EXHIBIT 10.28
HUMAN RESOURCES BUSINESS PROCESS AND SUPPORT SERVICES AGREEMENT
This HUMAN RESOURCES BUSINESS PROCESS AND SUPPORT SERVICES AGREEMENT (the
"Agreement"), dated as of June 4, 1999, is made by and between PwCES LLC, a
Delaware limited liability company with an office at 00 Xxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000 ("PwCES") and PricewaterhouseCoopers LLP, a Delaware
limited liability partnership with an office at 1301 Avenue of the Americas, Xxx
Xxxx, XX 00000 ("PwC") on the one hand, and Equifax Inc., a Georgia corporation
with an office at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Equifax") on
the other hand.
RECITALS
WHEREAS, Equifax and PwCES desire to enter into an agreement for the provision
and use of certain business process and support services, including business
process design, improvement, operation, management and support, as well as
related ancillary services;
WHEREAS, PwCES desires to provide to Equifax such business process and support
services;
WHEREAS, Equifax desires to purchase from PwCES such business process and
support services, under the terms and conditions set forth below; and
WHEREAS, the parties intend for PwCES to increase the efficiency and
cost-effectiveness of such business process and support services, to improve the
performance and delivery of such business process and support services and to
identify and apply techniques, tools and technologies that would improve the
provision of such business process and support services.
NOW, THEREFORE, in consideration of the covenants contained in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows.
ARTICLE 1. DEFINITIONS
The following terms, when used in this Agreement with initial capital letters,
shall have the respective meanings set forth in this Article.
1.01 Account Executive. The term "Account Executive" means the individual
appointed by each party to act (i) as the primary point of contact with
the other party in dealing with each party's obligations under this
Agreement and (ii) in the case of PwCES, as the executive in charge of
overseeing the provision of the Services.
1.02 Additional Services. The term "Additional Services" means the tasks,
functions and projects outside the scope of the Continuing Services
that PwCES may provide to Equifax on terms to be mutually agreed upon
and set forth in a Change Order.
1.03 Affiliate. The term "Affiliate" means, with respect to a party, any
entity at any tier that controls, is controlled by, or is under common
control with that party, and with respect to PwCES, any entity (whether
or not incorporated) that carries on business under a name that
includes all or part of the PricewaterhouseCoopers name or is otherwise
within (or connected or associated with an entity within), or is a
correspondent firm of, the worldwide network of PricewaterhouseCoopers
firms. For purposes of this definition, the term "control" (including
with correlative meanings, the terms "controlled by" and "under common
control with") means the possession directly or indirectly of the power
to direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting securities, by trust,
management agreement, contract or otherwise.
1.04 Agreement. The term "Agreement" means this Human Resources Business
Process and Support Services Agreement and all Exhibits attached hereto
and incorporated herein by this reference.
1.05 Ancillary Services. The term "Ancillary Services" means the tasks,
functions and projects that (i) are outside the scope of the Continuing
Services, (ii) relate to the Services and affect PwCES's provision of
Services (including, for example, services provided by a Third Party
Provider whose relationship with Equifax is managed by PwCES pursuant
to this Agreement) and (iii) may be provided to Equifax by PwCES on
terms to be mutually agreed upon and set forth in a Change Order.
1.06 Assumptions. The term "Assumptions" means the circumstances, metrics,
principles, financial data, standards, computer systems, platforms and
general information disclosed by Equifax or used by PwCES as a basis
for determining the scope of Services, Service Levels and Charges, as
set forth in Exhibit 16.
1.07 Base Charge. The term "Base Charge" means the amount PwCES shall charge
to Equifax for the provision of Continuing Services at the Baseline
levels, excluding any (i) Incremental Charge or Incremental Credit
relating to such Services and (ii) Charges for Additional Services,
Ancillary Services or Termination Services, as set forth in Exhibit 1.
1.08 Baseline. The term "Baseline" means the base amount of a Service to be
provided by PwCES to Equifax with respect to the Continuing Services as
set forth in Exhibit 1, excluding (i) any incremental Service
generating Incremental Charges or Incremental Credits or (ii)
Additional Services, Ancillary Services or Termination Services.
1.09 Change Control Procedure. The term "Change Control Procedure" means the
procedure set forth in Section 3.10 for (i) increasing, decreasing or
amending (a) a Service beyond the Threshold Limits, (b) a Service Level
or (c) the Charges or (ii) adding Additional Services or Ancillary
Services.
1.10 Change of Control. The term "Change of Control" with respect to a party
means any (i) consolidation or merger of such party or any entity that
possesses directly or indirectly the power to direct or cause the
direction of the management and policies of such party, whether through
the ownership of voting securities, by trust, management, agreement,
contract or otherwise (each, a "Party Company") with or into another
entity or entities (whether or not such Party Company is the surviving
entity), excluding any such consolidation or merger with or into an
Affiliate of such party, (ii) any sale or transfer by any Party Company
of all or substantially all of its assets (excluding any such sale to
an Affiliate), (iii) any sale, transfer or issuance or series of sales,
transfers or issuances of shares or other equity interests of any Party
Company by such Party Company or the equity holders thereof, as a
result of which one equity holder, or a group of equity holders acting
in concert, possess the voting power (under ordinary circumstances) to
elect a majority of such Party Company's board of directors (or other
equivalent managing group) or (iv) the bankruptcy, liquidation or
dissolution of a Party Company. Notwithstanding the foregoing, no
transaction of the type described in clauses (i), (ii) or (iii) of this
Section shall constitute a Change of Control if, as of immediately
following such transaction, the equity holders of a party that possess
the voting power (under ordinary circumstances) to elect a majority of
such party's board of directors (or other equivalent managing group) as
of immediately prior to such transaction continue to own (directly or
indirectly through one or more Party Companies) a sufficient amount of
the outstanding capital stock or equity interests of each Party Company
possessing the voting power (under ordinary circumstances) to elect a
majority of such Party Company's board of directors (or other
equivalent managing group).
1.11 Change Order. The term "Change Order" means a document (i) increasing,
decreasing or amending (a) a Service beyond the Threshold Limits, (b) a
Service Level or (c) the Charges or (ii) adding Additional Services or
Ancillary Services, as executed pursuant to the Change Control
Procedure, in substantially the form set forth in Exhibit 15.
1.12 Charges. The term "Charges" means, collectively, the (i) Base Charges,
(ii) Incremental Charges, (iii) charges for Additional Services,
Ancillary Services and Termination Services and (iv) any other charges
provided under this Agreement, as set forth in Exhibit 1 and Change
Orders.
1.13 Commencement Date. The term "Commencement Date" means the date on which
PwCES begins to provide Services to Equifax or its Affiliates, as
agreed upon by the parties, and as set forth in Exhibit 7. There may be
a separate Commencement Date for each of Equifax or its Affiliates, for
a particular Service or set of Services. Except where the context
dictates otherwise, the Commencement Date shall be the applicable
Commencement Date for Equifax or its Affiliates.
1.14 Continuing Services. The term "Continuing Services" means (i) a task,
function or project or (ii) a set of related tasks, functions or
projects, to be performed by PwCES on a continuing basis, as set forth
in Exhibit 2, and tasks and functions not specifically described in
Exhibit 2 that were being performed by a Transitioned Employee prior to
the Commencement Date (and not by a Third Party Provider) and that are
required for and are incidental and directly related to the proper
performance of such Continuing Services.
1.15 Critical Service Level. The term "Critical Service Level" means any
Service Level identified in Exhibit 2 or a Change
Order as a Critical Service Level.
1.16 Dispute. The term "Dispute" means any dispute, controversy or claim,
including, without limitation, situations or circumstances in which the
parties are required to mutually agree on additions, deletions or
changes to terms, conditions or Charges, arising out of, or relating
to, this Agreement.
1.17 Dispute Resolution Process. The term "Dispute Resolution Process" means
the process for resolving Disputes set forth in Articles 12 and 13.
1.18 Equifax. The term "Equifax" means Equifax Inc. and, unless context
dictates otherwise, its Affiliates receiving Services under this
Agreement. Exhibit 7 sets forth the list of the Affiliates of Equifax,
the operations and the locations for which Services will be provided as
of the Commencement Date.
1.19 Equifax Data. The term "Equifax Data" means (i) all data and
information provided or submitted by Equifax in connection with the
Services and (ii) all such data and information processed or stored,
and/or then provided to Equifax, as part of the Services, including,
without limitation, data contained in forms, reports and other similar
documents provided by PwCES as part of the Services.
1.20 Equifax Selected Employees. The term "Equifax Selected Employees" means
employees of Equifax to whom employment will be offered by PwCES as
listed in Exhibit 6 and pursuant to the terms set forth in the Hiring
Plan.
1.21 Equifax Software. The term "Equifax Software" means any computer
programs (including, without limitation, applications, utilities and
operating systems software) owned or licensed by Equifax that will be
used by PwCES in providing Services under this Agreement, as set forth
in Exhibit 9.
1.22 Exhibit. The term "Exhibit" means an attachment to this Agreement as
such attachment may be amended from time to time, each one of which is
incorporated herein by this reference.
1.23 Hiring Plan. The term "Hiring Plan" means the plan, set forth in
Exhibit 6, containing the terms and conditions by which PwCES will (i)
offer employment to and hire Equifax Selected Employees and (ii) employ
and compensate Transitioned Employees.
1.24 Impairment of Independence. The term "Impairment of Independence" means
the occurrence or existence of any event or circumstance that PwCES or
its Affiliates determines, in its sole but good faith judgment, that,
as a result of the Services provided or to be provided under this
Agreement, is inconsistent with (i) the obligations of PwCES or its
Affiliates under the Code of Professional Ethics of the AICPA, (ii) any
law, rule or regulation, or guideline or policy of any third party,
applicable to PwCES or its Affiliates, including, without limitation,
those of the Securities and Exchange Commission of the United States or
(iii) guidelines and policies of PwCES or its Affiliates that relate to
audit independence or otherwise interpret any such law, rule,
regulation, guideline or policy.
1.25 Incremental Charge. The term "Incremental Charge" means, with respect
to any particular Service, an increase, as set forth in Exhibit 1, to
be applied on a monthly basis to the Base Charge as a result of the
quantity of a particular Service exceeding the applicable Baseline, but
within the Threshold Limits as provided in Section 3.05a.
1.26 Incremental Credit. The term "Incremental Credit" means, with respect
to any particular Service, a decrease, as set forth in Exhibit 1, to be
applied on a monthly basis, to the Base Charge as a result of the
quantity of a particular Service falling below the applicable Baseline,
but within the Threshold Limits as provided in Section 3.05a.
1.27 Inflation Adjustment Index. The term "Inflation Adjustment Index" means
the inflation index set forth in Exhibit 1.
1.28 Information System. The term "Information System" means the information
system described in Exhibit 3.
1.29 Information System Implementation Plan. The term "Information System
Implementation Plan" means the implementation plan for the Information
System, as set forth in Exhibit 3, that describes the milestones,
estimated time line, responsibilities and processes for analysis,
design, development and implementation of the Information System.
1.30 Initial Commencement Date. The term "Initial Commencement Date" means
the first Commencement Date set forth in Exhibit 7.
1.31 Key Personnel. The term "Key Personnel" means those Equifax Selected
Employees and contractors identified as such in Exhibit 6.
1.32 Key PwCES Employees. The term "Key PwCES Employees" means the PwCES
employees set forth in Exhibit 6.
1.33 Operating Level Agreements. The term "Operating Level Agreement" means
that level of service that Equifax shall provide in performing certain
of its responsibilities upon which PwCES is reliant in providing
Services, as set forth in Exhibit 10.
1.34 Performance Bonuses. The term "Performance Bonuses" means those bonuses
to be given to PwCES as set forth in Exhibit 1.
1.35 Performance Credits. The term "Performance Credits" means those credits
to be given to Equifax as set forth in Exhibit 1.
1.36 Pool of Resources. The term "Pool of Resources" means the number of
full-time equivalents set forth in Exhibit 1.
1.37 PwCES. The term "PwCES" means PwCES LLC.
1.38 PwCES Products. The term "PwCES Products" means PwCES Software and any
hardware, software or firmware that PwCES uses to provide the Services,
except for any hardware, software or firmware that is a Transferred
Asset, Equifax Software or the subject of a Transferred Agreement.
1.39 PwCES Software. The term "PwCES Software" means any computer programs
(including, without limitation, applications, utilities and operating
systems software) or databases developed or owned by PwCES and used by
PwCES in providing the Services, as set forth in Exhibit 8.
1.40 Service. The term "Service" means (i) a task, function or project or
(ii) a set of related tasks, functions or projects to be performed by
PwCES, as set forth in Exhibit 2, including Continuing Services,
Additional Services, Ancillary Services and Termination Services.
1.41 Service Level. The term "Service Level" means, with respect to any
Service, the minimum quality and level of service required for that
Service, as set forth in Exhibit 2.
1.42 Services Oversight Committee. The term "Services Oversight Committee"
means the committee, comprised of management personnel of both PwCES
and Equifax assigned under the terms of Article 6 that shall be
authorized and responsible for (i) generally overseeing the performance
of this Agreement, (ii) making strategic and tactical decisions in
respect of the establishment, budgeting and implementation of
priorities and plans with respect to the Services and (iii) monitoring
and resolving Disputes in accordance with Article 12.
1.43 Set of Exhibits. The term "Set of Exhibits" means a set of Exhibits
entered into contemporaneously for a particular set of Services.
1.44 Termination Charge. The term "Termination Charge" means the charge
payable by Equifax to PwCES as set forth in Exhibit 1.
1.45 Termination Provisions. The term "Termination Provisions" means those
provisions relating to the termination of this Agreement, as set forth
in Exhibit 11.
1.46 Termination Services. The term "Termination Services" means the tasks
and functions PwCES is to perform in anticipation of and following the
termination or expiration of this Agreement in order to achieve an
orderly transfer of Services from PwCES to Equifax or to Equifax's
designee, as set forth in Exhibit 11.
1.47 Territory. The term "Territory" means the geographic locations set
forth in Exhibit 2.
1.48 Third Party Agreement. The term "Third Party Agreement" means an
agreement set forth in Exhibit 19 pursuant to which a Third Party
Provider provides services to Equifax.
1.49 Third Party Provider. The term "Third Party Provider" means any of
Equifax's third party providers of services.
1.50 Third Party Software. The term "Third Party Software" means any
computer programs (including, without limitation, applications,
utilities and operating systems software) or databases, along with
their supporting documentation, that are used under a license by PwCES
from a third party to provide the Services, as set forth in Exhibit 18.
1.51 Threshold Limit. The term "Threshold Limit" means, with respect to a
Service, the maximum increase or decrease in the quantity of a Service
provided to Equifax from the Baseline that PwCES shall undertake
without the need for a Change Order, as set forth in Exhibit 1.
1.52 Transferred Agreements. The term "Transferred Agreements" means those
licenses of software and all other agreements between Equifax and a
third party set forth in Exhibit 4 that Equifax is to assign to PwCES
and that PwCES is to assume under this Agreement.
1.53 Transferred Assets. The term "Transferred Assets" means the equipment,
furnishings and other assets set forth in Exhibit 4 to be transferred
by Equifax to PwCES for the provision of the Services.
1.54 Transitioned Employees. The term "Transitioned Employees" means those
Equifax Selected Employees who accept PwCES's offer of employment and
are hired by PwCES, as set forth in Exhibit 6.
1.55 Transition Period. The term "Transition Period" means the period
beginning on the Commencement Date and continuing as set forth in the
Transition Plan.
1.56 Transition Plan. The term "Transition Plan" means the document setting
forth anticipated time lines and general activities of each of PwCES
and Equifax during the transition of the tasks, functions and projects
addressed by the Services from Equifax to PwCES, as set forth in
Exhibit 5.
1.57 WARN Act. The term "WARN Act" means the Worker Adjustment and
Retraining Notification Act of 1988, as amended, and any similar
foreign, state or local law, regulation or ordinance.
ARTICLE 2. TERM
This Agreement shall be effective as of the execution of this Agreement
by both parties and shall continue until the tenth (10th) anniversary
of the Initial Commencement Date, unless terminated earlier in
accordance with the terms of this Agreement. This Agreement shall
automatically be renewed for two (2) year periods under the
then-current terms and conditions, unless either party shall have
provided written notice to the other party at least one (1) year before
the expiration of the then-current term of its intention not to renew.
