Integrated Facilities Management Services Agreement – Amgen Inc. and Jones Lang Lasalle Americas, Inc.
INTEGRATED FACILITIES MANAGEMENT SERVICES
AGREEMENT
This Integrated Facilities Management Services Agreement (this
“Agreement” as such term is defined in Article 33), is
made and entered into as of February 4, 2009 (the “Effective
Date“), by and between Amgen Inc., a Delaware corporation having a
place of business at One Amgen Center Drive, Thousand Oaks, California 91320
(“Company“), and Jones Lang LaSalle Americas, Inc., a Maryland
corporation having a place of business at 200 E. Randolph Drive, Chicago, IL
60601 (“Provider“) (each a “Party“, and
collectively, the “Parties“).
RECITALS
WHEREAS, Company is engaged in the business of the research, development and
commercialization of human therapeutics;
WHEREAS, Provider is in the business of, among other things, performing
integrated facilities services with respect to facilities’ operations and
maintenance and general services; and
WHEREAS, pursuant to the terms of this Agreement, Company wishes to engage
Provider to provide services to Company, and Provider wishes to provide services
to Company.
NOW THEREFORE, in consideration of the promises and mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINED TERMS
1.1 Definitions for Certain Defined Terms. The definitions of certain
defined terms used in this Agreement are set forth in Article 33.
1.2 Defined Terms Defined in Agreement. An index of certain defined
terms defined in the body of this Agreement or the exhibits to this Agreement
also is set forth in Article 33.
2. SERVICES
2.1 General. Commencing on the Effective Date and continuing
throughout the Term and Termination Assistance Period, Provider shall provide to
Company pursuant to the terms of this Agreement the following services,
functions and responsibilities, as they may evolve or be supplemented, amended,
enhanced, improved, modified or replaced in accordance with this Agreement
(collectively, the “Services“):
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the services, functions and responsibilities described in this Agreement, |
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any services, functions, tasks or responsibilities not specifically described |
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the services, functions and responsibilities described in any Order approved |
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the services, functions and responsibilities described in any Changes |
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the facilities-related services, functions and responsibilities performed in |
2.2 Evolution and Improvement of Services. It is anticipated that the
Services will evolve and be supplemented, modified, improved, enhanced or
replaced by Provider over time to keep pace with advancements and improvements
in the means and methods of delivering Services. These changes will modify the
Services and will not require an Order except to the extent that a change
results in Services that are materially different from and materially in
addition to those then being provided by Provider. Without limiting the
foregoing:
(i) Provider shall offer Company a first priority right to participate in any
Provider pilot programs for any new processes, best practices or technology; and
(ii) Provider shall identify and propose the implementation of any technology
or process related to the Services that is likely to:
(1) improve the efficiency and effectiveness of the Services (including cost
savings);
(2) result in cost savings or revenue increases to Company in areas of its
business outside of the Services;
(3) enhance Company’s ability to conduct its business or serve its customers;
or
(4) achieve Company’s objectives set out in this Agreement faster or more
efficiently than the then current strategies.
2.3 New Service Request. The Parties acknowledge and agree that this
Agreement is intended to provide the framework for a global relationship for the
Services to be provided by Provider and its Affiliates pursuant to this
Agreement. During the Term of this Agreement, Company or an Affiliate of Company
may from time-to-time initiate a request for Provider or an Affiliate of
Provider to perform new services on its behalf, including new categories of
services or services at new buildings or Company sites (“New
Services“) to the extent the New Services are similar to the Services
or services provided by Provider to other customers or consistent with
Provider’s integrated facilities management services business generally. In
engaging Provider to perform New Services, Company or its Affiliate shall enter
into one or more written Orders (each an “Order“) pursuant to
which such New Services shall be performed. A template form of Order is attached
hereto as Exhibit K (Example Form of Order). Upon execution thereof by
each Party, each Order will incorporate the terms of this Agreement and will
form a distinct contract between the Parties (or Affiliates of the Parties, as
specified in the Order) in relation to the relevant Services being provided
under that Order; provided, however, any Order where an Affiliate of Provider is
proposed to be the “Provider” with respect to such New Services also shall be
executed by Provider as shown on the example form of Order attached hereto as
Exhibit K (Example Form of Order). Any Services performed pursuant to an
Order shall be governed by the terms and conditions of this Agreement; provided,
however, that (i) if an Affiliate of Provider is the “Provider” under the Order,
such Provider and such Affiliate shall be deemed jointly and severally to be the
Provider under the terms and provisions of this Agreement with respect to the
New Services under such Order and (ii) if any of the provisions of this
Agreement would conflict with or otherwise violate any Applicable Laws of the
jurisdiction where the Services under such Order will be performed or Company’s
facilities governed by such Order are located, then such Order may modify the
provisions of this Agreement to the extent of such conflict or violation if both
Company and Provider each have consented to such modifications in writing. If an
Order is to be executed with an Affiliate of Company, Provider shall have the
right to approve such Affiliate, which approval shall not be unreasonably
withheld or delayed.
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2.4 Scope. Provider shall furnish and be responsible for all
materials, equipment and activities that are necessary or required for its
performance of the Services, including without limitation all supervision,
administration, coordination, labor, inspection, testing and other services,
equipment, supplies and other goods, means, methods, techniques, sequences,
licenses, permits, approvals and documents.
2.5 Non-Exclusivity of Services.
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Nothing in this Agreement requires Company to acquire from Provider the |
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During the Term and the Termination Assistance Period, Company may increase |
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Company shall not be obligated to acquire any of the Services from Provider |
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After giving notice to Provider, as provided in the following sentence, |
2.6 Standard of Care. Provider shall meet the Standard of Care in the
performance of its obligations hereunder.
2.7 Interpretation of Documents. In the event of a conflict or
inconsistency between the terms of the main body of this Agreement and the
Orders (if any), Exhibits, Schedules, Attachments or Appendices, the terms of
this Agreement shall prevail. However, (i) a term or terms of an Order shall
control to the extent the Order expressly provides that such term(s) supersede
and control over the terms of the Agreement and, (ii) to the extent that a
conflict is with respect to the quality of the Services, the Exhibit A
(Description of Services) and Exhibit C (Key Performance
Indicators/Service Level Agreements) shall prevail. No other terms, including
without limitation any terms or conditions set forth in any document issued by
Provider, are effective unless accepted by Company in writing.
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2.8 Affiliates. When an Order is entered into by one or more
Affiliates of Provider, both the applicable Affiliate and Provider shall be
jointly and severally liable and responsible to Company and its Affiliates for
all obligations to be undertaken by such Affiliate(s) of Provider under the
Order. In the event that any of Provider’s Affiliates fail to perform any of
their obligations under any Order issued hereunder, Provider shall cause such
obligations to be discharged in accordance with the requirements of this
Agreement and the applicable Order. Provider acknowledges and agrees that
Company may seek recourse directly against Provider for the failure of any of
Provider’s Affiliates to perform any obligations under any Order without seeking
or exhausting remedies against such Provider Affiliates. Provider’s liability to
Company under this Section 2.8 shall not be reduced or otherwise modified
by any full or partial discharge or reduction of a Provider Affiliate’s
liability to Company under any bankruptcy, insolvency or other proceeding. If an
Order is executed by an Affiliate of Company (subject to Provider’s approval
right pursuant to Section 2.3 above), the obligations of the Affiliate
under the Order shall be independent obligations of such Affiliate and Company
shall not have joint and several liability with respect to the Order
unless otherwise expressly agreed by Company in writing.
2.9 Non-Solicitation of Employees. Except as provided in Section
12.8 or Section 18.8, during the Term and Termination Assistance
Period and for a period of [*] months thereafter, neither Party shall directly
or indirectly solicit for hire any personnel or employees of the other Party
[*] unless such Party has consulted with the other
Party and obtained permission to solicit such employee of the other Party for
employment. This Section 2.9 shall not apply in the event that any
employee of a Party seeks employment with the other Party in response to a
general advertisement or recruiting effort not directed at such employee or
Party, or any employee of either Party who is terminated or otherwise released
from employment by Party or its Affiliates.
3. SERVICE LEVELS AND CUSTOMER SATISFACTION
3.1 General. Provider shall perform the Services at least (i) at the
level of the Service Levels (including applicable SLA Targets and KPI Targets)
set forth in Exhibit C (Key Performance Indicators/Service Level
Agreements) or in the applicable Order and (ii) where no KPI Target or SLA
Target is set forth in Exhibit C (Key Performance Indicators/Service
Level Agreements) or the applicable Order, at the same level and with at least
the same degree of accuracy, quality, completeness, timeliness, responsiveness,
security and efficiency as was provided prior to the Effective Date by or for
Company. At all times Provider’s level of performance shall be at least equal to
the Service Levels or, in cases where Service Levels do not exist, to accepted
industry standards of first tier providers of services similar to the Services.
3.2 Service Level Failure. Provider shall inform Company immediately
if Provider is unable, or is reasonably likely to be unable, to provide the
Services in accordance with the Service Levels (including applicable SLA Targets
and KPI Targets) or this Agreement or if any organizational, security-related or
other changes will materially affect, or are reasonably likely to materially
affect, the provision of the Services. Without limiting the remedies available
to Company hereunder, upon Provider’s failure to provide any of the Services in
accordance with the Service Levels required with respect thereto, whether or not
the cause of such failure is immediately identified and cured by Provider,
Provider shall immediately: (i) perform an analysis to identify the root cause
of such failure; (ii) identify the procedures necessary for correcting the
failure and implementing such procedures to effectuate such correction; (iii)
provide Company with a report detailing the findings and procedures identified
and implemented under (i) and (ii) above; and (iv) take appropriate preventive
measures so that the problem does not recur.
3.3 Cooperation with Third Parties. In order for Provider to provide
the Services in accordance with the Service Levels, Provider may be required to
coordinate its efforts with Third Party Suppliers. With respect to Service Level
failures caused by Third Party Suppliers, except as set forth in Section
3.4, Provider’s failure to meet such Service Levels shall not be excused and
Provider shall remain responsible for the performance of the Services in
accordance with the Service Levels.
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3.4 Excused Service Level Failure. To the extent Provider demonstrates
to Company’s reasonable satisfaction that any SLA Failure or KPI Failure is
directly attributable to: (A) a breach of this Agreement by Company that
prevents Provider from meeting the applicable SLA Target or KPI Target; or (B)
acts or omissions of Company or a Third Party Supplier, provided that (1)
Provider was unable to notify Company in writing of the consequences of such
acts or omissions or Company disregarded any notice made by Provider as to the
consequences of such acts or omissions, (2) Provider complied with the
requirements of any applicable BC Plan, and (3) Provider was unable to take
other reasonable steps to avert such consequences, then the measurement of such
SLA Target or KPI Target shall be adjusted to account for the abovementioned
factors during the period that such factors were in effect.
3.5 Periodic Reviews. At least annually or more often as set forth in
each Order or the service metrics specified in this Agreement, Company and
Provider shall review the Service Levels and make adjustments to them as
appropriate to reflect improved performance capabilities associated with
advances in the technology and methods used to perform the Services. The Parties
expect and understand that the Service Levels shall be optimized over time.
3.6 Measurement and Monitoring Tools. Provider shall, with respect to
each Service Level, prior to the date that such Service Level takes effect,
implement and/or test measurement and monitoring tools and procedures acceptable
to Company to measure and report Provider’s performance of the Services against
the applicable Service Levels. Such measurement and monitoring tools and
procedures shall permit reporting at a level of detail sufficient to verify
Provider’s compliance with the Service Levels. Without limiting Provider’s
responsibility to develop and maintain such measurement and monitoring tools and
procedures, if at any time such measurement and monitoring tools are temporarily
inoperable or unavailable, Provider may manually prepare the applicable studies
and reports. Provider shall also provide Company with on-line access to the most
current data used by Provider to calculate its performance against the Service
Levels and the measurement and monitoring tools and procedures utilized by
Provider to generate such data. Given the nature of Company’s multi-vendor
environment, any such data may be shared by Company with third party providers,
provided that such third party providers have executed appropriate
non-disclosure agreements or are otherwise bound by confidentiality obligations.
Notwithstanding the foregoing, Company shall not disclose any KPI Scorecard and
SLA Scorecard to any Provider Competitors. The use of any such data by the third
party providers shall be limited to managing the provision and delivery of
services, products and resources to Company and resolving any issues or problems
relating to the provision and delivery of any such services, products or
resources. Company shall not be required to pay any amount in addition to the
Services Costs for (i) such measurement and monitoring tools or (ii) any
resources utilized in connection with such measurement and monitoring tools.
3.7 Third Party Provider Performance Data. Provider acknowledges and
agrees that it may receive performance data from third party providers and such
performance data shall be Confidential Information of Company. Provider further
agrees that it shall use such performance data only for managing the provision
and delivery of services, products and resources and resolving any problems or
issues that relate to such services, products and resources. Provider shall not
use any such performance data for any other purpose, except as otherwise agreed
by Company.
3.8 Service Level Reporting. No later than the first business day
falling on or after the fifteenth (15th) day of each calendar month (or as
otherwise specified in Exhibit C) during the Term and Termination
Assistance Period, Provider shall provide Company with a monthly (or as
otherwise specified in Exhibit C) performance report describing
Provider’s performance of the Services in the preceding month (or other time
frame specified in Exhibit C), which report shall be made available to
Company in an online, electronic form. Each such report shall:
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for each area of the Services, assess the degree to which Provider has |
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explain any Service Level failures and include a plan for corrective action |
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identify any problems or issues of which Provider becomes aware that are |
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include such documentation and other information as Company may reasonably |
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include a quarter-to-date and year-to-date analysis and report identifying |
The foregoing information shall be updated on a monthly basis unless a
different reporting period is set forth in Exhibit C (Key Performance
Indicators/Service Level Agreements). Any failure by Provider to report on
Provider’s success or failure to meet any Service Level, including if such
failure results from Provider’s failure to implement, or delay in implementing,
appropriate measurement and monitoring tools pursuant to Section 3.6,
shall be deemed to be a Service Level failure with respect to the applicable
Service Level for the applicable Measurement
Period[*].
3.9 Customer Satisfaction Surveys.
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As set forth in Exhibit N (Customer Satisfaction), Provider shall, on |
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Provider shall continuously monitor customer satisfaction surveys. If such |
4. COVENANTS OF PROVIDER
4.1 Maintenance. Provider shall maintain all Company Provided
Equipment and Provider Equipment so that they operate in accordance with their
specifications, including (A) maintaining such Equipment in good operating
condition, subject to normal wear and tear; and (B) undertaking repairs and
preventive maintenance on such Equipment in accordance with the applicable
Equipment manufacturer’s recommendations.
4.2 Completion of Milestones and Deliverables. Provider shall complete
each milestone and Deliverable on the Schedule set forth in each Order. Provider
shall promptly notify Company upon completion of each milestone or Deliverable
and promptly deliver all relevant Work Product to Company.
4.3 Facilities and Space. Provider shall provide the initial Services
under this Agreement from the Agreed Service Locations and New Services from the
locations specified in the applicable Order.
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Provider shall ensure that the relevant Provider Personnel comply with the
security requirements of Company in relation to their access to their dedicated
area and that each Provider Personnel will operate a “clean desk” policy.
4.4 Dedicated Personnel. If specified in Exhibit A
(Description of Services) or an applicable Order, certain Provider Personnel
assigned to perform Services shall be dedicated to performance of the Services.
Provider shall ensure that all Personnel so identified are dedicated solely to
performance of such Services and shall not assign such Personnel to any other
project unless otherwise agreed in writing by the Parties.
4.5 Quality Assurance. Provider shall establish, implement and enforce
quality assurance programs and procedures commensurate with the Services to be
provided hereunder. Provider shall identify those Provider Personnel responsible
for and authorized to act as Provider’s designated representative(s) with
respect to such quality assurance programs and procedures and such Provider
Personnel shall be considered Key Provider Personnel hereunder. Company shall
have the right to review and audit Provider’s quality assurance programs and
procedures.
4.6 Compliance. Provider shall (i) comply with all Company Policies
that apply to the Services or Provider’s obligations hereunder of which Provider
is aware or Company has notified Provider, (ii) assist Company to ensure that
such Services are in compliance with Company’s legal, regulatory and compliance
obligations, and (iii) ensure that the provision of the Services will be in
compliance with Applicable Law. Unless otherwise agreed in Exhibit A
(Description of Services) or an applicable Order, Provider shall obtain and
maintain all necessary governmental or regulatory licenses, authorizations,
permits or consents required to provide the Services. Company shall have the
right to modify the Company Policies from time to time with notice to Provider.
Provider shall comply with all such revised Company Policies. In the event
Provider is required to implement revised Company Policies as a result of
changes in law or changes otherwise generally affecting Provider or other
customers of Provider, Provider shall not be entitled to any additional
Management Fees as a result thereof, but Reimbursable Costs may be modified in
accordance with the Change Control Process. In the event Provider is required to
implement changes solely because of changes to Company Policies, Provider shall
be entitled to recover reasonable incremental Service Costs associated therewith
in accordance with the Change Control Process.
4.7 Conflicts. Provider shall not enter into any agreement, whether
written or oral, that would materially adversely affect Provider’s ability to
fulfill its obligations or that would constitute a default hereunder.
4.8 Use of Third Party Intellectual Property. Company understands that
Provider will use software that is Third Party Intellectual Property to provide
the Services. Upon the request of Company, Provider shall provide Company with
an updated list of the foregoing being used in connection with the Services, and
upon request from Company shall provide a copy of the license for such Third
Party Intellectual Property. Upon reasonable prior notice, Company may conduct
supervised reviews within Provider’s offices of any aspects of Provider’s
software and discuss any issues with Provider. During any such reviews Company
shall not have access to any software or software customizations constituting
Provider Intellectual Property Rights and made for or exclusively used by other
clients and not used to provide the Services. In addition to the foregoing prior
to Provider using or entering into any agreements to license or use any Third
Party Intellectual Property that will be used to provide the Services or create
any Work Product, Provider shall provide a copy of such agreement to Company.
Provider shall not use any such Intellectual Property, including computer
software, to provide the Services unless Company has approved in advance in
writing the applicable agreement to license or use such software. Without
limiting the foregoing, unless otherwise approved by Company in writing, any
such license for Third Party Intellectual Property shall expressly permit the
license to be assigned or sub-licensed to Company without further approval of
the licensor.
4.9 Evidence of Compliance. Upon Company’s written request, Provider
shall furnish any evidence Company reasonably requests relating to Provider’s
obligations hereunder and its ability to fulfill such
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obligations or substantiate its representations hereunder at any time during
the Term and Termination Assistance Period, and to the extent related to
obligations that survive the termination or expiration of this Agreement, the
period of such survival. The substance, form and timing of such evidence shall
be subject to Company’s reasonable satisfaction.
4.10 Competitors. Provider shall not provide any Services to Company
from a site or facility of any Competitor without Company’s prior written
consent. If Provider is to provide Company with Services from a shared
environment where such Services either are provided from a Provider site that is
shared with a Competitor or such Services are provided to a Competitor from the
same site or location, Provider shall develop a process, subject to Company’s
approval, to restrict access in any such shared environment so that such
Competitor, and any other third party, shall have no access to Company’s Work
Product or Confidential Information.
5. ESTABLISHING ORDERS AND CHANGE CONTROL
5.1 Requests for Change or New Services. Commencing on the Effective
Date and from time-to-time during the Term and Termination Assistance Period,
Company may (i) request in writing (each, a “Change Request“)
that Provider terminate, remove, replace or change a Service or Service Level (a
“Change“) or (ii) request that Provider perform a New Service
pursuant to an Order as provided in Section 2.3 above. Without limiting
the generality of the foregoing, a Change requested by Company may involve (a)
the deletion of buildings or facilities from the scope of Services under this
Agreement; (b) the augmentation of work and Services to be performed by Provider
with respect to one or more Company buildings or facilities; and/or (c) the
elimination or modification of one or more Services Categories, Service Levels
or scopes of Service. Change Requests and Orders for New Services shall be
addressed and implemented in accordance with the provisions of this Article
5, the Change Control Process and, where applicable, Company’s change
management requirements. Any actions taken or not taken by Provider in
anticipation of execution of this Agreement, any modification, any Order or any
Change Request are taken at its sole risk and expense. Any estimate or forecast
by Company of services that may be furnished by Provider before or during the
Term or Termination Assistance Period does not constitute a commitment of any
kind.
5.2 Order Placement for New Services and Acceptance. In the event
Company notifies Provider that it intends to proceed with Provider on the basis
of a project proposal, Company and Provider shall diligently negotiate in good
faith to mutually agree upon an Order. Unless and until the Parties have
executed an Order, neither Party shall have any obligations with respect to the
services proposed in a project proposal. Provider shall perform Services
pursuant to each executed Order issued during the Term and Termination
Assistance Period. Each Order shall define the specific scope of Services that
Provider shall undertake, as well as any special terms and conditions associated
therewith. All Orders issued hereunder shall be subject to the terms and
conditions of this Agreement. Provider shall promptly execute and return any
Order issued by Company and approved by Provider hereunder to evidence
Provider’s acceptance of such Order and the terms set forth therein. Without
limiting Company’s remedies, Company may withdraw an Order or defer the
commencement of performance under such Order and/or the payment of Services
Costs thereunder unless and until Provider has executed and delivered a
counterpart original of the Order to Company. Notwithstanding anything to the
contrary, Provider’s acknowledgment, receipt, or commencement of performance of
any obligations under an Order is deemed an acceptance of that Order in
accordance with the terms contained in that Order and this Agreement.
5.3 Response to Request for New Services. Upon receipt of a request to
add a New Service, Provider shall, within ten (10) days or such other longer
time as specified in the project request, provide Company with a written
proposal for the performance of such additional Service, which proposal shall
include: (i) a description of the services, functions and responsibilities to be
performed in connection with such additional Service; (ii) a Schedule for
commencing performance of such additional Service; (iii) Provider’s prospective
Services Costs for such additional Service; (iv) the impact of such additional
Service on the calculation of Provider’s Shared Savings and Management Fee at
Risk under the applicable Order; and (v) such other information as may be
reasonably requested by Company. On the
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request of Company, Provider shall provide Company with any other information
that Company may reasonably require to assess the project proposal. Provider
shall not begin performing any such additional Service until Company has
provided written authorization for such additional Service. In performing
additional Services pursuant to a Change, Provider shall perform such Services
in a manner that does not adversely impact Company’s business operations.
5.4 Request for Change.
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If Company desires to propose a Change Request, it shall deliver a written |
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If Provider desires to propose a Change, including any Change proposed by |
5.5 Costs. Provider may use Direct Provider Labor to prepare
proposals, responses and documentation in connection with proposed Orders and
Changes. Each Party shall otherwise bear its own costs in connection with
proposals, responses and documentation in connection with any proposed Orders
and Changes.
5.6 Effect of Acceptance. No Change shall become effective without the
written approval of Company and Provider. If approved by Company and Provider,
any such Change shall thereafter be deemed part of Provider’s obligations under
this Agreement and the relevant Order. Under no circumstances shall Provider be
entitled to payment for any Change in Services that has not been approved by
Company in accordance with this Article 5.
5.7 No Obligation. Provider acknowledges that Provider is expected to
accomplish the Services on the terms and conditions specified in this Agreement,
including the Service Costs agreed to by Provider, and that Company is under no
obligation to agree to any Changes requested by Provider except as expressly
provided in this Agreement.
5.8 Effect on Service Levels and Key Performance Indicators. In the
event that (i) either Party proposes a Change that will affect any Service Level
for the Services affected by such Change, (ii) such Change constitutes a
Material Change; (iii) Provider identifies the effect of such Change on any
applicable Service Level pursuant to Section 5.4, and (iv) Company
accepts such Change in writing, then, upon implementation of such Change by
Provider, the affected Service Level shall be reduced solely to the extent of
the effect of such Change identified by Provider; provided that, (a) the
implemented Change shall have no effect on any other Service Levels, and (b)
Provider and Company shall cooperate to attempt to restore such affected Service
Level through future Changes. Except as provided in the previous sentence, no
Change shall have any effect on Provider’s obligation to perform the Services at
the Service Levels. Notwithstanding anything in this Agreement to the contrary,
Provider acknowledges and agrees that, unless a Change Request constitutes a
Material Change, there shall be no adjustment or modification to any Services
Costs (other than Reimbursable Costs), [*] Provider’s
Shared Savings metrics, “not to exceed” amount or other incentives under the
applicable Order.
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5.9 Effect on Services Costs. To the extent that a proposed Change can
be accommodated within the existing level of resources then being used by
Provider in performing the Services hereunder and those resources are
appropriate for the proposed New Service or changed Service without degradation
to Provider’s compliance with all applicable performance requirements under this
Agreement, the Services Costs payable by Company under this Agreement and the
Cost Baseline shall not be increased as a result of such Change.
5.10 Emergency Changes. In the event of an Emergency, Provider shall
be permitted to suspend, remove, replace or change a Service (a
“Provider Emergency Change“) without Company’s prior written
approval to the extent reasonably necessary to deal with such Emergency,
provided that (i) Provider exercises reasonable efforts to secure
Company’s prior approval of such Provider Emergency Change, (ii) such Provider
Emergency Change is necessary to respond to such Emergency, and (iii) Provider
gives Company notice of such Provider Emergency Change immediately upon
implementing such Provider Emergency Change. Any expenditures proposed to be
made by Provider in connection with such Emergency shall be subject to the
provisions of Exhibit D (Pricing). Company may, without first complying
with the foregoing provisions of this Article 5, require that Provider
terminate, remove, replace or change a Service or perform a New Service in the
event of any Emergency (a “Company Emergency Change,” and a
Provider Emergency Change and a Company Emergency Change may be referred to
herein as an “Emergency Change“), and Provider shall implement
such Company Emergency Change promptly following Company’s request to Provider.
