Principal Occupations and Business Experience

Exhibit 10.36

MASTER PPROFESSIONAL SERVICE AGREEMENT

Effective October 1, 2006

Execution Copy

TABLE OF CONTENTS

		Page
1. BACKGROUND AND OBJECTIVES			1
1.1 ITO Services			1
1.2 Goals and Objectives			1
1.3 Interpretation			2
2. DEFINITIONS AND DOCUMENTS			2
2.1 Definitions			2
2.2 Other Terms			17
2.3 Associated Contract Documents			17
3. TERM			18
3.1 Initial Term			18
3.2 Extension			18
4. SERVICES			18
4.1 Overview			18
4.2 Transition Services			19
4.3 Termination Assistance Services			21
4.4 Use of Third Parties			25
4.5 Companion Agreements			26
5. REQUIRED CONSENTS			27
5.1 Supplier Responsibility			27
5.2 Financial Responsibility			27
5.3 Contingent Arrangements			27
5.4 Failure to Obtain Required Consents			27
6. FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES			27
6.1 Service Facilities			27
6.2 Use of Supplier Facilities			31
6.3 ABM Rules/Employee Safety			31
6.4 Software			32

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TABLE OF CONTENTS
(continued)

		Page
6.5 Equipment			33
6.6 Third Party Contracts			36
6.7 Assignment of Licenses, Leases and Related Agreements			37
6.8 License to ABM Third Party Software and Materials			38
6.9 License to Supplier Third Party Software and Materials			39
6.10 Managed Third Parties			40
6.11 Notice of Defaults			41
6.12 Environmental			41
7. SERVICE LEVELS			42
7.1 General			42
7.2 Service Level Credits and Deliverable Credits			43
7.3 Problem Analysis			43
7.4 Continuous Improvement Reviews			43
7.5 Measurement and Monitoring			44
7.6 Satisfaction Surveys			44
7.7 Notice of Adverse Impact			45
8. PROJECT PERSONNEL			45
8.1 Transitioned Personnel			45
8.2 Employee Benefit Plans			47
8.3 Other Employee Matters			49
8.4 Key Supplier Personnel			50
8.5 Supplier Account Executive			51
8.6 Supplier Personnel Are Not ABM Employees			51
8.7 Replacement, Qualifications, and Retention of Supplier Personnel			51
8.8 Training/Career Opportunities			52
8.9 Conduct of Supplier Personnel			52
8.10 Restrictions on Changes in Supplier Staffing/Facilities			53
8.11 Substance Abuse			53
8.12 Collective Bargaining Agreements and warn Act			53
9. SUPPLIER RESPONSIBILITIES			54

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TABLE OF CONTENTS
(continued)

		Page
9.1 Policy and Procedures Manual			54
9.2 Reports			55
9.3 Governance; Meetings			56
9.4 Quality Assurance and Internal Controls			56
9.5 Architecture, Standards and Information Technology Planning			57
9.6 Change Control			58
9.7 Software Currency			60
9.8 [RESERVED]			61
9.9 Access To Specialized Supplier Skills and Resources			61
9.10 Audit Rights			61
9.11 Agency and Disbursements			65
9.12 Subcontractors			66
9.13 Telecommunications Matters			66
9.14 FCC Actions			67
9.15 Retained Systems and Business Processes			68
9.16 Network Configuration Data			69
10. ABM RESPONSIBILITIES			69
10.1 Responsibilities			69
10.2 Savings Clause			70
11. CHARGES			70
11.1 General			70
11.2 Pass-Through Expenses			71
11.3 Incidental Expenses			72
11.4 Taxes			72
11.5 New Services			75
11.6 Extraordinary Events			76
11.7 Technology			77
11.8 Project Resources			78
11.9 Proration			79
11.10 Refundable Items			79

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TABLE OF CONTENTS
(continued)

		Page
11.11 ABM Benchmarking Reviews			79
11.12 Transport Rate Review			81
11.13 Procurement			81
12. INVOICING AND PAYMENT			82
12.1 Invoicing			82
12.2 Payment Due			83
12.3 Set Off			83
12.4 Disputed Charges			83
13. ABM DATA AND OTHER PROPRIETARY INFORMATION			85
13.1 ABM Ownership of ABM Data			85
13.2 Safeguarding ABM Data			85
13.3 Confidentiality			86
13.4 File Access			88
14. OWNERSHIP OF MATERIALS			89
14.1 ABM Owned Materials			89
14.2 Developed Materials			90
14.3 Supplier Owned Materials			91
14.4 Other Materials			92
14.5 General Rights			93
14.6 ABM Rights Upon Expiration or Termination of Agreement			93
15. REPRESENTATIONS AND WARRANTIES			96
15.1 Work Standards			96
15.2 Maintenance			96
15.3 Efficiency and Cost Effectiveness			97
15.4 Software			97
15.5 Non-Infringement			98
15.6 Authorization			98
15.7 Inducements			99
15.8 Malicious Code			99
15.9 Disabling Code			99

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TABLE OF CONTENTS
(continued)

		Page
15.10 Compliance with Laws			100
15.11 Interoperability			102
15.12 Disclaimer			102
16. INSURANCE AND RISK OF LOSS			102
16.1 Insurance			102
16.2 Risk of Loss			104
17. INDEMNITIES			104
17.1 Indemnity by Supplier			104
17.2 Indemnity by ABM			106
17.3 Additional Indemnities			107
17.4 Infringement			107
17.5 Indemnification Procedures			108
17.6 Indemnification Procedures — Governmental Claims			109
17.7 Subrogation			109
18. LIABILITY			109
18.1 General Intent			109
18.2 Force Majeure			109
18.3 Limitation of Liability			111
19. DISPUTE RESOLUTION			114
19.1 Informal Dispute Resolution			114
19.2 Mediation			115
19.3 Jurisdiction			115
19.4 Continued Performance			115
19.5 Governing Law			116
20. TERMINATION			116
20.1 Termination for Cause			116
20.2 Termination for Convenience			117
20.3 Termination Upon Supplier Change of Control			117
20.4 Termination Upon ABM Mergers and Acquisitions			117
20.5 Termination for Insolvency			117

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TABLE OF CONTENTS
(continued)

		Page
20.6 ABM Rights Upon Supplier’s Bankruptcy			118
21. GENERAL			119
21.1 Binding Nature and Assignment			119
21.2 Entire Agreement; Amendment			119
21.3 Notices			120
21.4 Counterparts			122
21.5 Headings			122
21.6 Relationship of Parties			122
21.7 Severability			122
21.8 Consents and Approval			122
21.9 Waiver of Default; Cumulative Remedies			123
21.10 Survival			123
21.11 Publicity			123
21.12 Service Marks			123
21.13 Export			123
21.14 Third Party Beneficiaries			123
21.15 Covenant Against Pledging			123
21.16 Order of Precedence			124
21.17 Hiring of Employees			124
21.18 Further Assurances			124
21.19 Liens			125
21.20 Covenant of Good Faith			125
21.21 Acknowledgment			125
21.22 Right to Perform Service for Others			125
21.23 Eligible Recipients			125
21.24 Remarketing			125
21.25 Freedom of Action			125
21.26 Reference			125

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 -vi-

Exhibit 10.36

MASTER PROFESSIONAL SERVICES AGREEMENT

     This Master Professional Services Agreement (this “Agreement”) is entered into effective October 1, 2006 (the “Effective Date”) by and between ABM Industries Incorporated, a Delaware corporation having a principal place of business in San Francisco, California (“ABM or Customer”), and International Business Machines Corporation, a New York corporation having a principal place in Somers, New York (“Supplier”).

     WHEREAS, ABM and Supplier have engaged in extensive negotiations, discussions and due diligence that have culminated in the formation of the contractual relationship described in this Agreement; and

     WHEREAS, ABM desires to procure from Supplier, and Supplier desires to provide to ABM and the Eligible Recipients the Services described in this Agreement and in the Companion Agreement(s) (defined below), on the terms and conditions specified herein.

     NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and of other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, ABM and Supplier (the “Parties” and each, a “Party”) hereby agree as follows:

1.		BACKGROUND AND OBJECTIVES
1.1		ITO Services.
		ABM desires that certain application management, telecommunication, IT infrastructure, help desk, and other information technology services presently performed and managed by or for ABM and the Eligible Recipients and certain additional information technology services, as each is described in this Agreement (collectively “ITO Services”) be performed and managed by Supplier. Supplier has carefully reviewed ABM’s requirements, has performed all due diligence it deems necessary, and desires to perform and manage such ITO Services for ABM and the Eligible Recipients.
1.2		Goals and Objectives.
		The Parties acknowledge and agree that the specific goals and objectives of the Parties in entering into this Agreement are to:

(a)

attain ABM’s specific objectives for the Services, including:

	(i)		providing Services and solutions in full alignment with business unit requirements and exploiting the technologies and associated services for competitive advantage;
	(ii)		maintaining and continuously improving quality of the Services, improving availability and responsiveness of the Services and meeting deliverables on time and on budget;
	(iii)		reducing overall expenses and efficiently deploying capital associated with the Services; and
	(iv)		measuring and improving overall customer satisfaction, proactively anticipating customer needs and maintaining clear accountability with respect to the Services; and

(b)

attain ABM’s broader objectives for entering into this Agreement with Supplier, including:

(i)

improving ABM’s and the Eligible Recipients’ access to resources and technology, and leveraging Supplier’s size, scale, and expertise to make overall improvements in delivery of the Services; and

ABM/IBM Proprietary Information

(ii)

achieving additional reductions in expenses and capital that are otherwise not achievable by ABM, changing fixed costs to variable costs by procuring Services as needed, based on business demand and providing better linkage of cost to the discrete Services provided, and increasing ABM’s and the Eligible Recipients’ ease and accuracy associated with invoicing and internal chargeback capabilities.

1.3		Interpretation.
		The provisions of this Article 1 are intended to be a general introduction to this Agreement and are not intended to expand the scope of the Parties’ obligations or alter the plain meaning of this Agreement’s terms and conditions, as set forth hereinafter. However, to the extent the terms and conditions of this Agreement are unclear or ambiguous, such terms and conditions are to be construed so as to be consistent with the background and objectives set forth in this Article 1.
2.		DEFINITIONS AND DOCUMENTS
2.1		Definitions.
		As used in this Agreement:

	(1)		“ABM Data” shall mean any data or information of ABM or any Eligible Recipient that is provided to or obtained by Supplier in connection with the negotiation and execution of this Agreement or the performance of its obligations under this Agreement, including data and information with respect to the businesses, customer, operations, facilities, products, rates, regulatory compliance, competitors, consumer markets, assets, expenditures, mergers, acquisitions, divestitures, billings, collections, revenues and finances of ABM or any Eligible Recipient. ABM Data also shall mean any data or information of ABM or an Eligible Recipient (i) created, generated, collected or processed by Supplier in the performance of its obligations under this Agreement, including data processing input and output, asset information, Reports, third party service and product agreements of ABM or an Eligible Recipient, retained expenses and Pass-Through Expenses or (ii) that resides in or is accessed through Software, Equipment or Systems provided, operated, supported, or used by Supplier in connection with the Services, as well as information derived from this data and information. ABM Data shall not include any Supplier Proprietary Information.
	(2)		“ABM Facilities” means the facilities listed in Schedule O.1 provided by ABM or the Eligible Recipient for the use of Supplier to the extent necessary to provide the Services.
	(3)		“ABM Owned Materials” shall have the meaning given in Section 14.1(a).
	(4)		“ABM Owned Software” means Software owned by ABM or an ABM Affiliate or an Eligible Recipient and used, operated, maintained or supported by Supplier or a Subcontractor under or in connection with this Agreement.
	(5)		“ABM Personal Data” shall mean that portion of ABM Data that is subject to any Privacy Laws.
	(6)		“ABM Contract Manager” shall have the meaning given in Section 10.1.
	(7)		“ABM Personnel” shall mean the employees, agents, contractors or representatives of ABM employed by ABM or its Affiliates or Eligible Recipients as of the Effective Date who performed, in the ordinary course of business, any of the services to be provided by Supplier during the twelve (12) months preceding the Commencement Date.
	(8)		“ABM Sites” or “Sites” shall mean the offices or other facilities listed on Schedule O.5 at or to which Supplier is to provide the Services.

ABM/IBM Proprietary Information

	(9)		“ABM Third Party Contractors” shall have the meaning given in Section 4.4(a).
	(10)		“Acceptance” shall mean the determination, in ABM’s reasonable discretion, and in accordance with the Policy and Procedures Manual or other criteria agreed to by the Parties, following implementation, installation, testing and execution in the production environment for an agreed upon number of business cycles that Software, Equipment, Systems and/or other contract deliverables are in Compliance in all material respects with the Specifications.
	(11)		“Additional Resource Charge” or “ARC” is the charge per Resource Unit that is applicable whenever the actual consumption of a Resource Unit by the Eligible Recipients exceeds the Resource Baseline set forth in Schedule J. The total additional charges will be calculated by multiplying the Additional Resource Charge by the number of Resource Units in excess of the Resource Baseline actually consumed by the Eligible Recipients.
	(12)		“Affected Employees” means the individuals identified in Schedule M.
	(13)		“Affiliate” shall mean, generally, with respect to any Entity, any other Entity Controlling, Controlled by or under common Control with such Entity.
	(14)		“Agreement” shall have the meaning given in the Preamble.
	(15)		“Allocation of Pool Percentage” means for a particular Critical Performance Indicator, the portion of At Risk Amount allocated to such Critical Performance Indicator and used to calculate the Service Level Credit payable to ABM in the event of a Service Level Default in such Critical Performance Indicator. In no event shall the sum of all Allocations of Pool Percentage exceed one hundred percent (100%).
	(16)		“Antivirus Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to monitor for, filter and detect the presence of Malicious Code and repair or remediate the effects of Malicious Code to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Antivirus Software shall include all such programs or programming in use as of the Effective Date (i) that are set forth in Schedule A, or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Antivirus Software also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(17)		“Applications Software” or “Applications” shall mean those software application programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) used to support day-to-day business operations and accomplish specific business objectives to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Applications Software shall include all such programs or programming in use as of the Effective Date (i) that are set forth in Schedule A, or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Applications Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(18)		“Asset Management Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to record, track and report information required to manage asset inventories to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Asset Management Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to

ABM/IBM Proprietary Information

			which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Asset Management Software also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(19)		“At Risk Amount” means, for any month during the Term, an amount, expressed as a percentage of the Monthly Charges, which is the maximum amount that the Supplier will have at risk for Service Level Credits. The At Risk Amount shall be 10% of the Monthly Charges.
	(20)		“Authorized User” means (i) all Eligible Recipients and their respective employees, contractors, subcontractors, customers, agents and representatives (other than Supplier and its Subcontractors), and (ii) other persons or Entities designated by ABM to receive or use the Systems or Services provided by Supplier.
	(21)		“Baseline FTE Project Hours” and “Baseline FTE Project Dollars” shall have the meaning given in Section 11.8(a).
	(22)		“Benchmark Standard” has the meaning given in Section 11.11(d).
	(23)		“Benchmarker” has the meaning given in Section 11.11(a).
	(24)		“Benchmarking” has the meaning given in Section 11.11(a).
	(25)		Reserved.
	(26)		“Change Management” means the processes and procedures relating to managing, planning and performing all System Changes pertaining to the Services, including System Changes to individual components, and the coordination of such changes across all components as set forth in Schedule E and the Policy and Procedures Manual. Change Management will support and include checkpoints to ensure that System Changes may be implemented in accordance with the Change Control Procedures.
	(27)		“Charges” means the amounts set forth in this Agreement, including in Article 11 and Schedule J, as charges for the Services, excluding Pass-Through Expenses, Service Taxes and ABM retained expenses.
	(28)		“Commencement Date” shall mean October 1, 2006, or such other date as the Parties may agree upon in writing as the date on which Supplier will assume full responsibility for the Services.
	(29)		“Compiler” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to compile source code to executable code (e.g., C++, ADA, Cobol, JAVA, Fortran) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Compiler shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Compiler also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(30)		“Compliance” and “Comply” shall mean, with respect to Software, Equipment, Systems or other contract deliverables to be implemented, designed, developed, delivered, integrated, installed and/or tested by Supplier, compliance in all material respects with the Specifications.
	(31)		“Contract Year” means, for the first Contract Year, a period commencing on the Commencement Date and ending on October 31, 2006, and, for each ensuing Contract Year, a twelve (12) month

ABM/IBM Proprietary Information

			period commencing on November 1 and ending on October 31 (or, if earlier, on the last day of the Term). If any Contract Year is less than twelve (12) months, the rights and obligations under this Agreement that are calculated on a Contract Year basis will be proportionately adjusted for such shorter period.
	(32)		“Control” and its derivatives shall mean: (a) the legal, beneficial, or equitable ownership, directly or indirectly, of (i) at least 50% of the aggregate of all voting equity interests in an Entity or (ii) equity interests having the right to at least 50% of the profits of an Entity or, in the event of dissolution, to at least 50% of the assets of an Entity; (b) the right to appoint, directly or indirectly, a majority of the board of directors; (c) the right to control, directly or indirectly, the management or direction of the Entity by contract or corporate governance document; or (d) in the case of a partnership, the holding by an Entity (or one of its Affiliates) of the position of sole general partner.
	(33)		“Critical Deliverable” shall have the meaning given in Schedule G.
	(34)		“Critical Performance Indicator(s)” or “CPI” shall have the meaning given in Schedule G.
	(35)		“Database Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to deliver database services to the enterprise to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Database Software includes database engines such as Sybase, Oracle, DB2. SQL Server and associated modules (e.g., form builders, report generators, and backup software) and the tools used to manage and monitor performance of the database. Database Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Database Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(36)		“Deliverable” means a Developed Material that is identified as a deliverable in the Agreement, or in a statement of work, project plan, or other writing by or between the Parties.
	(37)		“Deliverable Credits” means the monetary amount(s) that Supplier shall pay to ABM (or apply against monthly Charges) if Supplier fails to meet its obligations with respect to a Critical Deliverable, as further described in Section 7.2(b) and Schedules G and H.
	(38)		“Derivative Work” means a work based on one or more preexisting works, including a condensation, transformation, translation, modification, expansion, or adaptation, that, if prepared without authorization of the owner of the copyright of such preexisting work, would constitute a copyright infringement under applicable Law, but excluding the preexisting work.
	(39)		“Developed Materials” shall mean any Materials (including Software), or any modifications, enhancements or Derivative Works thereof, developed by or on behalf of Supplier for ABM or the Eligible Recipients in connection with or as part of the Services.
	(40)		“Development Tool” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used in the development, testing, deployment and maintenance of Applications to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Development Tools shall include all such products in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Development Tools also shall include all such products selected and/or

ABM/IBM Proprietary Information

			developed on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(41)		“Direct Supplier Competitors” shall mean the Entities identified in Schedule P.2, as such list of Entities may be modified by Supplier from time to time, provided, however, that such list shall at no time exceed twenty (20) Entities unless otherwise agreed by the Parties.
	(42)		“Direct ABM Competitors” shall mean the Entities identified in Schedule P.1, as well as their Affiliates, successors and assigns, as such list of Entities may reasonably be modified by ABM from time to time.
	(43)		“Effective Date” shall have the meaning given in the preamble to this Agreement.
	(44)		“Eligible Recipients” means, collectively, the following:

	(a)		ABM;
	(b)		any Entity that is an Affiliate of ABM on the Commencement Date, or thereafter becomes an Affiliate of ABM;
	(c)		any Entity that purchases after the Commencement Date from ABM or any Affiliate of ABM, all or substantially all of the assets of ABM or such Affiliate, or of any division, marketing unit or business unit thereof, provided that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;
	(d)		any Entity that after the Effective Date is created using assets of ABM or any Affiliate of ABM, provided that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;
	(e)		any Entity into which ABM or any Affiliate of ABM merges or consolidates, provided that such Entity has assumed ABM’s obligations under this Agreement, and provided further that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;
	(f)		any Entity which merges into or consolidates with ABM or any Affiliate of ABM;
	(g)		any Entity, including any corporation, joint venture, partnership or manufacturing or retail facility, in which on or after the Commencement Date, ABM or any Affiliate of ABM has an ownership interest and as to which ABM or such Affiliate has management or operational responsibility;
	(h)		subject to Section 11.1(e)(iii), any person or Entity engaged in the provision of products or services to ABM or an Eligible Recipient identified in clauses (a) through (g) (e.g., contract personnel working at an ABM Site), but only in connection with the provision of such products or services to ABM or such Eligible Recipient;
	(i)		subject to Section 11.1(e)(iii), any customer of an Eligible Recipient identified in clauses (a) through (g) above, or an Entity to which such an Eligible Recipient is a subcontractor, but only in connection with the provision of products or services (other than the Services provided hereunder) by such Eligible Recipient to such customer; and
	(j)		other entities to which the Parties agree.

ABM/IBM Proprietary Information

			Except as used in Sections 17.1, 17.3, and 17.4, Eligible Recipients shall include the employees, contractors, subcontractors, agents and representatives of the Entities identified as Eligible Recipients above.
			As used in the following Sections, the term “Eligible Recipient(s)” shall not include the Eligible Recipient categories described in Sections 2.1(44)(h) and (i):

	•		Section 4.2(f);
	•		Section 4.3(b) (except Section 4.3(b)(8));
	•		Section 5.4 (provided that the failure to obtain a Required Consent with respect to the Eligible Recipient categories described in Sections 2.1(44)(h) and (i) may nonetheless impact the use and enjoyment of the Services by ABM or other Eligible Recipients);
	•		Section 6.1(c); and
	•		Section 9.4(a).

	(45)		“Employment Effective Date” means, with respect to each Transitioned Employee, the date that such Transitioned Employee begins employment with Supplier, in accordance with applicable Laws.
	(46)		“Engineering Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to provide a specific engineering function or service to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Engineering Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Engineering Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(47)		“Entity” means a corporation, partnership, joint venture, trust, limited liability company, association or other organization or entity.
	(48)		“Equipment” shall mean all computing, networking and communications equipment procured, provided, operated, supported, or used by ABM, Supplier or Authorized Users in connection with the Services, including (i) mainframe, midrange, server and distributed computing equipment and associated attachments, features, accessories, peripheral devices, and cabling, (ii) personal computers, laptop computers, terminals, workstations and personal data devices and associated attachments, features, accessories, printers, multi-functional printers, peripheral or network devices, and cabling, and (iii) voice, data, video and wireless telecommunications and network and monitoring equipment and associated attachments, features, accessories, peripheral devices, and cabling.
	(49)		“Equipment Leases” means all leasing arrangements whereby ABM, an Eligible Recipient or an ABM Third Party Contractor leases Equipment as of the Commencement Date which will be used by Supplier to perform the Services after such Commencement Date. Equipment Leases include those leases identified on Schedule F.2, and all other leases as to which Supplier received notice and/or access prior to the Effective Date.
	(50)		“Event of Loss” shall have the meaning set forth in Section 16.2.

ABM/IBM Proprietary Information

	(51)		“Extraordinary Event” shall have the meaning given in Section 11.6(a).
	(52)		“Full Time Equivalent” or “FTE” is a level of effort (whether by one person or more than one person), excluding vacation, holidays, training, administration and other non-productive time (but including a reasonable amount of additional work outside normal business hours), equivalent to that which would be provided by one person working full time for one year. Unless otherwise agreed, one dedicated FTE is assumed to be at least 1,880 productive hours per Contract Year, and each non-dedicated FTE shall be deemed to be a fraction of an FTE equal to the number of productive hours worked by such non-dedicated FTE in a Contract Year divided by 1,880. Without ABM’s prior written approval, one (1) dedicated individual’s total work effort cannot amount to more than one FTE.
	(53)		“Functional Service Area” means each of the areas defined in Schedule E in which Supplier will provide Services, (i.e., ).
	(54)		“Hazardous Materials” means an element, compound, chemical mixture, contaminant, pollutant, waste or other substance which is defined as hazardous or toxic under any applicable Law or the release of which is prohibited or restricted under any applicable Law.
	(55)		“Include” and its derivatives shall mean “including without limitation.” This term is as defined, whether or not capitalized in this Agreement.
	(56)		“Increased Impact Service Level” shall have the meaning given in Schedule G.
	(57)		“Increased Impact Service Level Default” means the Supplier’s level of performance for a particular Service Level fails to meet the applicable Increased Impact Service Level at any time during the measurement period.
	(58)		“Income Tax” means any tax on or measured by the net income of a Party (including taxes on capital or net worth that are imposed as an alternative to a tax based on net or gross income), or taxes which are of the nature of excess profits tax, minimum tax on tax preferences, alternative minimum tax, accumulated earnings tax, personal holding company tax, capital gains tax or franchise tax for the privilege of doing business.
	(59)		“Initial Term” shall have the meaning set forth in Section 3.1.
	(60)		“ITS Systems Life Cycle” means the comprehensive IT/IS documentation maintained by ABM, including operating manuals, user guides, specifications, methodologies, policies/procedures and disaster recovery plans.
	(61)		“Key Performance Indicator(s)” or “KPI” shall have the meaning given in Schedule G.
	(62)		“Key Supplier Personnel” shall mean the Supplier Personnel filling the positions designated in Schedule C as Key Supplier Personnel.
	(63)		“LAN Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to operate, manage or monitor a LAN or maintain active status on a LAN port to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. LAN Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. LAN Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.