ARTICLE 3. SERVICES
3.01 In General.
a. Subject to Section 3.01b, PwCES shall be the exclusive
provider in the Territory to Equifax and its Affiliates of
Equifax's and its Affiliates' requirements for the services
described as Continuing Services in Exhibit 2 for a particular
Set of Exhibits. In addition, subject to Section 3.01b, for a
particular Set of Exhibits, PwCES shall be the exclusive third
party provider of such services for the requirements of any
entity that becomes an Affiliate of Equifax in the Territory
after the Initial Commencement Date (except to the extent such
Affiliate was under contract (including any extensions
thereof) with a third party with respect to such services
prior to the date such entity became an Affiliate of Equifax),
provided (i) PwCES is in substantial compliance with the
Service Levels at the time such entity becomes an Affiliate of
Equifax and (ii) that the transition of such services to PwCES
is commercially reasonable and feasible for Equifax and such
Affiliate. Subject to Section 3.01b, if the parties are unable
to agree upon the pricing and other terms and conditions
regarding the provision of Services to such Affiliate of
Equifax, such Affiliate of Equifax may seek to negotiate with
another service provider; provided, however, PwCES shall have
a right of first refusal with respect to the offer made by
such other service provider.
b. Notwithstanding any other provision of this Agreement, PwCES's
right to be the exclusive provider or third
party provider for services described in Exhibit 2 as
Continuing Services as provided in Section 3.01a, and PwCES's
right of first refusal as specified in Section 3.01a, shall be
applicable only to such services related to the first Set of
Exhibits (Human Resource functions) hereunder, unless Exhibit
2 of a subsequent Set of Exhibits for other such services
specifically provides that PwCES is the exclusive provider or
third party provider, as applicable, of such services
thereunder.
3.02 Services. Beginning on the Commencement Date, PwCES shall provide the
Services as set forth in Exhibit 2 or any Change Order. The
responsibilities of PwCES and Equifax with respect to the Services are
set forth in Exhibit 2 or the applicable Change Order.
3.03 Transition Period.
During the Transition Period, the parties shall:
(i) Work together to implement the Transition Plan; and
(ii) Develop and refine Baselines, Services, Service Levels,
Threshold Limits, Operating Level Agreements and Charges
to be applicable after the Transition Period and
negotiate in good faith Change Orders reflecting such
changes; provided, however, except as otherwise mutually
agreed upon by the parties in writing, any increases in
Charges, and any reductions in Baselines and Threshold
Limits, as a result of such development and refinement
during the Transition Period, shall be made only if and
to the extent they relate to (a) an incorrect Assumption
that arises out of inaccurate information provided by
Equifax or a failure of Equifax to provide to PwCES
information Equifax has and that is requested by PwCES
or (b) a mutual mistake by the parties. In the event
that the parties are unable to agree on such Change
Orders during the Transition Period, the matter shall be
resolved through the Dispute Resolution Process.
3.04 Service Levels.
a. Existing Services. During the Transition Period, PwCES shall
provide the Services consistent with the manner in which the
tasks, functions or projects addressed by the Services were
delivered by Equifax prior to the Commencement Date or as
mutually agreed upon and set forth in Exhibit 2. In those
instances where there is neither sufficient nor historical
data available to establish Service Levels, the parties shall
mutually agree and establish such Service Levels during the
Transition Period. After the Transition Period, PwCES shall
provide the Services consistent with the Service Levels as
mutually agreed upon and as set forth in Exhibit 2, which in
no event shall be less than the manner in which the services
were provided by Equifax prior to the Commencement Date.
b. Future Services. With respect to Additional Services and
Ancillary Services provided by PwCES during the term of this
Agreement, PwCES shall provide such Services in accordance
with the Service Levels to be set forth in Exhibit 2, or in
accordance with other mutually agreed standards.
c. Review. Beginning the earlier of (i) two (2) years from the
Initial Commencement Date and (ii) the date that the
Information System is in day-to-day operation, and every two
(2) years thereafter, during the term of this Agreement, the
parties shall meet and evaluate the Service Levels and the
need to revise them.
d. Reporting. PwCES shall report to Equifax regarding the
performance of the Services relative to the Service Levels
according to the guidelines set forth in Exhibit 2.
e. Performance Credits. If PwCES fails to meet a Critical Service
Level for any one (1) month period, or if PwCES fails to meet
any other Service Level for three (3) consecutive months,
Equifax shall be entitled to the Performance Credits set forth
in Exhibit 1.
f. Performance Bonuses. After the first benchmarking pursuant to
Section 3.04h, the parties shall negotiate in good faith
regarding the use and amount of Performance Bonuses if PwCES
exceeds certain Critical Service Levels as set forth in
Exhibit 1.
g. Service Level Analysis and Resolution. Upon notice from
Equifax of PwCES's failure to meet a Service Level,
PwCES shall as soon as reasonably practicable (i) perform an
analysis to identify the cause of such failure, (ii) provide
Equifax with a report thereon and the procedure for correcting
the failure and (iii) provide reasonable assurances to Equifax
that the failure shall not recur.
h. Benchmarking. PwCES shall improve the quality of the Services
during the term of this Agreement. Beginning two (2) years
after the Initial Commencement Date, and every two (2) years
thereafter, the parties shall cause an independent third party
(the "Benchmarker") to conduct a benchmark study of the
primary Services, as determined by the Services Oversight
Committee, to assess the quality of the Services. The
Benchmarker may not be any entity listed on Exhibit 17. If
there is any Dispute regarding the Services to be benchmarked,
the parties shall focus the benchmark study on the Services
related to the Critical Service Levels. The fees of the
Benchmarker shall be shared equally by the parties. Using
consistent methodologies and, to the extent reasonably
possible, objective measurements, the Benchmarker shall
evaluate each specified Service with regard to Charges and
performance (including quality of service) and shall compare
the same to similar services provided to other companies in
the Territory of a size similar to that of Equifax by service
providers that have made investments similar to those made by
PwCES with respect to the Services (or, if the service
providers included in the study have not made investments
similar to those made by PwCES, appropriate adjustments shall
be made by the Benchmarker to account for the difference in
investments). If the benchmark study shows that the level of
performance being achieved by PwCES in relation to the Charges
(the "Performance/Price Ratio") for each of the Services is
not above the average Performance/Price Ratio of the other
companies in the study, then the Services Oversight Committee
shall determine, within forty-five (45) days after release of
the benchmark study, what changes, if any, should be made to
the Services or Charges and by when such changes should be
made. If the Services Oversight Committee is unable to agree
on the changes, if any, to be made to the Services or Charges
or when such changes should be made, the matter shall be
submitted to the Dispute Resolution Process. The cost of
implementing such changes shall be borne by PwCES, except to
the extent that the parties agree that PwCES will employ
significant new technologies to implement such changes, in
which case, the parties shall negotiate in good faith a Change
Order that reflects the parties' agreement to share in the
cost of the employment of those significant new technologies.
If Equifax fails to implement a reengineering project as
described in Section 3.13, which project is commercially
reasonable in light of the circumstances, and such failure is
the cause of PwCES's Performance/Price Ratio falling below the
average described above for a particular Service, then this
Section 3.04h shall not apply to such Service.
3.05 Changes in Services. Following the Transition Period:
a. Within Threshold. If the increase, decrease or change from the
Baseline is within the Threshold Limits for the specific
Service in question, then PwCES shall increase or decrease the
Charges for that Service by the Incremental Charge or
Incremental Credit, as the case may be, as specified in
Exhibit 1, or in an appropriate Change Order.
b. Beyond Threshold. If the increase, decrease or change from the
Baseline exceeds the Threshold Limits, then the parties shall
promptly negotiate in good faith the terms of a Change Order,
subject to Section 4.07a and Exhibit 1. The Change Order shall
specify, among other things, the adjustment to the Base Charge
for the Service in question.
c. Requirements. If either party reasonably determines that the
quantity of a Continuing Service has materially increased,
decreased or otherwise changed beyond the Baseline, such party
shall notify the other party.
d. Change Order. The parties shall negotiate in good faith a
Change Order reflecting the changes described in this Section.
In the event that the parties are unable to mutually agree on
the appropriate modification, adjustment or addition to the
Charges, the matter shall be submitted to the Dispute
Resolution Process.
3.06 Additional Services and Ancillary Services. At Equifax's request, PwCES
may provide Additional Services and Ancillary Services. The parties
shall negotiate in good faith to establish and mutually agree upon the
terms of a Change Order, including, without limitation, the scope of
Services, Service Levels and Threshold Limits (if applicable), and
Charges pertaining to the Additional Services and Ancillary Services.
Equifax acknowledges that PwCES may be able to increase the efficiency
and cost-effectiveness of the Services and to improve the performance
and delivery of the Services by providing Ancillary Services to
Equifax. With respect to any proposed Ancillary Services that Equifax
or any Affiliate of Equifax seeks to have provided by a third party,
PwCES shall have the right to bid on the provision of such Ancillary
Services.
3.07 Third Party Agreements. PwCES shall administer and coordinate the Third
Party Agreements in accordance with their terms. PwCES shall provide
Equifax with reasonable notice of any renewal, termination or
cancellation dates and fees in respect of the Third Party Agreements.
Upon the mutual written agreement of PwCES and Equifax, Equifax shall,
to the extent permitted by a Third Party Agreement, modify, terminate
or cancel any such agreement, and PwCES shall not renew, terminate or
cancel any Third Party Agreement without the prior written consent of
Equifax. Any modification, termination or cancellation fees or charges
imposed upon Equifax in connection with any such modification,
termination or cancellation shall be paid by Equifax, unless otherwise
agreed upon by the parties in writing. Except with respect to those
Third Party Agreements identified as "restricted" on Exhibit 19, if
PwCES requests that certain Third Party Agreements be modified,
terminated or cancelled and offers to pay any modification, termination
or cancellation fees or charges imposed upon Equifax in connection with
any such modification, termination or cancellation and Equifax fails to
so modify, terminate or cancel, then the parties shall negotiate in
good faith a Change Order reflecting appropriate adjustments in
Charges, Service Levels and other performance obligations under this
Agreement; provided, however, this sentence shall not apply if PwCES
requires Equifax to use a Third Party Provider and Equifax is unable to
obtain from such Third Party Provider commercially reasonable terms and
conditions. Equifax, and not PwCES, shall be responsible for Equifax's
performance under the Third Party Agreements and liable to Third Party
Providers under the Third Party Agreements for any breach thereof by
Equifax, except to the extent PwCES causes such breach. Each of PwCES
and Equifax shall promptly inform the other of any breach in connection
with any Third Party Agreement that would give rise to a termination
right or liability, and any misuse or fraud in connection with any
Third Party Agreement of which a party becomes aware, and the parties
shall cooperate with each other to prevent or stay any such breach,
misuse or fraud. Subject to Article 15, any penalties or charges
(including amounts due to a third party as a result of a party's
failure to promptly notify the other party pursuant to the preceding
sentence), associated taxes, legal expenses and other incidental
expenses incurred by a party as a result of the other party's
non-performance of its obligations under this Section with respect to a
Third Party Agreement shall be paid by the nonperforming party. Subject
to Article 15, any damages incurred by Equifax as a result of PwCES's
non-performance of its obligations under this Section with respect to a
Third Party Agreement shall be paid by PwCES, except to the extent such
damages arise out of commercially unreasonable terms and conditions in
such Third Party Agreement. To the extent permitted by a Third Party
Agreement, and as requested by PwCES, Equifax shall appoint PwCES as
its agent for all matters pertaining to the Third Party Agreements and
promptly notify the appropriate Third Party Providers of such
appointment. If a written agreement between Equifax and a Third Party
Provider that provides services relating to the Services during the
term of this Agreement is located or created, PwCES shall have the
right to add to Exhibit 19 any such agreements.
3.08 Disbursements. Beginning on the Commencement Date, PwCES shall (i)
receive all invoices submitted by the Third Party Providers pursuant to
the Third Party Agreements, (ii) review and correct any errors in any
such invoices, (iii) submit such invoices to Equifax for final
authorization, (iv) pay such invoices within a reasonable period of
time after receiving such authorization and prior to the due date and
(v) be responsible for any late fees with respect to such third party
invoices (except to the extent such late fees are incurred because of
an action or failure to act by Equifax that affects PwCES's ability to
pay such invoices on a timely basis). Equifax shall be responsible for
any amounts due or payable before the Commencement Date for or in
connection with the Third Party Agreements; provided however, that if
PwCES receives an invoice relating to such amounts and fails to submit
such invoice to Equifax in a timely manner, then PwCES shall be
responsible for any late fees in respect of such invoice (except to the
extent such late fees are incurred because of an action or failure to
act by Equifax that affects PwCES's ability to submit such invoices on
a timely basis).
3.09 Termination Services. PwCES shall make available to Equifax the
Termination Services under the terms and conditions set forth in
Exhibit 11. If Equifax elects to engage a third party to provide
services after termination or expiration of this Agreement, then
Equifax shall include in its contract with such third party that such
third party (i) shall execute a confidentiality agreement in substance
the same as is set forth in the form attached in Exhibit 15, to protect
PwCES's and its Affiliates' and contractors' proprietary and
confidential information and (ii) shall agree in writing not to
solicit, for a period of two (2) years, any of PwCES's or its
Affiliates' partners, employees or agents that become known to such
third party as a result of the transition of the Services from PwCES to
such third party.
3.10 Change Control Procedures. In the event that either party wishes (i) a
change within the scope of the Services, Baselines, Service Levels or
priorities or (ii) a change to the Charges or Exhibits, such requesting
party's Account Executive or his or her designee shall submit a written
proposal to the other party's Account Executive describing such desired
change. Such party's Account Executive shall review the proposal and
reject or accept the proposal in writing within
a reasonable period of time, but in no event more than thirty (30) days
after receipt of the proposal. In the event that the proposal is
rejected, the writing shall include the reason for rejection. In the
event that the proposal is accepted, the parties shall mutually agree
on the changes to be made to this Agreement. The additional or modified
Charges, terms and conditions (if any) shall be made only in a written
Change Order signed by the Account Executive of each of the parties or
his designee (authorized in writing by the applicable party).
Notwithstanding the foregoing, if the need for an emergency change
arises, either party's Account Executive or his or her designee shall
submit a request for such change to the other party's Account Executive
and PwCES shall, subject to the other terms and conditions of this
Agreement, use commercially reasonable efforts to implement such change
promptly and the parties shall thereafter agree upon a Change Order
within two (2) business days of such submission.
3.11 PwCES's Responsibilities. In addition to any specific tasks, functions
or projects for which PwCES is given responsibility as Services in this
Agreement and relevant Exhibits, PwCES shall perform the following
responsibilities during the term of this Agreement.
a. Employees, Agents and Contractors. In the event that Equifax
reasonably and in good faith determines that it is not in the
best interests of Equifax for any PwCES employee, agent or
contractor to continue in his/her capacity in the provision of
the Services, then Equifax shall give PwCES written notice
specifying the reasons for its position and requesting that
such employee, agent or contractor be replaced. PwCES shall
immediately investigate the matters stated in such notice and,
if it determines that Equifax's concerns are reasonable and
not unlawful, PwCES shall replace such employee, agent or
contractor. In addition, upon written notice from Equifax,
PwCES shall use reasonable efforts to replace any PwCES
employee, agent or contractor who Equifax reasonably believes
represents a material risk to Equifax's business, property or
personnel.
b. Facilities. PwCES shall provide those employees, agents and
contractors of Equifax who are reasonably required to be
located on PwCES's premises with access to and use of space,
office furnishings, janitorial service, telecommunications
service, data processing services, utilities (including
heating) and office-related equipment, supplies, and
duplicating services in connection with the performance of the
Services (all such space, furnishings, equipment, supplies,
utilities and services to be consistent with those that PwCES
provides its own comparable employees). Equifax shall, and
shall cause its agents and contractors to, abide by PwCES's
policies and guidelines while on PwCES's premises.
c. Operating Level Agreements. PwCES shall provide notice to
Equifax of (i) a failure by Equifax or any third party
retained by, or under control of, Equifax, to provide
hardware, software, services, data or materials that Equifax
or such third party is required to provide to PwCES under this
Agreement and that PwCES requires to perform the Services or
(ii) a failure by Equifax to timely and accurately perform its
responsibilities as set forth in this Agreement, including,
without limitation a failure to comply with an Operating Level
Agreement, in each case within ten (10) days of becoming aware
that such failure is adversely affecting its ability to
perform in accordance with the terms of this Agreement. If
PwCES fails to provide such notice, then such failure shall
not relieve PwCES of its obligations to perform the Services
in accordance with this Agreement until such notice is
provided to Equifax.
d. Consent. Unless otherwise specified herein, PwCES shall not
unreasonably withhold or delay any consent, approval or
response requested by Equifax under this Agreement.
e. Improvements. PwCES acknowledges Equifax's desire for PwCES to
increase the efficiency and cost-effectiveness of the
Services, and to improve the performance and delivery of the
Services, throughout the term of this Agreement.
f. Records. PwCES shall (i) maintain tools and procedures
necessary to accurately monitor compliance with the Service
Levels and (ii) prepare and maintain detailed records
regarding its compliance with the Service Levels and the
determination and application of Performance Bonuses and
Performance Credits. Upon reasonable request, PwCES shall
provide Equifax with information and reasonable access to such
tools and procedures and the records relating thereto for
purposes of verification of the Service Levels. Equifax
acknowledges that certain tools, procedures and records do not
exist as of the Commencement Date, but will be developed
during the Transition Period.
g. Correction of Errors. At PwCES's expense, PwCES shall promptly
correct any errors or inaccuracies in the Equifax Data,
reports, payments and other output produced by PwCES as result
of providing the Services, to
the extent such errors or inaccuracies were caused by Services
provided by PwCES, its Affiliates or its or their respective
agents or contractors under this Agreement.
h. Agreements and Assets. Subject to Equifax obtaining any
required consents or approvals, PwCES shall assume all
Transferred Agreements and shall purchase and acquire all
Transferred Assets on the dates and for the purchase price set
forth on Exhibit 4.
i. Licenses. PwCES shall use commercially reasonable efforts to
negotiate licenses for Third Party Software that include a
right to assign or transfer to Equifax, without additional
payments by Equifax (or to minimize additional payments), such
licenses (and related maintenance agreements) upon expiration
or termination of this Agreement.
j. Internal Controls. During the term of this Agreement, PwCES
shall maintain an appropriate level of internal controls to
timely, completely and accurately record transactions and to
reasonably safeguard Equifax assets. At such time as PwCES
provides services to any other customer using the same systems
and processes as are used to provide the Services, PwCES shall
have an independent public accounting firm perform, at no cost
to Equifax, an annual third party review, as defined in
accordance with SAS # 70, of the facility from which the
Services are provided. The control objectives of the SAS # 70
review shall be mutually agreed by the parties.
k. Compliance. PwCES shall perform the Services in compliance
with the provisions of the documents governing the benefit
plans covered by Exhibit 2 and applicable laws, rules and
regulations.
