EXHIBIT 2.9
MASTER IT SERVICE LEVEL AGREEMENT
This IT Service Level Agreement (the "Agreement") is effective as of __________,
1999 (the "Effective Date"), between HEWLETT-PACKARD COMPANY, a Delaware
corporation ("HP"), having an office at 3000 Hanover Street, Palo Alto,
California 94304 and Agilent Technologies, Inc., a Delaware corporation
("Agilent"), having an office at 3000 Hanover Street, Palo Alto, California
94304.
1.Definitions. For the purpose of this Agreement, the following capitalized
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terms shall have the following meanings:
1.1 "Ancillary Agreements" shall have the meaning set forth in Separation
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and Distribution Agreement.
1.2 "Additional Services" shall have the meaning set forth in Section 3.2.
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1.3 "Cover Sheet" shall have the meaning set forth in Section 2.
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1.4 "Distribution Date" shall have the meaning set forth in the Separation
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and Distribution Agreement.
1.5 "Impracticable" shall have the meaning set forth in Section 7.2.
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1.6 "Providing Company" shall mean, with respect to any particular
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Service, the party or its Subsidiaries identified on the applicable Cover Sheet
as the party to provide such Service.
1.7 "Receiving Company" shall mean, with respect to any particular
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Service, the party or its Subsidiaries identified on the applicable Cover Sheet
as the party to receive such Service.
1.8 "Separation and Distribution Agreement" shall mean that certain Master
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Separation and Distribution Agreement between HP and Agilent.
1.9 "Separation Date" shall have the meaning set forth in the Separation
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and Distribution Agreement.
1.10 "Service(s)" shall have the meaning set forth in Section 3.1.
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1.11 "Subsidiary" shall have the meaning set forth in the Separation and
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Distribution Agreement.
1.12 "System" shall mean the software, hardware, data store or maintenance
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and support components or portions of such components of a set of information
technology assets identified in the corresponding Exhibit A attached hereto.
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2. Cover Sheets. This Agreement will govern individual IT services. Each
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Service shall be covered by a copy of this Agreement with a cover sheet in the
form attached hereto (each cover sheet, a "Cover Sheet"). The Agreement for
each Service shall also include the following Exhibits, as appropriate for that
Service:
Exhibit A: Statement of Services
Exhibit B: Compensation
Exhibit C: Software License Terms (if applicable)
Exhibit D: Confidential Disclosure Agreement
Exhibit E: Escalation Teams
For each Service, the parties shall set forth, among other things, the
identities of the Providing Company and the Receiving Company, the time period
during which the Service will be provided, a summary of the Service to be
provided and approval by each party on a Cover Sheet; a description of the
Service on the corresponding Exhibit A; and the estimated charge, if any, for
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the Service and any other terms applicable thereto on the corresponding Exhibit
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B. Obligations regarding each Agreement shall be effective upon execution of
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the Cover Sheet. Each Agreement, all the Exhibits and its Cover Sheet shall be
defined as the "Agreement" and incorporated herein wherever reference to it is
made.
3. Services.
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3.1 Services Generally. Except as otherwise provided herein, for the term
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determined pursuant to Section 4 hereof, Providing Company shall provide or
cause to be provided to Receiving Company the services described in the Exhibit
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A's attached hereto. The service described on a single Exhibit A shall be
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referred herein as a "Service". Collectively, the services described on all the
Exhibit A's (including Additional Services) shall be referred herein as
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"Services".
3.2 Additional Services. From time to time after the Effective Date, the
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parties may identify additional services that one party will provide to the
other party in accordance with the terms of this Agreement (the "Additional
Services"). Accordingly, the parties shall execute additional Cover Sheets and
complete additional Sets of Exhibits for such Additional Services pursuant to
Section 2. Except as set forth in Section 3.3, the parties may agree in writing
on Additional Services during the term of this Agreement.
3.3 Obligations as to Additional Services. Except as set forth in the next
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sentence, the Providing Company shall be obligated to perform, at a reasonable
charge, any Additional Service that: (A) was provided by the Providing Company
immediately prior to the Separation Date and that Receiving Company reasonably
believes was inadvertently or unintentionally omitted from the list of Services
or (B) is essential to effectuate an orderly transition under the Separation and
Distribution Agreement unless such performance would significantly disrupt
Providing Company's operations or materially increase the scope of its
responsibility under this Agreement. If Providing Company reasonably believes
the performance of Additional Services required under subparagraphs (A) or (B)
would significantly disrupt its operations or materially increase the scope of
its responsibility under this Agreement, the Providing Company and Receiving
Company shall negotiate in good faith to establish terms under which Providing
Company can provide such Additional Services, but the Providing Company shall
not be obligated to provide such Additional Services if, following good faith
negotiation, it is unable to reach agreement on such terms.
