Equifax / IBM Confidential
EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406 OF THE SECURITIES ACT OF 1933.
* * * INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
MASTER AGREEMENT
FOR
OPERATIONS SUPPORT SERVICES
This Master Agreement is entered into as of January 1, 1998 (the
"EFFECTIVE DATE"), between
1. International Business Machines Corporation, a New York corporation
("IBM"),
AND
2. Equifax Inc., a Georgia corporation ("EQUIFAX"), and constitutes a
complete restatement and further amendment of that certain Agreement for Systems
Operations Services, dated April 20, 1993, as amended, between IBM (successor in
interest to Integrated Systems Solutions Corporation ("ISSC")) and Equifax (the
"1993 AGREEMENT").
The Parties agree to the terms and conditions set forth in this Master
Agreement (including the forms of Exhibits and Schedules referenced in this
Master Agreement), and in each Transaction Document (including the Supplement
and Schedules referenced in each Transaction Document) executed by the Parties
referencing this Master Agreement. Each Transaction Document is incorporated
into this Master Agreement, and the several Transaction Documents and this
Master Agreement are herein collectively referred to as the "Agreement".
Signed for and on behalf of IBM:
INTERNATIONAL BUSINESS MACHINES CORPORATION
Signature: ___________________________________
Title: ________________________________________
Signed for and on behalf of Equifax:
EQUIFAX INC.
Signature: ___________________________________
Title: ________________________________________
Equifax / IBM Confidential
TABLE OF CONTENTS
PAGE
1. PURPOSE/STRUCTURE/TERM OF AGREEMENT......................................................................1
1.1 Purpose of Agreement............................................................................1
1.2 Structure of Agreement..........................................................................2
1.3 Term of Agreement...............................................................................3
1.4 Extension of Services...........................................................................3
2. DEFINITIONS..............................................................................................3
3. THE SERVICES............................................................................................15
3.1 Obligation to Provide Services.................................................................15
3.2 Performance....................................................................................15
3.3 Disaster Recovery Services.....................................................................16
3.4 Audits.........................................................................................16
3.5 Facilities and Data Center.....................................................................17
3.6 Security.......................................................................................17
3.7 Technology Refresh.............................................................................18
3.8 Software Licenses..............................................................................18
3.9 Software Currency..............................................................................19
3.10 Viruses........................................................................................20
3.11 Software - Substitutions and Additions.........................................................20
3.12 New Services...................................................................................21
3.13 Affiliates.....................................................................................21
4. WARRANTIES/REPRESENTATIONS/COVENANTS....................................................................22
4.1 Work Standards.................................................................................22
4.2 Noninfringement................................................................................22
4.3 Disabling Code.................................................................................22
4.4 Authorization and Enforceability...............................................................22
4.5 Disclaimer.....................................................................................22
4.6 Regulatory Proceedings and Compliance with Laws................................................23
4.7 Year 2000 Warranty.............................................................................23
4.8 Covenant of Cooperation and Good Faith.........................................................24
5. TRANSITION..............................................................................................24
5.1 Transition Plan................................................................................24
5.2 Affected Employees.............................................................................24
5.3 Resources and Facilities.......................................................................25
6. INTEGRATED PLANNING TEAM/CHANGE CONTROL PROCESS.........................................................25
6.1 Equifax/IBM Integrated Planning Team...........................................................25
6.2 Reports/Projections/Plans......................................................................26
6.3 Change Control Process.........................................................................27
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7. SERVICES STAFFING/MANAGEMENT/ADMINISTRATION.............................................................28
7.1 Project Executives.............................................................................28
7.2 Replacement of Personnel.......................................................................28
7.3 Retention of Experienced Personnel.............................................................29
7.4 Efficient Use of Resources.....................................................................29
8. RELATIONSHIP PROTOCOLS..................................................................................29
8.1 Evolving Nature of Relationship................................................................29
8.2 Required Consents..............................................................................30
8.3 Appointment as Attorney In Fact................................................................31
8.4 Conflicts of Interests.........................................................................32
8.5 Alternate Providers............................................................................33
8.6 Use of Subcontractors..........................................................................34
8.7 Equifax Approvals and Notification.............................................................34
9. CHARGES/NEW SERVICES/INVOICES/PAYMENTS..................................................................35
9.1 Disbursements..................................................................................35
9.2 Monthly Charge.................................................................................35
9.3 Additional Charges.............................................................................35
9.4 Cost of Living Adjustment......................................................................36
9.5 Taxes..........................................................................................36
9.6 New Services...................................................................................36
9.7 Invoice Payment................................................................................37
9.8 Benchmark Study................................................................................37
9.9 Service Credits................................................................................38
9.10 Other Credits..................................................................................38
9.11 Commercially Valued Customer...................................................................39
9.12 Disputed Charges/Credits.......................................................................39
9.13 Reduction of Equifax Work......................................................................39
10. INTELLECTUAL PROPERTY RIGHTS............................................................................40
10.1 Ownership of Materials.........................................................................40
10.2 Obligations Regarding Materials................................................................41
11. CONFIDENTIALITY/DATA SECURITY...........................................................................41
11.1 Confidential Information.......................................................................41
11.2 Obligations....................................................................................42
11.3 Exclusions.....................................................................................43
11.4 Loss of Company Information....................................................................43
11.5 Limitation.....................................................................................43
11.6 Data...........................................................................................43
12. TERMINATION.............................................................................................44
12.1 Termination By Equifax.........................................................................44
12.2 Termination by IBM.............................................................................44
12.3 Termination Charges............................................................................44
12.4 [Reserved].....................................................................................45
12.5 Services Transfer Assistance...................................................................45
12.6 Other Rights Upon Termination..................................................................46
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12.7 Effect of Termination/Survival of Selected Provisions..........................................47
13. LIABILITY...............................................................................................48
13.1 Liability Caps.................................................................................48
13.2 Exclusions.....................................................................................48
13.3 Direct Damages and Cover Charges...............................................................48
13.4 Dependencies...................................................................................49
13.5 Remedies.......................................................................................49
14. INDEMNITIES.............................................................................................49
14.1 Indemnity by IBM...............................................................................49
14.2 Indemnity by Equifax...........................................................................51
14.3 Employment Actions.............................................................................52
14.4 Exclusive Remedy...............................................................................52
14.5 Indemnification Procedures.....................................................................53
15. INSURANCE AND RISK OF LOSS..............................................................................53
15.1 IBM Insurance..................................................................................53
15.2 Risk of Property Loss..........................................................................54
15.3 Mutual Waiver of Subrogation...................................................................54
16. DISPUTE RESOLUTION......................................................................................55
16.1 Dispute Resolution Procedures..................................................................55
16.2 Continued Performance..........................................................................56
17. GENERAL.................................................................................................56
17.1 Relationship of Parties........................................................................56
17.2 Entire Agreement, Updates, Amendments and Modifications........................................57
17.3 Force Majeure..................................................................................57
17.4 Nonperformance.................................................................................58
17.5 Waiver.........................................................................................58
17.6 Severability...................................................................................58
17.7 Counterparts...................................................................................58
17.8 Governing Law..................................................................................58
17.9 Binding Nature and Assignment..................................................................58
17.10 Notices........................................................................................59
17.11 No Third Party Beneficiaries...................................................................60
17.12 Other Documents................................................................................61
17.13 Consents and Approvals.........................................................................61
17.14 Headings.......................................................................................61
17.15 Remarketing....................................................................................61
17.16 Commencement of Actions........................................................................62
17.17 IBM Logo Products Warranties...................................................................63
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Equifax / IBM Confidential
EXHIBITS
EXHIBIT
1 Master Agreement Structure Diagram
2 Transaction Document Structure Diagram
3 IPT Charter and Operating Procedures Guidelines
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Equifax / IBM Confidential
ATTACHMENTS
FORM OF TRANSACTION DOCUMENT
FORM OF SUPPLEMENT
SCHEDULE TITLE
A "Applications Software"
(Configured for each Tower and TD) - "Applications Software - Equifax"
- "Applications Software - IBM"
B "Systems Software"
(Configured for each Tower and TD) - "Systems Software - Equifax"
- "Systems Software - IBM"
C "Equifax Provided Hardware"
(Configured for each Tower and TD)
D "IBM Machines"
(Configured for each Tower and TD)
E The "Services, Measures of Utilization,
(Configured for each Tower and TD) and Operational and Financial
Responsibilities"
F Leases, Licenses and Other Contracts
(Configured for each Tower and TD)
G "Disaster Recovery Services"
(Configured for each Tower and TD)
H "Transition Plan"
(Configured for each Tower and TD)
I "Network Locations"
(Network Tower Only)
J "Charging Methodologies"
(Standard Form for All Towers)
K "Applications Installation Standards"
Configured for each Tower and TD) (Operating Environment IT Standards)
L "Security Procedures and
(Configured for each Tower and TD) Responsibilities - Data and Physical"
M "Help Desk Services"
(Configured for each Tower and TD)
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Equifax / IBM Confidential
N "Projects"
(Configured for each Tower and TD)
O "Affected Employees"
(Standard Form for All Towers)
P Maintenance Terms
(MicroLAN Tower Only)
Q Outstanding Employee Claims
(Standard Form for All Towers)
R "Services Transition Assistance"
(Standard Form for All Towers)
S "Service Levels and Service Credits"
(Configured for each Tower and TD)
T "Equifax Provided Office Furnishings"
(Configured for each Tower and TD)
U "Xxxx of Sale"
(Standard for all Towers)
V "Key Employees"
(Standard for all Towers)
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Equifax / IBM Confidential
1. PURPOSE/STRUCTURE/TERM OF AGREEMENT
1.1 PURPOSE OF AGREEMENT
a) IBM is a provider of a broad range of operations support
services for on-line information services companies including,
without limitation, information technology, information management,
communications and related services, and is experienced and skilled
in the administration, management, provision and performance of such
services and the business functions, responsibilities and tasks
attendant with such services. IBM desires (i) to continue to provide
certain of these operations support services to the Equifax Group
for the Equifax Business, and to continue to perform and assume the
functions, responsibilities and tasks attendant with such operations
support services as currently performed by IBM for the Equifax
Business and the Equifax Group; and (ii) to provide additional
quantities and elements of these and other operations support
services to the Equifax Group for the Equifax Business and to
perform and assume the functions, responsibilities and tasks
attendant with such operations support services as currently
performed by the Equifax Group or as envisioned to be required for
the Equifax Business and the Equifax Group, all as specifically set
forth in this Agreement. Equifax desires that such operations
support services for the Equifax Business and the Equifax Group and
the attendant functions, responsibilities and tasks, be performed
and assumed by IBM. The Agreement documents the terms and conditions
under which (i) the Equifax Group will obtain such operations
support services from IBM and (ii) IBM will administer, manage,
support, provide and perform such services and the functions,
responsibilities and tasks attendant with such services, for the
Equifax Group.
b) The Parties have identified goals and objectives that they intend
that IBM's performance pursuant to the Agreement will assist the
Parties to achieve. These goals and objectives include the
following: (i) engaging IBM (A) under a master agreement to provide,
and/or cause to be provided through its Affiliates and other
subcontractors, certain operations support services to Equifax and
certain of its Affiliates on a worldwide basis as the Equifax
Business evolves over the Term; (B) to efficiently and timely
provide such operations support services to, and perform and
assume the functions, responsibilities and tasks attendant with
such support services for, the Equifax Business and the Equifax
Group at levels appropriate to fulfill the requirements of the
Equifax Business and the Equifax Group; and (C) to proactively
define and propose cost effective solutions to improve the
efficiency and functionality of the information management systems
operations of the Equifax Group in support of the Equifax Business;
(ii) securing favorable rates for current and additional resource
consumption and for reductions in resource consumption and
increasing flexibility regarding resources chargeable and available
to the Equifax Group and committed by IBM to the Equifax Group;
(iii) taking advantage of new and/or proven business processes and
technologies to improve performance, efficiency and cost to
performance ratios experienced by the Equifax Group and to enable
the Equifax Group to respond to market requirements for the Equifax
Business; (iv) enhancing the current functionality of the Equifax
Group's processes, systems and service levels covered under this
Agreement; (v) minimizing any potential operating and financial
risks to the Equifax Group; (vi) ensuring the efficiency, stability
and security of existing and future processes, systems and service
levels; (vii) evolving the support services, processes, systems and
service levels to meet the dynamic requirements of the Equifax Group
and Equifax Business; and (viii) providing an opportunity to
transition the Services back to the Equifax Group or to another
service provider from IBM with minimal disruption.
c) IBM recognizes that the Equifax Group expects to be treated as a
valued and commercially favored customer and agrees that the
definition of customer satisfaction goes beyond IBM's performance
against established service levels and requires that IBM exhibit a
customer service attitude focused on assisting Equifax where
commercially reasonable to attain the goals and objectives described
in SECTION 1.1(B), including, without limitation, reducing the
operations support costs of and improving service levels to the
Equifax Group and the customers of the Equifax Group.
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Equifax / IBM Confidential
d) The provisions of this SECTION 1.1 are intended to be a statement of
the purpose of the Agreement and are not intended to alter the plain
meaning of the terms and conditions of the Agreement or to require
either Party to undertake performance obligations beyond those set
forth in the Agreement. To the extent that the terms and conditions
of the Agreement are unclear or ambiguous, such terms and conditions
are to be interpreted and construed consistent with the purposes set
forth in this Section 1.1.
1.2 STRUCTURE OF AGREEMENT
a) The Services will be grouped around the following technology
platforms and clusters of services: Mainframe, Midrange, MicroLAN
and Network. Each such technology platform/cluster of services is
herein referred to generically as a "Tower".
b) The Agreement is comprised of (i) the provisions set forth in this
Master Agreement and the forms of the Exhibits and Schedules
referenced herein as illustrated in EXHIBIT 1; and (ii) each
Transaction Document including the Supplement and Schedules
referenced in each Transaction Document as illustrated in EXHIBIT 2.
c) The Services will be defined on a per Tower basis and all Towers
located at one (1) site, or to be migrated to one (1) site, will be
the subject of a single Transaction Document in the form of Exhibit
3. Each Transaction Document will be comprised of a Supplement in
the form of EXHIBIT 4 and Schedules in the forms described in
EXHIBIT 1, configured as noted on EXHIBIT 2. The Transaction
Documents will collectively define the Services provided to the
Equifax Group across multiple Towers at multiple locations in one
(1) or more countries and the terms and conditions upon which the
Services will be provided.
d) Transaction Documents will be executed by the Parties. The terms of
Transaction Documents will be governed by the terms of the Master
Agreement unless the Parties specifically note the deviations from
the terms of the Master Agreement for the purposes of such
Transaction Document in the Section of the Transaction Document
entitled "Deviations From Terms of Master Agreement".
e) Each Transaction Document will be submitted to and approved by the
Integrated Planning Team prior to execution by the Parties. The
approval will be evidenced by a representative of each of the
Parties who is also a member of the Integrated Planning Team, noting
and attesting to the approval of the Integrated Planning Team on a
cover sheet to such Transaction Document.
f) IBM and Equifax will be the primary contracting parties under the
Agreement and under each Transaction Document. Each of the Parties
may assign a Transaction Document to one of its Affiliates for
performance, but such assignment shall not relieve or release such
Party from the full, timely and proper performance of its duties and
obligations under such Transaction Document. Moreover, as a
condition precedent to such assignment, the Affiliate shall accept
such assignment and agree to assume the full, timely and proper
performance of the duties and obligations of the Party assigning
such Transaction Document to such Affiliate in a written document in
form and content satisfactory to the other Party.
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1.3 TERM OF AGREEMENT
The term of the Agreement will begin as of the Effective Date and will terminate
upon the later to occur of (a) the expiration of the Transaction Document with
the longest term extending past the tenth (10th) anniversary of the Effective
Date, or (b) upon a termination date that is effective not sooner than six (6)
months after the tenth (10th) anniversary of the Effective Date set forth in a
notice by either Party to the other Party (the "Term"), unless earlier
terminated in accordance with the provisions of the Agreement.
1.4 EXTENSION OF SERVICES
Equifax may request and IBM will once extend the provision of the Services
pursuant to any Transaction Document or the Services Transfer Assistance
pursuant to any Transaction Document for up to one (1) year ("Extension Period")
upon not less than sixty (60) days prior written notice before the scheduled
termination or expiration of the provision of such Services or Services Transfer
Assistance, or if applicable, notice given within thirty (30) days after the
effective date of a notice of termination for any reason by either Party, other
than Termination for Convenience. However, in the event Equifax is in default
with respect to the payment of any amounts under a Transaction Document at the
start of the Extension Period, IBM will extend the provision of such Services or
Services Transfer Assistance as described in this SECTION 1.4, only if Equifax
cures such default and prepays three (3) months of the Monthly Charges allocable
to such Transaction Document during such Extension Period and a reasonable
projection of other charges due under such Transaction Document for such three
(3) calendar months period. Equifax will be credited any unused portions of such
prepayment for the remaining part of such Extension Period covered by such
unused portion of such prepayment.
2. DEFINITIONS
In the Agreement (including each Transaction Document and the Supplement and
Schedules thereto), the following terms will have the following meanings:
Action has the meaning given in SECTION 17.8.
AD/M means both Applications Development and
Applications Maintenance.
AD/M Projects means the Applications Development and
Applications Maintenance performed during
the Term and the production cutover date for
the corresponding Scheduled Projects and/or
each New Service added during the Term
requiring the performance of Applications
Development and Applications Maintenance by
IBM.
Affected Employees has the meaning given in SECTION 5.2.
Affiliates means, with respect to a Party, any entity
at any time Controlling, Controlled by or
under common Control with such Party.
Agreement means this Master Agreement for Operations
Support Services Agreement and the forms of
Exhibits and Schedules referenced herein and
each Transaction Document referencing the
Master Agreement for Operations Support
Services and the Supplement and Schedules
referenced therein.
Annual Service Charge or ASC has the meaning given in the Supplement and
Schedules to each Transaction Document for
such Transaction Document.
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Applications Development means the programming of any new
applications software, and changes or
enhancements to existing Applications
Software. Programming effort shall include
the pre and post development analysis,
planning, design, coding, testing,
installation, provision of a single set of
program and training documentation per
Applications Software program and training
necessary to complete the task.
Applications Development means the pre and post development analysis,
Methodology planning, design, coding,
testing, installation, provision of a single
set of program and training documentation
per Application Software program and training
necessary to complete the task.
Applications Maintenance means defect identification and provision of
fixes, and installation of those fixes and
updates for the Applications Software
provided by the Applications Software
vendors as part of normal maintenance
service for the Applications Software for
which there is no charge by such vendors in
addition to periodic maintenance charges, if
any, and defect identification, provision of
fixes and installation of those fixes and
updates for Applications Software for which
there is no generally commercially available
maintenance support.
Applications Software means those programs and programming,
including all supporting documentation and
media, that perform specific user related
data processing, data management and
telecommunications tasks, including updates,
enhancements, modifications, releases and
Derivative Works thereof. Applications
Software as of the Commencement Date is
listed in SCHEDULE A to each Transaction
Document for such Transaction Document,
which Schedule shall be updated pursuant to
SECTION 8.1 during the Term to reflect the
then-current Applications Software.
Applications Software - means the Applications Software listed on
Equifax SCHEDULE A to each Transaction Document for
such Transaction Document under such
heading, provided or to be provided by
Equifax.
Applications Software - IBM means the Applications Software listed on
SCHEDULE A to each Transaction Document for
such Transaction Document under such
heading, provided or to be provided by IBM.
Authorized User means a person or entity authorized to use
the Services, including without limitation
the System, by Equifax.
Baseline(s) has the meaning given in Schedule J to each
Transaction Document for such Transaction
Document.
Business and Operations has the meaning given in SECTION 6.2(b).
Support Plan
Cable or Cabling means the wires or cables that interconnect
Machines and/or connect a Machine to a
facility connection.
Change Control Process has the meaning given in SECTION 6.3 of the
Agreement.
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Change of Control means the transfer of the Control of a
Party, or a sale of substantially all of the
assets of a Party, from the persons or
persons who hold such Control on the
Effective Date to another person or persons,
but shall not include a transfer of the
Control of a Party to an Affiliate of such
Party.
Change Request has the meaning given in SECTION 6.3.
Claim has the meaning given in SECTION 14.5(a).
Code has the meaning given in SECTION 10.
Commencement Date means the date set forth in each Transaction
Document for the start of the Services
covered by such Transaction Document.
Company Information has the meaning given in SECTION 11.1.
Confidential Information has the meaning given in SECTION 11.1.
Contract Year means each twelve (12) calendar month
period, or portion thereof, beginning
January 1 of each calendar year during the
Term.
Control, Controlling, or means possessing, directly or indirectly, the
Controlled power to direct or cause the direction of the
management and policies of an entity through
ownership of greater than fifty (50%)
percent of the voting securities of such
entity.
Cost of Living Adjustment has the meaning given in SCHEDULE J to each
("COLA") Transaction Document for such Transaction
Document.
CRF or Change Request Form has the meaning given in SECTION 6.3.
Data Center means the data centers from which the
Services are provided located in the
Facilities as set forth in each Transaction
Document.
Data Network means the communication facilities and
components set forth in the Schedules to
each Transaction Document that are used to
transmit voice, image and data signals and
which initially consist of the
communications facilities and components
used by the Equifax Group immediately prior
to the Commencement Date to provide
information communication services to the
Equifax Group, including without limitation,
all Machines, Software, communications
lines, Cabling and Wiring used to connect
and transmit information among the
Facilities and the Network Locations, but
does not include End User Machines.
Derivative Work means a work based on one or more
pre-existing works, including without
limitation, a condensation, transformation,
expansion or adaptation, which would
constitute a copyright infringement if
prepared without authorization of the owner
of the copyright of such pre-existing work.
Develop has the meaning given in SECTION 10.
Direct Damages has the meaning given in SECTION 13.3.
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Direct Damages Caps has the meaning given in SECTION 13.1(b).
Disabling Code means Code which is designed for the purpose
and has the effect of disabling or otherwise
shutting down one or more software programs
or systems and/or hardware or hardware
systems.
Disaster Recovery Center means the location designated by such name
or its equivalent in the Disaster Recovery
plan referenced in SCHEDULE G to each
Transaction Document for such Transaction
Document.
Disaster Recovery Services means the Disaster Recovery services
described in SCHEDULE G to each Transaction
Document for such Transaction Document.
Effective Date means the date set forth on the initial page of
the Master Agreement.
End User Machines means all work stations, terminals,
printers, fax machines, and associated
peripheral equipment used by end users and
described in a Schedule to each Transaction
Document for such Transaction Document,
whether stationary or mobile equipment used
by end users, but does not include the work
stations being used by IBM personnel in
connection with the scheduled Projects or
the Equifax Provided Hardware located in the
Data Center.
Elements of the Services has the meaning given in SECTION 17.15.
Equifax Business means the businesses engaged in by the Equifax
Group.
Equifax Code means Code Developed by IBM and/or its
subcontractors independently or jointly with
the Equifax Group and/or their contractors,
as part of the Services. Equifax Code shall
not include any IBM Derivative Code.
Equifax Direct Damages Cap has the meaning given in SECTION 13.1(b).
Equifax Derivative Code means Developed Code, which constitutes
Derivative Work of software for which the
copyright is owned by the Equifax Group
and/or their contractors.
Equifax Group means individually and collectively
Equifax and its existing and future
Affiliates that are using and/or receiving
any portion of the Services.