ABM/IBM Proprietary Information

	(64)		“Laws” shall mean all federal, state and local laws, statutes, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other official releases of or by any government, or any authority, department or agency thereof or self regulatory organization (“SRO”), in any jurisdiction in which the Services are provided or received, including the United States Securities and Exchange Commission and the Public Company Accounting Oversight Board and the Laws relating to data privacy, trans-border data flow or data protection (“Privacy Laws”). Subject to Section 15.10, Laws shall include generally accepted accounting principles (“GAAP”), applied in accordance with SAS-69, as such principles may be modified during the Term by the Public Company Accounting Oversight Board or other applicable authorities.
	(65)		“Local Area Networks” or “LANs” shall mean the local, high-speed networks, consisting of Equipment, Software, Systems, telecommunications facilities, lines, interconnect devices and cabling, that are used to create, connect and transmit data, voice and video signals to, within or among ABM’s local area network segments. Local Area Networks interconnect Authorized User workstations, local servers, and printers and may connect with WANs. Local Area Networks shall include all LANs in use as of the Commencement Date, all LANs created by or for ABM, the Eligible Recipients or Supplier following the Commencement Date and all additions, modifications, substitutions, upgrades or enhancements to existing and future LANs.
	(66)		“Losses” shall mean all losses, liabilities, damages, fines, penalties, settlements, judgments, and interest (including taxes) arising out of a third party claim against a Party or indemnitee, in each case that a court finally awards to a third party or which are included in the amount of any settlement paid to a third party and agreed to by the Party financially responsible for such settlement, and all related costs and expenses (including reasonable legal fees, disbursements and costs of investigation and litigation) as incurred.
	(67)		“Major Release” means a new version of Software that includes changes to the architecture and/or adds new features and functionality in addition to the original functional characteristics of the preceding software release. These releases are usually identified by full integer changes in the numbering, such as from “7.0” to “8.0,” but may be identified by the industry as a major release without the accompanying integer change.
	(68)		“Malicious Code” shall mean (i) any code, program, or sub-program whose knowing or intended purpose is to damage or maliciously interfere with the operation of the computer system containing the code, program or sub-program, or to halt, disable or maliciously interfere with the operation of the Software, code, program, or sub-program, itself, or (ii) any device, method, or token that permits any person to circumvent the normal security of the Software or the system containing the code.
	(69)		“MAN Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to operate, manage or monitor Metropolitan Area Networks (including campus area networks) or provide or maintain connectivity throughout a Metropolitan Area Network (or campus area network) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. MAN Software shall include all such programs or programming in use or required to be used as of the Effective Date, including those set forth in Schedule A, and those as to which Supplier received reasonable notice and/or access prior to the Effective Date. MAN Software also includes all such programs or programming developed and/or introduced by or for ABM on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(70)		“Managed Third Parties” shall mean the ABM Third Party Contractors listed on Schedule K and any substitute or replacement third party contractors reasonably designated by ABM, and shall include Fully Managed Third Parties and General Managed Third Parties, as defined in Section

ABM/IBM Proprietary Information

			6.11. The Parties acknowledge and agree that, to the extent ABM has Software license and/or maintenance contracts with International Business Machines Corporation and such contracts are listed on Schedule K, International Business Machines Corporation shall be treated as a Managed Third Party for purposes of such contracts.
	(71)		“Management Tools” means all software products and tools (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used by Supplier to deliver and manage the Services. Management Tools shall include all such products or tools in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. Management Tools also shall include all such software products and tools selected and/or developed on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(72)		“Materials” shall mean, collectively, Software, literary works, other works of authorship, documented specifications, designs, analyses, processes, methodologies, programs, program listings, programming tools, documentation, reports, drawings, databases, spreadsheets, financial models and work product.
	(73)		“Metropolitan Area Networks” or “MANs” means the regional or campus, high-speed networks, consisting of Equipment, Software, Systems, telecommunications facilities, lines, interconnect devices and cabling, that are used to create, bundle, connect and transmit data, voice and video signals to, between or among 1) ABM’s or Eligible Recipients’ office buildings located within a campus or single metropolitan area, 2) LANs, and 3) WANs. Metropolitan Area Networks include all MANs in use or required to be used as of the Effective Date, all MANs created by or for ABM, the Eligible Recipients or Supplier following the Effective Date and all additions, modifications, substitutions, upgrades or enhancements to existing or future MANs.
	(74)		“Minimum Service Level” shall have the meaning given in Schedule G.
	(75)		“Minimum Service Level Default” means the Supplier’s level of performance for a particular Service Level fails to meet the applicable Minimum Service Level at any time during the measurement period.
	(76)		“Minor Release” means a scheduled release containing small functionality updates and/or accumulated resolutions to defects or non-conformances made available since the immediately preceding release (whether Major Release or Minor Release). Minor Releases shall include “Maintenance Releases” which are supplemental to and made available between Major Releases and other Minor Releases, issued and provided under specific vendor service level or maintenance obligations and contain only accumulated resolutions or mandated changes. These releases are usually identified by a change in the decimal numbering of a release, such as “7.12” to “7.13.”
	(77)		“Monitoring Software” shall mean all software programs and programming (and all modifications, replacements, upgrades, enhancements, documentation, materials and media related thereto) that are used to monitor and report on IT assets (e.g., software, computers, systems, networks, network devices or elements, circuits) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Monitoring Software shall include all such software programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Monitoring Software also shall include all programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.

ABM/IBM Proprietary Information

	(78)		“Monthly Base Charge” means the total Supplier price set forth in Schedule J associated with the performance of the Services in a given month in accordance with the Resource Baselines, Service Levels and Supplier responsibilities under this Agreement (excluding ARCs and RRCs).
	(79)		“Network Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to deliver and manage Services over networks to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Network Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Network Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(80)		“New Advances” shall have the meaning given in Section 11.7(c).
	(81)		“New Services” means services provided by Supplier to ABM that impose materially different obligations on Supplier and that require materially different levels of effort, resources or expense from Supplier and for which there is no current Resource Baseline or charging methodology.
	(82)		“Noncompliance” shall mean, with respect to Software, Equipment, Systems or other contract deliverables to be implemented, designed, developed, delivered, integrated, installed and/or tested by Supplier, any failure to comply in all material respects with the Specifications.
	(83)		“Office Image” means all office automation programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) installed on Authorized User workstations, including office productivity, word processing, spreadsheet, presentation, messaging, calendaring, middleware and menu systems, and associated Systems Software. The Office Image shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. The Office Image also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(84)		“Operating System Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to deliver and manage Services on a particular hardware platform including operating systems (e.g., UNIX, Windows 2000, VM and MVS) and network operating systems (e.g., NT Server, Windows 2000 and Novell) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Operating System Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. Operating System Software also shall include all such programs or programming developed and/or introduced after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(85)		“Out-of-Pocket Expenses” shall mean reasonable and actual out-of-pocket expenses incurred by Supplier that are approved in advance by ABM and for which Supplier is entitled to be reimbursed by ABM under this Agreement. Out-of-Pocket Expenses shall not include Supplier’s overhead costs (or allocations thereof), general and/or administrative expenses or other mark-ups and shall be net of all rebates and allowances.

ABM/IBM Proprietary Information

	(86)		“Pass-Through Expenses” shall mean the expenses listed in Schedule J for which ABM has agreed in advance to be financially responsible, in accordance with Article 11 of this Agreement, following processing and review of the third party invoice by Supplier for accuracy. All Services to be performed by Supplier with respect to Pass-Through Expenses are included in the Monthly Base Charges. Supplier shall not charge any handling or administrative charge in connection with its processing or review of such invoices without ABM’s consent.
	(87)		“Policy and Procedures Manual” shall have the meaning given in Section 9.1(a).
	(88)		“Prior Agreement” shall mean the agreement between ABM Industries and International Business Machines Corporation, dated December 20, 2004, for telecommunication, network and VOIP services.
	(89)		“Problem Management” means the processes and procedures of tracking and managing all problems arising in ABM’s information technology (IT) or telecommunication environment or otherwise in connection with the Services, and resolving those problems arising from or related to the Services. Such process includes the provision of information to ABM to allow ABM to resolve problems that are not related to the Services.
	(90)		“Problem Management Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to track and manage problems to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Problem Management Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Problem Management Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(91)		“Project” shall have the meaning given in Section 11.8(a).
	(92)		“Proprietary Information” shall have the meaning given in Section 13.3(a).
	(93)		“Quality Assurance” means the actions, planned and performed, to provide confidence that all business processes, Systems, Equipment, Software and components that influence the quality of the Services are working as expected, both individually and collectively.
	(94)		“Reduced Resource Credit” or “RRC” is the credit per Resource Unit that is applicable whenever the actual consumption of a defined Resource Unit by the Eligible Recipients falls below the Resource Baseline set forth in Schedule J. The total credit will be calculated by multiplying the Reduced Resource Credit by the number of Resource Units below the Resource Baseline actually consumed by the Eligible Recipients.
	(95)		“Remote Management Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to control the operations of and manage from remote sites IT assets (e.g., software, computers, systems, networks, network devices or elements, circuits) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Remote Management Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Remote Management Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.

ABM/IBM Proprietary Information

	(96)		“Renewal Term” shall have the meaning set forth in Section 3.2.
	(97)		“Reports” shall have the meaning set forth in Section 9.2(a).
	(98)		“Required Consents” shall mean the consents (if any) required to be obtained: (i) to assign or transfer to Supplier, or obtain for Supplier the right to use and/or access, any ABM licensed Third Party Software, Third Party Contracts or Equipment Leases or Acquired Assets; (ii) to grant Supplier the right to use and/or access the ABM licensed Third Party Software in connection with providing the Services; (iii) to grant ABM and the Eligible Recipients the right during the Term and any Termination Assistance Services period to use and/or access the Supplier Owned Software, Third Party Software and Equipment acquired, operated, supported or used by Supplier in connection with providing the Services; (iv) subject to Sections 6.4(c), 6.5(d), and 6.6(c), to assign or transfer to ABM or its designee Supplier Owned Software, Third Party Software, Third Party Contracts, Equipment leases or other rights following the Term to the extent provided in this Agreement; and (v) all other consents required from third parties in connection with Supplier’s provision of the Services or performance of its obligations hereunder.
	(99)		“Resource Baselines” shall mean the estimated number of Resource Units to be required and/or consumed by ABM and the Eligible Recipients during a defined period of time and included in the Monthly Base Charges. The Resource Baselines as of the Effective Date are set forth in Schedule J. The Resource Baselines will be revised from time to time by agreement of the Parties based on the business requirements of ABM and the Eligible Recipients and the Monthly Base Charges will be adjusted accordingly.
	(100)		“Resource Unit” (“RU”) means a particular unit of resource, as described in Schedule J, which is measured to determine ABM’s actual utilization of such resource compared to the applicable Resource Baseline for purposes of calculating “Additional Resource Charges” (“ARCs”) and “Reduced Resource Credits” (“RRCs”) as described in Schedule J.
	(101)		“Retained Systems and Business Processes” means those Systems and business processes of ABM or an Eligible Recipient for which Supplier has not assumed responsibility under this Agreement (including those provided, managed, operated, supported and/or used on their behalf by ABM Third Party Contractors). Retained Systems and Business Processes include equipment and software associated with such systems and business processes.
	(102)		“Root Cause Analysis” is the formal process, specified in the Policy and Procedures Manual, to be used by Supplier to diagnose problems at the lowest reasonable level so that corrective action can be taken that will eliminate, to the extent reasonably possible, repeat failures. Supplier shall implement a Root Cause Analysis as specified in Section 7.3 or as reasonably requested by ABM.
	(103)		“Service Level Credits” shall have the meaning given in Section 7.2 and Schedule G.
	(104)		“Service Level Default” means a Minimum Service Level Default or an Increased Impact Service Level Default.
	(105)		“Service Levels” shall mean, individually and collectively, the performance standards for the Services set forth in Schedule G.
	(106)		“Service Taxes” shall mean all sales, use, excise, and other similar taxes that are assessed against either Party on the provision of the Services as a whole, or on any particular Service received by ABM or the Eligible Recipients from Supplier, excluding Income Taxes.
	(107)		“Services” means, collectively: (i) the services, functions and responsibilities described in this Agreement as they may be supplemented, enhanced, modified or replaced during the Term in

ABM/IBM Proprietary Information

			accordance with this Agreement; (ii) the Transition Services; (iii) the Termination Assistance Services; and (iv) any New Services and Projects.
	(108)		“Software” shall mean all software programs and programming for which a Party is financially or operationally responsible under Schedule J.1 (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto), including Applications, Antivirus Software, Compilers, Database Software, Development Tools, MAN Software, Management Tools, Monitoring Software, Network Software, Operating System Software, Office Images, Problem Management Software, Remote Management Software, Systems Software, Third Party Software and Utilities, unless a more specific reference is required by the context.
	(109)		“Specialized Services” shall have the meaning given in Section 9.9.
	(110)		“Specifications” shall mean, with respect to Software, Equipment, Systems or other contract deliverables to be designed, developed, maintained, modified, enhanced, delivered, integrated, installed and/or tested by Supplier, the technical, design and/or functional specifications set forth in Schedules E or H, in third party vendor standard documentation, in a New Services or Project description requested and/or approved by ABM or otherwise agreed upon in writing by the Parties.
	(111)		“Strategic Plan” means the plans periodically developed by ABM that set forth ABM’s key business objectives and requirements and outline its strategies for achieving such objectives and requirements. ABM may revise the Strategic Plan from time to time. The Strategic Plan is likely to include both annual and multi-year strategies, objectives and requirements.
	(112)		“Subcontractors” shall mean subcontractors (of any tier) of Supplier, including Shared Subcontractors (as defined in Section 9.12(b)). The initial list of Subcontractors approved by ABM is set forth on Schedule D. Schedule D may be amended during the Term in accordance with Section 9.12.
	(113)		“Supplier Account Executive” shall have the meaning given in Section 8.5 and shall describe the Supplier representative responsible for both the day to day relationship with ABM as well as the delivery of all Services to ABM.
	(114)		“Supplier Facilities” means, individually and collectively, the facilities owned, leased or used by Supplier or its Affiliates or Subcontractors from which any Services are provided or performed (other than Eligible Recipient Facilities). Supplier Facilities are listed on Schedule O.2.
	(115)		“Supplier Owned Materials” shall have the meaning given in Section 14.3(a).
	(116)		“Supplier Owned Software” means any Software owned by Supplier or its Affiliates and used to provide the Services.
	(117)		“Supplier Personnel” shall mean those employees, representatives, contractors, subcontractors and agents of Supplier, Subcontractors and Supplier Affiliates who perform any Services under this Agreement. Supplier Personnel shall include Transitioned Employees.
	(118)		“System” shall mean an interconnected grouping of manual or electronic processes, including Equipment, Software and associated attachments, features, accessories, peripherals and cabling, and all additions, modifications, substitutions, Upgrades or enhancements to such System, to the extent a Party has financial or operational responsibility for such System or System components under Schedule E or Schedule J.1. System shall include all Systems in use as of the Effective Date, all additions, modifications, substitutions, Upgrades or enhancements to such Systems and all Systems installed or developed by or for ABM or Supplier following the Effective Date.

ABM/IBM Proprietary Information

	(119)		“System Change” means any change to the standards, processes, controls, Software, Equipment, Systems or operating environment.
	(120)		“Systems Software” shall mean all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that perform tasks basic to the functioning of the Equipment and are required to operate the Applications Software or otherwise support the provision of Services by Supplier, including operating systems, systems utilities, data security software, compilers, performance monitoring and testing tools and database managers to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Systems Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth on Schedule A, or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. Systems Software also shall include all such programs or programming developed and/or introduced after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(121)		“Term” shall have the meaning given in Section 3.2.
	(122)		“Termination Assistance Services” means the termination/expiration assistance requested by ABM to allow the Services to continue without unnecessary interruption or adverse effect and to facilitate the orderly transfer of the Services to ABM or its designee, as such assistance is further described in Section 4.3 and Schedule I.
	(123)		“Termination Charge” shall mean the termination charges payable by ABM upon certain termination events, as set forth in Schedule N. Termination Charges may include Wind Down Costs and/or a Termination Fee.
	(124)		“Termination Fee” shall have the meaning given in Section 2(c) of Schedule N.
	(125)		“Third Party Contracts” shall mean all agreements between third parties and ABM or an Eligible Recipient or between third parties and Supplier or its Subcontractors or Affiliates that have been or will be used to provide the Services, including those listed on Schedule F.3 as to which Supplier will assume financial and operational responsibility as of the Commencement Date.
	(126)		“Third Party Materials” shall mean intellectual property or other Materials that are owned by third parties and provided under license to Supplier (or Supplier Affiliates or Subcontractors) or ABM (or Eligible Recipients) and that have been or will be used or required to be used to provide or receive the Services. Third Party Materials include Materials owned by Subcontractors and used in the performance of the Services.
	(127)		“Third Party Software” shall mean all Software products (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are provided under license or lease to Supplier or ABM or an Eligible Recipient to the extent a Party has financial or operational responsibility for such Software products under Schedule J.1. Third Party Software shall include all such programs or programming in use as of the Effective Date, (i) that are identified as such on Schedule A and F.4, or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Third Party Software also shall include all such programs or programming licensed and/or leased after the Effective Date.
	(128)		“Transition Milestone” means each date identified on the Transition Plan as a milestone by which Supplier shall have completed a certain task or set of tasks in the Transition Plan in accordance with the Transition Plan.

ABM/IBM Proprietary Information

	(129)		“Transition Period” shall mean the period that commences on the Effective Date and expires 12:00:01 a.m., Pacific Time, on the date specified for the completion of the Transition Services as specified in the Transition Plan, unless expressly extended in writing by ABM.
	(130)		“Transition Plan” means the plan set forth in Schedule H and developed pursuant to Section 4.2 hereof, which identifies all material transition tasks and deliverables to be undertaken by Supplier in connection with the transition of all Services to Supplier, the completion of all Transition Period enhancement projects to be completed during the Transition Period, and the dates by which each will be completed by Supplier.
	(131)		“Transition Services” shall mean the services, functions and responsibilities described in Section 4.2 to be performed by Supplier during the Transition Period.
	(132)		“Transitioned Employees” means the employees of ABM who accept Supplier’s offer of employment and become employed by Supplier pursuant to Article 8. Upon being employed by Supplier, such Transitioned Employees shall be deemed to be Supplier Personnel.
	(133)		“Upgrade” and its derivatives shall mean updates, renovations, enhancements, additions and/or new versions or releases of Software or Equipment by Supplier. Unless otherwise agreed, financial responsibility for the costs, fees and expenses associated with an Upgrade of Software or Equipment shall be allocated between the Parties in accordance with Sections 6.4 and 6.5 and Schedule J.1.
	(134)		“Utilities” shall mean all software programs or programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) which, when used in association with the Operating System Software, allow a Party to manage, secure access, or make available access to the production environment (e.g., tools for storage management, security, virus protection, backup and restoration, software distribution and license management) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. Utilities shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Utilities also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(135)		“WAN Software” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to operate, manage or monitor the WAN or provide or maintain connectivity throughout the WAN to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1. WAN Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A, or (ii) as to which Supplier received notice and/or access prior to the Effective Date. WAN Software also shall include all such programs or programming developed or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1.
	(136)		“Wide Area Networks” or “WANs” means long haul, high speed backbone transmission Networks, consisting of Equipment, Software, Systems, telecommunications facilities, lines, interconnect devices, cabling, sonet rings, ATM, frame relay, leased lines and other services as they become available, that are used to create, connect and transmit data, voice and video signals to within, between or among LANs and/or non-ABM locations that do business with ABM and for which ABM is responsible for providing connectivity. The WAN shall include all voice, data and video (image) traffic to be routed over the WANs. Wide Area Networks shall include all WANs in use as of the Commencement Date, all WANs created by or for ABM or Supplier following the

ABM/IBM Proprietary Information

			Commencement Date and all additions, modifications, substitutions, upgrades or enhancements to existing or future WANs.
	(137)		“Wind Down Costs” shall mean the amounts described in Section 2(a) and (b) of Schedule N.

2.2		Other Terms.
		The terms defined in this Article include the plural as well as the singular and the derivatives of such terms. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection or other subdivision. Article, Section, Subsection and Attachment references refer to articles, sections and subsections of, and attachments to, this Agreement. The words “include” and “including” shall not be construed as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. As stated in Section 21.3, the word “notice” and “notification” and their derivatives shall mean notice or notification in writing. Other terms used in this Agreement are defined in the context in which they are used and shall have the meanings there indicated.
2.3		Associated Contract Documents.
		This Agreement includes each of the following schedules and their attached exhibits, all of which are attached to this Agreement and incorporated into this Agreement by this reference. Unless otherwise expressly stated, references to specific Schedules include all numbered subsidiary Schedules (e.g., references to Schedule E include not only Schedule E, but also Schedules E.1, E.2, E.3, E.4 and E.5).

		A		Software
		B		Reserved
		C		Key Supplier Personnel
		D		Subcontractors
		E		Statement of Work
		E.1		Data Center and Server Services
		E.2		Network Services
		E.3		VIP and Workstation Services
		E.4		Help Desk Services
		E.5		Application Maintenance Services
		F.1		List of Circuits
		F.2		Equipment Leases
		F.3		Third Party Contracts
		F.4		Third Party Software
		G		Service Levels
		H		Transition Plan
		I		Termination Assistance Services
		J		Supplier Charges
		J.1		Financial Responsibility/Asset Ownership Matrix
		K		Managed Third Parties
		L		Projects
		L.1		J.D. Edwards Upgrade Project
		M		Affected Employees
		N		Termination Charges
		O.1		ABM Facilities
		O.2		Supplier Facilities
		O.3		ABM Provided Equipment
		O.4		ABM Rules
		O.5		ABM Sites
		P.1		Direct ABM Competitors
		P.2		Direct Supplier Competitors

ABM/IBM Proprietary Information

		Q		Satisfaction Survey
		R		Reports
		S		Approved Benchmarkers
		T		Governance
		U		Refresh Schedule
		V		Termination/Expiration Rights
		W		Form of Companion Agreement

Exhibit 1: Form of Non-Disclosure Agreement
Exhibit 2: Form of Invoice
Exhibit 3: Form of Bill of Sale

3.		TERM
3.1		Initial Term.
		The initial Term of this Agreement shall commence as of 12:00:01 a.m., Pacific Time on the Effective Date and continue until 11:59:59 p.m., Pacific Time, on December 31, 2013, unless this Agreement is terminated as provided herein or extended as provided in Section 3.2 or 4.3(a)(2), in which case the Term shall end at 11:59:59 p.m., Pacific Time, on the effective date of such termination or the date to which this Agreement is extended (the “Initial Term”).
3.2		Extension.
		By giving notice to Supplier no less than ninety (90) days prior to the expiration date of the Initial Term or any extension, ABM shall have the right to extend the Term for up to two (2) extension periods to be specified by ABM of up to one (1) year (each, a “Renewal Term” and together with the Initial Term, the “Term”), each on the terms and conditions set forth in this Agreement. Notwithstanding the foregoing, the time period between the provision of ABM’s non-renewal notice to Supplier and Supplier’s cessation of Termination Assistance Services shall not be shorter than 180 days. No Termination Charges shall be applicable to any termination on or after the expiration of the Initial Term.
4.		SERVICES
4.1		Overview.