As soon as possible following any Emergency Change, but in any event no later
than fourteen (14) days following such Emergency Change, the Parties shall
negotiate in good faith any modifications to Services Costs, Provider’s Shared
Savings and/or the [*] which are necessitated by such
Emergency Change. Provider shall meet the Standard of Care in implementing any
Emergency Change, and except as specifically necessary to deal with the
Emergency Change nothing contained in this Section 5.10 shall operate or
be construed to relieve Provider of its obligations to perform, or limit
Provider’s liability for the performance of, the Services in accordance with
this Agreement.
6. TRANSITION
6.1 Transition Plan. Commencing on the Effective Date, Provider shall
plan, prepare for and conduct activities to transition the applicable Services
to Provider (the “Transition“). The Transition shall be
conducted in accordance with a written plan (the “Transition
Plan“) which, at a minimum, shall include:
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a detailed description of the Services being transitioned to Provider; |
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a detailed description of the Transition activities and responsibilities to |
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a detailed description of the Deliverables to be completed by Provider |
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a detailed description of any tasks that Company is required to complete or |
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a proposed plan for transitioning all Assigned Contracts to Provider; |
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a plan for dealing with systems and security access; |
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a detailed description of the technology, methods, procedures, Personnel and |
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(viii) |
a detailed schedule and workplan of all Transition activities to be completed |
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(ix) |
a schedule of Transition milestones (each a “Transition |
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(x) |
a detailed description of the potential risks associated with the Transition |
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|
(xi) |
a process and set of standards and completion criteria acceptable to Company |
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(xii) |
any other information and planning necessary to ensure that the Transition |
6.2 Final Transition Plan. A preliminary Transition Plan is set forth
in Schedule 4 of Exhibit A (Transition). Within thirty (30) days
after the Effective Date, Provider shall prepare and deliver to Company a more
detailed final Transition Plan, which shall be consistent with the preliminary
Transition Plan and shall meet the requirements set forth in Section 6.1
above. The Transition Milestones and the payments and credits allocated to such
Transition Milestones shall not be changed from the preliminary Transition Plan
unless approved in writing by Company. The final Transition Plan and any
subsequent changes to the Transition Plan shall be subject to written approval
by Company, which approval shall not be unreasonably withheld, delayed or
conditioned.
6.3 Transition Costs. The Transition Costs are payable by Company to
Provider up to the amount shown in Attachment D.4 of Exhibit D
and will be paid in installments upon achievement of Transition Milestones as
set forth in the Transition Plan. Transition Milestones will be extended on a
day-for-day basis for any critical path delays in achieving such Transition
Milestones due to any Force Majeure Events or Excused Company-Related Delays.
6.4 Implementation. Provider shall perform the Transition in
accordance with the Transition Plan and in such a manner so as to minimize any
disruption to Company’s business or operations (except to the extent that
Provider has provided Company with reasonable advance written notice of such
disruption and Company has agreed in writing that such disruption is
acceptable). Provider shall provide all cooperation and assistance reasonably
required and requested by Company in connection with Company’s evaluation and
testing of the Transition Deliverables.
6.5 Transition Manager. Each Party shall designate an individual to
manage the Transition (each a “Transition Manager“) during the
Transition Period. The Provider Transition Manager shall manage the Transition
on a dedicated, full-time basis during the Transition period. The Provider
Transition Manager shall (i) report to the Provider Program Manager, (ii) serve
as the single point of accountability for Provider for the Transition and (iii)
have day-to-day authority for ensuring that the Transition is completed in
accordance with the Transition Plan. The Provider Transition Manager shall be
one of Provider’s Key Provider Personnel.
6.6 Meeting and Reporting Requirements. The Provider Transition
Manager shall meet at least once each week with the Company Transition Manager
to report on Provider’s progress in performing the Transition and meeting the
requirements of the Transition Plan. As part of each weekly meeting, Provider
shall provide Company with a written status report that shall include (i) an
updated status chart detailing the then-current status of all Transition
activities, including the Transition Deliverables, against the
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subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
11
Transition Plan, and (ii) any issues or problems that Provider is
experiencing in connection with the Transition and any efforts or remedial
actions that Provider is undertaking to resolve such issues or problems. The
meetings described in this Section 6.6 shall take place at the time and
place reasonably designated by Company, and with agendas specified by Company.
6.7 Company’s Right to Participate in the Transition. Company reserves
the right to monitor, test and otherwise participate in the Transition. Provider
shall immediately notify Company if such monitoring, testing or participation
has caused (or in Provider’s reasonable opinion may cause) a problem or delay in
the Transition and work with Company to prevent or circumvent such problem or
delay.
6.8 Completion of Transition. The Transition shall not be considered
to be complete until all Transition Deliverables have been accepted by Company.
[*]
6.9 Termination by Company. In the event that (i) Provider fails to
achieve acceptance of a Transition deliverable within thirty (30) days of the
applicable Transition Milestone (provided that for purposes of this Section
6.9, such milestone deadline will be extended by the period of critical path
delay caused by a Force Majeure Event or by the fault or negligence of Company,
up to a maximum extension of sixty (60) days), or [*] Company may, upon notice
to Provider, terminate this Agreement, in whole or in part, as of the
termination date specified in the notice, without cost or penalty and without
the payment of any termination charges.
7. STEP-IN RIGHTS
7.1 Step-In. If any Service Disruption occurs, Company may, at its
option and without prejudice to any other rights or remedies under this
Agreement or the relevant Order, undertake one or more of the following (each a
“Step-In“):
|
(i) |
Where Company considers it necessary to do so, in its reasonable business |
||
|
(ii) |
Itself provide, and/or engage a replacement service provider to provide any |
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|
(iii) |
Locate one or more Company Personnel in any Agreed Service Location to work |
7.2 Obligations During Step-In. For the period in which the Step-In
continues, Services Costs will not be payable in respect of those Services that
are subject to the Step-In.
7.3 Resumption of Services. After a Step-In, unless Company has
terminated the relevant Services pursuant to the terms of this Agreement or any
Order, Company shall allow Provider to resume the provision of the Services that
are the subject of the Step-In as soon as reasonably practicable after both of
the following are satisfied:
|
(i) |
The relevant Service Disruption has ceased; and |
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|
(ii) |
Provider has demonstrated through the submission and execution of a |
Provider shall use diligent, commercially reasonably efforts to resume
Services subject to a Step-In as soon as reasonably possible.
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7.4 Termination During Step-In. Without limiting any rights or
remedies of Company hereunder, if the requirements for ending a Step-In set
forth in Section 7.3 have not been met within thirty (30) days of
commencement of the Step-In (provided that for purposes of this Section
7.4, such period will be extended by the period of critical path delay
caused by any Force Majeure Event or by the fault or negligence of Company, up
to a maximum extension of sixty (60) days), then Company may immediately
terminate for cause all or any part of this Agreement. Upon such termination,
Provider shall be entitled to Services Costs in accordance with the terms of
this Agreement and the applicable Order up to the date of the last provision of
the Services.
7.5 Upon Termination. If Company elects to terminate any Services
pursuant to Section 7.4, it may, in its discretion, require Provider to
complete any partially-completed Deliverables, provided that Provider may
invoice Company for the relevant Services Costs for the work involved.
7.6 Rights and Remedies. For the avoidance of doubt, the rights and
remedies of Company under this Article 7 are in addition to and not in
substitution for any other rights or remedies available to Company under any
other Section of this Agreement, under any Order, or at common law or in equity.
8. BUSINESS CONTINUITY AND DISASTER RECOVERY
8.1 BC Plan. Provider shall, as part of the Services, in accordance
with Company’s BC Policies, develop, maintain, test and implement a business
continuity plan in respect of the Services that provides for the emergency
response and management, recovery, restoration and ongoing performance of the
Services following any Disaster or any other discontinuation of business that
disrupts such performance (“BC Plan“). Provider and Company
shall cooperate to jointly develop and mutually approve the initial BC Plan
within sixty (60) days after the Effective Date. If, as the result of the
occurrence of a Disaster and subsequent implementation of the BC Plan by
Provider, the volume and/or scope of Services or the cost of providing the
Services is materially increased, the Provider may, within thirty (30) days
after the occurrence of the Disaster, submit a Change Request to Company with
respect to Provider’s implementation of the BC Plan, in which case Provider
shall submit a proposal with respect to the proposed Change and the Change
Request shall be resolved in accordance with the provisions of Section
5.5. Provider’s failure to submit a Change Request prior to the expiration
of such thirty-day period shall constitute a waiver of any right to seek a
modification of the Services Costs and Provider’s Shared Savings metrics under
this Agreement in connection with implementation of the BC Plan or any schedule
obligations under this Agreement and the applicable Order impacted by the
implementation of such BC Plan.
8.2 BC Principles. The BC Plan shall be sufficient to ensure that
Provider is able to continue providing the Services if there is a Disaster (i)
affecting Company or (ii) affecting only Provider and not Company. Without
detracting from the general principles set forth above, each BC Plan shall:
|
(i) |
Provide for the prompt and efficient handling of incidents, disruptions, |
||
|
(ii) |
Consider the following assumptions in the planning process: single building |
||
|
(iii) |
Comply with the BC Policies; |
||
|
(iv) |
Provide and replenish supplies and equipment necessary for response and |
||
|
(v) |
Provide for notification procedures (24X7, 365), including home phone numbers |
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8.3 Content of BC Plan. The BC Plan shall be set forth in Exhibit
P (Business Continuity Policies) or the relevant Order and Provider shall
specifically include in such BC Plan the following:
|
(i) |
Procedures whereby Provider shall test the effectiveness of the BC Plan and |
||
|
(ii) |
Procedures whereby Provider shall deliver to Company the appropriate periodic |
||
|
(iii) |
Identification of a person or persons to be responsible for the BC Plan to |
8.4 Modification of BC Plan. Provider acknowledges that the BC Plan
may require modification during the Term or Termination Assistance Period or the
term of any relevant Order as a result of changes in law applicable to Company,
and/or changes in the BC Policies. Provider shall cooperate with Company and
promptly implement such changes in order to permit Company to comply with such
changes. If any change is required to a BC Plan as a result of a change in any
of the BC Policies, such change will be implemented by Provider through the
Change Control Process.
8.5 Compliance and Maintenance of BC Plan. Once a BC Plan is deemed
appropriate, Provider shall comply with the requirements set forth in such BC
Plan as it relates to this Agreement or the relevant Order. Provider shall
maintain the BC Plan throughout the Term or the term of the relevant Order and
Termination Assistance Period and implement the relevant BC Plan in accordance
with its terms as part of the Services in order to minimize the effect of a
Disaster or other incident affecting the provision of the Services to Company.
8.6 Periodic Review. Provider shall periodically review (at least
every twelve (12) months) each BC Plan and discuss with Company any such review
so as to confirm that it meets Company’s requirements from time to time. Company
shall have the option at any time to have the BC Plan reviewed by an independent
third party at Company’s cost. The results of such review shall be discussed
with Provider and, where appropriate, implemented by Provider.
8.7 Periodic Testing. Provider shall periodically test (at least every
twelve (12) months) all recovery strategies and critical systems and
infrastructure as identified in the BC Plan. Provider shall discuss and agree to
such testing with Company and allow Company the opportunity to participate,
observe and monitor the testing. After the testing has been concluded, Provider
shall provide Company with a detailed summary of the results applicable to the
Services and with an action plan to remedy any inadequacies highlighted by the
testing. This may be required to be accomplished through participation in
Company-directed exercises (including without limitation call tree, table top or
full scale disaster walkthrough exercises).
8.8 Crisis Management Procedures. Provider shall maintain current
documented crisis management procedures and shall inform Company immediately
upon becoming aware that a Disaster has occurred or is likely to occur.
Following the occurrence or knowledge of the likely occurrence of a Disaster,
Provider shall immediately invoke its crisis management procedures implementing
the BC Plan while fully communicating the status to Company throughout its
implementation of the BC Plan.
9. ACQUISITION AND DIVESTMENT SUPPORT
9.1 Rights Upon Divestiture. In the event that Company divests an
entity or business unit, Provider shall, at Company’s request, continue to
provide the Services to Company and such divested entity or business unit at the
Services Costs and on the terms and conditions then in effect if appropriate to
the scale of Services, provided that such divested entity will agree to comply
with the terms and conditions of this Agreement. At Company’s request, Provider
shall separately invoice such divested entity. To the
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14
extent applicable, Services and Deliverables for Company and its divested
entity shall be combined for purposes of determining Services Costs. Provider
shall not unreasonably withhold, delay or condition its consent to novation of
this Agreement in parts as relates to the divested entity or business unit and
the Services remaining to be provided to Company. In the event the Parties are
not able to reach agreement regarding such a novation and Company elects to
terminate some or all of the Services as they relate to the acquired or divested
entity, Provider shall provide Termination Assistance Services as requested by
Company or to the acquired or divested entity in accordance with the terms of
this Agreement.
9.2 Ongoing Support. Subject to Section 9.4, Provider shall provide to
Company, and Company shall pay the costs of, the following support in relation
to any actual or potential divestments:
|
(i) |
Assist Company in planning, preparing and implementing any transition or |
||
|
(ii) |
Perform infrastructure changes as a result of such divestment; |
||
|
(iii) |
Perform increased data and physical security as a result of such divestment; |
||
|
(iv) |
Perform increased disaster recovery planning. |
9.3 Potential Acquisitions. Subject to Section 9.4, in relation to
potential business acquisitions by Company of a business or entity that may have
requirements for Services, Provider shall provide Company, and Company shall pay
the incremental costs, with the following support:
|
(i) |
Assist Company in planning, preparing and implementing any transition or |
||
|
(ii) |
As part of these activities, perform an analysis of the acquired business’ |
||
|
(iii) |
Taking into account economies of scale and other synergies between the |
||
|
(iv) |
Perform infrastructure changes due to an acquisition; |
||
|
(v) |
Perform increased data and physical security as required; |
||
|
(vi) |
Provide temporary staffing as required ensuring uninterrupted Services; and |
||
|
(vii) |
Perform increased disaster recovery planning, as may be required. |
9.4 Support Fees. Provider shall provide acquisition and divestment
support as described in this Article 9 as part of the Services to the
extent that such acquisition support may appropriately be provided using Direct
Provider Labor and applicable resources then primarily assigned to the
performance of the Services without adversely impacting Service Levels or
Provider’s ability or costs to perform such Services. If acquisition or
divestment support will require the use of different or additional resources
beyond that which Provider is then using to provide the Services in accordance
with the Service Levels, then Provider may request that Company execute an Order
with respect to such acquisition or divestment support services and pay
Provider’s reasonable incremental costs in accordance with Article 5
above.
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10. BENCHMARKING
10.1 Generally. Company shall have the right to conduct benchmarking
exercises in accordance with this Article 10to measure Provider’s
performance in relation to the Services and the Services Costs associated with
the Services to determine if the Provider’s performance matches, and the
Services Costs, are in line with Best Practices. A benchmarking exercise may be
initiated by the Company by giving not less than thirty (30) days notice to
Provider. Company may elect to have benchmarking conducted in relation to any or
all of the Services, including any particular Services Categories, Subcontracts
and/or Supply Contracts (a “Benchmark Category“). The
Benchmarker shall not be a Provider Competitor. Each Party shall provide
cooperation and assistance to facilitate the benchmarking process, including
making staff and all relevant information and materials available to the
Benchmarker. Provider shall have the right to give input into the selection of
the Benchmarker.
10.2 Process. Unless agreed otherwise by the Parties, the Benchmarker
shall base its assessment on the data from the twelve (12) month period
immediately proceeding initiation of the benchmarking process, provided that for
Subcontracts and Supply Contracts, the Benchmarker also can take into account
the then prevailing market terms and practices for similar types of contracts.
The Parties shall ensure that benchmarking exercises are carried out in a way
that causes no disturbance to the performance of the Services or to the
Company’s underlying business.
10.3 Tasks. For each Benchmark Category that is the subject of
benchmarking, the Benchmarker shall perform at least the tasks described below.
The Benchmarker may decide in its reasonable discretion how those tasks are to
be carried out. The Benchmarker shall:
|
(i) |
Compare the price of Comparable Services with the then-current Services Costs |
||
|
(ii) |
Form a view on whether Provider has reasonably availed itself of all cost |
||
|
(iii) |
Recommend appropriate practices for adoption by the Parties for the conduct |
||
|
(iv) |
Present a full report of its findings to Provider and the Company jointly; |
||
|
(v) |
Be required to comply with the reasonable confidentiality requirements of |
10.4 Fees. [*] shall pay the Benchmarker’s
fees and other out of pocket expenses incurred by the Benchmarker in connection
with the benchmarking process. Provider may utilize Direct Provider Labor in
connection with its coordination and cooperation with the Benchmarker, and
otherwise each Party shall bear its own internal costs and expenses associated
with the benchmarking.
10.5 Findings. The Benchmarker shall issue its initial report to the
Parties within one-hundred-and-twenty (120) days of commencement of the
requested benchmarking exercise. In conducting the benchmarking, the Benchmarker
shall normalize the data used to perform the benchmarking to accommodate, as
appropriate, differences in volume of services, scope of services, service
levels, financing or payment streams, and other pertinent factors. Each Party
shall be provided a reasonable opportunity (but no more than thirty (30) days)
to review, comment on and request changes in the Benchmarker’s proposed
findings. Within ten (10) days of receiving any comments from the Parties, the
Benchmarker shall issue a final report of its findings and conclusions. The
Parties shall promptly meet to discuss the Benchmarker’s findings.
Confidential
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subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
16
10.6 Adjustment of Services Costs. If the benchmarking shows that the
Services Costs for the relevant Benchmark Category are higher than the
prevailing general market rate of charges for Comparable Services,
[*]. Provider shall not be entitled to any increase in
Services Costs or any reduction in the Service Levels, scope or standards of the
Services in connection with the benchmarking unless otherwise agreed in writing
by Company.
10.7 Service Levels. If the benchmarking shows that Provider’s
performance of the Services is at a level below Best Practice and without
prejudice to any other right or remedy of Company, Company shall reasonably
assist Provider in determining the causes of the variance, and
[*]. The action plan may include, where appropriate,
providing additional staffing, increasing levels of training, upgrading
equipment and software, introducing new and improved tools and improving
processes, and rebidding and/or replacing Subcontracts or Supply Contracts
(including, without limitation, any Subcontracts or Supply Contracts that are
performed by an Affiliate of Provider). To the extent that the causes of the
variance arise as a result of technology decisions reached jointly by the
Parties and Provider is using such technology as intended by the Parties,
Provider shall not be obliged to mitigate or reduce the variance.
10.8 Termination. If Provider fails to improve deficient Service
Levels to meet Best Practices or reduce Services Costs to eliminate any
above-market variance in accordance with this Article 10, and without
prejudice to any other rights or remedy of Company, Company shall be entitled to
terminate this Agreement or all or some of the Services with respect to the
deficient or above-market Benchmark Category, and no termination fee or charge
shall apply with respect to such termination.
10.9 Market Reviews. Independently from the benchmarking process set
forth in this Article 10, Company may, from time to time, at its costs
and expense, carry out market review exercises with the objective of assessing
whether Company is obtaining the best value in respect of the Services Costs for
some or all of the Services. Company, at its cost and expense, may appoint third
parties to assist with such market reviews exercises on its behalf.
10.10 Access. Provider agrees that the relevant third parties shall
have the right to access all materials and information that Company is entitled
pursuant to this Agreement and any relevant Order solely for the purposes set
forth in this Article 10 provided that such relevant third parties will
agree in writing to be bound by confidentiality obligations substantially
similar to those contained in Article 27 of this Agreement. Provider
shall, on request, provide Company and such third parties with such assistance
and information as they may reasonably require to facilitate the conduct of the
benchmarking and/or market review exercise and the achievement of the market
review objectives.
11. DELIVERABLES AND OWNERSHIP
11.1 Deliverables. Provider shall furnish to Company any Deliverables
set forth in this Agreement and any Orders, and shall ensure that any such
Deliverables meet the requirements and specifications set forth in this
Agreement or the applicable Order. Unless otherwise set forth herein or in an
Order, all Deliverables that use units of measurement shall use standard English
units, and all Deliverables shall be written in the English language. Originals
and copies of Deliverables shall be of the highest quality, legible, clear, full
form and readable.
11.2 Ownership of Work Product. Company shall be the exclusive owner
of all right, title, and interest in and to all Work Product and all
Intellectual Property rights therein (excluding Provider Intellectual Property
Rights), and Provider hereby assigns to Company all right, title, and interest
therein. Provider shall, at request of Company, perform any acts that Company
may reasonably deem necessary or desirable to evidence or confirm Company’s
ownership interest in the Work Product and Intellectual Property rights therein,
including but not limited to making further written assignments in a form
determined by Company.
11.3 Transfer of Work Product. Unless otherwise requested by Company,
Provider shall transfer to Company all Work Product and any reproductions
thereof immediately upon (i) completion of the
Confidential
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subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
17
Services to be performed under each Order or earlier termination of such
Order, (ii) termination of this Agreement, or (iii) five (5) business days after
Company’s written request. Provider shall not use Work Product for any purposes
other than fulfilling Provider’s obligations hereunder without Company’s prior
written consent.
11.4 Review of Deliverables. Concurrent with furnishing the
Deliverables (in either draft or final form) to Company, Provider shall provide
Company with such information as may be required or necessary and in such degree
of detail to allow Company to review and approve such Deliverables on a fully
informed basis. Such review and approval of Deliverables by Company shall not
relieve Provider of any of its obligations or liabilities hereunder. No
Deliverables, the final forms of which have been approved by Company, shall be
changed or revised by the Provider without the written consent of Company.
11.5 Inspection and Testing. Unless expressly provided otherwise in an
Order, the procedure provided under this Section 11.5 shall apply to the
acceptance of all Deliverables (i) that include computer software or Equipment,
or (ii) for which the applicable Order specifies inspection and testing. Company
shall test all Deliverables against the acceptance criteria set forth herein or
in the applicable Order. If, in Company’s reasonable judgment, a Deliverable
does not meet such criteria, Company shall notify Provider in writing of the
deficiency in such Deliverable, and Provider shall promptly, at its expense and
in no event more than twenty (20) days after receiving notice of such
deficiency, cure any such deficiencies and provide a corrected Deliverable to
Company, or in the event that no cure is possible within such twenty (20) day
period, Provider shall provide to Company a plan and schedule for curing such
deficiencies. Any corrected Deliverable shall be subject to the same acceptance
criteria and be evaluated for acceptance by Company as if it were the original
Deliverable, provided that Provider shall have no more than two (2)
opportunities to correct the defects in any Deliverable. After such two (2)
opportunities to correct the defects, Company shall have the option (i) of
having Provider continue to correct such defect under the terms of this
Section 11.5, or (ii) to finally reject such Deliverable, to receive its
money back for such Deliverable, and to terminate, at its option, the applicable
portion or the entire Agreement or the relevant Order related to the defective
Deliverable, [*]. The foregoing remedy is in addition
to Company’s other rights and remedies at law and under this Agreement.
11.6 Obligations of Provider Personnel. Provider shall ensure, at no
cost to Company, that all of Provider Personnel who contribute to any Work
Product have agreed in advance in writing that such contributions are assigned
to Company or Provider. If any agreements with any of Provider Personnel provide
such rights to Provider rather than to Company, Company shall acquire all
ownership rights therein pursuant to Section 11.2.
11.7 Provider Intellectual Property Rights; License of Provider
Intellectual Property Rights. Company acknowledges and agrees that Provider
is the exclusive owner of all right, title and interest in and to all Provider
Intellectual Property Rights, and except as otherwise provided herein, no rights
in or to the Provider Intellectual Property Rights are granted, transferred or
conveyed to Company on account of this Agreement. During the Term of this
Agreement and thereafter as provided in Section 18.6, Provider hereby
grants to Company an irrevocable, non-exclusive, worldwide (if applicable),
royalty-free license under all Provider Intellectual Property Rights included in
or necessary to utilize the Work Product, to prepare, compile, install, make,
use, execute, access, reproduce, modify and/or adapt the Provider Intellectual
Property Rights in order for Company to utilize the Work Product as contemplated
by this Agreement. The license granted hereunder shall include the right of
Company to grant to Company Affiliates, agents and representatives the right to
do any of the foregoing, provided that such Affiliates, agents and
representatives use the Provider Intellectual Property Rights solely in
connection with the use of the Work Product as contemplated by this Agreement.
11.8 [Intentionally Omitted]
11.9 License Rights in Bankruptcy. All rights and licenses granted
under this Section 11.9 by Provider to Company are, and shall otherwise
be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy
Code (“Code“), licenses to rights to “intellectual
property” as defined under the Code. The Parties agree that Company shall
retain and may fully exercise all of its rights and elections under
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Securities and Exchange Commission.
18
the Code. The Parties further agree that, in the event of the commencement of
bankruptcy proceedings by or against Provider under the Code, Company shall be
entitled to retain all of its rights under this Section 11.9, including
any licenses granted hereunder.