3.12 Equifax's Responsibilities. In addition to any specific tasks,
functions or projects for which Equifax is given responsibility in this
Agreement and relevant Exhibits, Equifax shall perform the following
responsibilities during the term of this Agreement.
a. Affiliates of Equifax. Equifax shall cause its Affiliates,
although not signatories hereto, to be bound by the terms and
conditions of this Agreement. Any breach of this Agreement by
an Affiliate of Equifax shall be deemed a breach by Equifax.
b. Agreements, Assets and Software. Equifax shall (i), subject to
obtaining any required consents or approvals, assign all
Transferred Agreements and sell, assign and convey all
Transferred Assets free of any liens or other encumbrances to
PwCES on the dates and for the purchase prices set forth on
Exhibit 4, (ii) obtain all consents or approvals necessary to
allow PwCES and its employees, agents and contractors to use
the Equifax Software owned by Equifax and (iii) obtain all
consents or approvals necessary to allow PwCES to use Equifax
Software licensed by Equifax that is not the subject of a
Transferred Agreement. Equifax, with PwCES's reasonable
cooperation, shall obtain, at Equifax's cost and expense, all
required consents and approvals to permit such assignments,
transfers and use. If, however, any required consent or
approval is not obtained, unless and until such required
consent or approval is obtained, then, as PwCES's sole remedy,
the parties shall cooperate with each other in achieving a
reasonable alternative arrangement under which PwCES may
perform the Services without causing a breach or violation of
any Transferred Agreement or any agreement relating to Equifax
Software for which a required consent is to be obtained. Such
reasonable alternative arrangements may include (i) Equifax's
retention of certain third party agreements that would
otherwise be transferred hereunder or (ii) PwCES's agreement
to administer and coordinate such agreements pursuant to
Sections 3.07 and 3.08. In addition, it is the parties' intent
that such reasonable alternative arrangements shall provide
that PwCES and its employees, agents and contractors are able
to exercise the rights, including, without limitation, rights
with respect to the licensor's maintenance obligations and
warranties, PwCES would have had if such Transferred Agreement
were assigned to PwCES or if such consents or approvals had
been obtained. If such arrangements do not provide such
rights, notwithstanding the foregoing, PwCES shall be
entitled, as its sole remedy (other than its rights under
Sections 17.02(i) and (iii)) for Equifax's failure to obtain
such consents or approvals, to appropriate relief in Charges,
Services, Service Levels and other obligations under this
Agreement; provided, however, that PwCES shall use diligent
efforts to mitigate the effects resulting from such events.
All required consents and approvals shall provide for (i) the
use by PwCES and its employees of the rights under the
Transferred Agreements in performing the Services and (ii) if
necessary, the continued use by Equifax of the rights under
the Transferred Agreements to perform its responsibilities
pursuant to this Agreement. Equifax and PwCES shall cooperate
in approving the terms and conditions relating to all of the
foregoing consents and approvals. Equifax shall be liable for
the expenses incurred in obtaining all of the foregoing
consents and approvals. PwCES's use of Equifax Software
licensed by Equifax will be subject to the restrictions of the
third
party license agreements with the licensors of such Equifax
Software, except to the extent such restrictions prohibit
PwCES from using such Equifax Software.
c. Facilities. As set forth in Exhibit 12, Equifax shall provide
PwCES access to and use of office facilities and operational
support services, and access to and use of data processing and
telecommunications capabilities, that Equifax currently uses
to perform the tasks, functions and projects addressed by the
Services. In addition, Equifax shall provide those employees,
agents and contractors of PwCES who are reasonably required to
be located on Equifax's premises with access to and use of
space, office furnishings, janitorial service,
telecommunications service, data processing services,
utilities (including heating and air conditioning) and
office-related equipment, supplies, and duplicating services
in connection with the performance of the Services (all such
space, furnishings, equipment, supplies, utilities and
services to be consistent with those that Equifax provides its
own comparable employees). PwCES shall, and shall cause its
agents and contractors to, abide by Equifax's policies and
guidelines while on Equifax's premises.
d. Relocation. If Equifax relocates its current office space or
otherwise causes employees, agents or contractors of PwCES to
relocate in order to provide any Services, Equifax shall
continue to provide the same access, use and support services
as referenced above. In the event of such relocation, Equifax
shall be responsible at its cost and expense (i) for moving
all of the office furnishings of such PwCES personnel to the
new location and (ii) for all of PwCES's reasonably necessary
costs and expenses of relocating such PwCES personnel to the
extent consistent with Equifax's policies regarding the
relocation of its own employees.
e. Projects. Equifax shall complete the development and
implementation of all organizational projects, software
projects, technical projects and other implementation projects
in progress as of the Commencement Date in a manner consistent
with Equifax's pre-existing implementation plans, and as set
forth in Exhibit 13. Equifax and PwCES shall cooperate with
each other in providing access to personnel and facilities,
and in providing the resources necessary to complete such
projects. Completion of such projects shall be at Equifax's
sole expense. Except in connection with such pre-existing
implementation plans, any new technology or material changes
to existing technology that may affect the provision of
Services shall not be implemented by Equifax without PwCES's
prior written approval.
f. Retained Equifax Employees, Consultants and Contractors.
Except as provided in Section 17.01, Equifax shall be
responsible in all respects to and for any Equifax employee,
consultant or contractor who (i) is not a Transitioned
Employee or a consultant or contractor for whom PwCES has
expressly assumed responsibility or otherwise engaged pursuant
to the terms of this Agreement, (ii) serves as Equifax's
Account Executive, (iii) serves on the Services Oversight
Committee or (iv) serves as a liaison with PwCES.
g. Data and Errors. Equifax shall cooperate with PwCES to address
the resolution of any errors, omissions or deficiencies in any
output produced by PwCES as a result of providing the Services
and provide PwCES the opportunity to correct such errors,
omissions or deficiencies. Upon successful resolution of such
errors, omissions or deficiencies, Equifax shall accept the
output as completed.
h. Permits and Approvals. Equifax shall be responsible for (i)
obtaining all consents and approvals under agreements to which
it is a party or may be bound as necessary for PwCES to
perform the Services while on Equifax's premises and (ii)
obtaining all permits and approvals from any third party
(including, without limitation, government agencies) relating
to Equifax's premises and necessary for PwCES to perform the
Services while on Equifax's premises.
i. Consent. Unless otherwise specified herein, Equifax shall not
unreasonably withhold or delay any consent, approval or
response requested by PwCES under this Agreement.
j. Operating Level Agreements. Equifax shall perform its
obligations consistent with the Operating Level Agreements set
forth in Exhibit 10.
k. Equifax Data. During the course of providing the Services,
PwCES may find missing values, incorrect values or
inconsistencies within the Equifax Data or other problems with
Equifax Data. In the event PwCES finds any of the foregoing
and provides notice to Equifax thereof, Equifax shall be
responsible for providing to PwCES for input by PwCES the
correct information with respect to the foregoing; provided,
however, this provision shall not apply to the extent the
foregoing were created by PwCES. If PwCES requires more than
a minor additional amount of resources to correct any of the
foregoing, the parties shall negotiate in good faith a Change
Order.
l. PwCES Assumptions. To the extent they affect the provision of
Services, the timely and correct performance by Equifax of
each of the foregoing responsibilities is one of the
Assumptions under this Agreement.
3.13 Re-engineering. PwCES may from time to time, including, without
limitation, during the Transition Period, review the operations
required to support Equifax and may recommend to Equifax certain
re-engineering procedures, processes and tools. When the re-engineering
opportunity requires Equifax to modify its methods, practices or
policies, PwCES shall (i) present the changes to Equifax, (ii) discuss
with Equifax the requirements of implementation and (iii) identify the
projected benefits to both Equifax and PwCES. Equifax shall have the
opportunity to discuss the proposed changes and to request appropriate
modifications prior to granting approval. The parties shall work in
good faith to determine the costs, benefits and proper level of
commitment by both PwCES and Equifax for implementing such
re-engineering projects, and to mutually agree on such terms and
conditions to be set forth in a Change Order. Equifax may only refuse
or delay implementation of such projects if such projects require
significant additional expenditures by Equifax or are inconsistent with
Equifax's business strategies. If Equifax fails to approve or
adequately implement re-engineering project opportunities (other than
those that require significant additional capital expenditures by
Equifax), the parties shall negotiate in good faith a Change Order
reflecting appropriate adjustments in Charges, Service Levels and other
performance obligations under this Agreement; provided, however, this
sentence shall not apply if, as part of the re-engineering project,
PwCES requires Equifax to use third party software and Equifax is
unable to obtain from the vendor of such software commercially
reasonable warranties.
3.14 Dependencies. PwCES and Equifax anticipate that the provision of
Services shall have dependencies on the contracts between Equifax and
Third Party Providers.
3.15 PwCES's Use of Contractors. PwCES may engage consultants, agents or
contractors (including any of its Affiliates) to perform any Service or
any task or subtask within the Services; provided, however, that each
such consultant, agent and contractor shall agree to be bound (i) by
the confidentiality provisions, and (ii) the non-solicitation
provisions (to the extent such consultant, agent or contractor provides
any material Service or any material task or subtask), set forth in
this Agreement. PwCES shall not use any consultant, agent or contractor
set forth on Exhibit 17 without Equifax's consent. To the extent that
PwCES incurs any incremental costs as a result of Equifax's refusal to
consent to PwCES's selection of a particular consultant, agent or
contractor, Equifax shall pay such costs to PwCES as set forth in a
Change Order; provided, however, PwCES shall use commercially
reasonable efforts to mitigate the amount of the incremental costs. In
the event any problems arise in the provision of the Services, PwCES
and its employees, rather than PwCES contractors and agents, shall be
the principal points of contact for Equifax with respect to the
resolution of such problems.
3.16 No Obligation. Except as set forth in Exhibit 11, in no event shall
PwCES be obligated to provide any Service, and PwCES shall not be
liable for the failure to provide any such Service, that would result
in an Impairment of Independence. PwCES is not providing any attest
function or service under this Agreement. PwCES shall apply to Equifax
and this Agreement its interpretations of laws, rules, regulations,
guidelines and policies regarding audit independence in a manner
consistent with PwCES's application of such interpretations to
situations similar to those set forth in this Agreement.
3.17 Business Recovery and Disaster Recovery. The parties' responsibilities
for business recovery and disaster recovery and associated costs are
set forth in Exhibit 14.
3.18 Regulatory Changes. PwCES shall make any changes to the Services and
take any actions necessary in order to maintain compliance with laws
and regulations applicable to the provision of the Services. To the
extent that regulatory or statutory changes, or changes in Equifax's
policies or practices, that directly relate to the Services and require
a modification to the Services shall require PwCES to incur costs and
expenses to provide the Continuing Services beyond those required in
fulfilling its then-current responsibilities under this Agreement, the
parties shall negotiate in good faith a Change Order reflecting the
additional costs to PwCES.
3.19 Pool of Resources. To the extent a task or function related to the
Continuing Services was being performed by a Transitioned Employee
prior to the Commencement Date (and not by a Third Party Provider) and
such task or function is not specifically described in Exhibit 2 or
Exhibit 13 or within the definition of Continuing Services, PwCES shall
use the Pool of Resources to perform such task or function and such
task or function shall thereafter be deemed a Continuing Service.
ARTICLE 4. CHARGES AND PAYMENTS
4.01 Charges. In consideration of PwCES providing the Services, Equifax
shall pay to PwCES the Charges as set forth in Exhibit 1.
4.02 Incremental Charges or Credits. In consideration of an increase in the
quantity of any Continuing Service, which increase is within the
Threshold Limits, Equifax shall pay to PwCES the Incremental Charges,
as set forth in Exhibit 1. In consideration of a decrease in the
quantity of any Continuing Service, which decrease is within the
Threshold Limits, PwCES shall credit or reimburse Equifax the
Incremental Credits, as set forth in Exhibit 1.
4.03 Annual Inflation Index Adjustment. PwCES shall apply an inflation
adjustment, based on the Inflation Adjustment Index, to the Charges, as
set forth in Exhibit 1.
4.04 Payment Terms.
a. Invoice in Advance. PwCES shall issue an invoice to Equifax no
more than ten (10) business days in advance of the beginning
of each month during the term of this Agreement for the amount
of the Base Charge for that month and other Charges for that
month relating to the recurring Services.
b. Invoice in Arrears. PwCES shall issue an invoice to Equifax
within ten (10) business days after the end of each month
during the term of this Agreement for the amount of all
Incremental Charges, charges for Additional Services and
Ancillary Services (except for those Charges paid in advance
pursuant to Section 4.04a), Performance Bonuses due PwCES and
any other charges incurred during the previous month, which
invoice shall also include all Incremental Credits,
Performance Credits and any other credits due Equifax during
the previous month.
c. Payments. All invoices submitted by PwCES to Equifax are due
and payable within thirty (30) days of the receipt of the
invoice, subject to Equifax's right to withhold payment in the
event of a good faith dispute pursuant to Section 4.04e. Late
payments shall accrue interest from the invoice date at the
lesser of (i) one-and-one-half percent (1 1/2%) per month and
(ii) the highest rate allowed by law. Subject to Section
4.04e, if Equifax fails to pay any invoice within thirty (30)
days after the invoice date, and thereafter fails to make such
payment within fifteen (15) days after written notice from
PwCES of such failure, PwCES may, in addition to any other
remedies available to it under this Agreement, suspend
performance of Services.
d. Credits. With respect to any amounts to be paid or reimbursed
by PwCES to Equifax pursuant to this Agreement, including,
without limitation, Incremental Credits and Performance
Credits, PwCES may, at its option, pay that amount to Equifax
by giving Equifax a credit against Charges otherwise payable
to PwCES.
e. Disputed Amounts. If Equifax, in good faith, disputes any
Charges regarding the Services, it may withhold any such
disputed amounts (except for applicable taxes) from the
invoice in the second month following the month in which the
dispute arose if the problem giving rise to the dispute has
not been resolved to Equifax's reasonable satisfaction by the
time payment on such invoice is due. Upon request, Equifax
shall pay the withheld amounts into an interest-bearing escrow
account. In accordance with the resolution of the Dispute,
Equifax shall pay to PwCES withheld amounts, plus interest
accrued on such withheld amounts, and the escrow agent shall
release the withheld amounts to the parties. Regardless of any
Dispute, Equifax shall remit to PwCES the invoiced amount
minus the disputed amount.
4.05 Taxes.
a. Inclusive Taxes. The Charges are inclusive of any sales, use,
gross receipts or value added, withholding, ad valorem or
other taxes based on or measured by PwCES's cost in acquiring
equipment, materials, supplies or services used by PwCES in
providing the Services. Further, each party shall bear sole
responsibility for any real or personal property taxes on any
property it owns or leases, for franchise or similar taxes on
its business, for employment taxes on its employees and for
taxes on its net income.
b. Additional. Except as set forth in Section 4.05a, if a sales,
use, privilege, value added, excise, services or
similar tax is assessed on the provision of the Services by
PwCES to Equifax on PwCES's Charges to Equifax under this
Agreement, however levied or assessed, Equifax shall be
responsible for and pay the amount of any such tax. There will
be added to any Charges hereunder, and Equifax shall pay to
PwCES, amounts equal to any such taxes, however designated or
levied, based upon such Charges, or upon this Agreement or any
Services or items provided hereunder, or their use, and any
such taxes or amounts in lieu thereof paid or payable by PwCES
in respect of the foregoing. PwCES shall set forth in invoices
provided to Equifax those Services that are subject to tax.
c. Cooperation. The parties shall cooperate reasonably with each
other to determine accurately each party's tax liability and
to minimize such liability to the extent legally permissible.
To substantiate any claimed exemptions, Equifax shall supply
to PwCES the appropriate exemption or resale certificates.
4.06 Verification of Assumptions. The Charges, Services and Service Levels
are based on Assumptions derived in part from information provided by
Equifax to PwCES. Equifax shall be responsible for the accuracy of any
representations it made as part of the due diligence and negotiation
process and on which the Assumptions are based. In the event of any
material deviation from these representations during the Transition
Period, or during the first twelve (12) months after the Commencement
Date with respect to those Services or components of Services not
delivered during the Transition Period, the parties shall negotiate in
good faith to define and mutually agree upon adjustments that shall be
consistent with the intent of the parties. Any such agreed adjustment
shall be set forth in a Change Order.
