EXHIBIT 10.26
MASTER AGREEMENT
FOR
OPERATIONS SUPPORT SERVICES
Version 4.0
This Master Agreement is entered into as of May 11, 1999 (the "Effective
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Date"), between
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1. Electronic Data Systems Corporation, a Delaware corporation ("EDS")
AND
2. Equifax Payment Services, Inc., a Delaware corporation ("Equifax").
The Parties agree to the terms and conditions set forth in this Master
Agreement (including the forms of Exhibits and Schedules referenced in this
Master Agreement), and in each Transaction Document (including the Schedules
referenced in each Transaction Document) executed by the Parties referencing
this Master Agreement. Each Transaction Document is incorporated into this
Master Agreement, and the several Transaction Documents and this Master
Agreement are herein collectively referred to as the Agreement.
Signed for and on behalf of EDS:
Electronic Data Systems Corporation
Signature: /s/ Illegible
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Title:
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Signed for and on behalf of Equifax:
Equifax Payment Services, Inc.
Signature: /s/ Illegible
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Title:
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TABLE OF CONTENTS
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Page
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1. PURPOSE/STRUCTURE/TERM OF AGREEMENT..................................... 1
1.1. Purpose of Agreement............................................... 1
1.2. Structure of Agreement............................................. 2
1.3. Term of Agreement.................................................. 2
1.4. Extension of Services.............................................. 2
2. DEFINITIONS............................................................. 2
3. THE SERVICES............................................................ 3
3.1. Obligation to Provide Services..................................... 3
3.2. Performance........................................................ 3
3.3. Disaster Recovery Services......................................... 4
3.4. Inspections and Audits............................................. 4
3.5. Resources and Facilities........................................... 5
3.6. Data and Security.................................................. 6
3.7. Technology Refresh................................................. 7
3.8. Software Licenses.................................................. 7
3.9. Software Currency.................................................. 8
3.10. Viruses........................................................... 9
3.11. Software - Substitutions and Additions............................ 9
3.12. Third Party Agreements - Substitutions and Additions.............. 9
3.13. New Services......................................................10
3.14. Affiliates........................................................10
4. WARRANTIES/REPRESENTATIONS/COVENANTS....................................11
4.1. Work Standards.....................................................11
4.2. Noninfringement....................................................11
4.3. Disabling Code.....................................................11
4.4. Authorization and Enforceability...................................11
4.5. Disclaimer.........................................................11
4.6. Regulatory Proceedings and Compliance with Laws....................11
4.7. Year 2000 Warranty.................................................12
4.8. Covenant of Cooperation and Good Faith.............................12
4.9. Compliance with Standards..........................................12
5. TRANSITION..............................................................12
5.1. Transition Plan....................................................12
5.2. [*]................................................................12
6. INTEGRATED PLANNING TEAM/CHANGE CONTROL PROCESS.........................13
6.1. Integrated Planning Team...........................................13
6.2. Projections/Plans..................................................13
6.3. Agreement Change Control Process...................................14
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
7. SERVICES STAFFING/MANAGEMENT/ADMINISTRATION.............................15
7.1. Project Executives and Managers....................................15
7.2. Replacement of Personnel...........................................15
7.3. Retention of Experienced Personnel.................................15
7.4. Efficient Use of Resources.........................................16
7.5. Key Positions......................................................16
7.6. Hiring of Employees................................................16
8. RELATIONSHIP PROTOCOLS..................................................16
8.1. Evolving Nature of Relationship....................................16
8.2. Required Consents..................................................17
8.3. Appointment as Attorney In Fact....................................18
8.4. Conflicts of Interests.............................................19
8.5. Alternate Providers................................................19
8.6. Use of Subcontractors..............................................20
8.7. Equifax Approvals and Notification.................................20
9. CHARGES/NEW SERVICES/INVOICES/PAYMENTS..................................21
9.1. Disbursements......................................................21
9.2. Monthly Charges....................................................21
9.3. [*]................................................................21
9.4. Annual Adjustment..................................................21
9.5. Taxes..............................................................22
9.6. New Services.......................................................22
9.7. Invoice Payment....................................................22
9.8. Benchmark Study....................................................23
9.9. Service Credits....................................................23
9.10. Other Credits.....................................................24
9.11. RESERVED..........................................................24
9.12. Disputed Charges/Credits..........................................24
9.13. Reduction of Equifax Work.........................................24
10. INTELLECTUAL PROPERTY RIGHTS.............................................25
10.1. Ownership of Materials............................................25
10.2. Obligations Regarding Materials...................................25
11. CONFIDENTIALITY..........................................................26
11.1. Confidential Information..........................................26
11.2. Obligations.......................................................26
11.3. Exclusions........................................................27
11.4. Loss of Company Information.......................................27
11.5. Limitation........................................................27
12. TERMINATION..............................................................27
12.1. Termination By Equifax............................................27
12.2. Termination by EDS................................................28
12.3. [*]...............................................................28
12.4. Services Transfer Assistance......................................28
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
12.5. Other Rights Upon Termination.....................................29
12.6. Effect of Termination/Survival of Selected Provisions.............30
13. LIABILITY................................................................30
13.1. Liability Caps....................................................31
13.2. Exclusions........................................................31
13.3. Direct Damages....................................................31
13.4. Dependencies......................................................31
13.5. Remedies..........................................................32
14. INDEMNITIES..............................................................32
14.1. Indemnity by EDS..................................................32
14.2. Indemnity by Equifax..............................................33
14.3. Employment Actions................................................34
14.4. Exclusive Remedy..................................................34
14.5. Indemnification Procedures........................................35
15. INSURANCE AND RISK OF LOSS...............................................35
15.1. EDS Insurance.....................................................35
15.2. Risk of Property Loss.............................................36
15.3. Mutual Waiver of Subrogation......................................36
16. DISPUTE RESOLUTION.......................................................37
16.1. Dispute Resolution Procedures.....................................37
16.2. Continued Performance.............................................38
17. GENERAL..................................................................39
17.1. Relationship of Parties...........................................39
17.2. Entire Agreement, Updates, Amendments and Modifications...........39
17.3. Force Majeure.....................................................39
17.4. Nonperformance....................................................40
17.5. Waiver............................................................40
17.6. Severability......................................................40
17.7. Counterparts......................................................40
17.8. Governing Law.....................................................40
17.9. Binding Nature and Assignment.....................................40
17.10. Notices..........................................................41
17.11. No Third Party Beneficiaries.....................................41
17.12. Other Documents..................................................41
17.13. Consents and Approvals...........................................42
17.14. Headings.........................................................42
EXHIBITS TO THE MASTER AGREEMENT
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Exhibit
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1 Master Agreement Structure Diagram and Form of Transaction Document
2 Definitions
3 List of Transaction Document Schedules
4 "Integrated Planning Team Charter and Operating Procedures Guidelines"
1. PURPOSE/STRUCTURE/TERM OF AGREEMENT
1.1. Purpose of Agreement
(a) EDS is a provider of a broad range of information technology operations and
support services including, without limitation, information technology,
information management, communications and related services, and is
experienced and skilled in the administration, management, provision and
performance of such services and the business functions, responsibilities
and tasks attendant with such services. EDS desires to provide certain of
these operations and support services to the Equifax Group for the Equifax
Business as currently performed by the Equifax Group and as envisioned to
be required for the Equifax Business and the Equifax Group during the Term,
and to perform and assume the functions, responsibilities and tasks
attendant with such operations and support services. Equifax desires that
such operations and support services for the Equifax Business and the
Equifax Group and the attendant functions, responsibilities and tasks, be
performed and assumed by EDS. This Agreement documents the terms and
conditions under which (1) the Equifax Group will obtain such operations
support services from EDS, and (2) EDS will administer, manage, support,
provide and perform such services and the functions, responsibilities and
tasks attendant with such services, for the Equifax Group.
(b) The Parties have identified certain goals and objectives for the EDS
engagement pursuant to the Agreement. These goals and objectives include
the following: (i) engaging EDS (A) to provide, and cause to be provided
through its Affiliates and subcontractors, certain information technology
operations and support services to the Equifax Group as the Equifax
Business evolves over the Term; (B) to efficiently and timely provide such
operations and support services to, and perform and assume the functions,
responsibilities and tasks attendant with such services for, the Equifax
Business and the Equifax Group at levels appropriate to fulfill the
requirements of the Equifax Business and the Equifax Group; and (C) to
proactively define and propose cost effective solutions to improve the
efficiency and functionality of the information management systems
operations of the Equifax Group comprising such services in support of the
Equifax Business; (ii) securing favorable rates for existing resource
consumption and additions to and reductions in resource consumption by the
Equifax Group and increasing flexibility regarding resources chargeable and
available to the Equifax Group from EDS; (iii) taking advantage of new
and/or proven business processes and information technologies to improve
the performance, efficiency and cost to performance ratios experienced by
the Equifax Group and to enable the Equifax Group to respond to market
requirements for the Equifax Business; (iv) enhancing the current
operations functionality of the Equifax Group's processes, systems and
service levels comprising such services; (v) minimizing any potential
operating and financial risks to the Equifax Group; (vi) ensuring the
efficiency, stability and security of existing and future processes,
systems and service levels; (vii) evolving the support services, processes,
systems and service levels to meet the dynamic requirements of the Equifax
Group and Equifax Business; and (viii) providing processes and procedures
to transition such services back to the Equifax Group or to another service
provider from EDS with minimal disruption.
(c) EDS recognizes that the Equifax Group expects to be treated as a valued and
commercially favored customer. EDS agrees that the definition of customer
satisfaction goes beyond EDS's performance against established service
levels and requires that EDS exhibit a customer service attitude focused on
assisting Equifax where commercially reasonable to attain the goals and
objectives described in Section 1.1(b), including, without limitation,
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reducing the operations support costs of and improving service levels to
the Equifax Group and the customers of the Equifax Group.
(d) The provisions of this Section 1.1 are intended to be a statement of the
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purpose of the Agreement and are not intended to alter the plain meaning of
the terms and conditions of the Agreement or to require either Party to
undertake performance obligations not required by the Agreement. To the
extent that the terms and conditions of the Agreement are unclear or
ambiguous, such terms and conditions are to be interpreted and construed
consistent with the purposes set forth in this Section 1.1.
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1.2. Structure of Agreement
(a) As of the Effective Date, the Services will be grouped around the cluster
of services described in the Schedules to each Transaction Document.
(b) The Agreement is comprised of (i) the provisions set forth in this Master
Agreement and the forms of the Exhibits and Schedules referenced herein;
and (ii) each Transaction Document including the Schedules referenced in
each Transaction Document as illustrated in Exhibit 3.
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(c) The Services will be the subject of one or more Transaction Documents.
Each Transaction Document will include Schedules in the forms described in
Exhibit 1, configured as noted on Exhibit 3. The Transaction Documents
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will collectively define the Services provided to the Equifax Group across
multiple Towers and the terms and conditions upon which the Services will
be provided.
(d) Transaction Documents will be executed by the Parties. The terms of
Transaction Documents will be governed by the terms of the Master Agreement
unless the Parties to an individual Transaction Document expressly
specifically note the deviations from the terms of the Master Agreement for
the purposes of such Transaction Document on a Schedule P to the
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Transaction Document entitled "Deviations From Terms of Master Agreement."
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(e) Each Transaction Document will be submitted to and approved by the
Integrated Planning Team prior to execution by the Parties. The approval
will be evidenced by a representative of each of the Parties, who is also a
member of the Integrated Planning Team, noting and attesting to the
approval of the Integrated Planning Team on a cover sheet to such
Transaction Document.
1.3. Term of Agreement
The Term of the Agreement will begin as of the Effective Date and will terminate
upon the tenth (10th) anniversary thereof, unless earlier terminated or extended
in accordance with the provisions of this Agreement. The term of each
Transaction Document will be for the period set forth therein, which period may
not exceed the Term. If the Parties do not agree upon the terms, conditions and
pricing applicable to such renewal period no later than one hundred eighty (180)
days prior to the expiration date of the Term, Equifax may extend the Term of
the Agreement and the term of any Transaction Document for an additional period
of up to one (1) year on the terms, conditions and pricing then in effect.
1.4. Extension of Services
Equifax may request and EDS will once extend the provision of the Services
Transfer Assistance pursuant to any Transaction Document for the Extension
Period upon not less than ninety (90) days prior written notice before the
scheduled termination or expiration of the provision of the Services or Services
Transfer Assistance, or if applicable, notice given within thirty (30) days
after the effective date of a notice of termination for any reason by either
Party. Any such extension shall be on the terms, conditions and pricing then in
effect at the time of the commencement of such extension including, without
limitation, Section 12.4 of the Agreement.
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2. DEFINITIONS
In the Agreement (including each Transaction Document and the Schedules thereto)
all capitalized terms shall have the meanings set forth in Exhibit 2.
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3. THE SERVICES
3.1. Obligation to Provide Services
(a) Starting on the Commencement Date of each Transaction Document and
continuing during the term of each such Transaction Document, EDS shall
provide the Services to, and perform the Services for, the Equifax Group.
(b) There may be functions, responsibilities, activities and tasks not
specifically described in the Agreement (including the Transaction
Documents) which are required for the proper performance and provision of
the Services and are an inherent part of, or a necessary sub-part included
within, the Services. If such functions, responsibilities, activities and
tasks are determined to be required for the proper performance and
provision of the Services or are an inherent part, or a necessary sub-part
included within, the Services, such functions, responsibilities, activities
and tasks shall be deemed to be implied by and included within the scope of
the Services, to the same extent and in the same manner as if specifically
described in the Agreement (including the Transaction Documents). Each
such determination shall be made by agreement of the Parties or resolved
pursuant to the dispute resolution provisions of Section 16.
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(c) EDS is engaged by Equifax on a non-exclusive basis to provide the Services
under the Agreement and each Transaction Document and accordingly, Equifax
may engage a third party to perform, or itself perform, the Services or
any element of the Services, at any time.
3.2. Performance
(a) EDS agrees that the performance of the Services covered by each Transaction
Document will meet or exceed each of the applicable Performance Standards
and Minimum Service Levels set forth in the Schedules to each such
Transaction Document, subject to the limitations and in accordance with the
provisions set forth in the Agreement.
(b) Concurrent with the Business and Operations Support Plan review process
described in Sections 6.1 and 6.2 and more often if requested by Equifax,
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Equifax and EDS will review and agree to commercially reasonable changes,
modifications, deletions and replacements of and additions to the
Performance Standards, the Minimum Service Levels and the Service Credits
under each Transaction Document for the purposes of better and more timely
reflecting, facilitating and supporting the continuing development, and
evolving priorities of the Equifax Group and the Equifax Business. Any
such changes will be implemented through the Change Control Process. The
Parties intend that the Performance Standards and the Minimum Service
Levels will not be less favorable to the Equifax Group during the term of
the Transaction Document to which they are applicable than they are at the
initiation of the Services pursuant to such Transaction Document, and will
be improved over time. The Parties agree to cooperate and deal with each
other in good faith to promptly resolve on a reasonable basis in consonance
with the purposes of the review process, any differences between the
Parties regarding appropriate changes to, modifications of, additions to,
deletions of and replacements of the Performance Standards, the Minimum
Service Levels and the Service Credits.
(c) Subject to Equifax's prior approval (which approval shall not be
unreasonably withheld), EDS shall implement the necessary measurement and
monitoring tools and procedures required to set Resource Unit Baseline
measurements and to measure and report EDS's performance of the Services
against the Performance Standards and Minimum Service Levels as such
standards and levels may be developed, modified and changed during the term
of each Transaction Document and as the Services may evolve and be
supplemented and enhanced during each such term. Such measurement and
monitoring shall permit reporting at a reasonable level of detail
sufficient to verify compliance with the Performance Standards and Minimum
Service Levels and application of any attendant Service Credits. EDS shall
prepare and maintain detailed records regarding its compliance with the
Performance Standards and Minimum Service Levels and the determination and
application of attendant Service Credits, and shall permit Equifax and its
designees access to all such records for the purposes of performing
verifying audits, planning and identifying possible process improvements.
Upon request, EDS shall provide
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Equifax with information and reasonable access to such tools and
procedures, and the records relating thereto, for purposes of verification
of the reported performance levels.
3.3. Disaster Recovery Services
EDS will provide Disaster Recovery Services under each Transaction Document in
accordance with Schedule G to each Transaction Document. If EDS fails to
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provide Disaster Recovery Services to the extent and in accordance with the time
table set forth in such Schedule G for a period set forth therein, Equifax will
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be entitled, at its election to terminate such Transaction Document pursuant to
Section 12.1(a) (without giving the notices and observing the cure periods set
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forth in Section 12.1(a)) upon written notice to EDS. If Equifax elects to
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terminate such Transaction Document as described in this Section 3.3, Equifax
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shall give notice to EDS of such election within thirty (30) days after the
occurrence of the event on which such termination is based. In the event of a
termination of such Transaction Document is authorized under this Section 3.3,
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Equifax shall not be required to pay any Termination Charges or Wind-Down
Expenses to EDS. Such termination shall not constitute the sole and exclusive
remedy of Equifax for such failure of performance by EDS, and Equifax may treat
such termination as a termination for cause pursuant to Section 12.1(a).
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3.4. Inspections and Audits
(a) EDS shall maintain a complete audit trail of all financial and non-
financial transactions resulting from or arising in connection with the
Agreement. EDS shall provide to Equifax, its auditors (including internal
audit staff and external auditors), inspectors, regulators and other
representatives as Equifax may from time to time designate in writing,
access at all reasonable times to any facility or part of a facility at
which either EDS or any of its subcontractors is providing the Services, to
EDS personnel, and to data and records relating to the Services for the
purpose of performing audits and inspections of either EDS or any of its
subcontractors to:
(1) verify the accuracy of Monthly Charges, other charges and invoices;
(2) verify the integrity of Equifax's data and examine the systems that
process, store, support and transmit that data; and
(3) examine EDS's performance of the Services including, to the extent
applicable to the Services performed by EDS and to the Monthly Charges
therefor, performing audits (A) of practices and procedures, (B) of
systems, (C) of general controls and security practices and procedures, (D)
of disaster recovery and back-up procedures, (E) of the efficiency and
costs of EDS in performing the Services (but only to the extent affecting
Monthly Charges for, or timing of, Services hereunder), and (F) any audit
necessary to enable Equifax to meet applicable regulatory requirements.
However, neither Equifax nor its auditors will be allowed access to other
EDS or EDS Affiliates customer's records. Nothing in the Agreement shall
limit or restrict Equifax's or EDS's rights in discovery proceedings
pursuant to any civil litigation.
(b) EDS shall prepare and maintain detailed records regarding its compliance
with the Performance Standards and Minimum Service Levels and the
determination and application of attendant Service Credits, and shall
permit Equifax and its designees access to all such records for the
purposes of performing verifying audits, planning, and identifying possible
process improvements. Upon request, EDS shall provide Equifax with
information and reasonable access to such records and the service
performance measurement tools and procedures relating thereto, for purposes
of verification of the reported performance levels.
(c) EDS shall provide to Equifax's auditors, inspectors, regulators, and
representatives such assistance as they require, including installing and
operating audit software. EDS shall cooperate fully with Equifax or its
designees in connection with audit functions and with regard to
examinations by regulatory authorities.
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Equifax's auditors and other representatives shall comply with EDS's
reasonable security requirements. EDS shall maintain financial records for
four (4) years after the performance of the Services.
(d) Such access will require twenty-four (24) hour notice to EDS and will be
provided at reasonable hours. If any audit or examination reveals that
EDS's invoices for the audited period are not correct (other than amounts
in dispute pursuant to Section 9.12), EDS shall promptly reimburse Equifax
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for the amount of any overcharges, or Equifax shall promptly pay EDS for
the amount of any undercharges. If any such audit activities interfere to
a material extent with EDS's ability to perform the Services in accordance
with the Performance Standards and Minimum Service Levels under any
Transaction Document, EDS shall be relieved of such performance obligations
under such Transaction Document to the extent caused by such audit
activity. If the assistance required of EDS shall cause EDS to expend
unavoidable substantial resources and incur substantial additional costs
not within the scope of the Services and Resource Unit Baselines to provide
such assistance, Equifax shall reimburse EDS for such reasonable and
necessary costs.
(e) EDS agrees to make any changes and take other actions which are necessary
in order to maintain compliance with laws and/or regulations applicable to
its performance and provision of the Services. Equifax may submit to EDS
findings and recommendations regarding compliance by EDS with applicable
laws and regulations which EDS will analyze and consider in good faith.
EDS shall promptly respond to Equifax regarding EDS's evaluation and
activity plan for such findings and recommendations.
3.5. Resources and Facilities
(a) To enable EDS to provide the Services, Equifax may agree under a
Transaction Document to provide [*] of the Equifax Provided Hardware,
Equifax Provided Office Furnishings, Data Center and other Equifax
facilities and offices services such as reasonable telephone services
already subscribed to by Equifax for the sole purpose of providing and
performing the Services covered by the Transaction Document for the Equifax
Group. Equifax Provided Hardware, Equifax Provided Office Furnishings, Data
Center and other facilities will be provided "AS IS". EDS shall have
inspected such equipment and facilities and determined that the provided
items meet EDS's need. Equifax shall not be responsible to EDS for ensuring
such Equifax Provided Hardware, Equifax Provided Office Furnishings, Data
Center and other facilities provide for a safe working environment,
including compliance with applicable laws and regulations. EDS shall
maintain the Equifax Provided Hardware, Equifax Provided Office Furnishings
and Acquired Customer Hardware. EDS shall take no action that will
compromise the safety of the working environment that includes the Equifax
Provided Hardware, Equifax Provided Office Furnishings, Data Center,
Acquired Customer Hardware and other facilities provided by Equifax to EDS,
or violate the laws and regulations applicable thereto. When the Equifax
Provided Hardware, Equifax Provided Office Furnishings, Data Center and
other Equifax facilities and office services are no longer deemed necessary
to perform the Services, Equifax's obligations set forth in this Section
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3.5 and in any Transaction Document with respect to each such item of
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resources shall terminate.