12. RELATIONSHIP BETWEEN COMPANY AND PROVIDER
12.1 Account Executives. Each Party shall designate an account
executive (each an “Account Executive“) who shall serve as the
primary representative to the other Party with respect to performance of such
Party under this Agreement and who shall be considered Key Provider Personnel
hereunder. The Account Executive for each Party shall (i) have overall
responsibility for managing and coordinating the performance of such Party’s
obligations under this Agreement, and (ii) be authorized to act for and on
behalf of such Party with respect to all matters relating to this Agreement in
coordination with such Party’s other relevant Personnel. Before designating an
employee as an Account Executive, Provider shall notify Company of the proposed
assignment, shall introduce the individual to appropriate representatives of
Company, and shall provide Company with a resume and such other information
regarding the individual that may be reasonably requested by Company. Provider’s
appointment or replacement of any Account Executive shall be subject to
Company’s prior consent. The Account Executives of each Party and other Key
Provider Personnel as of the Effective Date are as set forth in Schedule
7 (Key Provider Personnel) of Exhibit A (Description of Services) or
in the applicable Order. [*]
12.2 Program Managers. Each Party shall designate a project manager
for the Services to be performed under this Agreement and each Order (each a
“Program Manager“). Each Program Manager shall be deemed to
have authority to issue, execute, grant or provide any approvals, requests,
notices or other communications required hereunder or requested by the other
Party in connection with the Services under this Agreement or such Order.
12.3 [Intentionally Omitted]
12.4 Policies and Procedures Guide. Provider shall develop within 90
days after the Effective Date and maintain a policies and procedures guide (the
“Policies and Procedures Guide“) that describes how Provider
shall perform and deliver the Services under this Agreement and each Order, the
Equipment and software being used, and the documentation (e.g., operations
manuals, user guides, specifications) that provides further details of such
activities. The Policies and Procedures Guide shall describe the activities
Provider proposes to undertake in order to provide the Services, including the
direction, supervision, monitoring, staffing, response times, controls,
reporting, communications, planning and oversight activities normally undertaken
to provide services of the type Provider is to provide under this Agreement. The
Policies and Procedures Guide also shall include descriptions of the acceptance
testing and quality assurance procedures approved by Company, Provider’s problem
management and escalation procedures, process for the delivery of all applicable
Services, prioritization procedures and any specific reporting requirements for
the particular Services, and the other standards and procedures of Provider
pertinent to Company’s interaction with Provider in obtaining the Services. The
Policies and Procedures Guide shall be suitable for use by Company to understand
the Services.
12.5 Development of Guide. Within sixty (60) days after the Effective
Date and each Order Effective Date, Provider shall deliver an initial draft
Policies and Procedures Guide to Company for Company’s review, comment and
approval. Company shall provide its approval or comments and suggestions within
thirty (30) days of receipt of the draft Policies and Procedures Guide. Within
thirty (30) days of receiving Company’s comments or suggestions, Provider shall
incorporate such comments or suggestions and re-submit the Policies and
Procedures Guide for Company’s approval. Throughout the Term and Termination
Assistance Period, Provider shall be responsible for updating the Policies and
Procedures Guide to ensure that it remains current and reflects any changes to
the Services, operations and business processes, and any changes or updates to
the Policies and Procedures Guide shall be provided to Company for review,
comment and approval.
12.6 Conflicts. Provider shall perform the Services in accordance with
the Policies and Procedures Guide, provided however that until such time as the
Policies and Procedures Guide is developed,
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Provider shall provide the Services in accordance with the policies and
procedures being followed by Company immediately prior to the Effective Date and
each applicable Order Effective Date. In the event of a conflict between the
provisions of this Agreement and the Policies and Procedures Guide, the
provisions of this Agreement shall control.
12.7 Knowledge Transfer. Upon the request of Company, Provider shall
provide Company, at no additional cost, with training of its Personnel on
Provider’s premises for the purpose of transferring to Company the know-how of
Provider used to perform the Services. Such knowledge transfer may be
accomplished using Direct Provider Labor and available resources dedicated to
the Services provided that the use of such persons and resources does not
adversely affect the performance of the Services. The knowledge transfer shall
be sufficient to enable Company to perform the Services in the event of a
Step-In or other event resulting in transfer of the Services to Company. Any
such transfer of knowledge shall not act as a transfer of any Provider
Intellectual Property Rights except as described in Article 11 of this
Agreement; provided that such transfer shall include all know-how for purposes
of using the licenses granted pursuant to Article 11.
12.8 Transferred Employees. In the event the Transition Plan or an
Order provides for the transfer of Company employees to Provider, Provider shall
comply with the provisions thereof with respect to providing offers of
employment to such Company employees that Provider intends to hire for the
purposes of providing the Services after the Effective Date or the applicable
Order Effective Date (“Transferred Employees“). Such
Transferred Employees will be covered by the provisions of Section 13.11
of this Agreement. Accordingly, Provider shall treat the Transferred Employees
as its employees for all purposes, including tax reporting and employee
benefits, and that Provider will obtain from each Transferred Employee a signed
statement in a form acceptable to Company [*]. Furthermore,
Provider agrees that it will supervise, pay, evaluate, and set the hours of work
of the Transferred Employees pursuant to the terms hereof or of the Order,
provide the Transferred Employees with all necessary tools, supplies, offices
and equipment, and provide training to the Transferred Employees on how to
perform their services.
12.9 [Intentionally Omitted]
12.10 Qualified Personnel. Provider shall hire, train, assign and
retain an adequate number of Personnel, including without limitation supervisory
and administrative staff, to perform its obligations under this Agreement and
each Order at all times, including periods during which Personnel actively
deployed in the provision of Services are unable to provide the Services due to
sickness, holiday or any other such absence. All Provider Personnel shall be
competent, qualified, trained, honest, trustworthy, reliable and non-violent,
and shall not pose a risk of serious harm to others.
12.11 Designation of Key Provider Personnel. Company and Provider may
designate certain employees of Provider as key employees (“Key Provider
Personnel“), who shall be dedicated to Company’s account (and stationed
at locations approved by Company) as regards the Services to be performed under
this Agreement and an applicable Order, which Key Provider Personnel shall be
named in Schedule 7 (Key Provider Personnel) of Exhibit A
(Description of Services) or the relevant Order, if known. Provider shall cause
each of the Key Provider Personnel to devote substantially full time and effort
to the provision of the Services for at least [*] from
the date that each such Key Provider Personnel assumes the respective
responsibilities. Before designating an employee as, or replacing, a Key
Provider Personnel, Provider shall notify Company of the proposed assignment
within at least thirty (30) days prior to such planned designation, shall
introduce the individual to appropriate representatives of Company, and shall
provide Company with a r sum and other information regarding the individual
that may be reasonably requested by Company. Provider’s appointment of any Key
Provider Personnel shall be subject to Company’s prior written consent. If
Company objects in good faith to the proposed designation of any Key Provider
Personnel, the Parties shall attempt to resolve Company’s concerns to the
reasonable satisfaction of Company. If the Parties have not been able to resolve
Company’s concerns within five (5) business days, Provider shall (1) not assign
the individual to that position and (2) propose to Company the assignment of
another individual of suitable ability and qualifications.
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
20
12.12 Replacement or Reassignment of Key Provider Personnel. Except as
a result of voluntary resignation or a termination For Cause (as used in this
Agreement with respect to termination of Personnel “For Cause”
shall mean theft, fraud, violence, harassment, discrimination, gross
misconduct, or the like), Provider shall not, without obtaining a prior written
approval from Company, reassign or replace any Key Provider Personnel for the
shorter of (i) the duration of the Services to be performed under this Agreement
or the relevant Order, or (ii) [*] after designation
as a Key Provider Personnel. Thereafter, Provider may only replace or reassign a
Key Provider Personnel after [*] notice to Company,
except: (i) upon written consent of Company, not to be unreasonably withheld;
(ii) upon a Key Provider Personnel’s voluntary resignation from Provider; (iii)
upon the dismissal of a Key Provider Personnel by Provider; or (iv) upon the
inability of a Key Provider Personnel to work due to sickness or disability.
In the event that any Key Provider Personnel is reassigned or otherwise
removed from performing certain Services before such Services are completed,
Provider shall as soon as practicable, and subject to the approval of Company,
assign an appropriate replacement who shall thereafter be designated as a Key
Provider Personnel. In order to ensure a smooth transition between such Key
Provider Personnel, Company and Provider shall jointly agree (such agreement not
to be unreasonably withheld, conditioned or delayed by either Party) upon an
appropriate overlap period during which both the Key Provider Personnel being
reassigned or removed and the replacement Key Provider Personnel are assigned to
support the provision of Services under this Agreement or the relevant Order(s).
Unless otherwise agreed by the Parties, under no circumstances shall Provider
transfer or remove more than ten percent (10%) of the Key Provider Personnel in
any given six (6) month period other than terminations For Cause.
12.13 Special Replacement or Reassignment. In the event that Provider
desires to replace or reassign a Key Provider Personnel for reasons other than
those set forth in Section 12.12, Provider may make a written request to
the Company Program Manager, who shall review such request on a case-by-case
basis. In the event that the Company Program Manager reasonably declines
Provider’s request, Provider shall have the right to request that the issue be
considered by representatives nominated by Company and Provider, who shall meet
in good faith to discuss the request and resolve the matter, taking into account
such factors as project impact, availability of alternate resources, and costs.
In the event that such representatives are unable to resolve the matter, the
determination of Company shall govern.
12.14 Staffing Issues. During the first twelve (12) months after the
Effective Date, Provider shall give written notice to Company (a
“Staffing Notice“) within ten (10) days of the occurrence of
either of the following: (i) more than ten percent (10%) of the employees
(including all full-time and part-time employees) of Provider that have
performed, or are scheduled to perform, Services either have (a) resigned their
positions with Provider, (b) had their employment or engagement with Provider
terminated by Provider, or (c) been assigned or proposed to be assigned by
Provider to work for or on behalf of other clients of Provider; or (ii) Provider
does not reasonably anticipate that it will have a sufficient number of
qualified employees to complete the Services in a timely manner and consistent
with the requirements of this Agreement. In the event such staffing issue
occurs, Provider shall not be relieved from its obligations to provide the
Services hereunder, and no later than ten (10) days after Provider provides such
Staffing Notice, Provider shall develop and submit to Company for Company’s
approval an action plan (a “Staffing Action Plan“) pursuant to
which Provider shall retain a sufficient number of new employees, or otherwise
assign employees from other divisions or Affiliates of Provider, to perform
Services and to cause the Services to be completed in a timely manner and
consistent with the requirements of this Agreement. Upon Company’s approval of a
Staffing Action Plan, Provider shall promptly and diligently implement such
Company-approved Staffing Action Plan. Upon Company’s request and otherwise on a
monthly basis after Company’s approval of a Staffing Action Plan, Provider shall
provide Company with a written report describing any changes in Provider’s
staffing of the Services and any other facts and circumstances which may impact
Provider’s ability to provide adequate staffing to timely perform the Services
in a manner consistent with the requirements of this Agreement.
12.15 Assignment to Company Competitors. Provider shall not assign an
individual filling a Key Provider Personnel to the account of any Company
Competitor without Company’s prior written consent (1) while such individual is
assigned to Company’s account, and (2) for a period of
[*] following the date that such individual is removed
from or ceases to provide services in connection with Company’s account.
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
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In the event an individual filling a Key Provider Personnel position
voluntarily resigns from the employ of, or is involuntarily terminated by,
Provider, Provider shall not be obligated to actively prevent such individual
from becoming employed by a Company Competitor at any period of time thereafter.
Should this Section 12.15 be declared unenforceable or invalid by a court
with jurisdiction, on the basis that it exceeds statutorily required territorial
or time limits on extensions of obligation not to compete, such a declaration
will render this provision invalid only as it relates to the excess over what is
allowed under Applicable Law. The provision will be deemed amended to comply
with statutorily required limits.
12.16 Project Staff. Provider shall provide Company with notice prior
to replacing any member of Provider Personnel assigned to perform the Services
(“Project Staff“), and shall provide Company with immediate
notice in the event any member of the Project Staff is replaced. Company
reserves the right to review the qualifications of Project Staff. Provider shall
use commercially reasonable efforts to maintain a stable Project Staff and shall
replace Project Staff in a manner to prevent any material impact on the
provision of Services. Provider acknowledges that all Personnel assigned to
perform Services shall be required to execute all documents required under the
Company Policies, including, but not limited to, the documents listed in
Exhibit I (Company Standard Operating Procedures) and Exhibit J
(Company Standard Policies). In addition, prior to performing Services, Provider
shall cause its Provider Personnel to execute Company’s Temporary
Worker/Contractor Orientation Materials, including, but not limited to, the
Assignment Guidelines, Non-Employee Information Security Agreement; Proprietary
Information and Inventions Agreement for Non-Employees; List of Inventions and
Works; Mutual Agreement to Arbitrate Claims; and Harassment/Discrimination
Policy, set forth as Exhibit B (Company’s Temporary Worker/Contractor
Orientation Materials).
12.17 Company Request for Replacement. Company shall have the right to
request in good faith that Provider remove any Key Provider Personnel or other
Project Staff for any reason that does not violate Law. Such request shall be in
writing, state Company’s basis for requesting the removal of the Key Provider
Personnel or other Project Staff, and be reviewed by Provider’s Program Manager
and Company’s Program Manager to develop a mutually agreeable resolution. With
respect to Key Provider Personnel, other Personnel or other Project Staff
working on Company premises, (i) if requested by Company, Provider shall
immediately remove such individual from Company premises pending resolution of
the request and (ii) in the event that the parties are unable to develop a
mutually agreeable resolution, Provider shall permanently remove such Key
Provider Personnel or other Project Staff from the performance of the Services
on Company premises in accordance with the Company’s direction. Provider shall
replace any Key Provider Personnel or Project Staff removed hereunder as soon as
reasonably possible, with replacement Personnel approved by Company, which
approval will not be unreasonably withheld or delayed. Nothing in this
Section 12.17 shall operate or be construed to limit Provider’s
responsibility for the acts or omissions of Provider Personnel, or be construed
as joint employment.
12.18 Review Meetings and Progress Reports. Upon the request of
Company’s Program Manager, each Party’s Program Manager, as well as appropriate
additional Personnel involved in the performance of Services, shall meet at a
location designated by Company, or at Company’s option, conduct a telephone
conference call or web conference meeting, to discuss the Services. Unless
otherwise agreed by Company, in order to facilitate proper management of
Services under this Agreement and the applicable Order, Provider shall, at each
such meeting (or if no meeting is solicited by Company, at least once each month
during the Term and Termination Assistance Period), provide Company with a
written status report in which Provider identifies any problem or circumstance
encountered by Provider, or which Provider gained knowledge of during the period
since the last such status report, that (i) may prevent or tend to prevent
Provider from completing any of its obligations hereunder or under such Order,
or (ii) may cause or tend to cause Provider to generate Services Costs in excess
of those previously agreed by the Parties. If applicable, Provider shall
identify the amount of excess Services Costs, if any, and the cause of any
identified problem or circumstance and steps taken or proposed to be taken by
Provider to remedy the problem or circumstance; provided, however, that Company
shall not be billed or liable for any such excess Services Costs incurred by
Provider without the prior written approval of Company in accordance with the
Change Control Process.
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12.19 Visits. Provider Personnel, including, but not limited to,
Provider’s Program Managers as requested by Company, shall, to the extent deemed
necessary by Provider to provide direct support of the existing Services, at the
expense of Company, visit any of Company’s locations or the sites of third-party
consultants or service providers of Company to discuss the Services. Company
shall be obligated to reimburse travel expenses incurred in connection with such
visits only to the extent such expenses are reimbursable under Provider’s travel
policies and Company’s travel policies, and then only to the extent of the
lesser of the aggregate amounts reimbursable under each policy. Company or its
representative may at any time elect, at Company’s expense and upon reasonable
notice to Provider, to visit Provider’s facilities at which Services are being
performed. Provider shall make available specialists as designated by Company
and Provider to discuss the Services.
12.20 Cooperation with Third Party Suppliers. Provider has been
advised and acknowledges that, under separate agreements, Company may retain
other providers or suppliers to perform certain services related to those
Services to be performed hereunder by Provider (individually, a “Third
Party Supplier” and collectively, “Third Party
Suppliers“). Provider shall coordinate its performance hereunder with
the services of Third Party Suppliers so as to facilitate successful completion
of each project or performance of the Services, including without limitation
providing cooperation and information to and attending meetings with such other
suppliers to enable the successful implementation of their services. To the
extent expressly included in Provider’s obligations hereunder or under an Order
or reasonably inferable therefrom, Provider shall (i) coordinate the Services
with such other services as though such other services were performed by
Provider, (ii) cooperate with Company and Third Party Suppliers so as to allow
such Third Party Suppliers to provide any services (including services similar
to the Services) or products in an integrated and seamless manner without
disruption to Company’s business or the Company Facilities, and (iii) to the
extent included as part of the Services, manage the performance of Third Party
Suppliers under the applicable agreements with Third Party Suppliers. Provider
shall immediately notify Company when an act or omission of a Third Party
Supplier may cause a problem or delay in Provider providing the Services and
Provider shall cooperate with Company to prevent or circumvent such problem or
delay.
12.21 Software and Hardware Verification. Unless otherwise set forth
in an Order, (i) within thirty (30) days of the Effective Date or an Order
Effective Date, or (ii) for new software or hardware used to provide Services,
prior to implementing use of such new software or hardware, Provider shall
verify that all software and hardware of Provider that will be used by Provider
to provide the Services, and all interconnections to Company systems and
networks, operate in accordance with their specifications and intended functions
in a reliable manner. In the event that during such verification Provider finds
any nonconformities, Provider shall provide to Company within the respective
period specified in clause (i) or (ii) above, an action plan to eliminate such
nonconformities within ninety (90) days. Prior to using any other software or
hardware to provide the Services or creating new interconnections with Company
systems and networks, Provider shall verify that such software, hardware or
interconnection operates in accordance with its specifications and intended
functions in a reliable manner. Prior to testing any such software, hardware or
interconnections, Provider shall document the testing protocols to be used and
submit such testing protocols to Company to obtain written approval thereof.
12.22 Continuous Improvement and Best Practices. Provider shall: (i)
on a continuous basis, as part of its total quality management process, seek to
improve the quality, pricing and technology available to Company in connection
with the Services; (ii) seek to identify and apply proven techniques and tools
from other installations within its operations that Provider and Company agree
would benefit Company either operationally or financially; (iii) use
commercially reasonable efforts to advise Company of any new developments
relating to the Services; and (iv) upon Company’s request, at a mutually
agreeable price, assist in the evaluation and testing of such developments in
connection with the performance of the Services. Without limiting the foregoing,
on the request of Company, Provider shall (i) report to Company on any of the
foregoing, and (ii) inform Company of any new products, processes, trends and
directions of which Provider is aware, that may be relevant to Company’s
business.
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12.23 Transitioned Personnel.
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(i) |
Affected Employees. |
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Provider shall offer employment to those Affected Employees who Provider |
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(ii) |
Affected Contractors. |
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The Company contractor agreements identified in Schedule 10 (Assigned |
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(iii) |
Critical Affected Personnel/Key Transferred Employees. |
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Provider acknowledges that certain of the Affected Personnel are Affected |
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
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|
(iv) |
Acquired Rights Directive. |
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In accordance with its obligations under local legislation implementing ARD |
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(v) |
Provider may not transfer the employment of the Transitioned Employees to any |
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(vi) |
If ARD Laws do not operate to transfer to Provider any ARD Affected Employee |
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(vii) |
The parties will set forth additional applicable provisions related to ARD |
13. SUBCONTRACTING AND RESPONSIBILITY FOR PERSONNEL
13.1 Subcontractors. Any subcontracting in connection with this
Agreement shall be pursuant to an appropriate written agreement (a
“Subcontract”) between Provider and such subcontractor (each, a
“Subcontractor”) and shall include provisions that meet or
exceed the requirements of this Agreement and that are relevant to the Services
subject to such Subcontract. Provider shall not enter into any Major Subcontract
except in compliance with Section 13.8 below. Additionally, Provider must
obtain Company’s prior written consent, not to be unreasonably withheld or
delayed, if Provider plans to self-perform or have Provider’s Affiliate perform
any of the Services including without limitation Services that have previously
been performed by Provider’s Subcontractors or Third Party Suppliers. Each
Subcontract shall identify Company as an intended third party beneficiary that
may enforce any confidentiality, warranty and similar rights under such
Subcontract. Each Subcontract shall require the Subcontractor, at no cost to
Company, to correct such Subcontractor’s performance not meeting the
requirements of the Subcontract. All Subcontracts shall be for a term not to
exceed the period for which Services are to be provided to Company and shall be
terminable without cause at Provider’s election upon no more than ninety (90)
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
25
days notice without termination penalty or charge. Company shall not be
obligated to reimburse Provider for any termination penalty or charge incurred
by Provider under a Subcontract except to the extent that, prior to entering
into such Subcontract, Provider disclosed to and Company agreed in writing to
reimburse therefor (any termination fees so agreed by Company, an
“Approved Subcontract Termination Fee”). Company shall only be
obligated to reimburse Provider for Approved Subcontract Termination Fees to the
extent such are actually incurred and paid by Provider. Company shall have the
right, at any time, to negotiate and contract directly with any subcontractor
for any goods or services, including without limitation those to be provided
hereunder, provided that any actual modification of the Services shall be made
in accordance with the Change Control Process. If requested by Company, Provider
shall promptly provide a copy of any Major Subcontracts or Subcontracts for
amounts in excess of $20,000 to Company within ten (10) days after such request.
13.2 Certain Subcontractors. Company shall have the right to
pre-approve Subcontractors for Major Subcontracts, and Company may reject such
proposed Subcontractors in Company’s good faith business judgment. The
Subcontractors listed on Schedule 13 to Exhibit A (Approved Major
Subcontracts) are approved for the initial Services indicated on such Schedule,
provided that Company may modify such pre-approved list of Subcontractors from
time to time with respect to future Subcontracts. Company shall have the right
to specify the use by Provider of certain Subcontractors. Such specification by
Company shall not (i) create any liability for Company to any Subcontractor or
privity of contract between Company and any such Subcontractor, or (ii) relieve
Provider of its obligations hereunder or constitute a representation or
endorsement by Company that such Subcontractor is qualified or capable to
perform. Provider shall not substitute or replace any Subcontractor approved or
specified by Company if Company objects in good faith to such substitution or
replacement. If (A) Provider determines that Company’s specification of a
Subcontractor materially increases the costs of the Services or (B) such
Subcontractor does not agree to Subcontract terms and conditions required by
this Agreement, then a Change shall be determined in accordance with the Change
Control Process set forth in Article 5. Provider’s failure to request a
Change prior execution of the applicable Subcontract shall constitute a waiver
of any right to seek a modification of the Services Costs or Provider’s Shared
Savings payable under this Agreement in connection with the applicable
Subcontract.
13.3 Supply Contracts/Equipment Leases. Provider shall identify to
Company Supply Contracts that are required to perform the Services in accordance
with this Agreement or the applicable Order and the Service Levels. Such Supply
Contracts shall be entered into by Company or Provider as determined by Company
in its reasonable discretion. Company shall have the right to specify the use by
Provider of certain Third Party Suppliers. Such specification by Company shall
not (i) create any liability for Company to any Third Party Suppliers or privity
of contract between Company and any such Supplier unless Company is a party to
the applicable Supply Contract, or (ii) relieve Provider of its obligations
hereunder or constitute a representation or endorsement by Company that such
Supplier is qualified or capable to perform. Provider shall not substitute or
replace any Supplier approved or specified by Company if Company objects in good
faith to such substitution or replacement. If Provider determines that (i)
Company’s specification of a Supplier materially and adversely increases the
costs of the Services or (ii) a designated Subcontractor does not agree to
Subcontract terms and conditions required by this Agreement, then a Change shall
be determined in accordance with the Change Control Process set forth in
Article 5. Provider’s failure to request a Change prior execution of the
applicable Supply Contract shall constitute a waiver of any right to seek a
modification of the Services Costs or Provider’s Shared Savings payable under
this Agreement in connection with the applicable Supply Contract. Company shall
not be obligated to reimburse Provider for any termination penalty or charge
incurred by Provider under a Supply Contract except to the extent that, prior to
entering into such Supply Contract, Provider disclosed to and Company agreed in
writing to reimburse such (any termination fees so agreed by Company, an
“Approved Supply Contract Termination Fee”). Company shall only
be obligated to reimburse Provider Approved Supply Contract Termination Fees to
the extent such are actually incurred and paid by Provider. Provider shall
provide a notice and, if requested by Company, copy of each Major Supply
Contract and other Supply Contract in excess of $20,000 to Company within ten
(10) days after execution of such Supply Contract. With respect to any Provider
Equipment procured or leased by Provider as a Reimbursable Cost in connection
with the Services, Provider’s responsibilities shall include: (A) evaluating the
Provider Equipment and the qualifications of the Provider Equipment vendor; (B)
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negotiating commercially reasonable pricing and terms; (C) ordering,
receiving, configuring, installing, testing, maintaining and distributing all
new Provider Equipment; (D) performing tracking and asset management for all
such Provider Equipment; and (E) tracking license counts, informing Company of
any discrepancies with applicable license count restrictions, and assisting
Company in restoring compliance with applicable license count restrictions. With
respect to any new Provider Equipment leased by Provider that may be assumed by
Company upon termination of this Agreement, (1) Supplier shall structure its
leasing arrangements so that the applicable leases may be assigned to Company
upon the termination or expiration of this Agreement and so that any ongoing
payments under those leases payable by Company after such assignment are
consistent with, and no greater than, the payments payable by Provider prior to
such assignment, and (2) such leases shall be subject to prior review and
approval by Company.