(a)

Services. Commencing on the Commencement Date, Supplier shall provide the Services to ABM, and, upon ABM’s request, to Eligible Recipients designated by ABM. The Services shall consist of the following, as they may evolve during the Term of the Agreement or be supplemented, enhanced, modified or replaced, in each case in accordance with the terms of this Agreement:

	(i)		The services, functions and responsibilities described in this Agreement including its Schedules;
	(ii)		The application management, telecommunication, IT infrastructure, help desk, and information technology related services, functions and responsibilities performed in the ordinary course of business during the twelve (12) months preceding the Commencement Date by ABM Personnel who were displaced or whose functions were displaced as a result of this Agreement, even if the service, function, or responsibility is not specifically described in this Agreement (provided that, in the event of a direct conflict between Schedule E and the scope of services as described in this Section 4.1(a)(ii), this Section 4.1(a)(ii) shall not be construed as altering and/or superseding Schedule E); and

(b)

Included Services. If any subtasks not specifically described in this Agreement are an inherent or necessary part of the Services described herein or are required for proper performance of such

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			Services, such subtasks shall be deemed to be included within the scope of the Services to be delivered for the Charges, as if such subtasks were specifically described in this Agreement.
	(c)		Required Resources. Except as otherwise expressly provided in this Agreement, Supplier shall be responsible for providing the facilities, personnel, Equipment, Software, technical knowledge, expertise and other resources necessary to provide the Services.
	(d)		Supplier Responsibility. Supplier shall be responsible for the provision of the Services in accordance with this Agreement even if, by agreement of the Parties, such Services are performed or dependent upon services performed by (i) Subcontractors, (ii) Managed Third Parties to the extent provided in Section 6.11 and Schedule K, or (iii) non-Supplier Personnel, including ABM employees, for whom Supplier is financially or operationally responsible under this Agreement; provided that, ABM will provide reasonable assistance in rectifying any problem affecting Supplier’s provision of the Services which may be attributed to Managed Third Parties and/or ABM employees.
	(e)		Electronic Delivery. To the maximum extent possible, Supplier shall deliver all Software, documentation, reports and other contract deliverables to ABM and the Eligible Recipients at the designated ABM Site by electronic transmission or by load and leave (where no tangible storage media is physically transferred to ABM or the Eligible Recipients).

4.2

Transition Services.

	(a)		Transition. During the Transition Period, Supplier shall perform the Transition Services and provide the deliverables described in the Transition Plan. If any subtasks not specifically described in the Transition Plan are an inherent or necessary part of the Transition Services or are required for proper performance of the Transition Services, such subtasks shall be deemed to be included within the scope of the Transition Services to be delivered for the transition charges, as if such subtasks were specifically described in the Transition Plan. During the Transition Period, ABM will perform those tasks which are designated to be ABM’s responsibility in the Transition Plan; provided that, ABM shall not be obligated to perform any tasks during the Transition Period that are not set forth in such Transition Plan; and provided further that, if any subtasks not specifically described in the Transition Plan are an inherent or necessary part of the tasks specified in the Transition Plan as ABM’s responsibility or are required for proper performance of such tasks, such subtasks shall be deemed to be included in the Transition Plan as ABM responsibilities as if such subtasks were specifically described therein. Unless otherwise agreed, ABM shall not incur any charges, fees or expenses payable to Supplier or third parties in connection with the Transition Services, other than those charges, fees and expenses specified in Schedule J and those incurred by ABM in connection with its performance of tasks designated in the Transition Plan as ABM’s responsibility.
	(b)		Transition Plan. The initial Transition Plan, which is attached as Schedule H, identifies the transition activities to be performed by Supplier, the date(s) by which each such activity or deliverable is to be completed (“Transition Milestones”), and the Deliverable Credits associated with the failure to meet specific Transition Milestones. Within thirty (30) days after the Effective Date, Supplier shall deliver to ABM a detailed Transition Plan for ABM’s review, comment and approval. The proposed detailed Transition Plan shall describe in greater detail the specific transition activities to be performed by Supplier, but, unless otherwise agreed by ABM, shall be consistent in all material respects with the initial Transition Plan, including the activities, deliverables, Transition Milestones and Deliverable Credits described therein. The detailed Transition Plan shall identify and describe, among other things, (i) the transition activities to be performed by Supplier and the significant components and subcomponents of each such activity, (ii) the deliverables to be completed by Supplier, (iii) the date(s) by which each such activity or deliverable is to be completed, (iv) Supplier’s plans for the hiring and long term retention of Transitioned Employees, (v) a process and set of standards acceptable to ABM to which Supplier

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			shall adhere in the performance of the Transition Services and that will enable ABM to determine whether Supplier has successfully completed the transition and the activities and deliverables associated with each Transition Milestone, including measurable success criteria by Functional Service Areas that Supplier must meet before transitioning the work any further, (vi) a process for ABM to delay all or any part of the transition if ABM reasonably determines that any part of the transition poses a risk or hazard to ABM’s or an Eligible Recipient’s business interests (without any increase in Supplier’s Charges if ABM’s determination is based, at least in material part, on Supplier’s failure to perform satisfactorily its transition obligations), (vii) the contingency or risk mitigation strategies to be employed by Supplier in the event of disruption or delay, and (viii) any transition responsibilities to be performed or transition resources to be provided by ABM.
	(c)		Performance. Supplier shall perform the Transition Services described in the Transition Plan in accordance with the Transition Milestones set forth therein. Supplier shall provide the cooperation and assistance reasonably required or requested by ABM in connection with ABM’s evaluation or testing of the deliverables set forth in the Transition Plan. Supplier shall perform the Transition Services so as to avoid or minimize to the extent reasonably possible (i) any disruption to or adverse impact on the business or operations of ABM or the Eligible Recipients, (ii) any degradation of the Services then being received by ABM or the Eligible Recipients, or (iii) any disruption or interference with the ability of ABM or the Eligible Recipients to obtain the full benefit of the Services, except as may be otherwise provided in the Transition Plan. Prior to undertaking any transition activity, Supplier shall discuss with ABM all known ABM-specific material risks and shall not proceed with such activity until ABM is reasonably satisfied with the plans with regard to such risks (provided that neither Supplier’s disclosure of any such risks to ABM, nor ABM’s acquiescence in Supplier’s plans, shall operate or be construed as limiting Supplier’s responsibilities under this Agreement); provided that, the Parties acknowledge and agree that any unreasonable delay in ABM’s providing its agreement to proceed may result in a delay in Supplier’s ability to meet the schedule set forth in the Transition Plan for which Supplier will be excused as and to the extent provided in Section 10.2. Supplier shall identify and resolve, with ABM’s reasonable assistance, any problems that may impede or delay the timely completion of each task in the Transition Plan that is Supplier’s responsibility and shall use commercially reasonable efforts to assist ABM with the resolution of applicable problems that may impede or delay the timely completion of each task in the Transition Plan that is ABM’s responsibility.
	(d)		Reports. Supplier shall meet at least weekly with ABM to report on its progress in performing the Transition Services set forth in the Transition Plan. Supplier also shall provide written reports to ABM at least weekly, or as otherwise agreed, regarding such matters, and shall provide oral reports more frequently if reasonably requested by ABM. Promptly upon receiving any information indicating that Supplier may not perform its responsibilities or meet the timetable set forth in the Transition Plan, Supplier shall notify ABM in writing of material delays and shall identify for ABM’s consideration and approval specific measures to address such delay and mitigate the risks associated therewith.
	(e)		Failure to Meet Transition Milestones. The Parties acknowledge and agree that the Transition Plan specifies various Transition Milestones by which material Transition activities and/or deliverables are to be completed. If Supplier fails to meet a Transition Milestone that is identified in Schedule G or H as a Critical Deliverable, it shall pay to ABM, at ABM’s election, the applicable Deliverable Credit as liquidated damages and not as a penalty. The Parties agree that such Deliverable Credits are a reasonable estimate as of the date of this Agreement of the damages ABM will suffer in the event the respective Transition Milestone is not met. Notwithstanding the foregoing, if ABM terminates this Agreement for cause in accordance with Section 4.2(f), ABM shall cease receiving Deliverable Credits and, subject to Section 18.3, shall be entitled to recover actual damages incurred in connection with such termination and relating to the period after the cessation of Deliverable Credits, to the extent ABM is able to prove such damages.
	(f)		Termination for Cause. Notwithstanding the foregoing, ABM may terminate this Agreement for cause if (i) Supplier’s failure to comply with its obligations with respect to Transition Services

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causes a material disruption to, or otherwise has a material adverse impact on, critical operations or functions of ABM or the Eligible Recipients, and Supplier fails to cure such failure within five (5) days after its receipt of notice, or (ii) Supplier commits any other material breach of its obligations with respect to Transition Services and fails to cure such breach within fifteen (15) days after its receipt of notice. In all such events, subject to Section 18.3, ABM may recover the damages suffered by ABM or Eligible Recipients in connection with such a termination and relating to the period after the cessation of Deliverable Credits.

4.3

Termination Assistance Services.

(a)

Availability. As part of the Services, and for the Charges set forth in Sections 4.3(b)(8) and 4.3(b)(9) and Schedule J, Supplier shall provide to ABM or ABM’s designee the Termination Assistance Services described in Section 4.3(b) and Schedule I.

	(1)		Period of Provision. Supplier shall provide such Termination Assistance Services to ABM or its designee (i) commencing upon notice up to six (6) months prior to the expiration of the Term or on such earlier date as ABM may reasonably request and continuing for up to twelve (12) months following the effective date of the expiration of the Term (as such Term may be extended pursuant to Section 3.2), (ii) commencing upon any notice of termination (including notice based upon breach or default by ABM, breach or default by Supplier or termination for convenience by ABM) of the Term with respect to all or any part of the Services, and continuing for up to twelve (12) months following the effective date of such termination of all or part of the Services, or (iii) commencing upon notice of termination of all or part of the Services to an Eligible Recipient no longer Controlled by or under common Control with ABM and continuing for up to twelve (12) months following the effective date of such termination.
	(2)		Extension of Services. ABM may elect, upon sixty (60) days prior notice, to extend the effective date of any expiration/termination of all or part of the Services, in its sole discretion, provided that the total of all such extensions will not exceed one hundred and eighty (180) days following the originally specified effective date without Supplier’s prior written consent. ABM also may elect, upon thirty (30) days prior notice, to extend the period following the effective date of any expiration/termination for the performance of Termination Assistance Services, provided that the period between such effective date and the completion of all Termination Assistance Services is not greater than eighteen (18) months. In each case, if ABM provides less than the applicable prior notice of an extension, Supplier shall nonetheless use commercially reasonable efforts to comply with ABM’s request and provide the requested Services and/or Termination Assistance Services.
	(3)		Firm Commitment. Supplier shall provide Termination Assistance Services to ABM or its designee regardless of the reason for the expiration or termination of the Term; provided, if the Agreement is terminated by Supplier under Section 20.1(b) for ABM’s failure to pay amounts due under this Agreement, Supplier may require ABM to pay in advance for Termination Assistance Services provided or performed under this Section 4.3 (including Services provided or performed pursuant to Section 4.3(b)(8)) in accordance with Section 4.3(a)(5). At ABM’s request, Supplier shall provide Termination Assistance Services directly to an Eligible Recipient or an Entity acquiring Control of an Eligible Recipient; provided that, unless otherwise agreed by the Parties, all such Termination Assistance Services shall be performed subject to and in accordance with the terms and conditions of this Agreement.
	(4)		Performance. To the extent ABM requests Termination Assistance Services, such Services shall be provided subject to and in accordance with the terms and conditions of this Agreement. Supplier shall perform the Termination Assistance Services to the same

ABM/IBM Proprietary Information

			degree of accuracy, quality, completeness, timeliness, responsiveness and resource efficiency as it provided and was required to provide the same or similar Services during the Term. The quality and level of performance of the Services provided by Supplier following the expiration or termination of the Term as to all or part of the Services or Supplier’s receipt of a notice of termination or non-renewal shall continue to meet or exceed the Service Levels and shall not be degraded or deficient in any respect.
	(5)		Advance Payment. If ABM is obligated to pay in advance for Termination Assistance Services, Supplier shall present an invoice for the estimated Charges for such Termination Assistance Services at least fifteen (15) days prior to the beginning of the month in which such Services are to be provided. Subject to Section 12.4 and the succeeding sentences, ABM shall then pay such Charges on or before the first day of such month. If ABM disputes and wishes to withhold any such Charges, it shall so notify Supplier and identify the basis for such dispute within five (5) days of its receipt of such invoice. In no event shall ABM withhold the base charges for the on-going Services provided under Section 4.3(b)(8). The Parties shall use commercially reasonable efforts to resolve any dispute relating to the Charges for Termination Assistance Services within five (5) days of ABM stating the basis for its dispute. If such dispute is not resolved within such time period, then the dispute shall be submitted to the senior executives of each Party in accordance with Section 19.1 for prompt resolution. The estimated Charges shall then be reconciled with the actual Charges for Termination Assistance Services provided in such month, and any additional Charges or credits will be reflected on the next invoice delivered after the end of such month. If, in such event, ABM fails to pay undisputed Charges for Termination Assistance Services on or before the first day of the month and fails to cure such default within thirty (30) days of notice from Supplier of its intention to terminate on this basis, Supplier may terminate the relationship and thereafter be relieved of any further responsibility to provide Termination Assistance Services.

(b)

Scope of Service. As part of the Termination Assistance Services, Supplier will timely transfer the control and responsibility for all application management, telecommunication, IT infrastructure, help desk, and information technology functions and Services previously performed by or for Supplier to ABM, Eligible Recipients and/or ABM’s designees by the execution of any documents reasonably necessary to effect such transfers. Additionally, Supplier shall provide commercially reasonable assistance requested by ABM to allow:

	•		the Systems and processes associated with the Services to operate efficiently;
	•		the Services to continue without unnecessary interruption or adverse effect; and
	•		the orderly transfer of the Services to ABM and/or its designee(s).

The Termination Assistance Services shall include, as requested by ABM, the Services, functions and responsibilities set forth on Schedule I. In addition, in connection with such termination or expiration, Supplier will provide the following assistance and Services at ABM’s direction:

(1)

General Support. Supplier shall (i) assist ABM and/or its designee in developing a written transition plan for the transition of the Services to ABM or ABM’s designee, which plan shall include capacity planning, facilities planning, human resources planning, telecommunications planning and other planning necessary to effect the transition, (ii) perform programming and consulting services as requested to assist in implementing the transition plan, (iii) familiarize personnel designated by ABM in the use of any Equipment, Software, Systems, Materials or tools used in connection with the provision of the Services, (iv) catalog all Software, ABM Data, Equipment, Materials, Third Party Contracts and tools used to provide the Services, (v) provide machine readable and printed listings and associated documentation for source code for Software

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			owned by ABM and source code to which ABM is entitled under this Agreement and assist in its re-configuration, (vi) analyze and report on the space required for the ABM Data and the Software needed to provide the Services; (vii) assist in the execution of a parallel operation, data migration and testing process until the successful completion of the transition to ABM or its designee has been successfully completed, (viii) create and provide copies of the ABM Data in the format and on the media reasonably requested by ABM, (ix) provide a complete and up-to-date, electronic copy of the Policy and Procedures Manual in the format and on the media reasonably requested by ABM, and (x) provide other technical assistance as requested by ABM.
	(2)		Hiring.

	(i)		ABM or its designee shall be permitted to undertake, without interference from Supplier, Supplier Subcontractors (subject to Section 4.3(b)(2)(ii)) or Supplier Affiliates (including counter-offers), to hire, effective after the later of the termination of the Term or completion of any Termination Assistance Services requested under Section 4.3(b)(8), any Supplier Personnel primarily assigned to the performance of Services within the 12-month period prior to the expiration or termination date. Supplier shall waive, and shall cause its Affiliates to waive, their rights, if any, under contracts with such personnel restricting the ability of such personnel to be recruited or hired by ABM or its designee. ABM or its designee shall have reasonable access to such Supplier Personnel for interviews, evaluations and recruitment. ABM shall endeavor to conduct the above-described hiring activity in a manner that is not unnecessarily disruptive, in Supplier’s reasonable determination, of the performance by Supplier of its obligations under this Agreement.
	(ii)		With respect to Subcontractors, Supplier shall use commercially reasonable efforts to (A) obtain for ABM, the Eligible Recipients and ABM’s designees the rights specified in this Sections 4.3(b)(2), and (B) provide that the such rights are not subject to subsequent Subcontractor approval or the payment by ABM, the Eligible Recipients or ABM’s designee of any fees. If Supplier is unable to obtain any such rights with respect to Subcontractors, it shall notify ABM in advance and shall not use such Subcontractors without ABM’s approval (and absent such approval, Supplier’s use of any such Subcontractors shall obligate Supplier to obtain or arrange, at no additional cost to ABM, the rights specified in this Section 4.3(b)(2), for ABM, the Eligible Recipients and ABM’s designees upon expiration or termination).

	(3)		Software. Supplier shall provide, and hereby grants to ABM, the Eligible Recipients and/or ABM’s designee certain license, sublicense and/or other rights to certain Software and other Materials used by Supplier, Supplier Affiliates or Subcontractors in performing the Services, all as described in Section 14.6.
	(4)		Equipment. Subject to Section 6.5(d) and (g), ABM, Eligible Recipients or ABM’s designee shall have the right (but not the obligation) to purchase, or assume the lease for, any Equipment owned or leased by Supplier that is used on a dedicated basis by Supplier, Supplier Subcontractors or Supplier Affiliates to perform the Services. Such Equipment shall be transferred in good working condition, reasonable wear and tear excepted (other than Equipment transferred to Supplier by ABM which shall be in a condition at least as good as the condition in which it was provided to Supplier), as of the expiration or termination date or the completion of any Services requiring such Equipment requested by ABM under Section 4.3(b)(8), whichever is later. Supplier shall maintain such Equipment through the date of transfer so as to be eligible for the applicable manufacturer’s maintenance program at no additional charge to ABM. In the case of Supplier -owned equipment, Supplier shall grant to ABM or its designee a warranty of

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			title and a warranty that such Equipment is free and clear of all liens and encumbrances. Such conveyance by Supplier to ABM or its designee shall be at fair market value. At ABM’s request, the Parties shall negotiate in good faith and agree upon the form and structure of the purchase. In the case of Supplier leased Equipment, Supplier shall (i) represent and warrant that to its knowledge, the lease is not in default, (ii) represent and warrant that all payments thereunder have been made through the date of transfer, and (iii) notify ABM of any lessor defaults of which it is aware at the time.
	(5)		ABM Facilities, Equipment and Software. Supplier shall vacate the ABM Facilities and return to ABM, if not previously returned, all ABM owned Equipment, ABM leased Equipment, ABM Owned Software and ABM licensed Software, in condition at least as good as the condition thereof on the Commencement Date, ordinary wear and tear excepted. Such Equipment and Software shall be returned at the expiration or termination date or the completion of any Services requiring such Equipment and Software requested by ABM under Section 4.3(b)(8), whichever is later. Supplier shall vacate the ABM Facilities and remove, unless otherwise required under this Agreement, all Supplier owned Equipment, Supplier leased Equipment, Supplier Owned Software, Supplier licensed Third Party Software and other Supplier property within fourteen (14) days after the expiration date, termination date or date upon which such space is no longer required to perform the Services or Termination Assistance Services requested by ABM, whichever is later.
	(6)		Supplier Subcontracts and Third Party Contracts. Supplier shall inform ABM of subcontracts or Third Party Contracts primarily used by Supplier, Supplier Subcontractors or Supplier Affiliates to perform the Services. Subject to Sections 6.4(c), 6.5(d), and 6.6(c), Supplier shall, at ABM’s request, cause any such Subcontractors, Supplier Affiliates, or third party contractors to permit ABM or its designee to assume prospectively any or all such contracts or to enter into new contracts with ABM or its designee on substantially the same terms and conditions, including price. Supplier shall so assign the designated subcontracts and Third Party Contracts to ABM or its designee as of the expiration or termination date or the completion of any Termination Assistance Services requiring such subcontracts or Third Party Contracts requested by ABM under Section 4.3(b)(8), whichever is later. Unless otherwise agreed by ABM, there shall be no charge or fee imposed on ABM or its designee by Supplier or its Subcontractors, Affiliates or third party contractors for such assignment. Supplier shall (i) represent and warrant that to its knowledge, it is not in default under such subcontracts and Third Party Contracts, (ii) represent and warrant that all payments thereunder through the date of assignment are current, and (iii) notify ABM of any Subcontractor or third party contractors defaults with respect to such subcontracts and Third Party Contracts of which it is aware at the time.
	(7)		Other Subcontracts and Third Party Contracts. In addition to its obligations under Section 4.3(b)(6), Supplier shall make available to ABM or its designee, pursuant to reasonable terms and conditions, any Subcontractor or third party services then being utilized by Supplier in the performance of the Services. Supplier shall retain the right to utilize any such Subcontractor or third party services in connection with the performance of services for any other Supplier customer. ABM and the Eligible Recipients shall retain the right to contract directly with any Subcontractor or third party previously utilized by Supplier to perform any Services or to assume Supplier’s contract with such Subcontractor or third party to the extent provided in Section 4.3(b)(6).
	(8)		Extension of Services. For a period of twelve (12) months following the expiration or termination date, Supplier shall provide to the Eligible Recipient(s), at ABM’s request, any or all of the Services being performed by Supplier prior to the expiration or termination date, including those Services described in Section 4.1 and Schedule E; provided that ABM may extend the period for the provision of such Services for up to six

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			(6) additional months in accordance with Section 4.3(a)(2). ABM shall deliver notice to Supplier specifying the Services to be provided by Supplier pursuant to this Section 4.3(b)(8) and the period for which such Services are expected to be required on or before the following: (i) ninety (90) days prior to the expiration of the Term or any extension period in the case of contract expiration; (ii) sixty (60) days prior to the termination date in the case of a termination pursuant to Sections 20.2, 20.3 or 20.4; or (iii) within thirty (30) days after delivery of the notice of termination in all other cases; provided that, subject to Section 4.3(a)(2), ABM may extend or shorten the period for the performance of such Services by delivering notice to Supplier at least thirty (30) days prior to the scheduled completion date for such Services. To the extent ABM requests such Services, ABM will pay Supplier the Charges specified in Schedule J that ABM would have been obligated to pay Supplier for such Services if this Agreement had not yet expired or been terminated. To the extent ABM requests a portion (but not all) of the Services included in a particular Charge, the amount to be paid by ABM will be equitably adjusted in proportion to the portion of the Services included in the applicable Charge that Supplier will not be providing or performing.
	(9)		Rates and Charges. Except as provided in Section 4.3(b)(8), if ABM requests that Supplier provide or perform Termination Assistance Services in accordance with this Agreement, ABM shall pay Supplier the rates and charges specified in Schedule J for the additional Supplier Personnel or resources required to perform such Termination Assistance Services. To the extent rates and charges for such Supplier Personnel or resources are not specified in Schedule J, ABM shall pay Supplier a negotiated fee, which shall not exceed Supplier’s then-current commercially available rates. If the Termination Assistance Services requested by ABM can be provided by Supplier using Supplier Personnel and resources already assigned to ABM (and such personnel possess the skills required to perform the requested work), there will be no additional charge to ABM for such Termination Assistance Services. If the Termination Assistance Services requested by ABM cannot be provided by Supplier using personnel and resources already assigned to ABM without impacting Supplier’s ability to meet the Service Levels and its other obligations under the Agreement, ABM, in its sole discretion, may forego or delay any work activities or temporarily or permanently adjust the work to be performed by Supplier, the schedules associated therewith or the Service Levels to permit the performance of such Termination Assistance Services using such personnel or resources.
	(10)		Proprietary Communications Network. If Supplier uses a proprietary communications network to provide Services to ABM or the Eligible Recipients, then for a period of no more than eighteen (18) months following the expiration or termination date, ABM may request that Supplier continue to provide such proprietary communications network and other Network Services at the rates, and subject to the terms and conditions, set forth in this Agreement.

(c)

Survival of Terms. Pursuant to Section 21.10, this Section 4.3 shall survive termination/expiration of the Term.

4.4

Use of Third Parties.

