreement or as set forth in such
Purchase Order.
(b) Anacomp warrants that Employees shall have sufficient skill,
knowledge, and training to perform Services and that the Services
shall be performed in a professional and workmanlike manner.
(c) Employees performing Services in the United States must be United
States citizens or lawfully admitted in the United States for
permanent residence or lawfully admitted in the United States holding
a visa authorizing the performance of Services on behalf of Anacomp.
(d) Anacomp warrants that all Employees utilized by Anacomp in performing
Services will maintain the confidentiality of information of Anacomp's
customers and if such Employee is not a full-time employee whose work
is considered a "work for hire" under Section 101 of the United States
Copyright Code, such Employee is under a written obligation to Anacomp
requiring Employee to assign all of Employee's right, title, and
interest to Anacomp in and to any Work Product which is developed,
prepared, conceived, made, or suggested by such Employee while
providing Services on behalf of Anacomp.
(e) Anacomp shall require Employees providing Services at an EDS location
to comply with applicable EDS security and safety regulations and
policies.
(f) Anacomp shall provide for and pay the compensation of Employees and
shall pay all taxes, contributions, and benefits (such as, but not
limited to, workers' compensation benefits) which an employer is
required to pay relating to the employment of employees. EDS shall not
be liable to Anacomp or to any Employee for Anacomp's failure to
perform its compensation, benefit, or tax obligations. Anacomp shall
indemnify, defend and hold EDS harmless from and against all such
taxes, contributions and benefits and will comply with all associated
governmental regulations, including the filing of all necessary
reports and returns .
(g) Unless prohibited by law, Anacomp shall allow EDS or its designated
third party to conduct a background investigation and drug screening
("Investigation") of any Employee performing Services in the United
States, Canada and Mexico if EDS intends to provide the Employee with
unescorted access to an EDS location. In connection with such
Investigation EDS shall provide to Anacomp a standard form authorizing
the Investigation and Anacomp shall promptly secure the completion of
such form by the Employee. Any and all information obtained in
connection with an Investigation of any Employee or acquired or made
known during such Investigation shall be deemed confidential and shall
not be revealed to persons without a bona fide need to know. If, after
reviewing the results of an Investigation, EDS elects not to accept an
Employee for performance of Services under this Agreement, Anacomp
agrees to not utilize such Employee in the performance of Services .
EDS shall waive the Investigation for an Employee if Anacomp provides
EDS with written confirmation that: (i) Anacomp has conducted a
reasonable background and drug screening investigation of such
Employee with satisfactory results, or (ii) the Employee has been
employed with Anacomp for at least five (5) years in good standing.
3.10 Further Acts. During and subsequent to the term of this Agreement, Anacomp
shall do, or cause to be done, all such further acts and shall execute,
acknowledge, and deliver, or cause to be executed, acknowledged, and
delivered, any and all further documentation or assignments as EDS may
reasonably require to evidence or perfect EDS' ownership or or right to
use, as the case may be, the Products.
3.11 Time of Performance. Time is expressly made of the essence with respect to
each and every term and provision of this Article.
3.12 EDS Business Practices . Anacomp shall comply with the EDS Business
Practices set forth in Exhibit A.
3.13 Hardware Support and Maintenance Services . Hardware support and
maintenance Services provided or to be provided by Anacomp pursuant to this
Agreement shall also be subject to the terms and conditions set forth in
Exhibit C.
3.14 Education Services. Education Services (as later defined) provided or to be
provided by Anacomp pursuant to this Agreement shall also be subject to the
terms and conditions set forth in Exhibit F.
3.15 National Account Management. Upon the Effective Date of this Agreement,
Anacomp will provide a dedicated National Account Management Team. The
National Account Management Team will also serve as the EDS Implementation
Team for the purpose of providing assessment, analysis and implementation
of Anacomp Products and Services wherever desired by EDS.
ARTICLE IV. PROVISION OF HARDWARE
4.1 Acceptance of Hardware. EDS shall accept Hardware or System on the date
(the "Acceptance Date") when necessary Documentation has been received and
such Hardware or System performs in accordance with and/or conforms to its
Applicable specifications. In the event the hardware or System does not so
perform and/or conform, EDS may (i) continue to test the Hardware or System
with the assistance of Anacomp, (ii) permit Anacomp to repair or replace
the item of Hardware or System at no additional expense to EDS, or (iii)
return the Hardware or System and related Documentation to Anacomp, at
Anacomp's expense and without liability to Anacomp, and any amounts paid by
EDS for the Hardware or System and Documentation shall be refunded by
Anacomp to EDS. Acceptance of Hardware or System does not waive any
warranty rights provided in this Agreement for such Hardware or System.
Prior to returning the Hardware or System to Anacomp, EDS will permit
Anacomp two (2) days to evaluate the Hardware or System and to issue a
return authorization.
4.2 Performance and Reliability Testing. In addition to the warranties set
forth in this Agreement and to the acceptance testing described in the
previous Section, new Hardware or System models, types, or releases not
previously installed or successfully tested by EDS (but specifically
excluding XFP 2000 model COM recorders) ("New Hardware") must complete a
thirty (30) working day performance and reliability testing period. If New
Hardware does not perform in accordance with its Applicable Specifications
for at least ninety-five percent (95%) of EDS' normal working hours during
such testing period following the actual installation date of the New
Hardware, then EDS shall so inform Anacomp in writing. Within ten (10) days
of receipt of such notice, Anacomp shall, at EDS' option (i) repair or
replace the unacceptable New Hardware at no additional cost to EDS, or (ii)
accept the return of the New Hardware and refund to EDS any amounts paid by
EDS for such New Hardware, including delivery and return transportation
costs and expenses. If EDS elects (i) above, the repaired or replacement
New Hardware shall be subject to the performance and reliability tests set
forth in this Section. For purposes of New Hardware, "Acceptance Date"
shall mean the date upon which New Hardware satisfactorily completes the
performance and reliability test described in this Section.
4.3 Support. Maintenance, and Spare Parts Availability. Anacomp warrants and
represents that necessary and appropriate support and maintenance, spare
parts, and engineering changes shall be available for the Hardware for a
period of five (5) years from the date Anacomp discontinues manufacturing
the Hardware or System. EDS shall be entitled to purchase such support,
maintenance, and spare parts at the then current or other commercially
reasonable charges therefor.
4.4 Duplication of Documentation. EDS may duplicate Documentation, at no
additional charge, for EDS' use or for use by a customer of EDS in
connection with the provision of Hardware or Systems so long as all
required proprietary markings are retained on all duplicated copies.