4.07 Significant Business Changes and Additional Business Units.
a. Business Changes. Subject to any minimum revenue commitments
set forth in Exhibit 1, in the event that the Continuing
Services fall outside of the Threshold Limits for the period
of time set forth in Exhibit 1, Equifax and PwCES shall
negotiate and mutually agree upon an appropriate adjustment to
the Charges, pursuant to Exhibit 1.
b. Changes in Business Units. The parties may agree to add new
Affiliates of Equifax to this Agreement. Equifax shall share
information with PwCES to allow PwCES to determine the level
of resources that will be required to meet Equifax's needs
with respect to such new Affiliates. PwCES and Equifax shall
negotiate (i) a Change Order to accommodate the addition of
any new Affiliates to this Agreement or (ii) a Change Order to
accommodate the removal of an Affiliate from this Agreement.
If Equifax sells an Affiliate to a third party, Equifax may
remove such Affiliate from this Agreement, subject to an
appropriate reduction of the minimum revenue commitments set
forth in Exhibit 1; provided, however, such reduction shall
not be made if such Affiliate continues to purchase the
Services from PwCES after its removal. If Equifax sells an
Affiliate to a third party that desires to have PwCES continue
to provide services similar to the Services, PwCES shall
negotiate in good faith to provide services similar to the
Services to such Affiliate on a basis substantially comparable
to the basis on which PwCES provides Services to Equifax,
provided there would be (x) in PwCES's reasonable discretion
based on PwCES's due diligence review of such Affiliate, no
potential material adverse risk to PwCES in providing such
services or (y) no Impairment of Independence. If such
Affiliate continues to purchase the Services from PwCES after
its removal, the Charges paid by such Affiliate shall count
towards the minimum revenue commitments set forth in Exhibit
1.
4.08 Insecurity and Adequate Assurances. If Equifax fails to make payments
due hereunder in a timely manner, PwCES may demand adequate assurances
in writing of Equifax's ability to meet its payment obligations under
this Agreement. Unless Equifax provides the assurances within thirty
(30) days and in a manner acceptable to PwCES, Equifax shall pay to
PwCES a security deposit equal to three (3) months' aggregate Charges.
4.09 Most Favored Customer. If PwCES or any of its Affiliates provides any
services in the Territory to a third party from the same facilities as
Services are provided to Equifax that are comparable to the Services in
scope and complexity, for a similar or shorter duration and for similar
or lesser volumes (collectively, "Comparable Services"), on terms and
conditions in the aggregate that would be more favorable to Equifax
than those contained herein, then PwCES shall give prompt written
notice thereof to Equifax and Equifax shall have the option to replace
all of the terms and conditions of this Agreement with all such more
favorable terms. On each anniversary of the Initial Commencement Date
and at such other times as Equifax may request (based on Equifax's
reasonable belief that PwCES has an obligation under this Section),
PwCES shall deliver to Equifax a certificate duly executed by an
appropriate executive of PwCES, certifying that, as of the date of such
certificate, and at all times since the date of the last certification
pursuant to this Section (or since the Initial Commencement Date if
there has been no prior certification), stating that PwCES is and has
been in
compliance with this Section. If the parties are unable to agree as to
PwCES's compliance with the requirements of this Section or, as to the
appropriate means to effectuate this Section, then such issue shall be
determined pursuant to the Dispute Resolution Process. The parties
acknowledge and agree that the provisions of this Section have been
included in this Agreement to induce Equifax to agree to the
exclusivity provisions of this Agreement, and that they are intended to
ensure that the Services are provided to Equifax on terms and
conditions granted by PwCES and its Affiliates to its most favored
customers obtaining Comparable Services in the Territory.
ARTICLE 5. AUDITS
5.01 Audit of Charges. Upon not less than thirty (30) days prior written
notice, and no more than one (1) time during any calendar year during
the term of this Agreement, PwCES shall provide to Equifax access to
PwCES's financial records and supporting documentation necessary to
verify PwCES's invoices to Equifax (including, without limitation,
expenses). Equifax shall bear the costs of any such audit. In the event
the audit results in a determination that PwCES has undercharged
Equifax, then the amount of such undercharge shall be treated, for
invoicing and payment purposes, as an adjustment in arrears for the
month in which the undercharge is discovered or in the month in which
the final resolution occurs. In the event the audit results in a
determination that PwCES has overcharged Equifax, then the amount of
such overcharge (plus interest) shall be treated, for invoicing and
payment purposes, as a credit in arrears for the month in which the
overcharge is discovered or in the month in which the final resolution
occurs. If the amount of the overcharge is equal to or exceeds five
percent (5%) of the total amount of the Charges for the calendar year
in which the audit occurs, PwCES shall reimburse Equifax for the
reasonable costs of the audit.
5.02 Audit of Services. Upon not less than thirty (30) days prior written
notice, or such notice as may be reasonable under the circumstances,
and during regular business hours, PwCES will make available to
Equifax's financial management, external auditors, examiners and
regulators and their designees such books, records, information and
documentation of internal controls relating to Equifax and maintained
by PwCES in the normal course of processing Equifax's transactions.
Copies of requested information shall not be unreasonably withheld but
at all times are subject to the approval of Equifax's representatives
having authority to release such information to interested parties.
Analyses, documentation and other information not maintained by PwCES
in the normal course of providing Services will be prepared by PwCES
for use in the audit or examination process as an Additional Service.
5.03 Equifax Internal Audit. Equifax's internal auditors shall have the
right, without notice, and during regular business hours, to request
access to Equifax books, records, information and documentation of
internal controls relating to Equifax and maintained by PwCES in the
normal course of processing Equifax's transactions and access to all
personnel providing the Services. Equifax shall use reasonable judgment
in requesting such books, records, information and documentation and
shall not unduly disrupt the operation of PwCES's business. PwCES shall
cooperate reasonably and in good faith with (i) Equifax's review of the
administration of the benefit plans covered by Exhibit 2, including
compliance with the documents governing such plans and compliance with
applicable laws, rules and regulations and (ii) remedial actions
determined by Equifax to be required in connection therewith. Analyses,
documentation and other information not maintained by PwCES in the
normal course of providing Services will be prepared by PwCES for use
in the audit, examination process, review and remediation as an
Additional Service.
5.04 PwCES Internal Audit. If, as a result of an internal audit conducted by
PwCES, at its own expense, PwCES determines that it has undercharged
Equifax (including, without limitation, Base Charges, Incremental
Charges and expenses), then the amount of such undercharge shall be
treated, for invoicing and payment purposes, as an adjustment in
arrears for the month in which the undercharge is discovered or the
month in which the final resolution occurs. In the event the audit
results in a determination that PwCES has overcharged Equifax, then the
amount of such overcharge shall be treated, for invoicing and payment
purposes, as a credit in arrears for the month in which the overcharge
is discovered or in the month in which the final resolution occurs.
5.05 PwCES Audit of Equifax. Upon not less than thirty (30) days prior
written notice, and no more than one (1) time during any calendar year
during the term of this Agreement, Equifax shall provide to PwCES
access to Equifax's financial records and supporting documentation
necessary to verify the credits or reimbursements given to Equifax by
PwCES. PwCES shall bear the costs for any such audit. In the event the
audit results in a determination that such credits or reimbursements
were incorrect, then such incorrect amount shall be corrected
appropriately in arrears for the month in which such incorrect amount
is discovered or in the month in which the final resolution occurs.
5.06 Equifax Security Audit of PwCES. During the term of this Agreement,
PwCES shall provide to Equifax access to PwCES's facilities so that
Equifax can ensure PwCES's compliance with the confidentiality
provisions set forth in
Article 9. In the event the audit results in a determination that PwCES
is not in full compliance with such provisions, the parties will meet
and agree upon the steps PwCES must take to bring it into full
compliance and PwCES shall promptly take such steps. For each audit
after the second such audit in a calendar year during the term of this
Agreement, Equifax shall reimburse PwCES for the reasonable costs, if
any, PwCES incurs in providing such access. Any audit pursuant to this
Section that reveals a material non-compliance with Article 9 shall be
deemed not to have occurred for purposes of the preceding sentence of
this Section.
ARTICLE 6. MANAGEMENT AND HUMAN RESOURCES
6.01 PwCES Account Executive. PwCES shall designate, prior to the Initial
Commencement Date, a PwCES Account Executive to whom all of Equifax's
communications shall be addressed and who has the authority to act for
and bind PwCES and its contractors in connection with all aspects of
this Agreement.
a. Selection. Before assigning an individual to the position of
Account Executive, whether the person is initially assigned or
subsequently assigned, PwCES shall:
(i) notify Equifax of the proposed assignment for Equifax's
approval;
(ii) introduce the individual to appropriate Equifax
representatives; and
(iii) consistent with law and PwCES's reasonable personnel
practices, provide Equifax with any other information
about the individual that is reasonably requested.
b. Term. PwCES shall cause the person assigned to the position of
Account Executive to devote substantial time and effort to the
provision of the Services under this Agreement. PwCES shall
use commercially reasonable efforts to maintain the PwCES
Account Executive at PwCES for the minimum term of twenty four
(24) months during the first twenty four (24) months after the
Initial Commencement Date and twelve (12) months thereafter,
unless such Account Executive (i) voluntarily resigns from
PwCES, (ii) is dismissed by PwCES for (a) misconduct or (b)
unsatisfactory performance in respect of his or her duties and
responsibilities to Equifax or PwCES, (iii) is unable to work
due to his or her death, injury or disability or (iv) is
reassigned because of personal requirements. PwCES shall not
reassign the Account Executive during the foregoing minimum
terms except for personal requirements not related to career
development. Whenever possible, PwCES shall give Equifax at
least sixty (60) days advance notice of a change of the
Account Executive or if such sixty (60) days notice is not
possible, the longest notice otherwise possible.
c. Removal. In the event that Equifax reasonably and in good
faith determines that it is not in the best interests of
Equifax for the PwCES Account Executive to continue in his or
her capacity, then Equifax shall give PwCES written notice
specifying the reasons for its position and requesting that
the Account Executive be replaced. PwCES shall immediately
investigate the matters stated in such notice and, if it
determines that Equifax's concerns are reasonable and not
unlawful, PwCES shall replace the Account Executive in
accordance with Section 6.01a.
6.02 Equifax Account Executive. Equifax shall designate, prior to the
Initial Commencement Date, an Equifax Account Executive to whom all of
PwCES's communications shall be addressed and who has the authority to
act for and bind Equifax and its contractors in connection with all
aspects of this Agreement.
a. Selection. Before assigning an individual to the position of
Account Executive, whether the person is initially assigned or
subsequently assigned, Equifax shall:
(i) notify PwCES of the proposed assignment for PwCES's
approval;
(ii) introduce the individual to appropriate PwCES
representatives; and
(iii) consistent with law and Equifax's reasonable personnel
practices, provide PwCES with any other information
about the individual that is reasonably requested.
b. Term. Equifax shall cause the person assigned to the position
of Account Executive to devote substantial time
and effort to the management of Equifax's responsibilities
under this Agreement. Equifax shall use commercially
reasonable efforts to maintain the Equifax Account Executive
at Equifax for the minimum term of twenty four (24) months
during the first twenty four (24) months after the Initial
Commencement Date and twelve (12) months thereafter, unless
such Account Executive (i) voluntarily resigns from Equifax,
(ii) is dismissed by Equifax for (a) misconduct or (b)
unsatisfactory performance in respect of his or her duties and
responsibilities to Equifax or PwCES, (iii) is unable to work
due to his or her death, injury or disability or (iv) is
reassigned because of personal requirements. Equifax shall not
reassign the Account Executive during the foregoing minimum
terms except for personal requirements not related to career
development. Whenever possible, Equifax shall give PwCES at
least sixty (60) days advance notice of a change of the
Account Executive or if such sixty (60) days notice is not
possible, the longest notice otherwise possible.
c. Removal. In the event that PwCES reasonably and in good faith
determines that it is not in the best interests of PwCES for
the Equifax Account Executive to continue in his or her
capacity, then PwCES shall give Equifax written notice
specifying the reasons for its position and requesting that
the Account Executive be replaced. Equifax shall immediately
investigate the matters stated in such notice and, if it
determines that PwCES's concerns are reasonable and not
unlawful, Equifax shall replace the Account Executive in
accordance with Section 6.02a.
6.03 Services Oversight Committee. Within fifteen (15) days after the
Initial Commencement Date, Equifax shall appoint three (3) members of
Equifax's management staff, including the Equifax Account Executive,
and PwCES shall appoint three (3) members of PwCES's management staff,
including the PwCES Account Executive, to serve on the Services
Oversight Committee. For the first twelve (12) months after the Initial
Commencement Date, one of the PwCES members shall act as the chairman
of the Services Oversight Committee; each twelve (12) months thereafter
the parties shall alternate selecting the chairman. The Services
Oversight Committee shall be authorized and responsible for (i)
generally overseeing the performance of this Agreement and (ii)
monitoring and resolving Disputes in accordance with Article 12.
6.04 Equifax Selected Employees' Employment with PwCES. PwCES shall offer to
hire those Equifax Selected Employees who (i) are actively employed by
Equifax as of the Commencement Date and (ii) meet such other reasonable
hiring requirements of PwCES to the satisfaction of PwCES. PwCES shall
be solely responsible for making such offers of employment to such
Equifax Selected Employees. PwCES's plan regarding (a) Equifax Selected
Employees, (b) offers of employment to such Equifax Selected Employees
and (c) Transitioned Employee benefits is described in the Hiring Plan.
6.05 Right to Terminate and Transfer. PwCES shall have the right, in its
sole discretion, (i) to terminate any Transitioned Employee or (ii) to
transfer any Transitioned Employee to an Affiliate of PwCES, subject to
Section 6.08.
6.06 Employment with PwCES. Equifax shall use reasonable efforts to ensure
that all of the Equifax Selected Employees to whom PwCES offers
employment accept such positions with PwCES. In the event that a
significant number of Equifax Selected Employees offered employment by
PwCES fail to accept such employment offer, the parties shall negotiate
in good faith appropriate relief in Charges, Services, Service Levels
and other obligations under this Agreement pursuant to the Change
Control Procedures; provided, however, that PwCES shall use diligent
efforts to mitigate the effects resulting from such event.
6.07 Key Personnel. In the event that the number of Key Personnel set forth
in Exhibit 6 fail to accept PwCES's employment offer or fail to enter
into an independent contractor agreement with PwCES, the parties shall
negotiate in good faith appropriate relief in Charges, Services,
Service Levels and other obligations under this Agreement pursuant to
the Change Control Procedures. PwCES shall use diligent efforts to
mitigate the effects resulting from such event.
6.08 Key PwCES Employees. PwCES shall use reasonable efforts to assign each
Key PwCES Employee to provide the Services for a minimum term of twelve
(12) months, unless (i) Equifax consents to the reassignment or
replacement of such Key PwCES Employee, (ii) reassignment or
replacement of such Key PwCES Employee will not have a more than minor
adverse effect on the Services or (iii) such Key PwCES Employee (a)
voluntarily resigns from PwCES, (b) is dismissed by PwCES for (x)
misconduct or (y) unsatisfactory performance in respect of his or her
duties and responsibilities to Equifax or PwCES, (c) is unable to work
due to his or her death, injury or disability or (d) is reassigned
because of personal requirements. PwCES shall not reassign Key
Employees during the foregoing minimum terms except for personal
requirements not related to career development.
ARTICLE 7. TRADEMARKS AND MARKETING
7.01 Use of Trademarks. For so long as PwCES is in substantial compliance
with the Service Levels, PwCES shall be permitted to use Equifax's name
and logos as necessary to market PwCES's services that are similar to
some or all of the Services, subject to Equifax's right to approve such
use; provided, however, no approval shall be necessary to the extent
PwCES is merely using Equifax's name or logos in a list of customers.
Equifax shall have no rights to use PwCES's or its Affiliate's
trademarks, service marks or trade names for any purpose without the
prior approval of PwCES.
7.02 Marketing Cooperation. For so long as PwCES is in substantial
compliance with the Service Levels, Equifax shall cooperate with PwCES,
at PwCES's reasonable request and at no charge to PwCES, in marketing
functions, tasks and projects addressed by the Services to third
parties. Equifax's cooperation shall be subject to reasonable notice by
PwCES, Equifax's availability and a lack of more than a minor impact of
such cooperation on Equifax's business operations. By way of example
and not limitation, and subject to the foregoing limitations, Equifax
shall (i) allow and participate in reasonable on-site visits by
prospective customers (who have entered into appropriate
confidentiality agreements with Equifax) and (ii) cooperate with PwCES
in preparing and publishing articles on PwCES's services. Equifax shall
refer to PwCES all inquiries and opportunities directed to Equifax,
about which Equifax becomes aware, for PwCES to provide functions,
tasks and projects addressed by the Services to any third party.