(b) The use by EDS of the Equifax Provided Hardware, Equifax Provided Office
Furnishings, Data Center and other Equifax facilities described in the
Agreement (including any Transaction Documents) will not constitute or
create any lease, leasehold interest, estate for any period or other
similar interest in EDS, but instead will constitute a license to use such
items for the periods and subject to the terms of the Agreement.
(c) Except as otherwise provided in the Agreement, EDS will have the
responsibility and obligation to provide and administer, manage, support,
maintain and pay for all resources (including, without limitation,
personnel, hardware, software, facilities, services and other items,
however described) necessary or appropriate for EDS to provide, perform and
deliver the Services as described in the Agreement.
(d) In addition to the Affected Employees, if any, EDS will provide and have on
site as set forth in each Transaction Document its Project Manager under
each such Transaction Document prior to the Commencement Date thereunder
and for the duration of the term of each such Transaction Document, and
will timely provide an adequate number of additional trained and qualified
personnel as necessary or appropriate to
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
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facilitate and ensure the timely and proper definition, provision,
performance and delivery of the Services in accordance with the Agreement.
(e) EDS will have the right to change the location of the EDS activities
associated with the Services under any Transaction Document with the prior
written consent of Equifax, which consent shall not be unreasonably
withheld. Among the factors Equifax may consider in determining whether to
grant any such consent, Equifax may consider whether any and all changes in
the location of such EDS activities may result (i) in a reduction of EDS's
ability to perform the Services and the Business and Operations Support
Plan; (ii) in any reduced accessibility to EDS and/or the Services by the
Equifax Group; (iii) in any deterioration of the Services; (iv) in any
decrease in the security or integrity of operations and Company Information
of the Equifax Group; and (v) in any additional cost to Equifax.
(f) EDS will provide reasonable access to the portion of the Facilities used by
EDS to provide and perform the Services (including, without limitation, the
attendant Machines and Software) (i) to the Equifax Group's authorized
employees, agents and representatives as necessary or appropriate for the
performance, delivery and use of the Services by the Equifax Group and for
the operation, maintenance, upgrade, support and use of any other Equifax
hardware, software and other resources located in the Facilities and Data
Center, and (ii) to Third Party Providers and third party vendors and
suppliers of installation, maintenance, support and upgrade services,
technology and hardware for the System and any other Equifax hardware,
software and other resources located in the Facilities and Data Center. To
the extent practical in light of such installation, maintenance, support
and upgrade requirements, Equifax will provide twenty-four (24) hours
notice to EDS prior to any visits by such Third Party Providers and third
party vendors and suppliers.
(g) All access to the portion of the Facilities and Data Center used by EDS to
provide and perform the Services shall be subject to reasonable (i) data
and records protection and physical security measures (including Equifax's
physical security requirements) and (ii) such Equifax Group employees,
agents and representatives and Third Party Providers and third party
vendors and suppliers' undertaking reasonable confidentiality requirements
relating to such visits.
3.6. Data and Security
(a) Equifax will authorize all access to all Software operated by EDS in
support of the Services covered by each Transaction Document and Company
Information and other records of the Equifax Group in the possession of EDS
through the data and records security procedures as described in Schedule L
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to such Transaction Document. EDS shall notify Equifax of the identity of
each of the entities and personnel working with EDS to provide and perform
the Services covered by each Transaction Document that are to be authorized
access to the Software utilized in support of the Services covered by such
Transaction Document and the level of security access required by each.
The Parties shall cooperate in administering security procedures regarding
such access, in accordance with such Schedule L. EDS will enable such
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access by persons as designated by Equifax and deny such access to all
other persons, in accordance with such Schedule L.
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(b) All of Equifax's Company Information (including, without limitation, data,
records and reports related to the Equifax Group, the Equifax Business and
the Services) whether in existence at the Commencement Date of a
Transaction Document or compiled thereafter in the course of performing the
Services, is the exclusive property of Equifax and the furnishing of such
information, data, records and reports to, or access to such items by, EDS
and/or its subcontractors will not grant any express or implied license to
or interest in EDS and/or its subcontractors relating to such information,
data, records and reports except as required to perform the Services
pursuant to the Agreement. Upon request by Equifax at any time and from
time to time and without regard to the default status of the Parties under
the Agreement, EDS and/or its subcontractors shall promptly deliver to
Equifax Equifax's Company Information (including without limitation all
data, records and related reports regarding the Equifax Group, the Equifax
Business and the Services) in electronic (tape) format and in such hard
copy as existing on the date of the request by Equifax.
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3.7. Technology Refresh
EDS will refresh the information technologies components of the Services
(including both hardware and software components) as specifically provided in
the Agreement (including each Transaction Document) and as otherwise authorized
by Equifax from time to time. This Section 3.7 shall not affect or limit EDS's
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obligations or authority to perform the repair, replacement, maintenance and
upgrade functions and services as set forth in the Agreement as part of the
Services, including, without limitation, responsibility for the Machines,
Software Maintenance, Maintenance Releases and Versions of the Software.
3.8. Software Licenses
(a) EDS will comply with all license obligations under all licenses and
maintenance agreements for the Software, including, without limitation, the
obligations of nondisclosure and scope of use. However, EDS will only be
obligated under this Section 3.8(a) with regard to the licenses and
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maintenance agreements for Equifax Software to the extent the obligations
thereunder are disclosed to EDS. EDS shall be deemed to have reviewed and
accepted the obligations under the licenses and maintenance agreements for
the Equifax Software (if any) listed on the Schedules A and B to each
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Transaction Document as of the Commencement Date under each such
Transaction Document.
(b) All EDS Software provided by EDS in connection with the Services and any
Equifax Software licensed under a Third Party Agreement shall be licensed
(and the attendant maintenance arrangements contracted) in the name of the
Equifax Group member designated by Equifax as the licensee with EDS having
the right to access and use such Software in performing the Services,
unless EDS can procure such Software (and/or attendant maintenance
arrangement) on a more cost effective basis licensed in its own name.
(c) EDS shall not direct the Equifax Group to terminate, extend, replace, amend
or add licenses for the Software and/or the maintenance arrangements
attendant therewith, contracted in the name of a member of the Equifax
Group without notifying Equifax in writing of the proposed action by EDS
and without obtaining Equifax's prior written agreement. Moreover, EDS
shall provide to Equifax a written report of the reasons for, and the
impact and ramifications on the Services of, such proposed action
concurrently with such notification. In addition, if such action by EDS
with respect to a license and/or maintenance arrangement for the EDS
Software will have an impact on the Services or the monitoring and/or
evaluation of the Services in a manner that in turn will have an impact on
the operations or costs of the Equifax Group or the ability of EDS or
Equifax to monitor and/or evaluate the performance and delivery of the
Services, EDS will provide or cause to be provided the programs, services,
rights and other benefits and resources that are the subject of such
licenses and maintenance agreements to the Equifax Group on terms no less
favorable than the terms of such license and maintenance agreements and
ensure that there shall be no negative impact on the ability of EDS or
Equifax to monitor and/or evaluate the performance and delivery of the
Services. If Equifax in connection with or resulting from EDS's
termination, replacement, amendment or addition of any license for EDS
Software and/or maintenance arrangement incurs additional expenses or other
costs, including but not limited to personnel costs, EDS shall promptly
reimburse Equifax for such costs.
(d) EDS shall use commercially reasonable efforts to obtain from the applicable
Software vendors a right to assign or transfer to Equifax, without any
payment of any additional fee or charge by Equifax, any licenses (and
attendant maintenance arrangements) for the Software licensed and
contracted in EDS's name as licensee upon termination or expiration of the
Agreement and as applicable, each Transaction Document.
(e) If EDS is unable to obtain from the applicable Software vendor the rights
described in Section 3.8(d) above, and, in any event, prior to (i) the
--------------
addition to the EDS Software of any software which is not listed in
Schedules A or B to a Transaction Document for the Equifax operations
----------- -
covered by such Transaction Document; or (ii) any upgrade, enhancement or
modification of any EDS Software listed in the Schedules A or B to a
----------- -
Transaction Document for the Equifax operations covered by such Transaction
Document, EDS shall (A) obtain Equifax's prior written consent for any such
actions, (B) provide Equifax with information regarding the amount of any
fees and other reasonable requirements Equifax would be required to
undertake in order to obtain a license to and maintenance for such EDS
Software upon the expiration or termination of the Agreement and as
applicable,
7
each Transaction Document, and (C) use commercially reasonable efforts to
obtain a firm commitment from the providers of such EDS Software to license
and provide maintenance for the EDS Software to Equifax upon the expiration
or termination of the Agreement upon the payment of such fees and
satisfaction by Equifax of such requirements. If Equifax does not respond
to a request for consent from EDS within twenty-one (21) business days
after receipt of such request together with the information and
confirmation of the actions required of EDS in this Section 3.8(e).* EDS
--------------
shall consider and take into account in the negotiation of its licensing
and maintenance arrangements with providers of the EDS Software, Equifax's
reasonable concerns regarding the terms and conditions of such EDS Software
licenses and maintenance agreements and make such licenses, maintenance
agreements and related documentation available to Equifax upon request.
(f) If Equifax in connection with or resulting from EDS's termination,
replacement, amendment or addition of any license for EDS Software and/or
maintenance arrangement incurs additional expenses, costs or Losses,
including but not limited to personnel costs, and EDS has been notified in
writing by Equifax of its estimate of such financial impact prior to EDS's
implementation of such action and EDS elects to proceed, EDS shall promptly
reimburse Equifax for such amounts actually incurred by Equifax. However,
in each instance in this Section 3.8 that Equifax provides EDS an estimate
-----------
of the financial impact of any action by EDS on Equifax, the amounts
recoverable from EDS by Equifax in each such instance shall not exceed the
amount of the written estimate provided by EDS for each such instance.
(g) EDS will provide to Equifax, and update as changes occur, a listing of all
Software by name, Maintenance Release and Version promoted into production
on each Machine at each location of the Machines.
3.9. Software Currency
(a) The Parties agree to maintain reasonable currency for Maintenance Releases
and Versions of Software, unless Equifax requests otherwise. For purposes
of this Section 3.9, "reasonable currency" shall mean that the next
-----------
Maintenance Release or Version (a) is installed not later than the longer
of (i) twelve (12) months after the date the licensor makes such
Maintenance Release or Version commercially available, or (ii) within one
(1) month after the date the licensor makes a subsequent Maintenance
Release or Version commercially available which causes Equifax to be more
than one Maintenance Release or Version behind, unless such Maintenance
Release or Version contains defects, Viruses, Disabling Code or similar
infirmities identified by the Parties, or either of them, that will
adversely affect Equifax's operations, in which case, the previous
Maintenance Release or Version will be deemed "reasonably current."
(b) If Equifax requests EDS to expedite installation of a Maintenance Release
or Version or to delay the installation of a Maintenance Release or Version
of specific Software beyond the period described in Section 3.9(a) or
--------------
requires operation and maintenance of multiple Versions of Software, EDS
shall do so, provided that if EDS reasonably determines that it will incur
any costs as a result of such requests (e.g., Software support costs due to
withdrawal of maintenance by the licensor, multiple version charges, etc.)
for resources not otherwise required to perform the Services under the
applicable Transaction Document or covered under a current Resource Unit
Baseline for such Transaction Document, then EDS will notify Equifax of the
amount of such costs in writing and Equifax, at its option, will either
delay installation of such Maintenance Release or Version or update the
Software to the current level (as applicable) or reimburse EDS for any
demonstrable, reasonable and necessary costs. The installation and
promotion into production of each Maintenance Release and Version shall be
performed in accordance with the Change Control Process.
(c) In addition, Equifax shall relieve EDS from any failure to meet a
Performance Standard or Minimum Service Level to the extent directly
impacted by the delay or acceleration of the next Maintenance Release or
Version until such time as the affected Software is brought to "reasonable
currency" as defined in this Section 3.9.
-----------
- -----------
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
8
3.10. Viruses
EDS will take commercially reasonable measures to ensure that no Virus or
similar items are coded or introduced into the System and the operating
environments used to provide the Services. EDS will continue to perform and
maintain the Virus protection and correction procedures and processes in place
at the Equifax Group prior to the Commencement Date of each Transaction
Document, and will continue to review, analyze and implement improvements to and
upgrades of such Virus prevention and correction programs and processes that are
commercially reasonable and consistent with the information technology
industry's standards. If a Virus is found to have been introduced into the
System and the operating environments used to provide the Services, EDS shall
use commercially reasonable efforts and diligently work to eliminate the effects
of the Virus. However, EDS shall take immediate action to remediate the Virus'
proliferation.
3.11. Software - Substitutions and Additions
(a) Equifax may add Software to, or delete Software from, Schedules A and B to
----------- -
any Transaction Document. If Equifax requests a substitution of any
Software under any Transaction Document for which EDS has financial
responsibility, Equifax shall pay or receive a credit in the amount by
which the periodic license or maintenance fees, or EDS surcharge for non-
standard operating systems software, if any, attributable to the
substituted Software exceeds or are less than the then-current license or
maintenance fees being paid by EDS (if any) attributable to the Software
being replaced. If Equifax deletes any Software from the Schedules A and B
----------- -
to a Transaction Document and does not immediately substitute any other new
Software therefor, Equifax may utilize an amount equal to the then-current
applicable license and/or maintenance Monthly Charges attributable to such
deleted Software to offset the Monthly Charges attributable to any new
Software or receive a credit in such amount. EDS will provide Equifax with
the requisite license and/or maintenance fees support documentation to
assist Equifax in evaluating the decision to replace such Software. If
Equifax adds any Software to Schedules A and/or B under any Transaction
----------- -
Document, the Parties will negotiate the financial responsibility terms for
such Software. To the extent EDS is relieved of payment obligations to any
Third Party Provider, Equifax will receive a credit against the monthly
charges in the amount of such reduction.
(b) EDS agrees to promote into or remove from production, use and operation any
Software selected by Equifax. However, any resources (software, hardware,
personnel, etc.) required to install, delete and/or operate such added
Software that is not otherwise required to provide the Services under such
Transaction Document, or covered under a current Resource Unit Baseline for
such Transaction Document, will be provided as New Services pursuant to
Section 3.13. Equifax shall be permitted by EDS to audit, control and
------------
approve all new Software prior to its promotion into production, and EDS
shall provide the cooperation, information and access necessary or
appropriate to permit Equifax to perform such functions. Schedules A, B
----------- -
and F will be amended to reflect any changes to the Software.
-
(c) If EDS timely notifies Equifax that any software requested by Equifax to be
substituted for, deleted from, or added to the Software will have an
adverse impact on the operation of the System before such action is
effected and Equifax directs EDS to effect such action even in view of such
notice, EDS shall be relieved of any failure to satisfy the Performance
Standards and Minimum Service Levels to the extent, and only to the extent,
such action affects EDS's ability to satisfy such Performance Standards and
Minimum Services Levels.
3.12. Third Party Agreements - Substitutions and Additions
(a) Equifax may add Third Party Agreements to, or delete Third Party Agreements
from, the Schedule F to any Transaction Document. If under any Transaction
----------
Document Equifax requests a substitution of any Third Party Agreements
(other than a license or maintenance agreement for software described in
Section 3.11) for which EDS has financial responsibility, Equifax shall pay
------------
or receive a credit in the amount by which the periodic fees attributable
to the substituted Third Party Agreement exceed or are less than the then-
current periodic fees being paid by EDS attributable to the Third Party
Agreements being replaced. If Equifax requests deletion of any Third Party
Agreements for which EDS has financial responsibility from Schedule F to a
----------
Transaction Document and does not immediately substitute any other new
Third Party Agreements therefor, Equifax may utilize an amount
9
equal to the then-current applicable periodic fees attributable to such
deleted Third Party Agreements to offset the fees attributable to any new
Third Party Agreements or receive a credit in such amount against the
Monthly Charges. EDS will provide Equifax with the requisite fees support
documentation to assist Equifax in evaluating the decision to replace such
Third Party Agreements. If Equifax adds any Third Party Agreement(s) to
Schedule F under any Transaction Document, the Parties will negotiate the
----------
financial responsibility terms for such Third Party Agreement(s).
(b) If EDS timely notifies Equifax that any Third Party Provider services
requested by Equifax be substituted for, deleted from, or added to,
Schedule F will have an adverse impact on the operation of the System
----------
before such action is effected and Equifax directs EDS to effect such
action even in view of such notice, EDS shall be relieved of any failure to
satisfy the Performance Standards and Minimum Service Levels to the
extent, and only to the extent, such action affects EDS's ability to
satisfy such Performance Standards and Minimum Services Levels.
3.13. New Services
(a) During the Term, Equifax may request EDS to perform one or more New
Services. Further, Equifax's request for a New Service may include a
request for EDS to correspondingly reduce or eliminate one or more existing
elements of the Services then being provided under the applicable
Transaction Document that are being replaced by the New Services. In such
event, EDS shall determine the resources and expenses related to the
element or elements of the Services being reduced or eliminated and those
required for the New Services being added.
(b) Promptly after receiving each request for New Services from Equifax, EDS
will provide a written quote for such New Services to Equifax setting forth
the net increase or decrease in the Monthly Charges and/or other charging
methodologies under the applicable Transaction Document, and as applicable,
increases and decreases in existing Resource Unit Baselines and additional
Resource Unit Baselines (if any) that will be attributable to such New
Services and will concurrently deliver to Equifax as part of such quote a
detailed description of and proposal for the New Services together with a
report regarding the ramifications and impacts of such New Services on the
Services under such Transaction Document and all other Transaction
Documents affected by the New Services request. All changes in the
Monthly Charges and other charging methodologies will be based upon the
required proportional increase in personnel, System and other resources
applicable to the New Services relative to the Monthly Charges and other
existing charging methodologies. Upon receipt of such quote and other
documentation, Equifax may then elect to have EDS perform the New Services,
and the Monthly Charges and other charging methodologies and Resource Unit
Baselines (if applicable) under the affected Transaction Document will be
established and/or adjusted to reflect such New Services in a written
amendment to the Agreement in accordance with Section 17.2.
------------
Notwithstanding the foregoing, nothing herein shall be deemed to obligate
Equifax to obtain New Services from EDS.
(c) The Parties agree that changes during the Term in functions,
responsibilities and tasks that are within the scope of the Services will
not be deemed to be New Services, if such functions, responsibilities and
tasks evolved or were supplemented and enhanced during the Term by EDS in
its sole discretion or pursuant to the provisions of the Agreement.
3.14. Affiliates
If any member of the Equifax Group creates, initiates, or acquires any
additional Affiliates or other operations or assets during the Term and desires
that EDS provide the Services for such Affiliates or other operations or assets,
EDS will provide Equifax and/or such Affiliates or other operations or assets
with Services in accordance with the Agreement, subject to mutually agreed
additional charges if acceptance of such responsibilities by EDS would require
usage of Baseline Resources in excess of the Baseline Resources set forth in the
Agreement, or additional charges, if acceptance of such responsibilities by EDS
would require the performance of New Services as described in Section 3.13, or
------------
additional charges by the vendors of the Software in order to expand the scope
of use of the Software by the Equifax Group.
10
4. WARRANTIES/REPRESENTATIONS/COVENANTS
4.1. Work Standards
EDS warrants, represents and covenants that (a) it has, and during the Term will
have, and each of the EDS employees and subcontractors that it will use to
provide and perform the Services has and during the Term will have, the
necessary knowledge, skills, experience, qualifications, rights and resources to
provide and perform the Services in accordance with the Agreement; (b) it has
successfully provided and performed the Services or services that are
substantially equivalent to the Services for other customers of EDS; and (c) the
Services will be performed for the Equifax Group in a diligent, workmanlike
manner in accordance with generally accepted, industry standards applicable to
the performance of such services.
4.2. Noninfringement
Each of the Parties covenants that it will perform its responsibilities under
the Agreement in a manner that does not infringe, or constitute an infringement
or misappropriation of, any patent, Trade Secret, copyright or other proprietary
right of any third party. Notwithstanding this provision or any other provision
in the Agreement, Equifax makes no warranty or representation with respect to
any claims for such infringement or misappropriation by virtue of its compliance
with obligations herein to provide EDS access to, use of or benefits of any
Third Party Agreements prior to receiving the necessary Required Consents.
However, this Section 4.2 shall not relieve Equifax from any liability or
-----------
obligation under Sections 8.2 and 14.2.
------------ ----
4.3. Disabling Code
EDS covenants that EDS will take commercially reasonable steps to ensure that no
Disabling Code in the Software will be permitted to be invoked without the prior
written consent of Equifax. EDS further covenants that with respect to any
Disabling Code that may be part of the Software, EDS will not invoke Disabling
Code at any time, including upon expiration or termination of the Master
Agreement or any Transaction Document for any reason, without Equifax's prior
written consent.