ARTICLE V. PROVISION OF LICENSED SOFTWARE
5.1 Acceptance of Licensed Software. EDS shall accept delivered copy(ies) of
Licensed Software on the date (the "Acceptance Date") when all necessary
Documentation has been received and the Licensed Software performs in
accordance with and/or conforms to its Applicable Specifications. In the
event Licensed Software does not so perform, EDS may (i) continue to test
the Licensed Software with the assistance of Anacomp, (ii) permit Anacomp
to repair or replace the Licensed Software at no additional expense to EDS,
or (iii) return the Licensed Software and Documentation to Anacomp, at
Anacomp's expense and without liability to Anacomp, and any amounts paid by
EDS for the Licensed Software and Documentation shall be refunded by
Anacomp to EDS. Acceptance of Licensed Software does not waive any warranty
rights provided in this Agreement for the Licensed Software.
5.2 Grant of License. For each item of Licensed Software received by EDS,
Anacomp grants EDS and EDS has a worldwide, nonexclusive, non-transferable
(except as set forth in Section 5.3 below), irrevocable (subject to any
termination provision set forth in this Agreement), license to use,
execute, store, and display the object code version of the Licensed
Software, on behalf of EDS and customers of EDS for whom EDS is providing
the applicable Hardware and will operate it for the customer in accordance
with paragraph (d) below (a "License") in accordance with the type of
License selected and in accordance with the terms and conditions of this
Agreement. The term of a License shall be perpetual unless otherwise
specified in Exhibit B. A Purchase Order shall designate the type of
License which is selected; if a Purchase Order fails to designate the type
of License desired, then such License shall be deemed to be a CPU Software
License (as later defined in this Section).
(a) A "CPU Software License" permits EDS to use the Licensed Software on
any single computer (which may include more than one central
processing unit) or item of equipment ("CPU") and to copy the Licensed
Software as necessary for archival, maintenance, disaster recovery
testing, or back-up purposes. If EDS desires to run parallel
operations in the process of conducting a disaster recovery test or
transferring operations from one CPU to another CPU, EDS may operate
the Licensed Software on two (2) CPUs for the period of time
reasonably necessary to complete the disaster recovery test or
transfer.
(b) A "Site Software License" permits EDS to use the Licensed Software at
the Site designated in the Purchase Order and to copy the Licensed
Software as necessary for dissemination at the Site and for archival,
maintenance, disaster recovery testing, or back-up purposes.
Notwithstanding the foregoing, the Licensed Software may be used at
other than the designated Site, if (i) the designated Site cannot be
used, (ii) the designated Site is replaced or changed by EDS, or (iii)
EDS provides Anacomp with prior written notice. If EDS desires to run
parallel operations in the process of conducting a disaster recovery
test or transferring operations from one site to another Site, EDS may
operate the Licensed Software at two (2) Sites for the period of time
reasonably necessary to complete the disaster recovery test or
transfer.
(c) A "Network Software License" permits EDS to use the Licensed Software
on any single computer, file server, or item of equipment which may be
accessed by multiple, networked devices (collectively hereinafter
referred to as the "Network"). Portions of the Licensed Software may
be downloaded as appropriate for use by the devices on the Network. If
EDS desires to run parallel operations in the process of conducting a
disaster recovery test or transferring operations from one Network to
another Network, EDS may operate the Licensed Software on two (2)
Networks for the period of time reasonably necessary to complete the
disaster recovery test or transfer.
(d) Any License granted under this Agreement permits EDS to (i) use
Licensed Software for its corporate purposes including, but not
limited to, providing services to or processing data of customers of
EDS, providing remote access to the Licensed Software, and performing
disaster recovery, disaster testing, and backup as EDS deems
necessary, and (ii) use and copy Licensed Software and use, copy, and
modify Documentation for the purpose of creating and using training
materials relating to the Licensed Software, which training materials
may include flow diagrams, system operation schematics, or screen
prints from operation of the Licensed Software. Access to and use of
the Licensed Software by customers of EDS shall be considered
authorized use under this Section so long as such use is in
conjunction with EDS' provision of services to, or EDS' processing the
data of, such customers, and so long as any such customers are bound
by obligations of confidentiality.
The governing License also includes the right to use the source code
version of Licensed Software in accordance with the terms and conditions of
such License and the Section of this Agreement titled "Provision of Source
Code."
5.3 Transfer of Licensed Software. During the performance or upon termination
of a contract with an EDS customer or upon any transfer of equipment
incorporating Licensed Software to an EDS customer, the Licensed Software
will be licensed directly by Anacomp to such customer in accordance with
the terms and conditions of Anacomp's standard software license agreement
or as agreed upon by Anacomp and such customer. A one-time transfer Charge
as set forth in Exhibit B will be applied. If Licensed Software or
equipment incorporating Licensed Software is transferred to an Affiliate,
the License will be assigned to the Affiliate at no additional charge. EDS
shall have no further liability or responsibility with respect to such
transferred or assigned Licensed Software.
If the Licensed Software is transferred to any other third party (i.e.,
other than an Affiliate or an EDS customer) , the Licensed Software will be
licensed directly by Anacomp to such third party in accordance with the
terms and conditions of Anacomp's standard software license agreement or as
agreed upon by Anacomp and such third party. Any transfer of the Licensed
Software to any other third party shall be at Anacomp's then-standard
license fees. EDS shall have no further liability or responsibility with
respect to such Licensed Software
5.4 Ownership of Licensed Software and Modifications. The Licensed Software
shall be and remain the property of Anacomp or third parties which have
granted Anacomp the right to license the Licensed Software and EDS shall
have no rights or interests therein except as set forth in this Agreement.
5.5 Proprietary Markings. EDS shall not remove or destroy any proprietary
markings or proprietary legends placed upon or contained within the
Licensed Software.
5.6 Duplication of Documentation. EDS may duplicate Licensed Software
Documentation, at no additional charge, for EDS' use or for use by a
customer of EDS in connection with the provision of Licensed Software so
long as all required proprietary markings are retained on all duplicated
copies.
5.7 Non-Disclosure. During the term of a License, EDS will treat the Licensed
Software with the same degree of care and confidentiality which EDS
provides for similar information belonging to EDS which EDS does not wish
disclosed to the public, but not less than reasonable care. This provision
shall not apply to Licensed Software, or any portion thereof, which is (i)
already known by EDS without an obligation of confidentiality, (ii)
publicly known or becomes publicly known through no unauthorized act of
EDS, (iii) rightfully received from a third party without obligation of
confidentiality, (iv) disclosed without similar restrictions by Anacomp to
a third party, (v) approved by Anacomp for disclosure, or (vi) required to
be disclosed pursuant to a requirement of a governmental agency or law so
long as EDS provides Anacomp with timely prior written notice of such
requirement. It will not be a violation of this Section if (A) EDS provides
access to and the use of the Licensed Software to third parties providing
services to EDS so long as EDS secures execution by such third parties of a
confidentiality agreement as would normally be required by EDS, or (B) EDS
independently develops software which is similar to Licensed Software, so
long as such independent development is substantiated by written
documentation.