13.4 Supplier Diversity. Company desires to use small business
entities that qualify as small (disadvantaged, veteran, service disabled
veteran, women owned, and HUBZone) businesses (as defined by the United States
Small Business Administration). In recognition thereof, Provider will work to
develop additional suppliers, use reasonable efforts to employ qualified vendors
and subcontractors where appropriate and feasible in providing the Services.
Provider shall keep records of small business subcontracts and shall be able to
produce a report, upon Company’s request, of Provider’s small business spend
percentages along with any examples of good faith efforts to subcontract with
small businesses. Those spend percentages and other requirements are listed in
Attachment 2 to Exhibit J (Provider Diversity Plan).
13.5 Assignability. Provider shall structure its arrangements with
Subcontractors and Third Party Suppliers that will be primarily dedicated to the
performance of the Services so that the relevant contracts may be assigned to
Company (or upon Company’s request replaced with a novation of the Subcontract
or Supply Agreement between Company and the applicable Subcontractor or
Supplier) upon the termination of this Agreement as to the applicable Services
covered by such Subcontract or Supply Agreement and so that there are no
assignment or termination fees and the ongoing fees under those arrangements
payable by Company after such assignment (or novation) are consistent with and
no higher than the fees payable by Provider prior to such assignment (or
novation). If Provider is not able to accomplish the foregoing after using
commercially reasonable efforts, Provider shall notify Company and discuss with
Company the consequences (including any impact on the Services and Service
Levels) of Provider not being able to use the services from the provider who
shall not allow the assignment sought by Company. If, following that discussion,
Company directs Provider to not use such services, and Provider is not able to
find a suitable work-around, Provider shall be relieved of its obligations under
the Agreement to the extent its ability to perform is adversely impacted by the
inability to use such third party services.
13.6 Control and Risk. Provider shall properly direct and control
Subcontractors and Third Party Suppliers, and inspect Subcontractors’ and Third
Party Suppliers’ performance for defects and deficiencies. No agreement between
Provider and any Subcontractor or Supplier shall relieve Provider from any of
its obligations or liabilities hereunder. Nothing in this Agreement or any
Subcontract shall create any contractual relationship, with the exception of the
above-mentioned third party beneficiary right, between Company and any
Subcontractor including without limitation any obligation on Company’s part to
pay, or be responsible for the payment of, any sums to any Subcontractor.
13.7 Affiliates. Provider shall provide Company written notice
regarding any Subcontractors or Third Party Suppliers that are Provider’s
Affiliates prior to entering into any agreement with an Affiliate in connection
with the Services. Any such agreement shall be subject to Company’s prior
written consent. Any Subcontract or Supply Contract with an Affiliate that is
considered a Reimbursable Cost shall not exceed market prices and shall not
result in the payment of any profit to Provider or its Affiliate Subcontractor
or Supplier. Company may elect, in its sole and absolute discretion, to cause
any Subcontract or Supply Contract that is considered a Reimbursable Cost and
that Provider proposes to award to an Affiliate to be competitively bid in
accordance with Section 13.13 to bidders that are not Provider’s
Affiliates.
13.8 Payments to Subcontractors and Third Party Suppliers. Except to
the extent Company has either withheld payment or not timely made a properly
invoiced payment with respect to such Subcontractor or
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Supplier, Provider shall promptly pay each Subcontractor and Supplier the
amount to which such Subcontractor or Supplier is entitled no later than the due
date for payment under the applicable Subcontract or Supply Contract unless (i)
Provider has a good faith dispute regarding the charges of such Provider
Personnel, (ii) the terms of the Subcontract or Supply Contract between Provider
and Provider Personnel permit Provider to withhold payment in the event of a
good faith dispute and (iii) Provider has not billed Company and been paid by
Company for the contested amounts. Provider shall, by appropriate agreement with
each Subcontractor, require each Subcontractor to make payments to its own
approved sub-subcontractors in a similar manner. Upon request, Provider shall
submit to Company copies of all checks and payments to Subcontractors. Should
Provider neglect or refuse to cause to be paid promptly any bill or charge
legitimately incurred by Provider in support of the Services, Company shall have
the right, but not the obligation to, pay such bill or charge directly, and
Provider shall immediately reimburse Company for the same. If Provider does not
so reimburse Company, Company may offset the amount of such bill or charge
pursuant to Section 21.4. With respect to any Subcontracts or Supply
Contracts being paid for by Company as Reimbursable Costs or which costs
otherwise directly affect the Services Costs, Provider shall exercise reasonable
efforts to qualify for early payment, cash and trade discounts, refunds,
rebates, credits, and concessions, and Company shall be credited with the full
amount of any such discount, commission, or compensation obtained or received by
Provider, directly or indirectly, in connection with any such contracts.
13.9 Notice of Breach. Provider shall provide Company with prompt
written notice of all actual or potential disputes with Subcontractors and Third
Party Suppliers, including, without limitation, breaches, defaults,
insolvencies, defects in Subcontractor’s and Supplier’s services, and work
stoppages. Such notice shall include the reasons and circumstances giving rise
to such disputes in such detail so as to enable Company, in its sole discretion,
to exercise any of its rights or remedies against such Subcontractor or
Supplier, or to require Provider to obtain Company’s prior written approval of
any settlement. Notwithstanding the foregoing, neither the provisions of this
Section 13.9 nor the exercise by Company of any of its rights or remedies
shall relieve Provider of any of its obligations or liabilities under this
Agreement.
13.10 Control of Subcontractors and Other Personnel. Provider shall be
responsible for (i) [*] management and coordination of the performance of all
such Personnel and Affiliates. [*] Subject to
Section 13.8 above, Provider shall be responsible for all payments to,
and claims by, Provider Personnel and Provider’s Affiliates relating to this
Agreement and to the Services performed hereunder.
13.11 Not Company Employees. Provider acknowledges and agrees that
Company shall have no responsibility or liability for treating Provider
Personnel (including without limitation Transferred Employees and Key
Transferred Employees) as employees of Company for any purpose. Neither Provider
nor any of Provider Personnel shall be eligible for coverage or to receive any
benefit under any Company provided worker’s compensation plans, employee plans
or programs or employee benefits arrangement, including without limitation any
and all medical and dental plans, bonus or incentive plans, retirement benefit
plans, stock plans, disability benefit plans, life insurance and any and all
other such plans or benefits.
13.12 Co-Employment; Joint Employer; Common Law Employee. Provider
acknowledges that some or all of its Personnel may be assigned or deployed to
work within Company Facilities. Provider further acknowledges that some or all
of its Personnel may be former Company employees. Finally, Provider
acknowledges, with respect to the Personnel referenced in this Section
13.12, in particular, but inclusive of all of Provider’s Personnel, there is
a risk that such Personnel may attempt to assert claims predicated on the
allegation (i) that Company and Provider are their joint employers; (ii) that
Company and Provider are their co-employers; and/or (iii) that they are the
common law employees of Company. Provider shall use its best efforts to provide
its Personnel adequate supervision, evaluations and feedback, and shall, as
appropriate, monitor and evaluate each of Provider’s Personnel’s functioning in
the workplace while assigned to work at a Company Facility, and shall use its
best efforts to ensure that none of Provider’s Personnel are, either directly or
indirectly, supervised by, directed by or controlled by Company Personnel. In
the event that Provider or any of its Personnel determine that said Personnel
are, either directly or indirectly, being supervised, directed or controlled by
Company Personnel, Provider shall immediately notify Company of same and shall
take all necessary steps, including, but not limited to, coordinating with
Company management Personnel to terminate such supervision, direction or
control.
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
28
13.13 Competitive Bidding. Unless otherwise permitted in this
Section 13.13, all Major Subcontracts and Major Supply Contracts shall be
awarded on the basis of competitive bidding, solicited in the following manner:
|
(i) |
A minimum of three (3) written bids shall be obtained from qualified vendors. |
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(ii) |
Company reserves the right to review and amend bid specifications prior to |
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(iii) |
Provider shall disclose to Company any relationship Provider may have with |
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(iv) |
All bids in excess of [*] are subject to the approval of Company. Company |
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(v) |
Provider must obtain the prior written approval of Company prior to accepting |
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(vi) |
If Provider recommends acceptance of any bid other than the lowest bid, |
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(vii) |
Provider shall obtain proof of insurance from the selected vendor prior to |
Subject to Company’s prior written approval, certain Major Subcontracts and
Major Supply Contracts may be entered into without competitive bidding, which
may include Provider use of national or global contracts or sole-source direct
negotiation. In this case Provider shall prove the economic or qualitative
benefit of this approach to Company’s reasonable satisfaction.
13.14 Labor Management. Provider shall meet the Standard of Care in
its efforts to prevent and avoid labor-related disputes or other human resources
issues which may disrupt or interfere with the performance of the Services or
the activities of Company or Third Party Suppliers. To the extent that Company
has requested or Provider has communicated to Company plans with respect to
labor usage for a portion of the Services, Provider shall manage the award and
performance of the affected Services consistent with such plan. Whenever
Provider has knowledge of any actual or potential labor dispute or disruption
involving Provider’s Personnel that may materially affect the Services or
operations of Company or Third Party Suppliers, Provider shall promptly notify
Company of such and the Parties shall cooperate to minimize the effect of such
dispute or disruption on the provision of Services, Company’s operations and
Third Party Suppliers’ performance, whether or not such labor dispute or
disruption occurs at a Company Facility. With respect to all labor disputes,
jurisdictional or other shutdowns, slowdowns, strikes, or other work stoppages
or actions affecting the Services or the operations of Company (collectively,
“Labor Disputes“) of which Provider or a union with which
Provider has a collective bargaining agreement is a target, Provider shall
promptly take all commercially reasonable necessary action toward elimination
and/or settlement of such Labor Disputes; provided, however, that the cost of
Labor Disputes of which Provider is a target shall be borne by Provider except
to the extent any such Labor Dispute is the direct result of an act or omission
of Company or arises directly out of the decision by Company to enter into this
Agreement and reasonably near in time to the date of transition of the
Transferred Employees to Provider. With respect to Labor Disputes in which
Company, one of its Affiliates, or a union with which it or they have a CBA is a
target, Provider shall exert its best efforts to continue providing Services.
Notwithstanding the foregoing, neither the provisions of this Section
13.14 nor the exercise by Company of any of its rights and remedies
hereunder shall relieve Provider of any of its obligations or liabilities
hereunder.
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
29
14. ASSIGNED AND MANAGED CONTRACTS
14.1 Assigned Contracts. In accordance with the Transition Plan or the
applicable Order, and subject to Provider having obtained any applicable
Required Consents, Company shall assign to Provider, and Provider shall assume
from Company, the Assigned Contracts set forth in Schedule 10 to Exhibit
A (Assigned and Managed Contracts/Company Contractor Agreements) or the
applicable Order. Provider shall pay directly, or reimburse Company if Company
has paid, the charges and other amounts under the Assigned Contracts, where such
charges are attributable to the periods on or after the Effective Date or the
Order Effective Date, subject to reimbursement of such charges that are
considered Reimbursable Costs. Provider shall comply with the duties imposed on
Company under such contracts. Company shall pay any costs, expenses and fees
(including license, re-licensing, transfer or upgrade fees or termination
charges) as may be required to obtain the Parties’ respective Required Consents.
14.2 Managed Contracts. In accordance with this Agreement and the
applicable Order, and subject to Provider having obtained any applicable
Required Consents, Provider shall manage, administer and maintain the Managed
Contracts. Provider shall provide Company with no less than 90 days notice of
any renewal, termination or cancellation dates and fees with respect to the
Managed Contracts. Provider shall not renew, modify, terminate or cancel, or
request or grant any consents or waivers under any Managed Contracts without the
consent of Company. Any fees or charges or other liabilities or obligations
imposed upon Company in connection with any such renewal, modification,
termination or cancellation of, or consent or waiver under, the Managed
Contracts that is obtained or given without Company’s consent, which consent
shall not be unreasonably withheld or delayed, shall be paid or discharged, as
applicable, by Provider.
14.3 Managed Contract Invoices. Provider shall (i) receive all Managed
Contract invoices, (ii) review and correct any errors in any such Managed
Contract invoices in a timely manner, and (iii) submit to Company for payment.
14.4 Performance Under Managed Contracts. At all times Provider shall
remain responsible for the management, administration and maintenance of the
Managed Contracts. With respect to the performance of contractors under Managed
Contracts, Provider shall promptly notify Company of any breach of, or misuse or
fraud in connection with, any Managed Contracts of which Provider becomes aware
or receives written notification, and shall cooperate with Company to prevent or
stay any such breach, misuse or fraud. Provider shall not be liable for (i) any
breach of, or misuse or fraud in connection with, by a contractor under any
Managed Contract or (ii) for Provider’s failure to provide the Services or to
meet the Services Levels as a result of any breach, misuse, or fraud by a
contractor under a Managed Contract except to the extent such breach, misuse or
fraud resulted from Provider’s failure to prudently manage, administer and
maintain the Managed Contract.
14.5 Provider Required Consents. Provider, with the necessary
cooperation of Company, shall obtain and maintain any consents, authorizations
or approvals that are necessary for Provider to provide the Services
(collectively, the “Provider Required Consents“), including
those consents that are necessary to allow:
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(i) |
Provider to assign to Company any of its interests in Work Product as |
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(ii) |
Company to use any Provider Equipment during the Term and the Termination |
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(iii) |
Company to take an assignment to any Provider Equipment leases pursuant to |
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(iv) |
Provider to take an assignment to any Assigned Contracts pursuant to this |
14.6 Company Required Consents. Company, with the cooperation of
Provider, shall obtain and maintain all consents, authorizations or approvals
that are necessary to allow Provider to use any of the Company Provided
Equipment as permitted in the Agreement.
14.7 Compliance with Required Consents. Provider and Company shall
comply with the requirements of each of the required consents.
14.8 [Intentionally Omitted]
14.9 Alternative Approaches. If either Party is unable to obtain a
required consent, then, unless and until such required consent is obtained,
Provider and Company shall determine and adopt such mutually agreeable
alternative approaches as are necessary and sufficient to provide the Services
without such required consent. If such alternative approaches are required for a
period longer than sixty (60) days following the Effective Date or an Order
Effective Date, the Parties shall equitably adjust the terms of the Agreement
and reduce the Services Costs to reflect any additional costs and expenses being
incurred by Company and any Services not being received by Company. In addition,
if Provider fails to obtain a Provider Required Consent within sixty (60) days
of the Effective Date or an Order Effective Date and such failure has a material
adverse impact on Company’s receipt of the Services, Company may, upon notice to
Provider, terminate the Agreement, in whole or in part, as of the termination
date specified in the notice, without cost or penalty and without the payment of
any termination charges. The failure to obtain any Provider Required Consent
shall not relieve Provider of its obligations under the Agreement and Provider
shall not be entitled to any additional compensation or reimbursement of any
amounts in connection with obtaining or failing to obtain any Provider Required
Consent or implementing any alternative approach required by such failure.
15. AUDITS AND RECORDKEEPING
15.1 Fee Audits. All books and records relating to the performance of
Provider’s obligations hereunder, any amounts payable to Provider hereunder, all
Services that are self-performed by Provider and all Subcontracts and Supply
Contracts with Affiliates of Provider shall be maintained by Provider and made
available to Company and Company’s Personnel for copy, review, audit and other
business purposes related to the performance of Provider’s and the Services
hereunder at such reasonable times, upon reasonable notice and during normal
business hours at reasonable locations. Except for self-performed Services and
Subcontracts and Supply Contracts with Affiliates of Provider, Company’s audit
rights shall not include the right to audit the makeup of fixed price costs or
fixed rates agreed upon by Company. Should Provider fail to maintain such books
and records as required hereunder and under Section 15.5 below, Provider
shall provide its good faith assistance and reimburse Company for its reasonable
costs in recreating such books and records. In the event that any audit by
Company reveals any overpayment by Company (which overpayment may include
without limitation Provider’s inability to produce adequate supporting
documentation for any Service Costs paid by Company), then Provider shall repay
to Company the overpaid amount upon Company’s written demand therefor and if
such audit reveals underpayment by Company, then Company shall pay such
underpaid amount upon written demand therefor and an invoice in accordance with
Exhibit Q (Invoicing and Accounting Requirements). Company’s performance
of an audit and Provider’s repayment of any overpaid amounts shall not limit any
of Company’s rights and remedies with respect to such overpaid amounts or
Provider’s performance of its obligations under this Agreement, all of which
rights and remedies are reserved by Company. Provider shall cause the provisions
of this Article 15 to be incorporated in the provisions of each
Subcontractor agreement.
15.2 Records Retention. Provider shall maintain complete and correct
books and records relating to the performance of all of its obligations
hereunder and all costs, liabilities and obligations incurred hereunder,
including without limitation those relating to the Services Costs and Provider’s
Shared Savings. All records and accounts relating to financial matters must be
in a format consistent with Generally Accepted Accounting Practices
(“GAAP“). Upon Company’s request, Provider shall disclose to
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and discuss with Company, Provider’s accounting principles and practices. Any
modification or addition to Provider’s accounting practices during the Term or
Termination Assistance Period (other than in accordance with GAAP) shall be
disclosed to Company prior to its implementation. Further, such modification of
Provider’s accounting practice shall be subject to the prior written approval of
Company. Such books and records shall be maintained for a period of no less than
seven (7) years after the Term and Termination Assistance Period, if any.
15.3 Processing Audits. Upon reasonable advance notice from Company,
and provided that such audits do not interfere with Provider’s ability to
perform the Services, Provider shall, at Company’s expense, provide such
auditors and inspectors as Company may designate with access during normal
working hours to any site, facility, or performance documentation for the
purpose of performing audits or inspections of security, internal and external
compliance, legally required audits, audits in connection with government
investigations, and audits required under Company’s corporate policies,
including normal IT and business audits.
15.4 Facilities. Provider shall provide to Company and such auditors
and inspectors as Company may designate in writing, on Provider’s premises (or
if the audit is being performed of a Subcontractor, the Subcontractor’s premises
if necessary) office space, office furnishings, telephone and facsimile
services, utilities and office-related equipment and duplicating services as
Company or such auditors and inspectors may reasonably require to perform the
audits described in this Article 15.
15.5 SAS 70 Type II Report. During the Term (and the Termination
Assistance Period), on the request of Company from time-to-time in addition to
the schedule Provider may itself establish, Provider shall obtain a SAS 70 Type
II Report. Provider shall provide Company with a copy of the SAS 70 Type II
Report within fifteen (15) days of Provider’s receipt thereof from the Service
Auditor. [*] If Provider obtains reports or conducts reviews that provide
evaluations of Provider’s control objectives and control activities, Provider
shall notify Company of such and provide copies of such reports or reviews to
Company at no cost to Company. If the reports or reviews in the preceding
sentence contain any confidential third party data or information, Provider may
redact such confidential data or information from the copies provided to
Company.
15.6 Provider Personnel Reports. If any Services are provided by
Subcontractors, and if such Services (or any controls or other aspects of such
Services) would fall within the scope of the SAS 70 Type II Report had such
Services been provided directly by Provider, then Provider shall cause each such
Subcontractor to comply with the requirements of Section 15.5 and
Section 15.7.
15.7 Certification. As requested by Company, Provider shall either (i)
certify to Company in writing that during the applicable SAS 70 Gap Period no
changes have been made to the Services, the manner in which the Services are
provided or operated, applicable controls, or the Control Objectives that could
reasonably be expected to have any impact on the contents of, or opinions set
forth in, the applicable SAS 70 Type II Report; or (ii) provide Company with a
written description of any such changes.
15.8 Disclosure. The SAS 70 Type II Report shall be Confidential
Information of Provider (or the applicable Provider Personnel); provided,
however, that notwithstanding the foregoing or the confidentiality provisions of
this Agreement, Company (and Company’s independent auditors) shall be permitted
to disclose the SAS 70 Type II Report (or any of the content thereof) to any
person, entity or Governmental Authority as necessary for Company to comply with
the Sarbanes-Oxley Act of 2002 or any other Applicable Laws.
15.9 Control Objectives. Company may establish compliance and control
objectives applicable to the Services by delivering such objectives in writing
to Provider (“Control Objectives“). Company may update the
Control Objectives at any time during the Term (or the Termination Assistance
Period) provided that, subject to the Change Control Process, Company shall be
responsible for any additional costs incurred by Provider in complying with the
updated Control Objectives to the extent that such updated Control Objectives
apply only to Company and not to any other customer of Provider. To the extent
that such updated Control Objectives apply to other customers of Provider, then
the costs associated with compliance with such updated Control Objectives shall
be, subject to the Change Control Process, equitably allocated among Company and
such customers.
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
32
15.10 Sarbanes-Oxley Requirements. Provider recognizes that Company is
subject to the Sarbanes-Oxley Act of 2002. In addition to the Control
Objectives, Provider shall provide whatever assistance is necessary to assist
Company in complying with such requirements with respect to its outsourced
functions. Provider shall comply with Company’s financial reporting and control
processes as set forth in the Policies and Procedures Guide (and as such
processes are revised from time to time by Company) and provide Company with
copies of all related records, reports and data as necessary for Company to
satisfy the Sarbanes-Oxley Act of 2002. Provider shall recommend and, subject to
Company approval, implement compliance measures to satisfy the Sarbanes-Oxley
Act of 2002 with respect to the Services. Provider may use Direct Provider Labor
in complying with the requirements of this Section 15.10.
16. TIMELINES FOR PERFORMANCE
16.1 Time of the Essence. Time is of the essence with respect to this
Agreement. Execution of this Agreement and any Order shall constitute Provider’s
representation and warranty that Provider is fully capable of performing, and
will perform the applicable obligations in accordance with the Schedule set
forth herein or in each Order. In the event Provider fails to so perform,
Company may seek to recover damages, costs and expenses from Provider by reason
of such failure of performance.
16.2 Schedule. If applicable to the Services set forth in an Order,
Provider shall develop and submit to Company within ten (10) days of each Order
Effective Date a detailed schedule for that Order based on Company’s
requirements and Provider’s obligations thereunder (a
“Schedule“). The Schedule shall indicate the timing of the
performance of such obligations, including without limitation commencement,
submission of Deliverables, milestones, meeting dates and completion. The
Schedule shall include without limitation time for necessary bidding (if any),
reviews, revisions, applications to Governmental Authorities, and required
approvals. Provider shall not exceed the dates set forth in such Schedule.
16.3 Suspension. Company may, at any time, by written notice to
Provider, suspend all or any portion of Provider’s performance hereunder. Upon
receipt of such notice, Provider shall do the following, unless the notice
requires otherwise:
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(i) |
Immediately discontinue such performance on the date and to the extent |
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(ii) |
Incur no further obligations, including without limitation placement of |
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(iii) |
Promptly make every reasonable effort to obtain suspension or assignment to |
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(iv) |
Protect and maintain any materials and supplies utilized in such performance, |
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(v) |
Mitigate costs associated with any such suspension. |
16.4 Costs of Suspension. Within thirty (30) days of the effective
date of any suspension by Company, Provider shall submit an itemization of
expenses and time expended through the effective date of the suspension,
together with cost, pricing, or other documents or data required by Company.
Suspensions may only be withdrawn by written notice from Company, specifying the
effective date and scope of the withdrawal. Provider shall immediately resume
performance unless otherwise specified in such notice. If
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Provider believes that an adjustment to the Services Costs or the Schedule
hereunder or under an Order is justified as a result of the suspension or
withdrawal of suspension, such suspension or withdrawal of suspension shall
constitute a Change and Provider shall request such adjustment in accordance
with the Change Control Process provisions hereunder. The Annual Budget and Cost
Baseline for determining Provider’s Shared Savings shall be equitably modified
to take into account any period of suspension hereunder.
16.5 Acceleration of Performance. Provider shall notify Company
immediately upon determining that it may be unable to meet the Schedule in whole
or in part. Additionally, Company may inform Provider that Company has
determined, in its reasonable judgment, that Provider may be unable to meet the
Schedule in whole or in part. Within five (5) days of such notice or
information, Provider shall submit to Company a proposed action plan to ensure
compliance with the Schedule. If Company determines in its reasonable judgment
that such action plan will not ensure compliance with the Schedule, Company may
direct Provider to take steps necessary to accelerate its performance. If
Provider believes that an adjustment to the Services Costs is justified as a
result of such acceleration and that such acceleration constitutes a Change,
Provider shall request such adjustment in accordance with the Change Control
Process. Any incremental costs incurred by Provider as a result of such
acceleration shall constitute a Change and shall be subject to the Change
Control Process. Except to the extent provided for in any approved Change,
Company shall have no liability to Provider for or arising out of the
acceleration. If, within a reasonable period as determined by Company, Provider
fails (i) to provide an action plan for accelerating and improving performance
to meet the Schedule, or (ii) to diligently proceed to accelerate performance in
accordance with such action plan, Company may take whatever actions it deems
appropriate to meet the Schedule. The reasonable costs of any such actions shall
be borne by Provider. No actions taken by Company under this Section 16.5
shall relieve Provider of its obligations under this Agreement, including
without limitation meeting the Schedule.