ARTICLE 8. PROPRIETARY RIGHTS
8.01 Definitions.
a. The term "Materials" means literary works or other works of
authorship, such as computer programs, computer program
listings, program tools, documentation, reports and drawings,
as well as user manuals, charts, graphs and other written
documentation and machine-readable text and files, including,
without limitation, computer programming code (including
source code and object code), in each case used in or
initially developed in connection with the Services.
b. The term "Derivative Work" means a work based on one or more
preexisting works, including, without limitation, a
condensation, transformation, expansion or adaptation, that,
if prepared without authorization of the owner of the
copyright of such preexisting work, would constitute a
copyright infringement.
8.02 PwCES Materials. All copyright, patent, trademark and other
intellectual property rights in the PwCES Software and preexisting
Materials of PwCES or its Affiliates shall be the property of PwCES or
its Affiliates, as the case may be. With respect to any Materials
developed solely by PwCES, its Affiliates or its or their contractors,
or jointly by Equifax personnel and PwCES, its Affiliates or its or
their contractors, under this Agreement or in the performance of
Services, except as otherwise expressly set forth in this Agreement
(e.g., Additional Services), ownership will be as follows:
a. Materials that constitute a Derivative Work for which the
preexisting copyright is owned by Equifax, shall be owned by
Equifax, and PwCES shall have (i) an irrevocable,
nonexclusive, worldwide, paid-up license to access, use,
execute, reproduce, display, perform, prepare derivative works
of and distribute such Materials only in connection with (a)
the Services or (b) services provided to third parties from
the facility from which the Services are provided and (ii) the
right to sublicense third parties to do any of the foregoing.
Such license shall include the Materials of Equifax for which
the preexisting copyright is owned by Equifax and upon which
such Derivative Work is based, but only to the extent such
Materials are embodied in, or necessary for the exercise of
the license to, such Derivative Work.
b. Materials that constitute a Derivative Work for which the
preexisting copyright is owned by PwCES, its contractors or a
third party shall, as between PwCES and Equifax, be owned by
PwCES, and during the term of this Agreement Equifax shall
have (i) an irrevocable, nonexclusive, worldwide, paid-up
license to access, use, execute, reproduce, display, perform,
prepare derivative works of and distribute such Materials
internally within Equifax and its Affiliates solely in
connection with the Services and (ii) the right to sublicense
third parties to do any of the foregoing.
c. Materials that do not constitute a Derivative Work of any
Materials owned by Equifax, PwCES or any third party shall be
owned by PwCES, and during the term of this Agreement Equifax
shall have (i) an irrevocable, nonexclusive, worldwide,
paid-up license to access, use, execute, reproduce, display,
perform, prepare
derivative works of and distribute such Materials internally
within Equifax and its Affiliates solely in connection with
the Services and (ii) the right to sublicense third parties to
do any of the foregoing; provided, however, with respect to
any such Materials developed jointly by Equifax personnel and
PwCES, its Affiliates or its or their contractors, PwCES shall
not use, for any entity other than Equifax or its Affiliates,
any portion of such Materials specific to Equifax operations,
procedures or management processes that are Confidential
Information of Equifax.
d. If, pursuant to a Change Order, Materials are developed by
PwCES for use in connection with the Services, at an
additional cost to Equifax, then prior to such development,
the parties shall mutually agree in writing on the ownership
and use of such Materials.
8.03 Equifax Materials. With respect to any Materials that are or have been
developed (i) solely by Equifax, whether or not developed under this
Agreement or (ii) for Equifax prior to this Agreement, such Materials
shall be owned by Equifax, and during the term of this Agreement PwCES
shall have (a) an irrevocable, nonexclusive, worldwide, paid-up license
to access, use, execute, reproduce, display, perform, prepare
derivative works of and distribute such Materials internally within
PwCES solely in connection with the Services and (b) the right to
sublicense third parties to do any of the foregoing. With respect to
those items of Equifax Software designated as "for use by PwCES for
third parties" on Exhibit 9, the license set forth in the preceding
sentence shall also include the right to access, use, execute,
reproduce, display, perform, prepare derivative works of and distribute
such Equifax Software internally within PwCES in connection with
services provided to third parties from the facility from which the
Services are provided and the right to sublicense third parties to do
any of the foregoing. Each party waives any claims for indemnification
against the other party with respect to any third party claims that may
arise from PwCES's use of Equifax Software for third parties pursuant
to the preceding sentence.
8.04 Derivative Works of PwCES Materials. With respect to any Materials that
are developed solely by Equifax and that constitute a Derivative Work
of any Materials for which the preexisting copyright is owned by PwCES
or its Affiliates, such Materials shall be owned by PwCES or its
Affiliates, and during the term of this Agreement Equifax shall have
(i) an irrevocable, nonexclusive, worldwide, paid-up license to access,
use, execute, reproduce, display, perform, prepare derivative works of
and distribute such Materials internally within Equifax and its
Affiliates solely in connection with the Services and (ii) the right to
sublicense third parties to do any of the foregoing.
8.05 Limitation. Any ownership or license rights herein granted to either
party are limited by and subject to any intellectual property rights
(including, without limitation, patents and copyrights) held by, and
terms and conditions of any license agreements with, applicable vendor
software providers, excluding PwCES and its Affiliates.
8.06 Assignment. To the extent any of the Materials may not, by operation of
law, be owned by the party to which ownership has been granted (as
described in this Article), each party agrees to assign and hereby
assigns, without further consideration, the ownership of all right,
title and interest in all United States of America and foreign
copyrights in such Materials to the other party, and such assignee
party shall have the right to obtain and hold in its own name
copyrights, registrations, renewals and all other rights relating or
pertinent thereto.
8.07 Inventions. The term "Invention" means any idea, concept, know-how or
technique that either party first conceives or reduces to practice in
connection with performance of the Services during this Agreement and
for which a patent application is or could be filed. Inventions will be
treated as follows:
(i) if made by Equifax personnel, it shall be Equifax
property and Equifax grants PwCES a nonexclusive,
perpetual, irrevocable, worldwide and paid-up license
under such Invention, and under any patent application
and patents issued thereon;
(ii) if made by PwCES personnel, it shall be PwCES's property
and PwCES grants Equifax a nonexclusive, perpetual,
irrevocable, worldwide and paid-up license under such
Invention, and under any patent application and patents
issued thereon;
(iii) if made by PwCES and Equifax personnel jointly (a) it
shall be PwCES's property, (b) PwCES grants Equifax a
nonexclusive, perpetual irrevocable, worldwide and
paid-up license under such Invention, and under any
patent application and patents issued thereon, (c) if
PwCES intentionally decides not to pay any or all of the
required maintenance fees for the patent for such
Invention, it shall promptly notify Equifax of its
decision and if Equifax elects to pay any such fee,
PwCES shall assign such
patent to Equifax and PwCES shall retain a license
equivalent to that granted to Equifax pursuant to
subsection (b) above, (d) Equifax shall have the right
to file for and obtain ownership of patent and other
intellectual property rights with respect to such
Invention in any territory where Equifax plans to use
such Invention if PwCES has not so filed or fails to so
file within sixty (60) days of written notice to PwCES
and PwCES shall retain a license equivalent to that
granted to PwCES pursuant to subsection (c) above and
(e) the owner of a patent in a territory shall reimburse
the other party with respect to any enforcement or other
actions with respect to such patent and shall retain all
damages awarded thereon;
(iv) all licenses granted to either party include the right
to make, have made, use, have used, import, offer to
sell, sell, lease or otherwise transfer any apparatus,
or practice and have practiced any method and shall
include the right to grant, directly or indirectly,
revocable or irrevocable sublicenses to Affiliates of
such party; and
(v) nothing contained in this Agreement shall be deemed to
grant any license under any patents or patent
applications arising out of any other inventions of
either party.
8.08 Licenses. To the extent that either PwCES or Equifax licenses any
Materials of the other party to a third party, each such license shall
be in writing and shall contain provisions that protect the owning
party's intellectual property rights in such Materials, including,
without limitation, confidentiality provisions and provisions that
appropriately limit the use and number of copies of the Materials.
8.09 Sale of an Affiliate. Equifax may extend to (i) an Affiliate sold or
otherwise transferred to a third party, (ii) a business unit of Equifax
or an Affiliate that is sold or otherwise transferred to a third party,
or (iii) a business unit of Equifax or an Affiliate of Equifax that is
distributed via a stock dividend or other distribution to the
stockholders of Equifax (collectively a "Transferred Affiliate"), in
each case for such Transferred Affiliate's own internal use only, the
rights in Materials granted to Equifax pursuant to this Article 8;
provided, however, such Transferred Affiliate must agree in writing to
be bound by the obligations set forth in this Article 8 and by
provisions that protect PwCES's intellectual property rights in such
Materials, including, without limitation, confidentiality provisions
and provisions that appropriately limit the use (by or for such
Transferred Affiliate only) and number of copies of such Materials and
provided further that PwCES had provided Services to such Affiliate or
business unit.
ARTICLE 9. CONFIDENTIALITY AND DATA
9.01 Confidential Information. The term "Confidential Information" means the
terms and conditions of this Agreement and all information, data,
knowledge and know-how (in whatever form and however communicated)
relating directly or indirectly to the disclosing party (or to its
Affiliates or contractors, or to its or their businesses, operations,
properties, products, markets or financial positions) that is delivered
or disclosed by such party or any of its officers, directors, partners,
members, employees, agents, Affiliates or shareholders to the other
party in writing, electronically, orally or through visual means, or
that such party learns or obtains aurally, through observation or
analyses, interpretations, compilations, studies or evaluations of such
information, data, knowledge or know-how. All information that
qualified as Confidential Information pursuant to the Confidentiality
Agreement dated June 25, 1998 by and between PwCES and Equifax shall be
deemed Confidential Information under this Agreement.
9.02 Ownership. All Equifax Data shall be owned by Equifax. Without limiting
the foregoing, Equifax may use the Equifax Data in any manner, and may
provide the Equifax Data to third parties. PwCES shall not use the
Equifax Data except in connection with the provision of the Services,
and shall not disclose, sell, assign, lease or otherwise provide the
Equifax Data to third parties, except as specifically permitted by
Equifax in writing or as necessary to perform the Services. Upon
request of Equifax, and at any time during the term of this Agreement,
and upon expiration or termination of this Agreement for any reason,
PwCES shall promptly provide copies of all or any part of the Equifax
Data to Equifax, in the form or format and on the media requested by
Equifax; provided, however, that Equifax shall reimburse PwCES for its
costs to provide the Equifax Data in a form or format not then being
currently used by PwCES to provide the Services. Upon expiration or
termination of this Agreement, and completion of all Termination
Services, PwCES shall destroy, and cause all of its contractors, agents
and Affiliates to destroy, all copies of the Equifax Data, and the
Account Executive of PwCES shall certify the same to Equifax in
writing.
9.03 Loss of Status. Confidential Information shall not include information,
data, knowledge and know-how, as shown by written records, that (i) is
known to the receiving party prior to disclosure to such party, (ii) is
in the public domain prior
to disclosure to such party, (iii) enters the public domain through no
violation of this Agreement after disclosure to such party, (iv) such
party receives from a third party not under obligation of
confidentiality to the disclosing party or (v) the receiving party
independently develops without reliance on Confidential Information.
9.04 Limited Use and Access. Each party shall keep in confidence and prevent
the unauthorized duplication, use and disclosure of Confidential
Information. Confidential Information may only be used for furthering
the purposes of this Agreement and providing the Services hereunder.
Each party shall, upon expiration or termination of this Agreement or
otherwise upon demand, at the other party's option, either return to
the other party or destroy and certify in writing to the other party
the destruction of any and all documents (the term "document," as used
in this Article, shall include, without limitation, any writing,
instrument, agreement, letter, memorandum, chart, graph, blueprint,
photograph, financial statement or data, telex, facsimile, cable, tape,
disk or other electronic, digital, magnetic, laser or other recording
or image in whatever form or medium), papers and materials and notes
thereon in each party's possession, including copies or reproductions
thereof, to the extent they contain Confidential Information of the
party; provided, however, the foregoing shall not apply to Confidential
Information to the extent it is a part of any license or other ongoing
agreement between the parties following termination or expiration of
this Agreement or that survives the termination or expiration of this
Agreement. In addition, each party shall be entitled to retain one copy
of the other party's Confidential Information in such party's legal
files solely for purposes of resolving Disputes. Each party agrees that
it will protect the confidentiality of Confidential Information through
the exercise of the same procedures that it uses in preserving and
safeguarding its own proprietary information, which procedures shall at
a minimum constitute reasonable care. Each party will limit access to
Confidential Information to only those of its employees, agents and
contractors having a need-to-know in connection with this Agreement.
When a party discloses Confidential Information to any of its
employees, agents or contractors, such party will inform them of the
restrictions on duplication, use and disclosure to third parties.
9.05 Proper Disclosures. Subject to Section 9.04, each party shall keep the
Confidential Information confidential and shall not disclose such
information to any third party without the prior written approval of
the other party, except that (i) PwCES may disclose general information
relating to the scope of Services and the duration of this Agreement to
potential buyers of PwCES and persons or entities engaged in the
valuation of PwCES and may disclose information as agreed upon by the
parties to potential clients, (ii) Equifax may disclose general
information relating to the scope of Services and the duration of this
Agreement to potential buyers of Equifax or any one or more Affiliates
of Equifax, (iii) PwCES may disclose the terms and conditions of this
Agreement as necessary to comply with most favored customer provisions
in agreements with other customers of services similar to the Services,
(iv) either party may disclose the provisions of this Agreement to
bankers and other financial institutions in the ordinary course of
business and (v) either party may disclose the provisions of this
Agreement to the extent required by any applicable law, regulation or
rules of any stock exchange. The party disclosing the other party's
Confidential Information (except pursuant to (v)) to a third party
shall require the third party to enter into a confidentiality agreement
protecting such Confidential Information.
9.06 Injunctive Relief. Each party acknowledges that the other party may
suffer irreparable damage in the event of a breach or threatened breach
of any provision of this Article. Accordingly, in such an event,
notwithstanding Articles 12 and 13, such party shall be entitled to
preliminary and final injunctive relief, as well as any and all other
applicable remedies at law or equity, including the recovery of
damages.
9.07 No License. The parties acknowledge and agree that (i) each party
maintains that the Confidential Information contains valuable trade
secrets and (ii) all rights to Confidential Information are reserved by
the disclosing party. No license, express or implied, by estoppel or
otherwise, under any trade secret right, trademark, patent, copyright
or other proprietary right or applications that are now or may
hereafter be owned by a party, is granted by the disclosure of
Confidential Information under this Agreement.
9.08 Residual Information. The receiving party and its Affiliates shall be
free to use the residuals of such Confidential Information provided by
the disclosing party for any purpose, including, without limitation,
use in the development, manufacturing, marketing and maintenance of its
products and services subject only to its obligations with respect to
disclosure set forth herein and any copyrights and patents of the
disclosing party. The term "residuals" means information in
non-tangible form that may be retained in the unaided memories of those
employees who have had access to the Confidential Information of the
other party during the term of this Agreement. The receiving party and
its Affiliates may use the documents and other tangible materials
containing the Confidential Information of the disclosing party only
for the purposes of this Agreement. It is understood that receipt of
Confidential Information under this Agreement shall not create any
obligation in any way limiting or restricting the assignment or
reassignment of PwCES's
employees within PwCES or its Affiliates and Equifax's employees within
Equifax or its Affiliates.
ARTICLE 10. COVENANTS
10.01 Non-Solicitation. Except as otherwise expressly provided in this
Agreement, including, without limitation on Exhibit 11, or with PwCES's
written consent, during the term of this Agreement and for two (2)
years after the later of the cessation of Termination Services and the
date of termination or expiration, Equifax agrees not to solicit or
hire any of PwCES's, or its Affiliates' and contractors', partners,
employees and agents that become known to Equifax as a result of
Services provided under this Agreement. Except as otherwise expressly
provided in this Agreement or with Equifax's written consent, during
the term of this Agreement and for two (2) years after termination or
expiration of this Agreement, PwCES agrees not to solicit or hire any
of Equifax's, or its Affiliates' and contractors', partners, employees
and agents that become known to PwCES as a result of providing Services
under this Agreement. Notwithstanding the foregoing, either party may
at any time hire any contractor, partner, employee or agent of the
other party that responds to a general solicitation to the public.
10.02 Cooperation. During the term of this Agreement, each party shall
provide to the other party reasonable cooperation and assistance in
connection with its performance of its obligations under this
Agreement.