5.8 Licensed Software Support Services. The support Services set forth below
for the Licensed Software shall be provided by Anacomp to EDS during the
Warranty Period at no charge to EDS. Thereafter, such support Services
shall be provided by Anacomp, upon EDS' request, for either a fixed or
open-ended term, at the applicable Charges set forth in Exhibit B, upon the
terms contained in the next Section. EDS may discontinue such support
Services at any time by providing sixty (60) days' advance written notice
to Anacomp. If such support Services were provided by Anacomp for an
open-ended term, EDS shall promptly receive a refund of pre-paid support
Charges which reflects the amount for discontinued support Services after
the effective date of the notice. If EDS discontinues such support Services
for the Licensed Software, then EDS will no longer be entitled to receive
the Corrections, Improvements and Updates (as defined below for all three
terms), except as provided to other customers of Anacomp which have also
discontinued support Services.
(a) Anacomp shall promptly notify EDS of any defects, errors or
malfunctions ("Defects") in the Licensed Software or Documentation of
which Anacomp becomes aware from any source and shall promptly provide
to EDS modified versions of Licensed Software or Documentation which
incorporate corrections of any Defects ("Corrections"). Anacomp shall
also provide to EDS all operational and support assistance necessary
to cause Licensed Software to perform in accordance with its
Applicable Specifications and remedial support designed to provide a
by-pass or temporary fix to a Defect until the Defect can be
permanently corrected. Anacomp shall use its best efforts to respond
to requests from EDS for Licensed Software support in a manner and
time frame which are reasonably responsive considering the nature and
severity of the Defect which gave rise to such request.
(b) For so long as EDS receives support Services from Anacomp with respect
to the Licensed Software, Anacomp shall provide to EDS at no charge,
all upgrades, modifications, improvements, enhancements, extensions,
and other changes to Licensed Software developed by Anacomp
("Improvements") and all updates to the Licensed Software necessary to
cause the Licensed Software to operate under new versions or releases
of the Licensed Software's current operating system(s) ("Updates")
which are generally made available to other customers of Anacomp. EDS
shall have the option to implement any Improvement or Update and any
failure by EDS to so implement shall not affect EDS' right to continue
to receive support and maintenance Services.
(c) Anacomp shall provide toll-free telephone hot-line support between
8:00 a.m. and 5:00 p.m.. Pacific Time, at the applicable maintenance
location. In addition, Anacomp shall provide to EDS, at the request of
EDS and at Anacomp's then current established charges therefor,
additional telephone hot-line support for up to twenty-four (24) hours
per day, seven (7) days per week.
(d) Anacomp shall provide to EDS any revisions to the existing
Documentation developed for the Licensed Software or necessary to
reflect all Corrections, Improvements, or Updates.
(e) Anacomp shall make Licensed Software training available to persons
designated by EDS to the extent agreed upon by the parties.
(f) If the applicable Charge for Licensed Software is payable on a
periodic basis, and such Charge includes provision of support
Services, and if Anacomp fails to provide the support Services
described above, then EDS' Charge for the affected Licensed Software
shall be immediately reduced to reflect such failure by subtracting
that portion of the Charge allocable to the provision of support
Services.
5.9 Provision of Source Code.
(a) Anacomp acknowledges and agrees that EDS' ability to utilize
adequately Licensed Software would be seriously jeopardized in the
event Anacomp fails to maintain or support such Licensed Software
unless complete Licensed Software source code and related
Documentation were made available to EDS for EDS' use in satisfying
EDS' maintenance and support requirements. Therefore, Anacomp agrees
that if Anacomp ceases to make available maintenance or support
Services for the Licensed Software, or if Anacomp ceases business
operations generally or has transferred all or substantially all of
its assets or obligations set forth in this Agreement to a third party
which has not assumed all of the obligations of Anacomp set forth in
this Agreement, then Anacomp or its authorized escrow agent will
provide to EDS one copy of the most current version of the source code
for the Licensed Software.
(b) In order to ensure compliance with the foregoing, Anacomp will
promptly and continuously update and supplement the source code as
necessary with all revisions, Corrections, enhancements, and other
changes developed for the Licensed Software. Upon request by EDS,
Anacomp will deposit in escrow with an escrow agent acceptable to EDS
and pursuant to a mutually acceptable escrow agreement supplemental to
this Agreement, a copy of the source code which corresponds to the
most current version of the Licensed Software in use by EDS. Anacomp
shall pay all fees of the escrow agent for services provided. Such
source code shall be in a form suitable for reproduction and use by
computer and photocopy equipment, and shall consist of a full source
language statement of the program or programs comprising the Licensed
Software and complete program maintenance Documentation which comprise
the pre-coding detail design specifications, and all other material
necessary to allow a reasonably skilled programmer or analyst to
maintain and enhance the Licensed Software without the assistance of
Anacomp or reference to any other materials. EDS may use source code
received under this Section as necessary to modify, maintain, and
update the Licensed Software.
(c) If Anacomp currently maintains or enters into an escrow agreement for
the Licensed Software source code for the benefit of other customers
of Anacomp, then Anacomp shall provide to EDS a current copy of such
escrow agreement within ten (10) days of EDS' request and if such
existing escrow agreement is acceptable to EDS, Anacomp shall include
EDS as a third party beneficiary of such escrow agreement at no charge
to EDS. In such case, the existing escrow agreement shall be
considered a supplemental agreement to this Agreement. If such
existing escrow agreement is not acceptable to EDS, and EDS and
Anacomp elect not to enter into a separate escrow agreement, EDS and
Anacomp shall enter into an amendment to such existing escrow
agreement which provides mutually acceptable terms and conditions; at
a minimum, such terms and conditions shall allow EDS to conduct an
audit of, or shall require that the escrow agent conduct an audit of,
the copy of source code in escrow to ensure that such copy meets the
requirements established in this Section. Anacomp's entry into, or
failure to enter into, an agreement with an escrow agent or to deposit
the described materials in escrow shall not relieve Anacomp of its
obligations to EDS described in this Section.
(d) If, as a result of an event of default as described in paragraph (a)
above, Anacomp fails to provide required support Services, then any
periodic license fee which EDS is required to pay under this Agreement
for Licensed Software shall be reduced to reflect such lack of support
Services. At such time as Anacomp commences offering the support
Services described in this Agreement for Licensed Software, EDS may
obtain such support Services as provided for elsewhere in this
Agreement.