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Equifax In-Scope Operations means all functions, responsibilities, tasks
and activities that are described in the
Agreement and each Transaction Document
(including the Supplement and Schedules
thereto) that are to be performed by IBM
under the Agreement, including, without
limitation, those performed for the Equifax
Group by the Affected Employees that are
directly related to information technology
services under each Transaction Document
before they entered the employ of IBM and/or
its Affiliates and subcontractors and those
performed by IBM and/or its Affiliates for
Equifax and/or its Affiliates immediately
prior to the Commencement Date under any
Transaction Document or agreement with IBM
comprised of or directly related to the
information technology services under such
Transaction Document and otherwise within
the scope of the prior Transaction Document
or agreement between Equifax and IBM
pursuant to which such services were
performed unless specifically deleted or
otherwise described (versus not described)
in the new Transaction Document.
Equifax LAN Software has the meaning given in SCHEDULE A to each
Transaction Document for such Transaction
Document.
Equifax Provided Hardware means the computer equipment peripheral
devices, storage media, Cabling,
connectors, the Data Network, the LAN,
telephone equipment and other equipment
(however described) provided from time to
time by the Equifax Group for use by IBM to
perform and deliver the Services and fulfill
its obligations under the Agreement. The
Equifax Provided Hardware as of the
Commencement Date is listed on and/or
referred to in SCHEDULE C to each
Transaction Document for such Transaction
Document, which schedule shall be updated
pursuant to SECTION 8.1 during the Term to
reflect the then-current Equifax Provided
Hardware.
Equifax Provided Office means the desks, chairs, filing cabinets,
Furnishings office cube partitions and other office
furniture (however described) provided
from time to time by the Equifax Group for
use by IBM to perform and deliver the
Services and fulfill its obligations under
the Agreement. The Equifax Provided Office
Furnishings as of the Commencement Date are
listed on and/or referred to in SCHEDULE T
to each Transaction Document for such
Transaction Document, which schedule shall
be updated pursuant to SECTION 8.1 during
the Term to reflect the then-current Equifax
Provided Office Furnishings.
Equifax Server shall have the meaning given in a Schedule to
Configurations each Transaction Document for such Transaction
Document.
Equifax Software means Applications Software-Equifax, Systems
Software-Equifax and Equifax LAN Software.
Equifax Works means literary works of authorship (other
than Code) Developed by IBM and/or its
subcontractors independently or jointly with
the Equifax Group and/or its contractors
under the Agreement, specifically for the
Equifax Group or the Equifax Business or
specifically for the purpose of providing
the Services, including without limitation
user manuals, charts, graphs and other
written documentation, and machine-readable
text and files, but shall not include any
Derivative Works of any works in which the
copyright is owned by IBM, its Affiliates or
subcontractors.
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Equifax/IBM Integrated has the meaning given in SECTION 6.1.
Planning Team
Execution Date has the meaning given in SECTION 8.3(c).
Extension Period has the meaning given in SECTION 1.4
Facilities has the meaning given in a Schedule to each
Transaction Document for such Transaction
Document.
Force Majeure Event has the meaning given in SECTON 17.3(a).
Help Desk means the IBM help desk which is staffed by
IBM to provide support to Equifax as
described in SCHEDULE M to each Transaction
Document for such Transaction Document.
IBM Code means Code Developed by IBM personnel at
IBM's expense and not as part of the
Services, but used to provide the Services,
which code does not constitute a Derivative
Work of any software owned by the Equifax
Group, IBM, or their respective Affiliates
or contractors or subcontractors. IBM Code
shall not include any Equifax Derivative
Code.
IBM Derivative Code means Code Developed under the Agreement,
which constitutes Derivative Works of
software for which the copyright is
owned by IBM, its Affiliates or its
subcontractors.
IBM Direct Damages Cap has the meaning given in Section 13.1(a)(i).
IBM Indemnitees has the meaning given in SECTION 14.2.
IBM Interfaces means Code and/or literary works of
authorship created at IBM's expense, by IBM
personnel and/or its contractors and not as
part of the Services, but used to provide
the Services, and interface or describe and
instruct regarding the interface, between
and among Applications Software and the
Systems Software, which does not constitute
a Derivative Work of any software or
literary works of authorship owned by the
Equifax Group, IBM, or their respective
Affiliates or contractors, including without
limitation, user manuals, charts, graphs and
other written documentation, and
machine-readable text and files.
IBM LAN Software has the meaning given in SCHEDULES A AND B.
IBM Logo Products has the meaning given in SECTION 4.7.
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IBM Machines means the computer equipment, peripheral
devices, storage media, cabling, connectors,
extenders and other equipment (however
described) including without limitation,
modems, routers and termination boxes for
the Network located in the Facilities and
other Equifax Group Sites, including without
limitation Data Center and at the Network
Locations, provided by or through and used
from time to time by IBM to perform and
deliver the Services and fulfill its
obligations under the Agreement. The IBM
Machines as of the Commencement Date are
listed on SCHEDULE D to each Transaction
Document for such Transaction Document,
which schedule shall be updated pursuant to
SECTION 8.1 during the Term to reflect the
then current IBM Machines.
IBM Software means the Applications Software-IBM, Systems
Software-IBM and IBM LAN Software.
IBM Year 2000 Compliance means that the product will, subject to the
or Compliant provisions of Section 4.5(b), when used in
accordance with its associated
documentation, (i) accurately process and
handle date data (including but not limited
to, calculating, comparing and sequencing,
to the extent that the product's
specifications provide for such processing
or handling of date data) within, from, into
and between the twentieth and twenty-first
centuries, and the years 1999 and 2000,
including leap year calculations, to the
extent that all other products used in
combination with such product properly
exchange date data with it, and (ii) will
properly exchange date data with other IBM
Logo Products that are IBM Year 2000
Compliant, provided that such IBM Logo
Products are specified by IBM to operate
together as part of a system.
IBM Works means literary works of authorship (other
than Code) Developed at IBM's expense, by
IBM personnel and/or its contractors and not
specifically for the Equifax Group or the
Equifax Business or not specifically for the
purpose of providing the Services, but used
to provide the Services, including without
limitation user manuals, charts, graphs and
other written documentation and
machine-readable text and files, but shall
not include any Derivative Works of any
works in which the copyright is owned by
Equifax or its Affiliates or subcontractors.
Indemnified Party has the meaning given in SECTION 14.4.
Indemnifying Party has the meaning given in SECTION 14.5(a).
Indemnitee has the meaning given in SECTION 14.1.
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Installations, Moves, Adds "Installation" means the installation of
and Changes or (IMACs) circuits, network hardware and software and
network end-user equipment at any Authorized
User location, including testing to ensure
network connectivity and proper operation.
"Move" means the physical disconnection of
network equipment and services and, in some
cases, the relocation to another site. In most
cases, this activity is coordinated with
outside vendors, such as telephone company
representatives, to ensure that all
necessary components of the network are
properly moved, and if appropriate
re-installed. Recording of assets by decal
and serial number is critical to the
integrity of the move. "Add" means the
process of adding, expanding and possibly
reconfiguring network systems. This may
involve circuits, circuit speeds or network
equipment. In some cases, network software
would be affected. After the process is
complete, testing occurs to ensure that the
final system is fully operational. "Change"
means the process of altering an existing
network system or environment and could
include network software upgrades and system
or technology enhancements. The change could
be implemented by IBM or a third-party
vendor, with testing occurring after the
change to ensure network and systems
integrity.
Integrated Planning Team or means the team composed of the individuals
"IPT" specified in SECTION 6.
Key Employees means those employees agreed by Equifax and
IBM to be key employees pursuant to each
Transaction Document and identified in
SCHEDULE V thereto.
Level One Support has the meaning given in a Schedule to each
Transaction Document for such Transaction
Document.
Level Three Support has the meaning given in a Schedule to each
Transaction Document for such Transaction
Document.
Level Two Support has the meaning given in a Schedule to each
Transaction Document for such Transaction
Document.
Listed Subcontractors has the meaning given in SECTION 8.6(a).
Local Area Network (LAN) means all communications equipment and
components that are used to transmit voice,
image and data signals within a local area
network and which initially consist of the
communications facilities and components in
use by Equifax immediately prior to the
Commencement Date to provide local area
network communications facilities to the
Equifax Group as described in SCHEDULE I to
each Transaction Document for such
Transaction Document, including without
limitation the associated attachments,
peripherals, features, software and
accessories, communications lines and
Cabling, including the wiring systems, at
the locations specified in such Schedule.
Losses means all losses, liabilities, damages,
penalties and claims (including taxes and
all related interest and penalties incurred
directly with respect thereto), and all
related costs, expenses and other charges
(including all reasonable attorneys' fees
and reasonable costs of investigation,
litigation, settlement, judgment, interest
and penalties).
Machines means the IBM Machines and Equifax Provided
Hardware.
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Maintenance Release means those Software fixes and updates
provided by the Software vendors as part of
normal maintenance service for the Software
for which there is no charge by such vendors
in addition to periodic maintenance charges,
if any.
Materials means the Equifax Code, the Equifax
Derivative Code, the Equifax Works, the IBM
Code, the IBM Derivative Code, the IBM Works
and the IBM Interfaces.
Minimum Service Levels has the meaning given in SCHEDULE S to each
Transaction Document for such Transaction
Document.
Monthly Charge has the meaning given in SCHEDULE J to each
Transaction Document for such Transaction
Document.
Network means the Data Network, Local Area Network
and Voice Services.
Network Locations has the meaning given in SCHEDULE I to
each Transaction Document for such
Transaction Document.
Network Vendors means any third parties providing
information communication services to
Equifax which are accessed or will be
accessed through the Network.
New Services has the meaning given in SECTION 3.12.
Notice has the meaning given in SECTION 16.1(b)
Other Products has the meaning given in SECTION 4.5(c).
Parties means IBM and Equifax as detailed on the
initial page of the Agreement.
Party means IBM or Equifax as detailed on the
initial page of the Agreement.
Performance Standards means the service levels and
performance responsibilities under which
the Services will be provided. The
Performance Standards are described in
SCHEDULE S to each Transaction Document for
such Transaction Document.
Performance Value has the meaning given in SECTION 9.8(d).
Poll means to electronically connect the
Facilities to the other Equifax Group sites
to retrieve data, perform downloads/updates
and/or execute remote diagnostics.
Project means the portion of the Services described
in SCHEDULE N to each Transaction Document.
Project Executive has the meaning given in SECTION 7.1.
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Required Consents means any consents or approvals required to
be obtained (a) to allow IBM and its
subcontractors to assume financial and/or
support, operational, management and
administrative responsibility for the
Equifax Software, the Equifax Provided
Hardware and the Equifax Provided Office
Furnishings in connection with the Services;
(b) for the licensing, transfer and/or grant
of the right to the Equifax Group to use the
IBM Software and IBM Machines as
contemplated by the Agreement; and (c) for
the Equifax Group and IBM and its
subcontractors to have access to and use of
the space, equipment, software and/or third
party services provided under the Third
Party Agreements in connection with the
Services as contemplated by the Agreement.
Resource Unit ("RU") has the meaning given in SCHEDULE E to each
Transaction Document for such Transaction
Document.
Service Credits has the meaning set forth in SECTION 9.9
AND SCHEDULE S TO EACH TRANSACTION
DOCUMENT.
Service Employees has the meaning given in SECTION 12.6(g).
Services means the Equifax In-Scope Operations,
including, without limitation, any migration
of the Equifax In-Scope Operations from the
Equifax Group to IBM pursuant to a
Transaction Document.
Services Transfer Assistance has the meaning given in SECTION 12.5.
Similarly Situated Customers means IBM customers with substantially
the same mix and type of processing
applications and systems resources
utilization at similar or lesser volumes.
Software means IBM Software and Equifax Software.
Supplement means the Supplement to each Transaction
Document containing the charges and certain
other necessary information.
System means the Machines, Software and Network
covered under the Agreement and the
operating environment therefor.
Systems Software means those programs and programming
(including all supporting documentation and
media) that perform tasks related to the
functioning of the data processing, and
telecommunication equipment which is used to
operate the Applications Software or
otherwise to support the provision of the
Services by IBM under the Agreement, whether
or not licensed to IBM. Systems Software may
include but is not limited to, database
creation and management software,
application development tools, operating
systems, software utilities, data security
software, data network software,
communications monitors and data base
managers. Systems Software as of the
Commencement Date is listed in SCHEDULE B to
each Transaction Document for such
Transaction Document, which schedule shall
be updated pursuant to Section 8.1 during
the Term to reflect the then current Systems
Software.
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Systems Software - Equifax means the systems software and general
purpose software such as the database
creation and management software, utility
software and applications development tools
software listed in SCHEDULE B to each
Transaction Document for such Transaction
Document under such heading provided or to
be provided by Equifax.
Systems Software-IBM means Systems Software listed in SCHEDULE B
to each Transaction Document for such
Transaction Document under the heading
"Systems Software-IBM", provided or to be
provided by IBM.
Systems Software Maintenance means defect identification and fixes, and
installation of those fixes and updates
provided by software vendors as part of
normal maintenance service for Systems
Software for which there is no charge by
such vendor in addition to periodic
maintenance charges, if any, and, subject to
SECTION 3.9 defect identification, provision
of fixes and installation of those fixes and
updates for Systems Software used by IBM to
provide the Services for which there is no
generally commercially available maintenance
and support.
Term has the meaning given in SECTION 1.3 and
any extension and renewal term described in
the Agreement.
Termination Charge means the amount set forth in a Supplement
to a Transaction Document.
Third Party Agreements means those contractual, leasing and
licensing arrangements for which IBM has
undertaken financial, management and/or
administrative responsibility and pursuant
to which a member of the Equifax Group
receives any third party products, software
and/or services in connection with the
provision of the Services. Third Party
Agreements to which one or more members of
the Equifax Group is a party are listed on
SCHEDULE F to each Transaction Document for
such Transaction Document, which schedule
shall be updated pursuant to SECTION 8.1
during the Term to reflect the then-current
Third Party Agreements.
Third Party Provider means a business or entity other than a
member of the Equifax Group or IBM that
provides products, software and/or services
under a Third Party Agreement, in support of
the provision of the Services by IBM.
Tower has the meaning given in SECTION 1.2(a).
Trade Secrets has the meaning given in SECTION 11.1
Transaction Document means each document executed by IBM with
Equifax pursuant to the Agreement, providing
for the performance and delivery of a
portion of the Services to a specific site
or group of sites with respect to one or
more of the Towers. Such document will be in
the form of EXHIBIT 3 and structured as
described in EXHIBIT 2.
Transition Cover Costs has the meaning given in SECTION 13.3(b)
Transition Costs means the costs incurred and profit charged
by IBM on such costs to transition into a
Transaction Document Services arrangement.
Such costs do not include the costs of
hardware or software to provide the on-going
Services.
Transition Period has the meaning given in SECTION 5.1(a).
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Transition Personnel has the meaning given in SECTION 5.1(b).
Transition Plan has the meaning given in SECTION 5.1(a).
Unplanned Resource Unit has the meaning given in SCHEDULE J to each
Transaction Document.
Version means those Software updates that generally
add function to the existing Software and
may be provided by the Software vendors at a
fee over and above the standard periodic
software maintenance costs.
Virus or Viruses means computer instructions that are
intended, designed and have the effect of
adversely affecting the specified operation,
security or integrity of a computing,
telecommunications or other digital
operating or processing system or
environment.
Voice Equipment means PBXs and Key Systems (AT&T and
non-AT&T), telephony switches, key systems,
telephone sets, voice mail equipment, voice
response units and associated software and
equipment performing similar functions.
Voice Services means all Voice Equipment and associated
controllers, channel banks, carrier services
(e.g., VNET), lines and Cabling, together
with all software related thereto, used to
transmit voice traffic within or outside of
Equifax locations, but does not include the
Data Network.
Wind-Down Expenses means the net amount, after IBM takes
commercially reasonable action to mitigate
the adverse financial impact on IBM, that
will reimburse IBM for the actual reasonable
costs that IBM incurs in the disposition
and/or reallocation of IBM Machines, IBM
Software and the portion of the Data Center
dedicated to the performance of the
Services, the placement of IBM personnel
allocated to the delivery of the Services,
and the termination, if appropriate, of the
Third Party Agreements, in the event of a
termination occurring prior to the
expiration of the Term or the term of any
Transaction Document; provided, however,
Equifax shall have the right to mitigate
such costs by (a) hiring the IBM personnel
primarily employed to provide the Services
under the Agreement; (b) purchasing, or
subject to the terms thereof, assuming the
leases for, the IBM Machines primarily used
to provide the Services under the Agreement;
(c) assuming the licenses and maintenance
agreements for the IBM Software primarily
used to provide the Services under the
Agreement; and/or (d) taking similar actions.
Wiring means those cables or wires that are
internal to the building structure and that
interconnect machines within the same
building or between buildings.
Year 2000 Compliance or means that the product will accurately process
Compliant and handle date data (including but not limited
to, calculating, comparing and sequencing)
within, from, into and between the twentieth
and twenty-first centuries, and the years
1999 and 2000, including leap year
calculations, and to the extent such product
must perform with other products as part of
the System, they will properly exchange date
data among themselves in accordance with the
foregoing.
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Year 2000 Services means assessment or testing services which
have the principal objective of determining
whether machines, software and/or other
products are Year 2000 Compliant, as well as
conversion or remediation services which
have the principal objective of modifying
and/or enhancing machines, software and/or
other products so that they are Year 2000
Compliant.
3. THE SERVICES
3.1 OBLIGATION TO PROVIDE SERVICES
a) Starting on the Commencement Date of each Transaction Document and
continuing during the term of each Transaction Document, IBM shall
provide the Services to, and perform the Services for, the Equifax
Group.
b) In performing and providing the Services, the relationship of IBM
with the members of the Equifax Group will be as an independent
contractor. However, as a result of its position in providing and
performing the Services, the Parties acknowledge that certain
employees of IBM and each of its Affiliates providing portions of
the Services may have a unique knowledge of the information
technology operations of the members of the Equifax Group that no
employee of a member of the Equifax Group will have in full, and
employees of IBM and each of its Affiliates providing portions of
the Services will be interacting with the employees, executive
management and accountants to the Equifax Group and the members
thereof, and will be performing functions that would otherwise be
performed by employees of the Equifax Group.
c) There may be functions, responsibilities, activities and tasks
not specifically described in the Agreement (including the
Transaction Documents and the Supplements and Schedules thereto)
which are required for the proper performance and provision of the
Services and are an inherent part of, or a necessary sub-part
included within, the Services. If such functions, responsibilities,
activities and tasks are determined to be required for the proper
performance and provision of the Services or are an inherent part,
or a necessary sub-part included within, the Services, such
functions, responsibilities, activities and tasks shall be deemed to
be implied by and included within the scope of the Services to the
same extent and in the same manner as if specifically described in
the Agreement (including the Transaction Documents and the
Supplements and Schedules thereto). Each such determination shall be
made by agreement of the Parties or resolved pursuant to the dispute
resolution provisions of SECTION 16.
3.2 PERFORMANCE
a) IBM agrees that the performance of the Services covered by each
Transaction Document will meet or exceed each of the applicable
Performance Standards and Minimum Service Levels set forth in the
Schedules to each such Transaction Document, subject to the
limitations and in accordance with the provisions set forth in the
Agreement.
b) Concurrent with the semi-annual Business and Operations Support
Plan review process described in SECTIONS 6.1 and 6.2 and more often
if requested by Equifax, Equifax and IBM will review and agree to
commercially reasonable changes, modifications, deletions and
replacements of and additions to the Performance Standards, the
Minimum Service Levels and the Service Credits under each
Transaction Document for the purposes of better and more timely
reflecting, facilitating and supporting the continuing development,
and evolving priorities of the Equifax Group and the Equifax
Business. Any such changes will be implemented through the Change
Control Process. The Performance Standards and the Minimum Service
Levels shall not be changed, modified or adjusted downward or upward
without the prior written agreement of the Parties. The Parties
intend that the Performance Standards and the Minimum Service
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Levels will be improved over time. The Parties agree to cooperate
and deal with each other in good faith to promptly resolve on a
reasonable basis in consonance with the purposes of the review
process, any differences between the Parties regarding appropriate
changes to, modifications of, additions to, deletions of and
replacements of the Performance Standards, the Minimum Service
Levels and the Service Credits.
c) IBM will continue to use the existing measurement and monitoring
tools and procedures to set Resource Unit Baseline measurements and
to measure and report IBM's performance of the Services against the
Performance Standards and Minimum Service Levels. Subject to
Equifax's prior approval (which approval shall not be unreasonably
withheld), IBM shall implement the necessary measurement and
monitoring tools and procedures required to set Resource Unit
Baseline measurements and to measure and report IBM's performance of
the Services against the Performance Standards and Minimum Service
Levels as such standards and levels may be developed, modified and
changed during the term of each Transaction Document and as the
Services may evolve and be supplemented and enhanced during the
Term. Such measurement and monitoring shall permit reporting at a
reasonable level of detail sufficient to verify compliance with the
Performance Standards and Minimum Service Levels and application of
any attendant Service Credits. IBM shall prepare and maintain
detailed records regarding its compliance with the Performance
Standards and Minimum Service Levels and the determination and
application of attendant Service Credits. Upon request, IBM shall
provide Equifax with information and reasonable access to such tools
and procedures, and the records relating thereto, for purposes of
verification of the reported performance levels.
3.3 DISASTER RECOVERY SERVICES
IBM will provide Disaster Recovery Services under each Transaction Document in
accordance with SCHEDULE G to each Transaction Document. If IBM fails to provide
Disaster Recovery Services to the extent and in accordance with the time table
set forth in such Schedule for a period as set forth in SCHEDULE G to each
Transaction Document, Equifax will be entitled, at its election, to terminate
such Transaction Document pursuant to SECTION 12.1(a) (without giving the
notices and observing the cure periods set forth in SECTION 12.1(a)) upon
written notice to IBM. If Equifax elects to terminate such Transaction Document
as described in this SECTION 3.3, Equifax shall give notice to IBM of such
election within thirty (30) days after the occurrence of the event on which such
termination is based. In the event of a termination of such Transaction Document
is authorized under this SECTION 3.3, Equifax shall not be required to pay any
Termination Charges or Wind-Down Expenses to IBM. Such termination shall not
constitute the sole and exclusive remedy of Equifax for such failure of
performance by IBM.
3.4 AUDITS
a) IBM will assist the Equifax Group in meeting their respective audit
and regulatory requirements, including providing access to the
Facilities, the Data Center and IBM's books and records, to enable
the Equifax Group and its auditors and examiners to conduct
appropriate audits and examinations of the Equifax Group's
operations and IBM's operations relating to the performance of the
Services, and to verify the accuracy of IBM's charges and credits to
Equifax and that the Services are being provided in accordance with
the Agreement and the Performance Standards and Minimum Service
Levels set forth in each Transaction Document; provided, however,
that neither Equifax nor its auditors will be allowed access to
other IBM or IBM Affiliates customers' records or IBM confidential
and proprietary data; but provided further that nothing in the
Agreement shall limit or restrict Equifax's or IBM's rights in
discovery proceedings pursuant to any civil litigation. Such access
will require forty-eight (48) hour written notice to IBM and will be
provided at reasonable hours. If any audit or examination reveals
that IBM's invoices for the audited period are not correct (other
than amounts in dispute pursuant to Section 9.12), IBM shall
promptly reimburse Equifax for the amount of any overcharges, or
Equifax shall promptly pay IBM for the amount of any undercharges.