ARTICLE 11. REPRESENTATIONS AND WARRANTIES
11.01 By Equifax. Equifax represents and warrants to PwCES as follows:
a. Authority. Equifax (i) is a corporation duly incorporated,
validly existing and in good standing under the laws of
Georgia, (ii) has full corporate power to own, lease, license
and operate its properties and assets, to conduct its business
as currently conducted and to enter into this Agreement and to
consummate the transactions contemplated hereby and (iii) has
the ability and authority to cause its Affiliates to be bound
by the terms and conditions of this Agreement.
b. Authorized Agreement. This Agreement has been duly authorized,
executed and delivered by Equifax and constitutes a valid and
binding agreement of Equifax, enforceable against Equifax in
accordance with the terms of this Agreement.
c. No Default. Neither the execution and delivery of this
Agreement by Equifax, nor the consummation of the transactions
contemplated hereby, shall result in the breach of any term or
provision of, or constitute a default under, any charter
provision or bylaw, agreement (subject to any applicable
consent), order, law, rule or regulation to which Equifax is a
party or which is otherwise applicable to Equifax, except for
a breach or default under any agreement, order, law, rule or
regulation that would not have a more than minor adverse
effect upon Equifax's ability to perform its obligations under
this Agreement.
d. Agreements and Software. Subject to the receipt of any
required consents or approvals, (i) the Equifax Software and
the rights PwCES shall obtain under the Transferred Agreements
constitute all the software and rights that Equifax used prior
to the Commencement Date to perform for itself the tasks,
functions and projects addressed by the Services (except for
software and rights that PwCES has elected not to acquire from
Equifax) and (ii) Equifax has the right and authority to
assign, license or sublicense the Equifax Software and
Transferred Agreements to PwCES, except where any failure of
the foregoing will not prevent PwCES from performing
substantially in accordance with this Agreement or will
increase PwCES's cost to provide the Services.
e. Assets. The Transferred Assets shall be free of liens and
encumbrances.
f. No Infringement. The Equifax Software owned by Equifax and
Equifax-created modifications or derivative works of Equifax
Software licensed by Equifax do not infringe, violate or
misappropriate any patent, copyright, trademark, trade secret
or other proprietary right of any third party.
g. Third Party Agreements. All of Equifax's obligations with
respect to the Third Party Agreements accruing prior to or
attributable to periods prior to the Commencement Date have
been or will be satisfied in accordance with their terms.
11.02 By PwCES. PwCES represents and warrants to Equifax as follows:
a. Authority. PwCES (i) is a limited liability company, duly
organized, validly existing and in good standing under the
laws of Delaware, (ii) has full power to own, lease, license
and operate its properties and assets, to conduct its business
as currently conducted and to enter into this Agreement and to
consummate the transactions contemplated hereby and (iii) has
the ability and authority to cause its Affiliates to be bound
by the terms and conditions of this Agreement.
b. Authorized Agreement. This Agreement has been duly authorized,
executed and delivered by PwCES and constitutes a valid and
binding agreement of PwCES, enforceable against PwCES in
accordance with the terms of this Agreement.
c. No Default. Neither the execution and delivery of this
Agreement by PwCES, nor the consummation of the transactions
contemplated hereby, shall result in the breach of any term or
provision of, or constitute a default under, any charter
provision or bylaw, agreement (subject to any applicable
consent), order, law, rule or regulation to which PwCES is a
party or that is otherwise applicable to PwCES, except for a
breach or default under any agreement, order, law, rule or
regulation that would not have a more than minor adverse
effect upon PwCES's ability to perform its obligations under
this Agreement.
d. No Infringement. The PwCES Software does not infringe, violate
or misappropriate any patent, copyright, trademark, trade
secret or other proprietary right of any third party.
e. Services. PwCES shall render Services using personnel that are
qualified and shall render Services consistent with good
commercial practice in PwCES's industry.
11.03 By PwC. PwC represents and warrants to Equifax as follows:
a. Authority. PwC (i) is a limited liability partnership, duly
organized, validly existing and in good standing under the
laws of Delaware, (ii) has full power to own, lease, license
and operate its properties and assets, to conduct its business
as currently conducted and to enter into this Agreement and to
consummate the transactions contemplated hereby and (iii) has
the ability and authority to cause its Affiliates to be bound
by the terms and conditions of this Agreement.
b. Authorized Agreement. This Agreement has been duly authorized,
executed and delivered by PwC and constitutes a valid and
binding agreement of PwC, enforceable against PwC in
accordance with the terms of this Agreement.
c. No Default. Neither the execution and delivery of this
Agreement by PwC, nor the consummation of the transactions
contemplated hereby, shall result in the breach of any term or
provision of, or constitute a default under, any charter
provision or bylaw, agreement (subject to any applicable
consent), order, law, rule or regulation to which PwC is a
party or that is otherwise applicable to PwC, except for a
breach or default under any agreement, order, law, rule or
regulation that would not have a more than minor adverse
effect upon PwC's ability to perform its obligations under
this Agreement.
11.04 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND SPECIFICALLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
ARTICLE 12. DISPUTE RESOLUTION
12.01 Account Executives. All Disputes shall be referred to the Account
Executives prior to escalation to the Services Oversight Committee. If
the Account Executives are unable to resolve, or do not anticipate
resolving, the Dispute within ten (10) days after referral of the
Dispute to them, the parties shall submit the Dispute to the Services
Oversight Committee.
12.02 Services Oversight Committee. The Services Oversight Committee shall
meet at least once every sixty (60) days during the term of this
Agreement or at such other time as either party may designate upon
notice to the other party for the
purposes of monitoring the parties' performance under this Agreement
and of resolving Disputes that may arise under this Agreement. The
Services Oversight Committee shall consider Disputes in the order such
Disputes are brought before it. In the event the Services Oversight
Committee is unable to resolve a Dispute within fifteen (15) days of
the date of the first meeting during which such Dispute was considered,
the Services Oversight Committee shall notify the senior executive
selected by each party pursuant to Section 12.03. No Dispute under this
Agreement shall be the subject of arbitration or other formal
proceedings between Equifax and PwCES before being considered by the
Services Oversight Committee and senior management, pursuant to Section
12.03, except for an action to seek injunctive relief to stay a breach
of this Agreement.
12.03 Senior Management. Either party may, upon receipt of a notice from the
Services Oversight Committee pursuant to Section 12.02, elect to
utilize a non-binding dispute resolution procedure whereby each
presents its case at a hearing before a panel consisting of one (1)
senior executive of each of the parties. If a party elects to use the
procedure set forth in this Section, the other party shall participate.
The hearing shall occur within ten (10) business days after a party
serves notice to use the procedure set forth in this Section. Each
party may be represented at the hearing by lawyers. If the matter
cannot be resolved at the hearing, each party's only recourse shall be
binding arbitration as provided in Article 13 and the proceedings
occurring pursuant to this Section shall be without prejudice to the
legal position of either party. Except as provided in Section 12.04, no
arbitration may commence concerning the Dispute until thirty (30)
business days have elapsed from the first day of the hearing under this
Section. Each party shall bear its respective costs incurred in
connection with the procedure set forth in this Section, except that
the parties shall share equally in the cost of the facility for the
hearing.
12.04 Expedited Resolution. If a Dispute arises because Equifax believes that
Critical Service Levels are not being met or that such Dispute relates
to (i) matters that materially and adversely impact its business
operations or (ii) compliance with applicable laws, and either party
initiates the dispute resolution provisions set forth in Articles 12
and 13 for such Dispute, the time period set forth in Section 12.01
shall be changed to twenty-four (24) hours and either party may elect
to bypass the Services Oversight Committee as provided in Section 12.02
and refer the Dispute directly from the Account Executives to senior
management as provided in Section 12.03, and the thirty (30) business
day period in Section 12.03 shall be reduced to fifteen (15) days.
Except as expressly modified by this Section 12.04, all other
provisions of Articles 12 and 13 shall apply to a Dispute.
ARTICLE 13. ARBITRATION
13.01 Panel. The arbitration shall be heard and determined by a panel of
three (3) persons. Each party shall have the right to designate one (1)
member of the panel. Such members shall select a third member of the
panel. The party demanding arbitration shall communicate its demand
therefore in writing, identifying the nature of the Dispute and the
name of its arbitrator, to the other party. The other party shall then
be bound to name, in writing, its arbitrator within twenty (20) days
after receipt of such demand. Failure or refusal of the other party to
name its arbitrator within the twenty (20) day time period shall
empower the demanding party to name the second arbitrator as well. If
the two (2) arbitrators are unable to agree upon a third arbitrator
within twenty (20) days after the second arbitrator is named, the
American Arbitration Association ("AAA") shall appoint a third
arbitrator from candidates submitted by both parties.
13.02 AAA. The commercial rules of the AAA shall apply to any arbitration
under this Agreement, except to the extent the provisions of this
Article vary therefrom.
13.03 Decisions. Decisions of the panel shall be made by majority vote. The
panel is empowered to render awards enjoining a party from performing
any act prohibited or compelling a party to perform any act directed by
this Agreement. The panel may not award punitive damages.
13.04 Interim Orders. The panel may issue such interim orders in accord with
principles of equity as may be necessary to protect any party from
irreparable harm during the pendency of any arbitration before it. Any
such order shall be without prejudice to the final determination of the
controversy.
13.05 Location. The proceeding before the panel shall be held in Atlanta,
Georgia, or as otherwise agreed upon by the parties.
13.06 Expedited Schedule. The arbitration shall be conducted on an expedited
schedule. Unless otherwise agreed by the parties, the parties shall
make their initial submissions to the panel and the hearing shall
commence within thirty (30) days of the initiation of proceedings. The
hearing shall be completed within twenty (20) days thereafter.
13.07 Prompt Award. The award shall be made promptly by the panel, and,
unless agreed by the parties, no later than thirty (30) days from the
closing of the hearing. Any failure to render the award within the
foregoing time period shall not affect the validity of such award.
13.08 Discovery. The parties shall be entitled to discovery of all documents
and information reasonably necessary for a full understanding of any
Dispute raised in the arbitration relating to this Agreement. The
parties may use all methods of discovery available under the Federal
Rules of Civil Procedure, including, without limitation, depositions,
requests for admission and requests for production of documents. The
time periods applied to these discovery methods shall be set by the
panel so as to permit compliance with the scheduling provisions of this
Article.
13.09 Binding Decisions. The decision or award rendered or made in connection
with the arbitration shall be final and binding upon the parties
thereto. The prevailing party may present the decision or award to any
court of competent jurisdiction for confirmation pursuant to the
provisions of the Federal Arbitration Act, 9 U.S.C.ss.ss.1-14, and such
court shall enter forthwith an order confirming such decision or award.
ARTICLE 14. YEAR 2000 AND EURO
14.01 Year 2000 Background. Equifax acknowledges that, because of programming
assumptions previously made in the computer industry, certain existing
and future computer programs (including, without limitation,
applications, utilities and operating systems software), databases and
documentation for such programs and databases may not perform as
originally designed with respect to date data processing as the Year
2000 draws closer and beyond.
14.02 Year 2000 Disclaimer. Equifax recognizes that it is responsible for the
resolution of any Year 2000 problem that is the result of software,
systems, equipment or other items or materials made available to PwCES
to provide the Services. Except as expressly provided in this Agreement
or in a Change Order, PwCES is not providing any Year 2000 services
(for example, Year 2000 assessment, conversion or testing) under this
Agreement. PwCES shall not be responsible for a failure to perform the
Services under this Agreement, if such failure is the result, directly
or indirectly, of (i) the inability of any products (for example,
hardware, software or firmware) other than the PwCES Products ("Other
Products") to correctly process, provide or receive date data (i.e.,
representations for month, day and year) and to properly exchange date
data with the PwCES Products or deliverables provided by PwCES under
this Agreement or (ii) modifications made by Equifax, its employees or
any third party (excluding any PwCES employees, agents or contractors)
to any PwCES Products or such deliverables. PwCES assumes no
responsibilities or obligations to cause products or deliverables
provided by PwCES to accurately exchange date data with Other Products
or to cause Other Products to accurately exchange date data with
products or deliverables provided by PwCES; unless, such Other Products
can properly exchange accurate date data with products or deliverables
provided by PwCES under this Agreement. If Equifax requests PwCES to
undertake to remedy any such problem, such an undertaking shall be an
Additional Service, subject to a Change Order.
14.03 NO WARRANTY. EQUIFAX RECOGNIZES THAT NEITHER PWCES NOR ITS AFFILIATES
WILL WARRANT THAT ANY YEAR 2000 WORK PERFORMED BY PWCES OR ITS
AFFILIATES ON THE TRANSFERRED ASSETS OR EQUIFAX SOFTWARE WILL SUCCEED
IN RESOLVING SATISFACTORILY ALL OR ANY SPECIFIC YEAR 2000 PROBLEM.
SUBJECT TO THE FOREGOING, PWCES WILL PERFORM, WITHOUT ANY WARRANTIES
(EXPRESS OR IMPLIED), THE YEAR 2000 WORK THAT IS SPECIFICALLY SET FORTH
HEREIN AS PART OF THE SERVICES.
14.04 Euro Disclaimer. PwCES shall not be responsible for a failure to
perform the Services under this Agreement, if such failure is the
result, directly or indirectly, of the inability of any Other Products
(i) to perform all functions set out in the specification for more than
one currency and for any common currency adopted by one or more members
of the European Union (the "Euro"), (ii) to comply with all legal
requirements applicable to the Euro in any jurisdiction, including,
without limitation, the rules on conversion and rounding set out in the
EC Regulation number 1103/97, (iii) to display and print all symbols
and codes adopted by any government or any other European Union body in
relation to the Euro or (iv) to properly exchange Euro data with the
PwCES Products or deliverables provided by PwCES under this Agreement.
ARTICLE 15. BREACH; REMEDIES
15.01 Limitation of Remedy. PwCES shall not be liable for its failure to
perform to the extent PwCES's failure is due to (i)
a failure by Equifax or any third party retained by, or under the
control of, Equifax to provide hardware, software, services, data or
materials that Equifax or such third party is required to provide to
PwCES under this Agreement and that PwCES requires to perform the
Services, (ii) a failure by Equifax to timely and accurately perform
its responsibilities as set forth in this Agreement, (iii) an audit
conducted pursuant to Article 5, (iv) a failure by Equifax to obtain
consents or approvals for PwCES's agents and contractors to use the
Equifax Software or exercise rights under the Transferred Agreements,
(v) a failure by Equifax to timely and accurately provide input data or
review output produced by PwCES as a result of the Services or (vi) a
problem associated with the Year 2000 or Euro, to the extent provided
in Article 14.
15.02 Equifax's Failure to Perform Responsibilities. In the event Equifax or
any of its licensors or contractors fail to perform any of its or their
responsibilities in connection with any Services, then PwCES may, in
its sole discretion, after providing notice to Equifax of such failure
by Equifax or any of Equifax's licensors or contractors, perform
Equifax's responsibility and charge Equifax for all reasonable costs
and expenses incurred as a result of performing Equifax's
responsibility. PwCES may not charge Equifax in excess of twenty-five
thousand dollars ($25,000.00) per failure pursuant to this Section
without Equifax's consent.
15.03 Force Majeure. Neither party shall be liable for any default or delay
in the performance of its obligations hereunder (except for the payment
of money) if and to the extent such default or delay is caused,
directly or indirectly, by acts of God, governmental acts, accidents,
wars, terrorism, riots or civil unrest, labor disputes, fires, storms,
earthquakes, floods or elements of nature, or any other cause beyond
the reasonable control of such party, provided such default or delay
could not have been prevented by reasonable precautions and cannot
reasonably be circumvented by the nonperforming party through the use
of commercially reasonable alternative sources, workaround plans or
other means (individually, a "Force Majeure Event"). Upon the
occurrence of a Force Majeure Event, the nonperforming party will be
excused from any further performance or observance of the obligations
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 (to be confirmed in writing within five
(5) days of the inception of such delay) and describe at a reasonable
level of detail the circumstances causing such delay. If any Force
Majeure Event substantially prevents, hinders, or delays performance of
the Services necessary for the performance of a critical business
function of Equifax for more than fifteen (15) consecutive days, then
Equifax may procure such Services from an alternate source (whereupon
the Charges hereunder shall be reduced accordingly irrespective of any
minimum revenue commitment set forth in Exhibit 1). If any Force
Majeure Event continues for more than sixty (60) consecutive days, then
Equifax may terminate this Agreement as of a date specified by Equifax
in a written notice of termination to PwCES pursuant to Section 16.01h.
This Section does not limit or otherwise affect the parties'
obligations regarding disaster recovery services as set forth in
Exhibit 14.
15.04 Limitation of Liability. Each party's, its Affiliates' and its and
their contractors' and licensors' liability for damages (whether a
claim therefor is based on warranty, contract, tort (including
negligence or strict liability), statute or otherwise) arising out of
or relating to any performance or nonperformance of Services under this
Agreement shall be limited in the aggregate for all claims to an amount
equal to the payments made by Equifax to PwCES for recurring Services
under a Set of Exhibits during the twelve (12) months prior to the
occurrence of the first event that is the subject of the first claim
(or if twelve (12) months have not yet elapsed since the Initial
Commencement Date for a Set of Exhibits, then twelve (12) times the
average monthly payments made by Equifax to PwCES for recurring
Services since the Initial Commencement Date for such Set of Exhibits)
(the "Cap"). Both parties acknowledge and agree that any such payment
by the other party shall be the final remedy in the event of an
exhaustion of all other remedies hereunder and shall not be deemed or
alleged by the other party to have failed of its essential purpose. If
a party's liability under this Agreement does not exceed four million
dollars ($4,000,000) in any consecutive three (3) year period for a Set
of Exhibits, then the Cap for such party shall be reduced from the
amount set forth above to an amount equal to the payments made by
Equifax to PwCES for recurring Services under a Set of Exhibits during
the nine (9) months prior to the occurrence of the first event that is
the subject of the first claim. Notwithstanding the foregoing, for (i)
a breach of Article 9 and (ii) indemnification claims set forth in
Sections 17.01(vi), 17.01(ix) and 17.02(viii), an amount equal to the
payments made by Equifax to PwCES for recurring Services under a Set of
Exhibits during the (y) six (6) months preceding the period set forth
above if such period is twelve (12) months and (z) nine (9) months
preceding the period set forth above if such period has been reduced to
nine (9) months, shall be added to the Cap. The Cap for indemnification
claims set forth in Section 17.01(x) with respect to Transitioned
Employees for the first twelve (12) months after the Initial
Commencement Date shall be equal to the amount of insurance set forth
in Section 19.06(iv). For purposes of this Section 15.04, if, after an
event giving rise to a claim there is a subsequent event giving rise to
a claim that is related to the prior claim, then the time periods
described above shall be measured from the date of the subsequent
event.