5.10 Acquisition of Third Party Software. If EDS has acquired software products
from a third party and rights to such software products are subsequently
acquired by Anacomp (whether through purchase of the third party in whole
or in part, through purchase of the software products, through acquisition
of the rights to market the software, or through any other means), then EDS
shall have the option of (i) continuing to use the software products under
the original license agreement with such third party at no additional
charge to EDS other than applicable fees identified in such license
agreement, or (ii) using the software products under the terms and
conditions of this Agreement.
5.11 Software from an Authorized Third Party. If EDS acquires Anacomp's software
products from a value added reseller, dealer, distributor, or other Anacomp
authorized third party provider or if the Licensed Software is embedded in
software products acquired from a third party, Anacomp agrees that, at EDS'
option, such products shall be deemed to have been acquired under this
Agreement.
ARTICLE VI. WARRANTIES, INDEMNITIES, AND LIABILITIES
6.1 Warranty. Anacomp represents and warrants that::
(a) Anacomp has not and will not enter into agreements or commitments
which are inconsistent with or conflict with the rights granted to EDS
in this Agreement;
(b) Except for any security interest established by EDS under this
Agreement, and any third party ownership rights in the Licensed
Software, the Products are and shall be free and clear of all liens
and encumbrances, and EDS shall be entitled to use the Products
without disturbance;
(c) No portion of the Products contain, at the time of delivery, any "back
door," "time bomb," "Trojan horse," "worm," "drop dead device,"
"virus," or other computer software routines or hardware components
designed to (i) permit access or use of either the Products or EDS'
computer systems by Anacomp or a third party not authorized by this
Agreement, (ii) disable, damage or erase the Products or data, or
(iii) perform any other such actions;
(d) The Products and the design thereof shall not contain preprogrammed
preventative routines or similar devices which prevent EDS from
exercising the rights set forth in Article V of this Agreement or from
utilizing the Products for the purpose for which they were designed;
(e) Each Product (i) shall be new and free from defects in manufacture,
materials, and design (except that Hardware and Systems which are
acquired by EDS through a lease or rental arrangement may be "like
new"), (ii) shall be manufactured in a good and workmanlike manner
using a skilled staff fully qualified to perform their respective
duties, and (iii) shall function properly under ordinary use and
operate in conformance with their Applicable Specifications and
Documentation for the applicable Warranty Period; and
(f) The Products are, and shall continue to be, data, program, and upward
compatible with any other micrographics Products available or to be
available from Anacomp so that data files created for a Product can be
utilized without adaptation of the other Products and so that programs
written for Products will operate on the other Products and not result
in the need for alteration, emulation, or other loss of efficiency. In
addition, each Product is, and shall continue to be, compatible with
other Products provided by Anacomp and each Product contained within a
Anacomp-provided system shall be fully integrated, compatible, and
operable with all other micrographics Products contained within such
system. Anacomp shall provide to EDS at least ninety (90) days prior
written notice to discontinue any Product.
During the Warranty Period, Anacomp will provide warranty Service to EDS at
no additional cost and will include all Services, parts, or replacement
Products necessary to enable Anacomp to comply with the warranties set
forth in this Agreement. Anacomp shall pass through to EDS any
manufacturers' warranties which Anacomp receives on the Products and, at
EDS' request, Anacomp shall enforce such warranties on EDS' behalf. Anacomp
agrees that EDS shall be entitled to pass through to Product end users any
warranties received from Anacomp for such Products pursuant to this
Agreement.
6.2 Proprietary Rights Indemnification. Anacomp represents and warrants that
(i) at the time of delivery to EDS, no Product provided under this
Agreement is the subject of any litigation that will adversely affect such
Product or EDS' use thereof ("Litigation"), and (ii) Anacomp has all right,
title, ownership interest, licensing, and/or marketing rights necessary to
provide the Products to EDS and that each License, the Products and their
sale, license, and use hereunder and that the performance of the Services
do not and shall not directly or indirectly violate or infringe upon any
copyright, patent, trade secret, or other proprietary or intellectual
property right of any third party or contribute to such violation or
infringement ("Infringement"). Anacomp shall indemnify and hold EDS and
Product end users and their respective successors, officers, directors,
employees, and agents harmless from and against any and all actions,
claims, losses, damages, liabilities, awards, costs, and expenses
(including legal fees) resulting from or arising out of any Litigation, any
breach or claimed breach of the foregoing warranties, or which is based on
a claim of an Infringement and Anacomp shall defend and settle, at its
expense, all suits or proceedings arising therefrom. EDS shall inform
Anacomp of any such suit or proceeding against EDS and EDS shall have the
right to participate in the defense of any such suit or proceeding at its
expense and through counsel of its choosing. Anacomp shall notify EDS of
any actions, claims, or suits against Anacomp based on an alleged
Infringement of any party's intellectual property rights in and to the
Products. In the event an injunction is sought or obtained against use of a
Product or in EDS' opinion is likely to be sought or obtained, Anacomp
shall promptly, at its option and expense, either (A) procure for EDS and
Product end users the right to continue to use the infringing Product as
set forth in this Agreement, or (B) replace or modify the infringing
Product to make its use non-infringing while being capable of performing
the same function without degradation of performance. If these options may
only be executed by Anacomp at an unreasonable cost, then Anacomp may
require EDS to discontinue use of the Product and return to EDS the price
paid to Anacomp for the Product.
6.3 Cross Indemnification. In the event any act or omission of a party or its
employees, servants, agents, or representatives causes or results in (i)
damage to or destruction of property of the other party or third parties,
and/or (ii) death or injury to persons including, but not limited to,
employees or invitees of either party, then such party shall indemnify,
defend, and hold the other party harmless from and against any and all
claims, actions, damages, demands, liabilities, costs, and expenses,
including reasonable attorneys' fees and expenses, resulting therefrom. The
indemnifying party shall pay or reimburse the other party promptly for all
such damage, destruction, death, or injury.
6.4 Anacomp Indemnity. Anacomp shall indemnify, defend, and hold EDS and EDS'
successors, officers, directors, employees, and agents harmless from and
against any and all actions, claims, losses, damages, liabilities, awards,
expenses (including reasonable attorney's fees), and costs (collectively,
"Claims") resulting from or arising out of (i) Anacomp's performance or
non-performance of Services, (ii) the hiring, termination or other
personnel action taken by Supplier with respect to any Employee who is
assigned to provide Services (including, without limitation, any claims for
severance benefits), and (iii) any action or conduct taken or engaged in by
any person that is associated with Anacomp and is assigned by Anacomp to
provide Services (including, without limitation, the disclosure by such
person of the Confidential Information (as later defined) of EDS,
Affiliates, and customers of EDS and Affiliates.