If any such audit activities interfere with IBM's ability to perform
the Services
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in accordance with the Performance Standards and Minimum Service
Levels under any Transaction Document, IBM shall be relieved of such
performance obligations under such Transaction Document to the
extent caused by such audit activity. If the assistance required of
IBM shall cause IBM to expend resources and incur additional costs
to provide such assistance that are not within the scope of the
Services and Resource Unit Baselines, Equifax shall reimburse IBM
for such costs.
b) Subject to SECTION 4.6, IBM agrees to make any changes to the Services
and take other actions which are necessary in order to maintain
compliance with laws or regulations applicable to its performance
and provision of the Services. Subject to SECTION 4.6, Equifax may
submit to IBM findings and recommendations regarding changes to the
Services necessary for the compliance by Equifax with applicable
laws and regulations which IBM will analyze and consider in good
faith. IBM shall promptly respond to Equifax regarding IBM's
evaluation and activity plan for such findings and recommendations.
3.5 FACILITIES AND DATA CENTER
a) IBM will not relocate the portion of the Services provided from the
Facilities and the Data Center as set forth in each Transaction
Document without the prior written consent of Equifax as described
in SECTION 5.3(d).
b) During the Term, IBM will provide the Equifax Group with access upon
prior notice to the portion of the Facilities used by IBM to provide
and perform the Services (including, without limitation, the Data
Center) in order for Equifax to provide tours of such portions of
the Facilities and such tours will be conducted in a manner
reasonably calculated not to interfere with IBM's provision of
Services.
c) IBM will provide reasonable access to the portion of the Facilities
used by IBM to provide and perform the Services as necessary or
appropriate for the performance, delivery and use of the Services by
the Equifax Group and for the operation, maintenance, upgrade,
support and use of any other Equifax hardware, software and other
resources located in the Facilities including the Data Center (i) to
the Equifax Group's authorized employees, agents and
representatives, and (ii) to Third Party Providers and third party
vendors and suppliers of installation, maintenance, support and
upgrade services, technology and hardware for the System and any
other Equifax hardware, software and other resources located in the
Facilities including the Data Center serviced thereby. To the extent
practical in light of such installation, maintenance, support and
upgrade requirements, Equifax will provide twenty-four (24) hours
notice to IBM prior to any visits by such Third Party Providers and
third party vendors and suppliers.
d) All access to the portion of the Facilities under the control of IBM
and used by IBM to provide and perform the Services (including,
without limitation, the Data Center) shall be subject to (i)
reasonable data and records protection and physical security
measures (including Equifax physical security requirements) and (ii)
such Equifax Group employees, agents and representatives and Third
Party Providers and third party vendors and suppliers undertaking
reasonable confidentiality requirements relating to such visits.
3.6 SECURITY
Equifax will authorize all access to all Software operated by, and Company
Information and other records of the Equifax Group in the possession of, IBM in
support of the Services covered by each Transaction Document through the data
and records security procedures as described in SCHEDULE L to such Transaction
Document. IBM shall notify Equifax of the identity of each of the entities and
personnel working with IBM to provide and perform the Services covered by each
Transaction Document that are to be authorized access to the Software utilized
in support of the Services covered by such Transaction Document and the level of
security access required by each. The Parties shall cooperate in
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administering security procedures regarding such access, in accordance with
such Schedule. IBM will enable such access by persons as designated by
Equifax and deny such access to all other persons, in accordance with such
Schedule.
3.7 TECHNOLOGY REFRESH
IBM will refresh the information technologies components of the Services
(including both hardware and software components) as specifically provided in
the Agreement (including each Transaction Document). This SECTION 3.7 shall not
affect or limit IBM's obligations or authority to perform the repair,
maintenance and upgrade functions and services as set forth in the Agreement.
3.8 SOFTWARE LICENSES
a) IBM will comply with all license obligations under all licenses and
maintenance agreements for the Software, including without
limitation, the obligations of nondisclosure and scope of use;
provided, however, IBM will only be obligated under this SECTION
3.8(a) with regard to the licenses and maintenance agreements for
Equifax Software to the extent the obligations thereunder are
disclosed to and accepted by IBM. To the extent provided to IBM by
Equifax prior to execution of each Transaction Document, IBM shall
be deemed to have reviewed and accepted the obligations under the
licenses and maintenance agreements for the Equifax Software listed
on Schedules to such Transaction Document as of the Commencement
Date under such Transaction Document, unless otherwise noted in such
Transaction Document.
b) All IBM Software provided by IBM in connection with the Services and
any Equifax Software licensed under a Third Party Agreement shall be
licensed (and the attendant maintenance arrangements contracted) in
the name of the Equifax Group member designated by Equifax as the
licensee with IBM having the right to access and use such Software
in performing the Services, unless IBM can procure such Software
(and/or attendant maintenance arrangement) on a more cost effective
basis licensed in its own name.
c) IBM shall use commercially reasonable efforts to obtain from the
applicable Software vendors a right to assign or transfer, without
any payment of any additional fee or charge by Equifax, any licenses
(and attendant maintenance arrangements) for the Software licensed
and contracted in IBM's name as licensee to Equifax upon termination
or expiration of the Agreement and as applicable, each Transaction
Document. If IBM is unable to obtain from the applicable Software
vendor the rights described in the immediately preceding sentence,
and, in any event, prior to (i) the addition to the IBM Software of
any software which is not listed in Schedules to a Transaction
Document for the Equifax operations covered by such Transaction
Document; or (ii) any upgrade, enhancement or modification of any
IBM Software listed in Schedules to a Transaction Document for the
Equifax operations covered by such Transaction Document, IBM shall
(A) obtain Equifax's prior written consent for any such actions, (B)
provide Equifax with information regarding the amount of any fees
and other reasonable requirements Equifax would be required to
undertake in order to obtain a license to and maintenance for such
IBM Software upon the expiration or termination of the Agreement and
as applicable, each Transaction Document, and (C) use commercially
reasonable efforts to obtain a firm commitment from the providers of
such IBM Software to license and provide maintenance for the IBM
Software to Equifax upon the expiration or termination of the
Agreement upon the payment of such fees and satisfaction by Equifax
of such requirements. If Equifax does not respond to a request for
consent from IBM within twenty-one (21) business days of receipt of
such request together with the information and confirmation of the
actions required of IBM in this SECTION 3.8(c), Equifax shall be
deemed to have granted its consent to the actions for which IBM
requested consent. IBM shall consider and take into account in the
negotiation of its licensing and maintenance arrangements with
providers of the IBM Software, Equifax's reasonable concerns
regarding the terms and conditions of such IBM Software licenses
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and maintenance agreements and make such licenses, maintenance
agreements and related documentation, exclusive of pricing
information related to charges to IBM, available to Equifax upon
request.
d) IBM shall not direct the Equifax Group to terminate, extend, replace,
amend or add licenses for the Software and/or the maintenance
arrangements attendant therewith, contracted in the name of a member
of the Equifax Group without notifying Equifax in writing of the
proposed action by IBM and obtaining Equifax's prior written
agreement; moreover, IBM shall provide to Equifax a written report
of the reasons for, and the impact and ramifications on the Services
of, such proposed action concurrently with such notification. IBM
may terminate, replace, amend or add licensees for the IBM Software
as it chooses so long as IBM continues to perform the Services in
the manner required by the Agreement; provided, however, IBM agrees
to provide twenty-one (21) business days written notification to
Equifax prior to each such termination, replacement, amendment or
addition and concurrently with such notification, deliver to Equifax
a written report of the reasons for, and the impact and
ramifications on the Services of, IBM's proposed action. In
addition, if such action by IBM with respect to a license and/or
maintenance arrangement for the IBM Software will have an impact on
the Services or the monitoring and/or evaluation of the Services in
a manner that in turn will have a financial and/or operational
impact on the Equifax Group or the ability of IBM or Equifax to
monitor and/or evaluate the performance and delivery of the
Services, and IBM is notified in writing by Equifax of its estimate
of such financial and/or operational impact prior to IBM's
implementation of such action and IBM elects to proceed, IBM will
provide or cause to be provided the programs, services, rights and
other benefits and resources that are the subject of such licenses
and maintenance agreements to the Equifax Group on terms no less
favorable than the terms of such license and maintenance agreements
and ensure that there shall be no negative impact on the ability of
IBM or Equifax to monitor and/or evaluate the performance and
delivery of the Services. If Equifax in connection with or
resulting from IBM's termination, replacement, amendment or addition
of any license for IBM Software and/or maintenance arrangement
incurs additional expenses, costs or Losses, including but not
limited to personnel costs, and IBM has been notified in writing by
Equifax of its estimate of such financial impact prior to IBM's
implementation of such action and IBM elects to proceed, IBM shall
promptly reimburse Equifax for such amounts actually incurred by
Equifax; provided, however, that in each instance in this SECTION
3.8(d) that Equifax provides IBM an estimate of the financial impact
of an action by IBM on Equifax, the amounts recoverable from IBM by
Equifax in each such instance shall not exceed the amount of the
written estimate provided to IBM for each such instance.
e) IBM will provide to Equifax, and update as changes occur, a listing
of all Software by name, Maintenance Release and Version promoted
into production on each Machine at each location of the Machines.
3.9 SOFTWARE CURRENCY
The Parties agree to maintain reasonable currency for Maintenance
Releases and Versions of Software, unless Equifax requests
otherwise. For purposes of this Section, "reasonable currency" shall
mean that the next Maintenance Release or Version is installed not
later than the longer of (i) twelve (12) months after the date the
licensor makes such Maintenance Release or Version commercially
available, or (ii) within one (1) month after the date the licensor
makes a subsequent Maintenance Release or Version commercially
available which causes Equifax to be more than one Maintenance
Release or Version behind, unless such Maintenance Release or
Version contains defects, Viruses, Disabling Code or similar
infirmities identified by the Parties, or either of them, that will
adversely affect Equifax's operations, in which case, the previous
Maintenance Release or Version will be deemed "reasonably current".
In the event Equifax requests IBM to expedite installation of a
Maintenance Release or Version or to delay the installation of a
Maintenance Release or Version of specific Software beyond such
period or requires operation and maintenance of multiple Versions of
Software, IBM shall do so, provided, that if IBM reasonably
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determines that it will incur any additional costs as a result of
such requests (e.g., Software support costs due to withdrawal of
maintenance by the licensor, multiple version charges, etc.) for
resources not otherwise required to provide the Services under the
applicable Transaction Document or covered under a current Resource
Unit Baseline for such Transaction Document, then IBM will notify
Equifax of the amount of such costs in writing and Equifax, at its
option, will either delay installation of such Maintenance Release
or Version or update the Software to the current level (as
applicable) or reimburse IBM for any demonstrable costs. The
installation and promotion into production of each Maintenance
Release and Version shall be performed in accordance with the Change
Control Process.
In addition, Equifax shall relieve IBM from any failure to meet a
Performance Standard or Minimum Service Level to the extent directly
impacted by the delay or acceleration of the next Maintenance
Release or Version until such time as the affected Software is
brought to "reasonable currency" as defined in this SECTION 3.9.
3.10 VIRUSES
IBM will take commercially reasonable measures to ensure that no
Viruses or similar items are coded or introduced into the System and
the operating environments used to provide the Services. IBM will
continue to perform the Virus protection and correction procedures
and processes in place at the Equifax Group prior to the
Commencement Date of each Transaction Document, and will continue to
review, analyze and implement improvements to and upgrades of such
virus prevention and correction programs and processes that are
commercially reasonable and consistent with industry standards. If a
Virus is found to have been introduced into the System and the
operating environments used to provide the Services, IBM shall use
commercially reasonable efforts and diligently work to eliminate the
effects of the Virus; provided, however, IBM shall take immediate
action if required due to the nature or severity of the Vir\us'
proliferation. The Party causing or permitting a Virus to be
introduced into the System shall bear the costs associated with such
efforts. Notwithstanding any other term of this SECTION 3.10,
neither Party shall be liable to the other Party or any of its
Affiliates for any such costs incurred by any of them with respect
to items and areas outside of the System. If the Equifax Group
introduces or permits the introduction of a Virus, IBM shall be
relieved of the Performance Standards and Minimum Service Levels to
the extent such Virus impacts IBM's ability to satisfy such
Performance Standards and Minimum Service Levels.
3.11 SOFTWARE - SUBSTITUTIONS AND ADDITIONS
a) If Equifax requests a substitution of any Software under any
Transaction Document for which IBM has financial responsibility,
Equifax shall pay or receive a credit in the amount by which the
periodic license or maintenance fees attributable to the substituted
Software exceeds or is less than the then-current periodic license
or maintenance fees being paid by IBM attributable to the Software
being replaced. If Equifax requests deletion of any Software for
which IBM has financial responsibility from the Schedules to a
Transaction Document and does not immediately substitute any other
new Software therefor, Equifax may utilize an amount equal to the
then-current applicable periodic license and/or maintenance fees
attributable to such deleted Software to offset the fees
attributable to any new Software or receive a credit in such amount.
IBM will provide Equifax with the requisite license and/or
maintenance fees support documentation to assist Equifax in
evaluating the decision to replace such Software. Equifax will be
responsible for any other fees payable to the Software vendor
associated with such substitutions or additions.
b) Equifax may add Software to, or delete Software from, the Schedules
to any Transaction Document. IBM agrees to promote into or remove
from production, use and operate any Software selected by Equifax;
provided, however, that any resources (software, hardware,
personnel, etc.) required to install, delete and/or operate such
added Software that is not otherwise required to provide the
Services under such Transaction
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Document, or covered under a current Resource Unit Baseline for such
Transaction Document, will be provided as New Services pursuant to
SECTIONS 3.12. Equifax shall be permitted by IBM to audit, control
and approve all new Software prior to its promotion into production,
and IBM shall provide the cooperation, information and access
necessary or appropriate to permit Equifax to perform such functions.
c) If IBM timely notifies Equifax that any software requested by Equifax
be substituted for, deleted from, or added to, the Software will have
an adverse impact on the operation of the System before such action
is effected and Equifax directs IBM to effect such action even in
view of such notice, IBM shall be relieved of any failure to satisfy
the Performance Standards and Minimum Service Levels to the extent,
and only to the extent, such action affects IBM's ability to satisfy
such Performance Standards and Minimum Services Levels.
3.12 NEW SERVICES
a) During the Term, Equifax may request IBM to perform a "NEW SERVICES"
(defined as an additional function, responsibility or task under any
Transaction Document that requires resources for which there is no
current Resource Unit Baseline or charging methodology under such
Transaction Document, that is, such function, responsibility or task
is not included in the Monthly Charge and is not charged separately
under another methodology other than this New Services provision).
Further, Equifax's request for a New Service may include a request
for IBM to correspondingly reduce or eliminate one or more existing
elements of the Services then being provided under the applicable
Transaction Document that are being replaced by the New Services. In
such event, IBM shall determine the resources and expenses related
to the element or elements of the Services being reduced or
eliminated and those required for the New Services being added.
Promptly after receiving each request for New Services from Equifax,
IBM will provide a written quote for such New Services to Equifax
setting forth the net increase or decrease allocable to the
resources and expenses eliminated and/or added in the Monthly Charge
and/or other charging methodologies under the applicable Transaction
Document, and as applicable, increases and decreases in existing
Resource Unit Baselines and additional Resource Unit Baselines, if
any, that will be attributable to such New Services, and will
concurrently deliver to Equifax as a part of such quote a detailed
description of and proposal for the New Services together with a
report regarding the ramifications and impacts of such New Services
on the Services under such Transaction Document. All changes in the
Monthly Charge and other charging methodologies will be based upon
the required proportional increase in personnel, System and other
resources applicable to the New Services relative to the Monthly
Charge and existing other charging methodologies. Upon receipt of
such quote and other documentation, Equifax may then elect to have
IBM perform the New Services, and the Monthly Charge and, if
applicable, other charging methodologies and Resource Unit Baselines
under such Transaction Document will be established and/or adjusted
to reflect such New Services in a written amendment to the Agreement
in accordance with SECTION 17.2. Notwithstanding the foregoing,
nothing herein shall be deemed to obligate Equifax to obtain New
Services from IBM.
b) The Parties agree that changes during the Term in functions,
responsibilities and tasks that are within the scope of the Services
will not be deemed to be New Services, if such functions,
responsibilities and tasks evolved or were supplemented and enhanced
during the Term by IBM in its sole discretion or pursuant to the
provisions of the Agreement.
3.13 AFFILIATES
If the Equifax Group acquires any additional Affiliates or other operations or
assets during the Term and desires that IBM provide the Services for such
Affiliates or other operations or assets, IBM will provide such Affiliates or
other
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operations or assets with Services in accordance with the Agreement,
subject to additional charges if acceptance of such responsibilities by IBM
would require usage of Baseline Resources in excess of the Baseline Resources
set forth in the Agreement or additional charges if acceptance of such
responsibilities by IBM would require the performance of New Services as
described in SECTION 3.12.
4. WARRANTIES/REPRESENTATIONS/COVENANTS
4.1 WORK STANDARDS
IBM warrants, represents and covenants that (a) it has, and during the Term will
have, and each of the IBM employees and subcontractors that it will use to
provide and perform the Services has and during the Term will have, the
necessary knowledge, skills, experience, qualifications and resources to provide
and perform the Services in accordance with the Agreement; (b) it has
successfully provided and performed the Services or services that are
substantially similar to the Services for other customers of IBM; and (c) the
Services will be performed for the Equifax Group in a diligent, workmanlike
manner in accordance with industry standards applicable to the performance of
such services.
4.2 NONINFRINGEMENT
Each of the Parties covenants that it will perform its responsibilities under
the Agreement in a manner that does not infringe, or constitute an infringement
or misappropriation of, any patent, trade secret, copyright or other proprietary
right of any third party. Notwithstanding this provision or any other provision
in the Agreement, Equifax makes no warranty or representation with respect to
any claims for such infringement or misappropriation by virtue of its compliance
with obligations herein to provide IBM access to, use of or benefits of any
Third Party Agreements prior to receiving the necessary Required Consents;
provided, however, that this SECTION 4.2 shall not relieve Equifax from any
liability or obligation under SECTIONS 8.2 and 14.2.
4.3 DISABLING CODE
IBM covenants that IBM will take commercially reasonable steps to ensure that no
Disabling Code in the Systems Software will be permitted to be invoked without
the prior written consent of Equifax. IBM further covenants that with respect to
any Disabling Code that may be part of the Systems Software, IBM will not
knowingly invoke Disabling Code at any time, including upon expiration or
termination of the Agreement or any Transaction Document for any reason, without
Equifax's prior written consent.
4.4 AUTHORIZATION AND ENFORCEABILITY
Each Party hereby represents and warrants that:
a) it has all requisite corporate power and authority to enter, and
fully perform pursuant to, into the Agreement;
b) the execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated hereby have been duly
and properly authorized by all requisite corporate action on its
part; and
c) the Agreement has been duly executed and delivered by such Party.
4.5 DISCLAIMER
a) IBM does not warrant the accuracy of any advice, report, data or
other product delivered to Equifax to the
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extent any inaccuracies are caused by data and/or software provided
by Equifax. Such products are delivered AS IS, and IBM shall not be
liable for any inaccuracy therein. IBM will promptly notify Equifax
of any such inaccuracies of which IBM becomes aware and the cause
therefore if known by IBM. IBM will provide commercially reasonable
assistance to Equifax to remedy such problems.
b) Subject to the obligations of IBM to satisfy the Performance
Standards and Minimum Service Levels and provide the Services as set
forth in the Agreement without material denigration or interruption,
IBM does not assure uninterrupted or error-free operations of the
Software and Machines.
c) Except as set forth in a Transaction Document, IBM is not providing
any Year 2000 Services under the Agreement. IBM shall not be
responsible for its failure to perform any of its obligations
(including, for example, failure to meet Performance Standards or
Minimum Service Levels) under the Agreement, if such failure is the
result of the inability of
1) Equifax's,
2) a third party's or
3) IBM's products installed prior to the Execution Date of a
Transaction Document
(for example, software, hardware or firmware) ("OTHER PRODUCTS") to
correctly exchange, process and handle date data (including, but not
limited to, calculating, comparing and sequencing) within, from, into
and between the twentieth and twenty-first centuries, and the years
1999 and 2000, including leap year calculations.
d) IBM assumes no responsibilities or obligations to cause products or
deliverables provided by IBM to accurately exchange date data with
Other Products or to cause Other Products to accurately exchange date
data with products or deliverables provided by IBM.
E) EXCEPT AS PROVIDED IN THE AGREEMENT, THERE ARE NO OTHER EXPRESS
WARRANTIES OR COVENANTS, AND THERE ARE NO IMPLIED WARRANTIES OR
COVENANTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
COVENANTS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.6 REGULATORY PROCEEDINGS AND COMPLIANCE WITH LAWS
Each Party agrees at its cost and expense to obtain all necessary regulatory
approvals applicable to its business, to obtain any necessary permits for its
business, and to comply with all laws and regulatory requirements applicable to
the performance of its obligations under the Agreement.
4.7 YEAR 2000 WARRANTY
IBM warrants that products manufactured or distributed by IBM and bearing a logo
of IBM and/or an IBM Affiliate ("IBM Logo Products") that are provided under the
Agreement and installed after the Execution Date of a Transaction Document and
used to provide Services under the Agreement will be IBM Year 2000 Compliant,
unless IBM notifies Equifax of its intention to install a non-IBM Year 2000
Compliant IBM Logo Product and Equifax agrees in writing to such installation.
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4.8 COVENANT OF COOPERATION AND GOOD FAITH
The Parties covenant to timely and diligently cooperate, with due consideration
of the goals, objectives and purposes of the Agreement, to facilitate the
performance of their respective duties and obligations under the Agreement in a
commercially reasonable manner. Further, the Parties agree to deal and negotiate
with each other and their respective Affiliates in good faith in the execution
and implementation of their duties and obligations under the Agreement.
5. TRANSITION
5.1 TRANSITION PLAN
a) Prior to the Commencement Date for each Transaction Document or such
other date as the Parties may agree, IBM and Equifax through the
Equifax/IBM Integrated Planning Team will have developed and agreed
upon the "Transition Plan" set forth in SCHEDULE H to such
Transaction Document, describing (i) the transition from the Equifax
Group to IBM or its Affiliate of the Affected Employees, if any;
(ii) the transition of the administration, management, operation
under and financial responsibility for the Third Party Agreements
from the Equifax Group to IBM or its Affiliate; and (iii) the
transition of the performance of and responsibility for the other
functions, responsibilities and tasks currently performed by the
Equifax Group to IBM or its Affiliate which comprise the Services
covered by such Transaction Document. The Transition Plan shall be
implemented and completed over a mutually agreed period as set forth
in the Transition Plan starting on the Commencement Date, which
period shall not extend beyond a date certain set forth in such
Transaction Document, without the prior written agreement of the
Parties (the "TRANSITION PERIOD"). Notwithstanding the foregoing in
this SECTION 5.1(a), IBM's and Equifax's responsibilities and
obligations with respect to the Affected Employees, the Third Party
Agreements and the other elements of the Services as set forth in
the Agreement shall commence on the dates set forth in such
Transaction Document, or if no date is set forth in such Transaction
Document, the Commencement Date under such Transaction Document.
b) During the Transition Period, Equifax will cooperate with IBM in
implementing the Transition Plan by providing the personnel (or
portions of the time of the personnel) set forth in the Transition Plan
("TRANSITION PERSONNEL") and performing the tasks described for Equifax
in the Transition Plan. During the Transition Period, IBM will be
responsible for the provision of the Services set forth in each
Transaction Document (including within those Services the
implementation of the Transition Plan).