(a)

Right of Use. Subject to Section 13(d) of Schedule J, nothing in this Agreement shall be construed as a requirements contract and this Agreement shall not be interpreted to prevent ABM or any Eligible Recipient from obtaining from third parties (“ABM Third Party Contractors”), or providing to itself, any or all of the Services described in this Agreement or any other services. Nor shall anything in this Agreement be construed or interpreted as limiting ABM’s right or ability during the Term to add or delete Eligible Recipients or to increase or decrease its demand for Services. To the extent ABM or an Eligible Recipient obtains from ABM Third Party Contractors, or provides to itself, any of the Services in accordance with the terms of this

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Agreement, the Charges will be equitably adjusted downward in accordance with Schedule J. Similarly, to the extent ABM adds or deletes Eligible Recipients or increases or decreases its demand for Services, the amount to be paid to Supplier by ABM will be adjusted in accordance with Schedule J and the rates specified therein.

	(b)		Supplier Cooperation. Supplier shall reasonably cooperate with and work in good faith with ABM or ABM Third Party Contractors as described in Schedule E or requested by ABM and at no additional charge to ABM. Such cooperation may include: (i) timely providing access to any facilities being used to provide the Services, as reasonably necessary for ABM personnel or ABM Third Party Contractors to perform the work assigned to them; (ii) timely providing reasonable electronic and physical access to the business processes and associated Equipment, Software and/or Systems to the extent necessary and appropriate for ABM personnel or ABM Third Party Contractors to perform the work assigned to them; (iii) timely providing written requirements, standards, policies or other documentation for the business processes and associated Equipment, Software or Systems procured, operated, supported or used by Supplier in connection with the Services; or (iv) any other cooperation or assistance reasonably necessary for ABM personnel or ABM Third Party Contractors to perform the work in question. ABM personnel and ABM Third Party Contractors shall comply with Supplier’s reasonable security and confidentiality requirements, and shall, to the extent performing work on Software, Equipment or Systems for which Supplier has operational responsibility, comply with Supplier’s reasonable standards, methodologies, and procedures.
	(c)		Notice by Supplier. Supplier shall expeditiously notify ABM when it becomes aware that an act or omission of an ABM Third Party Contractor will cause, or has caused, a problem or delay in providing the Services, and shall use commercially reasonable efforts to work with ABM and the ABM Third Party Contractor to prevent or circumvent such problem or delay. Supplier shall cooperate with ABM and ABM Third Party Contractors to resolve differences and conflicts arising between the Services and other activities undertaken by ABM or ABM Third Party Contractors.

4.5

Companion Agreements

	(a)		At ABM’s request, the terms of this Master Agreement shall be incorporated by reference into individual Companion Agreements, which shall be executed by International Business Machines Corporation or an Affiliate of International Business Machines Corporation and ABM Industries Incorporated or an Eligible Recipient. Unless otherwise agreed, the form of the Companion Agreement shall be as set forth in Schedule W. All Services shall be provided by International Business Machines Corporation or the applicable Affiliate of International Business Machines Corporation pursuant to this Master Agreement or an executed Companion Agreement. Unless and to the extent an individual Companion Agreement expressly provides otherwise, each Companion Agreement shall incorporate by reference the terms and conditions of this Master Agreement and shall not be construed as altering or superseding the rights and obligations of the Parties under this Master Agreement. If requested by ABM, the Parties will execute a Companion Agreement in a form acceptable to each Party.
	(b)		The Supplier Account Manager (and his or her designees(s)) shall remain responsible for the administration of this Master Agreement and the individual Companion Agreements on a day-to-day basis on behalf of Supplier.
	(c)		The ABM Relationship Manager (and his or her designees(s)) shall remain responsible for the administration of this Master Agreement and the individual Companion Agreements on a day-to-day basis on behalf of ABM and the Eligible Recipients.

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5.		REQUIRED CONSENTS
5.1		Supplier Responsibility.
		At no additional cost to ABM, Supplier shall undertake all administrative activities necessary to obtain all Required Consents. At Supplier’s request, ABM will cooperate with Supplier in obtaining the Required Consents by executing certain ABM approved written communications and other documents prepared or provided by Supplier. With ABM’s approval, Supplier shall exercise for the benefit of ABM any rights Supplier has to utilize or transfer license rights or other applicable rights under Supplier’s existing third party licenses, leases or contracts.

5.2		Financial Responsibility.
		Supplier shall pay all transfer, relicensing or termination fees or expenses associated with obtaining any Required Consents or, subject to Section 5.4, terminating any licenses or agreements as to which Supplier is unable to obtain such Required Consents (provided that, with respect to Third Party Software, Third Party Contracts or Equipment leases procured by ABM after the Effective Date, ABM shall be responsible for obtaining any Required Consents and paying any fees or expenses associated therewith in connection with its procurement of such license or agreement).

5.3		Contingent Arrangements.
		If, despite using commercially reasonable efforts, Supplier is unable to obtain a Required Consent, then, unless and until such Required Consent is obtained, Supplier shall use commercially reasonable efforts to determine and adopt, subject to ABM’s reasonable prior approval, such alternative approaches as are necessary and sufficient to provide the Services without such Required Consent. If such alternative approaches are required for a period longer than ninety (90) days following the Commencement Date, the Parties shall equitably adjust the terms and reduce the prices specified in this Agreement to reflect any additional costs being incurred by ABM and any Services not being received by ABM and the Eligible Recipients.

5.4		Failure to Obtain Required Consents.
		If, despite using commercially reasonable efforts for a reasonable period of time, Supplier is unable to obtain a Required Consent, the Parties shall take such actions and execute and deliver such documents as may be necessary to cause the Parties to realize the practical effects of the allocation of responsibilities intended to be effected by this Agreement. If, however, Supplier fails to obtain any Required Consent within ninety (90) days of the Commencement Date and such failure has a material adverse impact on the use or enjoyment of the Services by ABM or the Eligible Recipients, ABM may terminate this Agreement or any affected portions thereof without payment of any Termination Charges. Except as otherwise expressly provided herein, the failure to obtain any Required Consent will not relieve Supplier of its obligations under this Agreement and Supplier will not be entitled to any additional compensation or reimbursement amounts in connection with obtaining or failing to obtain any Required Consent or implementing any alternative approach.

6.		FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES
6.1		Service Facilities

(a)

Service Facilities.

(i)

The Services shall be provided at or from (i) the ABM Facilities described on Schedule O.1, (ii) the Supplier Facilities described on Schedule O.2 (as such Schedule is amended

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			from time to time with ABM’s prior approval), each of which must be approved in advance by ABM, or (iii) any other service location approved by Supplier and ABM. Supplier shall provide ABM with reasonable notice of its intention to relocate the provision of a Service to a new or different Supplier Facility not identified on Schedule O.2 and shall obtain ABM’s approval prior to doing so (provided that Supplier shall not be obligated to obtain ABM’s approval with respect to Supplier Facilities to which Section 6.1(a)(ii) applies). Supplier shall notify ABM in advance of any new or additional Service Taxes for which ABM would be financially responsible associated with the provision of Services from new or changed service location(s). ABM shall be entitled to withhold approval of any such new or changed service location in its sole discretion if the delivery of Services from such new or changed service location would (i) result in new or additional Services Taxes for which ABM would be financially responsible under this Agreement (unless Supplier assumes financial responsibility for such new or additional Service Taxes), (ii) result in the delivery of Services from locations or by personnel outside the United States, or (iii) have an adverse impact or require changes as described in Section 9.6(c).
	(ii)		Notwithstanding Section 6.1(a)(i) above, Supplier may relocate Services from an approved Supplier Facility in the United States to another Supplier Facility in the United States, provided: (A) Supplier provides notice to ABM at least sixty (60) days prior to the effective date of such relocation; (B) the Supplier Facility to which the Services are to be relocated is comparable or superior in all material respects to the approved Supplier Facility from which such Services had previously been performed; (C) the Supplier Facility to which the Services are to be relocated complies with all relevant requirements and Supplier obligations under this Agreement; (D) the Supplier Facility to which the Services are to be relocated presents no greater risk from a disaster recovery or business continuity perspective; (E) Supplier promptly provides ABM with information and documentation demonstrating that such Supplier Facility complies with the criteria specified in Subsections (B), (C) and (D) and provides ABM with a reasonable opportunity to independently verify such compliance; (F) Supplier remedies any known non-compliance with the criteria specified in Subsections (B), (C) and (D) prior to relocating the Services in question; and (G) Supplier agrees to be financially responsible for any additional costs, taxes or expenses related to or resulting from such relocation, including any costs or expenses (e.g., audit or Sarbanes-Oxley compliance costs) incurred or experienced by ABM or any Eligible Recipient as a result of such relocation; provided that, within thirty (30) days after ABM has been notified of the potential relocation, ABM notifies Supplier of any ABM controlled costs and expenses (excluding any taxes) that will be incurred or experienced by ABM or any Eligible Recipient as a result of such relocation.

(b)

ABM Facilities. ABM shall provide Supplier with the use of and access to the ABM Facilities (or equivalent space) described in Schedule O.1 for the periods specified therein solely as necessary for Supplier to perform its obligations under this Agreement. All ABM owned or leased assets provided for the use of Supplier under this Agreement shall remain in ABM Facilities unless ABM otherwise agrees. In addition, all improvements or modifications to ABM Facilities requested by Supplier shall be (i) subject to review and approval in advance by ABM, (ii) in compliance with ABM’s then-current policies, standards, rules and procedures, and (iii) performed by and through ABM at then current industry commercial rates and at Supplier’s expense. Supplier acknowledges and agrees that the facilities to be provided by ABM are sufficient for performing the Services and for satisfying Supplier’s responsibilities under this Agreement. THE ABM FACILITIES ARE PROVIDED BY ABM TO SUPPLIER ON AN AS-IS, WHERE-IS BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ABM EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE ABM FACILITIES, OR THEIR CONDITION OR SUITABILITY FOR USE BY SUPPLIER.

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	(c)		Furniture, Fixtures and Equipment. At the ABM Facilities described in Schedule O.1, ABM shall provide office space and office furniture for up to the number of Supplier Personnel specified in Schedule O.1 for the period(s) specified in Schedule O.1. The office space and office furniture provided by ABM for the use of Supplier Personnel will be generally comparable to the office space and office furniture provided to (i) the Transitioned Employees prior to the Commencement Date or (ii) the then-standard office space and office furniture provided to similarly situated ABM employees. Other than as provided above and in Schedule O.1, Supplier shall be financially responsible for providing all other office space, office furniture and fixtures needed by Supplier or Supplier Personnel (including Transitioned Employees) to provide the Services, and for all upgrades, replacements and additions to such office furniture or fixtures; provided that such office furniture and fixtures must be approved in advance by ABM and meet ABM’s then-current standards; and provided further that Supplier shall give reasonable consideration to the purchase and use of surplus ABM furniture and fixtures to the extent available. Notwithstanding the foregoing, to the extent Supplier demonstrates that unanticipated increases in the volumes of certain Services can be reasonably met only by locating additional Supplier Personnel at certain ABM Facilities and that such additional Supplier Personnel cannot be reasonably accommodated within the space in such facilities then assigned to Supplier, ABM shall use commercially reasonable efforts to provide Supplier with additional office space and office furniture in such ABM Facilities to the extent vacant space and excess furniture are then available in such ABM Facilities; provided that Supplier shall use commercially reasonable efforts to minimize the extent to which additional office space and office furniture are required and the cost to ABM associated therewith. Supplier Personnel using the office facilities provided by ABM will be accorded reasonable access to the communications wiring in such facilities (including fiber, copper and wall jacks and reasonable access to the ABM data networks, subject to Section 6.1(d)) and the use of certain shared office equipment and services, such as photocopiers, local and long distance telephone service for ABM-related calls, telephone handsets, mail service, office support service (e.g., janitorial), heat, light, and air conditioning; provided that such access and usage shall be solely for and in connection with the provision of Services by such Supplier Personnel; and provided further that Supplier shall reimburse ABM for the additional incremental costs incurred by ABM or the Eligible Recipients if and to the extent Supplier’s technology solution, service delivery model and/or inefficiency cause its usage or consumption of such resources to exceed verifiable historical levels. Subject to Section 6.5(a), Supplier shall be responsible for providing all other office related equipment and services needed by Supplier or Supplier Personnel at such ABM Facilities to provide the Services, and for upgrades, improvements, replacements and additions to such equipment or services.
	(d)		Supplier’s Responsibilities Regarding the ABM Network. To the extent any Equipment provided or used by Supplier or Supplier Personnel is connected directly to the network(s) of ABM or any Eligible Recipient, such Equipment shall be (i) subject to review and approval in advance by ABM, (ii) in compliance with ABM’s then-current security policies, architectures, standards, rules and procedures, and (iii) in compliance with ABM’s then-current hardware and software specifications. Supplier shall not install or permit the installation of any other software on such Equipment without ABM’s prior approval.
	(e)		Supplier’s Responsibilities. Except as provided in Sections 6.1(a), (b) and (c) and Section 6.5, Supplier shall be responsible for providing all furniture, fixtures, Equipment, space and other facilities required to perform the Services and all upgrades, improvements, replacements and additions to such furniture, fixtures, Equipment, space and facilities. Without limiting the foregoing, Supplier shall (i) provide all maintenance, site management, site administration and similar services for the Supplier Facilities, and (ii) provide uninterrupted power supply services for the Software, Equipment, Systems and facilities as described in Schedule O.2.
	(f)		Physical Security. Except as provided below, ABM shall be responsible for physical security at the ABM Facilities listed in Schedule O.1; provided that Supplier will be administratively responsible for access and control of the areas that Supplier is using in performing the Services and Supplier shall not permit any person to have access to, or control of, any such area unless such

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			access or control is permitted in accordance with control procedures approved by ABM. Supplier shall be solely responsible for compliance by Supplier Personnel with such control procedures, including obtaining advance approval to the extent required.
			Notwithstanding the foregoing, Supplier shall be responsible for physical security at ABM Facilities used exclusively by Supplier (i.e., the ABM data center, alternate disaster recovery site and tape vault); provided that ABM shall retain responsibility for the provision of any security guards assigned to such ABM Facilities and the maintenance of the key card systems, surveillance cameras and other security devices installed at such ABM Facilities.
	(g)		Standards, Requirements and Procedures at ABM Facilities. Except as provided in Section 6.1(f), Supplier shall adhere to and enforce, and cause Supplier Personnel to adhere to and enforce, the operational, safety and security standards, requirements and procedures described in the applicable lease and/or then in effect at the ABM Facilities, as such standards, requirements and procedures may be modified from time to time by ABM and communicated to Supplier in accordance with Section 6.3(a). Supplier shall regularly advise ABM of other known operational, safety and security practices, procedures and safeguards where those practices, procedures and safeguards are of a higher standard than those contemplated in this Agreement.
	(h)		Employee Services. Subject to applicable security requirements, ABM will permit Supplier Personnel to use certain employee facilities (e.g., designated parking facilities, cafeteria, and common facilities) at the ABM Facilities that are generally made available to the employees and contractors of ABM or the Eligible Recipients. The employee facilities in question and the extent of Supplier Personnel’s permitted use shall be specified in writing by ABM and shall be subject to modification without advance notice in ABM’s sole discretion. Supplier Personnel will not be permitted to use employee facilities designated by ABM for the exclusive use of certain ABM or Eligible Recipient employees and will not be entitled to the provision or reimbursement of paid parking.
	(i)		Use of ABM Facilities. Unless Supplier obtains ABM’s prior written agreement, which may be withheld by ABM in its sole discretion, Supplier shall use the ABM Facilities, and the Equipment and Software located therein, only to provide the Services to ABM and the Eligible Recipients. ABM reserves the right to relocate an ABM Facility from which the Services are then being provided by Supplier to another geographic location; provided that, in such event, ABM will provide Supplier with comparable space in the new location. In such event, ABM shall reimburse Supplier for any reasonable incremental Out-of-Pocket Expenses incurred by Supplier in moving to the new location and/or making any facility or network upgrades or changes required to perform the Services from such location; provided that Supplier notifies ABM of such incremental expenses, obtains ABM’s approval prior to incurring such expenses; and uses commercially reasonable efforts to minimize such expenses.
			ABM also reserves the right to direct Supplier to cease using all or part of the space in an ABM Facility from which the Services are then being provided by Supplier and to thereafter use such space for its own purposes. In such event, ABM shall reimburse Supplier for any reasonable incremental Out-of-Pocket Expenses incurred by Supplier in leasing substitute space, moving to the new location and/or making any facility or network upgrades or changes required to perform the Services from such location; provided that such direction is not expressly contemplated in this Agreement and that Supplier notifies ABM of such incremental expenses, obtains ABM’s approval prior to incurring such expenses, and uses commercially reasonable efforts to minimize such expenses.
			In both cases, Supplier shall be relieved of responsibility if and to the extent Supplier is unable to provide the Services in accordance with the Service Levels during the actual relocation of Supplier’s operations; provided that such relocation is not expressly contemplated in this Agreement as of the Effective Date and that Supplier (1) uses commercially reasonable efforts to

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notify ABM in advance of its inability to perform during such relocation, (2) gives ABM a reasonable opportunity to address Supplier’s concerns and thereby avoid such Supplier non-performance, (3) identifies and pursues commercially reasonable means to avoid or mitigate the impact of such relocation and (4) uses commercially reasonable efforts to perform notwithstanding such relocation.

	(j)		Conditions for Return. When the ABM Facilities are no longer to be used by Supplier as contemplated by Section 6.1 or are otherwise no longer required for performance of the Services, Supplier shall notify ABM as soon as practicable and shall vacate and return such ABM Facilities (including any improvements to such facilities made by or at the request of Supplier) to ABM in substantially the same condition as when such facilities were first provided to Supplier, subject to reasonable wear and tear.
	(k)		No Violation of Laws. Supplier shall (i) treat, use and maintain the ABM Facilities in a reasonable manner, and (ii) ensure that neither Supplier nor, subject to Section 9.12, any of its Subcontractors commits, and use reasonable efforts to ensure that none of its business visitors or invitees commits, any act in violation of any Laws in such Supplier occupied ABM Facility or any act in violation of ABM’s insurance policies or in breach of ABM’s obligations under the applicable real estate leases in such Supplier occupied ABM Facilities (in each case, to the extent Supplier has received notice of such insurance policies or real estate leases or should reasonably be expected to know of such obligations or limitations).

6.2		Use of Supplier Facilities.
		During the Term, Supplier will provide to ABM at no charge (i) reasonable periodic use of Supplier facilities at Supplier sites where the Services are being performed and (ii) access to reasonable work/conference space at Supplier sites where the Services are being performed, for the conduct of ABM’s business directly related to Supplier’s performance of the Services.

6.3

ABM Rules/Employee Safety.

	(a)		ABM Rules and Compliance. In performing the Services and using the ABM Facilities, Supplier shall observe and comply with all ABM policies, rules and regulations applicable to ABM Facilities or the provision of the Services (and all additions or modifications thereto), including those set forth on Schedule O.4 and those applicable to specific ABM Sites (collectively, “ABM Rules”). Supplier shall be deemed to have notice of ABM Rules (and additions or modifications thereto) communicated directly to Supplier or Supplier Personnel, disclosed to Supplier or Supplier Personnel in writing, conspicuously posted at an ABM Site, or communicated by any other means generally used by ABM to disseminate such information to its employees or contractors (including ABM Rules communicated to Supplier prior to the Effective Date and to Transitioned Employees prior to hiring by Supplier). Supplier shall be responsible for the promulgation and distribution of ABM Rules to Supplier Personnel as and to the extent necessary and appropriate.
	(b)		Safety and Health Compliance. Supplier and Supplier Personnel shall familiarize themselves with the premises and operations at each ABM Site or ABM Facility at or from which Services are rendered and the ABM Rules applicable to each such Site or Facility. Supplier and Supplier Personnel shall observe and comply with the OSHA regulations, all applicable safety and environmental Laws, all industrial insurance, security and health regulations, and all other Laws applicable to the use of each ABM Facility or Site or the provision of the Services. Supplier and Supplier Personnel also shall observe and comply with all ABM Rules with respect to safety, health, security, industrial insurance, and the environment and shall take commercially reasonable precautions to avoid injury, property damage, spills or emissions of hazardous substances, materials or waste, and other dangers to persons, property or the environment. To the extent

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required by ABM, Supplier Personnel shall receive prescribed training prior to entering certain ABM Sites or Facilities.

6.4

Software.

	(a)		Financial Responsibility. Supplier shall be responsible for any third party fees or expenses on or after the Commencement Date associated with the provision of the Services described in this Agreement with respect to Software and related Third Party Contracts for which Supplier is financially responsible under Schedules E and J.1. Supplier also shall be responsible for any third party fees or expenses on or after the Commencement Date associated with new, substitute or replacement Software or related Third Party Contracts (including upgrades, enhancements, new versions or new releases of such Software) for which Supplier is financially responsible under Schedules E and J.1. With respect to Software licenses and related Third Party Contracts that are transferred to Supplier by ABM or for which Supplier otherwise assumes financial responsibility under this Agreement, including those listed on Schedules F.3 and F.4, Supplier shall (i) pay all amounts becoming due under such licenses or related Agreements, and all related expenses, for periods on or after the Commencement Date and which are not related to periods prior to the Commencement Date (e.g., late fees, penalties or other amounts relating to payments due prior to the Commencement Date) which remain ABM’s responsibility; (ii) rebate to ABM any prepayment of such amounts in accordance with Section 11.10(a); (iii) pay all modification, termination, cancellation, late payment, renewal or other fees, penalties, charges, interest or other expenses that relate to periods on or after the Commencement Date (except to the extent that such fees, penalties, charges, interest or other expenses directly result from the acts or omissions of ABM in contravention of its obligations under this Agreement); (iv) pay all costs associated with the transfer of such licenses and contracts to Supplier, including all taxes associated with such transfer; and (v) be responsible for complying with Supplier’s duties and obligations under such licenses or contracts on or after the Commencement Date and for curing any failure to so comply (except to the extent that such failure directly results from the acts or omissions of ABM in contravention of its obligations under this Agreement).
	(b)		Operational Responsibility. With respect to Software and related Third Party Contracts for which Supplier is operationally responsible under Schedules E and J.1, Supplier shall be responsible for (i) the evaluation, procurement, testing, installation, rollout, use, support, management, administration, operation and maintenance of such Software and related Third Party Contracts; (ii) the evaluation, procurement, testing, installation, rollout, use, support, management, administration, operation and maintenance of new, substitute or replacement Software and related Third Party Contracts (including upgrades, enhancements, new versions or new releases of such Software); (iii) the performance, availability, and operational reliability of the Application Software and the performance, availability, operational reliability, compatibility and interoperability of all other Software and Third Party Contracts, each in accordance with this Agreement, including the Service Levels and Change Management; (iv) the compliance with and performance of all operational, administrative and contractual obligations specified in such licenses and contracts; (v) the administration and exercise as appropriate of all rights available under such licenses and agreements; and (vi) the payment of any fees, penalties, charges, interest or other expenses due and owing under such Software Licenses and related Third Party Contracts that are incurred, caused by or result from Supplier’s failure to comply with or perform its obligations under this Section 6.4(b) (except to the extent that such failure directly results from the acts or omissions of ABM in contravention of its obligations under this Agreement).
	(c)		Rights Upon Expiration/Termination. With respect to all Third Party Software and related Third Party Contracts for which Supplier is financially responsible under Schedule E or J.1, Supplier shall use commercially reasonable efforts to (i) obtain for ABM (or, at ABM’s direction, its designee) the license, sublicense, assignment and other rights specified or referenced in Sections 4.3(b)(3) and 14.6, (ii) ensure that such license, sublicense, assignment and other rights are at least broad enough to permit ABM (or, at ABM’s direction, its designee) to use such Third

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Party Software and related Third Party Contracts to provide for ABM and the Eligible Recipients, or have provided for them by third party contractors, services similar to the Services, and for ABM and the Eligible Recipients to receive such services; (iii) ensure that, following the termination of all or part of the Services to an Eligible Recipient no longer Controlled by or under common Control with ABM, any such license, sublicense, assignment or other rights relating to Third Party Software or related Third Party Contracts used exclusively by or for such Eligible Recipient may be granted, at ABM Service’s direction, directly to such Eligible Recipient, (iv) ensure that the granting of such license, sublicense, assignment and other rights is not subject to subsequent third party approval or the payment by ABM (or, at ABM’s direction, its designee) of license or transfer fees (other than regular periodic license fees for periods after the date of transfer), (v) ensure that the terms, conditions and prices applicable to ABM (or, at ABM’s direction, its designee) following expiration or termination are no less favorable than those otherwise applicable to Supplier, and at least sufficient for the continuation of the activities comprising the Services, and (vi) ensure that neither the expiration/termination of this Agreement nor the assignment of the license or contract will trigger less favorable terms, conditions or pricing. If Supplier is unable to obtain any such rights and assurances, it shall notify ABM in advance and shall not use such Software or Third Party Contracts without ABM’s approval (and absent such approval, Supplier’s use of any such Software or Third Party Contract shall obligate Supplier to procure, at no additional cost to ABM, the license, sublicense, assignment and other rights described above for ABM (or, at ABM’s direction, its designee) upon expiration or termination). If ABM consents to Supplier’s use of specific Third Party Software licenses or Third Party Contracts under these circumstances, such consent will be deemed to be conditioned on Supplier’s commitment to use commercially reasonable efforts to cause such third party to agree at expiration or termination of this Agreement or the completion of Termination Assistance Services to permit ABM (or, at ABM’s direction, its designee) to assume prospectively the license or contract in question or to enter into a new license or contract with ABM (or, at ABM’s direction, its designee) on substantially the same terms and conditions, including price. If ABM consents to Supplier’s use of specific Third Party Software licenses or Third Party Contracts under these circumstances, such Third Party Software licenses or Third Party Contracts will be added to Schedule V.