16.6 Remedies for Failure to Timely Perform. Provider acknowledges
that in the event Provider fails to timely perform under this Agreement, Company
will suffer substantial damages, costs and expenses by reason of such failure of
performance. The Parties may provide in this Agreement or in any Order for
Service Costs credits to apply with respect to Provider’s failure to meet
prescribed Schedule requirements, in which event the terms of such Service Costs
credit provision shall apply with respect to failure to meet such Schedule
requirements. Notwithstanding the availability of Service Costs Credits, Company
shall be entitled to enforce any and all remedies available under this
Agreement, at law and/or in equity with respect to any failure of Provider to
timely perform its obligations in accordance with the terms of this Agreement,
including the recovery of actual damages.
17. TERM AND TERMINATION
17.1 Term. The term of this Agreement shall commence on the Effective
Date and shall continue for a period of five (5) years (“Initial
Term“) unless earlier terminated in accordance with this Article
17. This Agreement shall automatically renew for additional one (1) year
periods (each a “Renewal Term,” and together with the Initial
Term, the “Term“) unless Company provides written notice of
non-renewal no later than three (3) months prior to the expiration of the
Initial Term or then-current Renewal Term.
17.2 Effect on Orders. Upon expiration or termination of this
Agreement in accordance with this Article 17, this Agreement shall remain
in effect with respect to any then-open Order(s) issued under this Agreement
until completion of Provider’s performance thereunder unless terminated by
Company for cause or convenience as provided below. Upon termination of this
Agreement by Company for cause, Company shall have the right to terminate any
and all Orders entered into hereunder.
17.3 Termination for Convenience. Company shall have the right to
terminate this Agreement or any Order in whole or in part at any time, with or
without cause, by giving Provider written notice specifying the extent of
termination at least [*] months prior to the
designated termination date.
17.4 Remedies Upon Termination for Convenience. In the event of
termination under Section 17.3, Provider shall be entitled to Services
Costs in accordance with the terms of this Agreement and the
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subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
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applicable Order up to the date of termination, as well as for Termination
Assistance Services to the extent requested by Company.
[*] In no event shall Company be liable to Provider
for any direct, indirect, special or consequential damages, lost profits,
penalties or costs arising out of any termination for convenience.
17.5 Termination for Cause by Company. In the event that:
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(i) |
Provider commits a material breach of this Agreement or an Order, which |
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(ii) |
Provider commits a material breach of this Agreement or an Order that is not |
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(iii) |
Provider commits a material breach of this Agreement or an Order that is not |
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(iv) |
Provider commits numerous breaches of its duties or obligations which |
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(v) |
Provider fails to furnish Company, upon Company’s reasonable request, with |
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(vi) |
Provider makes a general assignment for the benefit of its creditors, or a |
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(vii) |
an Event of Deteriorating Provider Condition (other than the events described |
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(viii) |
a KPI Default occurs; or |
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(ix) |
Provider otherwise persistently fails to meet the Service Levels; |
then Company may, by giving written notice to Provider, terminate this
Agreement, in whole or in part, or the applicable Order as of the date specified
in the notice of termination. If Company chooses to terminate this Agreement in
part, the Service Costs payable under this Agreement shall be equitably adjusted
to reflect those services that are terminated. Termination under this
Section 17.5 shall be without cost or penalty and without the payment of
any termination charges.
17.6 Termination for Cause by Provider. [*]
Any notice required pursuant to this Section 17.6 shall be sent in
accordance with the requirements of Section 32.3 to the addresses set
forth therein and a copy shall also be concurrently sent to the address set
forth below:
Vice President, Engineering
Amgen Inc.
Mailstop: 38-4-B
One Amgen Center Drive
Thousand Oaks, CA 91320-1799
Fax Number: [*]
Confidential
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subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
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17.7 Other Termination by Company. In the event:
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(i) |
Provider transfers, sells, assigns or otherwise disposes of (a) all or |
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(ii) |
Provider consolidates with or merges into another corporation or entity, or |
then Company may, by giving written notice to Provider, terminate this
Agreement, in whole or in part, or the applicable Order as of the date specified
in the notice of termination. If Company chooses to terminate this Agreement in
part, the Services Costs payable under this Agreement shall be equitably
adjusted to reflect those services that are terminated. Termination under this
Section 17.7 shall be without cost or penalty and without the payment of
any termination charges.
17.8 Remedies Upon Termination for Cause. In the event of termination
of this Agreement or any Order, without prejudice to other rights or remedies,
Company may complete performance of Provider’s obligations by whatever method
Company deems appropriate.
17.9 No Actual Default. If, after termination for cause under this
Article 17, it is determined for any reason that a Party was not in
default, the rights and obligations of the Parties shall be the same as if the
notice of termination had been issued as a termination for convenience.
17.10 Upon Termination. Without limiting the obligations of Provider
under Article 18, upon receipt of notice of termination, Provider shall
do the following unless otherwise specified by Company:
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(i) |
Incur no further obligations, including without limitation placement of |
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(ii) |
Mitigate costs associated with such termination; |
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(iii) |
Preserve any Work Product or other performance that is in progress or |
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(iv) |
Deliver all Work Product to Company in accordance with Company’s reasonable |
17.11 Discontinuance. On the date of termination, Provider shall
discontinue, and cause any of Provider Personnel to discontinue, performance
hereunder to the extent specified in the termination notice from Company;
provided, however, the provisions of this Section 17.11 shall not operate
to excuse Provider’s performance of Termination Assistance Services during the
Termination Assistance Period, in accordance with Article 18 of this
Agreement.
17.12 Termination of Dependent Orders. In the event that an Order is
terminated for cause, Company shall have the option to terminate any other
Orders identified therein as being dependent on the terminated Order.
17.13 Notice of Deteriorating Financial Condition. In the event of the
occurrence of any fact or circumstance relating to an Event of Deteriorating
Provider Condition, Provider shall immediately provide notification of such
event to Company (except to the extent Provider is precluded from making such
disclosure pursuant to applicable securities laws) and Provider shall use its
commercially reasonable efforts to (i) secure from all relevant third parties,
including Third Party Suppliers and Subcontractors, all rights reasonably
required for Company to continue to receive the Services and to exercise its
rights under this Agreement, and (ii) at the expense of Company, cooperate with
Company and any third party service Providers selected by Company, to establish
and implement a contingency plan to avoid
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disruption of Services in the event that Provider is unable to meet its
obligations under this Agreement. At any time that Provider is not a publicly
reporting company under the securities Laws of the United States, Provider
shall, within forty-five (45) days of the end of each calendar quarter, provide
Company with sufficient financial information to enable Company to determine
whether an Event of Deteriorating Provider Condition has occurred during such
calendar quarter. In the event that Company becomes aware of an Event of
Deteriorating Provider Condition for which Provider has not provided such
notification to Company, Company shall have the immediate right to take all
reasonable actions to ensure continued availability of the Services, either by
the Provider, Company or its third party designee, including, but not limited
to, pursuant to a Step-in in accordance with Article 7.
17.14 Survival. All provisions of this Agreement that by their nature
would apply to the Termination Assistance Services shall continue in effect
during the Termination Assistance Period. In addition, the provisions of
Sections 2.9, 4.9, 7.5, 9.1, 11.2, 11.3, 11.7, 12.15, 12.23(iv), 14.5, 14.7,
15.1, 15.2, 15.3, 15.4, 16.6, 18.6, 18.9, 20.2, 22.3, 23.3, 25.2, 25.3, 28.3,
28.4, 28.5, 28.6, 32.5, and 32.7 and Articles 17, 18, 27, 29, 30 and 32 shall
survive termination of this Agreement (and expiration of the Termination
Assistance Period), together with any other obligations of Provider that by
their nature would survive such termination.
18. TERMINATION ASSISTANCE SERVICES
18.1 Termination Assistance Services. Upon expiration or termination
of all or part of the Services or this Agreement for any reason, Provider shall
for a period of twelve (12) months (the “Termination Assistance
Period“), upon Company’s request and at Company’s expense, continue to
provide the Services that were provided prior thereto and any reasonable
cooperation requested by Company that may be required from Provider to
facilitate the efficient and orderly transfer of the affected Services to
Company or a third-party service provider, as applicable, or Company’s designee
(“Termination Assistance Services“). The rights of Company
under this Article 18 shall be without prejudice to the Parties’ rights
to pursue legal remedies for breach of this Agreement, either for breaches prior
to termination or during the period this Agreement is continued in force
post-termination. Ongoing Services during the Termination Assistance Period
shall be provided at the prevailing Services Costs in effect immediately prior
to such termination. Any material incremental costs incurred by Provider in
providing the Termination Assistance Services shall constitute a Change and
shall be subject to the Change Control Process. In the event Provider exercises
its termination rights pursuant to Section 17.6, then,
[*].
18.2 Development of Termination Plan. If and to the extent requested
by Company, whether prior to or upon expiration or termination of this Agreement
or during any Termination Assistance Period, Provider shall assist Company in
developing a termination plan which shall specify the tasks to be performed by
the Parties in connection with the Termination Assistance Services and the
schedule for the performance of such tasks. The plan shall include descriptions
of the Services, Service Levels, fees, documentation (such as operating manuals)
and access requirements that will promote an orderly transition of the Services,
and a list of all assets, software, licenses, personnel and other contracts to
be transitioned to Company or its designee.
18.3 Absolute Obligation. [*] Provider
acknowledges and agrees that it shall have an absolute and unconditional
obligation to provide Company with Termination Assistance Services. Provider’s
quality and level of performance during the Termination Assistance Period shall
continue to comply with the Standard of Care and all requirements of this
Agreement unless otherwise expressly approved in the Termination Plan.
18.4 Post-Termination Assistance. For a period of six (6) months
following the Termination Assistance Period, Provider shall: (i) at Company’s
expense, answer all reasonable and pertinent verbal or written questions from
Company regarding the Services; and (ii) deliver to Company any remaining
Company-owned reports and documentation still in Provider’s possession.
18.5 Transfer of Agreements. With respect to, Subcontracts, Supplier
Contracts, and contracts for any other third-party services applicable to the
terminated Services, Company shall have the right to have
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subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
37
such contracts assigned to Company provided that Company assumes all ongoing
obligations under such contracts from and after the effective date of such
assignment. With respect to Third Party Intellectual Property used by Provider
in connection with the performance of the Services that are subject to
Termination Assistance Services, during the Termination Assistance Period,
Provider shall, at the request of Company, assign the licenses of such Third
Party Intellectual Property to Company or its designee, provided that: (i)
Provider shall have the right to assign such licenses or contracts, and (ii)
Company shall assume all future contractual responsibility and liability under
such licenses and contracts, including payment of future license fees,
maintenance fees and other charges. In connection with any license or contract
transfer under this Paragraph, Company shall pay any transfer fees that the
Parties were unable to avoid through reasonable good faith efforts, unless
otherwise set forth in an Order.
18.6 Transfer of Software. No Provider Intellectual Property Rights
will transfer to Company upon expiration or termination of the Services except
as specifically permitted pursuant to this Section 18.6.
[*] Provider shall not be liable for any changes made
to the data by Company.
18.7 Transfer of Equipment. For any Provider Equipment that was used
to provide Services at the time of notice of termination or expiration of this
Agreement and/or to provide to Termination Assistance Services, Provider shall
allow Company or its designee to (a) purchase, at fair market value at the time
of Company’s purchase, any equipment supplies, tools or equipment owned by
Provider that is used primarily or exclusively to provide the terminated
Services; and/or (b) assume the lease of any equipment leased by Provider.
Following the Termination Assistance Services period, each Party shall return to
the other Party any assets owned by such other Party to which it is not given
ongoing rights as part of the termination plan.
18.8 Transfer of Personnel. Notwithstanding Section 2.9 above,
Company or its Affiliates or designees shall have the right to extend offers of
employment to any and all Provider Personnel, including Key Provider Personnel,
primarily assigned to or working on the applicable terminated Services at the
time of notice of termination or expiration of this Agreement and/or to provide
to Termination Assistance Services. Provider shall provide reasonable access to
these employees. Provider [*] shall not
[*] interfere with Company’s employment efforts.
18.9 Other Transfer. Upon expiration or termination of this Agreement,
or at the end of the Termination Assistance Period, Provider shall transfer to
Company or its designees (except as provided below) (i) copies of all software
transferred or licensed to Company pursuant to this Article 18, (ii) all
equipment transferred or licensed to Company pursuant to this Article
18, (iii) to the extent available or requested by Company to be so
documented, copies of all applicable requirements, standards, policies, reports
and report formats, user manuals, technical manuals, system architecture,
processes, operating procedures and other documentation relating to the
terminated Services, and (iv) all know-how of Provider reasonably required to
perform the Services.
19. COMPENSATION
19.1 Contract Price and Pricing Schedule. Pricing structures for the
Services are set forth in Exhibit D (Pricing) of this Agreement and each
Order shall set forth one or more pricing structures under which the applicable
Services shall be performed, which may include the pricing structures set forth
in Exhibit D (Pricing). Company shall pay Provider all fees and
compensation due to Provider in connection with such Services in accordance with
the terms of Exhibit D (Pricing) and other applicable terms of this
Agreement and the applicable Order (“Services Costs“), which
Services Costs shall include the Management Fees, Reimbursable Costs, Incentive
Compensation and any Provider’s Shared Savings payable to Provider pursuant to
Exhibit D (Pricing) or any Order. With respect to all Services subject to
acceptance testing, Company shall have no obligation to pay Provider for any
Services unless and until such Services have successfully met the acceptance
testing requirements and all other requirements prerequisite to payment in
accordance with this Agreement and any relevant Order. Company shall not be
billed for any charges or expenses other than those Services Costs or
Reimbursable Costs stated and expressly authorized in this Agreement or an
Order.
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Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
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19.2 Reimbursable Costs. Company may agree to pay or reimburse
Provider for some or all Reimbursable Costs incurred by Provider in connection
with its performance under this Agreement or an Order. Such Reimbursable Costs
shall be subject to the pricing structures set forth in Exhibit D
(Pricing), including a [*]. In no event shall Company
be obligated to reimburse Provider for any Reimbursable Costs (i) that are not
authorized in writing by Company, (ii) that are not Reimbursable Costs in
accordance with this Agreement or the applicable Order, or (iii) that are
incurred in excess of the Company-approved amount or
[*].
19.3 Charge Increases and Decreases. Unless otherwise agreed in
writing by Company or as otherwise provided in this Agreement or an Order,
Provider shall not increase the Service Costs above the prices for such Services
specified in this Agreement or the applicable Order. On mutual agreement of the
Parties, Provider may decrease the Services Costs payable for any Services to
reflect changed market conditions and/or improvements in technology.
19.4 No Services Costs for Errors or Defective Performance. In no
event shall Provider be entitled to receive Services Costs for charges to the
extent arising out of or resulting from (i) any costs or expenses incurred by
the Provider or its Affiliates or payable by Company to remedy any error,
omission or mistake of Provider, its Affiliates or their respective Personnel or
breach of this Agreement or any Order by Provider, its Affiliates or their
respective Personnel, or (ii) any incremental or additional costs or expenses
incurred by Provider or its Affiliates or payable by Company to remedy any
error, omission or mistake of Provider, its Affiliates or their respective
Personnel or breach of this Agreement or any Order by Provider, its Affiliates
or their respective Personnel.
20. TAXES
20.1 Taxes, Exemptions and Reductions. Company reserves the right to
modify this Agreement, as necessary, to receive the benefits of any available
tax exemptions or reductions. Provider shall cooperate with Company’s efforts to
realize the benefits of any tax exemptions or tax structures that may be
available to Company in connection with any Order issued pursuant to this
Agreement or any element(s) of the Services.
20.2 Tax Claims. If any Governmental Authority makes any claim with
respect to any taxes for which Company may be responsible, Provider shall notify
Company regarding such claim immediately after Provider’s discovery of such
claim. Further, Provider shall reasonably assist Company with the investigation
and assessment of such claim. If required by Company, Provider shall challenge
the imposition of any taxes for which Company may be responsible or request a
refund of such taxes. In accordance with the requirements of Exhibit Q
(Invoicing and Accounting Requirements), Company shall reimburse Provider for
reasonable attorneys’ fees incurred in challenging any imposition of taxes or
requesting a refund of such taxes pursuant to the preceding sentence.
20.3 Government Tax Filings. Provider shall file with the Internal
Revenue Service and provide to all Subcontractors any Form 1099 or other report
required by relevant sections of Applicable Law, including the Internal Revenue
Code of 1986, as amended, or any successor provisions. Provider shall withhold
from payments to such Subcontractors and remit promptly to the Internal Revenue
Service, all amounts necessary to insure compliance with relevant sections of
Applicable Law, including the Internal Revenue Code of 1986 as amended, or any
successor provisions. Provider shall provide copies of all such reports to
Company promptly after filing the same with the Internal Revenue Service or
other Governmental Authority.
21. INVOICING AND PAYMENT
21.1 Invoicing. Provider shall invoice Company for the Services in
accordance with the requirements of Exhibit Q (Invoicing and Accounting
Requirements) to this Agreement.
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
39
21.2 Timing of Payments; Disputes. Company may dispute Provider
invoices in accordance with the provisions of Exhibit Q (Invoicing and
Accounting Requirements) to this Agreement. Company shall pay all undisputed
invoice amounts in accordance with the provisions of Exhibit Q
(Invoicing and Accounting Requirements) to this Agreement.
21.3 Security Interest. To the extent of any progress payments made by
Company arising from or related to this Agreement, Provider grants to Company a
security interest in all raw materials and components committed by or on behalf
of Provider for use in connection with this Agreement or any Order, wherever
located. Upon Company’s request, Provider shall execute a written security
agreement and financing statement that grants the foregoing security interest to
Company in form and content satisfactory to Company.
21.4 Right of Off-Set. With respect to any amount that (i) should be
reimbursed to a Party under this Agreement or an Order, or (ii) is otherwise
payable to a Party under this Agreement or an Order, such Party may, upon notice
to the other Party, deduct the entire amount owed to such Party from the
Services Costs otherwise payable or expenses owed to the other Party pursuant to
this Agreement or the applicable Order. The rights granted under this Paragraph
shall not apply to amounts relating to services provided by third parties
relative to Provider’s provision of Services. Any credits due Company that are
not applied against Provider’s invoices or that are due to Provider by Company
shall be paid to within thirty (30) days after receipt of written request for
such payment.
21.5 Withholding Payment. Company may, in whole or in part, decline to
approve any request for payment hereunder, withhold or offset against any
payment or, due to subsequently discovered evidence or inspection, nullify any
payment previously made to such extent as may be necessary, in Company’s
reasonable opinion, to protect Company from loss due to Provider’s failure to
meet its obligations hereunder. The conditions or occurrences for which Company
may withhold or offset against any payment include without limitation Provider’s
failure to properly make payments to Subcontractors in accordance with
Section 13.8. If, through subsequently discovered evidence or subsequent
observations, Company becomes aware that it could have withheld approval and
payment (but did not), Company reserves the right to deduct the applicable
amount from later invoices or obtain a credit from Provider for the applicable
amount. The provisions of this Section 21.5 shall not lessen or diminish,
but shall be in addition to, the right or duty of Company to withhold payments
under the provisions of Applicable Law respecting the withholding of sums due to
Provider.
22. GOVERNMENT
22.1 Changes to Applicable Laws. Provider shall notify Company of (i)
any changes or anticipated changes in Applicable Laws of which Provider is aware
or should be aware that may impact performance of the Services, (ii) the impact
of such changes on performance of Provider’s obligations hereunder and the
intent of this Agreement, and (iii) recommendations for modifications to such
performance to comply with such changes, subject to Company’s approval pursuant
to the Change Control Process.
22.2 Equal Opportunity/Affirmative Action. For any performance
required under this Agreement (i) between two business entities based in the
United States of America and (ii) being performed in the United States of
America and/or its territories, Provider agrees that, unless otherwise
specifically exempted, this Agreement shall be performed in full compliance with
all Applicable Laws, including without limitation applicable equal
opportunity/affirmative action requirements; of Title VII of the Civil Rights
Act of 1964; Executive Orders No. 11141 and 11246, as amended; Sections (1) and
(3) of Executive Order No. 11625 relating to the promotion of Minority Business
Enterprises; Americans with Disabilities Act; Age Discrimination in Employment
Act; Fair Labor Standards Act; Family Medical Leave Act; the Vietnam Era
Veterans’ Readjustment Assistance Act of 1974; Rehabilitation Act of 1973; and
all corresponding implementing rules and regulations, all of which, including
without limitation the contract clauses required and regulations promulgated
thereunder, are incorporated herein by reference.
22.3 Inspections and Government Contacts. To the extent that Provider
is or becomes aware of meetings with or inspections by Governmental Authorities
regarding Provider’s obligations hereunder,
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Provider shall notify Company within one (1) business day of becoming aware
of any such meeting or inspection with any such Governmental Authority. Company
shall have the right to be present at all such meetings and inspections that are
(i) of general nature; or (ii) specific to Provider’s conduct of Services under
this Agreement or any applicable Order. Provider shall provide Company with an
opportunity to comment on drafts of documents Provider is required to submit to
Governmental Authorities pursuant to its obligations hereunder. Provider shall
submit to Company copies of documents to be submitted to Governmental
Authorities or insurance companies relating to Provider’s obligations hereunder,
including, without limitation, reports of accidents or injuries occurring on
Company’s premises. Notwithstanding anything contained in this Agreement to the
contrary, Provider shall not initiate or participate in any communications with
any Governmental Authorities concerning the subject matter hereof unless
required by law or requested to do so by Company and, then, only upon prior
consultation with Company.
22.4 Ethics and Conflict of Interest. In its performance of its
obligations hereunder, Provider shall adhere to business practices that meet and
are in the spirit of Applicable Laws and ethical principles, including, without
limitation the following:
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(i) |
All transactions undertaken in connection with Provider’s obligations |
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(ii) |
Provider shall perform its obligations hereunder and conduct itself with |
23. SAFETY
23.1 Safety Obligations. Provider and Provider Personnel shall comply
with the business practices, hours, working conditions and Company Policies
related to Provider’s performance hereunder, including, but not limited to,
Company Policies regarding safety attached or listed in Exhibit I
(Company Standard Operating Procedures) and Exhibit J (Company Standard
Policies). Provider shall be solely responsible to inquire, inspect and acquaint
itself with all conditions at Company Facilities, subject to Company’s
obligation to disclose pertinent information. In the performance of its
obligations hereunder, Provider shall at all times: (i) require the presence, as
appropriate, of competent supervisory personnel; (ii) keep the Company
Facilities clean and safe, including without limitation keeping the Company
Facilities free from debris and hazards; and (iii) be responsible for the safe
and orderly performance of such obligations in accordance with this Agreement,
any Orders and all Applicable Laws. Upon expiration or termination of this
Agreement or, if applicable, expiration of the Termination Assistance Period,
Provider shall remove all of Provider’s equipment and unused material from the
Company Facilities, thoroughly clean up all refuse and debris, and leave the
site neat, orderly and in good condition, normal wear and tear excepted. In
addition, to the extent Provider performs such obligations on Company
Facilities, Provider shall (i) cooperate with Company and comply with Company’s
hours, working conditions and Company Facilities’ policies; and (ii) repair or
replace to Company’s satisfaction any property that is damaged or destroyed by
Provider or Provider Personnel. Provider shall notify Company as promptly as
possible upon becoming aware of an inspection under, or any alleged violation of
the Occupational Safety and Health Act or similar Applicable Laws in connection
with the Services. Provider shall be responsible for removing or disposing of
any hazardous materials that it uses in providing Services and for the
remediation of any areas impacted by the release of such hazardous materials.
23.2 Safety Exhibit. Provider shall meet the obligations set forth in
the Safety Appendix attached hereto as Exhibit L (Safety Appendix), as may be
revised by Company from time to time (subject to Section 4.6), and any
additional safety requirements specified in an Order.
23.3 Hazardous Materials.
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(i) |
To the extent that Company has actual knowledge of the presence of hazardous |
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pose hazards to human health or safety of Provider’s or Provider’s Personnel |
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(ii) |
Provider must comply with all Applicable Laws in the performance of its |
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(iii) |
In the event that the removal or remediation of hazardous or toxic substances |
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Substance Condition, and Provider shall give full cooperation to persons |
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(iv) |
In the event that hazardous or toxic substances were brought onto and |
23.4 Company Facilities.
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(i) |
Provider shall use the Company Facilities for the sole and exclusive purpose |
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(ii) |
Provider shall use the Company Facilities in an efficient manner and in a |
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(iii) |
Provider shall keep the Company Facilities in good order, not commit or |
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(iv) |
Provider shall permit Company Personnel to enter into those portions of the |
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(v) |
Provider shall not make improvements or changes involving structural, |
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(vi) |
When the Company Facilities are no longer required for performance of the |
24. SECURITY
24.1 Access. Company shall provide the Project Staff with access to
Company Facilities during normal working hours as reasonably required to perform
the Services. If any Provider Personnel require access to a Company site or
facility outside of normal working hours, Provider shall request the necessary
permission from Company, which permission shall not be unreasonably withheld,
conditioned or delayed.
24.2 Security Obligations on Company’s Premises. At all times when
present at Company’s premises, Provider and Provider Personnel shall comply with
Company Policies, including those related to security.
24.3 Access to Provider’s Premises. If requested by Company in
connection with Provider’s performance of this Agreement, Provider shall provide
safe and convenient access for Company to Provider’s premises.