5.2 AFFECTED EMPLOYEES
The Equifax Group may eliminate certain of the positions within the Equifax
Group associated with the Equifax In-Scope Operations commencing on the
Commencement Date under any Transaction Document and through the end of the
Transition Period under such Transaction Document. IBM will, with Equifax's
consent, offer employment to each of the individuals listed on SCHEDULE O to
such Transaction Document, in accordance with the employment guidelines set
forth on such Schedule (the "AFFECTED EMPLOYEES"). All costs and expenses
incurred by IBM in connection with the offer to employ and the employment of the
Affected Employees shall be the responsibility of IBM. IBM will promptly
reimburse Equifax for the amount of salary and benefit costs incurred by
Equifax, if any, with respect to each Affected Employee after the Commencement
Date for the period until they receive offers and reject such offers, become IBM
employees, or IBM determines not to offer employment to an Affected Employee in
accordance with its employment guidelines and notifies Equifax in writing of
such determination.
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5.3 RESOURCES AND FACILITIES
a) To enable IBM to provide the Services, the Parties may agree under
a Transaction Document for Equifax to provide, at no charge to IBM,
the use of the Equifax Provided Hardware, Equifax Provided Office
Furnishings, Equifax facilities, and offices services such as
reasonable local analog telephone services for the sole purpose of
providing and performing the Services covered by the Transaction
Document for the Equifax Group. These obligations will generally not
include the provision of (i) office, storage or equipment/Data
Center space, parking facilities, or heat, light, power, air
conditioning and other similar utilities which will be provided
under a separate lease agreement between the members of the Equifax
Group as lessor and IBM or its Affiliates as lessee for a portion of
the Facilities, or (ii) office support services (e.g., janitorial
and security), office supplies and similar services and consumables.
All such items provided by Equifax shall comply with all applicable
laws and regulations relating to safety and use. Subject to the
satisfaction of Equifax's obligation with respect to compliance with
applicable laws and regulations, IBM shall ensure a safe working
environment is maintained with the Equifax Provided Hardware,
Equifax Provided Office Furnishings and Equifax facilities in
compliance with all applicable laws and regulations, and shall take
no action that will compromise such safety of such working
environment or violate such laws and regulations.
When the Parties agree that the Equifax Provided Hardware and Equifax
Provided Office Furnishings are no longer deemed necessary to perform
the Services, Equifax's obligations set forth in this Section and in
any Transaction Document with respect to each such item of resources
shall terminate.
b) Except as otherwise provided in the Agreement, IBM will have the
responsibility and obligation to provide and administer, manage,
support, maintain and pay for all resources (including, without
limitation, personnel, hardware, software, facilities, services and
other items, however described) necessary or appropriate for IBM to
provide, perform and deliver the Services as described in the
Agreement.
c) IBM will provide and have on site as set forth in each Transaction
Document its Project Executive under each such Transaction Document
prior to the Commencement Date and for the duration of the term of each
such Transaction Document, and will timely provide additional trained
and qualified personnel as necessary or appropriate to facilitate and
ensure the timely and proper definition, provision, performance and
delivery of the Services in accordance with the Agreement.
d) IBM will have the right to change the location of the IBM activities
associated with the Services under any Transaction Document with the
prior written consent of Equifax (which consent shall not be
unreasonably withheld) and upon the occurrence of a Force Majeure
Event. Among the factors Equifax may consider in determining whether
to grant any such consent, Equifax may consider whether any and all
changes in the location of such IBM activities may result (i) in a
reduction of IBM's ability to perform the Services and the Business
and Operations Support Plan; (ii) in any reduced accessibility to
IBM and/or the Services by the Equifax Group; (iii) in any
deterioration of the Services; (iv) any decrease in the security or
integrity of operations and Company Information of the Equifax
Group; and (v) in any additional cost to Equifax.
6. INTEGRATED PLANNING TEAM/CHANGE CONTROL PROCESS
6.1 EQUIFAX/IBM INTEGRATED PLANNING TEAM
a) The Parties shall form and participate in an Integrated Planning Team
in accordance with the provisions of this SECTION 6 for the following
purposes:
(i) to provide leadership and direction for the relationship over
the Term ;
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(ii) to define and forecast the resources required to be allocated
by IBM to perform and deliver the Services pursuant to the
procedures and processes for the preparation and update of the
"Business and Operations Support Plan";
(iii) to define and evaluate the objectives, substance, repricing
and performance of the Services and pricing of new and
replacement services;
(iv) to provide second level issue resolution for matters that the
line managers are unable to resolve; and
(v) to report to Equifax and IBM regarding each of the foregoing
areas.
b) The Integrated Planning Team will be comprised of dedicated staffs from
both Parties, representing technology and business management from
multiple geographic locations, as provided in EXHIBIT 3 and each
Transaction Document. The Integrated Planning Team will be co-chaired
by Equifax's Senior Vice President - North American Technology and
IBM's Senior Project Executive through the first year of the Term and
then the Integrated Planning Team shall be co-chaired as mutually
agreed by the Parties thereafter. The "Charter and Operating Procedures
Guidelines" for the Integrated Planning Team are set forth in EXHIBIT 3
and may be modified by the Parties from time to time during the Term
upon agreement.
6.2 REPORTS/PROJECTIONS/PLANS
a) Prior to the Execution Date of each Transaction Document, IBM will
provide Equifax a plan showing the timing of the scheduled hardware
and software upgrades and/or hardware refresh points during the term
of such Transaction Document that are included in the Annual
Services Charge and reflected in the Baselines. Such plan will be
updated whenever there is a repricing of the current Services or the
addition or replacement of Services under such Transaction Document
through New Services pursuant to Section 3.12 herein. Charges and
credits with respect to the acceleration, delay or cancellation of
such upgrades and/or refresh are handled by the charging/credit and
pricing adjustment processes set forth in this Agreement, Annual
Services Charge adjustments, the Transaction Document and its
Schedules (e.g., Baseline Adjustment, ARCs, RRCs, New Services,
benchmarking, etc.).
b) Commencing on June 30, 1998 and on June 30 and December 31 of each
year of the Term thereafter, Equifax will provide to the Integrated
Planning Team its projected business and volume requirements for the
Services for the next twelve (12) and twenty-four (24) calendar
months. Further, Equifax will provide to the Integrated Planning
Team in the first week of each calendar quarter its forecasted
business and volume requirement for the Services for the following
calendar quarter. The quarterly forecast may be amended by Equifax
on ninety-(90) days' prior written notice. Within thirty (30) days
of receipt of each such projection and amendment, IBM will review
and respond to the projections from Equifax with the technical
provision requirements that it deems necessary to satisfy the
business and volume requirements projected by Equifax. After review
and acceptance by the Integrated Planning Team, the IBM response
will be incorporated into the Business and Operations Support Plan.
c) Commencing on September 30, 1998 and on March 31 and September 30 of
each year during the Term, IBM will provide to the Integrated
Planning Team the then current Business and Operations Support Plan.
The Business and Operations Support Plan will be composed of a
short-term, technical plan covering twelve (12) months and any
long-range, strategic plan covering twenty-four (24) months, both of
which will be driven by the Equifax Group's business goals and
objectives as reflected in the projections described in 6.2(a)
above. The short-term plan will include an identification of
support, processes, systems, resources and changes required by the
Equifax Group, and a projected time schedule for developing,
integrating and
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implementing the requirements. The long-range plan will treat the
strategic aspects of the support of the business goals and
objectives of the Equifax Group as set forth in the projections
described in SECTION 6.2(a), including, without limitation, flexible
use of resources managed by IBM as part of the Services in support
of the Equifax Group's business priorities and strategies.
IBM will draft the Business and Operations Support Plan with Equifax's
active participation, cooperation and advice through the Integrated
Planning Team. IBM will provide input for the plan regarding industry
trends with respect to the Services and proposals with regard to the
Services for process improvements, change management, skilled
development, quality improvement, cost per Resource Unit reductions,
increased efficiency and flexibility in operations and resource
utilization, and enhance functionality. The final Business and
Operations Support Plan for each six (6) month period will be provided
by IBM based on the mutual agreement of the Parties, with any disputed
matters being submitted to the dispute resolution process set forth in
SECTION 16. The Business and Operations Support Plan will be reviewed
and updated at least semi-annually thereafter. Any changes to the
Agreement or the Services required by the Business and Operations
Support Plan will be defined, approved and implemented in accordance
with the Change Control Process set forth in SECTION 6.3.
6.3 CHANGE CONTROL PROCESS
Within ninety (90) days after the Effective Date and for the remainder of the
Term, the Parties shall define, establish, implement, document and maintain a
change control process for activities, processes, provisions and operations
under the Agreement including each Transaction Document and to evolve the
Services (the "Change Control Process"). The purposes and objectives of the
Change Control Process are (i) to determine whether a change to the System is
within the scope of the Services or constitutes a New Service under the
applicable Transaction Documents, (ii) to prioritize all requests for changes to
the System ("CHANGE REQUESTS"), (iii) to minimize the risk of exceeding both
time and cost estimates associated with the Change Requests by identifying,
documenting, quantifying, controlling, managing and communicating Change
Requests and their disposition and as applicable, implementation; and (iv) to
identify the different roles, responsibilities and actions that shall be assumed
and taken by the Parties to define and implement the changes to the System.
The Project Executives shall be the focal point for all Change Requests and
shall be responsible for promptly and diligently effecting the activities set
forth above in this SECTION 6.3 with respect to each Change Request.
The Change Control Process shall include, at a minimum:
a. Changes to the System may be requested by either Party. Since
a change may affect the price, schedule or other terms, both
the Equifax and IBM Project Executives must review and
approve, in writing, each Change Request before any change is
implemented.
b. The Party proposing a Change Request will write a Change
Request Form ("CRF"), describing the change, the rationale for
the change and the effect that change will have, if completed,
or the impact it will have, if rejected, on the Agreement, any
Transaction Document and/or the Services.
c. Equifax's or IBM's Project Executive, as appropriate, will
review the proposed Change Request. If accepted, the CRF will
be submitted to the other Party for review and approval. If
rejected, the CRF will be returned to the originator along
with the reason for rejection.
d. All material Change Requests shall be forwarded to the
Integrated Planning Team for review and approval prior to
implementation.
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e. Each approved Change Request will be implemented through a
written change authorization. If any Change Request results in
a change in scope, price, or terms and conditions, then the
Agreement and affected Transaction Document including the
Supplement and Schedules thereto, will be updated to reflect
the changes in scope, price or terms and conditions, as
appropriate pursuant to SECTION 17.2.
7. SERVICES STAFFING/MANAGEMENT/ADMINISTRATION
7.1 PROJECT EXECUTIVES
a) Prior to the Commencement Date under each Transaction Document, IBM and
Equifax will each designate an individual to whom all communications to
the appointing Party may be addressed and who has the authority to act
for the appointing Party and its subcontractors in connection with all
aspects of such Transaction Document (the "PROJECT EXECUTIVE").
b) Unless otherwise provided in a Transaction Document, IBM shall cause
each person assigned as a IBM Project Executive under each
Transaction Document to devote substantially all of his or her
working time and effort in the employ of IBM to his or her
responsibilities for the provision of the Services under such
Transaction Document as required by such Transaction Document,
subject to IBM's reasonable holiday, vacation and medical leave
policies and subject to occasional, short-term, non-recurring work
on other assignments by IBM related to the Project Executive's areas
of expertise. Before the initial and each subsequent assignment of
an individual to such position, each Party shall notify the other
Party of the proposed assignment, introduce the individual to
appropriate representatives of the other Party, and IBM will,
consistent with IBM's personnel practices, provide Equifax with a
resume and any other information about a prospective IBM Project
Executive reasonably requested by Equifax. Each Party agrees to
discuss with the other Party any objections the other Party may have
to such assignment.
c) IBM will give Equifax at least ninety (90) days advance notice of a
change of the person appointed as the IBM Project Executive under
each Transaction Document, and will discuss with Equifax any
objections Equifax may have to such change. IBM shall not reassign
or replace any person assigned as the IBM Project Executive during
the first year of his or her assignment to the Equifax service team
under any Transaction Document, nor shall IBM assign more than four
(4) different individuals to such position during the term of any
Transaction Document, unless Equifax consents to such reassignment
or replacement, or the IBM employee voluntarily resigns from IBM,
requests a transfer, is terminated by IBM or is unable to work due
to his or her death or disability.
7.2 REPLACEMENT OF PERSONNEL
If Equifax reasonably and in good faith determines that it is not in Equifax's
best interests for any IBM or subcontractor employee to be appointed to perform
or to continue performing any of the Services, Equifax shall give IBM written
notice specifying the reasons for its position and requesting that such employee
not be appointed or be removed from the IBM or IBM subcontractor employee group
servicing Equifax and be replaced with another IBM employee or IBM subcontractor
employee. Promptly after its receipt of such a notice, IBM shall investigate the
matters set forth in the notice, discuss with Equifax the results of the
investigation, and resolve the matter in a mutually agreeable manner.
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7.3 RETENTION OF EXPERIENCED PERSONNEL
If IBM fails under any Transaction Document to meet the Performance Standards or
Minimum Service Levels under any Transaction Document persistently or
continuously and if Equifax reasonably believes such failure is attributable in
whole or in part to IBM's reassignment, movement, or other changes in the human
resources allocated by IBM to the performance and delivery of the Services
pursuant to such Transaction Document or the Agreement and/or to the IBM
subcontractors assigned to the Equifax service team, Equifax will notify IBM of
such belief and the basis for such belief. Upon receipt of such notice from
Equifax, IBM (a) will promptly provide to Equifax a report setting forth IBM's
position regarding the matters raised by Equifax in its notice; (b) will meet
with Equifax to discuss the matters raised by Equifax in its notice and IBM's
positions with regard to such matters; and (c) will promptly and diligently take
commercially reasonable action to modify or eliminate any IBM practices and/or
processes identified as adversely impacting the performance and delivery of the
Services.
7.4 EFFICIENT USE OF RESOURCES
IBM shall take commercially reasonable actions (a) to efficiently administer,
manage, operate and use the resources employed by IBM to provide and perform the
Services that are chargeable to Equifax under the Agreement, and (b) to
diligently and continuously improve the performance and delivery of the Services
by IBM and the elements of the policies, processes, procedures and System that
are used by IBM to perform and deliver the Services, including, without
limitation, re-engineering, tuning, optimizing, balancing or reconfiguring the
processes, procedures and systems used to perform, deliver and track the
Services.
8. RELATIONSHIP PROTOCOLS
8.1 EVOLVING NATURE OF RELATIONSHIP
a) The Supplement and Schedules to each Transaction Document will be
updated by the Parties as necessary or appropriate from time to time
during the Term to accurately reflect the evolution of the Services and
components and elements of the Services as described therein. The
preceding sentence is not intended, nor is it authorization, to expand
the scope of the Services except as provided pursuant to SECTION 3.12
entitled "New Services."
b) For the one hundred-eighty (180) days following the Commencement
Date under each Transaction Document, IBM and Equifax reserve the
right to inventory, validate and update any information that is
reflected in or omitted from the Transaction Document and attached
Supplement and/or Schedules. If discrepancies are detected, the
Transaction Document, Supplement and/or Schedules shall be promptly
changed, modified, updated and adjusted to correct such
discrepancies upon mutual agreement, so that the Transaction
Document, Supplement and/or Schedules will be correct and accurately
reflect the Services and charges provided by IBM to Equifax Group.
If either Party disputes the existence of a discrepancy identified
by the other Party, the Parties will submit the matter to the
Equifax/IBM Integrated Planning Team for dispute resolution as
specified in SECTION 16.
c) Both Equifax and IBM agree that the Services provided may require
adjustments to reflect the evolving business and operations of the
Equifax Group and IBM, that the relationship memorialized by the
Agreement and the Transaction Documents is dynamic in nature and
will evolve as the operating and business environment of the Equifax
Group changes and evolves, and that the scope of the Services that
will be provided by IBM during the Term and corresponding fees
charged by IBM may be changed and modified with the written
agreement of the Parties pursuant to the Change Control Process.
Therefore, the Integrated Planning Team will periodically evaluate
the business and operating strategies of each Party and recommend
modifications to, and evolution of, the Services (including the
Performance Standards and
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Minimum Service Levels) to optimize such strategies and
determine the effect that any modifications of the Services may have
on the fees chargeable by IBM under the Agreement.
8.2 REQUIRED CONSENTS
a) The Equifax Group shall remain the contracting party of record for
the Third Party Agreements allocable to each Transaction Document
and to which the Equifax Group is a party on the Execution Date
under each such Transaction Document. Equifax shall have the
responsibility for timely obtaining all Required Consents under the
Third Party Agreements allocable to a Transaction Document and to
which the Equifax Group is a party, except Third Party Agreements to
which IBM or any Affiliate of IBM is a party. IBM will provide
Equifax with advice and counsel regarding IBM's experience and
agreements with the third party vendors under the Third Party
Agreements to which the Equifax Group is a party on the Execution
Date under each such Transaction Document with regard to obtaining
any Required Consents, and the benefit of any relationship of IBM
with each such third-party vendor to the extent permitted under the
IBM-third party vendor arrangement to obtain any Required Consent.
IBM will have management and administrative responsibilities for
obtaining all Required Consents under the Third Party Agreements
allocable to each Transaction Document existing on the Execution
Date of each such Transaction Document, subject to the consent of
Equifax to the terms of each such Required Consent. IBM shall have
the responsibility for timely obtaining all Required Consents under
Third Party Agreements allocable to a Transaction Document to which
IBM or an Affiliate is a party, subject to the consent of Equifax to
the terms of each such Required Consent. The provisions of this
Section shall be applicable to New Services unless otherwise
provided by the Parties in the documentation governing New Services.
b) Subject to the provisions of SECTION 8.3, IBM will use commercially
reasonable efforts to obtain, and will act as Equifax's attorney in
fact in connection with obtaining, any Required Consents that are
both (i) the obligation of Equifax under Section 8.2(a), and (ii)
under Third Party Agreements allocable to a Transaction Document
that are entered into after the Execution Date under such
Transaction Document. Upon obtaining a third party vendor's
agreement to terms for a Required Consent, the Required Consent
shall be provided to Equifax for review, approval, and signature. If
IBM is unable to obtain the Required Consent within a reasonable
time in a form acceptable to Equifax, then the Parties' obligations
with respect to the performance of, and payment for, any Services
dependent on such Required Consent shall be determined in accordance
with the provisions of SECTION 8.2(e).
c) Subject to SECTION 8.2(d), Equifax shall bear the costs, if any, of
obtaining all Required Consents, including without limitation, all
charges and fees related to obtaining the Required Consents for the
Third Party Agreements allocable to each Transaction Document and to
which the Equifax Group is a party existing as of the Execution Date
under each such Transaction Document, except agreements for software
manufactured by IBM and its Affiliates and Third Party Agreements
relating to Systems Software, Machine maintenance and Machine
leases, IBM shall bear the costs of obtaining all Required Consents
for the Third Party Agreements allocable to each Transaction
Document existing as of the Execution Date under each Transaction
Document and not described above as the responsibility of Equifax.
For all Third Party Agreements allocable to each Transaction
Document entered into after the Execution Date under each such
Transaction Document, the Party requesting the product or service to
which the Third Party Agreement relates shall bear the costs, if
any, of obtaining Required Consents. In addition, Equifax shall bear
the costs, if any, associated with the cancellation and re-licensing
of any Software allocable to a Transaction Document and licensed by
the Equifax Group prior to the Execution Date under such Transaction
Document if required for IBM to provide the Services after the
Commencement Date under such Transaction Document, except Software
licensed from IBM or any Affiliate of IBM. IBM shall bear the cost,
if any, associated with the cancellation and re-licensing of any
Software allocable to a Transaction Document and licensed by the
Equifax Group prior to the Execution Date under such Transaction
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Document licensed from IBM or any Affiliate of IBM , if required for
IBM to provide the Services after the Commencement Date under such
Transaction Document. The provisions of this Section shall be
applicable to New Services unless otherwise provided by the Parties
in the documentation governing New Services
d) Notwithstanding anything to the contrary in SECTION 8.2(c), IBM
shall bear any costs allocable to Equifax under SECTION 8.2(c)
provided that: (i) the costs are incurred because the third party
vendor from whom a Required Consent is requested or who requires
cancellation and re-licensing of Software has a pre-existing policy
to charge for or not grant a Required Consent or to require
cancellation and re-licensing of Software because of a dispute with
IBM, (ii) the third party vendor does not have such a policy
generally with respect to outsourcing vendors with whom the third
party vendor does not have a dispute, (iii) the policy is not
limited to IBM's outsourcing activities with the Equifax Group, and
(iv) Equifax uses diligent and commercially reasonable efforts to
convince the vendor to treat IBM on the same basis as other
outsourcing vendors. In any such case, IBM may propose a
functionally equivalent substitute, if available, for the product or
service provided by the third party vendor, and Equifax will
consider in good faith implementation of such substitute product or
service. No substitute product or service will be implemented
without the consent of Equifax, which shall not be unreasonably
withheld. IBM's liability under this Section 8.2(d) shall be limited
to the amounts charged by a third party vendor that are directly
attributable to such third party vendor's pre-existing policy to
charge for Required Consents or to require cancellation and
relicensing of Software when IBM or another outsourcing vendor with
which a dispute exists is the outsourcing services provider and
shall not in any event include any amounts that would have otherwise
been charged by such third party vendor if another outsourcing
services provider was requesting a Required Consent or obtaining the
right to access Software.
e) Notwithstanding any other provision of the Agreement, no Services
requiring a Required Consent shall commence and no Monthly Charge or
other charge shall commence for such Services until all applicable
Required Consents for such Services are obtained, unless otherwise
agreed by the Parties; provided, however, that to the extent the
Monthly Charge or other charge includes amounts that constitute
unrecovered investment of IBM, such amounts will be due and payable
to IBM by Equifax within a period not to exceed six (6) months
following commencement of such Services. IBM will publish a list
each month setting forth the status of each Required Consent until
all Required Consents are obtained. Equifax shall timely cooperate
with IBM in order to facilitate the proper and timely publication of
such monthly Required Consents list. Subject to the foregoing
portion of this SECTION 8.2(e), if any Required Consent is not
obtained with respect to any of the Third Party Agreements existing
as of the Commencement Date under any Transaction Document, and
prior to the Commencement Date, the Parties agree to commence the
provision of Services without such Required Consents, the Parties
shall cooperate with each other in achieving a reasonable
alternative arrangement for Equifax to continue to process its work
with minimum interference to its business operations unless and
until such Required Consents are obtained. The cost of achieving
such reasonable alternative arrangement shall be borne by IBM if
caused by Required Consents needed from (i) IBM or Affiliates of
IBM, (ii) from the licensors of the IBM Software, and/or (iii) from
third-party vendors under any Third Party Agreements treating
outsourcing arrangements involving IBM as the services provider
differently than their standard policies afforded to other
outsourcing services providers generally as described in SECTION
8.2(c), and in all other instances such cost shall be borne by
Equifax.