15.05 CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES
OR ITS CONTRACTORS BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY,
INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, ANY LOSS OF PROFITS OR SAVINGS INCURRED BY THE OTHER PARTY,
ITS CONTRACTORS OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN
ADVISED, KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SAME.
15.06 Exclusions. The limitations or exculpation of liability set forth in
Sections 15.04 and 15.05 are not applicable to (i) the failure of
Equifax to make payments due under this Agreement, (ii) indemnification
claims as set forth in Sections 17.01(i), 17.02(i), 17.01(v) and
17.02(vii), (iii) damages caused by the intentional misconduct of the
breaching party, (iv) any Termination Charges, (v) Performance Credits
or Performance Bonuses or (vi) payments made pursuant to Exhibit 11.
The limitations set forth in Section 15.04 are not applicable to
indemnification claims as set forth in Sections 17.01(vii), 17.02(ix),
17.01(x), 17.01(xii), 17.02(iii), 17.02(v), 17.02(vi), 17.02(xi) and
17.02(xii). The exculpation of liability set forth in Section 15.05 is
not applicable to a breach of Article 9 or indemnification for third
party claims pursuant to Article 17.
15.07 Affiliates of PwCES. Except as set forth in Article 18, with regard to
any claim or action against PwCES or its Affiliates, Equifax shall look
solely to PwCES and the assets of PwCES in satisfaction of any claim or
action relating to PwCES's obligations under this Agreement and in no
event shall (i) any Affiliate of PwCES be liable for any obligation
under or in connection with this Agreement or (ii) any member or
partner of PwCES or any Affiliate of PwCES be personally liable for any
obligation of PwCES under or in connection with this Agreement, and no
recourse may be had or sought against the assets of any Affiliate of
PwCES or the assets of any member or partner of PwCES or any Affiliate
of PwCES in satisfaction of any such obligation. Nothing in this
Section shall be deemed to relieve PwCES of any liability under this
Agreement.
15.08 Limitation. Neither party shall make any claim against the other party
more than two (2) years after such party knew or should have known of
the breach or other event giving rise to such claim.
ARTICLE 16. TERMINATION
16.01 Conditions of Termination. In addition to expiration at the end of the
term specified in Article 2, this Agreement may be terminated under the
following circumstances, subject to any Charges that may be applicable
as set forth below and in Exhibits 1 and 11.
a. Convenience. At any time (i) after the third anniversary of
the Initial Commencement Date or (ii) before such third
anniversary if there is a Change of Control of Equifax,
Equifax may deliver to PwCES written notice of its intent to
terminate this Agreement for convenience. The termination
notice shall specify a termination date no sooner than six (6)
months after the date of the notice.
b. Equifax for Cause. Equifax may terminate this Agreement in the
event of PwCES's material breach (in the form of a single
event or series of events) of its obligations or warranties,
if such material breach is not cured within fifteen (15) days
after Equifax notifies PwCES in writing of such material
breach; provided, however, that if after using commercially
reasonable efforts such breach could not be cured by PwCES
within such fifteen (15) day period, the cure period for such
breach shall be extended for an additional thirty (30) days
(provided that such breach is capable of cure and PwCES
continues to diligently pursue such cure), unless otherwise
agreed in writing.
c. Partial Termination by Equifax for Cause. Equifax may
terminate a Service, in whole or in part, if PwCES
consistently fails to (i) substantially perform such Service
or (ii) meet a Service Level with respect to such Service.
Equifax shall provide PwCES with written notice of its intent
to so terminate, which notice shall specify a termination date
no less than ninety (90) days after the date of the notice,
and the minimum revenue commitment set forth in Exhibit 1
shall be appropriately adjusted.
d. PwCES for Cause. Subject to Equifax's right as set forth in
Section 4.04e to withhold disputed payment amounts, PwCES may
terminate this Agreement in the event of Equifax's material
breach (in the form of a single event or series of events) of
its obligations or warranties, if such material breach is not
cured within fifteen (15) days after PwCES notifies Equifax in
writing of such material breach; provided, however, that if
after using commercially reasonable efforts such breach (other
than one relating to the payment of money) could not be cured
by Equifax within such fifteen (15) day period, the cure
period for such breach shall be extended for an additional
thirty (30) days (provided that such breach is capable of cure
and Equifax continues to diligently pursue such cure), unless
otherwise agreed in writing.
e. Change of Control of Equifax. PwCES shall have the right to
terminate this Agreement immediately upon a Change of Control
of Equifax that results in control of Equifax by any entity
set forth in Exhibit 17.
f. PwCES for Impairment of Independence. Each of PwCES and
Equifax shall promptly notify the other regarding potential
Impairment of Independence situations about which it becomes
aware. In the event of any potential Impairment of
Independence, PwCES and Equifax shall consider all reasonable
alternatives to reconcile such potential Impairment of
Independence in order to maintain the relationship between the
parties, including, without limitation:
(i) obtaining a favorable resolution from the SEC and the
AICPA;
(ii) changes within PwCES or its Affiliates as to how it or
they organize its or their outsourcing business; and
(iii) changes in scope of the Services.
If the potential Impairment of Independence is not resolved to
the satisfaction of PwCES and Equifax within thirty (30) days
of the notice given above or the time period required by the
applicable regulations, then PwCES shall have the right to
terminate this Agreement, in whole or in part; provided,
however, that if PwCES terminates this Agreement in part, the
minimum revenue commitment set forth in Exhibit 1 shall be
reduced appropriately, and Equifax may, within thirty (30)
days of receipt of notice of such partial termination,
terminate this Agreement with respect to the affected Set of
Exhibits if the portion of this Agreement terminated in part
by PwCES represents a material portion of the Services under
such Set of Exhibits such that continuing to receive the
remaining Services under such Set of Exhibits does not present
a viable business case to Equifax, as determined by Equifax in
its reasonable discretion. If Equifax exercises its right
pursuant to the preceding sentence (x) the Set of Exhibits
shall, for purposes of Exhibit 11, have been deemed to have
been terminated by PwCES for the event that created the
Impairment of Independence that led to the termination in part
by PwCES or (y) if the Set of Exhibits terminated is the only
Set of Exhibits, this Agreement shall, for purposes of Exhibit
11, have been deemed to have been terminated in whole by PwCES
for the event that created the Impairment of Independence that
led to the termination in part by PwCES.
g. Equifax for Change of Control of PwC or PwCES. Equifax shall
have the right to terminate this Agreement immediately upon
the sale of a controlling interest of PwC or PwCES to any
entity set forth in Exhibit 17.
h. Equifax for Force Majeure. Equifax shall have the right to
terminate this Agreement pursuant to Section 15.03.
i. Equifax for Additional Charges. If the Base Charges for
Services provided on the Initial Commencement Date are
increased pursuant to Section 3.03(ii) by more than eleven
percent (11%) from the amount set forth on Exhibit 1, then
Equifax may, on not less than six (6) months prior written
notice, terminate this Agreement. This right to terminate may
only be exercised by Equifax within thirty (30) days after the
end of the twelve (12) month period referred to in Section
4.06.
j. Maximum Liability. If a party is liable for damages in excess
of the applicable Cap, the other party may terminate this
Agreement upon not less than six (6) months notice, unless the
party that exceeded its Cap agrees, within thirty (30) days
after receiving notice of the other party's intention to
terminate this Agreement, to reset such Cap to an amount equal
to the payments made by Equifax to PwCES for recurring
Services under a Set of Exhibits during the three (3) months
prior to the occurrence of the first event that is the subject
of the first claim with respect to any liability arising after
receipt of such notice.
16.02 Effects of Termination or Expiration. Exhibit 11 sets forth the
parties' respective obligations and rights under each possible
circumstance of termination or expiration; provided, however,
termination pursuant to Sections 16.01b, c and d shall not constitute a
party's exclusive remedy for a breach of this Agreement, and neither
party shall be deemed to have waived any of its rights accruing
hereunder prior to such termination.
16.03 Termination Charge. If applicable, Equifax shall pay PwCES the
Termination Charge specified in Exhibit 1 (i) on the date PwCES ceases
to provide the Continuing Services if this Agreement is terminated
pursuant to Section 16.01a or (ii) the earlier of thirty (30) days from
the date of notice of termination and the date PwCES ceases to provide
the Continuing Services if this Agreement is terminated pursuant to any
other Section. The Termination Charge for any partial termination
(e.g., termination of a Service or reduction in the list of Affiliates
of Equifax) shall be calculated by applying the percentage of charges
attributable to the reduction in Services pro rata against the
Termination Charge for termination of the entire Agreement. With
respect to those termination events for which the Termination Charge
applies, Equifax acknowledges that the Termination Charge plus the
costs to be paid by Equifax pursuant to Exhibit 11 constitute
liquidated damages for the loss of the bargain, are not a penalty and
are a reasonable approximation of PwCES's damages under the
circumstances as can best be determined as of the date of this
Agreement. In consideration for payment of the applicable Termination
Charge and such costs, Equifax shall have no liability, and PwCES shall
not allege that Equifax has any liability, for claims relating solely
to the termination of this Agreement.
16.04 Critical Services. The parties acknowledge that the performance of the
Services will be critical to the operations of Equifax and its
Affiliates. Accordingly, notwithstanding any other provision in this
Agreement to the contrary, except Sections 3.16 and 4.04c and except
for an intentional breach of Article 9, PwCES shall not voluntarily
withhold the provision of the Services under any circumstances.
ARTICLE 17. INDEMNIFICATION
17.01 PwCES Indemnification of Equifax. PwCES shall indemnify and hold
harmless Equifax and its Affiliates and their respective officers,
directors, employees, members, partners, agents, successors and assigns
from, and shall defend Equifax against, any costs, liabilities, fines,
penalties, damages or expenses (including reasonable attorneys' fees
and amounts paid in settlement) arising out of or relating to:
(i) any claim by a third party that the Services, the PwCES
Products, or any work performed by PwCES, or work
performed by PwCES's agents, consultants or contractors
with respect to the PwCES Products, under this
Agreement infringes the proprietary rights of any third
party;
(ii) any alleged act or omission by PwCES or any of its
employees giving rise to potential liability arising
out of or relating to (a) any unlawful discrimination
or harassment, (b) PwCES employee benefits or (c) any
other aspect of the employment relationship or the
termination of the employment relationship relating to
a Transitioned Employee, arising on or after such
Transitioned Employee's starting date with PwCES
(including claims for breach of an express or implied
contract of employment), except to the extent any such
claim arises from the wrongful act of Equifax;
(iii) any unlawful discrimination by PwCES in selecting the
Equifax Selected Employees;
(iv) materials prepared by PwCES pursuant to Section 7.01;
(v) claims for personal injuries, death or damage to
tangible personal or real property to the extent caused
by acts or omissions of PwCES or its Affiliates,
contractors and agents, including negligence;
(vi) claims arising from a violation of any federal, state,
local or foreign law, rule or regulation or failure to
comply with the provisions of the documents governing
the benefit plans covered by Exhibit 2 to the extent
caused by acts or omissions of PwCES;
(vii) claims arising out of any Transferred Agreement after
the date such Transferred Agreement is transferred to
PwCES, except to the extent any such claim arises from
the failure of Equifax to obtain the appropriate
consents or approvals;
(viii) claims arising from PwCES's provision of any services
to any third party from the same facilities from which
the Services are provided to Equifax;
(ix) claims arising out of PwCES's use (in providing the
Services to Equifax) of any Equifax Software licensed
by Equifax from a third party, to the extent due to
PwCES's (or any of its agents' or subcontractors')
breach of the third party's license agreement with
Equifax, excluding, however, any claim arising from the
failure of Equifax to obtain the appropriate consents
or approvals for such use, or any claims arising under
Section 17.02 below;
(x) claims arising from fraud committed by a PwCES employee
(this obligation with respect to a Transitioned
Employee during the first twelve (12) months after the
Initial Commencement Date is
limited as set forth in Section 15.04);
(xi) claims or suits attributable to breaches of PwCES's
express representations and warranties contained in
this Agreement; and
(xii) PwCES's tax liabilities arising from PwCES's provision
of Services, as set forth in Section 4.05.
17.02 Equifax Indemnification of PwCES. Equifax shall indemnify and hold
harmless PwCES and its Affiliates and their respective officers,
directors, employees, members, partners, agents, successors and assigns
from, and shall defend PwCES against, any costs, liabilities, damages
or expenses (including reasonable attorneys' fees and amounts paid in
settlement) arising out of or relating to:
(i) any claim by a third party that the use by PwCES, in
the performance of the Services to Equifax and its
Affiliates in accordance with this Agreement, of any
Equifax Software or other software owned or licensed by
Equifax accessed by, used by or assigned by Equifax to
PwCES infringes the proprietary rights of any third
party, but excluding any claims relating to any changes
or modifications to the Equifax Software or such other
software made by PwCES or its Affiliates or
contractors;
(ii) any alleged act or omission by Equifax or its employees
giving rise to potential liability arising out of or
relating to (a) any unlawful discrimination or
harassment, (b) Equifax employee benefits not expressly
assumed by PwCES, (c) any representations, oral or
written, made by Equifax to Transitioned Employees or
(d) any other aspect of the employment relationship or
the termination of the employment relationship relating
to a Transitioned Employee, arising prior to such
Transitioned Employee's starting date with PwCES,
including, without limitation, claims that Equifax has
violated the WARN Act or other claims arising as a
result of the transition, claims for breach of an
express or implied contract of employment, Equifax
employee benefits plans, policies or programs or with
respect to any claims by Equifax Selected Employees
under such plans, policies or programs or otherwise
with respect to services rendered or events or
incidents that occur prior to a Transitioned Employee's
starting date with PwCES;
(iii) the failure of Equifax to obtain any consent or
approval as required under Section 3.12b;
(iv) claims or suits attributable to breaches of Equifax's
express representations and warranties contained in
this Agreement;
(v) Equifax tax liabilities accruing prior to the
Commencement Date;
(vi) Equifax's tax liabilities arising from PwCES's
provision of Services, as set forth in Section 4.05;
(vii) claims for personal injuries, death or damage to
tangible personal or real property to the extent caused
by acts or omissions of Equifax or its Affiliates,
contractors or agents, including negligence;
(viii) claims arising from a violation of any federal, state,
local or foreign law, rule, regulation or order to the
extent caused by acts or omissions of Equifax;
(ix) claims arising out of any Transferred Agreement before
the date such Transferred Agreement is transferred to
PwCES;
(x) shareholder derivative suits against Equifax;
(xi) claims made by Affiliates of Equifax related to
Services provided under this Agreement; and
(xii) claims (a) by Xxxxxx Xxxx arising from events that
occur while he is an employee of Equifax except to the
extent caused by the wrongful act of PwCES, and (b)
arising out of his acts or omissions that occur while
he is an employee of Equifax performing a portion of
the Services.
17.03 General Equifax Indemnity. Without limiting PwCES's liability to
Equifax under this Agreement related to meeting PwCES's obligations to
perform the Services in accordance with the terms of this Agreement,
Equifax agrees to indemnify and defend PwCES and its Affiliates and
hold PwCES and its Affiliates harmless from any and all third party
claims, actions, damages, liabilities, costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses, arising
out of or relating to the use by Equifax of the Services in the
operation of Equifax's business. The indemnification set forth in this
Section shall not apply to claims arising out of or related to PwCES's
negligence, willful misconduct or breach of this Agreement, or
violation of any law, rule, regulation or order, to the extent such
negligence, willful misconduct, breach or violation is the cause of
such claim.
17.04 Indemnification Procedure.
a. In General. The indemnified party shall notify the
indemnifying party of any claim under this Article within
thirty (30) days (or such shorter period as may be required to
respond to a third party claim) after receipt of notice. A
party required to indemnify the other party under this
Agreement shall have no obligation for any claim under this
Article if:
(i) the indemnified party fails to notify the indemnifying
party of such claim as provided above, but only to the
extent that the defense of such claim is prejudiced by
such failure;
(ii) the indemnified party fails to tender control of the
defense of such claim to the indemnifying party; or
(iii) the indemnified party fails to provide the indemnifying
party with all reasonable cooperation in the defense of
such claim (the cost thereof to be borne by the
indemnifying party).
b. Consent. The indemnifying party shall have no obligation for
any claim under this Agreement if the indemnified party makes
any admission or settlement regarding such claim without the
prior written consent of the indemnifying party, which consent
shall not be unreasonably withheld.
c. Participation. The indemnified party shall have the right (but
not the obligation) to participate in such defense or
settlement, in which event each party shall pay its respective
attorneys' fees.