4.4. Authorization and Enforceability
Each Party hereby represents and warrants that: (a) it has all requisite
corporate power and authority to enter into, and fully perform pursuant to, the
Agreement; (b) the execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated hereby have been duly and properly
authorized by all requisite corporate action on its part; and (c) the Agreement
has been duly executed and delivered by such Party.
4.5. Disclaimer
(a) Subject to the obligations of EDS to satisfy the Performance Standards and
Minimum Service Levels and provide the Services as set forth in the
Agreement without material denigration or interruption, EDS does not assure
uninterrupted or error-free operation of the Software and Machines.
(b) EXCEPT AS PROVIDED IN THE AGREEMENT, THERE ARE NO OTHER EXPRESS WARRANTIES
OR COVENANTS, AND THERE ARE NO IMPLIED WARRANTIES OR COVENANTS, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR COVENANTS OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
4.6. Regulatory Proceedings and Compliance with Laws
Each Party agrees at its cost and expense to obtain all necessary regulatory
approvals applicable to its business, to obtain any necessary permits for its
business, and to comply with all laws and regulatory requirements applicable to
the performance of its obligations under the Agreement.
11
4.7. Year 2000 Warranty
EDS warrants to Equifax that the Services will not be adversely affected in any
way by any date data, date setting, date value, date input or other date related
data and any combination thereof (including leap year), whether falling on,
after or before January 1, 1999, September 9, 1999, December 31, 1999, or
January 1, 2000, excluding Services failures and other problems caused by year
2000 defects in the Applications Software - Equifax.
4.8. Covenant of Cooperation and Good Faith
The Parties covenant to timely and diligently cooperate to effect the goals,
objectives and purposes of the Agreement and to facilitate the performance of
their respective duties and obligations under the Agreement in a commercially
reasonable manner. Further, the Parties agree to deal and negotiate with each
other and their respective Affiliates in good faith in the execution and
implementation of their duties and obligations under the Agreement. However,
except as provided in Section 8.3, nothing in this Agreement or any Transaction
-----------
Document shall be construed as creating a relationship in which EDS is the
fiduciary of Equifax.
4.9. Compliance with Standards
EDS warrants, represents and covenants that EDS will comply with, and the EDS
personnel, EDS facilities, systems (hardware, software and network, processes
and procedures) used to provide the Services will meet or exceed, all standards
applicable to the credit card and check processing businesses, including,
without limitation, Visa, MasterCard and FDIC requirements.
5. TRANSITION
5.1. Transition Plan
(a) Prior to the Commencement Date for each Transaction Document or such other
date as the Parties may agree, EDS and Equifax through the Integrated
Planning Team will have developed and agreed upon the Transition Plan set
forth in Schedule H to such Transaction Document, describing (i) the
----------
transition from the Equifax Group to EDS of the Affected Employees (if
any); (ii) the transition of the administration, management, operation
under and financial responsibility for the Third Party Agreements from the
Equifax Group to EDS; and (iii) the transition of the performance of and
responsibility for the other functions, responsibilities and tasks
currently performed by the Equifax Group which comprise the Services
covered by such. Starting on the Commencement Date, the Transition Plan
shall be implemented and completed over a mutually agreed Transition
Period, which period shall in no event extend beyond a date certain set
forth in such Transaction Document, without the prior written agreement of
the Parties. Notwithstanding the foregoing in this Section 5.1(a), EDS's
--------------
and Equifax's responsibilities and obligations with respect to the Affected
Employees, the Third Party Agreements and the other elements of the
Services as set forth in the Agreement shall commence on the dates set
forth in such Transaction Document, but in no event later than the
Commencement Date under such Transaction Document.
(b) During the Transition Period, Equifax will cooperate with EDS in
implementing the Transition Plan by providing Transition Personnel and
performing the tasks described for Equifax in the Transition Plan. During
the Transition Period, EDS will be responsible for the provision of the
Services covered by each Transaction Document (including within those
Services the implementation of the Transition Plan).
5.2. [*]
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
12
6. INTEGRATED PLANNING TEAM/CHANGE CONTROL PROCESS
6.1. Integrated Planning Team
(a) The Parties shall form and participate in an Integrated Planning Team in
accordance with the provisions of this Section 6 for the following
---------
purposes: (i) to provide leadership and direction for the relationship
over the Term of the Agreement; (ii) to define and forecast the resources
required to be allocated by EDS to perform and deliver the Services
pursuant to the procedures and processes for the preparation and update of
the Business and Operations Support Plan; (iii) to define and evaluate the
objectives, substance, pricing and performance of the Services and pricing
of new and replacement services; (iv) to periodically evaluate the business
and operating strategies of each Party and recommend modifications to, and
evolution of, the Services (including the Performance Standards and Minimum
Service Levels) to optimize such strategies and determine the effect that
any modifications of the Services may have on the fees chargeable by EDS
under the Agreement; and (v) to report to Equifax and EDS regarding each of
the foregoing areas.
(b) The Integrated Planning Team will be comprised of staffs from both Parties,
representing technology and business management, as provided in Exhibit 4
---------
and each Transaction Document. The Integrated Planning Team will be co-
chaired by Equifax's Robert E. Smith and EDS's Mary Workman through the
first year of the Term and then the Integrated Planning Team shall be co-
chaired as mutually agreed by the Parties thereafter. The "Charter and
-----------
Operating Procedures Guidelines" for the Integrated Planning Team are set
-------------------------------
forth in Exhibit 4 and may be modified by the Parties from time to time
---------
during the Term upon mutual agreement.
6.2. Projections/Plans
(a) Commencing on May 1, 1999 and on January 1 and on June 1 of each year of
the Term thereafter, Equifax will provide to the Integrated Planning Team
its projected business and volume requirements for the Services for the
next twelve (12) and twenty-four (24) calendar months. Further, in the
first week of each calendar quarter, Equifax will provide to the Integrated
Planning Team in the first week of each calendar quarter its forecasted
business and volume requirements for the Services for the following
calendar quarter. The quarterly forecast may be amended by Equifax on
ninety (90) days' prior written notice. Within thirty (30) days after
receipt of each such projection and amendment, EDS will review and respond
to the projections from Equifax with the technical requirements that it
deems necessary to satisfy the business and volume requirements projected
by Equifax. After review and acceptance by the Integrated Planning Team,
the EDS response will be incorporated into the Business and Operations
Support Plan.
(b) Commencing on June 1, 1999 and on February 1 and on July 1 of each year
during the Term thereafter, EDS will provide to the Integrated Planning
Team the then-current Business and Operations Support Plan. The Business
and Operations Support Plan will be composed of a short-term, technical
plan covering twelve (12) months and any long-range, strategic plan
covering twenty-four (24) months, both of which will be driven by the
Equifax Group's business goals and objectives as reflected in the
projections described in Section 6.2(a) above. The short-term plan will
--------------
include an identification of support, processes, systems, resources and
changes required by the Equifax Group, and a projected time schedule for
developing, integrating and implementing the requirements. The long-range
plan will treat the strategic aspects of the support of the business goals
and objectives of the Equifax Group as set forth in the projections
described in Section 6.2(a), including, without limitation, flexible use of
--------------
resources managed by EDS as part of the Services in support of the Equifax
Group's business priorities and strategies.
(c) EDS will draft the Business and Operations Support Plan with Equifax's
active participation, cooperation and advice through the Integrated
Planning Team. EDS will provide input for the plan regarding industry
trends with respect to the Services and proposals with regard to the
Services for process improvements, change management, skill development,
quality improvement, cost per Resource Unit reductions,
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933
13
increased efficiency and flexibility in operations and resource
utilization, and enhanced functionality. The final Business and Operations
Support Plan for each six (6) month period will be provided by EDS based on
the mutual agreement of the Parties, with any disputed matters being
submitted to the dispute resolution process set forth in Section 16. The
----------
Business and Operations Support Plan will be reviewed and updated at least
semi-annually thereafter. Any changes to the Agreement or the Services
required by the Business and Operations Support Plan will be defined,
approved and implemented in accordance with the Change Control Process set
forth in Section 6.3.
-----------
6.3. Agreement Change Control Process
(a) Within thirty (30) days after the Commencement Date and for the remainder
of the Term, the Parties shall define, establish, implement, document and
maintain a Change Control Process for activities, processes, provisions and
operations under the Agreement (including each Transaction Document) and to
evolve the Services. The purposes and objectives of the Change Control
Process are (i) to review each Change Request to the Agreement (including
any Transaction Document) and the Services to determine whether such change
is appropriate, (ii) to determine whether such change is within the scope
of the Services or constitutes a New Service under the applicable
Transaction Documents, (iii) to prioritize all Change Requests, (iv) to
minimize the risk of exceeding both time and cost estimates associated with
the requested changes by identifying, documenting, quantifying,
controlling, managing and communicating requested changes and their
disposition and as applicable, implementation; and (v) to identify the
different roles, responsibilities and actions that shall be assumed and
taken by the Parties to define and implement the changes to the Services
and to the Agreement (including any Transaction Document). The Project
Executives shall be the focal point for all Change Requests and shall be
responsible for promptly and diligently effecting the activities set forth
above in this Section 6.3 with respect to each Change Request.
-----------
(b) The Change Control Process shall include, at a minimum:
(i) Changes to the Agreement (including any Transaction Document) and Services
may be requested by either Party. Since a change may affect the price,
Schedule J, Performance Standards, Minimum Service Levels, Service Credits
----------
and/or other terms, both the Equifax and EDS Project Executives must review
and approve, in writing, each Change Request before any Change Request is
implemented.
(ii) The Party proposing a Change Request will prepare a Change Request Form,
describing the change, the rationale for the change and the effect that
change will have (if completed) or the impact it will have (if rejected) on
the Agreement, any Transaction Document and/or the Services.
(iii) Equifax's or EDS's Project Executive, as appropriate, will review the
proposed Change Request. If accepted, the Change Request Form will be
submitted to the other Party for review. If rejected, the Change Request
Form will be returned to the originator along with the reason for
rejection.
(iv) All material Change Requests shall be forwarded to the Integrated Planning
Team for review and approval prior to implementation.
(v) Each approved Change Request will be implemented through a written change
authorization. If any Change Request results in a change in scope, price
or terms and conditions, then the Agreement and affected Transaction
Documents (including the Schedules thereto) will be updated to reflect the
changes in scope, price or terms and conditions, as appropriate pursuant to
Section 17.2.
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14
7. SERVICES STAFFING/MANAGEMENT/ADMINISTRATION
7.1. Project Executives and Managers
(a) Prior to the Effective Date, EDS and Equifax will each designate a Project
Executive to whom all communications regarding the Parties' relationship
under this Agreement may be addressed and who has the authority to act for
the appointing party and its subcontractors in connection with all aspects
of this Agreement.
(b) Prior to the Commencement Date under each Transaction Document, EDS and
Equifax will each designate a Project Manager to whom all communications
regarding such Transaction Document may be addressed and who has the
authority in conjunction with the Project Executive (as applicable) to act
for the appointing Party and its subcontractors in connection with all
aspects of such Transaction Document.
(c) Unless otherwise provided in a Transaction Document, EDS shall cause each
person assigned as a EDS Project Executive or Project Manager under this
Agreement and each Transaction Document (as applicable) to devote
substantially all of his or her working time and effort in the employ of
EDS to his or her responsibilities for the provision of the Services as
required hereunder or by such Transaction Document, subject to EDS's
reasonable holiday, vacation and medical leave policies and subject to
occasional, short-term, non-recurring work on other assignments by EDS
related to the Project Executive's or Project Manager's areas of expertise.
Before the initial and each subsequent assignment of an individual to such
position, EDS shall notify Equifax of the proposed assignment, introduce
the individual to appropriate Equifax representatives, and consistent with
EDS's personnel practices, provide Equifax with a resume and any other
information about the individual reasonably requested by Equifax. EDS
agrees to discuss with Equifax any objections Equifax may have to such
assignment.
(d) EDS will give Equifax at least ninety (90) days advance notice of a change
of the person appointed as the EDS Project Executive and at least sixty
(60) days advance notice of a change of the person appointed as the EDS
Project Manager under each Transaction Document, and will discuss with
Equifax any objections Equifax may have to such change. EDS shall not
reassign or replace any person assigned as the EDS Project Executive or a
EDS Project Manager under any Transaction Document, during the first year
of his or her assignment to the Equifax service team nor shall EDS assign
more than three (3) different individuals to any such position during the
Term of this Agreement including the applicable Transaction Document,
unless Equifax consents to such reassignment or replacement, or the EDS
employee voluntarily resigns from EDS, is terminated by EDS for misconduct
or unsatisfactory performance in respect of his or her duties and
responsibilities to Equifax, or is unable to work due to his or her death
or disability.
7.2. Replacement of Personnel
If Equifax reasonably and in good faith determines that it is not in Equifax's
best interests for any EDS or subcontractor employee to be appointed to perform
or to continue performing any of the Services, Equifax shall give EDS written
notice specifying the reasons for its position and requesting that such employee
not be appointed or be removed from the EDS or subcontractor employee group
servicing Equifax and be replaced with another EDS employee or subcontractor
employee. Promptly after its receipt of such a notice, EDS shall investigate
the matters set forth in the notice, discuss with Equifax the results of the
investigation, and resolve the matter on a basis acceptable to Equifax.
7.3. Retention of Experienced Personnel
If EDS fails under any Transaction Document to meet the Performance Standards or
Minimum Service Levels thereunder persistently or continuously and if Equifax
reasonably believes such failure is attributable in whole or in part to EDS's
reassignment, movement, or other changes in the human resources allocated by EDS
to the performance and delivery of the Services pursuant to such Transaction
Document or the Agreement and/or to the EDS subcontractors assigned to the
Equifax service team, Equifax will notify EDS of such belief and the basis
therefor. Upon receipt of such notice from Equifax, EDS: (a) will promptly
provide to Equifax a report setting forth EDS's position regarding the matters
raised by Equifax in its notice; (b) will meet with Equifax to discuss the
15
matters raised by Equifax in its notice and EDS's positions with regard to such
matters; and (c) will promptly and diligently take commercially reasonable
action to eliminate any EDS human resource practices or other practices and/or
processes identified by Equifax or EDS as adversely impacting the performance
and delivery of the Services by EDS.
7.4. Efficient Use of Resources
EDS shall take commercially reasonable actions (a) to efficiently administer,
manage, operate and use the resources employed by EDS to provide and perform the
Services that are chargeable to Equifax under the Agreement, and (b) to
diligently and continuously improve the performance and delivery of the Services
by EDS and the elements of the policies, processes, procedures and System that
are used by EDS to perform and deliver the Services, including, without
limitation, re-engineering, tuning, optimizing, balancing or reconfiguring the
processes, procedures and systems used to perform, deliver and track the
Services.
7.5. Key Positions
Each individual appointed to a Key Position will devote substantially all of his
or her full working time and efforts to the performance of the Services. Before
assigning a replacement for any individual appointed to any of the Key
Positions, EDS will give Equifax prior written notice of the proposed
replacement individual for a specified Key Position, will provide Equifax with
the resume and other job/position related information about the individual as
reasonably requested by Equifax, and will provide Equifax with the opportunity
to interview such individual by Equifax representatives. If Equifax does not
object to the assignment of the proposed individual to the Key Position within
ten (10) days after the interview by Equifax representatives, EDS will assign
the individual to the Key Position. Except in the event of a voluntary
resignation, termination for cause, disability, death or the exercise by Equifax
of its rights under Section 7.2, EDS will not change the individual appointed to
-----------
any Key Position more often than once in each two (2) year period.
7.6. Hiring of Employees
Neither the Card Processing Services Division of EDS nor Equifax Payment
Services, Inc., will, directly or indirectly, hire any employee of the other
Party, wherever located, for a period of twelve (12) full calendar months after
an employee has left the employment of the other Party. In each instance in
which a Party violates, or permits this covenant to be violated for its benefit,
the Party violating or permitting the violation will pay the other Party, upon
demand, the sum of [*] per incident in liquidated damages, not as a penalty. The
Parties agree that the damages arising or resulting from such violations are
difficult to determine and have agreed that such liquidated amounts are a fair
and equitable estimate of the damages the aggrieved Party will incur.
8. RELATIONSHIP PROTOCOLS
8.1. Evolving Nature of Relationship
(a) The Exhibits to the Agreement and the Schedules to each Transaction
Document will be updated by the Parties as necessary or appropriate from
time to time during the Term to accurately reflect the evolution of the
Services and components and elements of the Services as described therein.
(b) For [*] following the Commencement Date under each Transaction Document,
EDS and Equifax reserve the right to inventory, validate and update any
information that is reflected in or omitted from the Transaction Document
and attached Schedules. If discrepancies are detected, the Transaction
Document and/or Schedules shall be promptly changed, modified, updated and
adjusted to correct such discrepancies upon mutual agreement, so that the
Transaction Document and/or Schedules will be correct and accurately
reflect the Services and charges provided by EDS to the Equifax Group. If
either Party disputes the existence of a discrepancy identified by the
other Party, the Parties will submit the matter to the Integrated Planning
Team for dispute resolution as specified in Section 16.
----------
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
16
(c) Both Equifax and EDS agree that the Services provided may require
adjustments to reflect the evolving business and operations of the Equifax
Group and EDS, that the relationship memorialized by the Agreement
(including the Transaction Documents), is dynamic in nature and will evolve
as the operating and business environment of the Equifax Group changes and
evolves, and that the scope of the Services that will be provided by EDS
during the Term and corresponding Monthly Charges charged by EDS may be
changed and modified with the written agreement of the Parties pursuant to
the Change Control Process. Therefore, the Integrated Planning Team will
periodically evaluate the business and operating strategies in accordance
with Section 6.1(a).
--------------
(d) While the Parties will endeavor to update, modify and amend the Agreement,
including the Transaction Documents and the Schedules thereto, as necessary
or appropriate from time to time to reflect the changing nature of the
Services and the requirements of the Equifax Group and the Equifax
Business, the Parties acknowledge that such activities may not always be
documented with specificity. Therefore, the Parties agree to deal with
each other in a good faith, prompt, diligent and commercially reasonable
manner to resolve all issues presented and any disputes that may arise to
give effect to purposes of the Agreement.
8.2. Required Consents
(a) The Equifax Group shall remain the contracting party of record for the
Third Party Agreements allocable to each Transaction Document and to which
the Equifax Group is a party on the Commencement Date under each such
Transaction Document.
(b) [*] shall have the responsibility for timely obtaining all Required
Consents under the Third Party Agreements (excluding Third Party Agreements
for Applications Software - Equifax) allocable to each Transaction
Document. [*] shall have the responsibility for obtaining and paying all
fees and charges for all Required Consents under the Third Party Agreements
for Applications Software - Equifax, allocable to each Transaction
Document. EDS shall obtain the prior consent of Equifax to the terms of
each Required Consent. Subject to the provisions of Section 8.3, EDS
-----------
will have management and administrative responsibilities for obtaining
all Required Consents under the Third Party Agreements (excluding Third
Party Agreements for Applications Software - Equifax) allocable to each
Transaction Document existing on the Execution Date of each such
Transaction Document. EDS will publish a list each month setting forth the
status of each Required Consent for which it has responsibility until all
Required Consents are obtained. Equifax shall timely cooperate with EDS in
order to facilitate the proper and timely publication of such monthly
Required Consents list. The provisions of this Section 8.2 shall be
-----------
applicable to New Services unless otherwise provided by the Parties in the
documentation governing New Services.
(c) If [*] is unable to obtain the Required Consents for which it has
responsibility within a reasonable time in a form acceptable to,[*]
then the Parties' obligations with respect to the performance of, and
payment for, any Services dependent on such Required Consents shall be
determined in accordance with the provisions of Section 8.2(g).
--------------
(d) Subject to Section 8.2(c), [*] shall bear the costs (if any) of obtaining
--------------
all Required Consents, including without limitation, all charges and fees
related to obtaining the Required Consents, for the Third Party Agreements
(excluding Third Party Agreements for Applications Software - Equifax)
allocable to each Transaction Document existing as of the Execution Date
under each such Transaction Document.
(e) Notwithstanding any other provision of this Agreement, for all Third Party
Agreements allocable to each Transaction Document entered into after the
Execution Date under each such Transaction Document, the Party requesting
the product or service to which the Third Party Agreement relates shall
bear the costs, if any, of obtaining Required Consents.
(f) [*] shall bear the cost, if any, associated with the cancellation and re-
licensing of any Software allocable to a Transaction Document and licensed
by the Equifax Group prior to the Execution Date under such
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
17
Transaction Document, if required for EDS to provide the Services after the
Commencement Date under such Transaction Document. The provisions of this
Section shall be applicable to New Services unless otherwise provided by
the Parties in the documentation governing New Services.
(g) Notwithstanding any other provision of the Agreement, no Services requiring
a Required Consent shall commence and no Monthly Charge or other charge
shall commence for such Services until all applicable Required Consents for
such Services are obtained, unless otherwise agreed by the Parties.
However, if any Required Consents for which EDS has responsibility is not
obtained with respect to any of the Third Party Agreements existing as of
the Execution Date under any Transaction Document prior to the Commencement
Date and the Parties agree to commence the provision of Services without
such Required Consents, the Parties shall cooperate with each other in
achieving a reasonable alternative arrangement for Equifax to continue to
process its work with minimum interference to its business operations
unless and until such Required Consents are obtained. The cost of
achieving such reasonable alternative arrangement shall be borne by EDS.