8.3 APPOINTMENT AS ATTORNEY IN FACT
a) Equifax appoints IBM as the attorney in fact of the members of the
Equifax Group, and IBM accepts such papointment as a part of the
Services, for the limited purposes of administering, managing,
supporting, operating under and paying under the Third Party
Agreements to which one or more members of the Equifax Group is a
party, and to obtain certain Required Consents as provided in
SECTION 8.2(b), in connection with the Services as contemplated by
the Agreement. Equifax does not appoint IBM as the
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attorney in fact of the members of the Equifax Group for the
purposes of entering into oral or written agreements with any
individual or business entity for or in the name of the Equifax
Group or their Affiliates, without the prior express written
approval of Equifax. Equifax agrees to promptly notify all Third
Party Providers under the Third Party Agreements to which one or
more members of the Equifax Group is a party of such appointment.
Subject to its obligation to indemnify Equifax for any applicable
penalties, damages, termination or other charges under SECTION 14.1,
IBM may direct that the Equifax Group cancel, substitute, terminate,
change or add to the Third Party Providers under the Third Party
Agreements as it chooses so long as IBM continues to perform the
Services in the manner required by the Agreement; provided, however,
IBM must submit written notification to Equifax and obtain Equifax's
written agreement prior to the cancellation, substitution,
termination, change or addition of any Third Party Agreement to
which one or more members of the Equifax Group is or will be a
party. If Equifax does not respond to such notice from IBM within
twenty-one (21) business days of Equifax's receipt of such notice,
Equifax shall be deemed to have agreed to the cancellation,
substitution, termination, change or addition described in the IBM
notice. If any such cancellation, substitution, termination, change
or addition of a Third Party Agreement will have an impact on the
operations of users that are outside the scope of the Services and
Equifax has notified IBM prior to the expiration of the Equifax
response period described above of such impact and IBM elects to
proceed, IBM will provide or cause to be provided the products
and/or services that are the subject of such Third Party Agreement
to the users that are outside the scope of the Services on terms no
less favorable than the terms of the applicable Third Party
Agreement.
b) IBM will perform its obligations and responsibilities as an attorney
in fact pursuant to SECTION 8.3(a) under all Third Party Agreements
to which a member of the Equifax Group is a party subject to the
provisions of the Agreement, including, without limitation, SECTION
8.2, this SECTION 8.3, SECTION 9.1 and SECTION 11. Upon Equifax's
request, IBM will provide to Equifax all information and
documentation related to its activities as the Equifax Group's
attorney in fact with regard to such Third Party Agreements. Equifax
may terminate or provide additional restrictions on IBM's attorney
in fact appointment with respect to any Third Party Agreement to
which one or more of the members of the Equifax Group is a party if
IBM (i) fails to pay any amount due in a timely manner; (ii) permits
an actual default to occur; or (iii) does not diligently pursue the
service and financial benefits available to the Equifax Group under
such Third Party Agreement.
c) Beginning on the Execution Date (as defined in the applicable
Transaction Document) of each Transaction Document and for the term of
each such Transaction Document, the Equifax Group will not enter into
any new, or terminate or amend any existing, Third Party Agreement to
which one or more members of the Equifax Group is a party that
adversely impacts IBM's ability to provide the Services covered by such
Transaction Document or increases IBM's cost of providing such Services
without the prior written consent of IBM.
8.4 CONFLICTS OF INTERESTS
a) Each Party recognizes that IBM personnel providing Services to the
Equifax Group under the Agreement may perform similar services for
others and the Agreement shall not prevent IBM from performing similar
services for others subject to the restrictions set forth in SECTION 11
AND/OR THE APPLICABLE TRANSACTION DOCUMENT; provided, however, IBM
shall not use any of the Equifax Provided Hardware or Equifax Software
or Equifax Provided Office Furnishings to perform similar services for
others (including the IBM), without the prior written consent of
Equifax.
b) Neither Party, through its personnel at any site covered under a
Transaction Document, shall knowingly, directly or indirectly, solicit
any employee of the other Party or their Affiliates at such site during
the Term of the Agreement unless otherwise agreed in writing by the
Parties and except as provided in
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SECTION 12.6(g). Equifax or IBM employee's responses to or
employment resulting from general public solicitations will be
exempted from this provision.
c) Any specific restrictions related to Key Employees shall be as
specified in the applicable Transaction Document.
8.5 ALTERNATE PROVIDERS
a) During the Term, Equifax shall have the right to retain third party
suppliers to perform any service, function, responsibility, activity
or task that is within the scope of the Services or would constitute
a New Service pursuant to SECTION 3.12, or to perform any such
services, functions, responsibilities or tasks (whether all or a
part of the Services or the New Services) internally. IBM shall
cooperate with any such third party supplier and Equifax as
requested from time to time. Such cooperation shall include, without
limitation, (i) providing reasonable physical and electronic access
to the Facilities, the Data Center and the books and records in the
possession of IBM regarding the Equifax Business and/or the
Services; (ii) use of any Machines used by IBM to perform services
for the Equifax Group for the Equifax Business; (iii) use of any of
the Software (other than any Software where the underlying license
agreement does not authorize such access and consent permitting such
access and use has not been obtained); (iv) providing such
information (subject to an appropriate confidentiality agreement, if
appropriate) regarding the operating environment, System
constraints, and other operating parameters as is reasonably
necessary for the work product of the third party supplier of the
Equifax Group to be compatible with the Services or New Services;
and (v) such other reasonable cooperation as may be requested by
Equifax.
b) IBM's obligations hereunder shall be subject to the third party
suppliers' compliance with reasonable Facilities and Data Center data
and physical security and other applicable standards and procedures,
execution of appropriate confidentiality agreements, and reasonable
scheduling of computer time and access to other resources to be
furnished by IBM pursuant to the Agreement.
c) If IBM's cooperation with Equifax or any third party supplier
performing work as described in SECTION 8.5(a), causes IBM to expend
a material amount of additional resources and incur costs that IBM
would not otherwise have expended but which fall within the scope of
activities comprising the Services, such additional resources and
costs will be charged to Equifax under the established charging
mechanism and/or Resource Unit Baseline therefor; provided, however,
if the additional resources expended and costs incurred are not
within the scope of activities comprising the Services, Equifax
shall reimburse IBM at its standard rates for such resources subject
to SECTION 9.11 hereof and for such costs as invoiced. The Parties
further agree that if in IBM's reasonable, good faith determination,
a third party supplier's activities affect IBM's ability to meet the
Performance Standards or otherwise provide the Services in
accordance with the Agreement, IBM will provide written notice to
Equifax of such determination. The Parties will cooperate to
determine and verify whether such effect is caused by a third party
supplier, the extent of such affect, and how to ameliorate any such
effect. IBM shall be excused for any inability to meet the
Performance Standards, Minimum Service Levels or otherwise provide
any of the Services to the extent, and only for the period, any such
third party supplier's activities directly affect and impact IBM's
ability to meet any Performance Standard or Minimum Service Level or
otherwise provide any of the Services in accordance with the
Agreement.
d) Equifax's retention of third party suppliers pursuant to this SECTION
8.5 to perform services, functions, activities, tasks or
responsibilities that are within the scope of the Services shall not
relieve Equifax of its obligations set forth in the Agreement to pay
IBM the charges applicable to such services, functions, activities,
tasks or responsibilities as set forth in the Agreement, unless Equifax
is relieved from such charge pursuant to a provision of the Agreement
or by the agreement of IBM.
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8.6 USE OF SUBCONTRACTORS
a) Within thirty (30) days after the Commencement Date under each such
Transaction Document, the Parties will develop and prepare a list of
approved subcontractors under each such Transaction Document that the
Parties agree may be engaged by IBM to perform and deliver the part or
portion of the Services indicated on such list as a subcontractor to IBM
(the "Listed Subcontractors"). Affiliates of IBM shall be deemed to be
Listed Subcontractors. With respect to subcontractors which are not
Listed Subcontractors, IBM shall notify Equifax at least fifteen (15)
business days prior to the proposed date of commencement by IBM of any
subcontractor's activity with respect to the Equifax Group or the
Services, in writing of a decision to delegate or subcontract a function,
responsibility or task to a subcontractor, or to change subcontractors
for any function, responsibility or task, (i) that could have a material
affect on the quality, timing, cost, consistency or performance of the
Services under any Transaction Document or on the operations of any
member of the Equifax Group or on the security of the Equifax Group data,
books and records, or Facilities, or on the Equifax Business as conducted
by any member of the Equifax Group, or (ii) where the subcontractor will
interface directly with the members of the Equifax Group. Upon Equifax's
request, IBM shall promptly provide to Equifax information regarding the
proposed new or replacement subcontractors in order to permit Equifax to
determine whether to grant its consent to such delegation or change or
subcontract. Such information shall include the scope of the Services to
be delegated, and the experience, financial status, resources, and reason
for selection of the proposed subcontractors. Subject to IBM's timely
provision of the foregoing information to Equifax, Equifax shall be
deemed to have accepted such delegation or subcontract or change that is
the subject of the notification by IBM to Equifax, if Equifax has not
notified IBM in writing of its good faith objections to such delegation
or subcontract on or before the fifteenth (15th) day after receipt of
such notice from IBM. IBM shall not delegate or subcontract or change
subcontractors unless and until IBM and Equifax shall have resolved any
objection timely made by Equifax to such proposed action by IBM. In
addition, IBM shall not disclose any Confidential Information of the
Equifax Group to any subcontractor unless and until such subcontractor
has agreed in writing to protect the confidentiality of such Confidential
Information in a manner equivalent to that required of IBM by SECTION 11.
b) IBM shall remain primarily liable and obligated to Equifax for the timely
and proper performance of all of its obligations hereunder even if such
obligations are delegated to third party subcontractors (including,
without limitation, Affiliates of IBM entering into Transaction Documents
with Equifax and Affiliates of Equifax), and for the proper and timely
performance and actions of any person or entity to which it delegates or
subcontracts any such obligation.
8.7 EQUIFAX APPROVALS AND NOTIFICATION
For those areas of the Services where Equifax (a) has reserved a
right-of-approval, consent or agreement, (b) is required to provide
notification, and/or (c) is to perform a responsibility set forth in the
Agreement, and such approval, consent, notification or performance is delayed or
withheld beyond the period provided in the Agreement, including any Transaction
Document and the Supplement and the Schedules thereto, without authorization or
right and, such delay or withholding is not caused by IBM and affects IBM's
ability to provide the Services under the Agreement including any Transaction
Document and the Supplement and Schedules thereto, Equifax will relieve IBM of
the responsibility for meeting the Performance Standards and Minimum Service
Levels for that portion of the Services to the extent, but only to the extent,
directly affected by such delay or withholding. Equifax will reimburse IBM in
accordance with the Agreement for additional resources, if any, incurred during
such period as a direct result thereof. If not specified otherwise in the
Agreement, the period for such approval or notification shall be fifteen (15)
business days unless another time period is otherwise agreed by the Parties.
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9. CHARGES/NEW SERVICES/INVOICES/PAYMENTS
9.1 DISBURSEMENTS
Beginning on the Commencement Date of each Transaction Document, IBM will pay as
part of the Services covered by such Transaction Document the Third Party
Providers for the provision of the software, products and services under the
Third Party Agreements as set forth in the applicable Transaction Document. In
addition, IBM will reimburse Equifax in a timely manner for payments to such
Third Party Providers by the Equifax Group for amounts allocable to periods on
and after the Commencement Date under each such Transaction Document. Equifax
will promptly reimburse IBM for all payments to such Third Party Providers made
by IBM if such payments are allocable to the periods prior to any such
Commencement Date and are not otherwise the responsibility of IBM under the
Agreement. If IBM should receive during the Term any refund, credit or other
rebate in respect of such Third Party Agreements which is attributable to a
period prior to the Commencement Date under the applicable Transaction Document,
IBM will promptly notify Equifax of such refund, credit or rebate and will
promptly pay to Equifax the full amount of such refund, credit or rebate. If
Equifax should receive during the Term any refund, credit or other rebate in
respect of such Third Party Agreements which is attributable to a period after
the Commencement Date under the applicable Transaction Document, Equifax will
promptly notify IBM of such refund, credit or rebate and will promptly pay to
IBM the full amount of such refund, credit or rebate.
9.2 MONTHLY CHARGE
For each month of each Contract Year during the term under each Transaction
Document, Equifax agrees to pay the Monthly Charge as specified in the
Supplement and Schedules to such Transaction Document, together with the other
amounts as described in this SECTION 9.
All periodic charges under each Transaction Document are to be computed on a
calendar month basis, and will be prorated for any partial month, unless
specifically stated otherwise in the Agreement (including the applicable
Transaction Document).
On a monthly basis IBM will invoice Equifax the Monthly Charge under each
Transaction Document for that month in advance, as specified in the Supplement
and Schedules to each such Transaction Document. The invoices will separately
state applicable taxes owed by Equifax by tax jurisdiction, and charges for
other elements comprising the Monthly Charge as determined by the Parties
pursuant to SECTION 9.5(b).
9.3 ADDITIONAL CHARGES
Beginning at the end of the first full calendar quarter following the Transition
Period under each Transaction Document and at the end of each calendar quarter
thereafter during the term of each Transaction Document, Equifax and IBM will
review the quantity of Resource Units utilized by Equifax during the preceding
calendar quarter and calculate the net monthly Unplanned Resource Units utilized
by Equifax during such quarter. Equifax and IBM will calculate the charges
applicable to such net monthly Unplanned Resource Units for such quarter in
accordance with the Schedule addressing charges under each Transaction Document,
and Equifax will pay the amount of the result of such calculation in accordance
with SECTION 9.7.
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9.4 COST OF LIVING ADJUSTMENT
IBM will charge or credit Equifax a Cost of Living Adjustment ("COLA") under
each Transaction Document in accordance with the procedures set forth in
SCHEDULE J to each such Transaction Document beginning after the Commencement
Date under each such Transaction Document, as set forth in such Schedule.
9.5 TAXES
a) The disbursements described in SECTION 9.1, the Monthly Charges described
in SECTION 9.2, the additional charges described in SECTION 9.3 and the
COLA described in SECTION 9.4, paid by Equifax are inclusive of
applicable sales, use, excise, personal property or other similar taxes
attributable to the period on or after the Commencement Date under each
Transaction Document based upon or measured by (i) IBM's cost in
acquiring or providing equipment, materials, supplies or third party
services furnished to or used by IBM in providing and performing the
Services, (ii) the value or cost of the IBM Machines and IBM Software;
and (iii) all taxes payable by IBM with respect to its revenues, income
and profit; provided, however, Equifax will be responsible for paying all
personal property or use taxes due on or with respect to Equifax Provided
Hardware, Equifax Software and Equifax Provided Office Furnishings. Each
Party shall bear sole responsibility for all taxes, assessments and other
real property-related levies on its owned or leased real property.
b) The Parties agree to reasonably cooperate with each other in good faith
to more accurately determine and reflect each Party's tax liability and
to minimize such liability to the extent legally permissible. Each Party
shall provide and make available to the other any resale certificates and
other exemption certificates or information reasonably requested by
either Party. The Parties will also work together to segregate the
Monthly Charges and other charges, reimbursements and amounts payable
hereunder, into separate payment accounts charged under separate
invoices, as appropriate, for Services and the components of the Services
(i.e., components that are taxable and nontaxable, including those for
which a sales, use or similar tax has already been paid by IBM and for
which IBM functions merely as a paying agent for Equifax in receiving
goods, supplies or services including licensing arrangements that
otherwise are nontaxable or have previously been subjected to tax,
components that are capitalized, and components that are expensed).
c) Notwithstanding any other provision of the Agreement, if a services,
value added or similar tax is assessed on IBM's provision of the Services
(or any New Services) to Equifax or on IBM's charges to Equifax under the
Agreement, Equifax will be responsible for and pay the amount of any such
tax.
9.6 NEW SERVICES
a) The charges for New Services will be integrated into the Supplement and
Schedules to the affected Transaction Document in accordance with
SECTIONS 3.12 and 17.2.
b) If the Parties cannot agree either that a function, responsibility or
task falls within the definition of a New Service, IBM shall nevertheless
perform the disputed function, responsibility or task if requested by
Equifax. The determination of whether any function, responsibility or
task is a New Service will be determined pursuant to the dispute
resolution provisions in SECTION 16. Equifax shall pay fifty percent
(50%) of any charges for the disputed function, responsibility or task
under this SECTION 9.6 to IBM and fifty percent (50%) of any charges for
the disputed function, responsibility or task under this SECTION 9.6
shall be held by Equifax or paid into an interest bearing escrow account
in accordance with SECTION 9.12, if requested by IBM, pending a
resolution of the dispute in accordance with SECTION 16. Any payment to
Equifax of any such disputed charge paid by Equifax to IBM and into
escrow pursuant to this SECTION 9.6 after resolution of the applicable
dispute, shall be paid first from the amount in escrow with
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respect to such dispute and then by IBM. All amounts not in escrow and
payable directly by either Party to the other Party upon resolution of
the dispute with respect to which amounts are payable shall be paid
promptly upon resolution of the disputed charge together with interest at
the rate of one percent (1%) per month from the date that the payment was
originally due to IBM from Equifax under the Agreement through the date
of payment by IBM to Equifax.
9.7 INVOICE PAYMENT
At its election, Equifax will pay each invoice for charges under the Agreement
either by wire funds transfer or other electronic means acceptable to IBM to an
account specified by IBM or by bank check, within the calendar month in which
such invoice is received by Equifax, provided Equifax receives such invoice on
or before the tenth (10th) day of such month; otherwise such payment shall be
made within thirty (30) days after the date of Equifax's receipt of the invoice.
In the event that any invoice payment is not received by IBM within ten (10)
business days following the date specified for such payment herein, a late
payment fee of one percent (1%) per month, or the maximum amount permissible by
law, whichever is less, of the unpaid, late invoice payment will be due and
payable by Equifax to IBM from the date such payment became overdue through the
date of payment to IBM.
No invoice for charges for any of the Services shall be delivered to Equifax
until after the Services which are the subject of such invoice have been
provided to the Equifax Group; provided, however, any Services that are
expressly stated in the Agreement as prepaid or paid in advance shall be
excluded from the limitation of this sentence to the extent, but only to the
extent, expressly set forth in the Agreement.
9.8 BENCHMARK STUDY
a) At the end of the first * * * years of the Term and at the end of
each * * * year period thereafter, Equifax U.S. may elect to have a
benchmark study performed for all in-scope Towers on a Transaction
Document basis or for any subset of such Towers. The cost payable to a
third party benchmark organization for the benchmark activity will be
split equally by the Parties. The Parties will jointly designate and
engage the third party benchmark organization. The benchmark study will
focus on outsourcing services providers that regularly provide the full
range of Services provided by IBM to the Equifax Group under the
Agreement and on the outsourcing engagements of those providers for
substantially similar services in substantially similar quantities.
b) Each Transaction Document will set forth a price/performance value for
each Tower included in Services provided under such Transaction Document
and the scale or system against which such price/performance value was
determined (the "Performance Value"). The Performance Value will be
either the Norm or an agreed deviation from the Norm, and the Parties
shall exercise the rights and obligations described herein if IBM's
overall performance rating with respect to the Services is not as good as
the agreed upon Performance Value. For purposes of the Agreement, the
"NORM" shall be the average price/performance of all customers (both
outsourced and non-outsourced customers) being compared during the
benchmark study against the scale or system pursuant to which such
customers were measured.
c) The result of each benchmark study will be submitted to the IPT, Equifax
and IBM. In the event that the benchmark study indicates that IBM's
overall performance rating as compared to the applicable Performance
Value rating for any Tower under a Transaction Document is not as good as
the Performance Value for such Tower(s), the IPT will promptly use such
study as an evaluative tool to identify opportunities for improvements in
the technical configuration, performance, cost and/or aggregate pricing
of the Services allocable to such Tower(s).
d) With respect to each area identified by the IPT in each benchmark study
as an area for improvement in the
* * * Indicates omitted material that is the subject of a Confidential
Treatment Request filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933.
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technical configuration, performance, cost and/or aggregate pricing of
the Services allocable to the Tower which is the subject of the study, as
set forth in SECTION 9.8(c), IBM will (i) with the cooperation of
Equifax, prepare and submit to the IPT an action plan, including an
estimated completion date, to conform each identified area for
improvement to the agreed Performance Value, (ii) start the
implementation of such plan within six (6) months of the identification
by the IPT of such area, and (iii) proceed in a commercially reasonable
manner to complete the plan in the agreed period, to conform such area to
the agreed Performance Value. Equifax will cooperate with IBM in a
commercially reasonable manner to assist IBM in this activity.
Notwithstanding the foregoing, IBM may, at its sole discretion, elect to
adjust its pricing on a prospective basis so as to meet the agreed
Performance Value.
e) Completion of the agreed improvement plan or adjustment of the price, as
set forth in Section 9.8(d), shall be IBM's complete obligation with
respect to the benchmark study results.
f) In the event that IBM shall fail to comply with the requirements of
SECTION 9.8(d) as to one or more Towers, Equifax may terminate the
applicable Transaction Document with respect to the Tower(s) as to which
IBM has failed to comply with the requirements of SECTION 9.8(d), take
the Services allocable to such Tower(s) in-house or place them with a
third party outsourcing services provider, and take such portion of the
Services out of the scope of the Services and receive a credit for such
reduction in the Services against the charges for the Services allocable
to such Tower(s). Upon such termination, Equifax will not be required to
pay any Termination Charge allocable to such Tower(s), but will be
required to pay any Wind-Down Expenses allocable to such Tower(s).
g) Nothing in this SECTION 9.8 shall be deemed to reduce or increase the
obligations of IBM to provide the Services and/or satisfy the Performance
Standards and Minimum Service Levels as set forth in the Agreement.
9.9 SERVICE CREDITS
If IBM fails to provide the Services in accordance with the Minimum Service
Levels set forth in any Transaction Document, IBM shall incur the charges set
forth in a Schedule to such Transaction Document (each, a "Service Credit";
collectively, the "SERVICE CREDITS") against the amounts owed to IBM for the
second month following the month in which the Service Credits were incurred. The
Parties agree that the Service Credits are a fair estimate of the damages that
the Equifax Group will incur for each event for which a Service Credit is
granted in the Agreement, that the actual damages incurred by the Equifax Group
in each such event would be difficult and costly to determine, and that the
Service Credits are liquidated damages awarded in lieu of actual damages
incurred by the Equifax Group. The Parties agree that the Service Credits are
not penalties and are the sole and exclusive remedy of Equifax with respect to
the incident or event with respect to which such Service Credits are paid or
credited by IBM to Equifax subject to and as limited by the provisions of
SECTIONS 12 AND 13.
9.10 OTHER CREDITS
Except as otherwise set forth in the Agreement, with respect to any amount to be
paid or reimbursed to Equifax by IBM at the time any such amount is due and
payable to Equifax, IBM may pay that amount to Equifax by applying a credit for
the month such amount is due and payable against the charges otherwise payable
to IBM under the Agreement, at IBM's option. Notwithstanding the foregoing, if
the amount to be so paid or reimbursed by IBM in any specific month, exceeds the
charges to Equifax for such month, IBM shall promptly pay any difference to
Equifax by check or wire transfer during such month. If IBM fails to pay any
amount due and payable to Equifax or fails to apply a credit during the month
such amount is due and payable, IBM shall pay or credit such amount together
with interest thereon payable at a rate of one percent (1%) per month, or the
maximum amount permissible by law, whichever is less, of the unpaid,
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late monies will be due and payable by IBM to Equifax from the date such monies
became due to Equifax through the date of payment or credit to Equifax.