	(d)		Evaluation of Third Party Software. In addition to its obligations under Section 6.4(a) and (b) and in order to facilitate ABM’s control of architecture, standards and plans pursuant to Section 9.5, Supplier shall use commercially reasonable efforts to assist ABM in evaluating any Third Party Software selected by or for ABM to determine whether such Software will adversely affect ABM’s environment and/or Supplier’s ability to provide the Services. Supplier shall complete and report the results of such evaluation to ABM within thirty (30) days of its receipt of ABM’s request; provided, that Supplier shall use commercially reasonable efforts to respond more quickly in the case of a pressing business need or an emergency situation.
	(e)		Benefits Pass-Through. With respect to all products and services procured by Supplier for ABM on a cost-plus, cost-reimbursement or Pass-Through Expense basis during the course of performing the Services, Supplier shall use commercially reasonable efforts to pass through to ABM all benefits offered by the manufacturers and/or suppliers of such products and services (including, as applicable, all warranties, refunds, credits, rebates, discounts, training, technical support and other consideration offered by such manufacturers and suppliers) except to the extent otherwise agreed by ABM. If Supplier is unable to pass through any such benefit to ABM, it shall notify ABM in advance and shall not purchase such product or service without ABM’s prior written approval.

6.5

Equipment.

(a)

ABM Provided Equipment. ABM shall provide Supplier with the use of the ABM owned and leased Equipment identified on Schedule O.3 (collectively, the “ABM Provided Equipment”) for the periods specified in such Schedule solely for and in connection with the provision of the

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			Services. Notwithstanding the foregoing, except as provided in this Section 6.5(a) and Sections 6.1(a), (b) and (c), Supplier shall be responsible for providing all Equipment required to perform the Services and all Upgrades, improvements, replacements and additions thereto in accordance with the applicable refresh schedule. Upon the expiration of the period specified in Schedule O.3 for each item of ABM Provided Equipment (or when such ABM Provided Equipment is no longer required by Supplier for the performance of the Services), Supplier shall promptly return such ABM Provided Equipment to ABM in substantially the same condition (as it may have been modified or improved by Supplier with ABM’s approval) as when such ABM Provided Equipment was first provided to Supplier, subject to reasonable wear and tear. THE ABM PROVIDED EQUIPMENT IS PROVIDED BY ABM TO SUPPLIER ON AN AS-IS, WHERE-IS BASIS. ABM EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE ABM PROVIDED EQUIPMENT, OR ITS CONDITION OR SUITABILITY FOR USE BY SUPPLIER TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
	(b)		Financial Responsibility. Supplier shall be responsible for third party fees or expenses on or after the Commencement Date associated with Equipment, Equipment leases and related Third Party Contracts for which Supplier is financially responsible under Schedules E and J.1. Supplier also shall be responsible for any third party fees or expenses relating to periods on or after the Commencement Date associated with new, substitute or replacement Equipment, Equipment leases or related Third Party Contracts (including upgrades, enhancements or new releases of such Equipment) for which Supplier is financially responsible under Schedules E and J.1. With respect to Equipment, Equipment Leases and related Third Party Contracts that are transferred to Supplier by ABM or for which Supplier otherwise assumes responsibility under this Agreement, including the Equipment Leases and Third Party Contracts listed on Schedules F.2 and F.3, Supplier shall (i) pay all amounts becoming due with respect to such Equipment, leases or agreements, and all related expenses, for periods on or after the Commencement Date and which are not related to periods prior to the Commencement Date (e.g., late fees, penalties or other amounts relating to payments due prior to the Commencement Date) which remain ABM’s responsibility; (ii) rebate to ABM any prepayment of such amounts in accordance with Section 11.10(a); (iii) pay all modification, termination, cancellation, late payment, renewal or other fees, penalties, charges, interest or other expenses that relate to periods on or after the Commencement Date (except to the extent that such fees, penalties, charges, interest or other expenses directly result from the acts or omissions of ABM in contravention of its obligations under this Agreement); (iv) pay all costs associated with the transfer of such Equipment leases and contracts to Supplier, including all taxes associated with such transfer; and (v) be responsible for complying with Supplier’s duties and obligations with respect to such Equipment, leases or agreements on or after the Commencement Date and for curing any failure to so comply (except to the extent that such failure directly results from the acts or omissions of ABM in contravention of its obligations under this Agreement).
	(c)		Operational Responsibility. With respect to Equipment, Equipment leases and related Third Party Contracts for which Supplier is operationally responsible under Schedules E and J.1, Supplier shall be responsible for (i) the evaluation, procurement, testing, installation, rollout, use, support, management, administration, operation and maintenance of such Equipment, Equipment leases and related Third Party Contracts; (ii) the evaluation, procurement, testing, installation, rollout, use, support, management, administration, operation and maintenance of new, substitute or replacement Equipment, Equipment leases; (iii) the performance of such Third Party Contracts and the performance, availability, reliability, compatibility and interoperability of such Equipment, each in accordance with this Agreement, including the Service Levels and Change Management; (iv) the compliance with and performance of all operational, administrative and contractual obligations with respect to such Equipment, leases and contracts, including nondisclosure obligations; (v) the administration and exercise as appropriate of all rights available with respect to such Equipment or agreements; and (vi) the payment of any fees, penalties, interest or other expenses due and owing under such contracts that are incurred, caused by or result from Supplier’s failure to comply with or perform its obligations under this Section 6.5(c) (except to the extent

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that such failure directly results from the acts or omissions of ABM in contravention of its obligations under this Agreement).

	(d)		Rights Upon Expiration/Termination. With respect to all Equipment and related Third Party Contracts for which Supplier is financially responsible under Schedule E or J.1, Supplier shall use commercially reasonable efforts to (i) obtain for ABM (or, at ABM’s direction, its designee) the rights specified in Section 4.3(b)(4), (ii) ensure that such rights are at least broad enough to permit ABM (or, at ABM’s direction, its designee) to use such Equipment and related Third Party Contracts to provide for ABM and the Eligible Recipients, or have provided for them by third party contractors, services similar to the Services, and for ABM and the Eligible Recipients to receive such services; (iii) ensure that, following the termination of all or part of the Services to an Eligible Recipient no longer Controlled by or under common Control with ABM, any such rights relating to Equipment or related Third Party Contracts used exclusively by or for such Eligible Recipient may be granted, at ABM Service’s direction, directly to such Eligible Recipient, (iv) ensure that the granting of such rights is not subject to subsequent third party approval or the payment by ABM (or, at ABM’s direction, its designee) of transfer fees, and (v) ensure that the terms, conditions and prices applicable to ABM (or, at ABM’s direction, its designee) following expiration or termination of this Agreement are no less favorable than those otherwise applicable to Supplier and at least sufficient for the continuation of the activities comprising the Services. If Supplier is unwilling or unable to offer or obtain any such rights and assurances, it shall notify ABM in advance and shall not use such Equipment, Equipment leases or related Third Party contract without ABM’s prior approval (and absent such approval, Supplier’s use of any such Equipment, Equipment leases or related Third Party Contract shall obligate Supplier to procure, at no additional cost to ABM, the rights described above for ABM (or, at ABM’s direction, its designee) upon expiration or termination). If ABM consents to Supplier’s use of specific Equipment leases or Third Party Contracts under these circumstances, such consent will be deemed to be conditioned on Supplier’s commitment to use commercially reasonable efforts to cause such third party to agree at expiration or termination of this Agreement or the completion of Termination Assistance Services to permit ABM (or, at ABM’s direction, its designee) to assume prospectively the lease or contract in question or to enter into a new lease or contract with ABM (or, at ABM’s direction, its designee) on substantially the same terms and conditions, including price. If ABM consents to Supplier’s use of specific Equipment leases or Third Party Contracts under these circumstances, such Equipment lease or Third Party Contracts will be added to Schedule V.
	(e)		Evaluation of Third Party Equipment. In addition to its obligations under Section 6.5(b) and (c) and in order to facilitate ABM’s control of architecture, standards and plans pursuant to Section 9.5, Supplier shall use commercially reasonable efforts to evaluate any Equipment selected by or for ABM to allow ABM to determine whether such Equipment will adversely affect ABM’s environment and/or Supplier’s ability to provide the Services. Supplier shall complete and report the results of such evaluation to ABM within thirty (30) days of its receipt of ABM’s request; provided, that Supplier shall use commercially reasonable efforts to respond more quickly in the case of a pressing business need or an emergency situation.

	(f)		Benefits Pass-Through. With respect to all products and services procured by Supplier for ABM on a cost-plus, cost-reimbursement or Pass-Through Expense basis during the course of performing the Services, Supplier shall use commercially reasonable efforts to pass through to ABM all benefits offered by the manufacturers and/or suppliers of such products and services (including, as applicable, all warranties, refunds, credits, rebates, discounts, training, technical support and other consideration offered by such manufacturers and suppliers) except to the extent otherwise agreed by ABM. If Supplier is unable to pass through any such benefit to ABM, it shall notify ABM in advance and shall not purchase such product or service without ABM’s prior written approval.
	(g)		Dedicated Equipment. The Equipment used by Supplier and Supplier Personnel shall be dedicated to the provision of Services under this Agreement unless the use of shared Equipment is

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approved in advance by ABM. In seeking approval to use shared Equipment, Supplier shall notify ABM of the impact, if any, of the requested change on the Monthly Base Charges, the ARC and RRC Rates, the OEM retained costs, the Termination Charges and ABM’s right to purchase such Equipment at expiration or termination.

6.6

Third Party Contracts.

	(a)		Financial Responsibility. In addition to the Third Party Contracts identified in Sections 6.4 and 6.5 and Schedule E, Supplier shall be responsible for any third party fees or expenses on or after the Commencement Date associated with Third Party Contracts (excluding Third Party Contracts administered by Supplier on a pass-through basis, which are addressed in Section 11.2) used by Supplier to provide the Services. Supplier also shall be responsible for any third party fees or expenses on or after the Commencement Date associated with new, substitute or replacement Third Party Contracts for which Supplier is financially responsible under Schedules E and J.1. With respect to Third Party Contracts that are transferred to Supplier by ABM or for which Supplier otherwise assumes financial responsibility under this Agreement, including those listed on Schedule F.3, Supplier shall (i) pay all amounts becoming due under such licenses or related Agreements, and all related expenses, for periods on or after the Commencement Date and which are not related to periods prior to the Commencement Date (e.g., late fees, penalties or other amounts relating to payments due prior to the Commencement Date) which remain ABM’s responsibility; (ii) rebate to ABM any prepayment of such amounts in accordance with Section 11.10(a); (iii) pay all modification, termination, cancellation, late payment, renewal or other fees, penalties, charges, interest or other expenses that relate to periods on or after the Commencement Date (except to the extent that such fees, penalties, charges, interest or other expenses directly result from the acts or omissions of ABM in contravention of its obligations under this Agreement); (iv) pay all costs associated with the transfer of such contract to Supplier, including all taxes associated with such transfer; and (v) be responsible for complying with Supplier’s duties and obligations under such contracts on or after the Commencement Date and for curing any failure to so comply (except to the extent that such failure directly results from the acts or omissions of ABM in contravention of its obligations under this Agreement).
	(b)		Operational Responsibility. With respect to the Third Party Contracts identified in Section 6.6(a) (excluding Third Party Contracts administered by Supplier on a pass-through basis, which are addressed in Section 11.2), and the services and products provided thereunder, Supplier shall, unless the Parties have otherwise agreed in Schedule E, be responsible for (i) the evaluation, procurement, use, support, management, administration, operation and maintenance of such Third Party Contracts and any new, substitute or replacement Third Party Contracts; (ii) the performance of such Third Party Contracts and the services and products provided thereunder as such relate to providing the Services; (iii) the compliance with and performance of any operational, administrative or contractual obligations imposed on ABM or Supplier under such Third Party Contracts, including nondisclosure obligations; (iv) the administration and exercise as appropriate of all rights available under such Third Party Contracts; and (v) the payment of any fees, penalties, interest or other expenses due and owing under such Third Party Contracts that are incurred, caused by or result from Supplier’s failure to comply with or perform its obligations under this Section 6.6.
	(c)		Rights Upon Expiration/Termination. With respect to any Supplier Third Party Contracts to be used to provide the Services, Supplier shall use commercially reasonable efforts to (i) obtain for ABM (or, at ABM’s direction, its designee) the rights specified in Section 4.3(b)(6), (ii) ensure that such rights are at least broad enough to permit ABM (or, at ABM’s direction, its designee) to use such Third Party Contracts to provide for ABM and the Eligible Recipients, or have provided for them by third party contractors, services similar to the Services, and for ABM and the Eligible Recipients to receive such services; (iii) ensure that, following the termination of all or part of the Services to an Eligible Recipient no longer Controlled by or under common Control with ABM, any such rights relating to Third Party Contracts used exclusively by or for such Eligible Recipient

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			may be granted, at ABM Service’s direction, directly to such Eligible Recipient, (iv) ensure that the granting of such rights is not subject to subsequent third party approval or the payment by ABM (or, at ABM’s direction, designee) of transfer fees, (v) ensure that neither the expiration/termination of this Agreement nor the assignment of the contract will trigger less favorable terms, conditions or pricing, and (iv) ensure that the terms, conditions and prices applicable to ABM (or, at ABM’s direction, its designee) following expiration or termination are no less favorable than those otherwise applicable to Supplier and at least sufficient for the continuation of the activities comprising the Services. If Supplier is unwilling or unable to offer or obtain any such rights and assurances, it shall notify ABM in advance and shall not use any such Third Party Contract without ABM’s approval (and absent such approval, Supplier’s use of any such Third Party Contracts shall obligate Supplier to procure such rights, at no additional cost to ABM, upon expiration or termination). ). If ABM consents to Supplier’s use of specific Third Party Contracts under these circumstances, such consent will be deemed to be conditioned on Supplier’s commitment to use commercially reasonable efforts to cause such third party to agree at expiration or termination of this Agreement or the completion of Termination Assistance Services to permit ABM (or, at ABM’s direction, designee) to assume prospectively the contract in question or to enter into a new lease or contract with ABM, the Eligible Recipients and/or their designee(s) on substantially the same terms and conditions, including price. If ABM consents to Supplier’s use of specific Third Party Contracts under these circumstances, such Third Party Contracts will be added to Schedule V.
	(d)		Benefits Pass-Through. With respect to all third party services procured by Supplier for ABM on a cost-plus, cost-reimbursement or Pass-Through Expense basis during the course of performing the Services, Supplier shall use commercially reasonable efforts to pass through to ABM all benefits offered by such third party service providers (including, as applicable, all warranties, refunds, credits, rebates, discounts, training, technical support and other consideration offered by such providers) except to the extent otherwise agreed by ABM. If Supplier is unable to pass through any such benefit to ABM, it shall notify ABM in advance and shall not purchase such product or service without ABM’s prior written approval.

6.7

Assignment of Licenses, Leases and Related Agreements.

	(a)		Assignment and Assumption. On and as of the Commencement Date, ABM shall assign to Supplier, and Supplier shall assume and agree to perform all obligations related to, the Software licenses, Equipment leases and Third Party Contracts for which Supplier is financially responsible under Sections 6.4, 6.5 and 6.6 and Schedules E and J.1, including those listed on Schedules F.2, F.3 and F.4; provided, however, that such assignment shall not include any assignment or transfer of any intellectual property rights in Materials developed under such Third Party Software licenses, Equipment leases and Third Party Contracts prior to the date of such assignment and, as between the Parties, ABM hereby expressly reserves and retains such intellectual property rights. ABM and Supplier shall execute and deliver a mutually satisfactory assignment and assumption agreement with respect to such leases, licenses and agreements, evidencing the assignment and assumption provided for herein.
	(b)		Items Not Assignable by Commencement Date. With respect to any such Software licenses, Equipment Leases or Third Party Contracts that cannot, as of the Commencement Date, be assigned to Supplier without breaching their terms or otherwise adversely affecting the rights or obligations of ABM or Supplier thereunder, the performance obligations shall be deemed to be subcontracted or delegated to Supplier until any requisite consent, notice or other prerequisite to assignment can be obtained, given or satisfied by Supplier. It is understood that, from and after the Commencement Date, Supplier, as a subcontractor or delegate, shall be financially and operationally responsible for such Software license, Equipment Lease or Third Party Contract as ABM’s agent pursuant to Section 9.11(b), provided, however, that any amounts becoming due under such Software license, Equipment Lease or Third Party Contract which are related to periods prior to the Commencement Date (e.g., late fees, penalties or other amounts relating to

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			payments due prior to the Commencement Date) shall remain ABM’s responsibility. Supplier shall use commercially reasonable efforts to satisfy the consent, notice or other prerequisites to assignment and, upon Supplier doing so, the Software license, Equipment Lease or Third Party Contract shall immediately be assigned and transferred to and assumed by Supplier.
	(c)		Non-Assignable Items. The Parties acknowledge and agree that they believe that no restrictions will, after the commercially reasonable efforts of Supplier, preclude the assignment and assumption of such Software licenses, Equipment Leases or Third Party Contracts in accordance with this Agreement. However, if, after Supplier using commercially reasonable efforts for a reasonable period of time, a license, lease or agreement still cannot be assigned without breaching its terms or otherwise adversely affecting the rights or obligations of ABM or Supplier thereunder, the Parties shall take such actions and execute and deliver such documents as may be necessary to cause the Parties to realize the practical effects of the allocation of responsibilities intended to be effected by this Agreement.
	(d)		Modification and Substitution. Supplier may terminate, shorten or extend the Software licenses, Equipment Leases and Third Party Contracts held by ABM for which Supplier is financially responsible under Schedules E and J.1 of this Agreement and, subject to Section 9.12, may substitute or change suppliers relating to goods or services covered thereby; provided that, except as otherwise disclosed by Supplier and agreed to by ABM, such change(s) (i) shall not constitute a breach of any obligation of ABM or the Eligible Recipients under such Software licenses, Equipment leases or Third Party Contracts, (ii) shall not result in additional financial obligations, financial or operational risk or damages to ABM or the Eligible Recipients; (iii) shall not result in any increase to ABM or the Eligible Recipients in the cost of receiving the Services; and (iv) shall not provide for less favorable terms, conditions or prices for ABM or its designee following the expiration or termination of the Term or any applicable Service than would otherwise be applicable to Supplier (except for terms, conditions or prices available to Supplier because of its volume purchases). Supplier’s rights under the immediate preceding sentence are conditioned upon Supplier paying all applicable termination or cancellation charges, damages and other amounts associated with such action. Notwithstanding anything to the contrary herein, Supplier shall not terminate, shorten or modify without ABM’s prior written consent any license for Third Party Software either created exclusively for ABM or the Eligible Recipients or otherwise not commercially available. Supplier shall reimburse ABM and the Eligible Recipient(s) for any termination charges, cancellation charges, or other amounts paid by them at Supplier’s direction in connection with obtaining any such modification.

6.8		License to ABM Third Party Software and Materials.
		As of the Commencement Date and subject to Supplier having obtained any Required Consents, ABM hereby grants to Supplier, for the sole purpose of performing the Services and solely to the extent of ABM’s underlying rights, the same rights of access and use as ABM possesses under the applicable software licenses with respect to ABM licensed Third Party Software; provided that, Supplier shall pay all fees, costs and expenses associated with the granting of such rights if and to the extent the number of licenses or seats requested by Supplier exceeds the number historically used by ABM and the Eligible Recipients to perform the same Services and such increase is not attributable to actual or projected increases in Service volumes. ABM also shall grant such rights to Subcontractors designated by Supplier if and to the extent necessary for Supplier to provide the Services; provided that, Supplier shall pay all fees, costs and expenses associated with the granting of such rights to such Subcontractors. Except as otherwise agreed by the applicable third party licensors, Supplier and its Subcontractors shall comply with the duties, including use restrictions and those of nondisclosure, imposed on ABM by such licenses. In addition, each Subcontractor shall sign a written agreement to be bound by terms consistent with the terms contained herein applicable to such Third Party Software, including, to the extent applicable, the terms specified in this Section and those pertaining to the ownership of such Software and any derivative materials developed by the Parties, the scope and term of the license, the restrictions on the use of such Software, and the obligations of confidentiality. Except as otherwise requested or approved by ABM (or the relevant

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licensor), Supplier and its Subcontractors shall cease all use of such Third Party Software upon the end of the Term and the completion of any Termination Assistance Services requested by ABM pursuant to Section 4.3(b)(8). THE ABM LICENSED THIRD PARTY SOFTWARE IS PROVIDED BY ABM TO SUPPLIER AND ITS SUBCONTRACTORS ON AN AS-IS, WHERE-IS BASIS. ABM EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO SUCH ABM LICENSED THIRD PARTY SOFTWARE, OR THE CONDITION OR SUITABILITY OF SUCH SOFTWARE FOR USE BY SUPPLIER OR ITS SUBCONTRACTORS TO PROVIDE THE SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6.9

License to Supplier Third Party Software and Materials.

(a)

As of the Commencement Date and subject to Supplier having obtained any Required Consents, Supplier hereby grants to ABM and the Eligible Recipients, at no additional charge, except as provided in Section 6.9(b) below, a non-exclusive, royalty-free right and license to access and/or use the Third Party Software and Materials as to which Supplier holds the license or for which Supplier is financially responsible under this Agreement (including all modifications, substitutions, Upgrades, enhancements, methodologies, tools, documentation, materials and media related thereto that are provided pursuant to the licenses for such Third Party Software and/or Materials) during the Term and any Termination Assistance Services period. In addition, at no additional Charge, and subject to obtaining any Required Consents, Supplier hereby grants to ABM Third Party Contractor(s) a non-exclusive, royalty-free right and license to access and/or use such Materials and Software (including all modifications, substitutions, Upgrades, enhancements, methodologies, tools, documentation, materials and media related thereto provided to Supplier pursuant to the applicable licenses), during the Term and any Termination Assistance Services period, for the benefit of ABM and the Eligible Recipients. Such license and other rights described in the two preceding sentences shall be granted to ABM, the Eligible Recipients, and ABM Third Party Contractors only for the following purposes:

	(i)		The receipt by ABM and the Eligible Recipients of the full benefit of the Services provided by Supplier;
	(ii)		The performance by ABM, the Eligible Recipients or ABM Third Party Contractors for ABM and/or the Eligible Recipients of services or functions that are ancillary to, but not part of, the Services provided by Supplier, including related application management, telecommunication, IT infrastructure, help desk, and information technology services and functions; and
	(iii)		The performance by ABM, the Eligible Recipients or ABM Third Party Contractors of services or functions previously performed by Supplier in circumstances in which the services or functions in question have not been terminated or taken completely away from Supplier.

ABM and the Eligible Recipients shall comply with relevant contractual obligations, including use restrictions and nondisclosure obligations, imposed on Supplier by such licenses to the extent such duties and restrictions have been disclosed in advance by Supplier to ABM. In addition, each ABM Third Party Contractor using Supplier licensed Third Party Software shall sign a written agreement that is consistent with the terms contained herein applicable to such Third Party Software and that contains any relevant contractual obligations, including use restrictions and nondisclosure obligations, imposed on Supplier by such license(s). The rights and obligations of ABM, the Eligible Recipients and ABM Third Party Contractors with respect to such Third Party Software following the expiration or termination of the Agreement or termination of any Service are set forth in Section 14.6(d).