8.3. Appointment as Attorney In Fact
(a) Equifax appoints EDS as the attorney in fact of the members of the Equifax
Group, and EDS accepts such appointment as a part of the Services, for the
limited purposes of administering, managing, supporting, operating under
and paying under the Third Party Agreements to which one or more members of
the Equifax Group is a party, and to obtain the Required Consents as
provided in Section 8.2(b), in connection with the Services as contemplated
--------------
by the Agreement. Equifax does not appoint EDS as the attorney in fact of
the members of the Equifax Group for the purposes of entering into oral or
written agreements with any individual or business entity for or in the
name of members of the Equifax Group, without the prior express written
approval of Equifax.
(b) Equifax agrees to promptly notify all Third Party Providers under the Third
Party Agreements to which one or more members of the Equifax Group is a
party of EDS's appointment. However, EDS must submit written notification
to Equifax and obtain Equifax's written agreement prior to the
cancellation, substitution, termination, change or addition of any Third
Party Agreement to which one or more members of the Equifax Group is or
will be a party. If Equifax does not respond to such notice from EDS
within twenty-one (21) business days after Equifax's receipt of such
notice, Equifax shall be deemed to have agreed to the cancellation,
substitution, termination, change or addition described in the EDS notice.
(c) EDS will perform its obligations and responsibilities as an attorney in
fact pursuant to Section 8.3(a) under all Third Party Agreements to which a
---------------
member of the Equifax Group is a party subject to the provisions of the
Agreement, including, without limitation, Section 3.1 (Obligations to
-----------
Provide Services), Section 3.8 (Software Licenses), Section 8.2 (Required
----------- -----------
Consents), this Section 8.3, Section 9.1 (Disbursements) and Section 11
----------- ----------- ----------
(Confidentiality). Upon Equifax's request, EDS will provide to Equifax all
information and documentation related to its activities as the Equifax
Group's attorney in fact with regard to such Third Party Agreements.
Equifax may terminate or provide additional restrictions on EDS's attorney
in fact appointment with respect to any Third Party Agreement to which one
or more of the members of the Equifax Group is a party if EDS (i) fails to
pay any amount due in a timely manner; (ii) permits an actual default to
occur; or (iii) does not diligently pursue the service and financial
benefits available to the Equifax Group under such Third Party Agreement.
(d) Beginning on the Execution Date of each Transaction Document and for the
term of each such Transaction Document, the Equifax Group will not enter
into any new, or terminate or amend any existing, Third Party Agreement to
which one or more members of the Equifax Group is a party that adversely
impacts EDS's ability to provide the Services covered by such Transaction
Document or increases EDS's cost of providing such Services without the
prior written consent of EDS.
(e) In performing and providing the Services, the relationship of EDS with the
members of the Equifax Group will be as an independent contractor.
However, as a result of its position in providing and performing the
Services, EDS and each of its Affiliates providing portions of the Services
will have a unique knowledge of the operations of the members of the
Equifax Group that no member of the Equifax Group or employee of a member
will have in full, and EDS and each of its Affiliates providing portions of
the Services will be interacting with the employees, executive management,
board of directors and accountants and legal counsel
18
to the Equifax Group and the members thereof, in a manner and with respect
to matters which will make EDS and each of its Affiliates providing
portions of the Services appear to be the functional equivalent of the
employees of the Equifax Group and each member thereof obtaining any of the
Services from EDS. Accordingly, EDS is appointed as the agent of the
Equifax Group and each member thereof, and EDS accepts such appointments
for the purpose of performing and providing the Services. EDS is not
authorized to enter into oral or written commitments or agreements with any
individual or entity for or in the name of the Equifax Group or any member
thereof, without the further express written direction to and appointment
of EDS by Equifax.
8.4. Conflicts of Interests
(a) Each Party recognizes that EDS personnel providing Services to the Equifax
Group under the Agreement may perform similar services for others and the
Agreement shall not prevent EDS from performing similar services for others
subject to the restrictions set forth in Section 11 (Confidentiality)
----------
and/or the applicable Transaction Document. However, EDS shall not use any
of the Equifax Provided Hardware or Equifax Software or Equifax Provided
Office Furnishings to perform similar services for others (including EDS),
without the prior written consent of Equifax.
(b) Neither Party shall knowingly, directly or indirectly, solicit any employee
of the other Party or their Affiliates during the Term of the Agreement
unless otherwise agreed in writing by the Parties and except as provided in
Section 12.5(e). Equifax or EDS employee's responses to or employment
---------------
resulting from general public solicitations will be exempted from this
provision.
(c) Any specific restrictions related to key employees shall be as specified in
the applicable Transaction Document.
8.5. Alternate Providers
(a) During the Term, Equifax shall have the right to retain third party
suppliers to perform any service, function, responsibility, activity or
task that is within the scope of the Services or would constitute a New
Service pursuant to Section 3.13, or to perform any such services,
------------
functions, responsibilities or tasks (whether all or a part of the Services
or the New Services) internally. EDS shall cooperate with any such third
party supplier and Equifax as requested from time to time. Such
cooperation shall include, without limitation, (i) providing reasonable
physical and electronic access to the Facilities, the Data Center and the
books and records in the possession of EDS regarding the Equifax Business
and/or the Services; (ii) use of any Machines used by EDS to perform
services for the Equifax Group for the Equifax Business; (iii) use of any
of the Software (other than any Software where the underlying license
agreement does not authorize such access and consent permitting such access
and use has not been obtained); (iv) providing such information regarding
the operating environment, System constraints, and other operating
parameters as is reasonably necessary for the work product of the third
party supplier of the Equifax Group to be compatible with the Services or
New Services; and (v) such other reasonable cooperation as may be requested
by Equifax.
(b) EDS's obligations hereunder shall be subject to the third party suppliers'
compliance with reasonable Facilities, data and physical security and other
applicable standards and procedures, execution of appropriate
confidentiality agreements, and reasonable scheduling of computer time and
access to other resources to be furnished by EDS pursuant to the Agreement.
(c) If EDS's cooperation with Equifax or any third party supplier performing
work as described in Section 8.5(a), causes EDS to expend a material amount
--------------
of additional resources that EDS would not otherwise have expended, but
which fall within the scope of activities comprising the Services, such
additional reasonable and necessary resources will be charged to Equifax
under the established charging mechanism and/or Resource Unit Baseline
therefor. The Parties further agree that if in EDS's reasonable, good
faith determination, a third party supplier's activities affect EDS's
ability to meet the Performance Standards or otherwise provide the Services
in accordance with the Agreement, EDS will provide written notice to
Equifax of such determination. The Parties will cooperate to determine and
verify whether such effect is caused by a third party supplier, the extent
of
19
such effect, and how to ameliorate any such effect. [*]
(d) Equifax's retention of third party suppliers pursuant to this Section 8.5
-----------
to perform services, functions, activities, tasks or responsibilities that
are within the scope of the Services shall not relieve Equifax of its
obligations set forth in the Agreement to pay EDS the Monthly Charges
applicable to such services, functions, activities, tasks or
responsibilities as set forth in the Agreement, unless Equifax is relieved
from such charge pursuant to a provision of the Agreement or by the
agreement of EDS.
8.6. Use of Subcontractors
(a) Within thirty (30) days after the Commencement Date under each Transaction
Document, the Parties will develop and prepare a list of the Listed
Subcontractors under each such Transaction Document that the Parties agree
may be engaged by EDS to perform and deliver the part or portion of the
Services indicated on such list. With respect to subcontractors which are
not Listed Subcontractors, at least fifteen (15) business days prior to the
proposed date of commencement by EDS of such subcontractors' activity with
respect to the Equifax group or the Services, EDS shall notify Equifax in
writing of a decision to delegate or subcontract a function, responsibility
or task to a subcontractor, or to change subcontractors for any function,
responsibility or task, (i) that could have a material affect on the
quality, timing, cost, consistency or performance of the Services under any
Transaction Document or on the operations of any member of the Equifax
Group or on the security of the Equifax Group data, books and records, or
Facilities, or Data Center or on the Equifax Business as conducted by any
member of the Equifax Group, or (ii) where the subcontractor will interface
directly with the members of the Equifax Group. Upon Equifax's request,
EDS shall promptly provide to Equifax information regarding the proposed
new or replacement subcontractors in order to permit Equifax to determine
whether to grant its consent to such delegation or change or subcontract.
Such information shall include the scope of the Services to be delegated,
the experience, financial status and resources of the proposed
subcontractors, and EDS's selection criteria for the proposed subcontractor
and conclusions regarding its selections. Subject to EDS's timely
provision of the foregoing information to Equifax, Equifax shall be deemed
to have accepted such delegation or subcontract or change that is the
subject of the notification by EDS to Equifax, if Equifax has not notified
EDS in writing of its good faith objections to such delegation or
subcontract on or before the twenty-first (21st) day after receipt of such
notice from EDS. EDS shall not delegate or subcontract or change
subcontractors unless and until EDS and Equifax shall have resolved any
objection timely made by Equifax to such proposed action by EDS. In
addition, EDS shall not disclose any Confidential Information of the
Equifax Group to any subcontractor unless and until such subcontractor has
agreed in writing to protect the confidentiality of such Confidential
Information in a manner equivalent to that required of EDS by Section 11.
----------
(b) Each subcontractor engaged by EDS to perform a portion of the Services will
make, execute and deliver to Equifax such disclosures and agreements as
Equifax may from time to time reasonably request in order to comport with
the requirements of the Equifax Business.
(c) EDS shall remain primarily liable and obligated to Equifax for the timely
and proper performance of all of its obligations hereunder even if such
obligations are delegated to third party subcontractors, and for the proper
and timely performance and actions of any person or entity to which it
delegates or subcontracts any such obligation.
8.7. Equifax Approvals and Notification
For those areas of the Services where Equifax (a) has reserved a right-of-
approval, consent or agreement, (b) is required to provide notification, and/or
(c) is to perform a responsibility set forth in the Agreement, and such
approval, consent, notification or performance is delayed or withheld beyond the
period provided in the Agreement (including any Transaction
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
20
Document) without authorization or right and, such delay or withholding is not
caused by EDS and affects EDS's ability to provide the Services under the
Agreement (including any Transaction Document) Equifax will relieve EDS of the
responsibility for meeting the Performance Standards and Minimum Service Levels
for that portion of the Services to the extent, but only to the extent, directly
affected by such delay or withholding and only during the period such approval,
consent, notification or performance is delayed or withheld beyond the period
provided in the Agreement (including any Transaction Document). Equifax will
reimburse EDS in accordance with the Agreement for additional necessary and
reasonable resources, if any, incurred during such period as a direct result
thereof. If not specified otherwise in the Agreement, the period for such
approval or notification shall be thirty (30) business days unless another time
period is otherwise agreed by the Parties.
9. CHARGES/NEW SERVICES/INVOICES/PAYMENTS
9.1. Disbursements
Beginning on the Commencement Date of each Transaction Document, as part of the
Services covered by such Transaction Document, EDS will pay the Third Party
Providers under Third Party Agreements as set forth in the applicable
Transaction Document. In addition, EDS will reimburse Equifax in a timely
manner for payments by the Equifax Group to such Third Party Providers under the
Third Party Agreements allocable for amounts allocable to periods on and after
the Commencement Date under each such Transaction Document. Equifax will
promptly reimburse EDS for all payments to such Third Party Providers made by
EDS, if such payments are allocable to the periods prior to any such
Commencement Date and are not otherwise the responsibility of EDS under the
Agreement. If EDS should receive during the Term any refund, credit or other
rebate in respect of such Third Party Agreements which is attributable to a
period prior to the Commencement Date under the applicable Transaction Document,
EDS will promptly notify Equifax of such refund, credit or rebate and will
promptly pay to Equifax the full amount of such refund, credit or rebate. If
Equifax should receive during the Term any refund, credit or other rebate in
respect of such Third Party Agreements which is attributable to a period after
the Commencement Date under the applicable Transaction Document, Equifax will
promptly notify EDS of such refund, credit or rebate and will promptly pay to
EDS the full amount of such refund, credit or rebate.
9.2. Monthly Charges
For each Contract Year under each Transaction Document, Equifax agrees to pay
the Monthly Charges as specified in Schedule J to such Transaction Document,
----------
together with the other amounts as described in this Section 9. All periodic
---------
Monthly Charges under each Transaction Document are to be computed on a calendar
month basis, and will be prorated for any partial month, unless specifically
stated otherwise in the Agreement (including the applicable Transaction
Document). On a monthly basis, EDS will invoice Equifax the proportional amount
of the Monthly Charges under each Transaction Document for that month in
arrears, as specified in Schedule J to each such Transaction Document. The
----------
invoices will separately state applicable taxes owed by Equifax by tax
jurisdiction, and charges for other elements comprising the Monthly Charges as
determined by the Parties pursuant to Section 9.5(b).
--------------
9.3. [*]
9.4. Annual Adjustment
EDS will charge Equifax an Annual Adjustment under each Transaction Document in
accordance with the procedures and timing set forth in Schedule J to each such
----------
Transaction Document.
* Information omitted pursuant to request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
21
9.5. Taxes
(a) Except as provided in Section 9.5(c), the disbursements described in
--------------
Section 9.1, the Monthly Charges described in Section 9.2, the [*]
----------- -----------
described in Section 9.3 and the Annual Adjustment described in
-----------
Section 9.4, paid by Equifax are inclusive of applicable sales, use,
-----------
excise, personal property or other similar taxes attributable to the period
on or after the Commencement Date under each Transaction Document. EDS
shall be responsible for all taxes based upon or measured by (i) EDS's cost
in acquiring or providing equipment, materials, supplies or third party
services furnished to or used by EDS in providing and performing the
Services, (ii) the value or cost of the EDS Machines, EDS Software and
Acquired Customer Hardware; and (iii) all taxes payable by EDS with respect
to its revenues, income and profit. Each Party shall bear sole
responsibility for all taxes, assessments and other real property-related
levies on its owned or leased real property.
(b) The Parties agree to reasonably cooperate with each other in good faith to
more accurately determine and reflect each Party's tax liability and to
minimize such liability to the extent legally permissible. Each Party
shall provide and make available to the other any resale certificates and
other exemption certificates or information reasonably requested by either
Party. The Parties will also work together to segregate the Monthly
Charges and other charges, reimbursements and amounts payable hereunder,
into separate payment accounts charged under separate invoices, as
appropriate, for Services and the components of the Services (i.e.,
components that are taxable and nontaxable, including those for which a
sales, use or similar tax has already been paid by EDS and for which EDS
functions merely as a paying agent for Equifax in receiving goods, supplies
or services including licensing arrangements that otherwise are nontaxable
or have previously been subjected to tax, components that are capitalized,
and components that are expensed).
(c) Notwithstanding any other provision of the Agreement, if a services or
similar tax is assessed on EDS's provision of the Services (or any New
Services) to Equifax or on EDS's charges to Equifax under the Agreement,
Equifax will be responsible for and pay the amount of any such tax.
9.6. New Services
(a) The charges for New Services will be integrated into the Schedule J to the
--------
affected Transaction Document in accordance with Sections 3.13 and 17.2.
------------- ----
(b) If the Parties cannot agree whether a function, responsibility or task
falls within the definition of a New Service, EDS shall nevertheless
perform the disputed function, responsibility or task if requested by
Equifax. The determination of whether any function, responsibility or task
is a New Service to be paid by Equifax will be determined pursuant to the
dispute resolution provisions in Section 16. Equifax shall pay [*]
----------
of any Monthly Charges for the disputed function, responsibility or task
under this Section 9.6 to EDS and [*] of any Monthly Charges shall be
-----------
held by Equifax or paid into an interest bearing escrow account in
accordance with Section 9.12, if requested by EDS, pending a resolution of
------------
the dispute in accordance with Section 16. Any payment to Equifax of any
----------
such disputed charge paid by Equifax to EDS and into escrow pursuant to
this Section 9.6 after resolution of the applicable dispute, shall be
-----------
paid first from the amount in escrow with respect to such dispute and then
by EDS. All amounts payable directly by either Party to the other Party
upon resolution of the dispute with respect to which amounts are payable
shall be paid promptly upon resolution of the disputed amounts together
with interest at the rate of [*] per month from the date that the other[*]
payment was made into an escrow account pursuant to Section 9.6 and 9.12
-----------
through the date of payment by EDS to Equifax.
9.7. Invoice Payment
(a) At its election, Equifax will pay each invoice for charges under the
Agreement either by wire funds transfer to an account specified by EDS or
other means acceptable to EDS, within [*] days after the date of Equifax's
receipt of the invoice. In the event that any invoice payment is not
received by EDS within ten (10) business days following such [*] day
period, a late payment fee of [*] per month of
* Information omitted pursuant to Request for Confidential Treatment under
Rule 406 of the Securities Act of 1933.
22
the unpaid, late invoice payment will be due and payable by Equifax to EDS
from the date such payment became overdue through the date of payment to
EDS.
(b) No invoice for charges for any of the Services shall be delivered to
Equifax until after the Services which are the subject of such invoice have
been provided to the Equifax Group. However, any Services that are
expressly stated in the Agreement as prepaid or paid in advance shall be
excluded from the limitation of this provision to the extent, but only to
the extent, expressly set forth in the Agreement.
9.8. Benchmark Study
(a) Not less than once in each [*] period of the term of each Transaction
Document commencing on the Commencement Date of each Transaction Document,
Equifax may elect to have a benchmark study performed for the Services
provided pursuant to each such Transaction Document or for any subset of
such Services. The cost payable to a third party benchmark organization for
the benchmark activity will be split equally by the Parties. The Parties
will jointly designate and engage the third party benchmark organization.
The benchmark study will focus on outsourcing services providers that
regularly provide the full range of Services provided by EDS to the Equifax
Group under the applicable Transaction Document and on the outsourcing
engagements of those providers for substantially similar services in
substantially similar quantities.
(b) Each Transaction Document will set forth a price/performance value for the
Services (including subset of the Services) provided under such Transaction
Document and the scale or System against which such price/performance value
was determined (the "Performance Value"). The Performance Value will be
-----------------
either the Norm or an agreed deviation from the Norm, and the Parties shall
exercise the rights and obligations described herein if EDS's overall
performance rating with respect to the Services is not as good as the
agreed upon Performance Value. For purposes of the Agreement, the "Norm"
----
shall be the average price/performance of all customers (both outsourced
and non-outsourced customers) being compared during the benchmark study
against the scale or system pursuant to which such customers were measured.
(c) The result of each benchmark study will be submitted to the Integrated
Planning Team. In the event that the benchmark study indicates that EDS's
overall performance rating as compared to the applicable Performance Value
rating for the benchmarked Services, or subset of the Services, under a
Transaction Document is not as good as the Performance Value for such
Services set forth in such Transaction Document, EDS will adjust its
pricing on a prospective basis for the Services, or such subset of the
Services, to meet the agreed Performance Value; provided, however, such
adjustment will not forgive, compromise release or modify EDS's obligation
to perform the Services in accordance with the Performance Standards and
Minimum Service Levels. The benchmark study results may reduce but not
increase the fees and charges for the Services set forth in the Agreement.
(d) No Annual Adjustment as described in Section 9.4 of this Master Agreement
-----------
will be applied to any element(s) of the pricing adjusted pursuant to this
Section 9.8 for the year in which the pricing of such elements were so
-----------
adjusted.
9.9. Service Credits
If EDS fails to provide the Services in accordance with the Minimum Service
Levels set forth in any Transaction Document, EDS shall incur Service Credits
against the Monthly Charges owed to EDS for the second month following the month
in which the Service Credits were incurred. The Parties agree that the Service
Credits are a fair estimate of the damages that the Equifax Group will incur for
each event for which a Service Credit is granted in the Agreement, that the
actual damages incurred by the Equifax Group in each such event would be
difficult and costly to determine, and that the Service Credits are liquidated
damages awarded in lieu of actual damages incurred by the Equifax Group. The
Parties agree that the Service Credits are not penalties and are the sole and
exclusive remedy of Equifax with respect to the incident or event with respect
to which such Service Credits are paid or credited by EDS to Equifax subject to
and as limited by the provisions of Sections 12 and 13.
----------- --
* Information omitted pursuant to request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
23
9.10. Other Credits
Except as otherwise set forth in the Agreement, with respect to any amount to be
paid or reimbursed to Equifax by EDS at the time any such amount is due and
payable to Equifax, EDS may pay that amount to Equifax by applying a credit for
the month such amount is due and payable against the charges otherwise payable
to EDS under the Agreement, at EDS's option. Notwithstanding the foregoing, if
the amount to be so paid or reimbursed by EDS in any specific month, exceeds the
charges to Equifax for such month, EDS shall promptly pay any difference to
Equifax by check or wire transfer during such month. If EDS fails to pay any
amount due and payable to Equifax or fails to apply a credit during the month
such amount is due and payable, EDS shall pay or credit such amount together
with interest thereon payable at a rate of [*] per month, or the maximum amount
permissible by law, whichever is less, of the unpaid, late monies will be due
and payable by EDS to Equifax from the date such monies became due to Equifax
through the date of payment or credit to Equifax.