24.4 Restrictions on Access. Any Provider Personnel who are required
to enter any of Company’s premises may be required to complete a badge request
form and must adhere to all security requirements of Company’s security manager.
Such Personnel of Provider may also be required to sign Company’s Confidential
Disclosure and Information Security Agreements and will have restricted access
to Company’s Facilities for business purposes only from 8:30 a.m. to 5:30 p.m.
Monday through Friday, unless otherwise pre-approved by Company. Upon completion
of such Personnel’s assignment at Company’s Facilities and/or in the event of
termination of this Agreement, all badges shall be returned immediately to
Company’s Security Department.
24.5 Background Checks. No Personnel of Provider will (i) perform
Services at a Company site, (ii) receive an access badge from Company, (iii)
drive Company-owned or leased vehicles or (iv) routinely transport Company
Personnel, without Provider, first providing to Company’s Security Department
the Background Check Certification Form attached hereto as Exhibit M
(Background Check Certification Form) for the applicable Personnel. For all
Provider Personnel (including Transitioned Employees), Provider shall perform,
or shall use an outside agency to perform, the background check and all legally
required notifications to Provider Personnel set forth in the Background Check
Certification Form. Failure or refusal to provide the requisite Background Check
Certification Form, or submission of a Background Check Certification Form
without having performed the requisite background check, shall constitute a
breach hereunder for which Company may terminate this Agreement immediately for
cause, notwithstanding any right of Provider to cure. Provider shall return the
appropriate Background Check Certification Form for Provider’s representatives
to the address set forth below the applicable Company site listed at the bottom
of such form, prior to the Provider representative beginning his/her assignment
at or for Company. In addition, Provider will provide verification to Company
that it performed similar background investigations for all existing Provider
Personnel regularly involved in the provision of Services at the time such
employees were hired by Provider or at some subsequent time that is prior to
their regular involvement in the provision of Services to Company.
24.6 Information Systems Security. In the event this Agreement or an
Order provides for remote access to Company’s electronic information systems
(“CIS“) by Provider, Provider shall at all times protect CIS
through procedures and tools deemed satisfactory to Company. Such procedures and
tools shall include without limitation:
|
(i) |
A mechanism to determine and immediately report to Company possible security |
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(ii) |
Controls to ensure the return or destruction, at Company’s direction, of |
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(iii) |
A process for maintaining the confidentiality, integrity and availability of |
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(iv) |
Methods for controlling access to CIS, which shall include without limitation |
24.7 Access to CIS. Prior to Provider remotely accessing CIS, in order
for Company to determine its satisfaction with the foregoing procedures and
tools, Provider shall submit to Company:
|
(i) |
A list of established connections that Provider has with the electronic |
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(ii) |
A copy of Provider’s security policies applicable to electronic information |
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(iii) |
A copy of Provider’s most recent external penetration test or network audit |
24.8 CIS Audit. Without limiting any rights and remedies hereunder,
Company shall have the right to audit and monitor the procedures and tools
required pursuant to Sections 24.6 and 24.7 to ensure compliance
with the requirements hereunder. Company shall have the right to revoke or limit
Provider’s access to CIS at any time, including without limitation in the event
Provider is deemed by Company, in its sole discretion, to have failed to comply
with the requirements of this Article 24. In addition to its other
obligations hereunder, Provider shall return to Company immediately upon any
such revocation any hardware and software provided to Provider by or on behalf
of Company for use with CIS.
24.9 Access Protections. All Provider interconnectivity to Company
computing systems and/or networks and all attempts at such interconnectivity
shall be only through Company’s security gateways/firewalls. Provider will not
access, and will not permit unauthorized persons or entities to access, Company
computing systems and/or networks without Company’s express written
authorization, and any such actual or attempted access shall be consistent with
any such authorization.
24.10 Viruses. Provider shall use the latest version available of a
mutually agreed virus detection/scanning program (i) prior to any attempt to
access any of Company’s computing systems and/or networks, (ii) prior to use of
any software in connection with the Services, and (iii) prior to delivery or
transfer of any software to Company. Upon detecting a virus, all attempts to
access Company’s computing systems and/or networks shall immediately cease and
shall not resume until any such virus has been eliminated. Without limiting the
foregoing, each Party shall use commercially reasonable efforts to avoid the
transmission of any virus from its own systems to the other Party’s systems.
24.11 Information Systems. To the extent Provider creates, uses or
modifies software or information systems in connection with providing the
Services, Provider represents and warrants that all such software or information
systems shall be maintained in a fully validated state.
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24.12 Security Breaches. In the event of an attack or threatened or
suspected intrusion or other breach of security against any computing systems
and/or networks, hardware and/or software used to provide the Services, Provider
shall, at its expense, and without limiting the Service Level obligations
hereunder, take whatever steps are necessary to immediately protect such
systems, networks, hardware and/or software and prevent any further breaches,
including, without limitation: (i) preventing further access to the systems,
networks, hardware and software from the source of the attack, (ii) immediately
backing up the affected systems and any related systems, (iii) enhancing
defensive systems to prevent any similar breaches in the future, (iv) contacting
the ISP where the threat or attack originated and/or law enforcement
authorities; (v) investigating the extent of the damage, if any, (vi) producing
an incident report detailing Provider’s findings and providing such report to
Company, (vii) providing supplemental monitor traffic from the attack source
until risk of further attacks is deemed to be eliminated, and (viii) temporarily
disabling the Services, if warranted by the circumstances and with prior
approval of Company, provided that such Services are reinstated as soon as the
risk of further breaches is deemed to have been eliminated or adequate
additional security measures have been implemented. Provider shall immediately
contact Company upon discovering such an attack or threatened or suspected
intrusion or breach of security and provide to Company all information
reasonably requested, and the Parties shall mutually agree on appropriate
measures to be taken with respect thereto.
24.13 Company Disabling Access. In the event that Company shall
disable Provider’s access to Company’s computing systems and/or networks,
Provider shall be excused from failure to meet any Service Levels only to the
extent such failure is a direct result of such disabled access, provided that
such disabled access is not caused by Provider or is initiated to protect
Company’s computing systems and/or networks from a virus or disabling device on
Provider’s computing systems and/or networks.
24.14 Office Space. To the extent Company agrees to provide office
space to Provider, Company shall provide Project Staff with reasonable office
space, office furnishings, janitorial services and utilities (including air
conditioning) consistent with that which Company provides to its own similarly
situated Personnel. Provider may not provide services to other customers of
Provider from space provided by Company without Company’s prior written consent.
Company shall have the option during the Term to relocate Provider Personnel
located on Company’s premises to other comparable locations or facilities within
the same metropolitan area.
24.15 Equipment Space. In the event that Provider shall be required to
house Equipment on Company premises in connection with the Services, Company
shall provide Provider with adequate space, air conditioning, and security for
such Equipment. Such space shall meet the reasonable operating specifications
and environmental conditions specified by Provider.
24.16 Company Assets. All assets owned, leased or otherwise held by
Company during the Term or Termination Assistance Period (“Company
Assets“) shall at all times remain the sole property of Company;
provided, however, Provider shall operate, repair, maintain and replace Company
Assets as specified in this Agreement. Company Assets required by Provider to
perform its obligations hereunder are set forth in detail in Exhibit R,
(Company Assets) or the relevant Order. Provider shall have access to and use of
such Company Assets as set forth herein or in the relevant Order(s) and may
manage such assets as required or appropriate to enable Provider to properly
perform the Services.
25. REGULATORY COMPLIANCE
25.1 Compliance with Regulatory Requirements. Provider understands and
agrees that the Services provided hereunder may be in support of an IND or NDA
submissions to the U.S. Food and Drug Administration (“FDA“)
and/or similar regulatory submissions to any Governmental Authority and Provider
shall provide such Services and conduct its activities hereunder in compliance
with all Applicable Laws related to such submissions.
25.2 Information and Support Involving Governmental Authorities.
Provider shall provide Company with all cooperation and assistance reasonably
required by Company in connection with informal presentations, administrative
hearings or court proceedings involving any Governmental Authority or other U.S.
or international agency, and in private party litigation, to the extent such may
be related to a project initiated hereunder.
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25.3 Documentation. Provider will prepare, maintain, and safeguard
complete and accurate documentation regarding the Services provided hereunder in
compliance with all Applicable Laws, and the terms of this Agreement.
25.4 Additional Warranties and Covenants Relating to Regulatory
Compliance. Provider represents, warrants and covenants that (i) it has
significant expertise and experience in providing services of the kind
contemplated by this Agreement, and (ii) it is familiar with Applicable Laws
relating to the Services, including, but not limited to, the Health Insurance
Portability and Accountability Act of 1996 and its implementing regulations set
forth at 45 Code of Federal Regulations (“C.F.R.“) Parts 160
and 164, the Federal Food, Drug, and Cosmetic Act and the regulations
promulgated pursuant thereto, and current good clinical practices and current
good laboratory practices (each as defined under Applicable Laws).
25.5 Deliverables. Provider represents, warrants and covenants that
each Deliverable (1) shall conform to the specifications and requirements for
such Deliverable agreed upon by the Parties, and (2) shall comply with cGMP, as
applicable.
25.6 No Debarment. Provider represents and warrants that neither
Provider nor any of Provider Personnel rendering services in connection with
this Agreement is presently: (i) the subject of a debarment action or is
debarred pursuant to the Generic Drug Enforcement Act of 1992, (ii) the subject
of a disqualification proceeding or is disqualified as a clinical investigator
pursuant to 21 C.F.R. §312.70, (iii) the subject of an exclusion proceeding or
excluded from participation in any federal health care program under 42 C.F.R.
Part 1001 et seq., or (iv) listed on the United States Department of Health
& Human Services, Office of Research Integrity’s Administrative Actions
Listing. Provider shall notify Company immediately upon any inquiry concerning,
or the commencement of any such proceeding concerning Provider or any of its
Personnel.
25.7 HIPAA. To the extent that Provider requires access in order to
provide the Services or is otherwise provided access, Provider shall adhere to
all current and future laws pertaining to privacy or confidentiality of patient
information, including without limitation, the Health Insurance Portability and
Accountability Act of 1996 (45 C.F.R. parts 160 and
164)(“HIPAA“), and regulations, including without limitation,
laws and regulations related to medical records and patient privacy,
confidentiality, and consumer protection.
26. REPRESENTATIONS AND WARRANTIES
26.1 Mutual Representations. Each Party hereby represents and warrants
to the other Party as follows:
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(i) |
Due Authorization. Such Party is a corporation duly organized and in |
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(ii) |
Due Execution. This Agreement has been duly executed and delivered by |
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(iii) |
No Conflict. Such Party’s execution, delivery and performance of this |
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(iv) |
Duly Licensed. Such Party is duly licensed, authorized or qualified to |
26.2 Provider Representations. Provider hereby represents, warrants
and covenants to Company as follows:
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(i) |
Infringement. The performance of the Services, the use of the Work |
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(ii) |
Quality. In performing the Services, Provider shall meet the |
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(iii) |
Compliance with Laws. In performing under this Agreement, Provider |
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(iv) |
Kickbacks. No employee, agent or representative of Provider has been |
||
|
(v) |
Title. Provider shall have good, free and clear title to all Work |
||
|
(vi) |
Deliverables. At the time of delivery thereof to Company, the Work |
||
|
(vii) |
Required Consents. Provider has obtained and possesses any and all |
||
|
(viii) |
Capability to Perform. Provider is capable of and will perform its |
||
|
(ix) |
Financial Condition. Provider is financially solvent, able to pay its |
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|
(x) |
Employment Issues. Provider is an employer subject to, and shall |
||
|
(xi) |
Third Party Intellectual Property. No Work Product provided hereunder |
||
|
(xii) |
No Conflict. Provider’s execution, delivery and performance of this |
||
|
(xiii) |
Personnel. Provider shall use an adequate number of qualified |
||
|
(xiv) |
Technology and Equipment. Provider shall provide the Services using |
||
|
(xv) |
Provider Due Diligence. Prior to entering into this Agreement, |
26.3 Warranties Not Exclusive. The warranties provided hereunder are
not sole or exclusive, shall not be construed to modify or limit in any way any
rights or remedies which Company may otherwise have against Provider, and are in
addition to any other express or implied warranties set forth in this Agreement
or provided by law. The warranties set forth herein do not extend to any
Equipment or Services that have been intentionally misused by Company contrary
to clear, documented instructions without the supervision of and prior written
approval of Provider, or if Company removes or renders illegible the relevant
Provider serial numbers or warranty date decals.
26.4 Third Party Warranties. Provider shall secure on the Company’s
behalf the maximum warranty period available for all goods and services provided
by third parties; which period, unless expressly
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49
agreed to by Company in writing and on a case-by-case basis, shall be for a
period of no less than eighteen (18) months after completion of the subject
Services. Without limiting the other provisions of this Article 26,
Provider shall assign to Company all warranties provided by Subcontractors or
other third parties who furnish goods and/or services in connection with
Provider’s performance hereunder. Provider warrants that it shall perform its
obligations in such manner so as to preserve any such third party warranties.
Provider shall use commercially reasonable efforts to assist Company in
enforcing such third party warranties. In the event that Provider’s best efforts
are unsuccessful, Provider shall perform all obligations under such third party
warranties at Provider’s expense.
26.5 Warranty Corrective Actions. In the event Provider fails to meet
a warranted condition under this Agreement, Provider shall promptly identify an
action plan for (i) correcting such warranted condition; and (ii) correcting any
damages arising out of or resulting from Provider’s failure to meet such
warranted condition. Such action plan shall be subject to Company’s approval and
be promptly implemented by Provider to Company’s satisfaction. The
implementation of such action plan and all actions taken in furtherance thereof
shall be governed by the terms of this Agreement. Provider shall bear all costs
associated with and incidental to such implementation. If Provider refuses or is
not able to promptly identify or implement an action plan satisfactory to
Company, Company may take corrective actions as it sees fit, all at Provider’s
expense.
27. CONFIDENTIALITY
27.1 Confidentiality. Each Party shall maintain in confidence all
Confidential Information of the other Party, and shall not disclose such
Confidential Information to any third party except to those of its Personnel as
are necessary in connection with the receiving Party’s activities as
contemplated by this Agreement, and shall not use Confidential Information of
the other Party for any purpose other than the performance of its obligations
hereunder. In maintaining the confidentiality of Confidential Information of the
other Party, each Party shall exercise the same degree of care that it exercises
with its own confidential information, and in no event less than a reasonable
degree of care. Each Party shall ensure that each of its Personnel holds in
confidence and makes no use of the Confidential Information of the other Party
for any purpose other than those permitted under this Agreement or otherwise
required by law. Each Party shall clearly and completely convey the requirements
of this Article 27to all of its Personnel to ensure such requirements are
understood and followed. [*]
27.2 Exceptions. The obligation of confidentiality contained in this
Agreement shall not apply to the extent that a Party can demonstrate that (a)
the disclosed information was at the time of such disclosure to such Party
already in (or thereafter enters) the public domain other than as a result of
actions of such Party or its Personnel in violation hereof; (b) the disclosed
information was rightfully known to such Party without any obligation of
confidentiality prior to the date of disclosure to such Party; (c) the disclosed
information was received by such Party on an unrestricted basis from a source
unrelated to any Party to this Agreement and not under a duty of
confidentiality; or (d) the information was independently developed by such
Party without use of or reference to Company’s Confidential Information. In the
event that the Party receiving Confidential Information receives a request from
a third party, pursuant to a valid subpoena, legally valid governmental
authority request, or other valid legal request, that requires it to disclose
Company’s Confidential Information, prior to disclosing such Confidential
Information or Company Data, such Party shall (i) give the other Party prompt
(but in no event later than forty eight (48) hours after receipt of the request)
prior written notice of the requested disclosure which notice shall include a
copy of such subpoena or request, (ii) use reasonable efforts to resist
disclosing the Confidential Information, (iii) cooperate with the other Party on
request to obtain a protective order or otherwise limit the disclosure of the
Confidential Information, (iv) consent to an injunction or protective order and
not oppose the other Party’s request to intervene, and (v) prior to such
disclosure, provide a letter from its counsel confirming that the Confidential
Information is, in fact, required to be disclosed. A disclosure of Confidential
Information in accordance with the preceding sentence of this Section
27.2 shall not be deemed a breach of the confidentiality obligations
hereunder.
27.3 Unauthorized Disclosure. Each Party acknowledges and confirms
that the Confidential Information of the other Party constitutes proprietary
information or trade secrets valuable to the other
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
50
Party, and that the unauthorized use, loss or outside disclosure of such
Confidential Information may cause irreparable injury to the other Party. Each
Party shall notify the other Party immediately upon discovery of any
unauthorized use or disclosure of Confidential Information, and will cooperate
with the other Party in every reasonable way to help regain possession of such
Confidential Information and to prevent its further unauthorized use.
27.4 Injunctive Relief. Each Party acknowledges that monetary damages
is not a sufficient remedy for unauthorized disclosure of Confidential
Information of the other Party and that the other Party shall be entitled,
without waiving other rights or remedies, to such injunctive or equitable relief
as may be deemed proper by a court of competent jurisdiction.
27.5 Return of Information. Upon the earlier of (i) completion of the
Services to be performed under each Order, (ii) expiration or termination of an
Order or this Agreement, or (iii) a written request by the other Party, each
Party shall return to the other Party all Confidential Information in its
possession or control, including any copies, reproductions, or derivative works
thereof.
27.6 Company Data. All Company Data is and shall remain the property
of Company and shall be deemed Confidential Information of Company. Except with
the prior written consent of Company, Company Data shall not be (i) used by
Provider other than in connection with providing the Services, (ii) disclosed,
sold, assigned, leased or otherwise provided to third parties by Provider, (iii)
commercially exploited by or on behalf of Provider, or (iv) allowed by Provider
to be used or disclosed for any such purpose by third parties. Upon the request
of Company, Provider shall (i) at Company’s expense, promptly return to Company,
in the format and on the media requested by Company, all Company Data, and (ii)
erase or destroy all Company Data in Provider’s possession. Any archival tapes
or other media containing Company Data shall be used by Provider solely for
back-up purposes.
27.7 No Implied Rights. Subject to the provisions of Article
11, each Party’s Confidential Information shall remain the property of that
Party. Nothing contained in this Section 27.7 shall be construed as
obligating a Party to disclose its Confidential Information to the other Party,
or as granting to or conferring on a Party, expressly or impliedly, any rights
or license to the Confidential Information of the other Party, and any such
obligation or grant shall only be as provided by other provisions of this
Agreement.
28. RISK ALLOCATION
28.1 Insurance Coverage. Provider shall at all times during the Term
and Termination Assistance Period maintain the insurance coverage set forth in
Exhibit O (Insurance Provisions). The insurance obligations hereunder
shall be in addition to and in no way be construed to limit the indemnification
obligations set forth herein.
28.2 Force Majeure. A “Force Majeure Event” shall be
an event, occurrence or circumstance that (a) directly impacts the Company
Facilities; (b) directly impacts the Party’s performance of its obligations that
must be performed on the Company Facilities; and (c) is caused, directly or
indirectly, by acts of God, war, riots, terrorism, embargos, industry-wide
strikes and boycotts, acts of public enemy, acts of military authority,
earthquake, fire or flood; provided that (i) such Party is without fault or
negligence in causing such delay; (ii) such delay could not have been prevented
by reasonable precautions taken by such Party, including without limitation the
use of alternate sources or workaround plans; (iii) such Party uses commercially
reasonable efforts to recommence performance of such obligations whenever and to
whatever extent possible following the Force Majeure Event; and (iv) such Party
immediately notifies the other Party by the most expedient method possible (to
be confirmed in writing) and describes at a reasonable level of detail the
circumstances causing the delay. A Party shall not be liable for any delay in
performance of its obligations hereunder if and to the extent such delay is
caused by a Force Majeure Event. During the duration of the Force Majeure Event,
the Party so affected shall use its reasonable commercial efforts to avoid or
remove such Force Majeure Event and shall take reasonable steps to resume its
performance under this Agreement with the least possible delay. Whenever a Force
Majeure Event causes Provider to allocate limited resources between or among
Provider’s customers, Company shall receive priority allocation of such
resources. Notwithstanding anything to the contrary in this
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51
Paragraph, in the event Provider’s performance under this Agreement or any
Order(s) is delayed for a period of thirty (30) days or more due to a delay
excusable under this Section 28.2, Company may terminate this Agreement
and/or such Order(s) immediately upon notice to Provider.
28.3 Consequential Damages. SUBJECT TO SECTION 28.5, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
28.4 Limitation of Liability. Subject to Section 28.5, each
Party’s total liability to the other per calendar year, whether in contract or
in tort (including breach of warranty, negligence and strict liability in tort)
shall be limited to an amount equal to [*].
28.5 Exceptions. The limitations set forth in Section 28.3 and
Section 28.4 shall not apply with respect to: (1) damages occasioned by
the unlawful acts or omissions, willful misconduct or gross negligence of a
Party; (2) claims that are the subject of indemnification hereunder; (3) breach
of Article 27; and (4) damages occasioned by improper or wrongful
termination of this Agreement or abandonment of the Services by Provider; (5)
Service Costs payable to Provider by Company in accordance with this Agreement
or payable by Provider to its Personnel; and (6) any
[*].
28.6 Mitigation. Each Party shall have a duty to mitigate damages for
which the other Party is responsible.
29. INDEMNIFICATION
29.1 Provider Indemnification. Provider shall defend, indemnify and
hold harmless Company, its Affiliates, and their respective officers, directors
and Personnel (the “Company Indemnified Parties“) from and
against any and all third party (for purposes of this Section, “third party”
shall include Provider Personnel) suits, actions, legal or administrative
proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees,
penalties, fines and expenses (including without limitation attorneys’ fees and
expenses (both Company’s in-house and outside attorneys), and costs of
investigation, litigation, settlement, and judgment)
(“Losses“) arising out of or related to:
|
(i) |
Claims arising out of or related to breach of Provider’s representations, |
||
|
(ii) |
Breaches of Article 27; |
||
|
(iii) |
Any and all acts or omissions of Provider or its Personnel (unless performed |
||
|
(iv) |
Any and all acts or omissions of Provider that results in the breach by a |
||
|
(v) |
Relating to Provider’s failure to observe or perform any duties or |
Confidential
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Securities and Exchange Commission.
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|
(vi) |
Claims that the performance or use of the Services, or that the Deliverables, |
||
|
(vii) |
Any claim by Provider Personnel against any Company Indemnified Party |
||
|
(viii) |
Any claim or action by, on behalf of, or related to, Affected Personnel to |
||
|
(ix) |
Any claims relating to any Transitioned Personnel arising before, on or after |
||
|
(x) |
[*]; and |
||
|
(xi) |
Claims arising from a breach of Article 18. |
29.2 Company Indemnification. Company shall indemnify and hold
harmless Provider, its Affiliates, and their respective officers, directors and
Personnel (the “Provider Indemnified Parties“) from and against
any and all Losses arising out of or related to:
|
(i) |
Claims arising out of or related to breach of Company’s representations, |
||
|
(ii) |
The acts or omissions of Company or its Personnel resulting in any death, |
||
|
(iii) |
Any claims by, or on behalf of, or related to the Transferred Employee |
||
|
(iv) |
Any claims relating to the termination by Company of Affected Employees or |
||
|
(v) |
[*]; and |
||
|
(vi) |
Claims by or on behalf of Transitioned Employees that the transfer of their |
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subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
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29.3 Infringement. If any Provider Provided Item becomes, or in
Provider’s reasonable opinion is likely to become, the subject of an
infringement, including misappropriation, claim or proceeding, Provider shall,
in addition to indemnifying Company as provided in this Article 29 and to
the other rights Company may have under this Agreement, (i) promptly at
Provider’s expense secure the right to continue using the Provider Provided
Item, or (ii) if this cannot be accomplished with commercially reasonable
efforts, then at Provider’s expense, replace or modify the Provider Provided
Item to make it non-infringing, provided that any such replacement or
modification shall not degrade the performance or quality of the Provider
Provided Item or any affected component of the Services, or (C) if neither of
the foregoing can be accomplished by Provider with commercially reasonable
efforts, and only in such event, then remove the Provider Provided Item from the
Services, in which case the Services Costs shall be equitably adjusted to
reflect such removal.
29.4 Indemnification Procedures. With respect to third-party claims
for which a Party is seeking indemnification hereunder, the following procedures
shall apply:
|
(i) |
Promptly after receipt by any entity entitled to indemnification under |
||
|
(ii) |
If the indemnitor delivers a Notice of Election relating to any claim within |
||
|
(iii) |
If the indemnitor does not deliver a Notice of Election relating to a claim, |
29.5 Subrogation. In the event that an indemnitor shall be obligated
to indemnify an indemnitee pursuant to this Article 29, the indemnitor
shall, upon fulfillment of its obligations with respect to indemnification,
including payment in full of all amounts due pursuant to its indemnification
obligations, be subrogated to the rights of the indemnitee with respect to the
claims to which such indemnification relates.
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29.6 Liens by Provider. To the extent permitted by Applicable Law,
Provider hereby waives and releases any and all lien rights and similar rights
for payment for services, labor, equipment or materials furnished by Provider in
performance of its obligations hereunder and granted by law to persons supplying
materials, equipment, services and other items of value to improve or modify
land or the structures thereon, which Provider may have against Company’s or
Company’s landlord’s premises, property or funds payable to Company.