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(b)

To the extent an ABM Third Party Contractor requires a license to Supplier licensed Third Party Software for the purposes described in Section 6.9(a)(iii) and such Third Party Software is generally commercially available at established market rates, ABM or the Third Party Contractor shall either pay Supplier’s then standard rate for such Third Party Software license, including any additional charges based on increased or changed usage (if Supplier sells such product) or obtain such license from other sources. In addition, to the extent a Third Party Contractor requires access to or the use of such Third Party Software for the purposes described in Section 6.9(a)(iii) and a Required Consent may be obtained only by paying a third party fee, ABM or the ABM Third Party Contractor shall pay or reimburse Supplier for such fee, provided that Supplier notifies ABM of such fee, obtains ABM’s approval prior to incurring it; and uses commercially reasonable efforts to minimize any fee to be paid or reimbursed by ABM or the ABM Third Party Contractor. Except as provided in this Section 6.9(b), neither ABM or the Eligible Recipients nor the ABM Third Party Contractors shall be required to pay any other fees or expenses in connection with the granting of such licenses to Third Party Software or obtaining of such Required Consents.

(c)

Supplier shall provide or obtain maintenance, support and/or enhancements as and to the extent necessary to support the use of Supplier licensed Third Party Software for the purposes described in Section 6.9(a)(i)-(iii). ABM or the applicable ABM Third Party Contractor shall reimburse Supplier for any incremental Out-of-Pocket Expenses incurred by Supplier in providing such maintenance, support and/or enhancements to an ABM Third Party Contractor using such Supplier licensed Third Party Software for the purposes described in Section 6.9(a)(iii); provided that Supplier notifies ABM of such incremental expenses, obtains ABM’s approval prior to incurring them; and uses commercially reasonable efforts to minimize such expenses. Supplier shall not be obligated to provide source code to ABM Third Party Contractors under such circumstances.

6.10

Managed Third Parties

(a)

Fully Managed Third Parties. With respect to Managed Third Parties designated on Schedule K as “Fully Managed Third Parties” and any substitute or replacement therefor (each a “Fully Managed Third Party”), Supplier shall ensure that such Fully Managed Third Parties perform in accordance with this Agreement, including Service Levels, and comply with all applicable duties and obligations imposed on Supplier under this Agreement. Unless otherwise specified in Schedule K or agreed in writing by the Parties, the performance of such Fully Managed Third Parties shall be included in determining Supplier’s compliance with applicable Service Levels in Schedule G and Supplier shall be responsible for any Service Level Credits incurred as a result of any failure by such Fully Managed Third Parties or their personnel to perform in accordance with such Service Levels. Supplier shall manage each such Fully Managed Third Party and administer each such Third Party Contract as described in Section 6.10(b)(i)-(ix) below. Upon the expiration or termination for cause or convenience of a Fully Managed Third Party contract, Supplier shall be responsible for the continued performance of the services in accordance with this Agreement and shall either provide such services itself or enter into a contract for such services with a replacement Fully Managed Third Party.

(b)

General Managed Third Parties. With respect to Managed Third Parties identified on Schedule K as “General Managed Third Parties,” and any substitute or replacement therefor (each a “General Managed Third Party”), Supplier shall perform the following activities with respect to the management and administration of Third Party Contracts between ABM (and/or the Eligible Recipients) and such General Managed Third Parties, except as modified in Schedule K:

(i)

manage the Managed Third Parties, including monitoring operational day-to-day service delivery, monitoring performance, escalating problems for resolution, and maintaining technical support relationships;

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	(ii)		as requested by ABM, work with ABM to manage new and existing contractual relationships between ABM and Managed Third Parties as needed to provide the Services;
	(iii)		oversee Managed Third Party delivery of services and compliance with the Service Levels and the performance standards contained in ABM’s agreement with the Managed Third Party;
	(iv)		notify ABM and the Managed Third Party of each Managed Third Party failure to perform in accordance with the Service Levels contained in Schedule G or the performance standards or other terms and conditions contained in ABM’s agreement with the Managed Third Party;
	(v)		escalate Managed Third Party performance failures to Managed Third Party management as necessary to achieve timely resolution;
	(vi)		monitor and manage the Managed Third Party’s efforts to remedy a failure of performance;
	(vii)		communicate to ABM the status of the Managed Third Party’s efforts to remedy a failure of performance;
	(viii)		recommend retention, replacement, modification, or termination of an Managed Third Party based on the performance or cost benefits to ABM as tracked by Supplier;
	(ix)		participate and assist in the re-sourcing (e.g., extension, renegotiation or replacement) of such Managed Third Parties as and to the extent described in Schedule K; and
	(x)		except as otherwise provided in Schedule K, Supplier shall be responsible for meeting or exceeding the applicable Service Levels even where doing so is dependent on the provision of services by a Managed Third Party Provider.

(c)

Financial Responsibility. Unless otherwise specified in Schedule K or Schedule J.1 or agreed in writing by the Parties, the invoiced charges of Managed Third Parties shall be treated as a Pass-Through Expense. Supplier shall be ABM’s and the Eligible Recipients’ sole point of contact regarding the services provided by such Managed Third Parties.

6.11		Notice of Defaults.
		ABM and Supplier shall promptly inform the other Party in writing of any breach of, or misuse or fraud in connection with, any Third Party Contract, Equipment lease or Third Party Software license used in connection with the Services of which it becomes aware and shall cooperate with the other Party to prevent or stay any such breach, misuse or fraud.

6.12

Environmental

(a)

ABM Obligations. ABM shall (i) notify Supplier of the procedures and precautions to be taken at ABM Sites where Hazardous Materials are used or produced in operations performed by ABM in accordance with Section 6.3(a), (ii) provide at its expense any special equipment or training required by Supplier to provide safely and properly the Services in the presence of such Hazardous Materials, (iii) be responsible for complying with all material applicable Laws concerning the treatment, storage, registration, handling or

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			disposal of or reporting about, Hazardous Materials used or produced in operations performed by ABM at the ABM Sites, and (iv) be responsible for remedying any violation of Law with respect to the treatment, storage, registration, handling or disposal of or reporting about Hazardous Materials used or produced in operations performed by ABM at the ABM Sites.
	(b)		Supplier Obligations. Supplier shall (i) notify ABM of the procedures and precautions to be taken at ABM or Supplier facilities where Hazardous Materials are used or produced by Supplier or its Affiliates or Subcontractors in the performance of the Services, (ii) provide at its expense any special equipment or training required by ABM to perform its operations safely and properly in the presence of such Hazardous Materials, (iii) be responsible for complying with all material applicable Laws concerning the treatment, storage, registration, handling or disposal of or reporting about Hazardous Materials used or produced by Supplier or its Affiliates or Subcontractors in the performance of the Services, and (iv) be responsible for remedying any violation of Law with respect to the treatment, storage, registration, reporting, handling or disposal of any Hazardous Materials used or produced in the performance by Supplier or its Affiliates or Subcontractors of the Services.
	(c)		Response. In the event that Hazardous Materials are present at any ABM Site during the Term of this Agreement, Supplier may cease performance of any affected portion of the Services if and to the extent Supplier’s ability to perform such portion of the Services safely is impacted by the presence of such Hazardous Materials and the unsafe condition cannot reasonably be circumvented by Supplier through the use of alternative approaches, workaround plans or other means; provided that ABM shall reimburse Supplier for any incremental costs incurred in implementing such alternative approaches, workload plans or other means as long as (i) Supplier notifies ABM of such incremental costs and obtains ABM Service’ approval prior to incurring such costs; and (ii) Supplier uses commercially reasonable efforts to minimize the incremental costs to be reimbursed by ABM.
	(d)		Responsibility. ABM shall be liable for and indemnify Supplier against all costs, expenses or other Losses incurred or suffered by Supplier as a result of the treatment, storage, registration, handling, disposal or release of or reporting about Hazardous Materials used or produced by operations performed by ABM at the ABM Sites or ABM Facilities, except to the extent that such costs, expenses or Losses were caused by the conduct of Supplier, Supplier Affiliates or Supplier Subcontractors or their employees, subcontractors, agents, invitees or representatives. Supplier shall be liable for and indemnify ABM and the Eligible Recipients against all costs, expenses or other Losses incurred or suffered by ABM or any Eligible Recipient as a result of the treatment, storage, registration, handling, disposal or release of or reporting about Hazardous Materials used or produced by Supplier in the performance of the Services, except to the extent such costs, expenses or Losses were caused by the conduct of ABM, ABM employees, invitees, contractors or other persons for whom ABM is legally responsible (which specifically excludes Supplier or Supplier’s employees, subcontractors, agents or representatives). Neither Supplier nor ABM shall be liable to the other for any special, indirect, incidental or consequential damages.

7.

SERVICE LEVELS

7.1		General.
		Supplier shall perform the Services at levels of accuracy, quality, completeness, timeliness, responsiveness and productivity that are equal to or higher than the documented or otherwise verifiable levels of accuracy, quality, completeness, timeliness, responsiveness and productivity received by ABM or the Eligible Recipients in the twelve (12) months prior to the Commencement Date. Without limiting the generality of the foregoing or the other obligations of Supplier, Supplier shall perform the Services so as to meet or exceed the Service Levels set forth in Schedule G. If more than one Service Level applies to any particular obligation of Supplier, Supplier shall perform in accordance with the most stringent such Service Levels. Supplier shall be responsible for meeting or exceeding the applicable Service Levels even where doing so is dependent on the provision of Services by (i) Subcontractors, (ii) except as otherwise provided in Section 6.11 or Schedule K, Managed Third Parties, or (iii) non-Supplier Personnel, including ABM employees,

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for whom Supplier is financially or operationally responsible under this Agreement; provided that ABM will provide reasonable assistance in rectifying any problem affecting Supplier’s ability to meet the Service Levels which may be attributed to Managed Third Parties and/or ABM employees.

7.2

Service Level Credits and Deliverable Credits.

	(a)		Service Level Credits. Supplier recognizes that ABM is paying Supplier to deliver the Services at specified Service Levels. If Supplier fails to meet such Service Levels, then Supplier shall pay or credit to ABM the performance credits specified in Schedule G (“Service Level Credits”) in recognition of the diminished value of the Services resulting from Supplier’s failure to meet the agreed upon level of performance, and not as a penalty. Under no circumstances shall the imposition of Service Level Credits be construed as ABM’s sole or exclusive remedy for any failure to meet the Service Levels. If ABM recovers monetary damages from Supplier as a result of Supplier’s failure to meet a Service Level, Supplier shall be entitled to set-off against such damages any Service Level Credits paid for the failure giving rise to such recovery. For avoidance of doubt, unless otherwise specified in Schedule G, Supplier’s performance under the Master Agreement and all Companion Agreements shall be aggregated together for purposes of determining Supplier’s compliance with applicable Service Levels and calculating and assessing any resulting Service Level Credits.
	(b)		Deliverable Credits. Supplier recognizes that ABM is paying Supplier to provide certain Critical Deliverables by the time and in the manner agreed by the Parties. If Supplier fails to meet its obligations with respect to such Critical Deliverables, then, in addition to other remedies available to ABM, Supplier shall pay or credit to ABM the Deliverable Credits specified in Attachment G.7 to Schedule G and/or Schedule H or established by the Parties as part of the Project approval process on a case by case basis in recognition of the diminished value of the Services resulting from Supplier’s failure to meet the agreed upon level of performance (not as a penalty). If ABM recovers monetary damages from Supplier as a result of Supplier’s failure to meet its obligations with respect to one (1) or more Critical Deliverables, Supplier shall be entitled to set-off against such damages any Deliverable Credits paid for the failure(s) giving rise to such recovery. Deliverable Credits are not counted toward and are not subject to the overall cap on Supplier’s liability and are in addition to Service Level Credits.

7.3		Problem Analysis.
		If Supplier fails to provide Services in accordance with the Service Levels and this Agreement, Supplier shall (after restoring service or otherwise resolving any immediate problem) (i) promptly investigate and report on the causes of the problem; (ii) provide a Root Cause Analysis of such failure as soon as practicable, after such failure or ABM’s request; (iii) use commercially reasonable efforts to implement remedial action and begin meeting the Service Levels as soon as practicable; (iv) advise ABM of the status of remedial efforts being undertaken with respect to such problem; and (v) demonstrate to ABM’s reasonable satisfaction that, to the extent reasonably possible, the causes of such problem have been or will be corrected on a permanent basis. Supplier shall use commercially reasonable efforts to complete the Root Cause Analysis within the period specified in Attachment G.2 to Schedule G; provided that, if it is not capable of being completed within such period using reasonable diligence, Supplier shall complete such Root Cause Analysis as quickly as possible and shall notify ABM prior to the end of the period specified in Attachment G.2 as to the status of the Root Cause Analysis and the estimated completion date.

7.4

Continuous Improvement Reviews.

(a)

Improvement of Services Quality. Supplier acknowledges that the quality of the Services provided in certain Service areas can and will be improved during the Term and agrees that the Service Levels in such Service areas will be enhanced periodically in recognition of the anticipated improvement in service quality. Supplier will improve the quality of the Services

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			provided in such areas to meet or exceed the enhanced Service Levels and will do so at no additional charge to ABM.
	(b)		Increase of Service Levels. In addition to the foregoing, ABM and Supplier shall periodically review the Service Levels and the performance data collected and reported by Supplier in accordance with Schedule G. As part of this review process, the Parties shall, at no additional cost to ABM, increase the Service Levels to reflect the higher performance levels actually attained by Supplier in accordance with Schedule G. In addition, subject to Section 11.5, the Parties shall use commercially reasonable efforts to agree, to the extent reasonable and appropriate, to (i) increase the Service Levels to reflect improved performance capabilities associated with advances in the proven processes, technologies and methods generally available and in regular commercial use to perform services like the Services; (ii) add new Service Levels to permit further measurement or monitoring of the accuracy, quality, completeness, timeliness, responsiveness, cost-effectiveness, or productivity of the Services; (iii) modify or increase the Service Levels to reflect changes in the processes, architecture, standards, strategies, needs or objectives defined by ABM; and (iv) modify or increase the Service Levels to reflect agreed upon changes in the manner in which the Services are performed by Supplier.

7.5		Measurement and Monitoring.
		Supplier shall implement measurement and monitoring tools and metrics as well as standard reporting procedures, all acceptable to ABM, to measure and report Supplier’s performance of the Services against the applicable Service Levels. Supplier shall provide ABM with on-line access to up-to-date problem management data and other data regarding the status of service problems, service requests and user inquiries received by Supplier. Supplier also shall provide ABM with access to the data used by Supplier to calculate its performance against the Service Levels and the measurement and monitoring tools and procedures utilized by Supplier to generate such data for purposes of audit and verification. Except as otherwise provide in Attachment G.5 to Schedule G, ABM shall not be required to separately pay for such measurement and monitoring tools or the resource utilization associated with their use.

7.6

Satisfaction Surveys.

	(a)		Supplier Conducted Surveys. Beginning on the Commencement Date, Supplier (and/or independent third parties engaged by Supplier) shall conduct satisfaction surveys at the intervals and in accordance with the survey protocols and procedures specified in Schedule Q. To the extent Supplier engages an independent third party to perform all or any part of any satisfaction survey, such third party shall be approved in advance by ABM.
	(b)		ABM Conducted Surveys. In addition to the satisfaction surveys to be conducted by Supplier pursuant to Section 7.6(a), ABM may survey Authorized User satisfaction with Supplier’s performance in connection with and as part of broader Authorized User satisfaction surveys periodically conducted by ABM. At ABM’s request, Supplier shall cooperate and assist ABM with the formulation of the survey questions, protocols and procedures and the execution and review of such surveys.
	(c)		Survey Follow-up. If the results of any satisfaction survey conducted pursuant to Section 7.6(a) or (b) indicate that the level of satisfaction with Supplier’s performance of the Services is less than the target level specified in Schedule G and/or Q, Supplier shall promptly: (i) analyze and report on the root cause of the management or Authorized User dissatisfaction; (ii) develop an action plan to address and improve the level of satisfaction; (iii) present such plan to ABM for its review, comment and approval; and (iv) take action in accordance with the approved plan and as necessary to improve the level of satisfaction. ABM and Supplier shall establish a schedule for completion of a Root Cause Analysis and the preparation and approval of the action plan which shall be reasonable and consistent with the severity and materiality of the problem; provided, that the time for completion of such tasks shall not exceed thirty (30) days from the date such user survey

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results are finalized and reported or as otherwise agreed. The action plan developed hereunder shall specify the specific measures to be taken by Supplier and the dates by which each such action shall be completed. The Parties may, by agreement, establish Deliverable Credits associated with the completion of particular activities by specified dates. Supplier shall implement such action plan in accordance with its terms. Following implementation of such action plan, Supplier will conduct follow-up surveys with the affected ABM users and management to confirm that the cause of any dissatisfaction has been addressed and that the level of satisfaction has improved. The Parties recognize that Supplier’s failure to attain the prescribed levels of satisfaction or to take the actions set forth in such action plan by the agreed upon dates may have an adverse impact on the business and operations of ABM and the Eligible Recipients and that certain damages resulting from Supplier’s failure to do so may not be capable of precise determination. Accordingly, if Supplier fails to attain the levels of satisfaction prescribed in Schedule G, then, in addition to any other remedies available to ABM under this Agreement, at law or in equity, Supplier shall pay to ABM the Service Level Credits specified in Schedule G. In addition, if Supplier fails take the actions set forth in the action plan by the agreed upon dates, then, in addition to any other remedies available to ABM under this Agreement, at law or in equity, Supplier shall pay to ABM the applicable Deliverable Credits, if any, specified and agreed upon in such action plan for such failure.

7.7		Notice of Adverse Impact.
		If Supplier becomes aware of any failure by Supplier to comply with its obligations under this Agreement or any other situation that has had or reasonably could have any other material adverse impact on the Services in question or the impacted business operations of ABM or the Eligible Recipients, then Supplier shall immediately inform ABM in writing of such situation and the impact or expected impact on the Services and Supplier and ABM shall meet to formulate an action plan to minimize or eliminate the impact of such situation.

8.

PROJECT PERSONNEL

8.1

Transitioned Personnel.

(a)

Offers and Employment.

(i)

Supplier Offers of Employment. On September 12, 2006, Supplier extended offers of employment to the Affected Employees specified on Schedule M. Supplier represents and warrants that such offers of employment are consistent in all material respects with this Article 8. Such offers of employment were and are contingent upon the Parties’ final approval and execution of this Agreement, and upon the Affected Employees’ completion of Supplier’s employment application and standard pre-employment process. Supplier, however, has waived background checks, drug testing and medical examinations as preconditions to such employment. Such offers were and are for employment with Supplier in positions reasonably comparable to those held by such individuals at ABM, and with initial base wages or salaries at least equal to that paid or provided by ABM to such individuals as of the date of such offers. The offers were and are for employment with Supplier for a period of six (6) months following the Commencement Date (the “Interim Period”). If such offers of employment are accepted, Supplier shall not reduce the base wages or salaries of such individuals (“Transitioned Employees”) during the Interim Period. Unless otherwise specified in Schedule M and/or agreed by the Parties, Affected Employees accepting such offers shall become employees of Supplier as of the start date set forth in their offer letters, which shall be referred to herein as their “Employment Effective Date.” It is understood and agreed that, on or before the end of their term of employment, Supplier may offer certain of the Affected Employees employment for an indeterminate period of time.

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	(ii)		Subsequent Offers of Regular Employment. It is understood and agreed that, on or before the end of their term of employment, Supplier may offer certain of the Affected Employees employment for an indeterminate period of time. Supplier shall use commercially reasonable efforts to make any such offers of employment “Qualified Offers,” defined as regular employment in a position that reasonably matches the Transitioned Employee’s skills, with base wages or salary as described in Section 8.1(a)(i) and employee benefits as described in Section 8.2. If such offer is not a “Qualified Offer,” and the Transition Employee declines such offer, he or she shall be eligible for severance benefits as defined in Section 8.2(k)(ii). In addition, even if a Qualified Offer is extended, if the Transitioned Employee rejects the offer because it requires a change in work location that meets Supplier’s requirements for benefits under its U.S Mobility Plan (relocation plan), then the Transitioned Employee shall also be eligible for severance benefits as defined in Section 8.2(k)(ii). To qualify for benefits under Supplier’s U.S. Mobility Plan, the Transitioned Employee must be changing work location at the request of the Supplier, the change in work location must increase his or her one-way commute from his or her current residence by at least twenty (20) miles, and the resulting commute must be greater than fifty (50) miles.
	(iii)		Leave. With respect to any Affected Employee identified on Schedule M who is on medical, family, disability, military or sick leave on the Commencement Date, but who returns to work within three (3) months after the Commencement Date with physician’s release or other appropriate documentation stating that such employee may return to work with or without an accommodation, Supplier shall offer employment to such Affected Employee for the remainder of the Interim Period. Such offer and any resulting employment shall be subject to and in strict accordance with this Article 8. If such offer is accepted, the individual in question shall thereafter be treated as a Transitioned Employee for all purposes.
	(iv)		Transitioned Employees. All Affected Employees listed in Schedule M who receive and accept offers of employment and begin work with Supplier pursuant to the foregoing paragraphs are herein referred to as “Transitioned Employees.”

	(b)		Additional Transitioned Employees. During the Interim Period, the Parties may agree upon additional ABM Personnel to whom offers of employment are to be extended by Supplier. The compensation and other terms and conditions of such offers of employment shall be as set forth in this Article 8, and ABM Personnel accepting such offers shall be treated as Transitioned Employees for all purposes.
	(c)		Reemployment of Transitioned Employees. During the Interim Period, the Parties may agree upon one or more Transitioned Employees to whom ABM may extend offers of reemployment. Supplier shall not unreasonably interfere with ABM’s efforts to reemploy any such Transitioned Employee; provided, however, ABM shall inform Supplier at least ten (10) business days in advance of any intended solicitation or other efforts by ABM to recruit or otherwise reemploy any Transitioned Employee during this period, and the Parties shall agree that any such solicitation and/or reemployment of a Transitioned Employee(s) will not unduly hinder the Suppliers ability to delivery the agreed to services to ABM.
	(d)		Minimum Retention. Supplier shall not terminate the employment of a Transitioned Employee during the Interim Period for any reason other than “cause” or “performance,” unless and to the extent ABM initiates a change and/or a reduction in the scope of Services provided by Supplier necessitating such termination of a Transitioned Employee. For purposes of this provision, “cause” shall mean flagrant disregard of Supplier’s rules (including any violation of Supplier’s Business Conduct Guidelines), insubordination or misconduct (as defined in Supplier’s human resource policies), or criminal conduct, and “performance” shall mean that the Transitioned Employee’s job performance is at a level that would justify dismissal under Supplier’s established human resource policies. Unless otherwise agreed by the Parties, Supplier also shall not relocate a

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Transitioned Employee or his or her assigned “work location,” as such term is defined in the Supplier’s Relocation guidelines, during the Interim Period, unless ABM initiates a change and/or a reduction in the scope of Services provided by Supplier necessitating such relocation or reassignment, or Supplier identifies another assignment off of the ABM contract that is acceptable to the Transitioned Employee, and provided that Supplier shall inform ABM in advance of any such relocation or reassignment during this period.

	(e)		No Coverage of Collective Bargaining Unit Employees. ABM has confirmed that no individual eligible to be hired by Supplier pursuant to this Agreement is covered under a collective bargaining agreement.
	(f)		Subcontractors. Unless otherwise specified in Schedule M, all offers of employment to Affected Employees must be for employment by Supplier. To the extent offers of employment are made to Affected Employees identified on Schedule M by Supplier Affiliates or Subcontractors, rather than by Supplier, Supplier shall cause such offers and any resulting employment to be subject to and in strict accordance with this Article 8.