9.11. RESERVED
9.12. Disputed Charges/Credits
In the event Equifax disputes the accuracy or applicability of a charge or
credit or other financial arrangement described in the Agreement (i.e., Monthly
Charges, Annual Adjustment, Service Credits, pass-through billings, etc.),
Equifax shall notify EDS of such dispute as soon as practicable after the
discrepancy has been discovered. The Parties will investigate and resolve the
dispute using the dispute resolution processes provided under Section 16 of the
----------
Agreement. Any undisputed amounts contained in or applicable to an invoice will
be paid by Equifax and any undisputed credit amounts will be promptly credited
by EDS. Upon the request of either Party Equifax in the case of a disputed
charge, or EDS in the case of a disputed credit, shall place the disputed amount
in an escrow account established for the benefit of the Parties, until such
dispute is resolved. Upon resolution of the dispute, the Parties shall be paid
any interest having accrued on the disputed amounts held in the escrow account
in connection with such dispute in proportion to the amount received by each
Party with respect to such dispute, and the Parties shall each pay a portion of
the escrow fees attributable to the disputed amount in an inverse proportion to
the percentage of the disputed amount paid to each Party. Unpaid and uncredited
monies that are in dispute and placed in escrow will not be considered a basis
for monetary default under the Agreement or any Transaction Document.
9.13. Reduction of Equifax Work
(a) If, during the Term, Equifax experiences significant changes in the scope
or nature of its business which have or are reasonably expected to have the
effect of causing a substantive and sustained decrease in the amount of EDS
resources used in performing the Services such changes shall be governed by
this Section 9.13, provided such decreases are not due to Equifax's
------------
resuming the provision of such Services by itself or Equifax transferring
the provision of such Services to another vendor. Examples of the kinds of
events that might cause such substantial decreases are: (i) changes in
Equifax's products or markets; (ii) mergers, acquisitions or divestitures;
or (iii) changes in market priorities.
(b) Equifax will notify EDS of any event or discrete set of events which
Equifax believes qualifies under this Section 9.13, and EDS will identify,
------------
any changes that can be made to accommodate such decrease of resource
requirements in a cost-effective manner without disruption to Equifax's
ongoing operations, and the cost savings that will result therefrom in a
plan that will be submitted to Equifax for review and acceptance.
(c) Upon acceptance by Equifax, EDS will make any applicable adjustments to the
Annual Service Charge and the related Resource Baselines to reflect the
foregoing and distribute an amended Schedule J to the Parties.
----------
(d) Equifax may, at its option and expense, employ an accredited and
independent auditor to verify EDS's methodology for calculating the savings
referenced above conforms to accepted accounting practices.
* Information omitted pursuant to request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
24
10. INTELLECTUAL PROPERTY RIGHTS
10.1. Ownership of Materials
EDS, the members of the Equifax Group and their respective contractors and
subcontractors may Develop certain Code and documentation in order to perform
the Services. The provisions of this Section 10.1 sets forth the respective
------------
rights of the Parties, their Affiliates and the Equifax Group and their
respective contractors and subcontractors in such Code and documentation.
(a) Equifax Code, Equifax Derivative Code and Equifax Works shall be owned by
Equifax or another member of the Equifax Group, as applicable. During the
Term, EDS shall have an irrevocable, nonexclusive, worldwide, paid-up
license to use, execute, reproduce, display, perform, operate, distribute,
modify, develop, personalize and create Derivative Works from such
Materials internally, and the right to sublicense third parties to do any
of the foregoing, for the sole purpose of performing the Services. All
patentable inventions embodied in the Equifax Code and Equifax Derivative
Code, and patents issued with respect thereto, shall be jointly owned by
Equifax and EDS with an undivided interest and an unrestricted right to
use, license, distribute, practice, enforce or otherwise improve or
commercialize such patentable inventions and the patents issued with
respect thereto without an obligation to account to the other Party with
respect thereto.
(b) EDS Code, EDS Derivative Code, EDS Works and EDS Interfaces shall be owned
by EDS. During the Term, the Equifax Group shall have an irrevocable,
nonexclusive, worldwide, paid-up license to use in the Equifax Business,
execute, operate, reproduce, display, perform, distribute, modify, Develop,
personalize and create Derivative Works from such Materials internally, and
the right to sublicense third parties to do any of the foregoing for the
Equifax Group.
(c) With respect to any of the Materials whether or not Developed under the
Agreement, which are or have been Developed solely by the Equifax Group
and/or their contractors, such Materials shall be owned by Equifax. At
Equifax's sole option, EDS shall have an irrevocable, nonexclusive,
worldwide, paid-up license to use, execute, operate, reproduce, display,
perform, distribute, modify, Develop, personalize and create Derivative
Works from such Materials internally and the right to sublicense third
parties to do any of the foregoing, for the sole purpose of performing the
Services during the Term.
(d) Subject to EDS's fulfilling its obligations under Section 4, any ownership
---------
or license rights herein granted to either Party or another member of the
Equifax Group or any other Authorized Users are limited by and subject to
any patents and copyrights held by, and terms and conditions of any license
agreements with, applicable Third Party Providers.
(e) To the extent that by operation of law any of the Materials may not be
owned by EDS or the Equifax Group to which ownership has been allocated
under this Section 10, each Party agrees to promptly assign, or cause to be
----------
assigned, and take such actions and execute and deliver such documents as
shall be necessary or appropriate to effect such assignment without further
consideration. Each Party hereby assigns, without further consideration,
the ownership of all right, title and interest in all U.S. and foreign
copyrights, mask work rights and patents in the Materials to the other
Party in accordance with the ownership allocation provisions set forth in
this Section 10. Such assignee shall have the right to obtain and hold in
----------
its own name or transfer patents and copyrights, applications,
registrations, renewals and all other rights relating or pertinent thereto.
10.2. Obligations Regarding Materials
(a) The Parties agree to reproduce copyright, patent and other legends which
appear on any portion of the Materials which may be owned by the Parties
and any and all third parties.
(b) Except as set forth in Section 11, the Agreement shall not preclude either
----------
Party from Developing materials or providing services which are competitive
to the Materials or Services which might be
25
delivered pursuant to the Agreement, except to the extent any of the same
may infringe any of the other Party's patent rights, copyrights, Trade
Secrets or mask work rights.
(c) Neither the Agreement nor any disclosure made hereunder grants any license
to either Party under any patents rights, copyrights, mask work rights or
Trade Secrets of the other Party, except for the licenses expressly granted
under this Section 10 and Section 12.5 hereof.
---------- ------------
11. CONFIDENTIALITY
11.1. Confidential Information
EDS and Equifax each acknowledge that the other Party possesses and will
continue to possess information, which has commercial value in such other
Party's business and is not in the public domain. Such information has been
created, discovered, developed by such other Party or provided to it by a third
party, and such other Party holds property rights in such information by
assignment, license or otherwise.
11.2. Obligations
(a) Equifax and EDS will each refrain from disclosing, will hold as
confidential and will use the same level of care to prevent disclosing to
third parties, the Company Information of the other Party as it employs to
avoid disclosure, publication or dissemination of its own information of a
similar nature, but in no event less than a reasonable standard of care.
Notwithstanding the foregoing, the Parties may disclose Company Information
in the case of Equifax to members of the Equifax Group, and in the case of
both Parties contractors and subcontractors involved in providing and using
the Services under the Agreement where: (i) such disclosure is necessary
to permit the members of the Equifax Group and the contractor or
subcontractor to perform its duties hereunder or use the Services; (ii)
members of the Equifax Group and the contractor or subcontractor agree in
writing to observe the confidentiality and restricted use and disclosure
covenants and standards of care set forth in this Section 11 and EDS and
----------
Equifax are each third party beneficiaries for all purposes; and (iii) EDS
in the case of Equifax Company Information received by EDS and disclosed it
as permitted herein, or Equifax in the case of EDS Company Information
received by Equifax and disclosed by it as permitted herein, assumes full
responsibility for the acts or omissions of the members of the Equifax
Group, contractors and subcontractors no less than if the acts or
omissions were those of EDS and Equifax respectively.
(b) Neither Equifax nor EDS shall use the Company Information of the other
Party except in the case of EDS and its subcontractors, (i) in connection
with the performance of the Services and (ii) as otherwise specifically
permitted in the Agreement, and in the case of Equifax, its contractors and
other members of the Equifax Group, (A) as specifically permitted in the
Agreement and/or (B) in connection with the use of the Services. EDS shall
be responsible to ensure that its subcontractors comply with this Section
-------
11.2(b) and Equifax shall be responsible to ensure that the members of the
-------
Equifax Group and its contractors comply with this Section 11.2(b).
---------------
(c) Without limiting the generality of the foregoing, neither Party will
publicly disclose the terms of the Agreement, except to the extent
permitted by this Section 11 and to enforce the terms of the Agreement,
----------
without the prior written consent of the other. Furthermore except as
contemplated by the Agreement, neither EDS nor Equifax will make any use of
the Company Information of the other Party; acquire any right in or assert
any lien against the other Party's Company Information except as
contemplated by the Agreement; or refuse to promptly return, provide a copy
of or destroy such Company Information upon the request of the disclosing
Party.
(d) Notwithstanding any other provision of the Agreement, neither Party will be
restricted in using, in the development, manufacturing and marketing of its
products and services and in its operations, any data processing, system
operations, applications development or network management ideas, concepts,
know-how and techniques which are retained in the minds of employees who
have had access to the other Party's Company Information (without reference
to any physical or electronic embodiment of such information), unless such
use shall infringe any of such Party's patent rights, copyrights, mask
works rights or Trade Secrets.
26
11.3. Exclusions
Notwithstanding the foregoing, this Section 11 will not apply to any information
----------
which EDS or Equifax can demonstrate was: (a) at the time of disclosure to it,
in the public domain; (b) after disclosure to it, published or otherwise becomes
part of the public domain through no fault of the receiving party; (c) without a
breach of duty owed to the disclosing party, is in the possession of the
receiving party at the time of disclosure to it; (d) received after disclosure
to it from a third party who had a lawful right to and, without a breach of duty
owed to the disclosing party, did disclose such information to it; or (e)
independently developed by the receiving party without reference to Company
Information of the disclosing party. Further, either Party may disclose the
other Party's Company Information to the extent required by law or order of a
court or governmental agency. However, the recipient of such Company
Information must give the other Party prompt notice and make a reasonable effort
to obtain a protective order or otherwise protect the confidentiality of such
information, all at the discloser's cost and expense. It is understood that the
receipt of Company Information under the Agreement will not limit or restrict
assignment or reassignment of employees of EDS and the Equifax Group within or
between the respective Parties and their Affiliates.
11.4. Loss of Company Information
The receiving Party will immediately notify the disclosing Party, orally or in
writing in the event of any disclosure, loss, or use in violation of the
Agreement of a disclosing Party's Company Information known to the receiving
Party.
11.5. Limitation
The covenants of confidentiality set forth herein (a) will apply after the
Effective Date to any Company Information disclosed to the receiving Party
before and after the Effective Date and (b) will continue and must be maintained
from the Effective Date through the termination of the relationship between the
Parties and (i) with respect to Trade Secrets, until such Trade Secrets no
longer qualify as trade secrets under applicable law; and (ii) with respect to
Confidential Information for a period equal to the shorter of two (2) years
after termination of the Parties' relationship under the Agreement, or until
such Confidential Information no longer qualifies as confidential under
applicable law. Neither Party will be responsible for the security of the
Company Information of the other Party during transmission via public
communications facilities, except to the extent that such breach of security is
caused by the failure of such Party to perform its obligations under the
Agreement, or the negligent acts or omissions of such Party, its contractors,
subcontractors or Affiliates.
12. TERMINATION
12.1. Termination By Equifax
Equifax may terminate any Transaction Document for the following reasons:
(a) A material breach of the Agreement or any Transaction Document by EDS that
remains uncured for [*] after receipt of written notice thereof.
However, if a material breach of the Agreement or any Transaction Document
by EDS (other than a breach of Section 11 hereof) occurs that by its nature
----------
cannot be cured by EDS within such [*] period, but EDS submits a
commercially reasonable written plan to Equifax within such period to cure
such breach after the [*] period (but in no event more than [*] after such
notice of breach) and the plan (including the timing of the cure set forth
in the plan) is accepted by Equifax in writing, the cure period for such
breach shall be extended to the date set forth in the plan; or
(b) There exists a series of non-material or persistent breaches by EDS, that
in the aggregate have a material and significant adverse impact (i) on the
Services support of the administrative, management, planning, financial
reporting or operations functions of the Equifax Group or the portion of
the Equifax Group constituting the user group under any Transaction
Document, or (ii) on the management of the Services or the portion of the
Services covered by such Transaction Document; or
* Information omitted pursuant to Request for Confidential Treatment under
Rule 406 of the Securities Act of 1933.
27
(c) For convenience upon [*] days prior notice by Equifax to EDS; or
(d) EDS becomes insolvent or is unable to pay its debts or enters into or files
(or has filed or commenced against it) a petition, arrangement,
application, action or other proceeding seeking relief or protection under
the bankruptcy laws of the United States or any similar laws of the United
States or any state of the United States or transfers all or substantially
all of its assets to another person or entity; or
(e) In the event of a Change of Control of the Card Processing Division of
EDS, or EDS acquires a competitor of Equifax, Inc., or there is a Change of
Control of EDS with a competitor of Equifax, Inc. acquiring Control of EDS,
Equifax, or its successor entity in the case of a merger or the entity
purchasing the assets of Equifax, may terminate the Agreement with [*]
prior written notice to EDS given not later than [*] after the occurrence
of such Change of Control; or
(f) EDS incurs Direct Damages to Equifax in excess of the EDS Direct Damages
Cap under the circumstances and resulting from the events described in
Section 13.1(a); or
---------------
(g) Under the circumstances set forth in Sections 3.3 or 17.3.
------------ ----
12.2. Termination by EDS
EDS may terminate any Transaction Document for a material default by Equifax
thereunder other than a payment default that remains uncured for a period of [*]
after written notice thereof to Equifax from EDS. EDS may terminate any
Transaction Document for a material payment default by Equifax thereunder that
remains uncured for a period of fifteen (15) days after written notice thereof
to Equifax from EDS.
12.3. [*]
(a) In the event of a termination by Equifax pursuant to Section 12.1(c) for
---------------
convenience, [*]. In the event of a termination by Equifax pursuant to
Section 12.1(e) for Change of Control, [*]. In the event of a termination
--------------
by Equifax pursuant to Section 17.3 for a Force Majeure Event, [*]. In the
------------
event of a termination by Equifax pursuant to Sections 12.1(a) for cause
----------------
or (b) for persistent breaches or (d) for bankruptcy or (f) for exceeding
--- --- ---
the EDS Direct Damages Cap or Section 3.3 for failing to provide disaster
-----------
recovery services, [*]. In the instance of a termination by Equifax
pursuant to Section 12.1(b) for persistent non-material breaches, Equifax
---------------
may not recover any damages from EDS for the defaults and breaches by EDS
giving rise to such termination; provided that nothing in this sentence
shall preclude any recovery by Equifax pursuant to other provisions of the
Agreement including, without limitation, Section 8.4(b), Section 9, Section
------- ------ ---------
10, Section 11, Section 12, Section 13, Section 14, Section 15, or Section
-- ---------- ---------- ---------- ------- -- ---------- -------
17.3 of this Master Agreement.
----
(b) Except as set forth in Section 12.3(a) and (c), Equifax shall not be
--------------- ---
obligated to pay any charges that would otherwise accrue and be payable by
Equifax pursuant to the Agreement or any Transaction Document after the
effective date of the expiration or termination of the Agreement or any
such Transaction Document.
(c) In the event of a termination by EDS pursuant to Section 12.2, Equifax will
------------
be required to pay Wind-Down Expenses.
12.4. Services Transfer Assistance
(a) The Parties agree that EDS will cooperate with the Equifax Group to assist
in the orderly transfer of the services, functions, responsibilities, tasks
and operations comprising the Services under each
* Information omitted pursuant to Request for Confidential Treatment under
Rule 406 of the Securities Act of 1933.
28
Transaction Document provided by EDS thereunder to one or more members of
the Equifax Group itself or another services provider in connection with
the expiration or earlier termination of the Agreement and/or each
Transaction Document for any reason, however described. "Services Transfer
Assistance" shall include, but not be limited to, providing the Equifax
Group and their respective agents, contractors and consultants, as
necessary, with services described in Schedule R to each Transaction
----------
Document. Neither the Term of the Agreement nor the term of any Transaction
Document shall be deemed to have expired or terminated until the Services
Transfer Assistance thereunder is completed.
(b) Upon Equifax's request EDS shall provide Services Transfer Assistance in
connection with migrating the work of the Equifax Group to the Equifax
Group itself or another services provider commencing up to [*] prior to
expiration, or upon any notice of termination or of non-renewal of the
Agreement or any Transaction Document. In no event will Equifax's
holding of or escrow of monies in compliance with Section 9.12 be
------------
considered a failure by Equifax to pay amounts due and payable hereunder.
Further, EDS shall provide the Services Transfer Assistance in accordance
with this Section 12.4 even in the event of Equifax's material breach
------------
(other than an uncured payment default) with or without an attendant
termination for cause by EDS.
(c) Services Transfer Assistance shall be provided through the effective date
of the expiration or termination of the Services under the Transaction
Documents being terminated. Upon request by Equifax, the effective date of
such expiration or termination shall be extended for up to [*] thereafter
as set forth in Section 1.4 pursuant to the terms and conditions of the
-----------
Agreement and applicable Transaction Document(s) and such period shall be
considered an extension of the Term and the term of such Transaction
Documents.
(d) If any Services Transfer Assistance provided by EDS requires the
utilization of additional resources that EDS would not otherwise use in the
performance of the Agreement and applicable Transaction Documents, but for
which there is a current Resource Unit Baseline, Equifax will pay EDS for
such usage at the then-current applicable Transaction Document(s) charges
and in the manner set forth in the applicable Transaction Document(s). If
the Services Transfer Assistance requires EDS to incur costs that EDS would
not otherwise incur in the performance of the Services under the Agreement
and applicable Transaction Document(s), then EDS shall notify Equifax of
the identity and scope of the activities requiring that EDS incur such
costs and the projected amount of the charges that will be payable by
Equifax for the performance of such assistance. Upon Equifax's
authorization, EDS shall perform the assistance and invoice Equifax for
such charges. Within thirty (30) business days after the date of the
invoice Equifax shall pay EDS for authorized, additional charges incurred
to provide such assistance to Equifax.
12.5. Other Rights Upon Termination
At the expiration or earlier termination of the Agreement and/or any Transaction
Document for any reason, however described, EDS agrees in each such instance, as
applicable:
(a) Upon Equifax's request, EDS agrees to sell to Equifax or its designee for
the fair market value thereof, the EDS Machines owned by EDS then currently
being used by EDS to perform the Services or the portion of the Services
covered by the Transaction Document, as applicable. In the case of EDS
Machines that EDS is leasing, EDS agrees to permit Equifax or its designee
to either buy-out the lease on the EDS Machines and purchase the EDS
Machines from the lessor or assume the lease(s) and secure the release of
EDS thereon. Equifax shall be responsible for any sales, use or similar
taxes associated with such purchase of such EDS Machines or the assumption
of such leases.
(b) EDS will grant to the members of the Equifax Group and their Affiliates an
irrevocable, nonexclusive, worldwide, perpetual, paid-up source and object
code license to use, execute, operate, reproduce, display, perform,
distribute, modify, Develop and personalize, and create Derivative Works
from, the EDS Derivative Code, EDS Code, EDS Works and EDS Interfaces as a
part of and in connection with the Equifax Business, and the right to
sublicense third parties to do any of the foregoing for the members of the
Equifax Group.
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
29
(c) EDS will provide to the Equifax Group a source code and an object code
license for EDS Software proprietary to EDS and not otherwise owned by or
licensed to Equifax in accordance with Section 12.5(b) and not generally
---------------
commercially available, for use by the Equifax Group as a part of and in
connection with the Equifax Business, upon terms and prices to be mutually
agreed upon by the Parties (which prices shall not be greater than those
offered to third parties). At Equifax's option, EDS will recommend a
mutually agreeable commercially available substitute, if available, to
perform the same function.
(d) If EDS has licensed or purchased and is using any generally commercially
available EDS Software to provide the Services to the Equifax Group at the
date of expiration or termination of the Agreement and/or any Transaction
Document, Equifax may elect to take a transfer or an assignment of any and
all of the licenses for such software and any attendant maintenance
agreement, which licenses and maintenance agreements shall in all cases be
kept current and fully paid by EDS through the date of transfer to Equifax.
To the extent any such licenses for EDS Software and the attendant current
maintenance agreements are not transferable by EDS to Equifax, EDS shall
provide to Equifax, in Equifax's name, a current fully paid license for
such EDS Software and a current fully paid maintenance agreement for such
EDS Software. In both of the instances described in the preceding two
sentences such license and maintenance agreements shall be for a scope of
use and hardware level appropriate for Equifax's operations at the time of
transfer and/or delivery to Equifax.
(e) Upon the date of expiration or termination of the Agreement or any
Transaction Document for any reason, the Equifax Group shall have the right
to make offers of employment to any or all Service employees performing
Services hereunder or under such Transaction Document. Promptly after
either Party sends the other Party written notice of termination or
expiration with the prior consent of each Services Employee (each of whom
EDS will notify of Equifax's interest), subject to the agreement of the
Service employee(s) EDS agrees to supply Equifax with the names and resumes
requested by Equifax for the purpose of exercising its rights under this
Section 12.5, at no charge. Equifax's rights under this Section 12.5 will
------------ ------------
take precedence over any EDS/employee employment contract or covenant that
may otherwise limit an employee's right to accept employment with the
Equifax Group.