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4. Term. The term of this Agreement shall commence on the Effective Date and
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shall remain in effect until November 1, 2001 (the "Expiration Date"), unless
earlier terminated under Section 8. This Agreement may be extended by the
parties in writing either in whole or with respect to one or more of the
Services, provided, however, that such extension shall only apply to the
Services for which the Agreement was extended. The parties shall be deemed to
have extended this Agreement with respect to a specific Service if the Cover
Sheet for such Service specifies a completion date beyond the aforementioned
Expiration Date. The parties may agree on an earlier expiration date respecting
a specific Service by specifying such date on the Cover Sheet for that Service.
Services shall be provided up to and including the date set forth in the
applicable Cover Sheet, subject to earlier termination as provided herein.
5. Compensation.
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5.1 Charges for Services. Receiving Company shall pay Providing Company
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the charges, if any, set forth on the Exhibit B's for each of the Services
listed therein as adjusted, from time to time, in accordance with the process
and procedures established under Section 5.4 hereof. Such fees shall include the
direct and indirect costs of providing the Services plus five percent (5%).
However, if the term of this Agreement is extended beyond the Expiration Date as
provided in Section 4, Agilent will reimburse HP such costs plus 10% for the
Services. Wherever practical, fees shall be based on actual incurred costs, not
budgeted or estimated costs. The parties also intend for charges to be easy to
administer and justify and, therefore, they hereby acknowledge it may be
counterproductive to try to recover every cost, charge or expense particularly
those that are insignificant or de minimis. The parties shall use good faith
efforts to discuss any situation in which the actual charge for a Service is
reasonably expected to exceed the estimated charge, if any, set forth on an
Exhibit B for a particular Service, provided, however, that the incurrence of
charges in excess of any such estimate shall not justify stopping the provision
of, or payment for, Services under this Agreement.
5.2 Payment Terms. Providing Company shall bill Receiving Company monthly
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for all charges pursuant to this Agreement. Such bills shall be accompanied by
reasonable documentation or other reasonable explanation supporting such
charges. Receiving Company shall pay Providing Company for all Services
provided hereunder within thirty (30) days after receipt of an invoice therefor.
Late payments shall bear interest at the Prime Rate plus two percent (2%) per
annum.
5.3 Performance Under Ancillary Agreements. Notwithstanding anything to
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the contrary contained herein, Receiving Company shall not be charged under this
Agreement for any obligations that are specifically required to be performed
under the Separation and Distribution Agreement or any other Ancillary Agreement
and any such other obligations shall be performed and charged for (if
applicable) in accordance with the terms of the Separation and Distribution
Agreement or such other Ancillary Agreement.
5.4 Error Correction; True-Ups; Accounting. Before the Separation Date,
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the parties shall agree on a process and procedure for conducting internal
audits and making adjustments to charges as a result of the movement of
employees and functions between parties, the discovery of errors or omissions in
charges, as well as a true-up of amounts owed. The parties shall set forth
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the agreed upon process and procedure in Schedule I hereto. In no event shall
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such processes and procedures extend beyond one (1) year after completion of a
Service.
5.5 Pricing Adjustments. In the event of a tax audit adjustment relating
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to the pricing of any or all Services provided pursuant to this Agreement in
which it is determined by a taxing authority that any of the charges,
individually or in combination, did not result in an arm's-length payment, as
determined under internationally accepted arm's-length standards, then the
parties, including a Providing Company subcontractor providing or receiving
Services hereunder, may agree to make corresponding adjustments to the charges
in question for such period to the extent necessary to achieve arm's-length
pricing. Any adjustment made pursuant to this Section 5.5 shall be reflected in
the parties' legal books and records, and the resulting overpayment or
underpayment shall create an obligation to be paid in the manner specified in
Section 5.2.