29.7 Third-Party Liens. Except to the extent Company has either
withheld or not timely made a properly invoiced payment with respect to such
Subcontractor or Supplier, if a lien affecting any of Company’s rights is filed
by any Supplier or Subcontractor, Provider must remove the lien within ten (10)
days of notice of lien or of written demand from Company, whichever is earlier.
If Provider fails to remove the lien, Company may (i) pay the amount of the
lien, (ii) bond the removal of the lien, or (iii) take any other step necessary
to remove the lien. Provider shall immediately reimburse Company for the cost of
removal of any such lien, including without limitation all attorneys’ fees and
costs, upon receipt of written demand from Company. If Provider fails to
reimburse Company, Company may back charge or withhold the cost of removal,
including without limitation all attorneys’ fees and costs, from any amount that
Company may be required to pay to Provider for performance of its obligations
hereunder.
30. DISPUTE RESOLUTION
30.1 Identification of Problems. During the Term and Termination
Assistance Period, each Party shall bring to the attention of the other Party
any issues that may reasonably be expected to prevent such Party from
completing, or that may delay or otherwise affect the performance of, its
obligations under this Agreement.
30.2 Dispute Resolution Procedures. Should a dispute arise that, in
the opinion of either Party, threatens to impair the continued performance of
this Agreement by either or both of the Parties, the aggrieved Party shall
provide the other Party with written notice setting forth the nature of such
dispute. The dispute shall be referred to a committee of four, comprised of two
senior executives of each Party. The committee shall convene as promptly as
possible, and in no event more than two (2) business days after receipt of such
notice, to attempt to resolve the problem as promptly as possible. The committee
shall continue to meet in accordance with a schedule that it shall determine
until the problem shall be resolved. If the problem is not resolved within five
(5) business days after the first meeting of the committee (“Resolution
Period“), either Party shall be free to pursue all available remedies, at
law or in equity, consistent with the terms of this Agreement, unless the
Parties shall agree in writing to extend the Resolution Period. Notwithstanding
the foregoing, either Party may, before, during, or after the Resolution Period,
apply to a court of competent jurisdiction for a temporary restraining order,
preliminary injunction of other equitable relief, where such relief is necessary
to protect its interests. Notwithstanding any other provision of this Agreement,
in the event that any Party believes in good faith a dispute or potential
dispute to be “urgent,” such Party shall have no obligations to utilize the
dispute resolution mechanism set forth in this Paragraph, and such Party may
immediately seek any remedies available to such Party at law or in equity.
31. EQUIPMENT
31.1 Company Provided Equipment. Company shall retain ownership of all
Equipment that is owned by Company as of the Effective Date, or that is
subsequently acquired in the name of the Company during the Term or Termination
Assistance Period, and supplied by Company to Provider and used to provide the
Services (“Company Provided Equipment“). Company will retain
the lease agreements for all Equipment that is leased in Company’s name as of
the Effective Date, or that is subsequently leased in the name of the Company
during the Term or Termination Assistance Period. Company shall provide Provider
with access to such Company Provided Equipment on an “as is, where is” basis for
use by Provider in delivering the Services. Company’s and Provider’s respective
responsibilities with respect to the upgrade, replacement and refreshing of
Company Provided Equipment may vary by Equipment type and shall be as set forth
in Exhibit G (Equipment List) or the applicable Order. Company shall be
responsible for procuring any upgrades with respect to such Company Provided
Equipment. Unless
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55
otherwise set forth herein or in the applicable Order, Provider shall manage
and maintain all of the Company Provided Equipment in accordance with the
maintenance schedules recommended by the applicable Equipment manufacturer.
31.2 Provider Equipment. Provider shall be responsible for providing
any Equipment other than the Company Provided Equipment that is necessary or
required to provide the Services (collectively, the “Provider
Equipment“). Provider shall install, operate, manage and maintain all
of the Provider Equipment, in accordance with the maintenance schedules
recommended by the applicable Equipment manufacturer. All Provider Equipment
shall be currently supported by the applicable Equipment manufacturer.
Notwithstanding the location of Provider Equipment at a Company Facility, all
right, title and interest in and to any such Provider Equipment shall be and
remain in Provider, and Company shall not have any title or ownership interest
in the Provider Equipment; provided, however, by the delivery of written notice
to Provider, Company may elect to cause Provider to transfer to Company or its
designee ownership of any Provider Equipment designated by Company in such
notice that is no longer used in the performance of Services under this
Agreement or any Order issued pursuant to this Agreement.
31.3 New Equipment. Provider shall acquire new Equipment in addition
to, or in replacement of, existing Provider Equipment and Company Provided
Equipment that is necessary or appropriate to provide the Services in accordance
with the Service Levels. Unless otherwise set forth herein or in the applicable
Order, such new Equipment shall be purchased or leased in the name of Provider,
except for purchases or leases of upgrades or replacements for Company Provided
Equipment, which shall be purchased or leased in the name of Company.
31.4 Procurement Responsibilities. With respect to Equipment procured
by Provider to meet its obligations hereunder, Provider’s responsibilities shall
include: (i) evaluating the Equipment and the qualifications of the Equipment
vendor; (ii) negotiating the most favorable pricing and terms; and (iii)
ordering, receiving, configuring, installing, testing, maintaining and
distributing all new Equipment.
31.5 Asset Tracking. Company shall perform tracking and asset
management for all Company Provided Equipment and Provider Equipment, and ensure
compliance with applicable contractual restrictions. With respect to any
Provider Equipment leased by Provider, Provider shall structure its leasing
arrangements so that the applicable leases may be assigned to Company upon the
termination of this Agreement and so that any ongoing payments under those
leases payable by Company after such assignment are consistent with, and no
higher than, the payments payable by Provider prior to such assignment.
31.6 Equipment Disposal. Provider shall be responsible for the
disposal of Provider Equipment and Company Provided Equipment no longer required
by Provider for the provision of the Services. Provider shall dispose of all
such Equipment in a manner consistent with the requirements of Applicable Law
and Company Policies.
32. MISCELLANEOUS
32.1 Consents. Unless otherwise specified in this Agreement, all
consents, approvals, acceptances or similar actions to be given by either Party
under this Agreement shall not be unreasonably withheld, conditioned or delayed
and each Party shall make only reasonable requests under this Agreement.
32.2 Assignment. Company has specifically contracted with Provider
because of its unique experience, expertise and qualifications; and, therefore,
Provider may not assign or delegate Provider’s obligations under this Agreement,
either in whole or in part, without the prior written consent of Company. Any
attempt by Provider to assign or delegate this Agreement, in whole or in part,
without Company’s prior written consent, shall be deemed a default hereunder and
such assignment or delegation shall be voidable at the option of Company.
Company may assign this Agreement at any time without the prior consent of
Provider. Notwithstanding the foregoing, any assignment of Provider’s
obligations hereunder by operation of law, or pursuant to any plan of merger or
consolidation, shall be deemed an assignment for which prior written consent of
Company is not required; provided, however, that in any such event
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Provider shall provide prompt prior written notice of such event and Company
may terminate this Agreement pursuant to Section 17.7. This Agreement
shall be binding on the Parties and their respective successors and permitted
assigns.
32.3 Notices. Any notice required or permitted hereunder shall be in
writing and shall be deemed given as of the date it is (i) delivered by hand; or
(ii) received by registered or certified mail, postage prepaid, return receipt
requested; or (iii) confirmed as received if by facsimile; or (iv) received by
nationally recognized, overnight courier, and addressed to the party to receive
such notice at the address set forth below, or such other address as is
subsequently specified in writing:
|
If to Company: |
If to Provider: |
|
|
Vice President, Global Strategic Sourcing |
CEO, Corporate Solutions |
|
|
Amgen Inc. |
Jones Lang LaSalle Americas, Inc. |
|
|
Mailstop: 91-2-C |
200 East Randolph Drive |
|
|
One Amgen Center Drive |
Chicago, IL 60601 |
|
|
Thousand Oaks, CA 91320-1799 |
Fax Number: [*] |
|
|
Fax Number: [*] |
||
|
With a copy to: |
With a copy to: |
|
|
General Counsel |
Chief Commercial Counsel, Americas |
|
|
Attn: Operations Group |
Jones Lang LaSalle Americas, Inc. |
|
|
Amgen Inc. |
200 East Randolph Drive |
|
|
Mailstop: 28-1-A |
Chicago, IL 60601 |
|
|
One Amgen Center Drive |
Fax Number: [*] |
|
|
Thousand Oaks, CA 91320-1799 |
||
|
Fax Number: [*] |
||
|
With a copy of any notices of an indemnity claim that triggers a Notice of |
With a copy of any notices of an indemnity claim that triggers a Notice of |
|
|
Director, Corporate Insurance |
Jones Lang LaSalle |
|
|
Amgen Inc. |
Attn: Risk Management Department |
|
|
One Amgen Center Drive |
Jones Lang LaSalle Americas, Inc. |
|
|
Mail Stop 24-2-A |
200 East Randolph Drive |
|
|
Thousand Oaks, CA 91320-1799 |
Chicago, IL 60601 |
|
|
Fax Number: [*] |
Fax Number: [*] |
32.4 Governing Law. This Agreement shall be governed by the laws of
the State of California, excluding conflict of law rules.
32.5 Venue and Jurisdiction. With respect to any dispute arising out
of or related to this Agreement or the transactions contemplated hereby, the
Parties hereby irrevocably and unconditionally submit to the exclusive
jurisdiction and venue (and waive any claim of forum non conveniens) of (i) the
state or federal courts sitting in Ventura County, California; or (ii) if such
court does not have jurisdiction, the United States District Court for the
Central District of California.
32.6 Independent Contractor. Provider shall be acting as an
independent contractor in performing the Services and shall not be considered or
deemed to be an agent, employee, joint venturer or partner of Company. Provider
shall have no authority to contract for or to bind Company in any manner and
shall not represent itself as an agent of Company or as otherwise authorized to
act for or on behalf of Company.
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Securities and Exchange Commission.
57
32.7 Publicity. Except for the purposes of performance hereunder,
neither Party shall use or allow its Personnel to use the other Party’s name,
the names of the other Party’s Affiliates, or any derivatives thereof without
the other Party’s prior written consent, which may be withheld at the other
Party’s sole discretion. This prohibition of use shall include without
limitation use in any publicity or advertising, including without limitation
media releases, public announcements, or public disclosures. A Party violating
this Section 32.7 shall immediately provide notice to the other Party in
the event it becomes aware of any violation of this prohibition and, at the
violating Party’s sole expense, take such steps necessary to cease and cure such
violation to the non-violating Party’s satisfaction.
32.8 Cumulative Remedies. Except as expressly provided herein, no
remedy made available to either Party hereunder is intended to be exclusive of
any other remedy provided hereunder or available at law or in equity.
32.9 Amendment. This Agreement may not be amended or modified except
by an instrument in writing signed by authorized representatives of Company and
Provider. Unless otherwise specified by Company, to be effective, a
representative of Company’s Global Strategic Sourcing Department must authorize
in writing any amendment or modification to this Agreement including without
limitation amendments or modifications to Service Levels and the scope of
Services.
32.10 No Waiver. The failure of either Party to enforce at any time
for any period the provisions of or any rights deriving from this Agreement
shall not be construed to be a waiver of such provisions or rights or the right
of such Party thereafter to enforce such provisions.
32.11 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any law or public policy,
all other terms and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any Party.
32.12 Headings. The descriptive headings contained in this Agreement
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of the Agreement.
32.13 Counterparts. This Agreement may be executed in one or more
counterparts, and by the respective Parties in separate counterparts, each of
which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same Agreement.
32.14 Entire Agreement. This Agreement and the Orders constitute the
entire agreement between the Parties with respect to the subject matter hereof,
and no oral or written statement that is not expressly set forth in this
Agreement or the Orders may be used to interpret or vary the meaning of the
terms and conditions hereof. This Agreement, including the Exhibits attached
hereto and any Orders, supersede any prior or contemporaneous agreements and
understandings, whether written or oral, between the Parties with respect to the
subject matter hereof.
32.15 Third Party Beneficiaries. Except as expressly provided herein,
nothing in this Agreement, either express or implied, is intended to or shall
confer upon any third party any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
33. DEFINITIONS
33.1 Certain Defined Terms. The following defined terms as used in the
Agreement, including its exhibits and appendices, shall have the meanings set
forth below.
Confidential
58
Affected Contractors. “Affected Contractors” means
those individuals or entities who are subject to Company Contractor Agreements
and who are identified as “affected contractors” in Schedule 8 (Affected
Personnel) of Exhibit A (Description of Services) or an applicable Order.
Affected Employees. “Affected Employees” means those
Company employees identified as “affected employees” in Schedule 8 (Affected
Personnel) of Exhibit A (Description of Services) or an applicable Order.
Affected Personnel. “Affected Personnel” means,
collectively, Affected Contractors and Affected Employees.
Affiliate. “Affiliate” means any entity controlling,
controlled by or under common control with a Party, but only for so long as such
control continues, where “control” means: (i) the ownership of at least fifty
percent (50%) of the equity or beneficial interest of such entity, or the right
to vote for or appoint a majority of the board of directors or other governing
body of such entity; or (ii) the power to directly or indirectly direct or cause
the direction of the management and policies of such entity by any means
whatsoever.
Agreed Service Location. “Agreed Service Location”
means any premises and facilities approved by Company and specified in
Exhibit A (Description of Services) or an applicable Order as a location
from which or for which the Services will be performed.
Agreement. “Agreement” means this Integrated
Facilities Management Services Agreement and all appendices, exhibits, schedules
and other attachments thereto, and all amendments of any of the foregoing.
Applicable Law. “Applicable Law” means any country,
international, federal, state, provincial, commonwealth, cantonal or local
government law, statute, rule, requirement, code, regulation, permit, ordinance,
authorization or similar such governmental requirement and interpretation and
guidance documents of the same by a Governmental Authority as applicable to
Provider, Company, the Services, or this Agreement.
ARD Countries. “ARD Countries” means those
jurisdictions that have implemented ARD Laws and in which Company or one of its
Affiliates employs Affected Employees.
ARD Laws. “ARD Laws” means (1) the European Community
Council Directive (77/187/EEC) of February 14, 1977 as consolidated by Council
Directive 2001/23/EC of March 12, 2001, in each case as amended from time to
time, and legislation and Laws implementing such directives in any country in
which an Agreed Service Location or a location from which Provider performs
Services is located or where Transitioned Employees are employed; and (2)
equivalent legislation and Laws dealing with the same subject matter as such
directives.
Assigned Contracts. “Assigned Contracts” means any
third party agreements that are assigned, in whole or in part, to Provider from
Company or its Affiliates, such agreements to be identified as “Assigned
Contracts” in Schedule 10 (Assigned and Managed Contracts/Company Contractor
Agreements) of Exhibit A (Description of Services) or an applicable
Order.
BC Policies. “BC Policies” means the business
continuity and disaster recovery policies, standards and guidelines set forth in
Exhibit P (Business Continuity Policies), as modified by Company from
time-to-time.
Benchmarker. “Benchmarker” means an independent and
industry-recognized organization appointed by Company that is acknowledged by
the Parties (each Party acting reasonably) to have directly relevant
benchmarking expertise, methodology and data sources.
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59
Best Practice. “Best Practice” means the relevant
best industry standards and practices for the performance of Comparable
Services.
cGMP. “cGMP” means (i) the applicable regulatory
requirements, as amended from time to time, for current good manufacturing
practices, including without limitation those promulgated by the Food and Drug
Administration under the United States Federal Food, Drug and Cosmetic Act, 21
C.F.R. § 210 et seq. or under the Public Health Service Act, Biological
Products, 21 C.F.R. § § 600-610, the European Medicines Agency or Health Canada
under the Food and Drugs Act (Canada), R.S. 1985, CF-27 and its associated
regulations; (ii) any applicable guidance documents published by a Governmental
Authority; and (iii) current industry practice consistent and in accordance
therewith.
Change Control Process. “Change Control Process”
means the process for making Changes to Services set forth in Article 5.
Company Data. “Company Data” means all Company data
stored, processed, accessed, or accessible by Provider, including data that
Provider has derived from such information, in connection with the Services.
Company Facilities. “Company Facilities” means
physical premises owned or controlled by Company at which Services are being
performed by Provider.
Company Policies. “Company Policies” means any of
Company’s compliance, safety, security and other rules, programs, regulations,
policies and procedures (including Standard Operating Procedures) applicable to
Provider or this Agreement, including, but not limited to, the BC Policies and
the rules, programs, regulations and policies set forth in Exhibit I (Company
Standard Operating Procedures) and Exhibit J (Company Standard Policies),
as modified from time-to-time in accordance with Section 4.6.
Comparable Services. “Comparable Services” means
services that are supplied by third parties, and that are similar to the
relevant Services (or the relevant category of such Services), having regard to
factors such as the nature and size of Provider, Company, the relevant
geographies, the Service Levels and volumes, the quality, nature and type of the
relevant Services and the standard to which such Services are subject, any
particular or unique circumstances in which such Services are received/supplied
and any other relevant factors.
Competitor. “Competitor” means any company or entity
that, either independently or through its Affiliates, competes (or intends to
compete) in a material manner with Company and includes without limitation the
following: [*]
Confidential Information. “Confidential Information”
of a Party means all information, unless specifically identified by such Party
as non-confidential, regardless of how communicated or stored, concerning the
operations, affairs, products and businesses of such Party, the financial
affairs of such Party, and the relations of such Party with its customers,
employees and service providers, including without limitation, confidential or
proprietary information, trade secrets, data, drafts, documents, communications,
plans, know-how, formulas, improvements, designs, estimates, calculations, test
results, specimens, schematics, drawings, tracings, studies, specifications,
surveys, facilities, photographs, documentation, software, equipment, processes,
programs, reports, orders, maps, models, agreements, ideas, methods,
discoveries, inventions, patents, concepts, research, development, business and
financial information, customer or client lists, account information,
procedures, computer information and databases, business plans, budget
forecasts, business arrangements, financial information and estimates, personnel
data, and long-term plans and goals. “Confidential
Information” of Company shall include (i) all information relating to
the Services and Orders, including the terms and conditions of this Agreement,
(ii) the specifications, designs, documents, correspondence, software,
documentation, data and other materials and Work Products produced by or for
Provider in the course of performing the Services other than Provider
Intellectual Property Rights, (iii) Deliverables and Company data, and (iv)
other Company information or data stored or otherwise or communicated, and
obtained, received, transmitted, processed, stored, archived, maintained or
derived by Provider under this Agreement or in connection with the
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
60
Services. “Confidential Information” of Provider shall
include all information concerning the operations, affairs and businesses of
Provider, the financial affairs of Provider, and the relations of Provider with
its other customers, employees and suppliers (including customer lists, customer
(other than Company) information, account information, and consumer markets).
Deliverables. “Deliverables” means any and all
tangible Work Product, reports, data, specifications, designs, documents,
correspondence, software, documentation, and other materials, Work Product and
other deliverables resulting from the Services.
Disaster. “Disaster” means any incident, unplanned
disruption or unplanned interruption whether relating to information processing
facilities, inaccessibility of buildings, and unavailability of resources or
otherwise (including a Force Majeure Event) that impairs the ability of Provider
to perform any of the Services.
Equipment. “Equipment” means computer,
telecommunications, mechanical, electrical and other equipment (without regard
to the entity owning or leasing such equipment) used by Provider to provide the
Services.
Event of Deteriorating Provider Condition. “Event of
Deteriorating Provider Condition” means any of the following events:
(i) Provider ceases to do business as a going concern, makes an assignment for
the benefit of creditors, is unable to pay its debts as they become due, is
insolvent or the subject of receivership, or any substantial part of Provider’s
property is or becomes subject to any levy, seizure, assignment or sale for or
by any creditor or governmental agency without being released or satisfied
within ten (10) days thereafter; (ii) Provider’s auditors issue an opinion
expressing doubt as to whether Provider can maintain itself as a “going
concern,” or Provider’s credit is materially downgraded by a nationally
recognized credit agency; (iii) any judgment or tax lien is filed or issued
against Provider that materially impacts Provider’s ability to provide the
Services to Company; (iv) bankruptcy proceedings, whether voluntary or
involuntary, are commenced by or against Provider; (v) Provider sells all or
substantially all of its assets, or a material portion of its assets related to
the Services; and (vi) there is a material adverse change in the Provider’s
business, financial condition or prospects that is reasonably likely to result
in a delay in the performance of Provider’s obligations hereunder, or a
reduction in the quality of such performance.
Excused Company-Related Delay. “Excused Company-Related Delay” means a
critical path delay in the performance of the Services that Provider
demonstrates to Company’s reasonable satisfaction is directly attributable to:
(A) a breach of this Agreement by Company; or (B) acts or omissions of Company
or a Third Party Supplier, provided that (i) Provider is without fault or
negligence in causing such delay; (ii) such delay could not have been prevented
by reasonable precautions taken by Provider, including without limitation the
use of alternate sources or workaround plans; (iii) Provider uses commercially
reasonable efforts to mitigate the impacts of the delay; and (iv) Provider
immediately notifies Company by the most expedient method possible (to be
confirmed in writing) and describes at a reasonable level of detail the
circumstances causing the delay.
Governmental Authority. “Governmental Authority”
means any and all governmental or regulatory authorities having jurisdiction
over this Agreement and/or any Services or Orders associated therewith,
including the FDA or any counterpart of the FDA outside of the United States.
Intellectual Property. “Intellectual Property” means:
(i) patents, patent applications and statutory invention registrations; (ii)
trademarks, service marks, domain names, trade dress, logos, and other source
identifiers, including registrations and applications for registration thereof;
(iii) copyrights, including registrations and applications for registration
thereof; (iv) trade secrets; (v) moral rights; and (vi) any other industrial or
proprietary rights similar to the foregoing.
Major Subcontracts. “Major Subcontracts” means (i)
all Subcontracts with compensation exceeding [*]; (ii)
those Subcontracts that include the performance of any of the following
Services: (a) installation or maintenance of high voltage electrical systems;
fire and life safety systems; critical process control systems including without
limitation building automation systems and critical equipment monitoring
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
61
systems; utility systems; bulk and specialty gas storage, monitoring, and
delivery systems; high purity systems; energy management of /ventilation/air
conditioning systems and refrigeration; (b) security guard services; (c)
maintenance planning and administration; (d) capital projects; (f) engineering;
(g) laundry; (h) pest control; (i) utilities; (j) specialty maintenance
research; or (k) instrument calibration; and (iii) any other Subcontracts or
types of Subcontracts that Company may in the future designate as “Major
Subcontracts.”
Major Supply Contracts. “Major Supply Contracts”
means (i) all Supply Contracts with compensation exceeding [*]; (ii) Supply
Contracts materially related to the Major Subcontracts and (iii) any other
Supply Contracts or types of Supply Contracts that Company may in the future
designate as “Major Supply Contracts.”
Managed Contracts. “Managed Contracts” means any
third party agreements to which Company or an Affiliate of Company is a party
and for which Provider assumes management responsibility in connection with the
Services, including any agreements identified as “Managed Contracts” in
Exhibit A (Description of Services) or an applicable Order.
“Managed Contracts” shall not include the Assigned Contracts.
Material Change. “Material Change” means any Change
Request or series of Change Requests that involves a change in the scope of
Services in excess of US$200,000.00 in any calendar year.
Order Effective Date. “Order Effective Date” means
the date set forth in an Order for commencement of Services under such Order.
Personnel. “Personnel” of a Party means such Party’s
directors, officers, employees, Subcontractors, Third Party Suppliers,
consultants, representatives and agents, excluding the other Party, who
contribute or who are dedicated to the performance of such Party’s obligations
under this Agreement.
Provider Competitor. “Provider Competitor” means any
of the following entities and their respective Affiliates [*]
Provider Intellectual Property Rights. “Provider Intellectual
Property Rights” means any and all software and other Intellectual
Property rights either (i) owned by or licensed to Provider and incorporated in
or required to operate or utilize any Work Product which intellectual property
is pre-existing on the Effective Date or the Order Effective Date governing the
development of such Work Product or (ii) developed by Provider after the
Effective Date or the Order Effective Date provided that the development of such
Provider Intellectual Property Rights was not part of the Work Product performed
pursuant to any Services to be performed under this Agreement or any Order
issued pursuant to this Agreement.
Reimbursable Costs. “Reimbursable Costs” means those
actual and necessary costs (excluding Non-Reimbursable Costs), all without any
mark-up that (i) Company agrees to pay Provider in accordance with the terms of
this Agreement, and (ii) Provider reasonably and properly incurs in performing
its obligations hereunder.
SAS 70 Gap Period. “SAS 70 Gap Period” means the
period of time between the issuance of a SAS 70 Type II Report by the service
auditor and the date of the assessment by Company of the adequacy of Company’s
controls pursuant to the Compliance Objectives.
SAS 70 Type II Report. “SAS 70 Type II Report” means
a written opinion of a service auditor, issued in accordance with and subject to
the requirements of SAS 70, covering the Services, and addressing (i) whether
Provider’s description of its controls presents fairly, in all material
respects, the relevant aspects of Provider’s controls that had been placed in
operation as of a specified date, (ii) whether such controls were suitably
designed to achieve the Control Objectives, and (iii) whether the controls that
were tested were operating with sufficient effectiveness to provide reasonable,
but not absolute, assurance that the Control Objectives were achieved during the
period specified; together with the service auditor’s
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
62
(a) description of the Control Objectives, (b) report on the operating
effectiveness of the controls, and (c) description of the tests of the operating
effectiveness of the controls that may be relevant to specified assertions in
Company’s financial statements, and the results of those tests. The SAS 70 Type
II Report will contain any additional information that may be required under SAS
70 and will contain a paragraph stating that the SAS 70 Type II Report is
intended to be used by customers of Provider and such customers’ independent
auditors.