6.5 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PURSUANT TO THIS AGREEMENT FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS,
LOSS OF BUSINESS OR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR
PUNITIVE DAMAGES OF THE OTHER PARTY. THE FOREGOING SHALL NOT LIMIT THE
INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS SET FORTH IN THIS
AGREEMENT.
6.6 Insurance. During the term of this Agreement, Anacomp shall at all times
maintain at its own cost the following minimum insurance coverage with a
financially solvent insurance company and, upon request of EDS, shall
furnish certificates evidencing the following insurance: (i) workers'
compensation as required by the laws of the state where Services are to be
performed; (ii) employer's liability insurance at a limit of not less than
One Hundred Thousand Dollars ($100,000) each accident, Five Hundred
Thousand Dollars ($500,000) disease policy limit, and One Hundred Thousand
Dollars ($100,000) each employee disease limit; (iii) commercial general
liability insurance (occurrence basis form and automobile liability
coverage) with a minimum of One Million Dollars ($1,000,000) combined
single limit per occurrence, insuring Anacomp from claims for personal
injury (including bodily injury and death) and property damage which may
arise from or in connection with (A) the performance of Services or from
the provision of Products hereunder, or (B) from or out of any negligent
act or omission of Anacomp, its officers, directors, agents or employees;
in connection with such commercial general liability and automobile
liability policies, EDS shall be named an additional insured and Anacomp's
insurer shall be required by Anacomp to notify EDS of any material change
or cancellation of these coverages before expiration of these policies; and
(iv) any other insurance coverage which EDS considers reasonably necessary
or appropriate under the circumstances of the applicable Purchase Order,
which requirement for insurance shall be communicated to Anacomp in a
reasonable time prior to or concurrently with the purchase order for which
such coverage is required.
In the event Anacomp fails to provide the required continuous insurance
coverage, EDS may charge Anacomp and Anacomp shall pay EDS, EDS' actual
expense incurred in purchasing similar protection or a reasonable estimate
thereof and the value of any claims, actions, damages, liabilities, costs,
and expenses paid by EDS which would not have been paid by EDS if Anacomp
had complied with the requirements of this Section.
6.7 Survival of Article VI. The provisions of this Article VI shall survive the
term or termination of this Agreement for any reason.
ARTICLE VII. PAYMENTS TO SUPPLIER
7.1 Charges, Prices, and Fees for Products and Services. Charges, prices, and
fees ("Charges") and discounts, if any, for Products and Services shall be
determined as set forth in Exhibit B, in a Purchase Order, or as otherwise
agreed upon by the parties, unless modified as set forth in this Agreement.
Where a change in an established Charge for Products or Services is
provided for in this Agreement, Supplier shall give to EDS at least ninety
(90) days'prior written notice of such change. Any increase in a Charge
shall not occur during the first twenty-four (24) months of this Agreement.
After such twenty-four (24) month period, any increase in a Charge shall
(i) not occur unless a minimum of twelve (12) months has elapsed since the
effective date of the previously established Charge, (ii) not exceed five
percent (5%) of such Charge, and (iii) be applicable only to COM Services,
film, microfilm chemicals, and support Services.
7.2 Auto Payment . This Section shall apply to Purchase Orders identified as
being subject to automatic payment by EDS.
(a) Single Payment for Recurring Charges. All Charges which are due and
payable on a monthly, annual or other periodic basis for Products and
Services ("Recurring Charges") shall be paid by EDS on the same date
of the month for each month that such Charges are due (the "Remit
Date") . The initial payment for a Recurring Charge shall be made on
the first Remit Date after the Applicable Event provided that such
Applicable Event occurs at least five (5) days prior to the first
Remit Date. An "Applicable Event" is the event set forth in a Purchase
Order that initiates payment of Charges (such as the installation,
receipt, or acceptance of the Product; or the commencement or
completion of Services) . If the Applicable Event occurs less than
five (5) days prior to the first Remit Date, the initial payment for
such Recurring Charge shall be made on the following Remit Date, and
EDS shall not be subject to interest or penalties as a result of such
late payment.
(b) Payment for Other Charges. Except for Recurring Charges, or unless
otherwise agreed to by the parties in writing, all payments due
Anacomp for Products and Services shall be paid within thirty (30)
days after the date of the Applicable Event .
(c) Invoices Required Under Auto Payment. Anacomp must send EDS an invoice
to receive payment for any amounts due for any Charges which are
payable and have not been identified on the applicable Purchase Order
which is subject to automatic payment.
(d) Reconciliation . From time to time, at either party's prior written
request, the other party shall assist with the reconciliation of the
payments made by EDS to Anacomp.
7.3 Payment Through Invoicing . This Section applies to Purchase Orders issued
by EDS which are not identified as being subject to automatic payment or to
any invoice received by EDS from Anacomp as permitted by this Agreement .
(a) Except as otherwise set forth in this Agreement, any undisputed sum due to
Anacomp pursuant to this Agreement shall be payable within thirty (30) days
after receipt by EDS of a correct invoice therefor from Anacomp. Anacomp
shall invoice EDS on or after the applicable Acceptance Date for the
Products covered by such invoice . Periodic payments, if any, due to
Anacomp pursuant to this Agreement shall be invoiced at the beginning of
the period to which they apply. Payment for any other Services shall be
invoiced as agreed upon by the parties or, in the absence of an agreement,
upon completion of such Services.
(b) A "correct" invoice shall contain (i) Anacomp's name and invoice date, (ii)
the specific Purchase Order number, if applicable, (iii) description,
including serial number as applicable, price, and quantity of the Products
or Services actually delivered or rendered, (iv) credits (if applicable),
(v) name (where applicable), title, phone number, and complete mailing
address of responsible official to whom payment is to be sent, and (vi)
other substantiating documentation or information as may reasonably be
required by EDS from time to time. A correct invoice must be submitted to
the appropriate invoice address listed on the applicable Purchase Order.
7.4 Taxes.
(a) To the extent that any taxes are due and payable based upon EDS'
purchases of Products or Services pursuant to this Agreement,
including federal excise tax, state and local sales or use taxes, or
amounts in lieu thereof paid or payable by Anacomp in respect of the
foregoing, then EDS agrees to pay or reimburse Anacomp for all such
taxes. EDS shall not have any obligation to pay any franchise taxes,
privilege, gross receipts, or excise taxes imposed on or payable by
Anacomp, or any taxes based on the net income of Anacomp.