6. General Obligations; Standard of Care.
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6.1 Performance Metrics: Providing Company. Subject to Section 7.3, the
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Providing Company shall maintain sufficient resources to perform its obligations
hereunder. Specific performance metrics for the Providing Company for a
specific Service may be set forth in the corresponding Exhibit A. Where none is
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set forth, the Providing Company shall use reasonable efforts to provide
Services in accordance with the policies, procedures and practices in effect
before the date hereof and shall exercise the same care and skill as it
exercises in performing similar services for itself. In addition, where none is
set forth for Services in which a System is replicated or transferred, the
Providing Company will use reasonable efforts to replicate and/or transfer each
System so that it has substantially the same functionality for Receiving Company
as it did immediately before the date hereof taking into account changes
reasonably expected and customary in a new operating environment.
6.2 Disclaimer of Warranties. PROVIDING COMPANY MAKES NO WARRANTIES,
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EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE SERVICES, SOFTWARE OR OTHER DELIVERABLES PROVIDED BY IT HEREUNDER.
6.3 Performance Metrics: Receiving Company. Specific performance metrics
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for the Receiving Company for a specific Service may be set forth in the
corresponding Exhibit A. Where none is set forth, the Receiving Company shall
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use reasonable efforts, in connection with receiving Services, to follow the
policies, procedures and practices in effect before the date hereof including
providing information and documentation sufficient for Providing Company to
perform the Services as they were performed before the date hereof and making
available, as reasonably requested by the Providing Company, sufficient
resources and timely decisions, approvals and acceptances in order that
Providing Company may accomplish its obligations hereunder in a timely manner.
6.4 Transitional Nature of Services; Changes. The parties acknowledge the
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transitional nature of the Services and that Providing Company may make changes
from time to time in the manner of performing the Services if Providing Company
is making similar changes in performing similar services for itself and if
Providing Company furnishes to Receiving Company reasonable notice regarding
such changes. Notwithstanding the foregoing, for a period of six (6) months
from the Effective Date, Providing Company will not make any material change to
Systems affecting Receiving Company without first providing thirty (30) days
prior written notice
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and obtaining Receiving Company's prior written consent, which consent shall not
be unreasonably withheld or delayed.
6.5 Responsibility for Errors; Delays. Providing Company's sole
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responsibility to Receiving Company:
(a) for errors or omissions in Services, shall be to furnish
correct information, payment and/or adjustment in the
Services, at no additional cost or expense to Receiving
Company; provided, Receiving Company must promptly advise
Providing Company of any such error or omission of which it
becomes aware after having used reasonable efforts to detect
any such errors or omissions in accordance with the standard
of care set forth in Section 6.1;
(b) for failure to deliver any Service because of
Impracticability, shall be to use reasonable efforts,
subject to Section 7.3, to make the Services available
and/or to resume performing the Services as promptly as
reasonably practicable;
(c) for an error, bug, fault or deficiency in a replicated or
transferred System (a "System Error") that did not exist in
the System immediately before the Separation Date, shall be
to use reasonable efforts, subject to Section 7.3 and taking
into account the importance of the affected System to the
Receiving Company's business operations, to cooperate with
Receiving Company to correct such System Error at no
additional cost or expense to Receiving Company (such
correction may take the form of new or revised software or
an appropriate work-around); provided, Receiving Company
must advise Providing Company of any such System Error
within sixty (60) days after completion of the activities
set forth in (A) the Exhibit A for the System containing a
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System Error or (B) the Exhibit A for any feeder System
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that caused the System Error, whichever is later; and
(d) for failure to complete any of the Services related to
replication or transfer of System(s) because of
Impracticability, shall be to use reasonable efforts,
subject to Section 7.3, to make the Systems available to
Receiving Company from a Providing Company facility until
Providing Company can resume replication or transfer
activities or until the parties devise an appropriate
alternative approach pursuant to Section 6.6.
6.6 Good Faith Cooperation; Consents. The parties will use good faith
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efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
providing electronic access to Systems used in connection with Services,
performing true-ups and adjustments and obtaining all third party consents,
licenses, sublicenses or approvals necessary to permit each party to perform its
obligations hereunder (including by way of example, not by way of limitation,
rights to use third party software needed for the performance of Services). The
costs of obtaining such third party consents, licenses, sublicenses or approvals
shall be borne by the Receiving Company. The parties will maintain
documentation supporting the information contained in the Exhibits and cooperate
with each other in making such information available as needed in the event of a
tax audit, whether in the United States or any other country.