(f) Upon Equifax's request, EDS will transfer or assign to Equifax or its
designee, on mutually acceptable terms and conditions, any Third Party
Agreements not otherwise treated in this Section 12.5, applicable solely to
------------
services being provided to Equifax, including, without limitation, Third
Party Agreements for maintenance, Disaster Recovery Services and other
necessary third party services then being used by EDS to perform the
Services subject to the payment by Equifax of any transfer fee or charge
imposed by the applicable vendors.
12.6. Effect of Termination/Survival of Selected Provisions
(a) In the event of the bankruptcy of EDS pursuant to the Bankruptcy Act and an
attendant rejection of this Agreement or any license or assignment granted
hereunder pursuant to Section 365 thereof, the parties intend that the
provisions of the Bankruptcy Act shall apply and Equifax shall be entitled
to retain possession of all Embodiments of Intellectual Property delivered
to it by EDS under this Agreement and to the extent permitted by law,
retain the license rights granted thereunder, subject to the obligations to
pay royalties and fees hereunder.
(b) Notwithstanding the expiration or earlier termination of the Services, the
Agreement or any Transaction Document for any reason however described, the
following Sections of the Agreement shall survive any such expiration or
termination: Section 8.4(b), Section 10, Section 11, Section 12.4, Section
-------------- ---------- ---------- ------------ -------
12.5, Section 12.6, Section 13, Section 14, Section 15, Section 16.1 and
---- ------------ ---------- ---------- ---------- ------------
Section 17. Upon termination or expiration of the Master Agreement, all
----------
rights and obligations of the Parties under this Master Agreement and the
Transaction Documents will immediately cease and terminate (except for the
rights and obligations under those Sections specifically designated to
survive in this Section 12.6).
-------------
13. LIABILITY
30
13.1. Liability Caps
(a) Except as provided in Section 13.2, the liability of EDS to Equifax arising
------------
out of or resulting from the performance or non-performance by EDS and its
subcontractors of the Services and its obligations under the Agreement
shall be limited to "Direct Damages" incurred by Equifax for each event
which is the subject matter of a claim or cause of action. Except as
provided in Section 13.2, each Transaction Document shall contain a
------------
provision setting the cap on the aggregate liability of EDS for Direct
Damages pursuant to such Transaction Document (the "EDS Direct Damages
Cap"). The sum of the EDS Direct Damages Caps set forth in the Transaction
Documents shall constitute the "EDS Aggregate Direct Damages Cap."
--------------------------------
(b) Except as provided in Section 13.2, the liability of Equifax to EDS arising
------------
out of or resulting from the performance and non-performance of its
obligations under the Agreement (including the Transaction Documents) shall
be limited in all cases to Direct Damages which in the aggregate shall not
exceed the amounts payable by Equifax upon a termination for convenience
under Section 12.1(c) including Wind-Down Expenses (the "Equifax Direct
--------------- --------------
Damages Cap"). The EDS Direct Damages Cap and the Equifax Direct Damages
-----------
Cap are herein collectively called the "Direct Damages Caps".
-------------------
13.2. Exclusions
Notwithstanding Section 13.1, the Direct Damages Caps (the limitations on the
------------
types and amounts of damages set forth in Section 13.1) will not apply to (a)
------------
failure to pay charges for the Services that are due and payable under the
Transaction Documents up to the effective date of the early termination of such
Transaction Documents (but the Direct Damages Cap will apply to payments due and
payable by Equifax upon a termination by Equifax for convenience under Section
-------
12.1(c) or upon a termination by EDS pursuant to Section 12.2); (b) Losses
- ------- ------------
covered under the Party's indemnification obligations to others pursuant to
Section 14; (c) Losses arising from a violation of the confidentiality
- ----------
provisions of Section 11; (d) Losses incurred by Equifax caused by or arising
----------
out of the intentional misconduct or gross negligence of the other Party in the
performance or failure of performance of its obligations under the Agreement;
(e) amounts payable by EDS under the force majeure provisions of Section 17.3 of
------------
the Agreement; and (f) amounts payable to Equifax under Section 9.10 (Other
------------
Credits).
13.3. Direct Damages
Unless specifically provided to the contrary in the Agreement (including,
without limitation, Section 13.2), neither party shall have any liability
------------
whether based on contract, tort (including, without limitation, negligence),
warranty, guarantee or any other legal or equitable grounds to the other party
for any damages other than Direct Damages. "Direct Damages" mean actual, direct
--------------
damages incurred by the claiming Party which include, by way of example but
without limitation, (a) the costs of cover incurred by the Equifax Group to
obtain services which are the same as or substantially similar to the Services,
(b) the costs to correct any deficiencies in the Services rendered by EDS, (c)
the costs incurred by the Equifax Group to transition to another provider of
information management and communication services and/or to take some or all of
such functions and responsibilities in-house, (d) the difference in the amounts
to be paid to EDS hereunder and the charges to be paid to such other provider
and/or the costs of providing such functions, responsibilities and tasks in-
house, (e) the Service Credits, and (f) similar damages, but "Direct Damages"
shall not include (i) loss of interest, profit or revenue of the claiming Party
or (ii) incidental, consequential, special, exemplary, punitive, multiple or
indirect damages suffered by the claiming Party (except as the damages described
in (i) and (ii) are included as a part of the Termination Charge, Change of
Control Termination Charge and the Service Credits or as otherwise provided for
in the Agreement), even if such Party has been advised of the possibility of
such losses or damages.
13.4. Dependencies
In no event will EDS or its subcontractors be liable for any damages if and to
the extent caused by the failure of Equifax and/or its contractors to perform
its responsibilities hereunder. However, for the purposes of this Section 13.4,
------------
neither EDS nor its subcontractors nor the Third Party Providers shall be
considered a contractor of
31
Equifax. Further, neither Equifax nor its contractors shall be liable for any
damages if and to the extent caused by any failure to perform by EDS or its
subcontractors.
13.5. Remedies
At its option, Equifax may seek all remedies available to it under law and in
equity including, without limitation, injunctive relief in the form of specific
performance to enforce the Agreement and/or actions for damages, or recover as
liquidated damages the Service Credits, subject to the limitations and
provisions specified in this Section 13. If EDS's provision of the Services is
----------
such that EDS would otherwise owe Equifax a Service Credit and Equifax elects to
recover Service Credits, Equifax's recovery of Service Credits shall constitute
acknowledgment by Equifax of full satisfaction and release of any claim by
Equifax that EDS has breached its obligations under the Agreement with respect
to any such event(s) giving rise to the Service Credits. However, within nine
(9) calendar months of the receipt of any Service Credits Equifax received with
respect to any action or inaction by EDS upon which Equifax is basing
termination for cause under Section 12.1(a) or termination for persistent
---------------
breaches under Section 12.1(b), Equifax may return such Service Credits and
---------------
pursue a damage claim against EDS, if any such claim exists.
14. INDEMNITIES
14.1. Indemnity by EDS
EDS will indemnify and hold each Equifax Indemnitee harmless from and against
any and all Losses incurred by any of them arising from or in connection with:
(a) any Claims of infringement of any patent or any copyright, trademark,
service mark, trade name, trade secret, or similar property right conferred
by contract or by common law or by any law of any country or any state
alleged to have been incurred because of or arising out of any aspect of
the Services (including without limitation any information technology,
information management and communications services, equipment, software or
other resources) provided by EDS and/or its subcontractors in its
performance of the Services. However, EDS will have no obligation with
respect to any Losses to the extent arising from or in connection with
Claims for copyright infringement and/or breach of software licenses
related to the Services committed by an Equifax Indemnitee or any employee
of an Equifax Indemnitee that is not the result of EDS failing to perform
its obligations under the Agreement including, without limitation,
obtaining any Required Consent for which it has responsibility. Further,
EDS will have no obligation with respect to any Losses to the extent
arising out of or in connection with an Equifax Indemnitee's modification
of a program or a machine provided by EDS and/or its subcontractors, or an
Equifax Indemnitee's combination, operation or use of the services,
equipment, software or other resources provided by EDS and/or its
subcontractors with devices, data, programs or other resources not
furnished by, through or at the specification of EDS or its subcontractors;
(b) any Claims, however described, accruing on or after the Commencement Date
of a Transaction Document (i.e., not arising or resulting from a breach by
the Equifax Group before such Commencement Date) regarding any Third Party
Agreements, (including without limitation, failure to obtain Required
Consents or arising from EDS's exercise of its rights to terminate, modify
or change the Third Party Agreements pursuant to Section 8.3(b)) allocable
---------------
to such Transaction Document. However, EDS will have no obligation with
respect to any Losses to the extent arising out of or in connection with
Claims for copyright infringement and/or breach of software licenses
related to the Services (i) committed by any Equifax Indemnitee or any
employee of an Equifax Indemnitee that is not the result of EDS's failing
to perform its obligations under the Agreement including, without
limitation, obtaining any Required Consent for which it has responsibility
or (ii) to the extent arising out of or resulting from Equifax's failing to
perform its obligations under the Agreement;
(c) any Claims for personal injuries, death or damage to tangible personal or
real property of third parties including employees of EDS, and its
subcontractors caused by the negligence or willful misconduct of EDS, its
employees, Affiliates or subcontractors. However, EDS will have no
obligation under this part, to the
32
extent the same arise out of or in connection with the negligence or
willful misconduct of a member of the Equifax Group;
(d) any Claims for violation of any environmental laws or regulations arising
out of the Agreement or as a result of the Services performed at the
Facilities, the Data Center or the Equifax sites or locations to the extent
EDS or its subcontractors has caused the environmental damage or violation
of the environmental laws or regulations from which the Claim arises;
(e) any Claims directly attributable to EDS's decision to request that Equifax
cancel, substitute, terminate, change, add or breach any Third Party
Agreement and Equifax's assent to and compliance with such decision and any
Losses incurred by Equifax associated with such decision by EDS and
compliance by Equifax;
(f) any Claims for any amounts, including, without limitation, taxes, interest
and penalties assessed against Equifax which are obligations of EDS under
the Agreement;
(g) any Claims for penalties, interest and other charges imposed by a taxing
authority (except the actual taxes payable by Equifax under the terms of
the Agreement) arising out of or resulting from EDS's issuing an incorrect
invoice or other information provided to Equifax in writing regarding its
charges to Equifax for the Services to Equifax; and
(h) any Claims by any Affected Employees arising out of or resulting from their
employment, or the termination of their employment, with EDS or its
Affiliates and subcontractors, except to the extent any such claim arises
from a wrongful act of the Equifax group or its contractors.
In the event and to the extent that a Claim is made against an Equifax
Indemnitee by an employee of EDS and/or its subcontractors providing services,
products and/or software hereunder, the Parties agree that EDS shall indemnify
and hold harmless the Equifax Indemnitee to the same extent as if the Claim was
made by a non-employee of EDS and/or its subcontractors. EDS's indemnification
obligations hereunder shall be primary and immediate. Accordingly, in addition
to other provisions herein, and in order to render the Parties' intent and this
indemnification agreement fully enforceable, EDS, in an indemnification claim
hereunder, expressly and without reservation waives any defense or immunity it
may have under any applicable workers' compensation law(s) or any other statute
or judicial decision disallowing or limiting such indemnification and consents
to a cause of action for indemnity. This waiver and consent to indemnification
is made irrespective of and specifically waiving any defense or immunity under
any statute or judicial decision.
14.2. Indemnity by Equifax
Equifax will indemnify and hold harmless each EDS Indemnitee from and against
any and all Losses incurred by EDS arising from or in connection with:
(a) any Claims of infringement of any patent or any copyright, trademark,
service mark, trade name, trade secret, or similar property right conferred
by contract or by common law or by any law of any country or any state
alleged to have been incurred because of or arising out of any equipment,
materials and other resources (including without limitation information
technology, information management and communications services equipment,
software or other resources) provided to EDS by the Equifax Group in
connection with the performance of the Services. However, Equifax will have
no obligation with respect to any Losses to the extent arising out of or in
connection with Claims for copyright infringement and/or breach of software
licenses related to the Services, committed by a EDS Indemnitee or any
employee of a EDS Indemnitee that is not the result of the Equifax Group's
failing to perform its obligations under the Agreement. Further, Equifax
will have no obligation with respect to any Losses to the extent arising
out of or in connection with a EDS Indemnitee's modification of a program
or a machine provided by a member of the Equifax Group, or a EDS
Indemnitee's combination, operation or use of the equipment, software or
other resources provided by the Equifax Group with devices, data, programs
or other resources not furnished by the Equifax Group;
33
(b) any Claims accruing before the effective date or after the termination date
of a Transaction Document regarding any Third Party Agreements between
members of the Equifax Group and a third party covered by such Transaction
Document, but not including Claims arising or resulting from EDS failing to
perform its obligations under the Agreement, including without limitation,
obtaining any Required Consent for which it has responsibility;
(c) any Claims for amounts, including, without limitation, taxes, interest and
penalties assessed or claimed against EDS which are obligations of Equifax
under the Agreement;
(d) any Claims for personal injuries, death or damage to tangible personal or
real property of third parties including employees of the Equifax Group
caused by the negligence or willful misconduct of the Equifax Group or
their employees; provided that Equifax will have no obligation, under this
part, to the extent the same arise out of or in connection with the
negligence or willful misconduct of EDS or its Affiliates or
subcontractors;
(e) any Claims arising out of or resulting from the operations of the Equifax
Group to the extent such Claims do not arise out of a breach of the
Agreement by EDS and are not the subject of a specific indemnity provided
to Equifax by EDS in Section 14.1. However, Equifax will have no
------------
obligation under this item, to the extent the Claims arise out of or result
from the negligence or willful misconduct of EDS or its Affiliates or
subcontractors;
(f) any Claims for any violation of environmental laws or regulations arising
out of the Services performed at the Facilities or Data Center or other
Equifax Group sites or locations, except to the extent that EDS or its
Affiliates or subcontractors has caused the environmental damage or
violation of the environmental laws or regulations from which the Claim
arises; and
(g) any Claims by any Affected Employees arising out of or resulting from their
employment, or the termination of their employment, with Equifax except to
the extent any such Claim arises from a wrongful act of EDS or its
Affiliates or subcontractors.
In the event and to the extent that a Claim is made by an employee of a member
of the Equifax Group against a EDS Indemnitee, the Parties agree that Equifax
shall indemnify and hold harmless the EDS Indemnitee to the same extent as if
the Claim was made by a non-employee of the members of the Equifax Group.
Equifax's indemnification obligations hereunder shall be primary and immediate.
Accordingly, in addition to other provisions herein, and in order to render the
Parties' intent and this indemnification agreement fully enforceable, Equifax,
in an indemnification Claim hereunder, expressly and without reservation waives
any defense or immunity it may have under any applicable workers' compensation
law(s) or any other statute or judicial decision disallowing or limiting such
indemnification and consents to a cause of action for indemnity. This waiver
and consent to indemnification is made irrespective of and specifically waiving
any defense or immunity under any statute or judicial decision.
14.3. Employment Actions
It is agreed that EDS shall be solely and exclusively responsible for personnel
decisions affecting EDS's employees, subcontractors and agents (including,
without limitation, hiring, promotions, training, compensation, evaluation,
discipline, and discharge). Equifax shall be solely and exclusively responsible
for personnel decisions affecting employees, contractors, and agents of the
members of the Equifax Group (including, without limitation, hiring, promotion,
training, compensation, evaluation, discipline and discharge).
14.4. Exclusive Remedy
The indemnification rights of each Indemnified Party for third party Claims
pursuant to Sections 14.1 and 14.2, shall be the sole and exclusive remedy of
------------- ----
such Indemnified Party with respect to each such third party Claim to which such
indemnification relates.
34
14.5. Indemnification Procedures
(a) Written notice shall be given to the Indemnifying Party if any Claim is
commenced or threatened against any Indemnified Party. Such notice shall
be given as promptly as practicable but in all events, within a period that
will not prejudice the rights of the Indemnified Party under the Agreement
to defend the Claim. After such notice, if the Indemnifying Party
acknowledges in writing to the Indemnified Party that the Agreement applies
with respect to such Claim, then the Indemnifying Party shall be entitled
to take control of the defense and investigation of such Claim and to
employ and engage attorneys of its sole choice to handle and defend the
same, at the Indemnifying Party's sole cost and expense. The Indemnifying
Party must deliver written notice of its election of taking such control of
the Claim to the Indemnified Party not fewer than ten (10) days prior to
the date on which a response to such Claim is due or such lesser period as
is reasonable given the nature of the Claim and the notice and response
time permitted by law or the facts and circumstances. The Indemnified
Party shall cooperate in all reasonable respects with the Indemnifying
Party and its attorneys in the investigation, trial, defense and settlement
of such Claim and any appeal arising therefrom. The Indemnified Party may
participate in such investigation, trial, defense and settlement of such
Claim and any appeal arising therefrom, through its attorneys or otherwise,
at its own cost and expense. No settlement of a Claim that involves a
remedy other than the payment of money by the Indemnifying Party shall be
entered into without the consent of the Indemnified Party, which consent
will not be unreasonably withheld.
(b) After notice to the Indemnified Party of the Indemnifying Party's election
to assume full control of the defense of any such Claim, the Indemnifying
Party shall not be liable for any legal expenses incurred thereafter in
connection with the defense of that Claim by the Indemnified Party. If the
Indemnifying Party does not promptly assume full control over and
diligently pursue the defense of a Claim as provided in this Section 14.5,
------------
the Indemnified Party shall have the right to defend, settle or otherwise
resolve the Claim in such manner as it may deem appropriate, at the cost
and expense of the Indemnifying Party, and the Indemnifying Party may
participate in such defense, at its sole cost and expense. In no event
shall any settlement of the Claim pursuant to this Section 14.5(b) require
---------------
the consent of the Indemnifying Party.
15. INSURANCE AND RISK OF LOSS
15.1. EDS Insurance
During the Term of the Agreement, EDS and each EDS subcontractor that provides
or performs any of the Services shall maintain and keep in force, at its own
expense, the following minimum insurance coverages and minimum limits:
(a) workers' compensation insurance, with statutory limits as required by the
various laws and regulations applicable to the employees of EDS and any EDS
subcontractor that provides or performs any of the Services;
(b) employer's liability insurance, for employee bodily injuries and deaths,
with a limit of [*] each accident;
(c) comprehensive or commercial general liability insurance, covering claims
for bodily injury, death and property damage, including premises and
operations, independent contractors, products, services and completed
operations (as applicable to the Services), personal injury, contractual,
and broad-form property damage liability coverages, with limits as follows:
(1) occurrence/aggregate limit of [*] for bodily injury, death and property
damage per occurrence and [*] combined aggregate; or (2) split liability,
without aggregate limits, of (i) [*] injury per person; (ii) [*] for bodily
injury per occurrence; and (iii) [*] per occurrence for property damage;
(d) comprehensive automobile liability insurance, covering owned, non-owned and
hired vehicles, with limits as follows: (1) combined single limit of
[*] for bodily injury, death and property
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
35
damage per occurrence; or (2) split liability limits of (i) [*] for
bodily injury per person; (ii) [*] for bodily injury per occurrence;
and (iii) [*] for property damage;
(e) all-risk property insurance, on a replacement cost basis, covering the real
and personal property of EDS which EDS is obligated to insure by the
Agreement. Such real and personal property may include buildings,
equipment, furniture, fixtures and supply inventory; and
(f) errors and omissions insurance, with a limit of [*] per occurrence.
All such policies of insurance of EDS and its contractors and subcontractors
shall provide that the same shall not be canceled nor the coverage materially
modified without first giving thirty (30) days prior written notice thereof to
Equifax. No such cancellation or material modification shall affect EDS's
obligation to maintain the insurance coverages required by the Agreement.
Equifax shall be named as an additional insured on the policies described in (c)
and (d) above. All liability insurance policies shall be written on an
"occurrence" policy form except for the policies described in (f) above which
shall be on a "claims made" basis. Equifax shall be named as loss payee as its
interest may appear on the property insurance policies of EDS. EDS shall be
responsible for payment of any and all deductibles from insured claims under its
policies of insurance. The coverage afforded under any insurance policy
obtained by EDS pursuant to the Agreement shall be primary coverage regardless
of whether or not Equifax has similar coverage. EDS and its subcontractors
shall not perform under the Agreement without the prerequisite insurance. Upon
Equifax's request, EDS shall provide Equifax with certificates of such insurance
including renewals thereof. Unless previously agreed to in writing by Equifax,
EDS and its subcontractors shall comply with the insurance requirements herein.
The minimum limits of coverage required by the Agreement may be satisfied by a
combination of primary and excess or umbrella insurance policies. If EDS or its
subcontractors fail to comply with any of the insurance requirements herein,
upon written notice to EDS by Equifax and a [*] cure period, Equifax may,
without any obligation to do so, procure such insurance and EDS shall pay
Equifax the cost thereof plus a reasonable administrative fee as designated by
Equifax. The maintenance of the insurance coverages required under the Agreement
shall in no way operate to limit the liability of EDS to Equifax under the
provisions of the Agreement.
The Parties do not intend to shift all risk of loss to insurance. The naming of
Equifax as additional insured is not intended to be a limitation of EDS's
liability and shall in no event be deemed to, or serve to, limit EDS's liability
to Equifax to available insurance coverage or to the policy limits specified in
this Section 15,1 nor to limit Equifax's rights to exercise any and all remedies
------------
available to Equifax under contract, at law or in equity.
15.2. Risk of Property Loss
EDS and Equifax each shall be responsible for damages to their respective
tangible personal or real property (whether owned or leased), and each Party
agrees to look only to their own insuring arrangements (if any) with respect to
such damages.