8.2 Employee Benefit Plans.

	(a)		General. Except as otherwise provided in this Article 8, each Transitioned Employee and his or her eligible dependents (as determined under Supplier’s plans), shall be eligible effective as of his or her Employment Effective Date to enroll and participate in the employee plans that are made available to similarly situated employees of Supplier. Such participation shall be in accordance with the terms of such employee plans, which Supplier may change from time to time. During the Term of this Agreement and any extensions thereof, the employee benefits provided by Supplier to Transitioned Employees shall be, in the aggregate, no less favorable than the employee benefits generally available to similarly situated Supplier employees. Unless otherwise specified in this Section 8.2, the rights and benefits described in this Section 8.2 shall be provided to Transitioned Employees during the Interim Period and, if such period is extended or an offer of employment for an indefinite period is made, for the remainder of their employment with Supplier.
	(b)		Years of Service Credit. Except as otherwise provided in this Article 8, the service of a Transitioned Employee with ABM prior to his or her Employment Effective Date shall be recognized by the applicable Supplier employee plan for vacation (prorated based upon full months of employment during first calendar year), short term disability, long term disability and access to post-retirement medical group rates when such Transitioned Employee is no longer employed by Supplier.
	(c)		Employee Welfare Benefit Plans. Each Transitioned Employee and his or her eligible dependents shall be eligible as of such Transitioned Employee’s Employment Effective Date to participate immediately in Supplier’s employee health and welfare benefit plans provided to similarly situated Supplier employees (“Welfare Plans”). Such participation shall be in accordance with the terms of such Welfare Plans. The Welfare Plans shall include, to the extent applicable, medical benefits, hospitalization, prescription drug benefits, dental benefits, vision benefits, short-term disability, long-term disability and travel accident insurance (which includes an accidental death and dismemberment provision). Any eligible deductible expense incurred by the Transitioned Employee at ABM, shall be applied against any similar deductible requirement under the Supplier’s medical plans. Subject to the general comparability requirements in Section 8.2(a), eligibility for, the benefits of, and the amount, if any, of employee contributions toward Welfare Plan coverage will be determined by Supplier; provided, however, that each of Supplier’s Welfare Plans shall waive all pre-existing conditions, exclusionary provisions, eligibility service requirements, and/or waiting periods for each such Transitioned Employee and any eligible covered dependents.

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	(d)		Vacation and Personal Time Off. Prior to their hire date, ABM will cash out each Transitioned Employee for their accrued and unused vacation. Subject to Section 8.2(b) above and beginning on their Employment Effective Date, Supplier shall provide vacation and sick leave benefits to all Transitioned Employees in accordance with its applicable plans. Transitioned Employees shall receive credit for their years of service with ABM for purposes of determining vacation eligibility, benefit calculation and benefit accrual under Supplier’s vacation plan. Transitioned Employees shall immediately begin accruing vacation benefits. The vacation and personal time off benefits provided by Supplier to such Transitioned Employees shall be no less favorable than the vacation and personal time off benefits generally available to similarly situated Supplier employees. Supplier shall recognize vacation plans made by the Transitioned Employees for the current calendar year, provided such vacation plans have been approved by ABM and communicated to Supplier prior to their Employment Effective Date.
	(e)		Holidays. Each Transitioned Employee shall be eligible as of his or her Employment Effective Date to participate in the Supplier Holiday Plan, which currently includes twelve (12) annual paid holidays. Supplier Personnel, including Transitioned Employees, assigned to perform Services under this Agreement will observe ABM local site national holidays and, if less than twelve (12), any remaining days will be treated as personal holidays.
	(f)		Stock Purchase Plan. Each Transitioned Employee shall be eligible to enroll and participate in the then current Supplier Stock Purchase Plan during the first eligible open enrollment period following such Transitioned Employee’s Employment Effective Date.
	(g)		Defined Contribution Plans. Each Transitioned Employee shall be eligible as of his or her Employment Effective Date to participate immediately in Supplier’s Employee Savings 401(k) Plan, and shall be immediately vested in all such employee contributions. Also, each Transitioned employee shall be eligible for the then current Supplier matching funds after completing twelve (12) months of employment with Supplier. Such defined contribution plans shall be no less favorable than the defined contribution plans generally available to similarly situated Supplier employees. Any changes to such defined contribution plans, including any changes in the vesting period for matching employer contributions, must be applicable to all similarly situated Supplier employees.
	(h)		Reimbursement Account and Flexible Spending Account Plans. Transitioned Employees shall be eligible to participate immediately in all reimbursement account and flexible spending account plans offered to similarly situated Supplier employees.
	(i)		Tuition Assistance. ABM shall remain financially responsible for courses which are in progress as of the enrolled Transitioned Employee’s Employment Effective Date and courses for which tuition assistance has already been approved and paid by ABM. For purposes of the preceding sentence, “courses” refers to specific classes in progress and does not refer to a degree program. Transitioned Employees shall be eligible to participate, with prior Supplier management approval, in any tuition assistance programs provided by Supplier to its similarly situated employees. For courses and degree programs approved by ABM that are not scheduled to begin until after the Employment Effective Date and for which ABM has not yet paid the applicable tuition, Supplier shall review each such course and degree program, and if Supplier independently approves such course under Supplier’s tuition reimbursement policies and procedures, Supplier shall reimburse Transitioned Employees in accordance with Supplier’s policy.
	(j)		Bonus Programs. Beginning in their second calendar year of employment with Supplier, Transitioned Employees shall be eligible to participate in the Employee Performance Bonus program provided by Supplier to its similarly situated employees, in accordance with Supplier’s guidelines for such program. .

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(k)

Severance Pay Plans.

	(i)		General. Transitioned Employees who are offered and accept regular employment for an indeterminate period of time shall be eligible to participate in all severance pay plans provided by Supplier to its similarly situated employees. Except as provided in subsection (ii) below, Transitioned Employees shall not receive credit for their years of service with ABM for purposes of calculating their payments under Supplier’s severance plans. Supplier shall be financially responsible for all severance payments made to such Transitioned Employees.
	(ii)		Special Arrangement. Notwithstanding Section 8.2(k)(i), if (1) Supplier terminates a Transitioned Employee’s employment (A) at the end of the Interim Period or any extensions thereof agreed to by Supplier and the applicable employee or (B) prior to the end of the Interim Period for any reason other than “cause” or “performance” (as defined in Section 8.1(d)), or (2) a Transitioned Employee rejects a employment offer that does not qualify as a Qualified Offer (as defined in Section 8.1(a)(ii) above), or (3) the Transitioned Employee rejects a Qualified Offer because it requires a change in work location that meets Suppliers requirements for benefits under its U.S Mobility Plan, then Supplier shall pay such Transitioned Employee, upon receipt of a signed general release covering both ABM and IBM, a severance payment equal to one (1) week of their base pay for each fully completed combined (ABM and Supplier) year of employment, with a six (6) week minimum payment and a twenty-six (26) week maximum payment. Each such Transitioned Employee also shall be eligible for Supplier’s Career Transition Services (CTS), subsidized Transitional Medical Program (COBRA) and Transitional Group Life Insurance (GLI) programs based upon combined ABM and IBM service. Supplier shall be financially responsible for all severance payments and other separation benefits provided to such Transitioned Employees. Thirty (30) days after the close of the Interim Period, Supplier shall calculate the total cost of the severance payments and other separation benefits provided to Transitioned Employees who were released by Supplier at the end of the Interim Period. Supplier will then either invoice or reimburse ABM, as appropriate, for any amounts above or below the planned eight hundred fifty thousand dollars ($850,000) budgeted for such expenses. Notwithstanding the foregoing, if, during his or her specified term of employment, a Transitioned Employee is offered and accepts regular employment for an indeterminate period of time, such Transitioned Employee shall not be entitled to the enhanced severance benefits described in this Section 8.1.2(k)(ii).

(l)

Access to Retiree Medical. Transitioned Employees shall be eligible to participate in Supplier’s post retirement medical coverage plans at group rates, based on Supplier age and service requirements and combined years of service with ABM and Supplier, provided they elect to participate in the program upon exit from Supplier.

8.3 Other Employee Matters.

As of the Employment Effective Date, the Transitioned Employees shall be employees of Supplier for all purposes. Supplier shall be responsible for funding and distributing benefits under the benefit plans in which Transitioned Employees participate on or after the Transitioned Employee’s Employment Effective Date and for paying any compensation and remitting any income, disability, withholding and other employment taxes for such Transitioned Employees beginning on the Employment Effective Date. ABM shall be responsible for funding and distributing benefits under the ABM benefit plans in which Transitioned Employees participated prior to the Employment Effective Date and for paying any compensation and remitting any income, disability, withholding and other employment taxes for such Transitioned Employees for the period prior to the Employment Effective Date of such Transitioned Employee. ABM shall provide Supplier with such information in ABM’s possession reasonably requested by Supplier in order to fulfill its obligations under this Article 8.

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8.4 Key Supplier Personnel

(a)

Approval of Key Supplier Personnel.

	(i)		Before assigning an individual to act as one of the Key Supplier Personnel whether as an initial assignment or a subsequent assignment, Supplier shall notify ABM of the proposed assignment, shall introduce the individual to appropriate ABM representatives, shall provide reasonable opportunity for ABM representatives to interview the individual, and shall provide ABM with a resume and such other information about the individual as may be reasonably requested by ABM. If ABM objects to the proposed assignment, the Parties shall attempt to resolve ABM’s concerns on a mutually agreeable basis. If the Parties have not been able to resolve ABM’s concerns within five (5) business days, or as otherwise agreed, of ABM communicating its concerns, Supplier shall not assign the individual to that position and shall propose to ABM the assignment of another individual of suitable ability and qualifications.
	(ii)		ABM may designate up to ten (10) positions to be held by Key Supplier Personnel during the period up to the migration to the Supplier data center (as provided for in Schedule H), and up to five (5) positions to be held by Key Supplier Personnel during the remainder of the Term. Supplier shall identify and obtain ABM’s approval of all Key Supplier Personnel prior to the Commencement Date. The Key Supplier Personnel that have been approved as of the Effective Date are listed in Schedule C.
	(iii)		ABM may from time to time change the positions designated as Key Supplier Personnel under this Agreement with Supplier’s approval which shall not be unreasonably withheld.

	(b)		Continuity of Key Supplier Personnel. Supplier shall cause each of the Key Supplier Personnel to devote full time and effort for, at a minimum, the period specified in Schedule C after the date he or she assumes the position in question (provided that, in the case of Key Supplier Personnel assigned prior to the Commencement Date, the minimum period shall be the specified period from the Commencement Date). Supplier shall not transfer, reassign or remove any of the Key Supplier Personnel (except as a result of voluntary resignation, involuntary termination for cause, illness, disability, death or approved leave in accordance with Supplier’s standard employment policies) or announce its intention to do so during the specified period without ABM’s prior approval, which ABM may withhold in its reasonable discretion based on its own self interest. In the event of the voluntary resignation, involuntary termination for cause, illness, disability, death or approved leave in accordance with Supplier’s standard employment policies of one of its Key Supplier Personnel during or after the specified period, Supplier shall (i) give ABM as much notice as reasonably possible of such development, and (ii) expeditiously identify and obtain ABM’s approval of a suitable replacement. In addition, even after the period specified in Schedule C, Supplier shall transfer, reassign or remove one of its Key Supplier Personnel only after (i) giving ABM at least forty five (45) days prior notice of such action, (ii) identifying and obtaining ABM’s approval of a suitable replacement at least thirty (30) days prior to the effective date of such transfer, reassignment or removal, (iii) demonstrating to ABM’s reasonable satisfaction that such action will not have an adverse impact on Supplier’s performance of its obligations under this Agreement, and (iv) completing any and all necessary knowledge transfer between the departing Key Supplier Personnel and his or her ABM-approved replacement. Under no circumstances shall Supplier transfer, reassign or remove more than two (2) Key Supplier Personnel in any twelve (12) month period.
	(c)		Retention Program. Supplier will implement and maintain a reasonable retention strategy designed to retain Key Supplier Personnel on the ABM account for the prescribed period, which shall be at least as favorable as the retention strategy it implements and maintains for similarly situated Supplier employees. Supplier shall implement various retention strategies to retain Key Supplier Personnel, including but not limited to, granting stock options, awards, salary increases,

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recognition events and other retention and incentive programs offered to similarly situated Supplier employees.

8.5 Supplier Account Executive.

Supplier shall designate a “Supplier Account Executive” for this ABM engagement.. The Supplier Account Executive shall (i) be one of the Key Supplier Personnel; (ii) be a full time employee of Supplier; (iii) devote his or her full time and effort to managing the Services; (iv) remain in this position for a minimum period of two (2) years from initial assignment; (v) serve as the single point of accountability for the Services, and (vi) have day-to-day authority for acting on behalf of Supplier in matters pertaining to this Agreement and for achieving customer satisfaction and attainment of all Service Levels.

8.6 Supplier Personnel Are Not ABM Employees.

As of the Commencement Date and except as otherwise expressly set forth in this Agreement, the Parties intend to create an independent contractor relationship and nothing in this Agreement shall operate or be construed as making ABM (or the Eligible Recipients) Supplier partners, joint venturers, principals, joint employers, agents or employees of or with the other. As of the Commencement Date no officer, director, employee, agent, Affiliate, contractor or subcontractor retained by Supplier to perform work on ABM’s behalf hereunder shall be deemed to be an officer, director, employee, agent, Affiliate, contractor or subcontractor of ABM for any purpose. Supplier, not ABM, has the right, power, authority and duty to supervise and direct the activities of the Supplier Personnel and to compensate such Supplier Personnel for any work performed by them on ABM’s behalf pursuant to this Agreement. Supplier, and not ABM, shall be responsible and therefore solely liable for all acts and omissions of Supplier Personnel, including acts and omissions constituting gross negligence, willful misconduct and/or fraud.

8.7 Replacement, Qualifications, and Retention of Supplier Personnel.

	(a)		Sufficiency and Suitability of Personnel. Supplier shall assign (or cause to be assigned) sufficient Supplier Personnel to provide the Services in accordance with this Agreement and such Supplier Personnel shall possess suitable competence, ability and qualifications and shall be properly educated and trained for the Services they are to perform.
	(b)		Requested Replacement.

	(i)		In the event that ABM determines in good faith that the continued assignment to ABM of any Key Supplier Personnel is not in the best interests of ABM or the Eligible Recipients, then ABM shall give Supplier notice to that effect requesting that such Key Supplier Personnel be replaced. Promptly after its receipt of such a request by ABM, Supplier shall replace (or cause to be replaced) such Key Supplier Personnel with an individual of suitable ability and qualifications. Nothing in this provision shall operate or be construed to limit Supplier’s responsibility for the acts or omission of the Supplier Personnel, or be construed as joint employment.
	(ii)		In the event that ABM determines in good faith that the continued assignment to ABM of any individual Supplier Personnel (other than Key Supplier Personnel) is not in the best interests of ABM or the Eligible Recipients, then ABM shall give Supplier notice to that effect requesting that such Supplier Personnel be replaced. Supplier shall have ten (10) days following ABM’s request for removal of such Supplier Personnel in which to investigate the situation, correct any deficient performance and provide ABM with assurances that such deficient performance shall not recur (provided that, if requested to do so by ABM for actual or suspected violations of ABM Rules, Supplier shall immediately remove (or cause to be removed) the individual in question from all ABM Sites pending completion of Supplier’s investigation and discussions with ABM). If, following such ten (10) day period, ABM is not reasonably satisfied with the results of

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Supplier’s efforts to correct the deficient performance and/or to ensure its non-recurrence, Supplier shall, as soon as possible, remove and replace such Supplier Personnel with an individual of suitable ability and qualifications, without cost to ABM.

(iii)

Nothing in Section 8.7(b) shall operate or be construed to limit Supplier’s responsibility for the acts or omission of the Supplier Personnel, or be construed as joint employment.

	(c)		Turnover Rate and Data. If ABM reasonably determines that Supplier’s turnover rate is unacceptable and so notifies Supplier, Supplier shall within ten (10) business days (i) provide ABM with data concerning Supplier’s turnover rate, (ii) meet with ABM to discuss the reasons for the turnover rate, and (iii) submit a proposal for reducing the turnover rate to an acceptable level for ABM’s review and reasonable approval. Notwithstanding any transfer or turnover of Supplier Personnel, Supplier shall remain obligated to perform the Services without degradation and in accordance with the Service Levels.
	(d)		Background Check/Drug Screening. Supplier shall complete (or caused to be completed) a satisfactory background check of each Supplier Personnel (except Transitioned Employees) prior to such Supplier Personnel first entering any ABM Facility or Site; provided that, if a satisfactory background check was completed in connection with the hiring of such Supplier Personnel, it need not be repeated.
	(e)		Restrictions on Performing Services to Competitors. Neither Supplier nor any Subcontractor shall cause or permit any Key Supplier Personnel engaged in the provision of Services to ABM, to perform services directly or indirectly for a Direct ABM Competitor either while engaged in the provision of Services to ABM or the Eligible Recipients or during the twelve (12) months immediately following the termination of his or her involvement in the provision of such Services without ABM’s prior written consent.

8.8 Training/Career Opportunities.

Supplier shall offer training, skills development and career growth opportunities to Transitioned Employees that are at least as favorable as those offered generally to its similarly situated employees.

8.9 Conduct of Supplier Personnel.

	(a)		Conduct and Compliance. While at ABM Sites, Supplier Personnel shall (i) comply with the ABM Rules and other rules and regulations regarding personal and professional conduct generally applicable to personnel at such ABM Sites (and communicated orally or in writing to Supplier or Supplier Personnel or made available to Supplier or Supplier Personnel by conspicuous posting at an ABM Facility, electronic posting or other means generally used by ABM to disseminate such information to its employees or contractors), (ii) comply with reasonable requests of Affected Employees pertaining to personal and professional conduct, (iii) attend workplace training offered by ABM at ABM’s request, and (iv) otherwise conduct themselves in a businesslike manner.
	(b)		Identification of Supplier Personnel. All Supplier Personnel shall clearly identify themselves as Supplier Personnel and not as employees of ABM. This shall include any and all communications, whether oral, written or electronic. Each Supplier Personnel shall wear a badge indicating that he or she is not an employee of ABM.
	(c)		Restriction on Marketing Activity. Except for the Supplier Project Executive, none of the Supplier Personnel shall conduct any marketing activities at ABM, other than reporting potential marketing opportunities to Supplier’s designated marketing representatives.

In addition, except for the Supplier Personnel occupying the positions designated with an asterisk in Schedule C, in no event shall Supplier pay any Supplier Personnel engaged in performing or

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delivering Services under this Agreement (including, for example, business aligned service delivery managers or service delivery executives), any incentive compensation or bonuses based upon revenue from sales to ABM or any other Eligible Recipient. For the avoidance of doubt, nothing in this provision is intended to compromise Supplier’s Employee Performance Bonus program or the Supplier executive incentive bonus program which consider total IBM and IBM Global Services revenue.

8.10 Restrictions on Changes in Supplier Staffing/Facilities.

	(a)		Supplier shall not move Services in a Functional Service Area or sub-Functional Service Area provided from an approved Supplier Facility and country to a Supplier Facility and country from which such Services had not previously been provided by Supplier without ABM’s prior approval.
	(b)		To the extent Services in the same Functional Service Area or sub-Functional Service Area are provided by Supplier Personnel from Supplier Facilities in different countries, Supplier shall not change the extent to which such Services are provided by Supplier Personnel from each such Supplier Facility and country, as specified in Schedule O.2, by more than ten percent (10%), in the aggregate, without ABM’s prior approval. In addition, even if such a change in Supplier staffing is less than ten percent (10%) in the aggregate, Supplier shall use commercially reasonable efforts to provide ABM with advance notice of each such change. For avoidance of doubt, the foregoing is measured as the cumulative impact of the movement of FTEs and work between and among Supplier Facilities and countries, not by any single change, and changes attributable solely to changes in service volumes are not subject to the limits described in this Section 8.10(b).

8.11 Substance Abuse.

To the extent permitted by applicable Laws, Supplier agrees to immediately remove (or cause to be removed) any Supplier Personnel who is known to be or reasonably suspected of engaging in substance abuse while on ABM Sites, in an ABM vehicle or while performing Services. (In the case of reasonable suspicion, such removal shall be pending completion of the applicable investigation.) Substance abuse includes the sale, attempted sale, possession or use of illegal drugs, drug paraphernalia, or alcohol, or the misuse of prescription or non-prescription drugs. Supplier represents and warrants that it has and will maintain a substance abuse policy and that such policy will be applicable to all Supplier Personnel performing Services under this Agreement. Supplier represents and warrants that it shall require its Subcontractors and Affiliates providing Services to have and maintain such policy and practices and to adhere to this provision.

8.12 Collective Bargaining Agreements and WARN Act.

	(a)		Supplier represents that, as of the Effective Date, it does not have collective bargaining agreements with unionized personnel in the United States. Notwithstanding the foregoing, Supplier shall provide ABM not less than ninety (90) days notice of the expiration of any collective bargaining agreement with unionized Supplier Personnel if the expiration of such agreement or any resulting labor dispute could potentially interfere with or disrupt the business or operations of ABM or an Eligible Recipient or impact Supplier’s ability to timely perform its duties and obligations under this Agreement.
	(b)		WARN Act Commitment. Unless otherwise agreed by the Parties, Supplier shall not, for a period of sixty (60) days after the Commencement Date, cause any of the Transitioned Employees to suffer “employment loss” as that term is construed under the Worker Adjustment and Retraining Notification Act (“WARN Act”), if such employment loss could create any liability for ABM, the Eligible Recipients, or its or their Affiliates, unless Supplier delivers notices under the WARN Act in a manner and at a time such that ABM, the Eligible Recipients, or its or their Affiliates bear no liability with respect thereto. For purposes of this Section 8.12(b), employee

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terminations by ABM, the Eligible Recipients and/or its or their Affiliates during such period shall not be considered.

9. SUPPLIER RESPONSIBILITIES

9.1 Policy and Procedures Manual.

	(a)		Delivery and Contents. As part of the Services, and at no additional cost to ABM, Supplier shall deliver to ABM for its review, comment and approval (i) a preliminary draft of the Policy and Procedures Manual applicable to the performance of the Services during the period preceding the migration to the Supplier data center not later than fifty (50) days after the Commencement Date, and (ii) a final draft of the Policy and Procedures Manual applicable to the performance of such Services not later than one hundred ten (110) days after the Commencement Date.
			Thereafter, as part of the Services, and at no additional cost to ABM, Supplier shall deliver to ABM for its review, comment and approval (i) a preliminary draft of a revised Policy and Procedures Manual containing additions and modifications applicable to the performance of the Services following the migration to the Supplier data center not later than thirty (30) days prior to the scheduled migration date), and (ii) a final draft of the revised Policy and Procedures Manual containing such modifications not later than the scheduled migration date.
	(b)		At a minimum, each such Policy and Procedures Manual shall include the following:

	(i)		a detailed description of the Services and the manner in which each will be performed by Supplier, including (A) the Equipment, Software, and Systems to be procured, operated, supported or used; (B) documentation (including the ITS Systems Life Cycle documentation, operations manuals, user guides, specifications, policies/procedures and disaster recovery plans) providing further details regarding such Services; (C) the specific activities to be undertaken by Supplier in connection with each Service, including, where appropriate, the direction, supervision, monitoring, staffing, reporting, planning and oversight activities to be performed by Supplier under this Agreement; and (D) the processes, methodologies and controls to be implemented and used by Supplier to ensure compliance with applicable Laws;
	(ii)		the procedures for ABM/ Supplier interaction and communication, including (i) call lists; (ii) procedures for and limits on direct communication by Supplier with Affected Employees prior to the Affected Employees becoming employees of Supplier; (iii) Change Management, Problem Management and escalation procedures; (iv) priority and project procedures; (v) Acceptance procedures; (vi) Acceptance testing; and (vii) Quality Assurance procedures, internal controls and checkpoint reviews; and
	(iii)		practices and procedures addressing such other issues and matters as ABM shall reasonably require.

Supplier shall incorporate ABM’s then current policies and procedures in the Policy and Procedures Manual to the extent it is directed to do so by ABM.

(c)

Revision and Maintenance. Supplier shall incorporate any reasonable comments or suggestions of ABM into the Policy and Procedures Manual and shall deliver a final revised version to ABM within fifteen (15) days of its receipt of such final comments and suggestions for ABM’s approval. The Policy and Procedures Manual will be delivered and maintained by Supplier in electronic format and will be accessible electronically to ABM IT management and Authorized Users in a manner consistent with ABM’s security policies and the confidentiality requirements included in this Agreement. For avoidance of doubt, Supplier shall prepare and maintain a single Policy and

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Procedures Manual for this Master Agreement and all Companion Agreements, rather than a separate Policy and Procedures Manual for each Master Agreement and Companion Agreement.