9.11 COMMERCIALLY VALUED CUSTOMER
IBM will offer pricing to the Equifax Group for the Services provided pursuant
to a Transaction Document that will be at least as favorable as the pricing
extended by IBM, or in the case of a Transaction Document that has been assigned
to an IBM Affiliate, the pricing extended by IBM or such IBM Affiliate, to its
commercial customers within the same country after the Effective Date, who are
purchasing comparable services in similar or lesser volumes. Equifax may choose
to accept such pricing subject to any changes in terms and conditions to reflect
the terms and conditions under which IBM or such IBM Affiliate extended such
pricing to such other IBM customer or customers; provided, however, that the
provisions of this SECTION 9.11 apply only to initial pricing and repricing of
agreements entered into by IBM or IBM Affiliates with such customers after the
Effective Date.
9.12 DISPUTED CHARGES/CREDITS
In the event Equifax disputes the accuracy or applicability of a charge or
credit or other financial arrangement described in the Agreement (i.e., Monthly
Charge, Unplanned Resource Units, COLA, Service Credits, pass-through xxxxxxxx,
etc.), Equifax shall notify IBM of such dispute as soon as practicable after the
discrepancy has been discovered. The Parties will investigate and resolve the
dispute using the dispute resolution processes provided under SECTION 16 of the
Agreement. Any undisputed amounts contained in or applicable to an invoice will
be paid by Equifax and any undisputed credit amounts will be promptly credited
by IBM. Upon request of either Party, Equifax in the case of a disputed charge,
or IBM in the case of a disputed credit, shall place the disputed amount in an
interest bearing escrow account established for the benefit of the Parties,
until such dispute is resolved. Upon resolution of the dispute, the Parties
shall be paid any interest having accrued on the disputed amounts held in the
escrow account in connection with such dispute in proportion to the amount
received by each Party with respect to such dispute, and the Parties shall each
pay a portion of the escrow fees attributable to the disputed amount in an
inverse proportion to the percentage of the disputed amount paid to each Party.
Unpaid and uncredited monies that are in dispute and placed in escrow will not
be considered a basis for monetary default under the Agreement.
9.13 REDUCTION OF EQUIFAX WORK
a) If, during the Term, Equifax experiences significant changes in the scope
or nature of its business which have or are reasonably expected to have
the effect of causing a substantive and sustained decrease in the amount
of IBM resources used in performing the Services, provided such decreases
are not due to Equifax resuming the provision of such Services by itself
or Equifax transferring the provision of such Services to another vendor,
such changes shall be governed by this SECTION 9.13. Examples of the
kinds of events that might cause such substantial decreases are:
1) changes in Equifax's products or markets;
2) mergers, acquisitions or divestitures; or
3) changes in market priorities.
b) Equifax will notify IBM of any event or discrete set of events which
Equifax believes qualifies under this SECTION 9.13, and IBM will identify
in a plan that will be submitted to Equifax for review and acceptance,
any changes that can be made to accommodate such decrease of resource
requirements in a cost-effective manner without disruption to Equifax's
ongoing operations, and the cost savings that will result therefrom.
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c) Upon acceptance by Equifax, IBM will make any applicable adjustments to
the Annual Service Charge and the related Baselines to reflect the
foregoing and distribute an amended Supplement to the Parties.
d) Equifax may, at its option and expense, employ an accredited and
independent auditor to verify IBM's methodology for calculating the
savings referenced above conforms to accepted accounting practices.
10. INTELLECTUAL PROPERTY RIGHTS
IBM, the members of the Equifax Group and their respective contractors and
subcontractors may develop, create, modify or personalize (collectively,
"DEVELOP") certain computer programming code, including source and object code
("CODE") and other Materials in order to perform the Services. The provisions of
this SECTION 10 set forth the respective rights of Equifax and IBM in such Code
and other Materials. This SECTION 10 does not apply to development,
modification, creation, or personalization of templates for commercially
available IBM products (for example, Lotus Notes templates). To the extent that
Services under any Transaction Document include the development, modification,
creation or personalization of such templates, rights with respect to such
templates will be set forth in the applicable Transaction Document or applicable
Schedule(s).
10.1 OWNERSHIP OF MATERIALS
With respect to any Materials whether Developed solely by IBM or its
subcontractors, or jointly by the Equifax Group personnel or their
subcontractors and IBM or its subcontractors, ownership will be as follows:
a) Equifax Code, Equifax Derivative Code and Equifax Works shall be owned by
Equifax or another member of the Equifax Group, as applicable. During the
Term, IBM shall have an irrevocable, nonexclusive, worldwide, paid-up
license to use, execute, reproduce, display, perform, operate,
distribute, modify, develop, personalize and create Derivative Works from
such Materials internally, and the right to sublicense third parties to
do any of the foregoing, for the sole purpose of performing the Services.
b) IBM Code, IBM Derivative Code, IBM Works and IBM Interfaces shall be
owned by IBM. During the Term , the Equifax Group shall have an
irrevocable, nonexclusive, worldwide, paid-up license to use in the
Equifax Business, execute, operate, reproduce, display, perform,
distribute, modify, Develop, personalize and create Derivative Works
from, such Materials internally, and the right to sublicense third
parties to do any of the foregoing for the Equifax Group.
c) With respect to any Materials whether or not Developed under the
Agreement, which are or have been Developed solely by the Equifax Group
personnel and/or their contractors, such Materials shall be owned by
Equifax. IBM shall have an irrevocable, nonexclusive, worldwide, paid-up
license to use, execute, operate, reproduce, display, perform,
distribute, modify, Develop, personalize and create Derivative Works from
such Materials internally and the right to sublicense third parties to do
any of the foregoing, to the extent necessary and for the sole purpose of
performing the Services during the Term.
d) Any ownership or license rights herein granted to either Party or another
member of the Equifax Group or any other Authorized Users are limited by
and subject to any patents and copyrights held by, and terms and
conditions of any license agreements with, applicable Third Party
Providers.
e) To the extent that by operation of law any of the Materials may not be
owned by IBM or the Equifax Group to which ownership has been allocated
under this SECTION 10, each Party agrees to promptly assign, or cause to
be assigned, and take such actions and execute and deliver such documents
as shall be necessary or appropriate to effect such assignment without
further consideration. Each Party hereby assigns, without further
consideration, the ownership of all right, title and interest in all U.S.
and foreign copyrights, and
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mask work rights (if any) in the Materials to the other Party as set
forth in this SECTION 10. Such assignee shall have the right to obtain
and hold in its own name or transfer patents and copyrights,
applications, registrations, renewals and all other rights relating or
pertinent thereto.
10.2 OBLIGATIONS REGARDING MATERIALS
a) The Parties agree to reproduce copyright legends which appear on any
portion of the Materials which may be owned by the Parties and any and
all third parties.
b) Except as set forth in SECTION 11, the Agreement shall not preclude
either Party from Developing materials or providing services which are
competitive to the Materials or Services which might be delivered
pursuant to the Agreement, except to the extent any of same may infringe
any of the other Party's patent rights, copyrights, trade secrets or mask
work rights.
c) Neither the Agreement nor any disclosure made hereunder grants any
license to either Party under any patents rights, copyrights, mask work
rights or trade secrets of the other Party, except for the licenses
expressly granted under this SECTION 10 and SECTION 12.6 hereof.
d) Each Party and their respective Affiliates shall have the right to
develop commercialize, use, publish and distribute materials and/or
intellectual property which may be substantially similar to the Materials
(including, without limitation, computer programs and other copyrighted
works) for their own use, for third parties or for other purposes
provided that such activities are effected without breach of their
obligations under the Agreement and do not infringe the intellectual
property rights of the other Party and/or its Affiliates.
11. CONFIDENTIALITY/DATA SECURITY
11.1 CONFIDENTIAL INFORMATION
IBM and Equifax each acknowledge that the other Party and/or its Affiliates
possesses and will continue to possess information, which has commercial value
in such other Party's and/or its Affiliates' business and is not in the public
domain. Such information has been created, discovered, developed by such other
Party and its Affiliates or provided to it by a third party, and such other
Party and/or its Affiliates holds property rights in such information by
assignment, license or otherwise. "CONFIDENTIAL INFORMATION" means with respect
to a Party, any and all proprietary business information of the disclosing Party
and/or its Affiliates and/or of third parties in the possession of the
disclosing Party and its Affiliates treated as secret by the disclosing Party
and its Affiliates (that is, it is the subject of efforts by the disclosing
Party and/or its Affiliates that are reasonable under the circumstances to
maintain its secrecy) that does not constitute a Trade Secret (defined below),
including, without limitation, the terms of the Agreement, and any and all
proprietary information in the possession of such disclosing Party and/or its
Affiliates of which the receiving Party and/or its Affiliates become aware as a
result of its access to and presence at the other Party's and/or its Affiliates'
facilities. "TRADE SECRETS" mean with respect to a Party, information related to
the services and/or business of the disclosing Party and/or its Affiliates
and/or of a third party which (a) derives economic value, actual or potential,
from not being generally known to or readily ascertainable by other persons who
can obtain economic value from its disclosure or use; and (b) is the subject of
efforts by the disclosing Party and/or its Affiliates that are reasonable under
the circumstances to maintain its secrecy, including without limitation (i)
marking any information reduced to tangible form clearly and conspicuously with
a legend identifying its confidential or proprietary nature; (ii) identifying
any oral presentation or communication as confidential immediately before,
during or after such oral presentation or communication; or (iii) otherwise,
treating such information as confidential or secret. Assuming the criteria in
sections (a) and (b) above are met, Trade Secrets include, but are not limited
to, technical and nontechnical data, formulas, patterns, compilations, computer
programs and software, devices, drawings, processes, methods, techniques,
designs,
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programs, financial plans, product plans, and lists of actual or potential
customers and suppliers. "COMPANY INFORMATION" means collectively the
Confidential Information and Trade Secrets. Company Information also includes
information which has been disclosed to either Party and/or its Affiliates by a
third party which such Party and/or its Affiliates is obligated to treat as
confidential or secret.
11.2 OBLIGATIONS
a) Equifax and IBM will each refrain from disclosing, will hold as
confidential, and will use the same level of care to prevent disclosure
to third parties and to hold confidential, the Company Information of the
other Party as it employs to avoid disclosure, publication or
dissemination of its own information of a similar nature but in no event
less than a reasonable standard of care. Notwithstanding the foregoing,
the Parties and their Affiliates to which a Transaction Document is
assigned may disclose Company Information in the case of Equifax and its
Affiliates which accept assignment of a Transaction Document, to members
of the Equifax Group, and in the case of both Parties and their
Affiliates, which accept assignment of a Transaction Document, to the
authorized contractors and subcontractors involved in providing and using
the Services under the Agreement where: (i) such disclosure is necessary
to permit the members of the Equifax Group and the contractor or
subcontractor to perform its duties hereunder or use the Services; (ii)
members of the Equifax Group and the contractor or subcontractor agree in
writing to observe the confidentiality and restricted use and disclosure
covenants and standards of care set forth in this SECTION 11 and IBM and
Equifax are each third party beneficiaries for all purposes; and (iii)
IBM in the case of Equifax Company Information received by IBM and/or its
Affiliates and disclosed by them as permitted herein or Equifax in the
case of IBM Company Information received by Equifax and/or its Affiliates
and disclosed by them as permitted herein, assumes full responsibility
for the acts or omissions of its Affiliates, contractors and
subcontractors no less than if the acts or omissions were those of IBM
and Equifax respectively.
b) Neither Equifax nor IBM shall use the Company Information of the other
Party except in the case of IBM and its Affiliates and subcontractors,
(i) in connection with the performance of the Services and (ii) as
otherwise specifically permitted in the Agreement, and in the case of
Equifax, its contractors and other members of the Equifax Group, (A) as
specifically permitted in the Agreement and (B) in connection with the
use of the Services. IBM shall be responsible to ensure that its
Affiliates and subcontractors comply with this SECTION 11.2(b) and
Equifax shall be responsible to ensure that the members of the Equifax
Group and its contractors comply with this SECTION 11.2(b).
c) Without limiting the generality of the foregoing, neither Party nor their
Affiliates will publicly disclose the terms of the Agreement, except to
the extent permitted by this SECTION 11 and to enforce the terms of the
Agreement, without the prior written consent of the other. Furthermore,
neither IBM nor Equifax nor their Affiliates will make any use of the
Company Information of the other Party and its Affiliates except as
contemplated by the Agreement; acquire any right in or assert any lien
against the other Party's Company Information except as contemplated by
the Agreement; or refuse to promptly return, provide a copy of or destroy
such Company Information upon the request of the disclosing Party.
d) Notwithstanding any other provision of the Agreement, neither Party will
be restricted in using, in connection with its business operations, any
data processing or network management ideas, concepts, know-how and
techniques which are retained in the minds of employees who have had
access to the other Party's Company Information.
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11.3 EXCLUSIONS
Notwithstanding the foregoing, this SECTION 11 will not apply to any information
which IBM or Equifax can demonstrate was: (a) at the time of disclosure to it,
in the public domain; (b) after disclosure to it, published or otherwise becomes
part of the public domain through no fault of the receiving party; (c) without a
breach of duty owed to the disclosing party, is in the possession of the
receiving party at the time of disclosure to it; (d) received after disclosure
to it from a third party who had a lawful right to and, without a breach of duty
owed to the disclosing party, did disclose such information to it; or (e)
independently developed by the receiving party without reference to Company
Information of the disclosing party. Further, either Party may disclose the
other Party's Company Information to the extent required by law or order of a
court or governmental agency. However, the recipient of such Company Information
must give the other Party prompt notice and make a reasonable effort to obtain a
protective order or otherwise protect the confidentiality of such information,
all at the discloser's cost and expense. It is understood that the receipt of
Company Information under the Agreement will not limit or restrict assignment or
reassignment of employees of IBM and its Affiliates and the Equifax Group within
or between the respective Parties and their Affiliates.
11.4 LOSS OF COMPANY INFORMATION
The receiving Party will immediately notify the disclosing Party, orally or in
writing in the event of any disclosure, loss, or use in violation of the
Agreement of a disclosing Party's Company Information known to the receiving
Party.
11.5 LIMITATION
The covenants of confidentiality set forth herein (a) will apply after the
Effective Date to any Company Information disclosed to the receiving Party
before and after the Effective Date and (b) will continue and must be maintained
from the Effective Date through the termination of the relationship between the
Parties and (i) with respect to Trade Secrets, until the earlier of ten (10)
years after termination of the Agreement or until such Trade Secrets no longer
qualify as trade secrets under applicable law; and (ii) with respect to
Confidential Information for a period equal to the shorter of two (2) years
after termination of the Parties' relationship under the Agreement, or until
such Confidential Information no longer qualifies as confidential under
applicable law. Neither Party will be responsible for the security of the
Company Information of the other Party during transmission via public
communications facilities or for the loss of or damage to such information
during transmission, except to the extent that such breach of security or loss
or damage is caused by the failure of such Party to perform its obligations
under the Agreement, including exercising the standard of care set forth in
SECTION 11.2(a).
11.6 DATA
All of Equifax's Company Information (including, without limitation, data,
records and reports related to the Equifax Group, the Equifax Business and the
Services) is represented by Equifax to be the exclusive property of Equifax,
and/or its Affiliates or the property of third parties licensed to Equifax
and/or its Affiliates, and the furnishing of such information, data, records and
reports to, or access to such items by, IBM and/or its Affiliates and/or
subcontractors will not grant any express or implied license to or interest in
IBM and/or its Affiliates and/or subcontractors relating to such information,
data, records and reports except as required to perform the Services pursuant to
the Agreement. Unless specifically provided otherwise in a Transaction Document,
IBM shall have no responsibility with respect to compliance with laws or
regulations applicable to the storage, maintenance, and distribution of Equifax
Company Information to the extent that any such activity by IBM is performed or
implemented in accordance with Equifax's instruction or direction. Upon request
by Equifax at any time and from time to time and without regard to the default
status of the Parties under the Agreement, IBM and/or its Affiliates and/or
subcontractors shall promptly deliver to Equifax Equifax's Company Information
(including without limitation all data, records and related reports regarding
the Equifax Group, the Equifax Business and the Services) in electronic (tape)
format and in such hard copy as existing on the date of the request by Equifax.
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12. TERMINATION
12.1 TERMINATION BY EQUIFAX
Equifax may terminate any individual Transaction Document for the following
reasons:
a) A material breach of such Transaction Document by IBM and/or its
Affiliates that remains uncured for ten (10) days after receipt of
written notice thereof; provided, however, if a material breach of such
Transaction Document by IBM and/or its Affiliates (other than a breach of
SECTION 11 hereof) occurs that by its nature cannot be cured by IBM in
such ten (10) day period but IBM submits a commercially reasonable
written plan to Equifax within such period to cure such breach after the
ten (10) day period (but in no event more than forty five (45) days after
such notice of breach), the cure period for such breach shall be extended
to the date set forth in the plan; or
b) There exists a series of non-material or persistent breaches by IBM
and/or its Affiliates that in the aggregate have a material and
significant adverse impact (i) on the Services support of the
administrative, management, planning, financial reporting or operations
functions of the Equifax Group or the portion of the Equifax Group
constituting the user group under such Transaction Document, or (ii) on
the management of the Services or the portion of the Services covered by
such Transaction Document; or
c) For convenience upon one hundred eighty (180) days prior notice by
Equifax to IBM; or
d) In the event of a Change of Control of IBM or Equifax, upon one hundred
eighty (180) days prior notice by Equifax to IBM, which notice must be
given within 180 days after the Change of Control; or
e) IBM and/or its Affiliate that has accepted assignment of such Transaction
Document becomes insolvent or is unable to pay its debts or enters into
or files (or has filed or commenced against it) a petition, arrangement,
application, action or other proceeding seeking relief or protection
under the bankruptcy laws of the United States or any similar laws of the
United States or any state of the United States or any other country or
transfers all or substantially all of its assets to another person or
entity; or
f) IBM and/or its Affiliate that has accepted assignment of such Transaction
Document incurs Direct Damages to Equifax in excess of the IBM Direct
Damages Cap under the circumstances and resulting from the events
described in SECTION 13.1(a)(i); or
g) Under the circumstances set forth in SECTION 17.3.
12.2 TERMINATION BY IBM
IBM may terminate any Transaction Document for a material default by Equifax
that remains uncured for a period of sixty (60) days after written notice
thereof to Equifax from IBM.
12.3 TERMINATION CHARGES
a) In the event of a termination by Equifax pursuant to SECTIONS 12.1(c) for
convenience or (d) for Change of Control, Equifax shall pay IBM the
applicable Termination Charge, and Wind-Down Expenses. In the event of a
termination by Equifax pursuant to SECTION 17.3 for a Force Majeure
Event, Equifax shall pay IBM the amounts set forth in SECTION
17.3(c)(ii), but will not be responsible for Termination Charges or
Wind-Down Expenses. In the event of a termination by Equifax pursuant to
SECTIONS 12.1(a) for cause or (B) for persistent breaches or (E) for
Bankruptcy or (F) for exceeding the IBM Direct Damages Cap or
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SECTION 3.3 for failing to provide disaster recovery services, Equifax
shall not be responsible for the payment of the applicable Termination
Charge or Wind-Down Expenses. In the instance of a termination by Equifax
pursuant to SECTION 12.1(b) for persistent non-material breaches, Equifax
may not recover any damages from IBM for the defaults and breaches by IBM
giving rise to the termination; provided that nothing in this sentence
shall preclude any recovery by Equifax pursuant to SECTION 8.4(b),
SECTION 9, SECTION 10, SECTION 11, SECTION 12, SECTION 13, SECTION 14,
SECTION 15, or SECTION 17.3.
b) Except as set forth in SECTION 12.3(a), Equifax shall not be obligated to
pay any charges that would otherwise accrue and be payable by Equifax
pursuant to the Agreement or any Transaction Document after the effective
date of the expiration or termination of the Agreement or any such
Transaction Document.
12.4 [RESERVED]
12.5 SERVICES TRANSFER ASSISTANCE
a) The Parties agree that IBM will cooperate with the Equifax Group to
assist in the orderly transfer of the services, functions,
responsibilities, tasks and operations comprising the Services under each
Transaction Document provided by IBM and its Affiliates hereunder to one
or more members of the Equifax Group itself or another services provider
in connection with the expiration or earlier termination of the Agreement
and/or each Transaction Document for any reason, however described.
Neither the Term of the Agreement nor any Transaction Document shall be
deemed to have expired or terminated until the Services Transfer
Assistance thereunder is completed. Upon Equifax's request IBM or its
Affiliate shall provide transfer assistance in connection with migrating
the work of the Equifax Group to the Equifax Group itself or another
services provider ("SERVICES TRANSFER ASSISTANCE") commencing up to one
(1) year prior to expiration or upon any notice of termination, or of
non-renewal of the Agreement or any Transaction Document. In the event
Equifax shall repeatedly fail to pay any amounts when due and payable
under the Agreement within two (2) years of the start of Services
Transfer Assistance, with or without an attendant termination for cause
by IBM, IBM shall not be required to provide Services Transfer Assistance
unless Equifax prepays the applicable Monthly Charges for the entire
duration of Services Transfer Assistance, if any, applicable to the
Transaction Document(s) being terminated and a reasonable projection of
other charges due under such Transaction Documents for the entire period
Equifax requests Services Transfer Assistance. In no event will Equifax's
holding of or escrow of monies in compliance with SECTION 9.12 be
considered a failure by Equifax to pay amounts due and payable hereunder.
Further, IBM shall provide the Services Transfer Assistance in accordance
with this SECTION 12.5 even in the event of Equifax's material breach
(other than an uncured payment default) with or without an attendant
termination for cause by IBM, if Equifax prepays a reasonable projection
of the other charges due under the Transaction Document(s) being
terminated (other than the Monthly Charge which shall be paid monthly as
provided in the Supplement) for the Services Transfer Assistance for the
entire period Equifax desires IBM to provide such services to the Equifax
Group or its designees. Services Transfer Assistance shall be provided
through the effective date of the expiration or termination of the
Services under the Transaction Documents being terminated, and upon
request by Equifax, the effective date of such expiration or termination
shall be extended for up to one (1) year thereafter pursuant to the terms
and conditions of the Agreement and applicable Transaction Document(s)
and such period shall be considered an extension of the Term and the term
of such Transaction Documents, however any such extension shall not
affect the payment date or amount of any applicable Termination Charges,
which Termination Charges shall be due and payable as of the initially
noticed effective date of termination. Services Transfer Assistance shall
include, but not be limited to, providing the Equifax Group and their
respective agents, contractors and consultants, as necessary, with
services described in a Schedule to each Transaction Document.
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b) If any Services Transfer Assistance provided by IBM requires the
utilization of additional resources that IBM would not otherwise use in
the performance of the Agreement and applicable Transaction Documents but
for which there is a current Resource Unit Baseline, Equifax will pay IBM
for such usage at the then-current applicable Transaction Document(s)
charges and in the manner set forth in the applicable Transaction
Document(s). If the Services Transfer Assistance requires IBM to incur
costs that IBM would not otherwise incur in the performance of the
Services under the Agreement and applicable Transaction Document(s), then
IBM shall notify Equifax of the identity and scope of the activities
requiring that IBM incur such costs and the projected amount of the
charges that will be payable by Equifax for the performance of such
assistance. Upon Equifax's authorization, IBM shall perform the
assistance and invoice Equifax for such charges. Within thirty (30)
business days after the date of the invoice, Equifax shall pay IBM for
authorized, additional charges incurred to provide such assistance to
Equifax.
c) If Equifax exercises its option to prepay the Monthly Charges and other
charges reasonably projected by IBM for Services Transfer Assistance with
regard to any Transaction Document and it is determined that such
prepayment is in excess of the actual charges associated with the
Services Transfer Assistance, then IBM shall apply such overpayment to
monies otherwise due IBM or, if no monies are due IBM, promptly refund
such overpayment to Equifax at the end of such Services Transfer
Assistance. Conversely, if the amount prepaid by Equifax to IBM for
Services Transfer Assistance with regard to any Transaction Document does
not fully reimburse IBM for the actual Monthly Charges due and costs
incurred by IBM and chargeable to Equifax hereunder for the provision of
Services Transfer Assistance to Equifax, then IBM shall invoice Equifax
and Equifax shall promptly pay IBM for such additional amounts as
incurred and invoiced to Equifax.