15.3. Mutual Waiver of Subrogation
EDS and Equifax waive all rights to recover against each other for any loss or
damage to their respective tangible personal property (whether owned or leased)
from any cause covered by insurance maintained by each of them, including their
respective deductibles or self-insured retentions. EDS and Equifax will cause
their respective insurers to issue appropriate waivers of subrogation rights
endorsements to all property insurance policies maintained by each Party;
provided, however, Equifax shall give EDS written notice if a waiver of
subrogation is unobtainable, or obtainable only at additional expense. If EDS
upon receipt of such notice agrees to reimburse Equifax for such additional
expense, Equifax shall obtain such waiver of subrogation. If a waiver is
unobtainable or EDS elects not to pay the additional expense of a waiver, then
neither Equifax nor its insurers shall waive such subrogation rights.
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
36
16. DISPUTE RESOLUTION
16.1. Dispute Resolution Procedures
(a) Any dispute between the Parties either with respect to the interpretation
of any provision of the Agreement or with respect to the performance by EDS
or by Equifax hereunder shall be resolved as specified in this Section
-------
16.1.
(i) Upon the written request of either Party to the other Party, a dispute
shall be submitted to the Integrated Planning Team for resolution.
(ii) The Integrated Planning Team shall meet as often as necessary to gather and
furnish to each Party all information with respect to the matter in issue
which is appropriate and germane in connection with its resolution.
(iii) The Integrated Planning Team shall discuss the problem and negotiate in
good faith in an effort to resolve the dispute without the necessity of
any formal proceeding relating thereto.
(iv) During the course of such negotiation, all reasonable requests made by one
Party to the other for nonprivileged information reasonably related to the
Agreement, will be honored in order that each Party may be fully advised of
the other Party's position.
(v) The specific format for such discussions will be left to the discretion of
the Integrated Planning Team, but may include the preparation of agreed
upon statements of fact or written statements of position furnished by each
Party to the other Party.
(b) If the Integrated Planning Team does not resolve the dispute within fifteen
(15) days after the date of receipt by the other Party of a request to
submit the dispute to the Integrated Planning Team as described in Section
-------
16.1(a)(i) (the "Notice"), then the dispute shall be escalated to an
----------
officer of Equifax and an officer of the EDS Electronic Business Unit, for
their review and resolution within thirty (30) days after the receipt of
the Notice.
(c) If the officers referred to in Section 16.1(b) do not resolve the dispute
---------------
within thirty (30) days after the receipt of the Notice, then the dispute
shall be escalated to the President of Equifax and the President of the EDS
Electronic Business Unit for their review and resolution within forty-five
(45) days after the original receipt of the Notice.
(d) If the dispute is not resolved by the Parties' Presidents within forty-five
(45) days after the receipt of the Notice, the dispute will be finally
settled by binding arbitration conducted in accordance with the Commercial
Arbitration Rules (the "Rules") of the American Arbitration Association
then in effect. Either Party may give the other Party notice, in
accordance with Section 17.10, of its submission of such dispute to
-------------
arbitration. Such notice shall also be given in accordance with the Rules,
to the extent that the Rules are inconsistent with or supplement this
notice requirement. Such arbitration shall take place in Tampa, Florida,
United States of America, before a single arbitrator. The Parties will
agree upon the selection of a particular arbitrator as soon as reasonably
practical after the notice described in this Section 16.1(d) is given, but
---------------
failing such agreement within thirty (30) days of such notices, the
arbitrator will be selected in accordance with the Rules. All issues in
the arbitration will be decided in accordance with Florida law and any
applicable federal law.
The determinations of the arbitrator will be final and binding upon
the Parties to the arbitration, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction, or application may
be made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The arbitrator shall be requested to set forth
the grounds for his or her decision in the award.
37
All proceedings before the arbitrator shall be conducted in the
English language. All documents and papers submitted to the arbitrator shall be
in the English language or accompanied by a competent English language
translation thereof.
With the exception of applications to courts of competent jurisdiction
for injunctive relief, the Parties stipulate that the submission of disputes to
arbitration as provided in this Section 16.1, and arbitration pursuant thereto,
shall be a condition precedent to any suit, action or proceeding instituted in
any court or before any administrative tribunal with respect to such dispute.
The arbitration provisions hereof shall, with respect to any dispute arising out
of the Agreement or any Transaction Document, survive the termination or
expiration of the Agreement and any Transaction Document.
Both Parties agree to continue performing their respective obligations
under the Agreement and each Transaction Document while any dispute is being
resolved unless and until such obligations are terminated or expire in
accordance with the provisions hereof, or unless otherwise directed by Equifax.
The Parties shall use their best commercial efforts to set the date of
the arbitration within sixty (60) days after selection of the arbitrator but in
no event shall the arbitration be set more than ninety (90) days after selection
of the arbitrator. Discovery as permitted by the Federal Rules of Civil
Procedure then in effect will be allowed in connection with the arbitration to
the extent consistent with the purpose of the arbitration and as allowed by the
arbitrator.
The decision or award of the arbitrator shall be rendered within
fifteen (15) days after the conclusion of the presentation to and hearing by the
arbitrator. The decision or award of the arbitrator shall be final, binding and
non-appealable by the Parties.
Each Party shall bear its own arbitration costs and expenses and all
other costs and expenses of the arbitration shall be divided equally between the
Parties; provided, however, the arbitrator may modify the allocation of fees,
costs and expenses in the award in those cases where fairness dictates.
Notwithstanding anything to the contrary in this Section 16.1(d), the Integrated
---------------
Planning Team shall have the authority to stay the time periods set forth in
this Section 16.1 upon unanimous vote of its members to take such action.
------------
(e) Notwithstanding any other provision of this Section 16.1, either Party may
------------
resort to court action for injunctive relief at any time if the dispute
resolution processes set forth in this Section 16.1 would permit or cause
------------
irreparable injury to such Party or any third party claiming against such
Party, due to delay arising out of the dispute resolution process.
16.2. Continued Performance
The Parties agree to continue performing their respective obligations under the
Agreement (including the Transaction Documents) while the dispute is being
resolved unless and until such obligations are terminated or expire in
accordance with the provisions of the Agreement.
38
17. GENERAL
17.1. Relationship of Parties
(a) The Agreement (including the Transaction Documents) shall not be construed
as constituting either Party as partner of the other Party or to create any
other form of legal association that would impose liability upon one Party
for the act or failure to act of the other Party, or as providing either
Party with the right, power or authority (express or implied) to create any
duty or obligation of the other Party, except as provided in Section 8.3.
-----------
Each Party shall be responsible for the management, direction and control
of the employees of such Party and such employees shall not be employees of
the other Party.
(b) Each Party will submit to the other Party all advertising, written sales
promotion, press releases and other publicity matters relating to the
Agreement in which the other Party's name or mark is mentioned or language
from which the connection of said name or mark may be inferred or implied,
and will not publish or use such advertising, sales promotion, press
releases, or publicity matters without prior written approval of the other
Party.
17.2. Entire Agreement, Updates, Amendments and Modifications
The Agreement (including the Transaction Documents) constitutes the entire
agreement of the Parties with regard to the Services and matters addressed
therein, and all prior agreements, letters, proposals, discussions and other
documents regarding the Services and the matters addressed in the Agreement
(including the Transaction Documents) are superseded and merged into the
Agreement (including the Transaction Documents). Updates, amendments and
modifications to the Agreement including the Transaction Documents may not be
made orally, but shall only be made by a written document signed by both
Parties. Any terms and conditions varying from the Agreement (including the
Transaction Documents) on any order or written notification from either Party
shall not be effective or binding on the other Party.
17.3. Force Majeure
(a) Neither Party shall be liable for any default or delay in the performance
of its obligations hereunder if and to the extent and while such default or
delay is caused, directly or indirectly, by a Force Majeure Event.
(b) If a Force Majeure Event occurs, the nonperforming Party will be excused
from any further performance or observance of the obligation(s) so affected
for as long as such circumstances prevail and such Party continues to use
commercially reasonable efforts to recommence performance or observance
whenever and to whatever extent possible without delay. Any Party so
delayed in its performance will immediately notify the other by telephone
and describe at a reasonable level of detail the circumstances causing such
delay (to be confirmed in writing within twenty-four (24) hours after the
inception of such delay).
(c) If any Force Majeure Event substantially prevents, hinders, or delays
performance of the Services under any Transaction Document necessary for
the performance of the critical functions of the Equifax users of such
Services for more than [*] consecutive days, then at Equifax's option:
(i) Equifax may procure such Services from an alternate source. EDS will
directly and timely pay the alternate source the full amount charged by
such alternate source for the provision of such Services to Equifax until
such time as EDS is able to restore the Services and meet the Performance
Standards, but in no event for more than [*] days; and
(ii) Until such time as EDS has restored the Services in full, Equifax may
terminate the Transaction Document as of a date specified by Equifax in a
written notice of termination to EDS, and Equifax will pay all Monthly
Charges due and
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
39
payable through the termination date. If Equifax elects such termination,
Equifax shall not be obligated to pay any other termination or other fees,
however described, to EDS, except charges for Services Transfer Assistance
(but Equifax will not be liable for Termination Charges or Wind-down
Expenses).
(d) This Section 17.3 does not limit or otherwise affect EDS's obligation to
------------
provide Disaster Recovery Services in accordance with Section 3.3 and the
-----------
Schedules to each Transaction Document In the event of a Force Majeure
Event affecting Equifax, this Section 17.3 will not limit or otherwise
------------
relieve Equifax's obligation to pay any monies due EDS under the terms of
the Agreement, except as provided in Section 17.3(c)(ii) and Section 3.3.
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17.4. Nonperformance
Except as otherwise provided in the Agreement, to the extent any nonperformance
by either Party of its nonmonetary obligations under the Agreement results from
or is caused by the other Party's failure to perform its obligations under the
Agreement, such nonperformance shall be excused.
17.5. Waiver
No waiver of any breach of any provision of the Agreement shall constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof.
17.6. Severability
If any provision of the Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and such
provision shall be deemed to be restated to reflect the Parties' original
intentions as nearly as possible in accordance with applicable law(s).
17.7. Counterparts
The Agreement shall be executed in counterparts. Each such counterpart shall be
an original and together shall constitute but one and the same document.
17.8. Governing Law
The Agreement and any and all claims and disputes arising out of or in
connection with or related to the relationships and arrangements between the
Equifax Group and EDS described in the Agreement will be governed by and
construed in accordance with the laws of the State of Florida.
17.9. Binding Nature and Assignment
The Agreement will be binding on the Parties and their respective successors and
permitted assigns. Except as provided in this Section 17.9, neither Party may,
------------
or will have the power to, assign the Agreement without the prior written
consent of the other, which consent shall not be unreasonably withheld, except
that Equifax may assign its rights and obligations under the Agreement to an
Affiliate which expressly assumes its obligations and responsibilities
hereunder, without the approval of EDS. The assigning Party shall remain fully
liable for and shall not be relieved from the full performance of all
obligations under the Agreement. Any attempted assignment that does not comply
with the terms of this Section 17.9 shall be null and void. If Equifax assigns
------------
its rights or obligations to an Affiliate in accordance with the Agreement,
Equifax shall provide written notice thereof to EDS together with a copy of the
assignment document, within three (3) business days after such assignment.
40
17.10. Notices
(a) Whenever one Party is required or permitted to give notice to the other
Party under the Agreement, such notice will be in writing unless otherwise
specifically provided herein and will be deemed given when delivered by
hand, one (1) day after being given to an express courier with a reliable
system for tracking delivery, or five (5) days after the day of mailing,
when mailed by United States mail, registered or certified mail, return
receipt requested, postage prepaid, or when sent if delivered by facsimile,
with confirmation of delivery by the sending machine.
(b) Notifications will be addressed as follows:
For termination, breach or default under a Transaction Document,
notify:
In the case of EDS: with a copy to:
EDS Project Executive EDS Co-Chairman of the
Integrated Planning Team,
Electronic Business - Card Processing Electronic Business - Card
Services Processing Services
5400 Legacy Drive, Mail B1-1A-46 5400 Legacy Drive, Mail B1-1A-46
Plano, TX 75024 Plano, TX 75024
Facsimile: (972) 604-3180 Facsimile: (972) 604-3180
In the case of Equifax: with a copy to:
Equifax Project Executive Equifax Co-Chairman of the
Integrated Planning Team
Equifax Payment Services, Inc. Equifax Payment Services, Inc.
11601 North Roosevelt Blvd. 11601 North Roosevelt Blvd.
St. Petersburg, FL 33716 St. Petersburg, FL 33716
Facsimile: (727) 570-4991 Facsimile: (727) 570-4991
Either Party hereto may from time to time change its address for notification
purposes by giving the other prior written notice of the new address and the
date upon which it will become effective.
17.11. No Third Party Beneficiaries
The Parties do not intend, nor will any Section hereof be interpreted, to create
for any third party beneficiary rights with respect to either of the Parties,
except each member of the Equifax Group shall be a third party beneficiary under
the Agreement, and the third parties identified in Section 14 will have the
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rights and benefits described in that Section.
17.12. Other Documents
Upon request of the other Party, on or after the Effective Date and the
Commencement Date(s) of any Transaction Documents and the effective dates of any
amendments or revisions to any of the foregoing, each Party shall furnish to the
other such certificate of its Secretary as shall evidence that the Agreement or
any amendment or revision hereto has been duly executed and delivered on behalf
of such Party.
41
17.13. Consents and Approvals
The Parties agree that in any instance where a consent, approval or agreement is
required of a Party in order for the other Party to perform under or comply with
the terms and conditions of the Agreement, then such Party will not unreasonably
withhold or delay such consent, approval or agreement and where consent,
approval or agreement cannot be provided, the Party shall notify the other Party
in a timely manner.
17.14. Headings
All headings herein and the table of contents are not to be considered in the
construction or interpretation of any provision of the Agreement. The Agreement
was drafted with the joint participation of both Parties and shall be construed
neither against nor in favor of either, but rather in accordance with the fair
meaning thereof. In the event of any apparent conflicts or inconsistencies
between the provisions of the Master Agreement, the Exhibits, the Transaction
Documents, the Schedules or other attachments to the Master Agreement and
Transaction Documents, such provisions shall be interpreted so as to make them
consistent to the extent possible, and if such is not possible, the provisions
of the Master Agreement shall prevail.
42
Exhibit 2
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Definitions
Acquired Customer Hardware means the equipment purchased by EDS from Equifax, if any, listed on Schedule U
to each Transaction Document for such Transaction Document.
Action means any legal proceeding initiated by one Party against the other Party
whether in contract, tort, or any other form of action.
AD/M means both Applications Development and Applications Maintenance.
AD/M Projects means the Applications Development and Applications Maintenance performed during
the Term through the production cutover date for the scheduled Projects and/or
each New Service added during the Term requiring the performance of Applications
Development and Applications Maintenance by EDS.
Affected Employees means the individuals set forth on Schedule N to a Transaction Document.
Affiliates means, with respect to a Party, any entity at any time Controlling, Controlled
by or under common Control with such Party.
Agreement means this Master Agreement for Operations Support Services Agreement and the
forms of Exhibits and Schedules referenced herein and each Transaction Document
referencing the Master Agreement for Operations Support Services and the Pricing
Supplement and Schedules referenced therein.
Annual Adjustment has the meaning set forth in Schedule J to each Transaction Document for such
Transaction Document.
Annual Adjustment Factor has the meaning set forth in Schedule J to each Transaction Document for such
Transaction Document.
Applications Development means the programming of any new applications software, and changes or
enhancements to existing Applications Software. Programming effort shall
include the pre and post development analysis, planning, design, coding,
testing, installation, provision of a single set of program and training
documentation per Applications Software program and training necessary to
complete the task.
Applications Development means the pre and post development analysis, planning, design, coding, testing,
Methodology installation, provision of a single set of program and training documentation
per Application Software program and training necessary to complete the task.
Applications Maintenance means defect identification and provision of fixes, and installation of those
fixes and updates for the Applications Software provided by the Applications
Software vendors as part of normal maintenance service for the Applications
Software for which there is no charge by such vendors in addition to periodic
maintenance charges (if any) and defect identification, provision of fixes and
installation of those fixes and updates for Applications Software for which
there is no generally commercially available maintenance support.
43
Applications Software means those programs and programming, including all supporting documentation and
media, that perform specific user related data processing, data management and
telecommunications tasks, including updates, enhancements, modifications,
releases and Derivative Works thereof. Applications Software as of the
Commencement Date is listed in Schedule A to each Transaction Document for such
Transaction Document, which Schedule shall be updated pursuant to Section 8.1
during the term of each Transaction Document to reflect the then-current
Applications Software.
Applications Software - means the Applications Software listed on Schedule A to each Transaction
EDS Document for such Transaction Document under such heading, provided or to be
provided by EDS.
Applications Software - means the Applications Software listed on Schedule A to each Transaction
Equifax Document for such Transaction Document under such heading, provided or to be
provided by Equifax.
Authorized User means an person or entity authorized by Equifax to use the Services, including
without limitation the System.
Business and Operations means a written plan describing Equifax's Services requirements in support of
Support Plan Equifax Business.
Cable or Cabling means the wires or cables that interconnect Machines and/or connect a Machine to
a facility connection point.
Change Control Process means a written process for controlling all changes to the activities,
processes, and operations comprising the Services and to the Agreement
(including the Transaction Documents).
Change of Control means the transfer of the Control of a Party from the persons or persons who
hold such control on the Effective Date to another person or persons, but shall
not include a transfer of the Control of a Party to an Affiliate of such Party.
Change of Control Termination means the fee to be paid by Equifax upon a termination of a Transaction Document
Charge pursuant to Section 12.1(e) as set forth in Schedule J to each Transaction
Document for such Transaction Document.
Change Request means a written request to make a change to the Agreement (including the
Transaction Document).
Change Request Form means the written document supporting a Change Request and that describes the
change, the rationale for the change, and the effect that the change will have,
as described further in Section 6.3.
Claim means any civil, criminal, administrative, or investigative action or proceeding
commenced or threatened by a third party.
Code means computer programming code, including source and object code.
Commencement Date means the date set forth in each Transaction Document for the start of the
Services covered by such Transaction Document.
44
Company Information means collectively the Confidential Information and Trade Secrets of a Party.
Company Information also includes information which has been disclosed to such
Party by a third party, which Party is obligated to treat as confidential or
secret.
Confidential Information means with respect to a Party, any and all proprietary business information of
the disclosing Party and/or of third parties in the possession of the disclosing
Party treated as secret by the disclosing Party (that is, it is the subject of
efforts by the disclosing Party that are reasonable under the circumstances to
maintain its secrecy) that does not constitute a Trade Secret (defined below),
including, without limitation, any and all proprietary information in the
possession of such disclosing Party of which the receiving Party becomes aware
as a result of its access to and presence at the other Party's facilities.
Contract Year means each twelve (12) calendar month period beginning January 1 of each
calendar year during the Term.
Controlling, Controlled or means possessing, directly or indirectly, the power to direct or cause the
Control direction of the management and policies of an entity, whether through ownership
of voting securities, by contract or otherwise.
Data Center means the data center from which the Services are provided located in the
Facilities as set forth in each Transaction Document.
Derivative Work means a work based on one or more pre-existing works, including without
limitation, a condensation, transformation, expansion or adaptation, which would
constitute a copyright infringement if prepared without authorization of the
owner of the copyright of such pre-existing work.
Develop means develop, create, modify or personalize.
Direct Damages has the meaning given in Section 13.3.
Direct Damages Caps has the meaning given in Section 13.1.
Disabling Code means Code which could have the effect of disabling or otherwise shutting down
one or more software programs or systems and/or hardware or hardware systems.
Disaster Recovery Services means the Disaster Recovery services described in Schedule G to each Transaction
Document for such Transaction Document.
EDS Code means Code Developed by EDS and/or its subcontractors but not as part of the
Services, but used to provide the Services, which code does not constitute a
Derivative Work of any software owned by the Equifax Group, EDS or their
respective Affiliates, contractors or subcontractors.
EDS Derivative Code means Code Developed by EDS and/or its subcontractors which constitutes
Derivative Works of software for which the copyright is owned by EDS, its
Affiliates or its subcontractors.
EDS Indemnitee means EDS and its Affiliates that are a party to a Transaction Document and
their respective officers, directors, employees, agents, successors, and assigns.
45
EDS Interfaces means Code and/or literary works of authorship created by EDS and/or its
subcontractors but not as part of the Services, but used to provide the
Services, and interface or describe and instruct regarding the interface,
between and among Applications Software and the Systems Software, which does not
constitute a Derivative Work of any software or literary works of authorship
owned by the Equifax Group, EDS, or their respective Affiliates, contractors or
subcontractors, including without limitation, user manuals, charts, graphs and
other written documentation, and machine-readable text and files.
EDS Machines means the computer equipment, peripheral devices, storage media, Cabling,
connectors, extenders and other equipment (however described) including without
limitation, the Acquired Customer Hardware upon consummation of the sale of such
hardware and any modems, routers and termination boxes for the Network located
in the Facilities and other Equifax Group sites, including without limitation
Data Center and at the Network Locations, used from time to time by EDS to
perform and deliver the Services and fulfill its obligations under the
Agreement. The EDS Machines as of the Commencement Date are listed on Schedule
D to each Transaction Document for such Transaction Document, which Schedule
shall be updated pursuant to Section 8.1 during the term of each Transaction
Document to reflect the then-current EDS Machines.