(b) Anacomp agrees to reasonably cooperate with EDS to minimize any
applicable tax, and shall make available to EDS, and any taxing
authority, all information, records, or documents relating to any
audits or assessments attributable to or resulting from the payment
process. Anacomp shall indemnify and hold EDS harmless from and
against any taxes, additions to taxes, penalties, interest, fees, or
other expenses, if any, incurred by EDS as a result of, or
attributable to (i) Anacomp's failure to verify taxability of a
purchase, or (ii) Anacomp's failure to correctly calculate or remit
taxes in a timely manner.
(c) Upon written notification by EDS and subsequent verification by
Anacomp, Anacomp shall reimburse or credit, as applicable, EDS in a
timely manner, for any and all taxes erroneously paid by EDS to
Anacomp.
(d) Anacomp shall provide EDS with the list of states and their respective
registration numbers where Anacomp is qualified and registered to
collect sales/use taxes in all of the taxing jurisdictions within that
state. If such written notification is not received by EDS from
Anacomp, then EDS shall remit the appropriate tax directly to the
taxing authority. Anacomp shall promptly notify EDS of any additional
jurisdictions to which Anacomp may qualify and register to collect
sales/use taxes.
ARTICLE VIII. TERMINATION
8.1 Termination for Cause. Except as provided below by the section of this
Agreement titled "Termination for Non-Payment," in the event that either
party materially or repeatedly defaults in the performance of any of its
duties or obligations set forth in this Agreement, and such default is not
substantially cured within thirty (30) days after written notice is given
to the defaulting party specifying the default, then the party not in
default may, by giving written notice thereof to the defaulting party,
terminate the applicable License or Purchase Order relating to such default
as of a date specified in such notice of termination.
8.2 Termination for Insolvency or Bankruptcy. Either party may immediately
terminate this Agreement and any Purchase Order by giving written notice to
the other party in the event of (i) the liquidation or insolvency of the
other party, (ii) the appointment of a receiver or similar officer for the
other party, (iii) an assignment by the other party for the benefit of all
or substantially all of its creditors, (iv) entry by the other party into
an agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, or (v) the filing of a meritorious
petition in bankruptcy by or against the other party under any bankruptcy
or debtors' law for its relief or reorganization.
8.3 Termination for Non-payment. Anacomp may terminate a Purchase Order, or any
portion thereof, if EDS fails to pay when due any undisputed amounts due
pursuant to such Purchase Order and such failure continues for a period of
thirty (30) days after the last day payment is due, so long as Anacomp
gives EDS written notice of the expiration date of the aforementioned
thirty (30) day period at least thirty (30) days prior to the expiration
date.
8.4 Termination of Software License. EDS may terminate any License for any
reason by providing written notice to Anacomp. If EDS elects to so
terminate a License, EDS shall return to Anacomp or, at EDS' option,
destroy, all copies of the Licensed Software and Documentation in EDS'
possession which are the subject of the terminated License, except as may
be necessary for archival purposes. In such event, Anacomp shall refund to
EDS a prorated amount of any prepaid charges for support Services for the
Licensed Software.
8.5 Rights Upon Termination. Unless specifically terminated as set forth in
this Article, all Licenses (and EDS' right to use the Licensed Software in
accordance with such Licenses) and Purchase Orders which require
performance or extend beyond the term of this Agreement shall, at EDS'
option, be so performed and extended and shall continue to be subject to
the terms and conditions of this Agreement.
ARTICLE IX. MISCELLANEOUS
9.1 Binding Nature, Assignment, and Subcontracting. This Agreement shall be
binding on the parties and their respective successors in interest and
assigns, but neither party shall have the power to assign this Agreement
without the prior written consent of of the other party, which consent
shall not be unreasonably withheld. If Anacomp subcontracts or delegates
any of its duties or obligations of performance in this Agreement or in a
Purchase Order to any third party, Anacomp shall remain fully responsible
for complete performance of all of Anacomp's obligations set forth in this
Agreement or in such Purchase Order and for any such third party's
compliance with the non-disclosure and confidentiality provisions set forth
in this Agreement.
9.2 Counterparts. This Agreement may be executed in several counterparts, all
of which taken together shall constitute one single agreement between the
parties.
9.3 Headings. The Article and Section headings used in this Agreement are for
reference and convenience only and shall not enter into the interpretation
hereof.
9.4 Authorized Agency. From time to time and at any time, EDS may assume
operational responsibility for products acquired directly or indirectly
from Anacomp by third parties which become customers or Affiliates, or
which are acquired by EDS, after the Effective Date.
(a) With respect to such customers, and immediately upon execution of a
contract between EDS and a customer, the products acquired from
Anacomp by such customer shall be governed by the terms and conditions
of this Agreement and EDS may use such products in accordance with
this Agreement at no additional charge to EDS or its customer,
provided, however, that any software obtained from Anacomp by such
customer may only be used by EDS on behalf of that customer. With
respect to each such customer, Anacomp, EDS and the customer shall
execute an access agreement authorizing EDS' use of the products. Such
access agreement shall be in a form substantially similar to the Third
Party System Access Agreement attached to this Agreement as Exhibit D.
(b) With respect to any such Affiliate, and upon Anacomp's receipt of
written notice from EDS and such Affiliate, the license or other
agreement governing the use and support of such products shall
automatically be deemed to have been assigned to EDS, provided,
however, that such assigned license or other agreement shall be
superseded by, and the use and support of the products shall be
governed by, the terms and conditions of this Agreement.
(c) With respect to any third party with which EDS either (i) buys,
leases, or otherwise acquires all or a substantial part of the assets
or business of such third party, or (ii) consolidates with or merges
with said third party, the license or other agreement governing the
use and support of such products shall automatically be deemed to have
been assigned to EDS. At that time, EDS may supersede such assigned
license or other agreement with the terms and conditions of this
Agreement, in which case the use and support of the products shall be
governed by the terms and conditions of this Agreement, or EDS may
elect to have the assigned license or other agreement continue to
govern the use of such products.
9.5 Relationship of Parties. Anacomp is performing pursuant to this Agreement
only as an independent contractor. Anacomp has the sole obligation to
supervise, manage, contract, direct, procure, perform or cause to be
performed its obligations set forth in this Agreement, except as otherwise
agreed upon by the parties. Nothing set forth in this Agreement shall be
construed to create the relationship of principal and agent between Anacomp
and EDS. Anacomp shall not act or attempt to act or represent itself,
directly or by implication, as an agent of EDS or Affiliates or in any
manner assume or create, or attempt to assume or create, any obligation on
behalf of, or in the name of, EDS or Affiliates.