ARTICLE 18. PWC
PwC shall be jointly and severally liable for the obligations of PwCES
under this Agreement. For the avoidance of doubt, the joint and several
liability of PwC and PwCES under this Agreement shall not entitle
Equifax to double recovery for any one claim. PwC shall not be deemed
the employer of any Transitioned Employee.
ARTICLE 19. MISCELLANEOUS
19.01 Independent Contractors. Each of PwCES and Equifax is an independent
contractor. Neither party shall have any authority to bind the other
party unless expressly agreed in writing. Nothing in this Agreement
shall be construed to create a partnership, agency or employer-employee
relationship between PwCES and Equifax, and in no event shall PwCES and
Equifax be deemed joint employers. The rights, obligations and
liabilities of the parties shall be several and not joint or
collective.
19.02 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which taken together
shall constitute a single instrument.
19.03 Entire Agreement. Except as otherwise provided herein, this Agreement,
including the Exhibits hereto, represents the entire understanding and
agreement between the parties, and supersedes any prior agreement,
understanding or communication between the parties, with respect to the
subject matter hereof. This Agreement may only be amended by a writing
executed by both parties.
19.04 Construction. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
19.05 Assignment. Neither party may assign or transfer this Agreement, or any
of its rights and obligations under it, without the prior written
consent of the other party. Notwithstanding the foregoing, (i) either
party may assign or transfer this Agreement, and its rights and
obligations under it, to one of its Affiliates, provided (a) the
Affiliate agrees in writing to the obligations of the assigning or
transferring party set forth in this Agreement, (b) such party
guarantees the obligations of such Affiliate and (c) such assignment or
transfer does not create an Impairment of Independence and (ii) subject
to Section 16.01e, Equifax may assign this Agreement in connection with
the sale of all or substantially all of its assets.
19.06 Insurance. During the term of this Agreement, PwCES shall maintain and
keep in full force and effect, at its sole cost and expense, insurance
as set forth below with an insurance company licensed to do business in
the location where the Services are to be performed.
(i) Commercial General Liability insurance including,
without limitation, contractual liability coverage that
indicates this Agreement is a "covered contract,"
premises, completed operations, broad-form property
damage, independent contractors and personal injury
liability in an amount not less than two million
dollars ($2,000,000.00) each occurrence and two million
dollars ($2,000,000.00) aggregate;
(ii) Workers Compensation insurance in accordance with
statutory requirements as well as Employer's Liability
insurance with limits not less than
$1,000,000.00/$1,000,000.00/$1,000,000.00 and such
insurance shall cover all individuals who will be used
in any capacity by PwCES in performing Services;
(iii) Automobile Liability insurance (including owned,
non-owned, hired and loaned vehicles) with a combined
single limit of not less than one million dollars
($1,000,000.00) for bodily injury and property damage;
(iv) Fidelity Bond/Commercial Crime insurance covering
employee dishonesty, including, without limitation,
dishonest acts of PwCES and its employees, agents or
subcontractors and such insurance shall also include
third party liability coverage and be written for
limits not less than ten million dollars
($10,000,000.00);
(v) Professional Liability insurance for operations
performed for Equifax and its employees or customers
with limits of liability not less than fifty million
dollars ($50,000,000.00) each claim and fifty million
dollars ($50,000,000.00) aggregate; and
(vi) Umbrella/Excess Liability insurance on a follow form
basis with a limit of not less than twenty million
dollars ($20,000,000.00) for each occurrence and twenty
million dollars ($20,000,000.00) aggregate and such
umbrella insurance shall name as underlying policies
the Commercial General Liability, Employer's Liability
and Auto Liability insurance coverage required above.
19.07 Order of Precedence. In the event of a Dispute, the terms of this
Agreement, the Exhibits and any Change Orders shall be interpreted in
the following order of precedence: (i) the terms of a Change Order
shall take precedence, (ii) followed by the terms of an Exhibit and
(iii) followed by the terms in this Agreement. Notwithstanding the
foregoing sentence, a Change Order may only amend an Exhibit or this
Agreement by express reference to the term or condition of the Exhibit
or this Agreement that is to be amended.
19.08 Remedy. Nothing in this Agreement shall prevent any disputing or
allegedly aggrieved party from pursuing a temporary restraining order,
injunctive relief or other equitable relief from a court of competent
jurisdiction against the other party at any time if the disputing or
allegedly aggrieved party believes in good faith that a breach or
threatened breach of any of the provisions of this Agreement would
cause it irreparable harm.
19.09 Survival. To the extent a provision of this Agreement, including,
without limitation, Articles entitled Breach; Remedies,
Indemnification, Confidentiality and Data, Dispute Resolution,
Arbitration and Miscellaneous, provides for rights, interests, duties,
claims, undertakings and obligations subsequent to the termination or
expiration of this Agreement, such provision of this Agreement shall
survive such termination or expiration.
19.10 Required Approvals. Each party shall obtain all necessary licenses,
permits and approvals of this Agreement required by any governmental
agency, at its sole cost and expense.
19.11 Compliance with Laws. Each party shall comply with all applicable laws,
rules and regulations.
19.12 Waiver. Except as set forth in Section 3.11c, the failure of either
party to insist upon the strict and punctual performance of any
provision hereof shall not constitute a waiver of, or estoppel against
asserting the right to require such performance, nor should a waiver or
estoppel in one case constitute a waiver or estoppel with respect to a
later breach whether of a similar nature or otherwise.
19.13 Unenforceable Terms. In the event any term or provision of this
Agreement shall for any reason be declared or held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction or by
the arbitrators contemplated
by Article 13, each party shall agree that (i) such invalidity,
illegality or unenforceability shall not affect any other term or
provision of this Agreement and (ii) such term or provision shall be
(a) reformed to the extent necessary to render such term or provision
valid and enforceable and to reflect the intent of the parties to the
maximum extent possible under applicable law or (b) interpreted and
construed as if such term or provision, to the extent unenforceable,
had never been contained herein.
19.14 Further Assurances. During the term of this Agreement and at all times
thereafter, each party shall provide to the other party, at its
request, reasonable cooperation and assistance (including, without
limitation, the execution and delivery of affidavits, declarations,
oaths, assignments, samples, exhibits, specimens and any other
documentation) as necessary to effect the terms of this Agreement.
19.15 References to Articles, Sections and Exhibits. Unless otherwise
specified herein, all references herein to an Article, Section, or
Exhibit shall be deemed to be references to the corresponding Article,
Section or Exhibit of this Agreement.
19.16 Governing Law, Submission to Jurisdiction and Service of Process. All
rights and obligations of the parties relating to this Agreement shall
be governed by and construed in accordance with the law of the State of
New York, without giving effect to any choice-of-law provision or rule
(whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any other jurisdiction. Each party
shall bring any suit, action or other proceeding to enforce the
obligation of the other party hereto to resolve a Dispute in accordance
with Article 13 in a court of competent jurisdiction sitting in the
State of Georgia, and each party hereby irrevocably waives, to the
fullest extent permitted by law, any objection that it may have,
whether now or in the future, to the laying of venue in, or to the
jurisdiction of, any and each of such courts for the purpose of any
such suit, action, proceeding or judgment and further waives any claim
that any such suit, action proceeding or judgment has been brought in
an inconvenient forum, and each party hereto hereby submits to such
jurisdiction. Each party hereto hereby agrees that service of process
may be completed in any such suit, action or proceeding by any
reasonable means calculated to assure actual notice, including, without
limitation delivery by Federal Express or other courier service,
certified mail or postage prepaid first class mail.
19.17 Notices. All notices, requests, demands and other communications given
or made in accordance with the provisions of this Agreement shall be
deemed to have been given (i) five (5) days after mailing when mailed
(by registered or certified mail, postage prepaid, only), (ii) on the
second day after delivery to a national express courier service
(including, without limitation, DHL and Federal Express), (iii) on the
date sent when made by facsimile transmission with confirmation of
receipt (with hard copy to follow by registered or certified mail,
postage prepaid, only or by a national express courier service) and
(iv) on the date received when delivered in person or by hand courier,
to the address set forth below or such other place or places as such
party may from time to time designate in writing. Any party may alter
its address set forth above by notice in writing to the other party in
the manner set forth herein.
if to PwCES: if to Equifax:
PwCES LLC Equifax Inc.
00 Xxxx Xxxxx, Xxxxx 0000 0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxxx Attention: Xxxx X. Xxxxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
With a copy (which shall not constitute notice) to: with a copy (which shall not constitute notice) to:
PricewaterhouseCoopers LLP
1301 Avenue of the Americas Equifax Inc.
Xxx Xxxx, XX 00000 0000 Xxxxxxxxx Xxxxxx
Attention: Office of General Counsel Xxxxxxx, XX 00000
Telephone: 000-000-0000 Attention: General Counsel
Facsimile: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000
if to PwC:
PricewaterhouseCoopers LLP
00 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy (which shall not constitute notice) to:
PricewaterhouseCoopers LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Office of General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
19.18 No Third Party Beneficiary Status. Except as expressly stated herein
with respect to each party's Affiliates and contractors, the terms and
provisions of this Agreement are intended solely for the benefit of
each party hereto and their respective successors or permitted assigns,
and it is not the intention of the parties to confer third party
beneficiary rights upon any other party.
19.19 Headings. Headings and captions contained in this Agreement are for
convenience only and do not substantively affect the terms of this
Agreement.
19.20 Expenses. Each party shall be responsible for the costs and expenses
associated with the preparation or completion of this Agreement and the
transactions contemplated hereby.
19.21 Equifax Most Favored Vendor Provision. If PwCES provides any services
to a third party from the same facilities from which the Services are
provided to Equifax, which services include or utilize any internet,
intranet or other network security, verification or authentication
product or service then offered by Equifax (including, without
limitation, digital signature, certification or authentication products
or services), (collectively, "Equifax Products"), Equifax shall have a
right of first refusal to provide the Equifax Products to PwCES in
connection with such third party services.
* * * * *
IN WITNESS WHEREOF, each of the parties hereto, by its duly authorized
representative, has hereby executed this Human Resources Business Process and
Support Services Agreement.
Agreed to by:
PWCES LLC EQUIFAX INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Chardler
Name: Xxxxx X. Xxxxxx Name: Xxxx X. Chardler
Title: V.P. Title: Corporate V.P.
PRICEWATERHOUSECOOPERS LLP
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Partner
FIRST AMENDMENT TO
HUMAN RESOURCES BUSINESS PROCESS AND SUPPORT SERVICES AGREEMENT
This First Amendment ("Amendment"), dated as of June 11, 1999, is made
by and between PwCES LLC, a Delaware limited liability company ("PwCES") and
PricewaterhouseCoopers LLP, a Delaware limited liability partnership ("PwC") on
the one hand, and Equifax Inc., a Georgia corporation ("Equifax") on the other
hand.
RECITALS
WHEREAS, the parties have entered into that certain Human Resources
Business Process and Support Services Agreement, dated as of June 4, 1999 (the
"Agreement"); and
WHEREAS, the parties desire to amend the Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Section 3.12(b) of the Agreement is amended by deleting the last
sentence thereof and substituting in lieu thereof the following:
"PwCES's use of the Equifax Software licensed by Equifax will be subject
to the restrictions of the third party license agreements with the
licensors of such Equifax Software (except to the extent such
restriction prohibit PwCES from using such Equifax Software), and
Equifax appoints PwCES as Equifax's agent for the limited purpose of
using such Equifax Software to provide the Services, subject to the
restrictions of such third party license agreements, but not for the
purpose of entering into any oral or written agreements for or on behalf
of Equifax with respect to such Equifax Software."
This Amendment shall be construed in connection with and as part of the
Agreement, and except as modified and expressly amended by this Amendment, all
terms, conditions and covenants contained in the Agreement shall be and remain
in full force and effect. Any and all notices, requests, orders and other
instruments executed and delivered after the execution of this Amendment may
refer to the Agreement without making specific reference to this Amendment, but
nevertheless all such references shall be deemed to include this Amendment
unless the context otherwise requires.
IN WITNESS WHEREOF, each of the parties hereto, by its duly authorized
representatives, has hereunto executed this Amendment.
PwCES LLC EQUIFAX INC.
By: Xxxxx X. Xxxxxx By: Xxxx X. Xxxxxxxx
----------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxxx
Title: Vice President Title: Corporate Vice President
PRICEWATERHOUSECOOPERS LLP
By: Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Partner
EXHIBIT 10.28
SCHEDULE OF OMITTED EXHIBITS
OF THE
HUMAN RESOURCES BUSINESS PROCESS
AND SUPPORT SERVICES AGREEMENT
The following exhibits to the Human Resources Business Process and Support
Services Agreement, dated as of June 4, 1999 (the "HR Agreement"), among PwCES
LLC ("PwCES"), PricewaterhouseCoopers LLP ("PwC"), and Equifax, Inc.
("Equifax"), as amended by the First Amendment to Human Resources Business
Process and Support Services Agreement, dated as of June 11, 1999, among PwCES,
PwC, and Equifax are omitted from this filing. Equifax agrees to provide to the
Commission supplementally upon request copies of all exhibits described below.
Exhibit 1 - is a financial exhibit containing (a) a statement of base charges
--------- for the ten year term of the HR Agreement; (b) a statement of
baseline services to be provided by PwCES: (c) a statement of
incremental charges for additional costs to Equifax for additional
services provided by PwCES: (d) a statement of incremental credits
to Equifax for sub baseline provision of services by PwCES: (e) an
inflation adjustment index; (f) provisions for the calculation of
performance credits and bonuses; (g) a statement of termination
charges; (h) a statement of threshold limits with respect to
services provided in the HR Agreement; (i) a statement of the
minimum revenue commitment; (j) a statement of the pool of resources
to be made available to Equifax by PwCES; and (k) a statement of
procedures with respect to third party agreements.
Exhibit 2 - (a) sets forth a general description and a detailed description of
--------- base services to be provided by PwCES to Equifax in the United
States and Canada which include: (i) human resource management, (ii)
staffing services, (iii) benefits services, (iv) compensation /
salary administration services, (v) employee relations services,
(vi) career development services, (vii) payroll services, (viii)
separation services, (ix) miscellaneous human relations process
services, and (x) information technology services; (b) provides that
service levels will be developed and refined after the execution of
the HR Agreement; and (c) sets forth service level reporting
guidelines for PwCES.
Exhibit 3 - has been intentionally left blank.
---------
Exhibit 4 - shows that there have been no transferred agreements, and provides a
--------- reference to determine transferred assets.
Exhibit 5 - describes the transition plan pursuant to which PwCES will begin
--------- providing services to Equifax.
Exhibit 6 - sets forth employees that will be affected by the provisions of the
--------- HR Agreement as follows: (a) employees of Equifax that may be
affected; (b) key Equifax personnel for whom PwCES will attempt to
assist Equifax in documenting services provided by such personnel in
case such personnel fail to enter into independent contractor
agreements with PwCES; (c) it describes the hiring plan of PwCES for
selected Equifax employees; and (d) and (e) will be attached after
execution of the HR Agreement to set forth employees who have made
the transition from being employed by Equifax to being employed by
PwCES and those persons that will be key employees of PwCES,
respectively.
Exhibit 7 - is a list of Equifax affiliates.
---------
Exhibit 8 - shows that there is no PwCES software relevant to the HR Agreement.
---------
Exhibit 9 - is a list of Equifax owned and licensed software relevant to the HR
--------- Agreement.
Exhibit 10 - provides for an operating level agreement to be developed and
---------- refined after the execution of the HR Agreement, and inserted after
the execution of the HR Agreement.
Exhibit 11 - sets forth termination provisions and services to be provided by
---------- PwCES to Equifax upon termination.
Exhibit 12 - describes facilities owned by Equifax to which PwCES will have
---------- access to and use of.
Exhibit 13 - sets forth projects on which Equifax employees are currently
---------- working, and on which certain employees will continue working as
they transition from being employed by Equifax to being employed by
PwCES, for the purpose of calculating base charges to be paid from
Equifax to PwCES.
Exhibit 14 - sets forth a schedule for implementation of a business recovery
---------- plan and a disaster recovery plan for PwCES technology, for Equifax
software and related hardware, and for critical business processes.
Exhibit 15 - sets forth (a) a change of control procedure; (b) a xxxx of sale,
---------- assignment, and power of attorney; and (c) a confidentiality
agreement to be used among Equifax, PwCES, and third parties.
Exhibit 16 - sets forth certain assumptions to be considered with respect to the
---------- HR Agreement.
Exhibit 17 - is (a) a list of Equifax competitors, and (b) a list of PwCES
---------- competitors.
Exhibit 18 - shows that there is no third party software with respect to the HR
---------- Agreement.
Exhibit 19 - sets forth a list of agreements between Equifax and third parties
---------- with respect to the HR Agreement.