12.6 OTHER RIGHTS UPON TERMINATION
At the expiration or earlier termination of the Agreement and/or any Transaction
Document for any reason, however described, IBM agrees in each such instance, as
applicable:
a) Upon Equifax's request, IBM agrees to sell to Equifax or its designee for
the fair market value thereof, the IBM Machines owned by IBM then
currently being used by IBM primarily to perform the Services or the
portion of the Services covered by the Transaction Document, as
applicable. In the case of IBM Machines that IBM is leasing and using
primarily to perform the Services, IBM agrees to permit Equifax or its
designee to either buy-out the lease on the IBM Machines and purchase the
IBM Machines from the lessor or assume the lease(s) and secure the
release of IBM thereon, subject to the terms of the applicable lease.
Equifax shall be responsible for any sales, use or similar taxes
associated with such purchase of such IBM Machines or the assumption of
such leases.
b) IBM will grant to the members of the Equifax Group and their Affiliates
an irrevocable, nonexclusive, worldwide, perpetual, paid-up source and
object code license to use, execute, operate, reproduce, display,
perform, distribute, modify, Develop and personalize, and create
Derivative Works from, the IBM Derivative Code, IBM Code, IBM Works and
IBM Interfaces as a part of and in connection with the Equifax Business,
and the right to sublicense third parties to do any of the foregoing for
the members of the Equifax Group. Except as specifically set forth in
this SECTION 12.6(b), nothing in this SECTION 12.6(b) grants Equifax any
license to any materials from which IBM Derivative Code or IBM Works are
derived.
c) IBM will provide to the Equifax Group a source code and an object code
license for IBM Software proprietary to IBM and not otherwise owned by or
licensed to Equifax in accordance with SECTION 12.6(b) and not generally
commercially available for use by the Equifax Group as a part of and in
connection with the Equifax Business, upon terms and prices to be
mutually agreed upon by the Parties (which prices shall not be greater
than those then offered to other customers of IBM as described in SECTION
9.11 or, in the case
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where no such customers exist, other third parties). At Equifax's option,
IBM will recommend a mutually agreeable commercially available
substitute, if available, to perform the same function.
d) Subject to SECTION 12.6(e), if IBM has licensed or purchased and is using
any generally commercially available Software to provide the Services to
the Equifax Group at the date of expiration or termination of the
Agreement or any Transaction Document, Equifax may elect to take a
transfer or an assignment of the license for such software (and any
attendant maintenance agreement), subject to the terms of such license,
and reimburse IBM for the initial license or purchase charges for such
IBM Software in an amount equal to the remaining unamortized cost of such
Software, if any, depreciated over a five (5) year life. Equifax shall
also pay any transfer fee or charge imposed by the applicable vendor and
not the obligation of IBM hereunder, and subject to Equifax's acceptance
of any applicable vendor terms and conditions, such licensed Software
shall be transferred or assigned to Equifax.
e) If IBM has licensed or purchased and is using any generally commercially
available Software to provide the Services to the Equifax Group and other
IBM customers in a shared environment at the date of expiration or
termination of the Agreement or any Transaction Document, IBM, upon
request by Equifax, will assist Equifax in obtaining licenses for such
Software (and any attendant maintenance agreement) subject to Equifax's
payment of any license fee and other charge imposed by the applicable
vendor.
f) IBM will use commercially reasonable efforts to negotiate license
arrangements with third parties that will minimize the amount of license
and maintenance agreement transfer and assignment fees to be paid by
Equifax. Equifax may participate in the negotiation of such license and
maintenance agreement arrangements. IBM shall provide reasonable advance
written notice to Equifax of such anticipated negotiations.
g) Upon the date of expiration or termination of the Agreement or any
Transaction Document for any reason, the Equifax Group shall have the
right to make offers of employment to any or all IBM employees performing
Services on a substantially full time basis for the Equifax Group
hereunder or under such Transaction Document, as applicable ("SERVICE
EMPLOYEES"). Promptly after either Party provides the other Party written
notice of termination or expiration with the prior consent of each
Services Employee (each of whom IBM will notify of Equifax's interest),
IBM agrees, subject to the agreement of the Service Employees, to supply
Equifax with the names and resumes requested by Equifax for the purpose
of exercising its rights under this SECTION 12.6, at no charge. Equifax's
rights under this SECTION 12.6 will take precedence over any IBM/employee
employment contract or covenant that may otherwise limit an employee's
right to accept employment with the Equifax Group.
h) Upon Equifax's request, IBM will transfer or assign to Equifax or its
designee, on mutually acceptable terms and conditions, any Third Party
Agreements not otherwise treated in this SECTION 12.6, applicable solely
to services being provided to Equifax, including, without limitation,
Third Party Agreements for maintenance, Disaster Recovery Services and
other necessary third party services then being used by IBM to perform
the Services subject to the payment by Equifax of any transfer fee or
charge imposed by the applicable vendors.
12.7 EFFECT OF TERMINATION/SURVIVAL OF SELECTED PROVISIONS
Notwithstanding the expiration or earlier termination of the Services or the
Agreement or any Transaction Document for any reason however described, the
following Sections of the Agreement shall survive any such expiration or
termination: SECTION 8.4(b), SECTION 10, SECTION 11, SECTION 12.5, SECTION 12.6,
SECTION 12.7, SECTION 13, SECTION 14, SECTION 15, SECTION 16.1 and SECTION 17.
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13. LIABILITY
13.1 LIABILITY CAPS
a) Except as provided in SECTION 13.2, the liability of IBM and its
Affiliates to Equifax and its Affiliates under each Transaction Document
arising out of or resulting from the performance or non-performance of
IBM and/or its Affiliates and/or subcontractors of the Services and its
obligations under such Transaction Document shall be limited in the
aggregate for all claims, causes of action or occurrences:
(i) to Direct Damages incurred by Equifax and its Affiliates equal to
the charges paid by Equifax for the Services set forth in the
supplement to such Transaction Document during the twelve (12)
calendar months immediately prior to the first event which is the
subject of the first claim or if twelve (12) months have not
elapsed in the term of such Transaction Document at the time of
the first such event, the charges to Equifax for the Services set
forth in such Supplement during the first twelve (12) months of
the term of such Transaction Document ("IBM Direct Damages Cap");
and
(ii) in the event Equifax claims Direct Damages for event(s) which are
the subject matter of claim(s) or cause(s) of action which are the
basis for and result in Equifax's termination of the Agreement or
any Transaction Document pursuant to SECTION 12.1(a) FOR CAUSE OR
(e) FOR BANKRUPTCY, and the IBM Direct Damages Cap operates to
preclude Equifax's recovery of its full amount of Transition Cover
Costs, then Equifax shall be entitled to recover an additional
amount from IBM, not to exceed fifty percent (50%) of the Direct
Damages Cap, which amount shall be applied only toward such
unrecovered Transition Cover Costs.
b) Except as provided in SECTION 13.2, the liability of Equifax to IBM
arising out of or resulting from the performance and non-performance of
its obligations under each Transaction Document shall be limited in all
cases to Direct Damages which in the aggregate shall not exceed the
amounts payable by Equifax upon a termination of such Transaction
Document for convenience under SECTION 12.3(a) (the "EQUIFAX DIRECT
DAMAGES CAP"). The IBM Direct Damages Cap and the Equifax Direct Damages
Cap are herein collectively called the "DIRECT DAMAGES CAPS".
13.2 EXCLUSIONS
The provisions of SECTION 13.1 will not apply to (a) failure to pay amounts that
are due and payable under the Transaction Documents, including but not limited
to Monthly Charges, charges for New Services, Termination Charges, Wind-Down
Expenses, accrual and distribution of disputed amounts and interest under
SECTION 9.12 and amounts payable under SECTION 17.3(c)(ii); (b) the
indemnification obligations of the Parties pursuant to SECTION 14; (c) Losses
arising from a violation of the confidentiality provisions of SECTION 11; (d)
amounts to be paid or credited to Equifax as Service Credits; (e) amounts
payable by IBM under the force majeure provisions of SECTION 17.3(c)(i) of the
Agreement; and (f) amounts payable to Equifax under SECTION 9.10 (Other
Credits).
13.3 DIRECT DAMAGES AND COVER CHARGES
Unless specifically provided to the contrary in the Agreement, neither party
shall have any liability whether based on contract, tort (including without
limitation, negligence), warranty, guarantee or any other legal or equitable
grounds to the other party for any damages other than Direct Damages.
a) "DIRECT DAMAGES" mean actual, direct damages incurred by the claiming
Party which include, by way of example but without limitation, (i) the
costs to correct any deficiencies in the Services rendered by IBM, (ii)
the difference in the amounts to be paid to IBM hereunder and the charges
to be paid to another service
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or product provider to provide, and/or the costs incurred by Equifax
and/or its Affiliates to perform, all or a portion of the Services during
any period or periods that IBM and/or its Affiliates are failing to
provide, or are deficient in their performance of, the Services, (iii)
the Service Credits, (iv) Transition Cover Costs, and (v) similar
damages, but "Direct Damages" shall not include (A) loss of interest,
profit or revenue of the claiming Party or (B) incidental, consequential,
special or indirect damages suffered by the claiming Party (except as the
damages described in (A) and (B) are included as a part of the
Termination Charge and the Service Credits or as otherwise provided for
in the Agreement) and shall not include punitive or exemplary damages
suffered by the claiming Party arising from or related to the Agreement,
even if such Party has been advised of the possibility of such losses or
damages.
b) "TRANSITION COVER COSTS" means all costs and expenses incurred by the
Equifax Group to transition to another provider of information management
and communications services, and/or take in-house, some or all of such
functions, responsibilities, tasks and activities comprising the portion
of the Services provided under a terminated Transaction Document, after
commercially reasonable efforts to mitigate such costs and expenses.
13.4 DEPENDENCIES
In no event will IBM or its subcontractors be liable for any damages if and to
the extent caused by Equifax's or its Affiliates' or its subcontractors' failure
to perform its responsibilities hereunder; provided, however, for the purposes
of this SECTION 13.4, neither IBM nor its Affiliates nor the Third Party
Providers shall be considered a subcontractor of Equifax. Neither Equifax nor
its Affiliates or subcontractors shall be liable for any damages if and to the
extent caused by any failure to perform by IBM or its Affiliates or
subcontractors.
13.5 REMEDIES
At its option, Equifax may seek all remedies available to it under law and in
equity or recover as liquidated damages the Service Credits, subject to the
limitations and provisions specified in this SECTION 13. If IBM's provision of
the Services is such that IBM would otherwise owe Equifax a Service Credit and
Equifax elects to recover Service Credits, Equifax's recovery of Service Credits
shall constitute acknowledgment by Equifax of full satisfaction and release of
any claim by Equifax that IBM has breached its obligations under the Agreement
with respect to any such event(s) giving rise to the Service Credits. However,
within three (3) calendar months of the receipt of any Service Credits Equifax
received with respect to any action or inaction by IBM upon which Equifax is
basing termination for cause under SECTION 12.1(a) or termination for persistent
breaches under SECTION 12.1(b), Equifax may return, such Service Credits and
pursue a damage claim against IBM, if any such claim exists.
14. INDEMNITIES
14.1 INDEMNITY BY IBM
IBM will indemnify and hold each member of the Equifax Group and their
respective officers, directors, employees, agents, successors, contractors and
assigns (each an "INDEMNITEE") harmless from and against any and all Losses
incurred by any of them arising from or in connection with:
a) any Claims of infringement of any patent or any copyright, trademark,
service xxxx, trade name, trade secret, or similar property right
conferred by contract or by common law or by any law of any country,
including without limitation, the United States, and any other applicable
jurisdiction or any state, alleged to have been incurred because of or
arising out of any aspect of the Services (including without limitation
any information technology, information management and communications
services, equipment, software or other resources) provided by IBM and/or
its Affiliates or subcontractors in its performance of the Services;
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provided, however, IBM will have no obligation with respect to any Losses
to the extent arising from or in connection with Claims for copyright
infringement and/or breach of software licenses related to the Services
committed by an Indemnitee or any employee of an Indemnitee that is not
the result of IBM and/or its Affiliates or subcontractors failing to
perform its obligations under the Agreement including, without
limitation, obtaining any Required Consent for which it has
responsibility; and provided, further, that IBM will have no obligation
with respect to any Losses to the extent arising out of or in connection
with an Indemnitee's modification of a program or a machine provided by
IBM and/or its Affiliates or subcontractors, or an Indemnitee's
combination, operation or use of the services, equipment, software or
other resources provided by IBM and/or its Affiliates or subcontractors
with devices, data, programs or other resources not furnished by, through
or at the specification of IBM or its Affiliates or subcontractors, or an
Indemnitee's use of equipment or software provided by IBM and/or its
Affiliates to such Indemnitee under a Transaction Document in a country
or countries other than those countries specifically designated in the
Transaction Document or a written notice to Equifax from IBM;
b) any Claims, however described (including without limitation, failure to
obtain Required Consents or arising from IBM's exercise of its rights to
terminate, modify or change the Third Party Agreements pursuant to
SECTION 8.3(a)), accruing during the term of a Transaction Document (that
is, not arising or resulting from a breach by the Equifax Group before
such effective date or after the termination date of such Transaction
Document) regarding any Third Party Agreement covered by such Transaction
Document; provided, however, IBM will have no obligation with respect to
any Losses to the extent arising out of or in connection with Claims for
copyright infringement and/or breach of software licenses related to the
Services (i) committed by any Indemnitee or any employee of an Indemnitee
that is not the result of IBM and/or its Affiliates or subcontractors
failing to perform its obligations under such Transaction Document
including, without limitation, obtaining any Required Consent for which
it has responsibility or (ii) to the extent arising out of or result from
Equifax failing to perform its obligations under the Agreement including
obtaining any Required Consent for which it has responsibility;
c) any Claims for personal injuries, death or damage to tangible personal or
real property of third parties including employees of IBM, its
Affiliates, contractors and subcontractors caused by the negligence or
willful misconduct of IBM, its employees, Affiliates, contractors or
subcontractors; provided that IBM will have no obligation under this
part, to the extent the same arise out of or in connection with the
negligence or willful misconduct of a member of the Equifax Group;
d) any Claims for amounts, including but not limited to taxes, interest and
penalties, assessed or claimed against the Equifax Group which are
obligations of IBM under the Agreement;
e) any Claim for violation of environmental laws or regulations arising out
of the Agreement or as a result of the Services performed at the
Facilities, the Data Center or the other Equifax sites or locations to
the extent IBM or its Affiliates or subcontractors has caused the
environmental damage or violation of the environmental laws or
regulations from which the Claim arises;
f) any Claims directly attributable to IBM's decision to request that
Equifax cancel, substitute, terminate, change, add or breach any Third
Party Agreement and Equifax's assent to and compliance with such decision
and Losses (not to exceed the financial estimate specified in Section
3.8(d)) incurred by Equifax associated with such decision by IBM and
compliance by Equifax;
g) any Claims for penalties, interest and other charges imposed by a taxing
authority (except the actual taxes payable by Equifax under the terms of
the Agreement) arising out of or resulting from IBM issuing an incorrect
invoice or other information provided to Equifax in writing regarding its
charges to Equifax for the Services to Equifax; and
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h) any Claims by any Affected Employees arising out of or resulting from
their employment, or the termination of their employment, with IBM and/or
its Affiliates, except to the extent any such Claim arises from a
wrongful act of Equifax and/or its Affiliates and/or subcontractors.
In the event and to the extent that a Claim is made against an Indemnitee by an
employee of IBM, its contractors or subcontractors providing services, products
and/or software hereunder, the Parties agree that IBM shall indemnify and hold
harmless the Indemnitee to the same extent as if the Claim was made by a
non-employee of IBM, its contractors or subcontractors. IBM's indemnification
hereunder shall be primary and immediate. Accordingly, in addition to other
provisions herein, and in order to render the Parties' intent and this
indemnification agreement fully enforceable, IBM, in an indemnification claim
hereunder, expressly and without reservation waives any defense or immunity it
may have under any applicable workers' compensation law(s) or any other statute
or judicial decision disallowing or limiting such indemnification and consents
to a cause of action for indemnity. This waiver and consent to indemnification
is made irrespective of and specifically waiving any defense or immunity under
any statute or judicial decision.
14.2 INDEMNITY BY EQUIFAX
Equifax will indemnify and hold harmless IBM, its Affiliates that are assignees
of a Transaction Document, and their respective officers, directors, employees,
agents, successors and assigns (each an "IBM INDEMNITEE") harmless from and
against any and all Losses incurred by any of them arising from or in connection
with:
a) any Claims of infringement of any patent or any copyright, trademark,
service xxxx, trade name, trade secret, or similar property right
conferred by contract or by common law or by any law of any country,
including without limitation, the United States and any other applicable
jurisdiction or any state, alleged to have been incurred because of or
arising out of any equipment, materials and other resources (including
without limitation information technology, information management and
communications services equipment, software or other resources) provided
to IBM and/or its Affiliates by the Equifax Group in connection with the
performance of the Services; provided, however, Equifax will have no
obligation with respect to any Losses to the extent arising out of or in
connection with Claims for copyright infringement and/or breach of
software licenses related to the Services, committed by an IBM Indemnitee
or any employee of an IBM Indemnitee that is not the result of the
Equifax Group failing to perform its obligations under the Agreement
including, without limitation, obtaining any Required Consent for which
it has responsibility; and provided, further, that Equifax will have no
obligation with respect to any Losses to the extent arising out of or in
connection with an IBM Indemnitee's modification of a program or a
machine provided by a member of the Equifax Group, or a IBM Indemnitee's
combination, operation or use of the equipment, software or other
resources provided by the Equifax Group with devices, data, programs or
other resources not furnished by the Equifax Group, or an IBM
Indemnitee's use of equipment or software provided by the Equifax Group
to such IBM Indemnitee under a Transaction Document in a country or
countries other than those countries specifically designated in the
Transaction Document or a written notice to IBM from Equifax or an
applicable Third Party Agreement;
b) any Claims accruing before the effective date or after the termination
date of a Transaction Document regarding any Third Party Agreements
between members of the Equifax Group and a third party covered by such
Transaction Document, including without limitation, failure to obtain
Required Consents but not including Claims arising or resulting from IBM
and/or its Affiliates failing to perform its obligations under the
Agreement including, without limitation, obtaining any Required Consent
for which it has responsibility;
c) any Claims for amounts, including without limitation, taxes, interest and
penalties assessed or claimed against IBM which are obligations of
Equifax under the Agreement;
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d) any Claims for personal injuries, death or damage to tangible personal or
real property of third parties including employees of the Equifax Group
caused by the negligence or willful misconduct of the Equifax Group or
their employees; provided that Equifax will have no obligation, under
this part, to the extent the same arise out of or in connection with the
negligence or willful misconduct of IBM, its Affiliates or
subcontractors;
e) any Claims arising out of or resulting from the operations of the Equifax
Group, including the provision of access to the Services pursuant to
SECTION 17.15, to the extent such Claims do not arise out of a breach of
the Agreement by IBM and are not the subject of a specific indemnity
provided to Equifax by IBM in SECTION 14.1; provided, however, that
Equifax will have no obligation under this item, to the extent the Claims
arise out of or result from the negligence or willful misconduct of IBM,
its Affiliates or subcontractors;
f) any Claim for violation of environmental laws or regulations arising out
of the Services performed at the Facilities, the Data Center or other
Equifax Group sites or locations except to the extent that IBM or its
Affiliates or subcontractors has caused the environmental damage or
violation of the environmental laws or regulations from which the Claim
arises;
g) any Claims by any Affected Employees arising out of or resulting from
their employment, or the termination of their employment, with Equifax,
except to the extent any such Claim arises from a wrongful act of IBM
and/or its Affiliates and/or subcontractors; and
h) any Claims arising out of or resulting from the operations of the Equifax
Group and arising from acts of Authorized Users.
In the event and to the extent that a Claim is made by an employee of a member
of the Equifax Group against an IBM Indemnitee, the Parties agree that Equifax
shall indemnify and hold harmless the IBM Indemnitee to the same extent as if
the Claim was made by a non-employee of the members of the Equifax Group.
Equifax's indemnification hereunder shall be primary and immediate. Accordingly,
in addition to other provisions herein, and in order to render the Parties'
intent and this indemnification agreement fully enforceable, Equifax, in an
indemnification Claim hereunder, expressly and without reservation waives any
defense or immunity it may have under any applicable workers' compensation
law(s) or any other statute or judicial decision disallowing or limiting such
indemnification and consents to a cause of action for indemnity. This waiver and
consent to indemnification is made irrespective of and specifically waiving any
defense or immunity under any statute or judicial decision.
14.3 EMPLOYMENT ACTIONS
It is agreed that IBM shall be solely and exclusively responsible for personnel
decisions affecting IBM's employees, contractors, subcontractors and agents
(including without limitation, hiring, promotions, training, compensation,
evaluation, discipline, and discharge). Equifax shall be solely and exclusively
responsible for personnel decisions affecting employees, contractors, and agents
of the members of the Equifax Group (including without limitation, hiring,
promotion, training, compensation, evaluation, discipline and discharge).
14.4 EXCLUSIVE REMEDY
The indemnification rights of each Indemnitee and IBM Indemnitee (individually
an "INDEMNIFIED PARTY") for third party Claims pursuant to SECTIONS 14.1 AND
14.2, shall be the sole and exclusive remedy of such Indemnified Party with
respect to each such third party Claim to which such indemnification relates.
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14.5 INDEMNIFICATION PROCEDURES
a) Written notice shall be given to the Party that is obligated to provide
indemnification under SECTIONS 14.1 AND 14.2 (the "INDEMNIFYING PARTY"),
if any civil, criminal, administrative or investigative action or
proceeding is commenced or threatened by a third party (any of the above
being a "CLAIM") against any Indemnified Party. Such notice shall be
given as promptly as practicable but in all events, within a period that
will not prejudice the rights of the Indemnified Party under the
Agreement to defend the Claim. After such notice, if the Indemnifying
Party acknowledges in writing to the Indemnified Party that the Agreement
applies with respect to such Claim, then the Indemnifying Party shall be
entitled to take control of the defense and investigation of such Claim
and to employ and engage attorneys of its sole choice to handle and
defend the same, at the Indemnifying Party's sole cost and expense. The
Indemnifying Party must deliver written notice of its election of taking
such control of the claim to the Indemnified Party not fewer than ten
(10) days prior to the date on which a response to such Claim is due or
such lesser period as is reasonable given the nature of the Claim and the
notice and response time permitted by law or the facts and circumstances.