9.6 Confidentiality. Anacomp acknowledges that in the course of performance of
its obligations pursuant to this Agreement, Anacomp may obtain confidential
and/or proprietary information of EDS or Affiliates or customers.
"Confidential Information" includes: information relating to development
plans, costs, finances, marketing plans, equipment configurations, data,
access or security codes or procedures utilized or acquired, business
opportunities, names of customers, research, and development; the terms,
conditions and existence of this Agreement; any information designated as
confidential in writing or identified as confidential at the time of
disclosure if such disclosure is confirmed within thirty (30) days; and any
copies of the prior categories or excerpts included in other materials
created by the recipient party. Anacomp hereby agrees that all Confidential
Information communicated to it by EDS, Affiliates, or customers, whether
before or after the Effective Date, shall be and was received in strict
confidence, shall be used only for purposes of this Agreement, and shall
not be disclosed by Anacomp, its agents or employees without the prior
written consent of EDS. This provision shall not apply to Confidential
Information which is (i) already known by Anacomp without an obligation of
confidentiality, (ii) publicly known or becomes publicly known through no
unauthorized act of Anacomp, (iii) rightfully received from a third party
(other than an EDS customer or an Affiliate) without obligation of
confidentiality, (iv) disclosed without similar restrictions by EDS to a
third party (other than an EDS customer or an Affiliate) , (v) approved by
EDS for disclosure, or (vi) required to be disclosed pursuant to a
requirement of a governmental agency or law so long as Anacomp provides EDS
with timely prior written notice of such requirement. Except with respect
to Licensed Software, which shall be governed by the section of this
Agreement titled "Non-Disclosure," information received by EDS from Anacomp
shall only be considered proprietary and/or confidential after a separate
agreement in the form of Exhibit E, attached hereto, has been executed by a
duly authorized representative of each party for the specific purpose of
disclosing such information. The provisions of this Section shall survive
the term or termination of this Agreement for any reason.
9.7 Media Releases. Except for any announcement intended solely for internal
distribution by Anacomp or any disclosure required by legal, accounting, or
regulatory requirements beyond the reasonable control of Anacomp, all media
releases, public announcements, or public disclosures (including, but not
limited to, promotional or marketing material) by Anacomp or its employees
or agents relating to this Agreement or its subject matter, or including
the name, trade name, trade xxxx, or symbol of EDS or any Affiliate, shall
be coordinated with and approved in writing by EDS prior to the release
thereof. Anacomp shall not represent directly or indirectly that any
Product or Service provided by Anacomp to EDS has been approved or endorsed
by EDS or include the name, trade name, trade xxxx, or symbol or EDS or any
Affiliate on a list of Anacomp's customers without EDS' express written
consent.
9.8 Dispute Resolution. In the event of any disagreement regarding performance
under or interpretation of this Agreement and prior to the commencement of
any formal proceedings, the parties shall continue performance as set forth
in this Agreement and shall attempt in good faith to reach a negotiated
resolution by designating a representative of appropriate authority to
resolve the dispute.
9.9 Electronic Communications. If Anacomp and EDS mutually agree, business
communications between the parties, including, but not limited to, purchase
orders, invoices, and payment may be submitted electronically. In such
case, the parties shall mutually agree in writing upon supplemental terms
and conditions, including technical standards, for the electronic exchange
of such items.
9.10 Proposals and Special Projects. EDS may request a written proposal, quote,
or bid from Anacomp for the provision of Products and/or Services for a
specific EDS project which may be governed by separately negotiated terms
and conditions. In such event, any Products and Services obtained for such
project shall be deemed for purposes of calculating accumulated purchases
and any discounts set forth in this Agreement, to have been obtained
pursuant to this Agreement.
9.11 Governmental Customers. If approved in advance by Anacomp on a case-by-case
basis, this Agreement shall apply to the acquisition of Products or
Services for use in or in support of the performance of, or resale under, a
contract with a federal, state, county, or local governmental entity (a
"Governmental Customer"). Anacomp and EDS may negotiate in good faith a
supplemental agreement incorporating required flow-down provisions or other
provisions relating to, applicable to, or required by such Governmental
Customer or the proposed contract between EDS and such Governmental
Customer, all of which flow-down provisions EDS will provide in advance to
Anacomp. EDS acknowledges that Anacomp as a matter of business practice
will be unable to accept many of the flow-down provisions and may choose to
decline the provision of Products and Services for such governmental
agencies that require them. All Products and Services obtained pursuant to
this Section shall be deemed for purposes of calculating accumulated
purchases and any discounts set forth in this Agreement, to have been
obtained pursuant to this Agreement.
9.12 International Business. This Agreement shall apply to the acquisition of
Products and Services for use in or in support of the performance or resale
of Products and Services in countries outside the United States and its
territories. Anacomp and EDS and/or their respective agents, distributors,
or affiliates authorized to conduct business in such countries may
negotiate in good faith supplemental agreements incorporating further terms
and conditions required by local law. All Products and Services obtained
pursuant to this Section shall be deemed for purposes of calculating
accumulated purchases and any discounts set forth in this Agreement, to
have been obtained pursuant to this Agreement.
9.13 Compliance with Laws. In the performance of Services or the provision of
Products pursuant to this Agreement, Anacomp shall comply with the
requirements of all applicable laws, ordinances, and regulations of the
United States or any state, country, or other governmental entity. In
particular, Anacomp agrees to comply with Executive Order No. 11246, as
amended by Executive Order No. 11375, the Vietnam Era Veterans Readjustment
Assistance Act of 1974, the Rehabilitation Act of 1973, the Immigration
Reform and Control Act of 1986, and the Americans With Disabilities Act.
This Section incorporates by reference all provisions required by such
laws, orders, rules, regulations, and ordinances. Anacomp shall indemnify,
defend, and hold EDS harmless from and against any and all claims, actions,
or damages arising from or caused by Anacomp's failure to comply with the
foregoing.
9.14 Labor. Anacomp shall reasonably comply with any labor jurisdictions
applicable to Anacomp's performance pursuant to this Agreement and shall
reasonably cooperate with EDS in resolving any disputes resulting from any
jurisdictional or labor claims or stoppages. Upon request by Anacomp, EDS
shall provide to Anacomp clarification and guidelines regarding
relationships with labor and Anacomp's responsibilities with respect
thereto.
9.15 Export. Neither party shall export any Products or information protected
hereunder by an obligation of confidentiality from the United States,
either directly or indirectly, without first obtaining a license or
clearance as required from the U.S. Department of Commerce or other agency
or department of the United States Government.