EDS Software means the Applications Software-EDS, Systems Software-EDS and any and all other
computer software specifically identified during the term of each Transaction
Document in each such Transaction Document as being provided for Equifax's use
in connection with the Services.
EDS Works means literary works of authorship (other than Code) Developed by EDS, its
Affiliates and/or its subcontractors but not as part of the Services, but used
to provide the Services, including without limitation user manuals, charts,
graphs and other written documentation and machine-readable text and files.
Effective Date means the date set forth on the initial page of the Master Agreement.
End User Machines means all work stations, terminals, printers, fax machines, and associated
peripheral equipment used by end users and described in a Schedule to each
Transaction Document for such Transaction Document, whether stationary or mobile
equipment used by end users, but does not include the work stations being used
by EDS personnel in connection with the scheduled Projects or the Equifax
Provided Hardware located in the Equifax data center.
Equifax Business means the businesses engaged in by the Equifax Group.
Equifax Code means Code Developed by EDS and/or its subcontractors independently or jointly
with the Equifax Group and/or their contractors, as part of the Services.
Equifax Derivative Code means Developed Code which constitutes Derivative Work of software for which the
copyright is owned by the Equifax Group and/or their contractors, excluding EDS.
Equifax Group means individually and collectively Equifax and its existing and future
Affiliates that are using and/or receiving any portion of the Services.
Equifax Indemnitee means each member of the Equifax Group and its respective officers, directors,
employees, agents, successors, contractors, and assigns.
46
Equifax In-Scope means all functions, responsibilities, tasks and activities that are described
Operations in the Agreement and each Transaction Document (including the Schedules thereto)
that are currently performed by and/or are to be performed by EDS, including,
without limitation, those performed for the Equifax Group by the Affected
Employees under each Transaction Document before they entered the employ of EDS.
Equifax Provided means the computer equipment peripheral devices, storage media, Cabling,
Hardware connectors, the Data Network, the LAN, telephone equipment and other equipment
(however described) provided from time to time by the Equifax Group for use by
EDS to perform and deliver the Services and fulfill its obligations under the
Agreement. The Equifax Provided Hardware as of the Commencement Date is listed
on and/or referred to in Schedule C to each Transaction Document for such
Transaction Document, which schedule shall be updated pursuant to Section 8.1
during the term of each Transaction Document to reflect the then-current Equifax
Provided Hardware.
Equifax Provided Office means the desks, chairs, filing cabinets, office cube partitions and other
Furnishings office furniture (however, described) provided from time to time by the Equifax
Group for use by EDS to perform and deliver the Services and fulfill its
obligations under the Agreement. The Equifax Provided Office Furnishings as of
the Commencement Date are listed on and/or referred to in a Schedule to each
Transaction Document for such Transaction Document, which schedule shall be
updated pursuant to Section 8.1 during the term of each Transaction Document to
reflect the then-current Equifax Provided Office Furnishings.
Equifax Server shall have the meaning given in a Schedule to each Transaction Document for such
Configurations Transaction Document.
Equifax Software means Applications Software-Equifax, Systems Software-Equifax and any and all
other computer software specifically identified during the term of each
Transaction Document in each such Transaction Document as being provided for
EDS' use in connection with the Services.
Equifax Works means literary works of authorship (other than Code) Developed by EDS and/or its
subcontractors independently or jointly with the Equifax Group and/or its
contractors, as part of the Services, including without limitation user manuals,
charts, graphs and other written documentation, and machine-readable text and
files.
Execution Date means the date of execution of a Transaction Document as set forth on the
initial page thereof.
Extension Period means a period of up to one (1) year for which the Services and/or Services
Transfer Assistance may be extended as described in Section 1.4.
Facilities has the meaning given in Schedule E to each Transaction Document for such
Transaction Document.
47
Force Majeure Event means, individually, fire, flood, earthquake, elements of nature or acts of God,
acts of war, terrorism, riots, civil disorders, rebellions or revolutions in the
United States, strikes, lockouts, or labor difficulties or any other similar
cause beyond the reasonable control of such Party, other than strikes, lockouts,
or labor difficulties initiated by such Party's or its subcontractor's
employees; and provided such default or delay could not have been prevented by
reasonable precautions and cannot reasonably be circumvented by the
nonperforming Party through the use of alternate sources, work-around plans or
other means.
Help Desk means the EDS help desk which is staffed by EDS to provide support to Equifax as
described in Schedule E to each Transaction Document for such Transaction
Document.
Indemnified Party means the Party having a right to be indemnified by the other Party under
Sections 14.1 and 14.2.
Indemnifying Party means the Party that is obligated to provide indemnification under Sections 14.1
and 14.2.
Installations, Moves, Adds means the installation of circuits, network hardware and software and network
and Changes (IMACs) end-user equipment at any Authorized User location, including testing to ensure
network connectivity and proper operation. "Move" means the physical
disconnection of network equipment and services and, in some cases, the
relocation to another site. In most cases, this activity is coordinated with
outside vendors, such as telephone company representatives, to ensure that all
necessary components of the network are properly moved, and if appropriate
reinstalled. Recording of assets by decal and serial number is critical to the
integrity of the move. "Add" means the process of adding, expanding and
possibly reconfiguring network systems. This may involve circuits, circuit
speeds or network equipment. In some cases, network software would be affected.
After the process is complete, testing occurs to ensure that the final system is
fully operational. "Change" means the process of altering an existing network
system or environment and could include network software upgrades and system or
technology enhancements. The change could be implemented by IBM or a
third-party vendor, with testing occurring after the change to ensure network
and systems integrity.
Integrated Planning Team means a group of representatives designated by each Party to conduct the
activities described in Sections 6.1 and 16.1.
Key Positions means the positions within the EDS account team under each Transaction Document,
listed on Schedule T to each Transaction Document.
LAN Software - EDS means the LAN Software listed on Schedule A under such heading, provided or to
be provided by EDS.
LAN Software - Equifax means the LAN Software listed on Schedule A to each Transaction Document for
such Transaction Document under such heading, provided or to be provided by
Equifax.
Level One Support has the meaning given in a Schedule to each Transaction Document for such
Transaction Document.
48
Level Three Support has the meaning given in a Schedule to each Transaction Document for such
Transaction Document.
Level Two Support has the meaning given in a Schedule to each Transaction Document for such
Transaction Document.
Listed Subcontractors means EDS subcontractors approved by the Parties for engagement to provide a
portion of the Services under a Transaction Document.
Local Area Network (LAN) means all communications facilities and components that are used to transmit
voice, image and data signals within a local area network and which initially
consist of the communications facilities and components in use by Equifax
immediately prior to the Commencement Date to provide local area network
communications facilities to the Equifax Group as described in Schedule I to
each Transaction Document for such Transaction Document, including without
limitation the associated attachments, peripherals, features, software and
accessories, communications lines and Cabling, including the wiring systems, at
the locations specified in such Schedule.
Losses means all losses, liabilities, damages, penalties and claims (including taxes
and all related interest and penalties incurred directly with respect thereto),
and all related costs, expenses and other charges (including all reasonable
attorneys' fees and reasonable costs of investigation, litigation, settlement,
judgment, interest and penalties).
Machines means the EDS Machines and Equifax Provided Hardware.
Maintenance Release means those Software fixes and updates provided by the Software vendors as part
of normal maintenance service for the Software for which there is no charge by
such vendors in addition to periodic maintenance charges, if any.
Materials means the Equifax Code, the Equifax Derivative Code, the Equifax Works, the EDS
Code, the EDS Derivative Code, the EDS Works and the EDS Interfaces.
Minimum Service Levels means the minimum level of performance of the Services by EDS, performance below
which will trigger the Service Credit and other mechanisms described in Schedule
O to each Transaction Document for such Transaction Document.
Monthly Charges has the meaning given in Schedule J to each Transaction Document for such
Transaction Document.
Network means the Data Network.
Network Locations has the meaning given in Schedule I to each Transaction Document for such
Transaction Document.
Network Vendors means any third parties providing information communication services to Equifax
which are accessed or will be accessed through the Network.
New Services means an additional function, responsibility or task under any Transaction
Document that requires resources for which there is no current Resource Unit
Baseline or charging methodology under such Transaction Document; that is, such
function, responsibility, or task is not included in the Monthly Charges and is
not charged separately under another methodology other than the New Services
provision at Section 3.13.
49
Norm has the meaning given in Section 9.8(b).
Notice means a request to submit a dispute to the Integrated Planning Team as described
in Section 16.1(a).
Parties means EDS and Equifax as detailed on the initial page of the Agreement.
Party means EDS or Equifax as detailed on the initial page of the Agreement.
[*] [*]
Performance Standards means the service levels and performance responsibilities under which the
Services will be provided. The Performance Standards are described in Schedule
O to each Transaction Document for such Transaction Document.
Performance Value has the meaning given in Section 9.8(d).
Poll means to connect the Facilities to the other Equifax Group sites to retrieve
data, perform downloads/updates and/or execute remote diagnostics.
Project Executive means the individual designated by each Party as having overall management
responsibility for the appointing Party's performance of the Agreement.
Project Manager means the individual designated by each Party as having primary management
responsibility for the appointing Party's performance under a Transaction
Document.
Project(s) means the portion of the Services described in Schedule M to each Transaction
Document.
Required Consents means any consents or approvals required to be obtained (a) to allow EDS to
assume financial and/or support, operational, management and administrative
responsibility for the Equifax Software, the Equifax Provided Hardware and the
Equifax Provided Office Furnishings in connection with the Services; (b) for the
licensing, transfer and/or grant of the right to the Equifax Group to use the
EDS Software and EDS Machines as contemplated by the Agreement; and (c) for the
Equifax Group and EDS to have access to and use of the space, equipment,
software and/or third party services provided under the Third Party Agreements
in connection with the Services as contemplated by the Agreement.
Resource Unit has the meaning given in Schedule J to each Transaction Document for such
Transaction Document.
Resource Unit Baseline means the baseline amount of certain resources utilized in providing the
Services as described in Schedule J to each Transaction Document for such
Transaction Document.
Service Credits means the amounts set forth in a Schedule to each Transaction Document to be
credited to Equifax for EDS's failure to provide the Services in accordance with
the Minimum Service Levels.
Service Employees means EDS employees performing Services under the Agreement.
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
50
Services means (i) the migration of the Equifax In-Scope Operations from the Equifax
Group to EDS pursuant to each Transaction Document, (ii) the performance of the
Equifax In-Scope Operations in accordance with each Transaction Document
including the Schedules thereto, (iii) the performance of the Equifax In-Scope
Operations, including the functions, responsibilities, activities and tasks
comprising the Equifax In-Scope Operations, as they may evolve and be
supplemented and enhanced during the Term, and (iv) the providing transfer
assistance to migrate the Equifax In-Scope Operations from EDS to Equifax or a
third party services provider designated by Equifax.
Services Transfer means assistance to transfer the Services from EDS to Equifax or its designee as
Assistance described in Section 12.5.
Similarly Situated means EDS's customers with substantially the same mix and type of processing
Customers applications and systems resources utilization at similar or lesser volumes.
Software means EDS Software and Equifax Software.
Software Maintenance means defect identification and fixes, and installation of those fixes and
updates provided by software vendors as part of normal maintenance service for
the Software including, without limitation, regulatory/statutory changes and
version upgrades to Software.
System means the Machines, Software and Network provided under each Transaction
Document and the operating environment therefore.
Systems Software means those programs and programming (including all supporting documentation and
media) that perform tasks related to the functioning of the data processing, and
telecommunication equipment which is used to operate the Applications Software
or otherwise to support the provision of the Services by EDS under each
Transaction Document, whether or not licensed to EDS. Systems Software
includes, but is not limited to, operating systems, software utilities, data
security software, data network software, communications monitors and data base
managers. Systems Software as of the Commencement Date is listed in Schedule B
to each Transaction Document for such Transaction Document, which schedule shall
be updated pursuant to Section 8.1 during the term of each Transaction Document
to reflect the then current Systems Software.
Systems Software-EDS means Systems Software listed in Schedule B to each Transaction Document for
such Transaction Document under the heading "Systems Software-EDS", provided or
to be provided by EDS.
Systems Software-Equifax means the systems software and general purpose software such as the database
creation and management software, utility software and applications development
tools software listed in Schedule B to each Transaction Document for such
Transaction Document under such heading provided or to be provided by Equifax.
Term means the ten year period described in Section 1.3 and any extension and renewal
term described therein.
[*] [*]
* Information omitted pursuant to Request for Confidential Treatment under Rule
406 of the Securities Act of 1933.
51
Third Party Agreements means those contractual, leasing and licensing arrangements for which EDS has
undertaken financial, management and/or administrative responsibility and
pursuant to which a member of the Equifax Group receives any third party
products, software and/or services in connection with the provision of the
Services. Third Party Agreements to which one or more members of the Equifax
Group is a party are listed on Schedule F to each Transaction Document for such
Transaction Document, which schedule shall be updated pursuant to Section 8.1
during the term of each Transaction Document to reflect the then-current Third
Party Agreements.
Third Party Provider means a business or entity other than a member of the Equifax Group or EDS that
provides products, software and/or services under a Third Party Agreement, in
support of the provision of the Services by EDS.
Trade Secrets mean with respect to a Party, information related to the services and/or
business of the disclosing Party and/or of a third party which (a) derives
economic value, actual or potential, from not being generally known to or
readily ascertainable by other persons who can obtain economic value from its
disclosure or use; and (b) is the subject of efforts by the disclosing Party
that are reasonable under the circumstances to maintain its secrecy, including
without limitation (i) marking any information clearly and conspicuously with a
legend identifying its confidential or proprietary nature; (ii) identifying any
oral presentation or communication as confidential immediately before, during or
after such oral presentation or communication; or (iii) otherwise, treating such
information as confidential or secret. Assuming the criteria in sections (a)
and (b) above are met, Trade Secrets include, but are not limited to, technical
and nontechnical data, formulas, patterns, compilations, computer programs and
software, devices, drawings, processes, methods, techniques, designs, programs,
financial plans, product plans, and lists of actual or potential Equifax's
customers and suppliers.
Transaction Document means each document executed by EDS with Equifax pursuant to the Master
Agreement, providing for the performance and delivery of a portion of the
Services to a specific site or group of sites. The Schedules to each such
document are listed in Exhibit 3.
Transition Period means the mutually agreed period of time set forth in a Transition Plan.
Transition Personnel means the personnel (or portions of time of the personnel) set forth in the
Transition Plan.
Transition Plan means a written plan setting forth the activities to be conducted by EDS during
the transition of personnel and/or operations responsibilities as more fully
described in Section 5.1(a).
Unit Rates has the meaning set forth in Schedule J to each Transaction Document for such
Transaction Document.
Version means those Software updates that generally add function to the existing
Software and may be provided by the Software vendors at a fee over and above the
standard software maintenance costs.
52
Virus or Viruses means computer instructions (i) that adversely affect the operation, security or
integrity of a computing, telecommunications or other digital operating or
processing system or environment, including without limitation, other programs,
data, computer libraries and computer and communications equipment, by altering,
destroying, disrupting or inhibiting such operation, security or integrity; (ii)
that without functional purpose, self-replicate written manual intervention; or
(iii) that purport to perform a useful function but which actually perform
either a destructive or harmful function, or perform no useful function and
utilize substantial computer, telecommunications or memory resources.
Wind-Down Expenses means the net amount, after EDS takes commercially reasonable action to mitigate
the adverse financial impact on EDS, that will reimburse EDS for the actual
reasonable costs that EDS incurs in the disposition and/or reallocation of EDS
Machines, EDS Software and the portion of the Facilities dedicated to the
performance of the Services, the placement of EDS personnel allocated to the
delivery of the Services, and the termination, if appropriate, of the Third
Party Agreements, in the event of a termination occurring prior to the
expiration of the Term or the term of any Transaction Document; provided,
however, Equifax shall have the right to mitigate such costs by purchase of, or
assumption of the leases for, the EDS Machines, assumption of the licenses and
maintenance agreements for the EDS Software, hiring the EDS personnel and
assuming Third Party Agreements used by EDS to perform and deliver the Services
and taking similar actions.
53
Exhibit 3
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List of Schedules to each Transaction Document
----------------------------------------------
Schedule Title
A "Applications Software"
- "Applications Software - Equifax"
- "Applications Software - EDS"
B "Systems Software"
- "Systems Software - Equifax"
- "Systems Software - EDS"
C "Equifax Provided Hardware"
D "EDS Machines"
E "Services, Location of Facilities, and Operational and
Financial Responsibilities"
F "Leases, Licenses and Other Third Party Agreements"
G "Disaster Recovery"
H "Transition Plan"
I "Network Locations"
J "Pricing Supplement and Charging Methodologies"
K "Applications Installation Standards" (Operating
Environment IT Standards)
L "Security Procedures and Responsibilities - Data and
Physical"
M "Projects"
N "Affected Employees"
O "Service Levels and Service Credits"
P "Deviations From Terms of the Master Agreement"
Q "Year 2000"
R "Services Transfer Assistance"
S "Equifax Provided Office Furnishings and Facilities"
T "Key Positions"
U "Acquired Customer Hardware"
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Exhibit 4
---------
Integrated Planning Team Charter and Operating Procedures
Mission
The Integrated Planning Team ("IPT") will manage the Equifax/EDS relationship
for the Services as set forth in Section 6 of the Master Agreement and this
---------
Exhibit 4. The focus of this group is the coordination and communication of
activities under the Master Agreement (not day-to-day operations). The IPT will
be the focal point for interpretation, consultation and recommendations of the
Master Agreement for both Equifax and EDS globally.
Scope
Coordination of
. Master Agreement
. Software purchases
. Non-standard service/product requests
Maintain a schedule of all changes for Equifax
. Retain copy of capacity projections by site and device
. Retain capacity actuals monthly, by site and device
. Retain copy of hardware and software inventory
Check and Balance
. Hardware and software inventory
. I/T resource
Reporting to data center CIOs, data center managers and business unit interfaces
. Capacity projections
. Hardware projections
. Requests for Service (RFS) status
. Rollup of businesses plans and budges
Deliverables
. Recommendations on where applications run, globally
. Quarterly: rollup of capacity actuals and projections
. Summary of requirements and projections
Team Members
The IPT will be comprised of two groups, each with Equifax and EDS members. The
first group will be a full-time team with operational responsibility to carry
out the mission and scope of the IPT. The second will be an advisory group
consisting of Equifax and EDS data center managers from each unit. This group
will provide policy and priority direction to the operational team.
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. Operational Group
__ total full-time staff (__ Equifax and ___ EDS) to be assigned by the
chair Person for each of Equifax and EDS
Function/Role Equifax EDS
- --------------------------------------------------------------------------------------------------------------------
Sponsor (Chair person) Senior VP Senior PE
- --------------------------------------------------------------------------------------------------------------------
Administrative Assistant
- --------------------------------------------------------------------------------------------------------------------
Technical Consultants:
- --------------------------------------------------------------------------------------------------------------------
Mainframe
- --------------------------------------------------------------------------------------------------------------------
Network
- --------------------------------------------------------------------------------------------------------------------
Financial Consultant
- --------------------------------------------------------------------------------------------------------------------
Contract Specialist
- --------------------------------------------------------------------------------------------------------------------
Capacity Planner
- --------------------------------------------------------------------------------------------------------------------
Functional Manager
- --------------------------------------------------------------------------------------------------------------------
. Advisory group
Equifax and EDS data center managers representing each Equifax unit. If
this advisory group were in place today the organization member grid
would be:
Function/Role Equifax EDS
- --------------------------------------------------------------------------------------------------------------------
Chair person Senior VP Senior PE
- --------------------------------------------------------------------------------------------------------------------
Data Center Managers
- --------------------------------------------------------------------------------------------------------------------
Staff Job Functions
Administrative Assistant
This AA will provide administrative support for the team. This includes
document processing, calendar/meeting management and travel planning
support.
Technical Consultant - Mainframe
This consultant is responsible for all technical aspects of the agreement
as it relates to the Mainframe environment. This includes capacity
status, capacity projections, hardware and software inventory and
requests for services recommendations.
Technical Consultant - Network
This consultant is responsible for all technical aspects of the agreement
as it relates to the Network environment. This includes capacity status,
capacity projections, hardware and software inventory and requests for
services recommendations.
Financial Consultant
This consultant is responsible for analysis of business plans and budgets
for future or additional requirements.
Contract Specialist
This function would be responsible for agreement content understanding
and interpretation.
Capacity Planning Consultant
This consultant is responsible for maintaining, reporting and analysis of
monthly global capacity status and projections for current and future
operations.
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Functional Manager
Overall department and personnel management of the Integrated Planning
Team.
Critical Success Factors
Proper Staffing
To be able to handle the workload the staffing levels must be maintained.
The Contracts Administrator and Administrative Assistant are critical
functions that allow the technical consultants to work on the issues that
result in meeting our mission objections.
Technology Consultants
The Technology Consultants must be full time members of the team. The
Technology Consultants cannot have operational responsibilities. For the
team to be successful, the Technology Consultants must be focused on
capacity status, capacity projections, hardware and software inventory
and requests for services recommendations.
Funding
For this team to be successful, it must be funded. This critical
function be fully funded for personnel, space, equipment, travel and
training.
Executive Sponsorship
This team has to have the active, on-going sponsorship of Equifax and EDS
executives (Equifax Senior VP and EDS Senior PE) to maintain the focus on
this organizations mission.
57