The Indemnified Party shall cooperate in all reasonable respects with the
Indemnifying Party and its attorneys in the investigation, trial, defense
and settlement of such Claim and any appeal arising therefrom. The
Indemnified Party may participate in such investigation, trial, defense
and settlement of such Claim and any appeal arising therefrom, through
its attorneys or otherwise, at its own cost and expense. No settlement of
a Claim that involves a remedy other than the payment of money by the
Indemnifying Party shall be entered into without the consent of the
Indemnified Party, which consent will not be unreasonably withheld.
b) After notice to the Indemnified Party of the Indemnifying Party's
election to assume full control of the defense of any such Claim, the
Indemnifying Party shall not be liable for any legal expenses incurred
thereafter in connection with the defense of that Claim by the
Indemnified Party. If the Indemnifying Party does not promptly assume
full control over and diligently pursue the defense of a Claim as
provided in this SECTION 14.5, the Indemnified Party shall have the right
to defend, settle or otherwise resolve the Claim in such manner as it may
deem appropriate, at the cost and expense of the Indemnifying Party, and
the Indemnifying Party may participate in such defense, at its sole cost
and expense. In no event shall any settlement of the Claim pursuant to
this SECTION 5(b) require the consent of the Indemnifying Party.
15. INSURANCE AND RISK OF LOSS
15.1 IBM INSURANCE
During the Term of the Agreement, IBM and each IBM contractor and subcontractor
shall maintain and keep in force, at its own expense, the following minimum
insurance coverages and minimum limits:
a) workers' compensation insurance, with statutory limits as required by the
various laws and regulations applicable to the employees of IBM or any
IBM contractor or subcontractor;
b) employer's liability insurance, for employee bodily injuries and deaths,
with a limit of $500,000 each accident;
c) comprehensive or commercial general liability insurance, covering claims
for bodily injury, death and property damage, including premises and
operations, independent contractors, products, services and completed
operations (as applicable to the Services), personal injury, contractual,
and broad-form property damage liability coverages, with limits as
follows: (1) occurrence/aggregate limit of $1,000,000 for bodily injury,
death and property damage per occurrence of $2,000,000 combined
aggregate; or (2) split liability,
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without aggregate limits, of (i) $2,000,000 for bodily injury per person;
(ii) $2,000,000 for bodily injury per occurrence; and (iii) $500,000 per
occurrence for property damage;
d) comprehensive automobile liability insurance, covering owned, non-owned
and hired vehicles, with limits as follows (1) combined single limit of
$1,000,000 for bodily injury, death and property damage per occurrence;
or (2) split liability limits of (i) $1,000,000 for bodily injury per
person; (ii) $1,000,000 for bodily injury per occurrence; and (iii)
$250,000 for property damage; and
e) all-risk property insurance, on a replacement cost basis, covering the
real and personal property of IBM which IBM is obligated to insure by the
Agreement. Such real and personal property may include buildings,
equipment, furniture, fixtures and supply inventory.
All such policies of insurance of IBM and its contractors and subcontractors
shall provide that the same shall not be canceled nor the coverage modified nor
the limits changed without first giving thirty (30) days prior written notice
thereof to Equifax. No such cancellation, modification or change shall affect
IBM's obligation to maintain the insurance coverages required by the Agreement.
Except for workers' compensation insurance, Equifax shall be named as an
additional insured on all such required policies. All liability insurance
policies shall be written on an "occurrence" policy form. Equifax shall be named
as loss payee as its interest may appear on the property insurance policies of
IBM. IBM shall be responsible for payment of any and all deductibles from
insured claims under its policies of insurance. The coverage afforded under any
insurance policy obtained by IBM pursuant to the Agreement shall be primary
coverage regardless of whether or not Equifax has similar coverage. IBM and its
contractors and subcontractors shall not perform under the Agreement without the
prerequisite insurance. Upon Equifax's request, IBM shall provide Equifax with
certificates of such insurance including renewals thereof. Unless previously
agreed to in writing by Equifax, IBM's contractors and subcontractors shall
comply with the insurance requirements herein. The minimum limits of coverage
required by the Agreement may be satisfied by a combination of primary and
excess or umbrella insurance policies. If IBM or its contractors or
subcontractors shall fail to comply with any of the insurance requirements
herein, upon written notice to IBM by Equifax and a ten (10) day cure period,
Equifax may, without any obligation to do so, procure such insurance and IBM
shall pay Equifax the cost thereof plus a reasonable administrative fee as
designated by Equifax. The maintenance of the insurance coverages required under
the Agreement shall in no way operate to limit the liability of IBM to Equifax
under the provisions of the Agreement.
The parties do not intend to shift all risk of loss to insurance. The naming of
Equifax as additional insured is not intended to be a limitation of Provider's
liability and shall in no event be deemed to, or serve to, limit Provider's
liability to Equifax to available insurance coverage or to the policy limits
specified in this SECTION 14, nor to limit Equifax's rights to exercise any and
all remedies available to Equifax under contract, at law or in equity.
15.2 RISK OF PROPERTY LOSS
IBM is responsible for risk of loss of, or damage to, the Software, Machines,
Equifax Provided Office Furnishings and Equifax Group data in its possession or
control, and Equifax is responsible for risk of loss of, or damage to, the
Software, Machines and Equifax Group data in its possession or control.
15.3 MUTUAL WAIVER OF SUBROGATION
a) To the extent permitted by law, IBM and its Affiliates, contractors,
subcontractors, and their respective directors, officers, employees,
agents and insurers hereby waive their rights of subrogation against the
member of the Equifax Group and their respective directors, officers,
employees, agents, contractors and subcontractors for any loss or damage
to the IBM Machines, IBM Software, and other tangible and intangible,
real and personal property of IBM and its Affiliates, contractors and
subcontractors resulting from operations in connection with the
Agreement. Each property and worker's compensation insurance
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policy of IBM and its Affiliates, contractors and subcontractors shall be
endorsed to provide a waiver of any and all rights of subrogation against
the Equifax Group and their respective directors, officers, employees,
agents, contractors and subcontractors for loss resulting from operations
in connection with the Agreement.
b) To the extent permitted by law, Equifax, the other members of the Equifax
Group and their respective directors, officers, employees, agents and
insurers hereby waive their rights of subrogation against IBM and its
Affiliates, contractors and subcontractors for any loss or damage to the
Equifax Provided Hardware, Equifax Software, Equifax Provided Office
Furnishings and other tangible and intangible, real and personal property
of Equifax and the other members of the Equifax Group resulting from
operations in connection with the Agreement. Each property and worker's
compensation insurance policy of Equifax shall be endorsed to provide a
waiver of any and all rights of subrogation against IBM and its
Affiliates, contractors and subcontractors for loss resulting from
operations in connection with the Agreement.
16. DISPUTE RESOLUTION
16.1 DISPUTE RESOLUTION PROCEDURES
a) Any dispute between the Parties either with respect to the interpretation
of any provision of the Agreement or with respect to the performance
hereunder by IBM or by Equifax or their respective Affiliates shall be
resolved as specified in this SECTION 16.1.
1) Upon the written request of either Party, a dispute shall be
submitted to the Integrated Planning Team for resolution.
2) The Integrated Planning Team shall meet as often as necessary to
gather and furnish to each Party all non-privileged information
with respect to the matter in issue which is appropriate and
germane in connection with its resolution.
3) The Integrated Planning Team shall discuss the problem and
negotiate in good faith in an effort to resolve the dispute
without the necessity of any formal proceeding relating thereto.
4) During the course of such negotiation, all reasonable requests
made by one Party to the other for nonprivileged information
reasonably related to the Agreement, will be honored in order that
each Party may be fully advised of the other Party's position.
5) The specific format for such discussions will be left to the
discretion of the Integrated Planning Team, but may include the
preparation of agreed upon statements of fact or written
statements of position furnished by each Party to the other Party.
b) If the Integrated Planning Team does not resolve the dispute within
thirty (30) days after the date of receipt by the other Party of a
request to submit the dispute to the Integrated Planning Team as
described in SECTION 16.1(a)(1) (the "NOTICE"), then the dispute shall be
escalated to an officer of Equifax and an officer of IBM, for their
review and resolution within forty-five (45) days after receipt of the
Notice.
c) If the officers referred to in SECTION 16.1(b) do not resolve the dispute
within forty-five (45) days after the Notice, then the dispute shall be
escalated to the President of Equifax and the IBM corporate officer in
charge of IBM Global Services, for their review and resolution within
sixty (60) days after the Notice.
d) If the dispute is not resolved by the Parties' representatives identified
in SECTION 16.1(c) within ninety (90) days after the Notice, the Parties
agree to try in good faith to resolve the dispute by mediation under the
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Commercial Mediation Rules of the American Arbitration Association,
before resorting to litigation or some other dispute resolution
procedure.
e) If the dispute is not resolved by mediation within one hundred twenty
(120) days after the Notice, then the Parties may initiate formal
proceedings; however, formal proceedings for the judicial resolution of
any such dispute may not be commenced until the earlier of:
1) the designated representatives concluding in good faith that
amicable resolution through continued negotiation of the matter in
issue does not appear likely; or
2) one hundred twenty (120) days after the Notice; or
3) thirty (30) days before the statute of limitations governing any
cause of action relating to such dispute would expire.
Notwithstanding anything to the contrary in this SECTION 16.1(e), the Integrated
Planning Team shall have the authority to stay the time periods set forth in
this SECTION 16.1 upon unanimous vote of its members to take such action.
f) Notwithstanding any other provision of this SECTION 16.1, either Party
may resort to court action for injunctive relief at any time if the
dispute resolution processes set forth in this Section would permit or
cause irreparable injury to such Party or any third party claiming
against such Party, due to delay arising out of the dispute resolution
process.
16.2 CONTINUED PERFORMANCE
The Parties agree to continue performing their respective obligations under the
Agreement while the dispute is being resolved unless and until such obligations
are terminated or expire in accordance with the provisions of the Agreement or
unless such performance is prevented by the actions of the other Party.
17. GENERAL
17.1 RELATIONSHIP OF PARTIES
The Agreement shall not be construed as constituting either Party or its
Affiliates as partner of the other Party and its Affiliates or to create any
other form of legal association that would impose liability upon one Party or
its Affiliates for the act or failure to act of the other Party and its
Affiliates or as providing either Party or its Affiliates with the right, power
or authority (express or implied) to create any duty or obligation of the other
Party and its Affiliates, except as provided in SECTION 8.3. Each Party shall be
responsible for the management, direction and control of the employees of such
Party and its Affiliates and such employees shall not be employees of the other
Party or its Affiliates.
Each Party will submit to the other Party all advertising, written sales
promotion, press releases and other publicity matters relating to the Agreement
in which the other Party's or its Affiliate's name or xxxx is mentioned or
language from which the connection of said name or xxxx xxx be inferred or
implied, and will not publish or use such advertising, sales promotion, press
releases, or publicity matters without prior written approval of the other
Party. However, either Party may include the other Party's and/or its Affiliates
name and a factual description of the work performed under the Agreement on
employee bulletin boards, in its list of references and in the experience
Section of proposals to third parties, in internal business planning documents
and in its annual report to stockholders, and whenever required by reason of
legal, accounting or regulatory requirements.
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17.2 ENTIRE AGREEMENT, UPDATES, AMENDMENTS AND MODIFICATIONS
The Agreement (including the Transaction Documents and the Supplement and
Schedules thereto) constitutes the entire agreement of the Parties and their
Affiliates with regard to the Services and matters addressed therein, and all
prior agreements (including, without limitation, the Agreement for Systems
Operations Services dated April 20, 1993, as amended), letters, proposals,
discussions and other documents regarding the Services and the matters addressed
in the Agreement (including the Transaction Documents and the Supplement and
Schedules) and are superseded and merged into the Agreement (including the
Transaction Documents and the Supplement and Schedules thereto). Updates,
amendments and modifications to the Agreement including the Transaction
Documents may not be made orally, but shall only be made by a written document
signed in the case of this Master Agreement by both Parties and in the case of
each Transaction Document, by the Parties and, if applicable, permitted asignees
of such Transaction Documents. Any terms and conditions varying from the
Agreement (including the Transaction Documents and the Supplement and Schedules
thereto) on any order or written notification from either Party or its
Affiliates shall not be effective or binding on the other Party or its
Affiliates.
17.3 FORCE MAJEURE
a) Neither Party shall be liable for any default or delay in the performance
of its obligations hereunder, except for payment defaults, if and to the
extent and while such default or delay is caused, directly or indirectly,
by fire, flood, earthquake, elements of nature or acts of God, acts of
war, terrorism, riots, civil disorders, rebellions or revolutions,
strikes, lockouts, or labor difficulties or any other similar cause
beyond the reasonable control of such Party and its Affiliates other than
strikes, lockouts, or labor difficulties initiated by such Party's or its
Affiliates or subcontractor's employees; and provided such default or
delay could not have been prevented by reasonable precautions and cannot
reasonably be circumvented by the nonperforming Party or its Affiliates
through the use of alternate sources, work-around plans or other means,
(individually, each being a "FORCE MAJEURE EVENT").
b) If a Force Majeure Event occurs, the nonperforming Party will be excused
from any further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such Party
continues to use commercially reasonable efforts to recommence
performance or observance whenever and to whatever extent possible
without delay. Any Party so delayed in its performance will immediately
notify the other by telephone and describe at a reasonable level of
detail the circumstances causing such delay (to be confirmed in writing
within twenty-four (24) hours after the inception of such delay).
c) If any Force Majeure Event substantially prevents, hinders, or delays
performance of the Services under any Transaction Document necessary for
the performance of the critical functions of the Equifax users of such
Services for more than fifteen (15) consecutive days, then at Equifax's
option:
i) Equifax may procure such Services from an alternate source.
Provided Equifax has not terminated the applicable Transaction
Document pursuant to SECTION 17.3(c)(ii) and Equifax continues to
make payment to IBM under such Transaction Document and Equifax
exerts reasonable efforts to mitigate amounts payable to the
alternate source, IBM will directly and timely pay the alternate
source the full amount charged by such alternate source for the
provision of such Services to Equifax until such time as IBM
restores the Services and meets the Performance Standards but in
no event for more than one hundred eighty (180) days; and/or
ii) Until such time as IBM has restored the Services, Equifax may
terminate the Transaction Document as of a date specified by
Equifax in a written notice of termination to IBM, and Equifax
will pay all fees due and payable through the termination date. If
Equifax elects such termination, Equifax shall only pay on account
of such termination IBM's verifiable unrecovered investment and
deferred profit,
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if any, through the date of termination (but will not be liable
for Termination Charges or Wind Down Expenses) as well as any fees
for Services Transfer Assistance.
d) This SECTION 17.3 does not limit or otherwise affect IBM's obligation to
provide Disaster Recovery Services in accordance with SECTION 3.3 and the
Schedules to each Transaction Document. In the event of a Force Majeure
Event affecting Equifax, this SECTION 17.3 will not limit or otherwise
relieve Equifax's obligation to pay any monies due IBM under the terms of
the Agreement, except as provided in SECTION 17.3(c)(ii) and SECTION 3.3.
17.4 NONPERFORMANCE
To the extent any nonperformance by either Party of its nonmonetary obligations
under the Agreement results from or is caused by the other Party's failure to
perform its obligations under the Agreement, such nonperformance shall be
excused.
17.5 WAIVER
No waiver of any breach of any provision of the Agreement shall constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof.
17.6 SEVERABILITY
If any provision of the Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and such
provision shall be deemed to be restated to reflect the Parties' original
intentions as nearly as possible in accordance with applicable law(s).
17.7 COUNTERPARTS
The Agreement shall be executed in counterparts. Each such counterpart shall be
an original and together shall constitute but one and the same document.
17.8 GOVERNING LAW
The Agreement and any and all claims and disputes arising out of or in
connection with or related to the relationships and arrangements between the
Equifax Group and IBM and its Affiliates described in the Agreement will be
governed by and construed in accordance with the laws of the State of Georgia
and the United States of America. The Parties hereby (a) agree that the U.S.
District Court for the Northern District of Georgia, Atlanta Division, or if
such court does not have subject matter jurisdiction, the appropriate State or
Superior Court sitting in Xxxxxx County, Georgia, shall have exclusive
jurisdiction over the actions arising out of or related to or in connection with
the Agreement and the subject matter of the Agreement, whether in contract,
tort, or any other form of action ("ACTION"); (b) agree to initiate any such
Action against the other Party only in such courts; (c) agree that they shall
not raise any defense to the lawful jurisdiction of such courts; and (d) agree
that they shall not attempt the removal of any Action to any other court,
whether local, state or federal courts of the United States or the courts of any
other country.
17.9 BINDING NATURE AND ASSIGNMENT
The Agreement will be binding on the Parties and their respective successors and
permitted assigns. Except as provided in this SECTION 17.9, neither Party may,
or will have the power to, assign the Agreement without the prior written
consent of the other, which consent shall not be unreasonably withheld, except
that either Party may assign its rights and
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obligations under the Agreement in whole or in part to an Affiliate which
expressly assumes such Party's obligations and responsibilities hereunder,
without the approval of the other Party. The assigning Party shall remain fully
liable for and shall not be relieved from the full performance of all
obligations under the Agreement. Any attempted assignment that does not comply
with the terms of this SECTION 17.9 shall be null and void. Any Party assigning
its rights or obligations to an Affiliate in accordance with the Agreement shall
provide written notice thereof to the other Party together with a copy of the
assignment document, within three (3) business days of such assignment.
17.10 NOTICES
a) Whenever one Party is required or permitted to give notice to the other
Party under the Agreement, such notice will be in writing unless
otherwise specifically provided herein and will be deemed given when
delivered in hand, one (1) day after being given to an express courier
with a reliable system for tracking delivery, or five (5) days after the
day of mailing, when mailed by United States mail, registered or
certified mail, return receipt requested, postage prepaid, or when sent
if delivered by facsimile.
b) Notifications will be addressed as follows:
1) For breach or default under the Master Agreement, notify:
In the case of IBM: In the case of Equifax:
IBM Co-Chairman of the Equifax Co-Chairman of the
Integrated Planning Team Integrated Planning Team
0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
with a copy to: with a copy to:
IBM General Counsel Equifax Chief Legal Officer
Route 100 1600 Peachtree Street, X.X.
Xxxxxx, New York 10569 Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
2) For termination, breach or default under a Transaction Document,
notify:
In the case of IBM: In the case of Equifax:
IBM Project Executive Equifax Project Executive
at the Notice address set forth at the Notice address set forth
in the affected Transaction in the affected Transaction
Document Document
with copies to: with copies to:
IBM Co-Chairman of the Equifax Co-Chairman of the
Integrated Planning Team Integrated Planning Team
0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
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and and
IBM General Counsel Equifax Chief Legal Officer
Route 100 1600 Peachtree Street, X.X.
Xxxxxx, New York 10569 Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
3) For all other notices under the Master Agreement:
In the case of IBM: In the case of Equifax:
IBM Co-Chairman of the Equifax Co-Chairman of the
Integrated Planning Team Integrated Planning Team
0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
4) For all other notices under a Transaction Document:
In the case of IBM: In the case of Equifax:
IBM Project Executive Equifax Project Executive
at the Notice address set forth at the Notice address set forth
in the affected Transaction in the affected Transaction
Document Document
with a copy to: with a copy to:
IBM Co-Chairman of the Equifax Co-Chairman of the
Integrated Planning Team Integrated Planning Team
0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Either Party hereto may from time to time change its address for notification
purposes by giving the other prior written notice of the new address and the
date upon which it will become effective.
17.11 NO THIRD PARTY BENEFICIARIES
The Parties do not intend, nor will any Section hereof be interpreted, to create
for any third party beneficiary rights with respect to either of the Parties,
except (a) each member of the Equifax Group and each IBM Affiliate shall be a
third party beneficiary under the Agreement with respect to enforcement of any
rights such member of the Equifax Group or IBM Affiliate may have under SECTION
10, SECTION 11, or SECTION 14 of the Agreement, and (b) each Affiliate of the
Parties to which a Transaction Document has been assigned and accepted, will
have the rights and benefits described in that Transaction Document, and (c) the
third parties identified in SECTION 14 will have the rights and benefits
described in that Section.
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17.12 OTHER DOCUMENTS
Upon request of the other Party, on or after the Effective Date and the date(s)
of any Transaction Documents and amendments or revisions to any of the
foregoing, each Party shall furnish to the other such certificate of its
Secretary, certified copy of resolutions of its Board of Directors, or opinion
of its counsel as shall evidence that the Agreement or any amendment or revision
hereto has been duly executed and delivered on behalf of such Party or its
Affiliates.
17.13 CONSENTS AND APPROVALS
The Parties agree that in any instance where a consent, approval or agreement is
required of a Party in order for the other Party to perform under or comply with
the terms and conditions of the Agreement, then such Party will not unreasonably
withhold or delay such consent, approval or agreement and where consent,
approval or agreement cannot be provided, the Party shall notify the other Party
in a timely manner.
17.14 HEADINGS
All headings herein and the table of contents are not to be considered in the
construction or interpretation of any provision of the Agreement. The Agreement
was drafted with the joint participation of both Parties and shall be construed
neither against nor in favor of either, but rather in accordance with the fair
meaning thereof. In the event of any apparent conflicts or inconsistencies
between the provisions of the Master Agreement, the Exhibits, the Transaction
Documents, the Schedules or other attachments to the Master Agreement and
Transaction Documents, such provisions shall be interpreted so as to make them
consistent to the extent possible, and if such is not possible, the provisions
of the Master Agreement shall prevail.
17.15 REMARKETING
Equifax may not remarket all or any portion of the Services provided under the
Agreement, or make all or any portion of the Services available to any party,
without the prior written consent of IBM; provided, however, Equifax may sell or
make available to third parties which are customers or potential customers of
members of the Equifax Group and persons acquiring portions of the Equifax
Business from Equifax or its Affiliates access to elements of the Services under
the Agreement ("ELEMENTS OF THE SERVICES") subject to the following limitations:
1. Equifax shall independently set its own pricing and policies in
connection with any such access to Elements of the Services;
2. Equifax does not utilize IBM's name as part of its marketing efforts
regarding any such access to Elements of the Services;
3. Equifax discloses to its customers accessing Elements of the Services
that IBM is running the Systems but that IBM has no liability of any kind
to such customers;
4. if Equifax's activities for a customer accessing Elements of the Services
cause IBM to fail to meet a Minimum Service Level, IBM shall be excused
from such failure to the extent IBM demonstrates that the failure was
caused by such customers' activities and to the extent such failure was
not caused by IBM's failure to satisfy its obligations under the
Agreement; and
5. if IBM incurs incremental costs in connection with any such access to
Elements of the Services by Equifax customers, such costs will be treated
either under an existing charging methodology or, if none exists, then as
a New Service in accordance with SECTION 3.12 hereof.
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Nothing herein may be construed to limit or hinder Equifax or the other members
of the Equifax Group from (i) marketing, selling or performing its services to
and for its customers or potential customers and/or (ii) from providing any
portion of the Services to its Affiliates.
17.16 COMMENCEMENT OF ACTIONS
Neither party may bring an action, regardless of form, arising out of the
Agreement more than two (2) years after the later to occur of the date on which
the cause of action has arisen or the date such cause of action was or should
have been discovered.
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17.17 IBM LOGO PRODUCTS WARRANTIES
Nothing in the Agreement is intended to replace, supercede or vitiate the
warranties and attendant rights and remedies granted to members of the Equifax
Group by IBM and/or its Affiliates with respect to IBM Logo Products as set
forth in any applicable lease, purchase and/or license arrangement.
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