Service Categories. “Services Categories” shall mean
those specific kinds or types of Services to be performed by Provider or by its
Subcontractors. The initial Services Categories are identified in Exhibit
A (Description of Services). The parties may add Services Categories by
mutual written agreement.
Service Disruption. “Service Disruption” means the
occurrence of (i) a disruption of any of the Services caused by a Force Majeure
Event, or (ii) any other material disruption of the Services.
Service Levels. “Service Levels” for a Service means
the service metrics and key performance indicators for such Service set forth in
Exhibit C (Key Performance Indicators/Service Level Agreements) or the
Order governing the performance of such Service, including the SLA Targets and
KPI Targets.
Standard of Care. “Standard of Care” means (i)
meeting the professional standards of diligence, care, timeliness, trust,
dependability, safety, efficiency, economy and skill exercised by members of
Provider’s profession in the United States with expertise in providing
comparable first class services substantially similar in size, scope, cost and
complexity to those to be provided hereunder, (ii) exercising such professional
standards by appropriate action or inaction during the Term and any Termination
Assistance Period, and (iii) complying with all Applicable Laws.
Stranded Costs. “Stranded Costs” means
[*].
Supplier. “Supplier” means a third party who has
entered into a Supply Contract.
Supply Contracts. “Supply Contracts” means third
party trade and supply agreements that are required in the prudent conduct of
the reasonable and ordinary performance of the applicable Services.
Third Party Intellectual Property. “Third Party Intellectual
Property” means Intellectual Property licensed by Provider from third
parties and used to provide the Services or incorporated in any Work Product.
Transitioned Contractors. “Transitioned Contractors”
means Affected Contractors whose contractor agreements are either terminated or
assigned pursuant to Section 12.23(ii).
Transitioned Employees. “Transitioned Employees”
means Affected Employees who either accept an offer of employment with Provider
or whose employment is transitioned to Provider pursuant to relevant ARD Laws
(or the equivalent in countries outside of the EU) and become employed by
Provider effective as of the start of business on the Effective Date or such
other date as to which the Parties mutually agree.
Transitioned Personnel. “Transitioned Personnel”
means, collectively, Transitioned Employees and Transitioned Contractors.
Work Product. “Work Product” means any and all work
product, Deliverables, reports, data, developments, inventions, ideas and
discoveries, technology, including patentable and unpatentable inventions, test
results, testing methods, materials, and Intellectual Property developed,
discovered, improved, authored, derived, invented or acquired by, for, or on
behalf of Company in connection with or while performing Services, including
improvements, variations, modifications, or derivative works to Intellectual
Property. Innovations, practices, procedures, inventions, ideas, discoveries and
technology developed by Provider only in connection with the Services or for
Company’s account shall be exclusive Work Product of Company. Innovations,
practices, procedures, inventions, ideas, discoveries and
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
63
technology developed by Provider generally in connection with the Services
and services provided to other customers of Provider shall not be exclusive Work
Product of Company. With respect to Provider Intellectual Property Rights, Work
Product shall only include the licenses and rights provided for in this
Agreement, and Company shall not be conveyed full ownership of such Provider
Intellectual Property Rights.
33.2 Other Defined Terms.
|
“Account Executive” |
Section 12.1 |
|
|
“Aggregate KPI Score” |
Exhibit C |
|
|
“Aggregate SLA Score” |
Exhibit C |
|
|
“Allocated MFAR Portion” |
Exhibit C |
|
|
“Annual Budgets” |
Exhibit D |
|
|
“Approved Equipment Lease Termination Fee” |
Section 13.3 |
|
|
“Approved Subcontract Termination Fee” |
Section 13.1 |
|
|
“Approved Supply Contract Termination Fee” |
Section 13.3 |
|
|
“ARD Affected Employees” |
Section 12.23(iv) |
|
|
“Base Management Fee” |
Exhibit D |
|
|
“BC Plan” |
Section 8.1 |
|
|
“Benchmark Category” |
Section 10.1 |
|
|
“Burden Rates” |
Exhibit D |
|
|
“C.F.R.” |
Section 25.4 |
|
|
“Change” |
Section 5.1 |
|
|
“Change Request” |
Section 5.1 |
|
|
“Chemical Release” |
Exhibit L |
|
|
“CIS” |
Section 24.6 |
|
|
“CMMS” |
Exhibit A |
|
|
“Code” |
Section 11.9 |
|
|
“Company” |
Preamble |
|
|
“Company Assets” |
Section 24.16 |
|
|
“Company Contractor Agreements” |
Section 12.23(ii) |
Confidential
64
|
“Company Emergency Change” |
Section 5.10 |
|
|
“Company Indemnified Parties” |
Section 29.1 |
|
|
“Company Provided Equipment” |
Section 31.1 |
|
|
“Company Substance Condition” |
Section 23.3 (iii) |
|
|
“Control Objectives” |
Section 15.9 |
|
|
“Controllable Costs” |
Exhibit D |
|
|
“Cost Baseline” |
Exhibit D |
|
|
[*] |
Exhibit D |
|
|
[*] |
Exhibit D |
|
|
“Critical Affected Personnel” |
Section 12.23(iii) |
|
|
“Direct Provider Labor” |
Exhibit D |
|
|
“Direct Provider Labor Allocation” |
Exhibit D |
|
|
“Disqualifying Event” |
Exhibit C |
|
|
“Due Diligence Information” |
Section 26.2(xv) |
|
|
“Effective Date” |
Preamble |
|
|
“Emergency” |
Exhibit D |
|
|
“Emergency Change” |
Section 5.10 |
|
|
“FDA” |
Section 25.1 |
|
|
“Fiscal Quarter” |
Exhibit D |
|
|
“Fiscal Year” |
Exhibit D |
|
|
“Fiscal Year Prior to the Measurement Year” |
Exhibit D |
|
|
“For Cause” |
Section 12.12 |
|
|
“Force Majeure Event” |
Section 28.2 |
|
|
“GAAP” |
Section 15.2 |
|
|
“HIPAA” |
Section 25.7 |
|
|
“Incentive Compensation” |
Exhibit D |
Confidential
Note: Redacted portions have been marked with [*]. The redacted portions are
subject to a request for confidential treatment that has been submitted to the
Securities and Exchange Commission.
65
|
“Incidental Expenses” |
Exhibit D |
|
|
“Initial Term” |
Section 17.1 |
|
|
“Key Performance Indicators” or “KPIs” |
Exhibit C |
|
|
“Key Provider Personnel” |
Section 12.11 |
|
|
“Key Transferred Employee” |
Section 12.23(iii) |
|
|
“KPI Default” |
Exhibit C |
|
|
“KPI Failure” |
Exhibit C |
|
|
“KPI Multiplier” |
Exhibit C |
|
|
“KPI Out-Performance Bonus” |
Exhibit D |
|
|
“KPI Score” |
Exhibit C |
|
|
“KPI Scorecard” |
Exhibit C |
|
|
“KPI Table” |
Exhibit C |
|
|
“KPI Target” |
Exhibit C |
|
|
“Labor Disputes” |
Section 13.14 |
|
|
“Losses” |
Section 29.1 |
|
|
“Managed Costs” |
Exhibit D |
|
|
“Managed Facility” |
Exhibit D |
|
|
“Management Fee” |
Exhibit D |
|
|
“Management Fee at Risk” |
Exhibit D |
|
|
“Management Fee at Risk Earned” |
Exhibit C |
|
|
“Measurement Period” |
Exhibit C |
|
|
“Measurement Year” |
Exhibit D |
|
|
“MFAR Amount at Risk” |
Exhibit C |
|
|
“MFAR Amount Earned” |
Exhibit C |
|
|
“Minimum Savings” |
Exhibit D |
|
|
“MSDS” |
Exhibit L |
Confidential
66
|
“New Services” |
Section 2.3 |
|
|
“Non-Controllable Costs” |
Exhibit D |
|
|
“Non-Reimbursable Costs” |
Exhibit D |
|
|
“Notice of Election” |
Section 29.4(i) |
|
|
“Operating Costs and Expenses” |
Exhibit D |
|
|
“Operational Responsibility Matrix” |
Exhibit A |
|
|
“Operations” |
Exhibit A |
|
|
“Order” |
Section 2.3 |
|
|
“Order Effective Date” |
Exhibit K |
|
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“Outcomes” |
Exhibit A |
|
|
“Party” or “Parties” |
Preamble |
|
|
“Plan” |
Exhibit A |
|
|
“PM” |
Exhibit L |
|
|
“Policies and Procedures Guide” |
Section 12.4 |
|
|
“Potential Management Fee” |
Exhibit D |
|
|
“Potential Management Fee Rate” |
Exhibit D |
|
|
“Program Manager” |
Section 12.2 |
|
|
“Project Staff” |
Section 12.16 |
|
|
“Proposition 65” |
Section 23.3 (ii) |
|
|
“Provider” |
Preamble |
|
|
“Provider Emergency Change” |
Section 5.10 |
|
|
“Provider Equipment” |
Section 31.2 |
|
|
“Provider Indemnified Parties” |
Section 29.2 |
|
|
“Provider Provided Items” |
Section 29.1(vi) |
|
|
“Provider Required Consents” |
Section 14.5 |
|
|
“Provider Senior Management” |
Exhibit D |
Confidential
67
|
“Provider’s Shared Savings” |
Exhibit D |
|
|
“Provider Substance Release” |
Section 23.3(iv) |
|
|
“Provider T&M Project Labor” |
Exhibit D |
|
|
“Remediation Standard” |
Section 23.3(iv) |
|
|
“Renewal Term” |
Section 17.1 |
|
|
“Resolution Period” |
Section 30.2 |
|
|
“Savings” |
Exhibit D |
|
|
“Savings Initiative” |
Exhibit D |
|
|
“Savings Performance Manager” |
Exhibit D |
|
|
“Schedule” |
Section 16.2 |
|
|
“Services” |
Section 2.1 |
|
|
“Services Costs” |
Section 19.1 |
|
|
“Service Level Agreements” or “SLAs” |
Exhibit C |
|
|
“Shared Savings” |
Exhibit D |
|
|
“Shared Savings Multiplier” |
Exhibit D |
|
|
“Shared Savings Threshold” |
Exhibit D |
|
|
“Small Project Services” |
Exhibit A |
|
|
“SLA Failure” |
Exhibit C |
|
|
“SLA Scorecard” |
Exhibit C |
|
|
“SLA Target” |
Exhibit C |
|
|
“Staffing Action Plan” |
Section 12.14 |
|
|
“Staffing Notice” |
Section 12.14 |
|
|
“Step-In” |
Section 7.1 |
|
|
“Subcontract” |
Section 13.1 |
|
|
“Subcontractor” |
Section 13.1 |
|
|
“Taxes” |
Exhibit Q |
Confidential
68
|
“Technology Solutions” |
Exhibit A |
|
|
“Term” |
Section 17.1 |
|
|
“Termination Assistance Period” |
Section 18.1 |
|
|
“Termination Assistance Services” |
Section 18.1 |
|
|
“Third Party Supplier” or “Third Party Suppliers” |
Section 12.20 |
|
|
“Three-Year Budget” |
Exhibit D |
|
|
“Toxic Substances” |
Exhibit L |
|
|
“Transferred Employees” |
Section 12.8 |
|
|
“Transition” |
Section 6.1 |
|
|
“Transition Costs” |
Exhibit D |
|
|
“Transition Deliverables” |
Section 6.1(iii) |
|
|
“Transition Manager” |
Section 6.5 |
|
|
“Transition Milestone” |
Section 6.1 |
|
|
“Transition Plan” |
Section 6.1 |
|
|
“Weighted Average Aggregate Annual KPI Score” |
Exhibit D |
|
|
“Weighted KPI Period” |
Exhibit D |
IN WITNESS WHEREOF, this Agreement has been executed by the Parties.
|
AMGEN INC. |
JONES LANG LASALLE AMERICAS, INC. |
|||||||
|
Signature: |
/s/ Fabrizio Bonanni |
Signature: |
/s/ Brian P. Hake |
|||||
|
By: |
Fabrizio Bonanni |
By: |
Brian P. Hake |
|||||
|
Title: |
Executive Vice President, Operations |
Title: |
Executive Vice President/ Chief |
|||||
|
Signature: |
/s/ Farryn Melton |
|||||||
|
By: |
Farryn Melton |
|||||||
|
Title: |
Vice President, Global Strategic Sourcing and Chief Procurement Officer |
|||||||
Confidential
69
Note: Redacted portions have been marked with [*]. The
redacted portions are subject to a request for
confidential treatment that has been filed with the Securities and Exchange
Commission.
AMENDMENT NUMBER 1
TO THE INTEGRATED FACILITIES MANAGEMENT SERVICES AGREEMENT
BETWEEN JONES LANG LASALLE AMERICAS, INC. AND AMGEN INC.
This Amendment Number 1 (“Amendment”) is entered into
effective as of March 31, 2010 by and between Jones Lang LaSalle Americas, Inc.
(“Provider”) and Amgen Inc. (“Company”).
RECITALS
A. Company and Provider entered into that certain agreement titled Integrated
Facilities Management Services Agreement effective as of February 4, 2009 and
identified by contract number CSV-09-51444 pursuant to which Provider is to be
performing integrated facilities services with respect to facilities operations
and maintenance and general services (“Agreement”).
B. Company and Provider desire, and are willing, to amend the Agreement to
modify certain exhibits and attachments as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises,
covenants, conditions and provisions contained or referenced herein, the parties
have reviewed and accepted all referenced material and any appendices, exhibits
or other attachments hereto and agree to be bound by the terms and conditions
set forth in the Agreement as modified herein as follows:
1. DEFINITIONS
1.1 Capitalized Terms. All capitalized terms not defined herein shall
have the meaning ascribed to them in the Agreement. In the event of a conflict
between the capitalized terms defined and set forth in this Amendment and the
defined terms of the Agreement, the definitions set forth in this Amendment
shall control.
2. AMENDMENTS TO THE AGREEMENT
2.1 Attachment A.4 (Operational Responsibility Matrix) of Exhibit A
(Description of Service). Attachment A.4 (Operational Responsibility Matrix)
of Exhibit A (Description of Service) is hereby amended and replaced in its
entirety with the Exhibit A, Attachment A.4 attached hereto.
2.2 Schedule 10 (Assigned and Managed Contracts; Company Contractor
Agreements) of Exhibit A (Description of Services). Schedule 10 (Assigned
and Managed Contracts; Company Contractor Agreements) of Exhibit A (Description
of Services) is hereby amended and replaced in its entirety with Exhibit A,
Schedule 10 attached hereto.
2.3 Exhibit B (Acknowledgement of Orientation Materials). Exhibit B
(Acknowledgement of Orientation Materials) is hereby amended and removed in its
entirety.
2.4 Attachment D.1 (Cost Baseline) of Exhibit D (Pricing). Attachment
D.1 (Cost Baseline) of Exhibit D (Pricing) is hereby amended to reflect that the
Measurement Year 1 Cost Baseline as of May 1st, 2010 is $ [*] as
agreed upon by both parties.
1
2.5 Exhibit E : Governance. Exhibit E : Governance is hereby amended
and replaced in its entirety with Exhibit E attached hereto.
2.6 Attachment 2 (Decision Rights “RACI” Matrix) of Exhibit E
(Governance). Attachment 2 (Decision Rights “RACI” Matrix) of Exhibit E
(Governance) is hereby amended and replaced in its entirety with Exhibit E,
Attachment 2 attached hereto.
2.7 Attachment 2 (Provider Diversity Plan) of Exhibit J (Company Standard
Policies). Attachment 2 (Provider Diversity Plan) of Exhibit J (Company
Standard Policies) is hereby amended by adding the following sub-Section (iii)
to Section 5: “Cooperate in supplier outreach events with Company, as may be
necessary, to identify and learn the capabilities of small and diverse
suppliers.”
2.8 Exhibit M : Contingent Worker Background Check Information.
Exhibit M : Contingent Worker Background Check Information. Exhibit M of the
Agreement is hereby amended and replaced in its entirety with Exhibit M attached
hereto.
2.9 Attachment 1 (Leadership Survey) of Exhibit N : Customer
Satisfaction. Attachment 1 (Leadership Survey) of Exhibit N : Customer
Satisfaction is hereby amended and replaced in its entirety with Exhibit N,
Attachment 1 attached hereto.
2.10 Attachment 2 (End User Customer Satisfaction Survey) of Exhibit N :
Customer Satisfaction. Attachment 2 (End User Customer Satisfaction Survey)
of Exhibit N : Customer Satisfaction is hereby amended and replaced in its
entirety with Exhibit N, Attachment 2 attached hereto.
3. CONCLUSION
Except as amended and supplemented hereby, all of the terms and conditions of
the Agreement shall remain and continue in full force and effect and apply
hereto.
IN WITNESS THEREOF, the authorized representatives of the parties have
executed this Amendment to the Agreement as of the date first set forth above.
|
Jones Lang LaSalle Americas, Inc. |
Amgen Inc. |
|||||||||||
|
By: |
/s/ Tracy L. Popish |
By: |
/s/ Leah Fein |
|||||||||
|
Name: |
Tracy L. Popish |
Name: |
Leah Fein |
|||||||||
|
Title: |
Senior Vice President |
Title: |
Senior Manager GSS Ops. |
|||||||||
2
Note: Redacted portions have been marked with [*]. The
redacted portions are subject to a request for
confidential treatment that has been filed with the Securities and Exchange
Commission.
AMENDMENT NUMBER 2
TO THE INTEGRATED FACILITIES MANAGEMENT SERVICES AGREEMENT
BETWEEN JONES LANG LASALLE AMERICAS, INC. AND AMGEN INC.
This Amendment Number 2 (“Amendment 2”) is entered into as
of May 12, 2010 by and between Jones Lang LaSalle Americas, Inc.
(“Provider”) and Amgen Inc. (“Company”).
RECITALS
A. Company and Provider entered into that certain agreement titled Integrated
Facilities Management Services Agreement effective as of February 4, 2009 and
identified by contract number CSV-09-51444 pursuant to which Provider is to be
performing integrated facilities services with respect to facilities operations
and maintenance and general services as set forth therein (“Original
Agreement”).
B. Thereafter, Company and Provider amended the Original Agreement through
that certain Amendment Number 1 entered into as of March 31, 2010 (the Agreement
together with this Amendment Number 1 shall be referred to hereinafter as the
“Agreement”).
C. Company and Provider desire, and are willing, to amend the Agreement to
extend the term and modify certain exhibits and attachments as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
covenants, conditions and provisions contained or referenced herein, the parties
have reviewed and accepted all referenced material and any appendices, exhibits
or other attachments hereto and agree to be bound by the terms and conditions
set forth in the Agreement as modified herein as follows:
1. DEFINITIONS
1.1 Capitalized Terms. All capitalized terms not defined herein shall
have the meaning ascribed to them in the Agreement. In the event of a conflict
between the capitalized terms defined and set forth in this Amendment 2 and the
defined terms of the Agreement, the definitions set forth in this Amendment 2
shall control.
2. AMENDMENTS TO THE AGREEMENT
2.1 Section 17.1 (Term). The first sentence of Section 17.1 of the
Agreement shall be deleted in its entirety and replaced with the following: “The
term of this Agreement shall commence on the Effective Date and, unless extended
or earlier terminated pursuant to the terms of this Agreement, continue to and
through December 31, 2014.”
2.2 Schedule 10 (Assigned and Managed Contracts; Company Contractor
Agreements) of Exhibit A (Description of Services). Schedule 10 (Assigned
and Managed Contracts; Company Contractor Agreements) of Exhibit A (Description
of Services) is hereby amended and replaced in its entirety with Exhibit A,
Schedule 10 attached hereto.
2.3 Exhibit D (Pricing). Sub-section (t) of Section 2 (Definitions) of
Exhibit D (Pricing) is hereby amended as set forth in Schedule 2.3 attached
hereto.
2.4 Section 3.10(b), Exhibit D (Pricing). Sub-section (b) of Section
3.10 (Incentive Compensation) of Exhibit D (Pricing) is hereby amended as set
forth in Schedule 2.4 attached hereto.
2.5 Section 3.10(c), Exhibit D (Pricing). Sub-section (c) of Section
3.10 (KPI Out-Performance Bonus) of Exhibit D (Pricing) is hereby amended as set
forth in Schedule 2.5 attached hereto.
2.6 Section 6.1, Exhibit D (Pricing). Sub-section 6.1 (Cost Baseline)
of Section 6 (Savings Initiative Requirements and Process) of Exhibit D
(Pricing) is amended as set forth in Schedule 2.6 attached hereto.
2.7 Section 6.3(a), Exhibit D (Pricing). Sub-section (a) of Section
6.3 (Savings Against Cost Baseline) of Exhibit D (Pricing) is amended as set
forth in Schedule 2.7 attached hereto.
2.8 Attachment D.5 (Reimbursable and Non-Reimbursable Costs) of Exhibit D
(Pricing). Exhibit D.5 (Reimbursable and Non-Reimbursable Costs) of Exhibit
D (Pricing) is hereby amended as set forth in Schedule 2.8 attached hereto.
2.9 Attachment D.6 (Example Calculations of Management Fees, Provider’s
Shared Savings and [*]) of Exhibit D (Pricing). Attachment D.6 (Example
Calculations of Management Fees, Provider’s Shared Savings and [*]) of Exhibit D
(Pricing) is amended as set forth in Schedule 2.9 attached hereto.
2.10 Exhibit H (Quality Plan). Exhibit H (Quality Plan) is hereby
amended and replaced in its entirety with Exhibit H attached hereto.
2.11 Attachment 1 (Leadership Survey) of Exhibit N : (Customer
Satisfaction). Attachment 1 (Leadership Survey) of Exhibit N : (Customer
Satisfaction) is hereby amended and replaced in its entirety with Exhibit N,
Attachment 1 attached hereto.
2.12 Attachment 2 (End User Customer Satisfaction Survey) of Exhibit N :
Customer Satisfaction. Attachment 2 (End User Customer Satisfaction Survey)
of Exhibit N : (Customer Satisfaction) is hereby amended and replaced in its
entirety with Exhibit N, Attachment 2 attached hereto.
3. CONCLUSION
Except as amended and supplemented hereby, all of the terms and conditions of
the Agreement shall remain and continue in full force and effect and apply
hereto.
IN WITNESS THEREOF, the authorized representatives of the parties have
executed this Amendment 2 to the Agreement as of the date first set forth above.
|
Jones Lang LaSalle Americas, Inc. |
Amgen Inc. |
|||||||||||
|
By: |
/s/ Robert W. Hackett |
By: |
/s/ Emilio Rivera |
|||||||||
|
Name: |
Robert W. Hackett |
Name: |
Emilio Rivera |
|||||||||
|
Title: |
Executive Vice President |
Title: |
VP, Corporate Engineering |
|||||||||
|
By: |
/s/ Farryn Melton |
|||||||||||
|
Name: |
Farryn Melton |
|||||||||||
|
Title: |
VP, Chief Procurement Officer |
|||||||||||
Amgen Inc.
One Amgen Center Drive
Thousand Oaks, CA 91320-1799
805.447.1000
www.Amgen.com
July 19, 2011
Jones Lang LaSalle Americas, Inc.
Robert Hackett
200 East Randolph Drive
Chicago, IL 60601
|
Subject: |
Date of Amendment Number 2 : Integrated Facilities Management Services |
Dear Mr. Hackett:
On or about May 12, 2011, Amgen Inc. (“Amgen”) and Jones Lang LaSalle
Americas, Inc. (“JLL”) entered into that certain Amendment Number 2 to the
Integrated Facilities Management Services Agreement between Jones Lang LaSalle
Americas, Inc. and Amgen Inc. (“Amendment 2”). As discussed by Dionne Jimenez of
Amgen and Tracy Popish of JLL, the opening sentence to Amendment 2 incorrectly
stated that Amendment 2 is entered into as of “May 12, 2010”
(emphasis added) and agreed that the year stated in that sentence should read
“2011”.
This letter, once signed by JLL, sets forth the agreement of Amgen and JLL to
amend and does hereby amend the opening sentence to Amendment 2 by replacing
such sentence with the following: “This Amendment Number 2 (“Amendment
2”) is entered into as of May 12, 2011 by and between Jones Lang
LaSalle Americas, Inc. (“Provider”) and Amgen Inc.
(“Company”).” Except as expressly amended herein, all of the
terms and conditions of Amendment 2 shall remain and continue in full force and
effect and all of the terms of the Agreement shall apply hereto.
To memorialize the above, please have an authorized representative of JLL
sign in the space provided below and send a scanned copy of such to
#####@#####.com and return one original signed copy of this letter to #### ####
at Amgen Inc., One Amgen Center Drive, Mail Stop ##-#-#, Thousand Oaks, CA
91320-1799.
Thank you in advance for your prompt attention to this matter.
|
Sincerely, |
||||
|
/s/ Farryn Melton |
||||
|
Farryn Melton |
||||
|
Vice President, Chief Procurement Officer |
||||
|
READ, ACKNOWLEDGED AND AGREED |
||||
|
/s/ Robert W. Hackett |
||||
|
Printed Name: |
Robert W. Hackett |
|||
|
Title: |
Executive Vice President |
|||
|
Date: |
July 20, 2011 |
|||
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