6.7 Alternatives. If Providing Company reasonably believes it is unable to
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provide any Service because of a failure to obtain necessary consents, licenses,
sublicenses or approvals
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pursuant to Section 6.6 or because of Impracticability, the parties shall
cooperate to determine the best alternative approach. Until such alternative
approach is found or the problem otherwise resolved to the satisfaction of the
parties, the Providing Company shall use reasonable efforts, subject to Section
7.2 and Section 7.3, to continue providing the Service or, in the case of
Systems, to support the function to which the System relates or permit Receiving
Company to have access to the System so Receiving Company can support the
function itself. To the extent an agreed upon alternative approach requires
payment above and beyond that which is included in the Providing Company's
charge for the Service in question, the parties shall share equally in making
any such payment unless they otherwise agree in writing.
7. Certain Limitations.
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7.1 Service Boundaries. Except as provided in an Exhibit A for a specific
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Service: (i) Providing Company shall be required to provide the Services only to
the extent and only at the locations such Services are being provided by
Providing Company for the Receiving Company immediately prior to the Effective
Date; and (ii) the Services will be available only for purposes of conducting
the business of the Receiving Company substantially in the manner it was
conducted prior to the Effective Date.
7.2 Impracticability. Providing Company shall not be required to provide
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any Service to the extent the performance of such Service becomes
"Impracticable" as a result of a cause or causes outside the reasonable control
of Providing Company including unfeasible technological requirements, or to the
extent the performance of such Services would require Providing Company to
violate any applicable laws, rules or regulations or would result in the breach
of any software license or other applicable contract.
7.3 Additional Resources. Except as provided in an Exhibit A for a
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specific Service, in providing the Services, Providing Company shall not be
obligated to: (i) hire any additional employees; (ii) maintain the employment of
any specific employee; (iii) purchase, lease or license any additional equipment
or software; or (iv) pay any costs related to the transfer or conversion of
Receiving Company's data to Receiving Company or any alternate supplier of
Services.
8. Termination.
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8.1 Termination. The Receiving Company may terminate this Agreement, either
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with respect to all or with respect to any one or more of the Services provided
to such Receiving Company hereunder, for any reason or for no reason, at any
time upon six (6) months prior written notice to the Providing Company. In
addition, subject to the provisions of Section 16 below, either party may
terminate this Agreement with respect to a specific Service if the other party
materially breaches a material provision with regard to that particular Service
and does not cure such breach (or does not take reasonable steps required under
the circumstances to cure such breach going forward) within sixty (60) business
days after being given notice of the breach; provided, however, that the non-
terminating party may request that the parties engage in a dispute resolution
negotiation as specified in Section 16 below prior to termination for breach.
8.2 Survival. Those Sections of this Agreement that, by their nature, are
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intended to survive termination will survive in accordance with their terms.
Notwithstanding the foregoing, in the event of any termination with respect to
one or more, but less than all Services, this Agreement shall continue in full
force and effect with respect to any Services not terminated hereby.
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8.3 User Ids, Passwords. The parties shall use good faith efforts at the
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termination or expiration of this Agreement or any specific Service hereto, to
ensure that all applicable user IDs and passwords are canceled and, subject to
Section 7.3, that any applicable data pertaining solely to the other parties are
deleted or removed from Systems.
9. Relationship Between the Parties. The relationship between the parties
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established under this Agreement is that of independent contractors and neither
party is an employee, agent, partner, or joint venturer of or with the other.
Providing Company will be solely responsible for any employment-related taxes,
insurance premiums or other employment benefits respecting its personnel's
performance of Services under this Agreement. Receiving Company agrees to grant
Providing Company personnel access to sites, systems and information (subject to
the provisions of confidentiality stated below) as necessary for Providing
Company to perform it obligations hereunder. Providing Company personnel agree
to obey any and all security regulations and other published policies of
Receiving Company.
10. Subcontractors. Providing Company may engage a "Subcontractor" to perform
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all or any portion of Providing Company's duties under this Agreement, provided
that any such Subcontractor agrees in writing to be bound by confidentiality
obligations at least as protective as the terms of Section 13 regarding
confidentiality below, and provided further that Providing Company remains
responsible for the performance of such Subcontractor. As used in this
Agreement, "Subcontractor" will mean any individual, partnership, corporation,
firm, association, unincorporated organization, joint venture, trust or other
entity engaged to perform hereunder.
11. Intellectual Property.
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11.1 Unless otherwise agreed by the parties under the Ancillary Agreements
or any separate license or technology agreement, if Providing Company supplies
Receiving Company with a deliverable that in whole or in part consists of
software, firmware, or other computer code (referred to as a "Software
Deliverable"), such Software Deliverables will be supplied in object code form
only and will be subject to the Providing Company software license terms
attached hereto as Exhibit C. In the event that such Software Deliverables are
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licensed to Providing Company by third parties, Receiving Company agrees to be
bound by any different or additional conditions that are required by such third
parties and are communicated in writing by Providing Company to Receiving
Company.
11.2 This Agreement and the performance of this Agreement will not affect
the ownership of any copyrights or other intellectual property rights allocated
in the Ancillary Agreements.
11.3 Neither party will gain, by virtue of this Agreement, any rights of
ownership of copyrights, patents, trade secrets, trademarks or any other
intellectual property rights owned by the other.
11.4 Except as set forth in Section 11.2, Providing Company will own all
copyrights, patents, trade secrets, trademarks and other intellectual property
rights subsisting in the Software Deliverables and other works developed by
Providing Company for purposes of this Agreement.
11.5 Receiving Company grants Providing Company a non-exclusive, worldwide,
royalty-free license to use, copy, and make derivative works of, distribute,
display, perform and transmit Providing Company's pre-existing copyrighted works
or other intellectual property rights solely to the extent necessary to perform
its obligations under this Agreement.
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12. Infringement Defense. To the extent Providing Company delivers or licenses
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any Software deliverables to Receiving Company after the Separation Date in
performance of this Agreement, Providing Company agrees to defend Receiving
Company and its directors, officers, employees and agents against any and all
claims, actions or suits (any of the foregoing, a "Claim") incurred by or
asserted against Receiving Company based upon infringement of a third party
patent or other intellectual property right. Receiving Company agrees to notify
Providing Company promptly of any Claim and permit Providing Company at
Providing Company's expense to defend such Claim and will cooperate in the
defense thereof. Providing Company agrees to pay any awards or settlement
amounts arising from a Claim. Neither Providing Company nor Receiving Company
will enter into or permit any settlement of any such Claim without the express
written consent of the other party. Receiving Company may, at its option and
expense, have its own counsel participate in any proceeding that is under the
direction of Providing Company and will cooperate with Providing Company and its
insurer in the disposition of any such matter.
13. Confidentiality. During the term of this Agreement, a party (the
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"Recipient") may receive or have access to certain information of the other
party (the "Discloser") that is marked as "Confidential Information," including,
though not limited to, information or data related to either party's products
(including the discovery, invention, research, improvement, development,
manufacture, or sale thereof), processes, or general business operations
(including sales, costs, profits, pricing methods, organization, employee or
customer lists and processes), and any information obtained through access to
any information assets or information systems (including computers, networks,
voice mail, etc.), which, if not otherwise described above, is of such a nature
that a reasonable person would believe to be confidential. The Recipient will
protect the confidentiality of Confidential Information under the terms of the
Confidential Disclosure Agreement attached as Exhibit D.
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14. Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY
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LOST PROFITS, LOSS OF DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION
OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES,
HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF,
OR RELATING TO, THIS AGREEMENT. THE FOREGOING LIMITATION WILL NOT LIMIT
PROVIDING COMPANY'S OBLIGATIONS WITH RESPECT TO PAYMENT OF DAMAGES OF ANY KIND
INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM UNDER ANY INDEMNITY OR
INFRINGEMENT DEFENSE PROVISIONS SPECIFIED HEREIN.
15. Force Majeure. Each party will be excused for any failure or delay in
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performing any of its obligations under this Agreement, other than the
obligations of Receiving Company to make certain payments to Providing Company
pursuant to Section 5 hereof for services rendered, if such failure or delay is
caused by Force Majeure. "Force Majeure" means any act of God or the public
enemy, any accident, explosion, fire, storm, earthquake, flood, or any other
circumstance or event beyond the reasonable control of the party relying upon
such circumstance or event.
16. Dispute Resolution.
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16.1 Negotiation. The parties shall make a good faith attempt to resolve
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any dispute or claim arising out of or related to this Agreement through
negotiation. Within thirty (30) days after notice of a dispute or claim is
given by either party to the other party, the parties' first tier
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negotiating teams specified in Exhibit E shall meet and make a good faith
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attempt to resolve such dispute or claim and shall continue to negotiate in good
faith in an effort to resolve the dispute or claim or renegotiate the applicable
section or provision without the necessity of any formal proceedings. If the
first tier negotiating teams are unable to agree within thirty (30) days of
their first meeting, then the parties' second tier negotiating teams specified
in Exhibit E shall meet within thirty (30) days after the end of the first
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thirty (30) day negotiating period to attempt to resolve the matter. During the
course of negotiations under this Section 16.1, all reasonable requests made by
one party to the other for information, including requests for copies of
relevant documents, will be honored. The specific format for such negotiations
will be left to the discretion of the designated negotiating teams but may
include the preparation of agreed upon statements of fact or written statements
of position furnished to the other party.
16.2 Nonbinding Mediation. In the event that any dispute or claim arising
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out of or related to this Agreement is not settled by the parties within fifteen
(15) days after the first meeting of the second tier negotiating teams under
Section 16.1, the parties will attempt in good faith to resolve such dispute or
claim by nonbinding mediation in accordance with the American Arbitration
Association Commercial Mediation Rules. The mediation shall be held within
thirty (30) days of the end of such fifteen (15) day negotiation period of the
second tier negotiating teams. Except as provided below in Section 16.3, no
litigation for the resolution of such dispute may be commenced until the parties
try in good faith to settle the dispute by such mediation in accordance with
such rules and either party has concluded in good faith that amicable resolution
through continued mediation of the matter does not appear likely. The costs of
mediation shall be shared equally by the parties to the mediation. Any
settlement reached by mediation shall be recorded in writing, signed by the
parties, and shall be binding on them.
16.3 Proceedings. Nothing herein, however, shall prohibit either party from
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initiating litigation or other judicial or administrative proceedings if such
party would be substantially harmed by a failure to act during the time that
such good faith efforts are being made to resolve the dispute or claim through
negotiation or mediation. In the event that litigation is commenced under this
Section 16.3, the parties agree to continue to attempt to resolve any dispute
according to the terms of Sections 16.1 and 16.2 during the course of such
litigation proceedings under this Section 16.3.
17. Miscellaneous.
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17.1 Entire Agreement. This Agreement, the Separation and Distribution
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Agreement and the other Ancillary Agreements constitute the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
17.2 Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of California regardless of the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
17.3 Descriptive Headings. The descriptive headings herein are inserted
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for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
17.4 Notices. All notices and other communications hereunder will be in
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writing and will be deemed to have been duly given when delivered in person, by
telecopy with answer back, by
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express or overnight mail delivered by a nationally recognized air courier
(delivery charges prepaid), or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties as follows:
if to HP:
c/o HP Company
3000 Hanover Street
Palo Alto, CA 94304
Attention: General Counsel
Telecopy: (650)
if to Agilent:
c/o Agilent Technologies, Inc.
3000 Hanover Street
Palo Alto, CA 94304
Attention: General Counsel
Telecopy: (650)
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
notice or communication delivered in person will be deemed effective upon
delivery. Any notice or communication sent by telecopy or by air courier will
be deemed effective on the first business day at the place at which such notice
or communication is received following the day on which such notice or
communication was sent. Any notice or communication sent by registered or
certified mail will be deemed effective on the third business day at the place
from which such notice or communication was mailed following the day on which
such notice or communication was mailed. As used in this Agreement, "business
day" means day other than a Saturday, a Sunday or a day on which banking
institutions located in the State of California are authorized or obligated by
law or executive order to close.
17.6 Nonassignability. Except as specifically permitted under Section 10
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above, neither party may, directly or indirectly, in whole or in part, whether
by operation of law or otherwise, assign or transfer this Agreement, without the
other party's prior written consent, and any attempted assignment, transfer or
delegation without such prior written consent shall be voidable at the sole
option of such other party. Notwithstanding the foregoing, each party (or its
permitted successive assignees or transferees hereunder) may assign or transfer
this Agreement as a whole without consent to an entity that succeeds to all or
substantially all of the business or assets of such party. Without limiting the
foregoing, this Agreement will be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
17.7 Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties will negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible.
17.8 No Waiver; Remedies Cumulative. No failure or delay on the part of
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any party in the exercise of any right hereunder will impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any provision of
this Agreement, nor will any single or partial
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exercise of any such right preclude other or further exercise of any other
right. All rights and remedies existing under this Agreement are cumulative to,
and not exclusive of, any rights or remedies otherwise available.
17.9 Amendment. No change or amendment will be made to this Agreement
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except by an instrument in writing signed on behalf of each of the parties to
such Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in duplicate originals by its duly authorized representatives.
HEWLETT-PACKARD COMPANY
By:
Title:
AGILENT TECHNOLOGIES, INC.
By:
Title:
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