9.16 Notices. Wherever one party is required or permitted to give notice to the
other pursuant to this Agreement, such notice shall be deemed given when
delivered in hand, when mailed by registered or certified mail, return
receipt requested, postage prepaid, or when sent by a third party courier
service where receipt is verified by the receiving party's acknowledgment,
and addressed as follows:
In the case of EDS:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attn: Manager, Contracts Administration
In the case of Anacomp:
Anacomp, Inc.
0000 Xxxxxx Xx. XX
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Corporate Counsel
Copy to:
Anacomp, Inc.
00000 Xxxxxxxxxxx Xxxxxx X-0000
Xxxxx, XX 00000
Attn: Vice-President of Business
Development
Either party may from time to time change its address for notification purposes
by giving the other party written notice of the new address and the date upon
which it will become effective; first class, postage prepaid, mail shall be
acceptable for provision of change of address notices.
9.17 Force Majeure. The term "Force Majeure" shall be defined to include fires
or other casualties or accidents, acts of God, severe weather conditions,
strikes or labor disputes, war or other violence, or any law, order,
proclamation, regulation, ordinance, demand, or requirement of any
governmental agency.
(a) A party whose performance is prevented, restricted, or interfered with
by reason of a Force Majeure condition shall be excused from such
performance to the extent of such Force Majeure condition so long as
such party provides the other party with prompt written notice
describing the Force Majeure condition and takes all reasonable steps
to avoid or remove such causes of nonperformance and immediately
continues performance whenever and to the extent such causes are
removed.
(b) If, due to a Force Majeure condition, the scheduled time of delivery
or performance is or will be delayed for more than thirty (30) days
after the scheduled date, the party not relying upon the Force Majeure
condition may terminate, without liability to the other party, the
Purchase Order or any portion thereof covering the delayed Products or
Services. If delayed Products are intended to be a part of a
Anacomp-provided System for which some Products have been delivered,
then EDS may terminate without liability the Purchase Order relating
to such entire System. Anacomp shall remove delivered Products from
EDS' premise at no charge to EDS and shall refund any amounts paid by
EDS, less reasonable rental for past use.
(c) If a Force Majeure condition or other delay by Anacomp causes EDS to
terminate its business relationship with a third party for whom
delayed Products were ordered and EDS has no alternative use for the
Products after using reasonable efforts to relocate or otherwise
utilize the Products, then EDS may terminate the applicable Purchase
Order and Anacomp shall refund to EDS all amounts paid thereunder.
9.18 Severability. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable, or void, then
both parties shall be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it legal and enforceable while preserving its intent. If
that is not possible, another provision that is legal and enforceable and
achieves the same objective shall be substituted. If the remainder of this
Agreement is not affected by such declaration or finding and is capable of
substantial performance, then the remainder shall be enforced to the extent
permitted by law.
9.19 Waiver. Any waiver of this Agreement or of any covenant, condition, or
agreement to be performed by a party under this Agreement shall (i) only be
valid if the waiver is in writing and signed by an authorized
representative of the party against which such waiver is sought to be
enforced, and (ii) apply only to the specific covenant, condition or
agreement to be performed, the specific instance or specific breach thereof
and not to any other instance or breach thereof or subsequent instance or
breach.
9.20 Remedies. All remedies set forth in this Agreement, or available by law or
equity shall be cumulative and not alternative, and may be enforced
concurrently or from time to time.
9.21 Survival of Terms. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or obligations
set forth in this Agreement which (i) the parties have expressly agreed
shall survive any such termination or expiration, or (ii) remain to be
performed or by their nature would be intended to be applicable following
any such termination or expiration.
9.22 Nonexclusive Market and Purchase Rights. It is expressly understood and
agreed that Anacomp is EDS' first source and primary provider of
micrographics Products and Services. However, this Agreement does not grant
to Anacomp an exclusive right to provide to EDS any or all of the Products
and Services and shall not prevent EDS from developing or acquiring from
other suppliers products or services similar to the Products and Services.
Nevertheless, EDS management will participate in a formal communication and
Implementation Plan in which EDS employees will be provided guidelines and
direction related to the acquisition of micrographics Products and Services
from Anacomp. Anacomp agrees that acquisitions by EDS pursuant to this
Agreement shall neither restrict the right of EDS to cease acquiring nor
require EDS to continue any level of such acquisitions. Estimates or
forecasts furnished by EDS to Anacomp prior to or during the term of this
Agreement shall not constitute commitments.
9.23 GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 UNITED
NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. RATHER
THESE RIGHTS AND OBLIGATIONS SHALL BE GOVERNED BY THE LAWS, OTHER THAN
CHOICE OF LAW RULES, OF THE STATE OF TEXAS.
9.24 Entire Agreement. This Agreement constitutes the entire and exclusive
statement of the agreement between the parties with respect to its subject
matter and there are no oral or written representations, understandings or
agreements relating to this Agreement which are not fully expressed in the
Agreement. This Agreement shall not be amended except by a written
agreement signed by both parties. All exhibits, documents, and schedules
referenced in this Agreement or attached to this Agreement, and each
Purchase Order are an integral part of this Agreement. In the event of any
conflict between the terms and conditions of this Agreement and any such
exhibits, documents, or schedules, the terms of this Agreement shall be
controlling unless otherwise stated or agreed. In the event of a conflict
between the terms and conditions of this Agreement and a Purchase Order
issued in accordance with Article II, the Purchase Order shall be
controlling with respect to those transactions covered by that Purchase
Order. Any other terms or conditions included in any shrink-wrap license
agreements, quotes, invoices, acknowledgments, bills of lading, or other
forms utilized or exchanged by the parties shall not be incorporated in
this Agreement or be binding upon the parties unless the parties expressly
agree in writing or unless otherwise provided for in this Agreement. The
parties agree that as of the Effective Date, this Agreement supersedes in
all respects the Prior Agreements, such Prior Agreements are terminated
(except any provisions that need to survive and any claims which arose
under the Prior Agreements shall survive such termination) and any and all
products and services obtained under such Prior Agreements be deemed to
have been obtained by EDS under the terms and conditions of this Agreement
IN WITNESS WHEREOF, Anacomp and EDS acknowledge that each of the provisions
of this Agreement were expressly agreed to and have each caused this Agreement
to be signed and delivered by its duly authorized officer or representative as
of the Effective Date.
ELECTRONIC DATA SYSTEMS CORPORATION ANACOMP, INC.
By: /s/ X. X. Xxxxxxx By: /s/T. Xxxxx Xxxxxxx
Printed Name: X. X. Xxxxxxx Printed Name: T. Xxxxx Xxxxxxx
Title: Corp VP Title: President, US Group
Date: 8/22/96 Date: Aug. 22, 1996
Fed. Tax ID #:
