Execution Copy
AMENDED AND RESTATED
GLOBAL MASTER SERVICES AGREEMENT
BETWEEN
COORS BREWING COMPANY
and
EDS INFORMATION SERVICES, L.L.C.
TABLE OF CONTENTS
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[*****] |
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Article 5 TRANSFERS OF EQUIPMENT, FACILITIES AND THIRD PARTY CONTRACTS |
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6.1 Terms of Employment; [*****] |
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7.8 [*****] |
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8.2 Rights, Restrictions and Obligations of the Receiving Party |
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9.10 [*****] |
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13.5 [*****] |
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ii
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Article 14 CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS |
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15.1 [*****] |
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15.2 [*****] |
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15.3 [*****] |
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15.4 [*****] |
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15.5 [*****] |
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16.2 [*****] |
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16.3 [*****] |
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16.5 [*****] |
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16.6 [*****] |
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17.1 [*****] |
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17.2 [*****] |
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17.3 [*****] |
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17.4 [*****] |
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17.5 [*****] |
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iv
Exhibits
[*****]
Schedules
[*****]
v
[*****]
vi
AMENDED AND RESTATED GLOBAL MASTER SERVICES AGREEMENT
THIS AMENDED AND RESTATED GLOBAL MASTER SERVICES AGREEMENT, effective as of January 1, 2004, is entered into between Coors Brewing Company, a Colorado corporation (“Coors”), and EDS Information Services, L.L.C., a Delaware limited liability company (“EDS”), and amends and restates that certain Master Services Agreement, dated as of the Commencement Date (as defined below), between Coors and EDS (the “Original Agreement”).
BACKGROUND
A. Coors and its Affiliates (as defined below) are in the business of manufacturing, distributing and selling beer and other malt-based and alcoholic beverages. EDS is an independent systems consulting firm which offers systems integration, network and systems operations, data center management, applications development, field services, and management consulting.
B. Coors desires to obtain from EDS, and EDS desires to provide to Coors, certain information technology services, all subject to and in accordance with the provisions of this Agreement (as defined herein).
C. Coors and EDS now desire to amend and restate the Original Agreement in order to (i) provide for the provision of certain information technology services to CBL (as defined below), (ii) facilitate the future provision of information technology services by EDS to other Coors Affiliates in countries outside of the United States of America, if EDS and Coors mutually agree to such an arrangement in the future, and (iii) revise certain other provisions of the Original Agreement, in each case as further provided in this Agreement (as defined below).
AGREEMENT
Coors and EDS hereby agree as follows:
DEFINITIONS
In this Agreement, the following terms shall have the indicated meanings:
(a) “Affiliate” means, with respect to any specified person or entity, any other person or entity that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the specified person or entity.
(b) “Agreement” means this Amended and Restated Global Master Services Agreement, all Local Country Agreements and all Schedules. For purposes of clarity, the Parties
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acknowledge that the term “Agreement” specifically excludes [*****]
(c) “Amendment Effective Date” means January 1, 2004.
(d) “Applications Software” means those programs and programming (including the supporting documentation and media) that perform in the conduct of the Services specific user related data processing and telecommunications tasks.
(e) “Assigned Contracts” has the meaning given in Section 5.3(a)(i).
(f) “Benchmarker” has the meaning given in Section 9.10(c).
(g) “Business Day” means any day other than a Saturday, Sunday, December 26 or legal holiday in the State of Colorado.
(h) “CBL” means Coors Brewers Limited, a company organized under the laws of England and Wales.
(i) “CBL Monthly Current Asset Payment” has the meaning given in Section 12.10(b).
(j) “CBL Transferred Equipment” has the meaning given in Section 5.1(c).
(k) “CBL Transition Plan” has the meaning given in Section 3.8(b).
(l) “CBL Transition Services” has the meaning given in Section 3.8(b).
(m) “Change Control Procedures” has the meaning given in Section 9.9(a).
(n) “Commencement Date” means August 1, 2001.
(o) “Confidential Information” has the meaning given in Section 8.1.
(p) “Confidential Materials” has the meaning given in Section 8.1.
(q) [*****]
(r) “Coors Applications Software” means Applications Software owned by Coors or its Affiliates (specifically excluding Third Party Software) and used to provide the Services. [*****]
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(s) “Coors Competitor” means any person or entity whom directly or indirectly, at any time during the Term, has as its primary business the manufacturing and/or distribution of beer and other malt-based or alcoholic beverages, and any Affiliate of such person or entity.
(t) “Coors Data” means [*****]
(u) “Coors Monthly Current Asset Payment” has the meaning given in Section 12.10(a).
(v) [*****]
(w) “Coors Software” means Coors Systems Software and Coors Applications Software.
(x) “Coors Systems Software” means Systems Software owned by a Coors Recipient or its Affiliates (specifically excluding Third Party Software) and used to provide the Services. [*****]
(y) “Coors Transferred Equipment” has the meaning given in Section 5.1(a).
(z) “Coors Transition Plan” shall have the meaning given in Section 3.8(a).
(aa) “Coors Transition Services” shall have the meaning given in Section 3.8(a).
(bb) “Critical Service Level” has the meaning given in Section 1 of Exhibit B.
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(cc) “Data Center” means (i) the Golden Data Center and (ii) subject to Coors written consent as provided in Section 3.5, any other data center which any EDS Provider uses to provide any Services.
(dd) “Disaster Recovery Plan” means: (i) with respect to Coors, the disaster recovery plan applicable to Coors, as it exists on the Commencement Date and is modified or replaced thereafter in accordance with the Change Control Procedures; (ii) with respect to CBL, the disaster recovery plan applicable to CBL, as it exists on the Amendment Effective Date and is modified or replaced thereafter in accordance with the Change Control Procedures; and (iii) any enterprise disaster recovery plan applicable to both CBL and Coors developed following the Amendment Effective Date in accordance with the Change Control Procedures.
(ee) “Dispute Resolution Committee” has the meaning given in Section 18.2(a).
(ff) “EDS Applications Software” means Applications Software owned by any EDS Provider or EDS Affiliate [*****] and used to provide the Services.
(gg) “EDS Personnel” means employees of EDS Providers or their Affiliates, or EDS Subcontractors assigned to perform Services.
(hh) [*****]
(ii) “EDS Systems Software” means Systems Software owned by EDS Providers or their Affiliates (specifically excluding Third Party Software) and used to provide the Services.
(jj) “EDS Software” means EDS Applications Software and EDS Systems Software.
(kk) “EDS Subcontractor” means any contractor or subcontractor of an EDS Provider or an Affiliate of an EDS Provider (including, without limitation, individuals engaged as independent contractors) used by an EDS Provider to provide any Services.
(ll) “EDS-UK” shall mean Electronic Data Systems Limited.
(mm) “Effective Date” shall mean: (i) with respect to this Amended and Restated Global Master Services Agreement, the Commencement Date; (ii) with respect to the
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Local Country Agreement between CBL and EDS-UK, the Amendment Effective Date; and (iii) with respect to any other Local Country Agreement, such Local Country Agreement’s Local Country Agreement Effective Date. References to an “applicable Effective Date,” “an Effective Date applicable it,” or words of similar import shall be construed as referencing the Effective Date of the particular agreement (either this Amended and Restated Global Master Services Agreement or a Local Country Agreement, as applicable) to which the entity or entities referenced is/are a party/parties.
(nn) “Environmental Laws” means any Federal, state, local or foreign law, order, regulation, ordinance, code, policy or rule of common law and any judicial or administrative interpretation thereof as of the Commencement Date and as may be amended or modified after the Commencement Date, including, without limitation, any judicial or administrative order, consent decree, or judgment, relating to the environment, health or safety.
(oo) [*****]
(pp) “Force Majeure Events” has the meaning given in Section 16.4.
(qq) “Golden Data Center” means the real property and improvements commonly known as 1819 Denver West Drive, Golden, Colorado.
(rr) “Golden Data Center Lease” means the Denver West Office Building Lease between Denver West Office Building No. 26 Venture, as Landlord, and Coors, as Tenant, dated February 1, 1994.
(ss) “Hazardous Substance” means (i) any petroleum or petroleum products or fractions thereof, radioactive materials, friable asbestos, urea formaldehyde, foam insulation, radon gas and transformers or other equipment that contains dielectric fluid containing polychlorinated biphenyls, and (ii) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “extremely hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “universal hazardous wastes,” “toxic substances,” “toxic pollutants,” or words of similar import under any applicable Environmental Law; and (iii) any natural or artificial substance (whether in the form of a solid, liquid, gas, or vapour) the presence of which (whether alone or in combination with any other substance) gives rise to a risk of causing harm to human health or causing damage to the environment.
(tt) [*****]
(uu) “Key EDS Positions” has the meaning given in Section 6.3.
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(vv) “Key Transferred Employees” has the meaning given in Section 6.2.
(ww) “Local Country Agreement” means an agreement (including any Schedules thereto) between an EDS Provider (other than EDS) and a Coors Recipient (other than Coors), pursuant to which such EDS Provider agrees to provide Services to such Coors Recipient in accordance with terms set forth in this Agreement.
(xx) “Local Country Agreement Effective Date” means, with respect to each Local Country Agreement, the date designated therein as the effective date.
(yy) “Local Country Agreement Term” has the meaning given in Section 2.1.
(zz) “Local Country Asset Transfer Agreement” means an agreement between a Coors Recipient and its corresponding EDS Provider who are parties to a Local Country Agreement pursuant to which the Coors Recipient transfers certain assets to the EDS Provider.
(aaa) “Local Country Assigned Contracts” has the meaning given in Section 5.3(b)(i).
(bbb) “Local Country Employee Transition Agreement” has the meaning given in Section 6.1(b).
(ccc) “Losses” means all losses, liabilities, damages and claims, and all related costs and expenses (including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest and penalties) incurred by an indemnified party hereunder in connection with an indemnified claim.
(ddd) “Managed Expenses” means [*****]
(eee) “Monthly Current Asset Payments” [*****]
(fff) “Parties” means Coors and EDS, and “Party” means either one of them.
(ggg) “Pass-Through Expenses” [*****]
(hhh) “Privacy Laws” has the meaning given in Section 8.5.
(iii) “Procedures Manual” has the meaning given in Section 9.7(a).
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(jjj) “Project” has the meaning given in Section 1.2.21 of Exhibit A.
(kkk) “Project Executive” has the meaning given in Section 9.1.
(lll) “Retention Bonus” has the meaning given in Section 6.2(c).
(mmm) “Schedules” means, with respect to this Agreement, any schedule, exhibit, agreement or other document either (i) attached to this Agreement, (ii) executed by the Parties concurrently with the Original Agreement or any Local Country Agreement, or (iii) executed by the Parties at any time after any Effective Date, if such document states that it is a Schedule to this Agreement. Notwithstanding the foregoing, “Schedules” shall not include any Local Country Asset Transfer Agreement and any Local Country Employee Transition Agreement. For ease of reference, Schedules attached to this Agreement that are applicable to a particular Local Country Agreement are labeled in the following formats: “Schedule X.X(x) (LCA — [name of country])” or “Exhibit X(LCA- [name of country])”. When referring to a Schedule applicable to Local Country Agreements in the generic sense in this Agreement, the reference may be simply to a “Schedule X.X (LCA),” or “Exhibit X(LCA)”.
(nnn) “Service Credit” has the meaning given in Section 1 of Exhibit B.
(ooo) “Service Level “ has the meaning given in Section 1 of Exhibit B.
(ppp) “Service Level Termination Event” has the meaning given in Section 1 of Exhibit B.
(qqq) “Service Tower” has the meaning given in Section 1.3 of Exhibit A.
(rrr) “Services” has the meaning given in Section 3.1.
(sss) “Software” means Applications Software and Systems Software.
(ttt) “Steering Committee” has the meaning given in Section 9.2.
(uuu) “Systems Software” means [*****]
(vvv) “Tenancy Agreement” has the meaning given in Section 9.3(c).
(www) “Term” has the meaning given in Sections 2.1 and 2.2.
(xxx) “Termination Assistance” has the meaning given in Section 17.8(a).
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(yyy) “Third Party Applications Software” means Applications Software licensed pursuant to a Third Party Applications Software License.
(zzz) “Third Party Applications Software Licenses” means, [*****]
(aaaa) “Third Party Consents” has the meaning given it in Section 5.3(g).
(bbbb) “Third Party Contracts” means, collectively, Third Party Applications Software Licenses, Third Party Systems Software Licenses and Third Party Service Contracts.
(cccc) “Third Party Service Contracts” means, collectively, [*****]
(dddd) “Third Party Software” means, collectively, Third Party Applications Software and Third Party Systems Software.
(eeee) “Third Party Systems Software” means Systems Software licensed pursuant to a Third Party Systems Software License.
(ffff) “Third Party Systems Software Licenses” means, collectively, [*****]
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including in each case any associated maintenance, support, upgrade, subscription and similar agreements.
(gggg) “Transferred Employees” has the meaning given in Section 6.1.
(hhhh) “Transferred Equipment” means the Coors Transferred Equipment, the CBL Transferred Equipment, and any equipment transferred by any other Coors Recipient to an EDS Provider in connection with the execution of a Local Country Agreement.
(iiii) “U.K. Asset Transfer Agreement” means that certain Asset Transfer Agreement, dated as of the Amendment Effective Date, by and between CBL and EDS-UK, which agreement constitutes a Local Country Asset Transfer Agreement.
(jjjj) “U.K. Employee Transition Agreement” means that certain Employee Transition Agreement, dated as of the Amendment Effective Date, by and between CBL and EDS-UK, which agreement constitutes a Local Country Employee Transition Agreement.
(kkkk) “Unidentified Third Party Contract” has the meaning given in Section 5.3(h).
Other terms used in this Agreement are defined where they first appear and have the respective meanings there indicated.
TERM
2.1 Term
The term of this Amended and Restated Global Master Services Agreement (the “Term”) shall begin at 12:01 a.m. Colorado time on the Commencement Date and shall end at 11:59 p.m. Colorado time on December 31, 2010, unless earlier terminated or extended in accordance with the provisions hereof. The term of each Local Country Agreement (each a “Local Country Agreement Term”) shall begin at 12:01 local time in the applicable country to which the Local Country Agreement applies on the applicable Local Country Agreement Effective Date and shall end on the last day of the Term, unless earlier terminated or extended in accordance with the provisions hereof.
2.2 Renewal Term
[*****] All of the terms of this Agreement shall continue to apply without change during any extension period(s), and “the Term” as used in this
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Agreement shall refer to both the original Term (as described in Section 2.1 hereof) and any extension(s) thereof.
SERVICES
3.1 General
(a) Except as set forth in Section 3.1(b), which applies to Services provided pursuant to a Local Country Agreement, throughout the Term, EDS shall provide and perform (i) the services, functions and responsibilities described in this Agreement (including without limitation Exhibit A), as it may be amended and supplemented from time to time pursuant to the Change Control Procedures; (ii) the services, functions and responsibilities provided or performed at any time during [*****] by the personnel who were displaced or whose functions were displaced as a result of the Original Agreement (provided that those services, functions and responsibilities were not discontinued by Coors during [*****] with the intent that such discontinuation be permanent); (iii) except as expressly provided otherwise in this Agreement, the services, functions and responsibilities which, prior to the Commencement Date, are documented as being funded by [*****]; and (iv) any services, functions or responsibilities not specifically described in clauses (i), (ii) or (iii) but that are inherent in or necessary for the proper provision and performance of such services, functions and responsibilities.
(b) With respect to each Local Country Agreement, throughout its applicable Local Country Agreement Term, the applicable EDS Provider which is a party to such Local Country Agreement shall provide and perform: (i) the services, functions and responsibilities described in this Agreement (including without limitation Exhibit A) as being applicable to the Coors Recipient to which such Local Country Agreement applies, as this Agreement may be amended and supplemented from time to time pursuant to the Change Control Procedures; (ii) except as expressly provided otherwise in this Agreement, the services, functions and responsibilities which, prior to the Local Country Agreement Effective Date, are documented as being funded by [*****] and (iii) any services, functions or responsibilities not specifically described in clauses (i) or (ii) but that are inherent in or necessary for the proper provision and performance of such services, functions and responsibilities.
(c) The services, functions and responsibilities described in Sections 3.1(a) and (b) are referred to collectively as the “Services”. Pursuant to Section 9.9 (Contract Change Control), EDS shall be responsive to the current and future information technology requirements of the Coors Recipients. The EDS Providers shall provide, and Coors Recipients shall receive, the Services in accordance with all of the terms of this Agreement.
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3.2 Resources
Except as otherwise expressly provided in this Agreement, the EDS Providers shall provide, [*****] all of the facilities, personnel, Equipment, Software, services and other resources necessary to provide the Services. Subject to the approval rights granted to Coors (or any Coors Recipient) in this Agreement, the EDS Providers shall maintain, expand, extend, upgrade and replace [*****] all such resources (including, without limitation, any resources sold, transferred or assigned to any EDS Provider pursuant to this Agreement) as necessary to provide the Services. No Coors Recipient shall remove or relocate from its current location any Equipment, Software, and other resources owned or leased by an EDS Provider (other than Equipment, Software and other resources that are intended by their nature to be moved, such as laptop computer equipment and PDAs) [*****], through which the applicable EDS Provider shall have notice of, and shall perform, the relocation and/or removal of such Equipment, Software, and other resources to the new location.
(a) Non-US Affiliates; Completion of Local Country Agreements.
(i) Notwithstanding anything in this Agreement to the contrary, all Services provided pursuant to this Agreement outside of the United States and used outside of the United States shall, unless the Parties agree otherwise, be provided on a local basis by a non-US Affiliate of EDS to a non-US Affiliate of Coors, pursuant to a Local Country Agreement substantially in the form attached hereto as Exhibit H.
(ii) Concurrently with the execution of a Local Country Agreement, this Amended and Restated Global Master Services Agreement shall be amended as mutually agreed by the Parties, including, without limitation by amending the then-current Schedules hereto and by attaching appropriate Schedules designated as being applicable to a particular Local Country Agreement. Such added Schedules shall be designated in the following format: “Schedule X.X(x)(LCA-[name of country])” or “Exhibit X (LCA-[name of country])”.
(iii) EDS, acting through the EDS Project Executive (and his or her designees(s)), shall be responsible for the administration of this Agreement on a day-to-day basis on behalf of all EDS Providers and their Affiliates (including decisions, consents, notices, acceptances and approvals) and only EDS, acting through the EDS Project Executive (and his or her designees(s)) shall be authorized to act on behalf of any EDS Provider to amend, modify, change, waive or discharge such EDS Provider’s rights and obligations under this Agreement.
(iv) Coors, acting through the Coors Project Executive (and his or her designees(s)) shall be responsible for the administration of this Agreement on a day-to-day basis on behalf of all Coors Recipients and their Affiliates (including decisions, consents, notices, acceptances and approvals) and only Coors acting through the Coors Project Executive (and his or her designees(s)) shall be authorized to act on behalf of any Coors Recipient to amend, modify, change, waive or discharge such Coors Recipient’s rights and obligations under this Agreement.
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(v) [*****]
(b) Unless the Local Country Agreement(s) specifically provides otherwise, such Local Country Agreement(s) shall reference, and be subject to, the terms and conditions of this Amended and Restated Global Master Services Agreement and shall not be construed as altering or superceding any of the terms of this Amended and Restated Global Master Services Agreement as those terms apply to the EDS Providers and Coors Recipients.
(c) EDS shall cause each EDS Provider that is a party to a Local Country Agreement to perform such EDS Provider’s responsibilities, functions and obligations thereunder (including any responsibilities, functions and obligations under this Amended and Restated Global Master Services Agreement adopted pursuant thereto). [*****] Coors shall cause each Coors Recipient that is a party to a Local Country Agreement to perform such Coors Recipient’s responsibilities, functions and obligations thereunder (including any responsibilities, functions and obligations under this Amended and Restated Global Master Services Agreement adopted pursuant thereto). [*****]
3.4 Other Recipients of Services
Unless otherwise agreed by the Parties, each EDS Provider shall provide the Services, throughout the Term (or Local Country Agreement Term, as applicable), to its corresponding Coors Recipient, such Coors Recipient’s present and future Affiliates located in the same country as such Coors Recipient, and such other third parties as Coors may authorize from time to time in
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the ordinary course of business to receive Services. The Coors Recipients acknowledge and agree that the foregoing is not intended to permit the Coors Recipients to resell or wholesale the Services to non-Affiliate third parties. The Coors Recipients and the EDS Providers shall each have all of the same rights and obligations with respect to Services provided to Affiliates of Coors Recipients and other authorized third parties as they do with respect to Services provided to the Coors Recipients. Except as otherwise provided in this Agreement with respect to Coors Recipients, the EDS Providers are authorized to deal exclusively with Coors in connection with any Services to be provided to Coors’ Affiliates or other authorized third parties. An EDS Provider’s provision of the Services to entities that are not receiving the Services as of the Local Country Agreement Effective Date of the Local Country Agreement to which it is a party will be subject to Sections 9.9 (Change Control) and 12.4 (Changes Pursuant to Change Control).
3.5 Migration of Service Locations
(a) Except as set forth in Attachment A-12 to Exhibit A, , throughout the Term each applicable EDS Provider shall provide the Services to its corresponding Coors Recipient from the locations from which each of such Services is currently provided unless Coors approves the migration of such Services to one or more other locations.
(b) Each migration of Services to another location shall be conducted by the EDS Providers pursuant to a written migration plan prepared by an EDS Provider and approved by the applicable Coors Recipient. Each migration plan shall describe in detail how the EDS Provider shall perform the migration and any assumptions and dependencies relating to such EDS Provider’s performance of such migration, including any obligations of any Coors Recipient. [*****] Unless otherwise expressly provided in this Agreement, the obligations of the EDS Providers and Coors Recipients contained in this Agreement, including, without limitation, the EDS Providers’ obligations to meet Service Levels, shall continue to apply during and after each such migration. [*****] Services to a new platform and/or any change to or addition of Applications Software shall be done pursuant to the Change Control Procedures.
3.6 No Exclusivity
Any Coors Recipient may obtain the Services during the Term from an EDS Provider or, at Coors’ option exercised from time to time during the Term, a Coors Recipient may obtain any or all of the Services from a third party or provide them internally. [*****]. No Coors Recipient shall have any obligation to obtain from any EDS Provider any services which do not fall within the definition
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of Services. The EDS Providers and their Affiliates shall cooperate with the Coors Recipients and their Affiliates and contractors to allow the proper performance of any services (whether or not included within the definition of Services) being provided internally by any Coors Recipient or a Coors Affiliate or by any third party contractors. Such cooperation shall include, without limitation, providing access to any Services reasonably necessary for Coors Recipients or their Affiliates or such contractors to perform their work, and providing (subject to Section 14.5) such information regarding the operating environment, system constraints and other operating parameters reasonably necessary for the work performed by the Coors Recipients or their Affiliates or such contractors to be compatible with the Services provided by the EDS Providers. Under no circumstances shall the EDS Providers or their Affiliates be obligated to provide such third party contractors with access to, or use of, any information of the EDS Providers’ or an EDS Affiliate’s other clients.
Subject to the other provisions of this Agreement, including, without limitation, Section 6.3(d) (Key EDS Positions), Article 7 (Intellectual Property Rights) and Article 8 (Confidentiality), the EDS Providers shall have the right to provide services (including services that are the same as or similar to the Services) to third parties during the Term.
(a) EDS shall complete the Services summarized in the portion of Attachment A-12 to Exhibit A applicable to the transition of certain Services for Coors (the “Coors Transition Services”) by the dates set forth therein. [*****] EDS shall deliver to Coors for review and comment a draft of a plan (the “Coors Transition Plan”) describing in detail how EDS shall perform the Coors Transition Services and any assumptions and dependencies relating to EDS’ performance of the Coors Transition Services, including any obligations of Coors. The Coors Transition Plan shall describe the activities EDS proposes to undertake in order to provide the Coors Transition Services. EDS shall incorporate any reasonable comments and suggestions made by Coors and shall deliver a revised Coors Transition Plan [*****]. The final Coors Transition Plan shall be subject to Coors’ approval. [*****] Unless otherwise expressly provided in this Agreement, all of EDS’ obligations contained in this Agreement, including, without limitation, the obligation to meet Service Levels, shall continue to apply during implementation of the Coors Transition Plan. [*****]
(b) EDS-UK shall complete the Services summarized in the portion of Attachment A-12 to Exhibit A applicable to the transition of certain Services for CBL (the “CBL Transition Services”) by the dates set forth therein. [*****] EDS-UK shall deliver to CBL for review and comment a draft of a plan (the “CBL Transition Plan”) describing in detail how EDS-UK shall perform the CBL Transition Services and any assumptions and dependencies relating to EDS-UK’s performance of the CBL Transition Services, including any obligations of CBL. The CBL Transition Plan shall describe the activities EDS-UK proposes to undertake in order to provide the CBL Transition Services.
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EDS-UK shall incorporate any reasonable comments and suggestions made by CBL and shall deliver a revised CBL Transition Plan [*****]. The final CBL Transition Plan shall be subject to CBL’s approval. [*****] Unless otherwise expressly provided in this Agreement, all of each EDS Provider’s obligations contained in this Agreement, including, without limitation, the obligation to meet Service Levels, shall continue to apply during implementation of the CBL Transition Plan. [*****] CBL agrees that EDS-UK shall be approved to migrate the Help Desk Services performed by EDS-UK on the Amendment Effective Date in Burton-on-Trent, England to EDS-UK’s leveraged facility in New Zealand upon the date that EDS-UK can demonstrate to CBL that EDS has achieved each of the following Service Levels described in Exhibit B hereto for [*****] EDS’ migration of the Coors Help Desk Services to the leveraged facility in New Zealand: Level of Service for Average Speed to Answer, Average Speed to Answer, First Call Resolution and Abandon Rate.
SERVICE LEVELS
Exhibit B establishes Service Levels for certain specified Services and groupings of Services provided by EDS hereunder. Each Exhibit B (LCA) establishes Service Levels for certain specified Services and groupings of Services provided by the applicable EDS Provider. Except as otherwise provided in Exhibit B (or an applicable Exhibit B (LCA)), with respect to each Service or groupings of Services which has an associated Service Level, the EDS Provider to which such Service Level applies shall provide such Service or groupings of Services from the applicable Effective Date throughout the remainder of the Term in a manner which meets or exceeds such associated Service Level with respect to the Coors Recipient to which such Service Level applies.
(a) At the following intervals the Parties shall jointly review all then-applicable Service Levels (including any Service Levels applicable to Coors Recipients other than Coors) and adjust them to reflect any improved performance capabilities associated with advances in the technology and methods used to perform the Services:
[*****]
(b) The Coors Recipients and the EDS Providers will reasonably attempt to continuously improve the Service Levels identified in Exhibit B (and each Exhibit B (LCA)) throughout the Term, by mutual agreement, and that they will reasonably attempt to jointly
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identify and add to Exhibit B (or the applicable Exhibit B (LCA)) additional Service Levels and associated Service Credits during the Term. Throughout the Term, EDS shall identify and notify Coors of commercially reasonable methods of improving the Service Levels.
4.3 Measurement and Monitoring Tools
EDS shall implement any measurement and monitoring tools and procedures necessary to measure performance of the Services by the EDS Providers to each Coors Recipient individually and compare such performance to the Service Levels applicable to each such Coors Recipient. Upon Coors’ request, EDS shall provide Coors or its auditors with any information and access to the measurement and monitoring tools reasonably necessary to measure each EDS Provider’s performance against the Service Levels applicable to the individual Coors Recipients.
[*****]
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[*****]
4.5 Additional Performance Requirements
(a) With respect to any Service or obligation which does not have an associated Service Level, each EDS Provider shall perform such Service or obligation with respect to its corresponding Coors Recipient with a level of accuracy, quality, completeness, timeliness and responsiveness which [*****]. Each EDS Provider shall perform all Services and obligations promptly, diligently, and in a workmanlike and professional manner, using qualified individuals. Each time Coors notifies EDS that Coors believes an EDS Provider has failed to meet the applicable standard set forth in the preceding sentence with respect to any individual Coors Recipient, EDS shall: [*****]
(b) As one of several ways of measuring the EDS Providers’ compliance with this Section, [*****]
TRANSFERS OF EQUIPMENT, FACILITIES AND THIRD PARTY CONTRACTS
(a) On the Commencement Date, Coors shall transfer or cause to be transferred to EDS, and EDS shall receive from Coors or its Affiliates, the equipment, leasehold improvements and fixtures listed and/or described on Schedule 5.1(a) (the “Coors Transferred Equipment”). Except as set forth in Section 14.2(a)(i) (Coors Representations and Warranties), Coors and its Affiliates are transferring the Coors Transferred Equipment, and EDS is receiving the Coors Transferred Equipment, [*****]
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(b) On the Commencement Date Coors shall deliver to EDS or its designee one or more bills of sale in the form attached as Schedule 5.1(b), and EDS shall deliver to Coors, [*****]
(c) On the Amendment Effective Date, CBL shall transfer or cause to be transferred to EDS-UK, and EDS-UK or its designee shall receive from CBL, the equipment, leasehold improvements and fixtures listed and/or described in Schedule 1 of the Local Country Asset Transfer Agreement between CBL and EDS-UK (the “CBL Transferred Equipment”). Except as set forth in Section 14.2(b)(i) (Coors Representations and Warranties), CBL is transferring the CBL Transferred Equipment, and EDS-UK (or its designee) is receiving the CBL Transferred Equipment, [*****]
(d) On the Amendment Effective Date CBL and EDS-UK shall each execute and deliver to one another a Local Country Asset Transfer Agreement in the form attached as Schedule 5.1(b)(LCA-UK)
5.2 Golden Data Center and Equipment
(a) On the Commencement Date, Coors shall assign to EDS, and EDS shall assume from Coors, Coors’ interest in the Golden Data Center Lease and the Golden Data Center. Except as set forth in Section 14.2(a)(iii) (Coors Representations and Warranties), Coors is assigning the Golden Data Center Lease and its interest in the Golden Data Center, and EDS is assuming the Golden Data Center Lease and Coors’ interest in the Golden Data Center, [*****]
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(b) Coors shall allow EDS to use [*****] the furniture located at the Golden Data Center on the Commencement Date during such time as EDS is providing Services to Coors from the Golden Data Center. During such time period, EDS shall maintain such furniture [*****] in the same condition it is in on the Commencement Date, reasonable wear and tear excepted, and shall not remove such furniture from the Golden Data Center. Coors shall remove such furniture from the Golden Data Center upon expiration of such time period.
(c) On or before the Commencement Date, Coors and EDS shall each execute and deliver to the other an Assignment of Lease and Consent to Assignment of Lease in the form of Schedule 5.2(c) attached to this Agreement (the “Golden Data Center Assignment”), and on or before the Commencement Date the Parties shall cause the lessor under the Golden Data Center Lease to execute and deliver to Coors the Golden Data Center Assignment. [*****]
(a) Coors Third Party Contracts
(i) Subject to EDS having received any Third Party Consents which it is required to obtain pursuant to Section 5.3(g), as of the Commencement Date Coors shall assign to EDS, and EDS shall assume from Coors, the following (collectively, the “Assigned Contracts”):
(A) the Third Party Software Licenses and Third Party Software listed on Schedule 5.3(a)(i) for which EDS is identified as the licensee; and
(B) the Third Party Service Contracts used by Coors immediately before the Commencement Date to provide any services included within the Services, as such contracts are listed on Schedule 5.3(a)(ii), excepting therefrom those contracts identified on Schedule 5.3(a)(ii) as “Managed Contracts.”
[*****] (i) with respect to Assigned Contracts listed on Schedule 5.3(a)(ii), each Party shall have the obligations described in Section 7.3(a) relating to periods on or after the Commencement Date, and (ii) with respect to Assigned Contracts listed on Schedule 5.3(a)(ii), [*****] If EDS is unable to obtain any such Third Party Consent, it shall identify and adopt, [*****] subject to Coors’ prior approval, such alternative approaches as are necessary to provide the Services without such Third Party Consent.
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(b) Other Coors Recipients’ Third Party Contracts
(i) As of each applicable Local Country Agreement Effective Date, and subject to the EDS Provider which is a party to such Local Country Agreement having received any Third Party Consents which it is required to obtain pursuant to Section 5.3(g), such EDS Provider’s corresponding Coors Recipient shall assign to such EDS Provider and such EDS Provider shall assume from such Coors Recipient the following (collectively, the “Local Country Assigned Contracts”):
(A) the Third Party Software Licenses and Third Party Software listed on the applicable Schedule 5.3(a)(i) (LCA) for which such EDS Provider is identified as the licensee; and
(B) the Third Party Service Contracts used by the applicable Coors Recipient immediately before the Local Country Agreement Effective Date to provide any services included within the Services, as such contracts are listed on the applicable Schedule 5.3(a)(ii) (LCA), excepting therefrom those contracts identified on the applicable Schedule 5.3(a)(ii) (LCA) as “Managed Contracts.”
Regardless of whether the EDS Provider has obtained a Third Party Consent with respect to any Local Country Assigned Contracts, on and after the applicable Local Country Agreement Effective Date (i) with respect to Local Country Assigned Contracts listed on the applicable Schedule 5.3(a)(ii) (LCA), each Party shall have the obligations described in Section 7.3(a) relating to periods on or after the Local Country Agreement Effective Date, and (ii) with respect to Local Country Assigned Contracts listed on the applicable Schedule 5.3(a)(ii) (LCA), [*****] If the applicable EDS Provider is unable to obtain any such Third Party Consent, it shall identify and adopt, [*****] subject to the applicable Coors Recipient’s prior approval, such alternative approaches as are necessary to provide the Services without such Third Party Consent.
(c) Beginning in September 2001 and continuing each month thereafter through August 2002, EDS shall pay to Coors [*****] in consideration of payments made by Coors under the contracts listed on Schedule 5.3(c) attributable to the period on or after the Commencement Date.
(d) Beginning in January 2004 and continuing each month thereafter through December 2004, EDS-UK shall pay to CBL [*****] in consideration of payments made by
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CBL under the contracts listed on Schedule 5.3(c)(LCA-UK) attributable to the period on or after the Amendment Effective Date.
(e) Subject to an EDS Provider having received any Third Party Consents which it is required to obtain pursuant to Section 5.3(g), the corresponding Coors Recipient, as of its applicable Effective Date, shall grant to such EDS Provider, for the sole purpose of providing the Services (and to the extent necessary for such EDS Provider to provide the Services), rights of access to, and use of:
(i) the Third Party Software Licenses and Third Party Software listed on Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i) (LCA) for which such Coors Recipient is identified as the licensee; and
(ii) the Third Party Service Contracts identified on Schedule 5.3(a)(ii) or any applicable Schedule 5.3(a)(ii)(LCA) as “Managed Contracts,” to which such Coors Recipient is a party.
If an EDS Provider is unable to obtain any such Third Party Consent, it shall identify and adopt, [*****] subject to Coors’ prior approval, such alternative approaches as are necessary to permit EDS to provide the Services without such Third Party Consent or otherwise to eliminate the need for such Third Party Consent.
(f) Schedule 5.3(f) and any applicable Schedule 5.3(f)(LCA) lists contracts which, at Coors’ option, a Coors Recipient which is party to such contract may cancel, or otherwise deal with. The EDS Providers shall provide the Services without the benefit or use of such contracts.
(g) Subject to clause (h) below, on or before the Effective Date applicable to it, each EDS Provider shall obtain: (i) from each third party to an Assigned Contract or a Local Country Assigned Contract (as applicable) any required consent by such third party to the assignment to and assumption by such EDS Provider of such Assigned Contract or Local Country Assigned Contract; and (ii) from each third party to a Third Party Contract for which a right of access and use is granted to an EDS Provider in Section 5.3(e), any required consents by such third party to such EDS Provider’s or its Affiliate’s access to and use of such Third Party Contract (collectively, the “Third Party Consents”). The EDS Providers shall use commercially reasonable efforts [*****] any Third Party Consents and shall identify to Coors any practical ways to eliminate the need for such Third Party Consents. In connection with each Assigned Contract (or Local Country Assigned Contract), the EDS Providers shall use commercially reasonable efforts to obtain a complete release of the Coors Recipients with respect to all obligations arising under the related Assigned Contract (or Local Country Assigned Contract) on or after the applicable Effective Date. [*****]
(h) With respect to any Third Party Contract which is not listed on Schedule 5.3(a)(i), 5.3(a)(ii), 5.3(f), or on any applicable Schedule 5.3(a)(i)(LCA),
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5.3(a)(ii)(LCA) or 5.3(f)(LCA) (an “Unidentified Third Party Contract”), the following shall apply:
(i) if the Unidentified Third Party Contract is a Third Party Service Contract, such Unidentified Third Party Contract shall be retained or cancelled by the Coors Recipient which is a party to such contract unless the Parties mutually agree that such contract be assigned to an EDS Provider on terms and conditions mutually agreeable to the Parties, in which case the Unidentified Third Party Contract shall be added to the appropriate portion of Schedule 5.3(a)(ii) or the applicable Schedule 5.3(a)(ii)(LCA), as agreed by the Parties;
(ii) if the Unidentified Third Party Contract is a Third Party System Software License or a Third Party Applications Software License: (A) the appropriate EDS Provider shall, at the Coors Receipient’s request, obtain any applicable Third Party Consent (either a consent to assignment of the contract to such EDS Provider (with respect to Third Party System Software Licenses), or (with respect to Third Party Applications Software Licenses), a consent to such EDS Provider’s access to and use of the Third Party Applications Software subject to such Third Party Applications Software License during the Term); (B) the EDS Providers shall use commercially reasonable efforts [*****] of any required Third Party Consent (including identifying to the Coors Recipient any practical ways to eliminate the need for such Third Party Consents), (C) as soon as such Third Party Consent has been obtained, or determined to be unnecessary, the Third Party Systems Software License or the Third Party Applications Software licensed pursuant to the Third Party Applications Software License shall be added to the appropriate section of Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) (in the case of unidentified Third Party Applications Software Licenses to the “Managed Contracts” section of such Schedule, and in the case of unidentified Third Party Systems Software Licenses to such Schedule, but not as “Managed Contracts”); (D) on Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) the appropriate EDS Provider shall be designated as the licensee of any unidentified Third Party Systems Software License added to Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) pursuant to clause (C) and the Coors Recipient shall be designated the licensee of any unidentified Third Party Applications Software License added to Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) pursuant to clause (C); (E) on Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) the appropriate EDS Provider shall be assigned [*****] Software License added to Schedule 5.3(a)(i) or the applicable Schedule 5.3(a)(i)(LCA) pursuant to clause (C); and (F) the EDS Provider obtaining such consent [*****] If an EDS Provider is unable to obtain any such Third Party Consent, it shall identify and adopt, [*****] of its corresponding Coors Recipient (on a Managed Expense basis), subject to the Coors Recipient’s prior approval, such alternative approaches as are necessary to permit such EDS Provider to provide the Services without such Third Party Consent or otherwise to eliminate the need for such Third Party Consent.
(i) [*****]
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PERSONNEL
6.1 Terms of Employment; [*****]
(a) For United States Employees
(i) [*****]
(ii) [*****]
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(iii) [*****]
(iv) [*****]
(v) [*****]
(b) For Non-United States Employees
(i) [*****]
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(ii) [*****]
(a) [*****]
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(b) [*****]
(c) [*****]
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(a) Each EDS Provider acknowledges that the personnel filling the positions identified in Schedule 6.3 or any applicable Schedule 6.3(LCA) (the “Key EDS Positions”) are critical to providing the Services throughout the Term (or throughout each Local Country Agreement Term, as applicable). Coors may change or add to the Key EDS Positions from time to time during the Term with EDS’ consent. Each EDS Provider shall cause the personnel filling the Key EDS Positions and employed by it to devote to the provision of the Services the time and effort described in Schedule 6.3 or in any applicable Schedule 6.3(LCA).
(b) The individuals who will fill the Key EDS Positions on the Commencement Date are listed in Schedule 6.3. The individuals who will fill the Key EDS Positions on the Local Country Agreement Effective Date for the Local Country Agreement between EDS-UK and CBL are listed in Schedule 6.3(LCA-UK). Neither EDS nor EDS-UK shall, from the date an individual first fills a Key EDS Position until completion of the period set forth next to such Key EDS Position in Schedule 6.3 or Schedule 6.3(LCA-UK), without Coors prior written approval, transfer any individual from such Key EDS Position to another position within EDS or an EDS Affiliate.
(c) Before an individual is assigned to fill a Key EDS Position, EDS shall notify Coors of the proposed assignment, shall introduce the individual to appropriate Coors representatives, and shall provide Coors with a resume and such other information as Coors may reasonably request. [*****] Nothing in this Section shall be deemed to prevent an EDS Provider from hiring such individual or to require an EDS Provider to terminate the employment of such individual.
(d) Each EDS Provider acknowledges that the personnel filling the Key EDS Positions are particularly likely to have access to sensitive Coors Confidential Information which is critical to Coors’ global competitiveness. Neither any EDS Provider nor any EDS Affiliate shall use any personnel filling the Key EDS Positions from time to time during the Term (or for Key EDS Positions applicable to a particular Local Country Agreement, throughout the applicable Local Country Agreement Term) to provide any services (whether similar or dissimilar to the Services) to any Coors Competitor at any time while they fill such Key EDS Position, and: (i) with respect to personnel employed in Key EDS Positions in the United States, [*****] (ii) with respect to personnel employed in Key EDS Positions in the United Kingdom, [*****]; and (C) with respect to personnel employed in Key EDS Positions in countries other than the United States or the United Kingdom, [*****]
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6.4 Removal of EDS Employees from Coors Account
Coors shall have the right to notify EDS if Coors determines in good faith that the continued assignment to the Coors account of any EDS Personnel is not in the best interests of Coors or a Coors Recipient. Upon receipt of such notice, EDS shall have a reasonable time period to investigate the matters stated therein, discuss its findings with Coors and attempt to resolve such matters in a manner acceptable to Coors. If Coors continues to request the replacement of such individual after such period, the applicable EDS Provider shall remove the individual from the Coors account. Nothing in this Section shall be deemed to require any EDS Provider to terminate the employment of such individual.
The Parties agree that it is generally in the best interest of both Parties to keep the turnover rate of the employees of the EDS Providers providing the Services to a reasonably low level. On each anniversary of the Commencement Date EDS shall provide Coors with such data as Coors may request regarding the turnover rate of such employees in the preceding one (1) year and the turnover rate of all EDS Provider employees in the preceding one (1) year. If Coors notifies EDS that Coors believes the turnover rate of the employees of the EDS Providers providing the Services is unreasonably high, [*****]
Except as set forth in Section 17.12 (Offers to EDS Employees), [*****] Coors shall not; and during the Local Country Agreement Term applicable to it, each other Coors Recipient shall not, extend offers of employment to, or directly or indirectly solicit the employment of, any employee of an EDS Provider who provided the Services during [*****], while an EDS Provider is providing any Termination Assistance, no EDS Provider shall extend offers of employment to, or directly or indirectly solicit the employment of, any Coors Recipient employees providing information technology services.
6.7 Security
(a) EDS shall, upon Coors’ reasonable request, inspect and search the employees, agents and representatives of EDS and EDS Subcontractors, and their respective vehicles or belongings, on a non-routine basis to ensure compliance with Coors’ security policies. EDS shall ensure (or, with respect to EDS Subcontractors, cause such subcontractors to ensure) that any of the employees, agents and representatives of EDS and any EDS Subcontractors who will be on Coors’ premises (or on the premises of a Coors Affiliate, other than the premises of CBL, which CBL premises shall be subject to subsection (b) of this Section 6.7) will have given their consent to the inspections and/or searches contemplated by this subsection.
(b) EDS-UK shall, upon the reasonable request of CBL, take all reasonable steps to inspect and search the employees, agents and representatives of EDS-UK and EDS
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Subcontractors providing Services to CBL, and their respective vehicles or belongings, on a non-routine basis to ensure compliance with CBL’s security policies. EDS-UK shall take all reasonable steps to ensure (or, with respect to EDS Subcontractors, cause such subcontractors to ensure) that any of the employees, agents and representatives of the EDS-UK and any EDS Subcontractors who will be on the CBL’s premises (or on premises of a CBL Affiliate in the United Kingdom) will have given their consent to the inspections and/or searches contemplated by this subsection.
6.8 Safety
(a) EDS shall ensure (and with respect to EDS Subcontractors shall cause such subcontractors to ensure) that each employee, agent and representative of EDS or an EDS Subcontractor shall comply with the terms and conditions set forth in “U.S. Environmental, Health and Safety Commitment and Policy” attached hereto as Exhibit E, and as may be updated from time to time in accordance with the Change Control Procedure.
(b) In respect of the Local Country Agreement executed by CBL and EDS-UK, EDS-UK shall take all reasonable steps to ensure that it, its subcontractors and their respective employees, agents and representatives comply with CBL’s health and safety policies (attached hereto as Exhibit G, and as may be updated from time to time in accordance with the Change Control Procedure) while they are performing Services on the premises of CBL; provided, however, that (i) in the event of a conflict between the provisions of Exhibit G and Articles 1 through 19 of the Amended and Restated Global Master Services Agreement, Articles 1 through 19 of the Amended and Restated Global Master Services Agreement shall prevail; (ii) in the event of a conflict between the provisions of Exhibit G and the terms of the Tenancy Agreement, the terms of the Tenancy Agreement shall prevail; and (iii) notwithstanding anything to the contrary in Exhibit G, neither EDS nor EDS-UK shall have any obligation to indemnify CBL unless such indemnity obligation is set forth in Article 15 of this Amended and Restated Global Master Services Agreement.
INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS
7.1 Coors Software
As of the applicable Effective Date, each Coors Recipient grants to the EDS Providers a [*****] license during the Term and each Local Country Agreement Term, as applicable, to use the Coors Software for the sole purpose of providing the Services pursuant to this Agreement. No EDS Provider shall use Coors Software for any other purpose, and no EDS Provider shall have the right to grant sublicenses without Coors’ consent, which may be withheld in Coors’ sole discretion. The EDS Providers shall cease all use of Coors Software when such Coors Software is no longer required to perform the Services, including without limitation, upon expiration or earlier termination of the Term or a Local Country Agreement Term, as applicable. Except for the foregoing license, the Coors Recipients retain all right, title and interest in and to the Coors Software.
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7.2 EDS Software
The EDS Providers shall install, operate and maintain [*****] any EDS Software needed to provide the Services. No EDS Provider shall use in performing the Services any EDS Software unless such EDS Software is available to the Coors Recipients following the Term or the Local Country Agreement Term, as applicable, [*****] and upon reasonable terms. As of the applicable Effective Date, each EDS Provider grants to the applicable Coors Recipient, its Affiliates, each of the third parties described in Section 3.4 and their respective contractors and subcontractors, a [*****] license during the Term or the Local Country Agreement Term, as applicable, to use EDS Software for the benefit of each Coors Recipient and its Affiliates. Except for the foregoing license, the EDS Providers retain all right, title and interest in and to the EDS Software.
(a) With respect to Third Party Software Licenses, each Coors Recipient or EDS Provider shall be the licensee of any Third Party Software License for which it is the designated licensee pursuant to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA) and each Coors Recipient or EDS Provider shall have [*****] allocated to it on Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA), as the case may be (in each case, as such Schedule is amended from time to time pursuant to Section 5.3(h)(ii), subsections (b) or (c) of this Section 7.3, or Section 9.9). Notwithstanding the preceding sentence and the obligations of the Coors Recipient or EDS Provider set forth in Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA), when an EDS Provider acquires refresh Equipment, or additional Equipment for which a Coors Recipient is charged an ARC, such EDS Provider shall have [*****] for the OEM license for the operating system for such Equipment.
(b) With respect to Third Party Systems Software Licenses entered into by an EDS Provider after the Effective Date applicable to it: (i) such Third Party Systems Software Licenses shall be added to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA), as appropriate (but not as “Managed Contracts);” (ii) such EDS Provider shall be the designated licensee under any such Third Party Systems Software Licenses so added to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA) (and shall comply with all obligations imposed on the licensee thereunder); and (iii) such EDS Provider shall be allocated [*****] any such Third Party Systems Software Licenses so added to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i)(LCA), as appropriate. No EDS Provider shall introduce any Third Party Systems Software unless such Third Party Systems Software is generally available to the Coors Recipients or a successor provider of the Services on commercially reasonable terms from a recognized provider of software.
(c) Each EDS Provider shall install, operate and support additional Third Party Applications Software designated by Coors from time to time during the Term in accordance with the Change Control Procedures. Unless otherwise agreed in the Change Control Procedures, with respect to Third Party Applications Software Licenses entered into after the Commencement Date (or after the applicable Local Country Agreement Effective Date in the case of Third Party Applications Software used to perform Services in a country where there is a
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Local Country Agreement): (i) such Third Party Applications Software Licenses shall be added to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i) (LCA), as appropriate (but not under “Managed Contracts”); (ii) the appropriate Coors Recipient shall be the designated licensee under any such Third Party Applications Software Licenses so added to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i) (LCA), as appropriate; and (iii) the appropriate EDS Provider shall be allocated [*****] for any such Third Party Applications Software Licenses so added to Schedule 5.3(a)(i) or any applicable Schedule 5.3(a)(i) (LCA), as appropriate. Each EDS Provider shall obtain, [*****] from each party to a Third Party Applications Software License entered into by such Coors Recipient after the applicable Effective Date any required consent by such third party to such EDS Provider’s access to and use of the associated Third Party Applications Software during the Term or the Local Country Agreement Term, as applicable. If an EDS Provider is unable to obtain the consent of any such third party, it shall identify and adopt, [*****] upon mutual agreement of the Parties, such alternative approaches as are necessary to permit the EDS Provider to provide the Services without such consent or otherwise to eliminate the need for such consent. No EDS Provider shall introduce any Third Party Applications Software which will be used or accessed by any Coors Recipient’s end-users without Coors’ prior written consent.
(d) Subject to any applicable obligations of a Coors Recipient set forth in Schedule 5.3(a)(i), in any applicable Schedule 5.3(a)(i) (LCA), and to Section 9.8, each EDS Provider shall, to the extent necessary or appropriate to provide the Services to its corresponding Coors Recipient: (i) maintain Third Party Software used by such Coors Recipient on its applicable Effective Date; (ii) upgrade, enhance, expand the scope of licenses for, and implement new versions of Third Party Systems Software and, at Coors’ request, Third Party Applications Software; and (iii) replace or add to Third Party Systems Software and, pursuant to the Change Control Procedures, Third Party Applications Software.
7.4 Other Intellectual Property
(a) Each Coors Recipient and EDS Provider shall be the sole owner of all Intellectual Property owned by it as of its Effective Date or developed by it during the Term (or the Local Country Agreement Term, as applicable) independent of the Services and this Agreement.