	(d)		Compliance. Supplier shall perform the Services in accordance with ABM’s then-current policies and procedures, including the ITS Systems Life Cycle documentation, until the Policy and Procedures Manual is finalized and agreed upon by the Parties. Thereafter, Supplier shall perform the Services in accordance with the Policy and Procedures Manual. In the event of a conflict between the provisions of this Agreement and the Policy and Procedures Manual, the provisions of this Agreement shall control unless the Parties expressly agree otherwise and such agreement is set forth in the relevant portion of the Policy and Procedures Manual.
	(e)		Modification and Updating. Supplier shall promptly modify and update the Policy and Procedures Manual periodically to reflect changes in the operations or procedures described therein and shall provide the proposed changes to ABM for review, comment and approval. To the extent any such change would (i) increase ABM’s total costs of receiving the Services; (ii) require material changes to ABM Facilities, systems, software or equipment; (iii) have a material adverse impact on the functionality, interoperability, performance, accuracy, speed, responsiveness, quality or resource efficiency of the Services; or (iv) violate or be inconsistent with the ABM Standards, ABM may withhold such approval in its sole discretion.

9.2 Reports.

	(a)		Reports. Supplier shall provide ABM with reports pertaining to the performance of the Services and Supplier’s other obligations under this Agreement permitting ABM to monitor and manage Supplier’s performance (“Reports”). The Reports to be provided by Supplier shall include those described in Schedule R in the format and at the frequencies provided therein. In addition, from time to time, ABM may identify additional Reports to be generated by Supplier and delivered to ABM on an ad hoc or periodic basis. All Reports shall be provided to ABM as part of the Services and at no additional charge to ABM. The Reports described in Schedule R and, to the extent reasonably applicable, all other Reports shall be provided to ABM by secure on-line connection in an electronic format capable of being accessed by Microsoft Office components, with the information contained therein capable of being displayed graphically and accessible from a web browser.
	(b)		Back-Up Documentation. As part of the Services, Supplier shall provide ABM with such documentation and other information available to Supplier as may be reasonably requested by ABM from time to time in order to verify the accuracy of the Reports provided by Supplier. In addition, Supplier shall provide ABM with all documentation and other information reasonably requested by ABM from time to time to verify that Supplier’s performance of the Services is in compliance with the Service Levels and this Agreement; provided that Supplier shall not be required to provide ABM with any confidential information subject to third party confidentiality agreements.
	(c)		Correction of Errors. As part of the Services and at no additional charge to ABM, Supplier shall promptly correct any errors or inaccuracies in or with respect to the Reports, the information or data contained in such Reports, or other contract deliverables caused by (i) Supplier, (ii) Subcontractors, (iii) Managed Third Parties (except as otherwise provided in Section 6.11 or Schedule K), or (iv) non-Supplier Personnel, including ABM employees, for whom Supplier is financially or operationally responsible under this Agreement; provided that ABM will provide reasonable assistance in rectifying any problems correcting any errors or inaccuracies with respect to the Reports which may be attributed to Managed Third Parties and/or ABM employees.

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9.3 Governance; Meetings.

	(a)		Governance. The Parties shall manage their relationship under this Agreement using the governance model in Schedule T.
	(b)		Meetings. During the Term, representatives of the Parties shall meet periodically or as requested by ABM to discuss matters arising under this Agreement. Such meetings shall include, at a minimum, the following:

	(i)		a periodic meeting at least monthly to review performance and monthly reports, planned or anticipated activities and changes that might impact performance, and such other matters as appropriate;
	(ii)		a quarterly management meeting to review the monthly reports for the quarter, review Supplier’s overall performance under the Agreement, review progress on the resolution of issues, provide a strategic outlook for ABM’s information systems requirements, and discuss such other matters as appropriate;
	(iii)		an annual meeting of senior management of both Parties to review relevant contract and performance issues; and
	(iv)		such other meetings of ABM and Supplier Personnel, including senior management of Supplier, as ABM may reasonably request or are otherwise provided for in Schedule T or the Policy and Procedures Manual.

	(c)		Agenda and Minutes. For each such meeting, upon ABM request, Supplier shall prepare and distribute an agenda, which will incorporate the topics designated by ABM. Supplier shall distribute such agenda in advance of each meeting so that the meeting participants may prepare for the meeting. In addition, Supplier shall record and promptly distribute minutes for every meeting for review and approval by ABM.
	(d)		Authorized User and Eligible Recipient Meetings. Supplier shall notify the ABM Contract Manager in advance of scheduled meetings with Authorized Users or Eligible Recipients (other than meetings pertaining to the provision of specific Services on a day-to-day basis) and shall invite the ABM Contract Manager to attend such meetings or to designate a representative to do so.

9.4 Quality Assurance and Internal Controls.

	(a)		Supplier shall develop and implement Quality Assurance and internal control processes and procedures to ensure that the Services are performed in an accurate and timely manner, in accordance with (i) the Agreement, including the Service Levels, (ii) generally accepted accounting principles, (iii) the accepted practices of first tier providers in the ITO Services outsourcing industry, (iv) the ISO 9001 standard, (v) the CMMi standard, (vi) ITIL standard, and (vii) subject to Section 15.10, the Laws applicable to ABM and the Eligible Recipients. Such procedures shall include verification, checkpoint reviews, testing, acceptance, and other procedures for ABM to assure the quality and timeliness of Supplier’s performance.
	(b)		Without limiting the foregoing, Supplier shall develop, implement/execute (subject to ABM’s approval) and maintain processes, procedures and controls that provide for:

(i)

a strong control process for day-to-day operations designed to assure that the following fundamental control objectives regarding the Services are met: (A) financial and operational information is valid, complete and accurate; (B) operations are performed efficiently and achieve effective results, consistent with the requirements of this

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Agreement; (C) assets are safeguarded; and (D) actions and decisions of Supplier are, subject to Section 15.10, in compliance with applicable Laws;

	(ii)		the following basic control activities into Supplier work processes related to the Services: (A) accountability clearly defined and understood; (B) access properly controlled; (C) adequate supervision; (D) transactions properly authorized; (E) transactions accurately recorded; (F) transactions recorded in proper accounting period; (G) policies, procedures, and responsibilities documented; (H) adequate training and education; (I) adequate separation of duties; and (J) recorded assets compared with existing assets;
	(iii)		a process designed to ensure periodic control self-assessments are performed with respect to all Services;
	(iv)		an internal audit function to sufficiently monitor the processes and Systems used to provide the Services (i.e., perform audits, track control measures, communicate status to management, drive corrective action, etc.). As part of such internal audit function, Supplier will:

	(A)		Develop and execute an annual risk assessment process to evaluate risk in the Services. This assessment shall become the basis to create an annual risk-based audit plan of Services. The plan shall be provided to ABM for its review and approval thirty (30) days before the end of each calendar year.
	(B)		If such an audit reveals a significant deficiency in the Services, promptly provide a summary of the audit reports resulting from such audit activity to ABM, and make related work papers available to ABM upon request.
	(C)		Adopt a qualitative methodology (e.g. high, medium, low effectiveness) of reporting the level of controls and internal audit results.
	(D)		Provide a summary of audit activity performed, associated significant findings, and status of follow-up activity, and a summary of control incidents (i.e., frauds, conflict of interest situations, etc.) and related corrective action, at least quarterly, in each case, to the extent related to any significant deficiency in the Services.

(c)

Supplier shall submit such processes and procedures to ABM for its review not later than fifteen (15) days after the Commencement Date. Such processes, procedures and controls shall be included in the Policy and Procedures Manual. Prior to Supplier’s delivery of such processes and procedures, Supplier shall adhere strictly to ABM’s then current policies, procedures and controls, including the ITS Systems Life Cycle documentation. No failure or inability of the quality assurance procedures to disclose any errors or problems with the Services shall excuse Supplier’s failure to comply with the Service Levels and other terms of this Agreement.

9.5 Architecture, Standards and Information Technology Planning.

(a)

Supplier Support. As requested by ABM and subject to Section 15.10, Supplier shall assist ABM in defining application management, telecommunication, IT infrastructure, help desk, and information technology policies, processes, procedures, controls, products, systems, architectures and standards on an ongoing basis to be adhered to by Supplier in the performance of the Services and to be provided, operated, managed, supported and used by Supplier in connection therewith (collectively, the “ABM Standards”) and in preparing long-term Strategic Plans and short-term implementation plans on an annual basis. The assistance to be provided by Supplier shall include (i) active participation with ABM representatives on permanent and ad-hoc committees and working groups addressing such issues; (ii) assessments of the then-current ABM Standards; (iii)

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analyses of the appropriate direction for such ABM Standards in light of business priorities, business strategies, Supplier’s technical knowledge/expertise and competitive market forces; and (iv) recommendations regarding application management, telecommunication, IT infrastructure, help desk, and information technology architectures and platforms, software and hardware products, strategies and directions and other enabling technologies and processes. With respect to each recommendation, Supplier shall provide estimates and analysis of the following at a level of detail reasonably sufficient to permit ABM to make an informed business decision: (i) cost projections and cost/benefit analyses; (ii) the changes, if any, in the personnel and other resources required to operate and support the changed environment; (iii) the resulting impact on ABM’s application management, telecommunication, IT infrastructure, help desk, and information technology costs; (iv) the expected performance, quality, responsiveness, efficiency, reliability, security risks and other service levels; and (v) general plans and projected time schedules for development and implementation.

	(b)		ABM Authority and Supplier Compliance. ABM shall have final authority to promulgate ABM Standards and to modify or grant waivers from such ABM Standards. Supplier shall (i) comply with the ABM Standards and work with ABM to enforce such ABM Standards, (ii) modify the Services as and to the extent necessary to conform to such ABM Standards, and (iii) obtain ABM’s prior written approval for any deviations from such ABM Standards.
	(c)		Financial, Forecasting and Budgeting Support. On a monthly basis on the dates and in accordance with the procedures set by ABM and reflected in the Policy and Procedures Manual, Supplier shall provide a twelve (12) month rolling forecast to ABM for ABM’s forecasting and budgeting purposes, including: (i) actual and forecasted utilization of Resource Units; and (ii) changes to the environment impacting ABM’s costs or utilization. In addition, on an annual basis, Supplier shall provide information to ABM regarding opportunities to modify or improve the Services, and reduce the Charges and/or total cost to ABM of receiving the Services.

9.6 Change Control.

	(a)		Compliance with Change Control Procedures. In making any System Change, the Parties shall comply with the Change Control Procedures specified in the Policy and Procedures Manual. Prior to making any System Change or using any new (e.g., not tested in or for the ABM environment) Software or Equipment to provide the Services, Supplier shall have verified by appropriate testing (with ABM’s cooperation and involvement, to the extent reasonably requested), that the change or item has been properly installed, is operating in accordance with its specifications, is performing its intended functions in a reliable manner and is compatible with and capable of operating as part of the ABM environment. This obligation shall be in addition to any unit testing done by Supplier as part of routine deployment or installation of Software or Equipment.
	(b)		System Change Costs. Unless otherwise specified in Schedule E or approved in accordance with Section 9.6(c) or otherwise, Supplier shall bear all charges, fees and costs associated with any System Change desired by Supplier, including all charges, fees and costs associated with (i) the design, installation, implementation, testing and rollout of such System Change, (ii) any modification or enhancement to, or substitution for, any impacted Software, Equipment, Services, Materials or System, (iii) any increase in the total cost to ABM or the Eligible Recipients of operating, maintaining or supporting any impacted Software, Equipment, Services, Materials or System, and (iv) subject to Section 9.6(h), any increase in resource usage to the extent it results from a System Change.
	(c)		ABM Approval – Cost, Adverse Impact. Supplier shall make no System Change which may (i) increase ABM’s total cost of receiving the Services; (ii) require material changes to or have an adverse impact on ABM’s or the Eligible Recipients’ business, operations, facilities, systems, software, utilities, tools or equipment; (iii) require Supplier, ABM or the Eligible Recipients to install a new version, release, upgrade of, or replacement for, any Software or Equipment or to

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modify any Software or Equipment, (iv) have a material adverse impact on the functionality, interoperability, performance, accuracy, speed, responsiveness, quality or resource efficiency of the Services, (v) have an adverse impact on any Applications run by ABM or Eligible Recipients, or (vi) have an adverse impact on Supplier’s ability to adequately deliver the Services, (vii) have an adverse impact on the cost, either actual or planned, to ABM of terminating all or any part of the Services or exercising its right to in-source or use third parties; (viii) have an adverse impact on ABM’s or Eligible Recipients’ environment (including its flexibility to deal with planned future changes, interoperability and its stability), (ix) introduce new technology to (A) ABM’s or an Eligible Recipient’s environment or business or (B) Supplier’s environment, to the extent that such introduction has or may have an impact on ABM’s environment; or (x) violate or be inconsistent with ABM Standards or plans as specified in Section 9.5 without first obtaining ABM’s approval, which approval ABM may withhold in its sole discretion. If Supplier desires to make such a System Change, it shall provide to ABM a written proposal describing in detail the extent to which the desired System Change may affect the functionality, performance, price or resource efficiency of the Services and any benefits, savings or risks to ABM or Eligible Recipients associated with such System Change.

	(d)		ABM Approval – IVR/VRU Solutions. Except to the extent the following is in use on the Commencement Date, Supplier shall not implement or use in performing the Services an IVR or VRU solution having one or more of the following characteristics without first obtaining the approval of the ABM General Counsel or his or her designee: (i) the entry by callers of distinct customer verification data that is compared to information stored in a database to determine if the caller is qualified to continue using the system; (ii) the IVR system provides the caller with computer generated confirmation numbers; (iii) the use by callers of temporary PINs with the ability to change the PIN; or (iv) the generation of automatic screen pops at the operator terminal based on caller-specific information entered by the caller.
	(e)		ABM Approval – Retained Systems and Business Processes. Supplier shall make no System Change that may require ABM to install a new version, release or upgrade of, or replacement for, any Software or Equipment or to modify any Software or Equipment or otherwise have an adverse impact on the functionality, interoperability, performance, accuracy, speed, responsiveness, quality, cost or resource efficiency of ABM’s Retained Systems and Business Processes without first obtaining ABM’s approval, which approval ABM may withhold in its sole discretion.
	(f)		Temporary Emergency Changes. Notwithstanding the foregoing, Supplier may make temporary System Changes required by an emergency if it has been unable to contact the ABM Contract Manager to obtain approval after making reasonable efforts. Supplier shall document and report such emergency changes to ABM as soon as practicable, but in no event later than two (2) business days after the change is made. Such System Changes shall not be implemented on a permanent basis unless and until approved by ABM.
	(g)		Implementation. Supplier will schedule and implement all System Changes in accordance Change Management and in all events so as not to (i) disrupt or adversely impact the business or operations of ABM or the Eligible Recipients, (ii) degrade the Services then being received by them, or (iii) interfere with their ability to obtain the benefit of the Services.
	(h)		Planning and Tracking. On a monthly basis, Supplier will prepare a rolling quarterly “look ahead” schedule for ongoing and planned System Changes for the next three (3) months. The status of System Changes will be monitored and tracked by Supplier against the applicable schedule.
	(i)		Comparisons. For any System Change, Supplier shall, upon ABM’s request, perform a comparison at a reasonable and mutually agreed level of detail, between the amount of resources required by the affected Software or Equipment to perform a representative sample of the processing being performed for ABM and Eligible Recipients immediately prior to the System

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Change and immediately after the System Change. ABM shall not be required to pay for increased resource usage due to a System Change except to the extent that such System Change is requested or approved by ABM with notice of the increased usage or ABM approves such System Change after notice from Supplier of such increased resource usage.

9.7 Software Currency.

	(a)		Currency of Software. Subject to and in accordance with Sections 6.4, 6.5, 9.5, 9.6, 9.7(c) and Schedule J, Supplier agrees to maintain reasonable currency for Software for which it is financially responsible under this Agreement and provide maintenance and support for new releases and versions of Software for which it is operationally responsible. For purposes of this Section 9.7(a), “reasonable currency” shall mean that, unless otherwise directed by ABM, Supplier shall install Major Releases and Minor Releases in accordance with the applicable Service Responsibilities Matrices (SRM’s) set forth in Schedule E.
	(b)		Evaluation and Testing. Prior to installing a new Major Release or Minor Release, Supplier (with ABM’s cooperation and involvement, to the extent reasonably requested), shall evaluate and test such Release to verify that it will perform in accordance with this Agreement and the ABM Standards and that it will not (i) increase ABM’s total cost of receiving the Services; (ii) require material changes to ABM Facilities, systems, software or equipment; or (iii) adversely impact the functionality, interoperability, performance or resource efficiency of the Services. The evaluation and testing performed by Supplier (with ABM’s cooperation and involvement, to the extent reasonably requested), shall be at least consistent with the reasonable and accepted industry norms applicable to the performance of such Services and shall be at least as rigorous and comprehensive as the evaluation and testing usually performed by qualified service providers under such circumstances.
	(c)		Approval by ABM. Notwithstanding Section 9.7(a), Supplier shall confer with ABM prior to installing any Major Release or Minor Release, shall provide ABM with the results of its testing and evaluation of such Release and a detailed implementation plan and shall not install such Release if directed not to do so by ABM. Where specified by ABM, Supplier shall not install new Software releases or make other Software changes until their Acceptance by ABM. Supplier shall not install new Software releases or make other Software changes if doing so would require ABM or the Eligible Recipients to install new releases of, replace, or make other changes to Applications Software or other Software for which ABM is financially responsible unless ABM consents to such change. Supplier shall install, operate and support multiple releases and/or versions of the same Software as and to the extent directed to do so by ABM and, subject to Sections 9.7(e), (f) and 15.2(b), without any increase in the Monthly Base Charges. To the extent Third Party Software for which Supplier is operationally responsibility under Schedules E and J.1 is no longer supported by the applicable licensor or manufacturer, Supplier shall use commercially reasonable efforts to perform maintenance for such Software as required.
	(d)		Updates by ABM. ABM and the Eligible Recipients shall have the right, but not the obligation, to install new releases of, replace, or make other changes to Applications Software or other Software for which ABM is financially responsible under this Agreement.
	(e)		Notwithstanding the other provisions of Section 9.7, Supplier’s failure to meet the Service Levels or its other obligations under this Agreement shall be excused if and to the extent such failure is attributable to ABM’s rejection of Supplier’s proposed Upgrade or replacement of a Software version that is back-leveled such that it is no longer supported by the applicable Software manufacturer, but only if (i) Supplier notifies ABM prior to its final decision that Supplier is not likely to be able, using commercially reasonable efforts, to meet such Service Level or other obligation under such circumstances; (ii) Supplier uses commercially reasonable efforts to identify and consider reasonable alternatives available to address and avoid the impending performance failure; and (iii) Supplier uses commercially reasonable efforts to meet such Service Level or other

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obligation notwithstanding ABM’s rejection of or insistence on the Software release or Software change.

(f)

Notwithstanding the other provisions of Section 9.7, and subject to Section 15.2(b), if ABM rejects Supplier’s proposed Upgrade or replacement of a Software version that is back-leveled such that it is no longer supported by the applicable Software manufacturer and Supplier is thereafter required to incur additional fees and expenses to obtain necessary maintenance for such Software version from such Software manufacturer in order to meet its obligations under this Agreement, ABM shall reimburse Supplier for the reasonable fees and expenses thus incurred, but only if (i) Supplier is unable, using commercially reasonable efforts, to perform such maintenance using Supplier Personnel, (ii) ABM has rejected Supplier’s proposed Upgrade or replacement of such Software version after being notified by Supplier that it will not able to provide certain required maintenance for such Software version using Supplier Personnel, (iii) Supplier notifies ABM of its intent to use such Software manufacturer to perform maintenance and the anticipated fees and expenses associated therewith and obtains ABM’s approval prior to incurring such fees and expenses, and (iv) Supplier uses commercially reasonable efforts to minimize the fees and expenses to be reimbursed by ABM.

9.8 [RESERVED]

9.9 Access to Specialized Supplier Skills and Resources.

Upon ABM’s request, Supplier shall use commercially reasonable efforts to provide ABM with access to Supplier’s specialized services, personnel and resources on an expedited basis taking into account the relevant circumstances (the “Specialized Services”). The Parties acknowledge that the provision of such Specialized Services may, in some cases, constitute New Services for which Supplier is entitled to additional compensation, but in no event shall Supplier be entitled to any additional compensation for New Services under this subsection unless the ABM Contract Manager and Supplier Account Executive, or their authorized designee, expressly agree upon such additional compensation or Supplier’s entitlement to additional compensation is established through the dispute resolution process. If ABM authorizes Supplier to proceed but the Parties disagree as to whether the authorized work constitutes New Services and ABM reasonably believes that such work is material and is required on an urgent basis, Supplier shall proceed with such work if directed to do so by ABM. In such event, the invoiced Charges for such work shall be deemed disputed payments under Section 12.4, and the disagreement shall be submitted to dispute resolution pursuant to Article 19.

9.10 Audit Rights.

(a)

Contract Records. Supplier shall maintain complete and accurate records of and supporting documentation for all Charges and all financial and non-financial transactions relevant to the performance of the Services and Supplier’s financial and operational obligations under this Agreement, including authorizations, System Changes and other changes, implementations, soft document accesses, reports, filings, returns, analyses, procedures, controls, records, data or information created, generated, collected, processed or stored by Supplier (excluding Supplier’s internal costs, except to the extent such costs are the basis on which ABM is charged). In addition, Supplier shall, and/or shall cause its Subcontractors and suppliers to, maintain accurate records of and supporting documentation for non-financial transactions (excluding internal audit reports, but including notice to ABM of any finding of material non-compliance relating to Supplier’s provision of the Services) to the extent Supplier is required to maintain such records and documentation under this Agreement or such records and documentation result from or are created in connection with the performance of Supplier’s obligations under this Agreement (collectively, “Contract Records”). With respect to the amounts chargeable to and payments made by ABM under this Agreement, Contract Records shall be kept in accordance with generally accepted accounting principles applied on a consistent basis. Supplier shall retain Contract Records in accordance with ABM’s record retention policy as it may be reasonably adjusted from

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			time to time and provided to Supplier in writing during the Term and any Termination Assistance Services period and thereafter through the end of the second (2nd) full calendar year after the calendar year in which Supplier stopped performing Services (the “Audit Period”).
	(b)		Operational Audits. During the Audit Period, Supplier shall, and (upon ABM’s reasonable request) shall cause its Subcontractors to, provide to ABM (and internal and external auditors, inspectors, regulators and other representatives that ABM may designate from time to time, including customers, vendors, licensees and other third parties to the extent ABM or the Eligible Recipients are legally or contractually obligated to submit to audits by such entities) access at reasonable hours to Supplier Personnel, to the facilities at or from which Services are then being provided and to Contract Records and other pertinent information, all to the extent relevant to performance of the Services and Supplier’s obligations under this Agreement. Such access shall be provided for the purpose of performing audits and inspections, to (i) verify the integrity of ABM Data, in accordance with the terms of this Agreement, (ii) examine the systems that process, store, support and transmit that data, (iii) examine the controls (e.g., organizational controls, input/output controls, system modification controls, processing controls, system design controls, and access controls) and the security, disaster recovery and back-up practices and procedures; (iv) examine Supplier’s performance of the Services, in accordance with the terms of this Agreement; (v) verify Supplier’s reported performance against the applicable Service Levels; (vi) examine the accuracy of Supplier’s measurement, monitoring and management tools; and (vii) enable ABM and the Eligible Recipients to meet applicable legal and regulatory and contractual requirements (including those associated with the Sarbanes-Oxley Act of 2002 and the implementing regulations promulgated by the United States Securities and Exchange Commission and Public Company Accounting Oversight Board), in each case to the extent applicable to the Services performed by Supplier and/or the variable charges for such services. Supplier shall (i) provide any assistance reasonably requested by ABM or its designee in conducting any such audit, including installing and operating audit software during the Term and any Termination Assistance Services period, (ii) make requested personnel (to the extent still employed by Supplier or its applicable Affiliate or Subcontractor), records and information available to ABM or its designee, and (iii) in all cases, provide such assistance, personnel, records and information in an expeditious manner to facilitate the timely completion of such audit.
	(c)		Financial Audits. During the Audit Period, Supplier shall, and shall cause its Subcontractors to, provide to ABM (and internal and external auditors, inspectors, regulators and other representatives that ABM may designate from time to time, including customers, vendors, licensees and other third parties to the extent ABM or the Eligible Recipients are legally or contractually obligated to submit to audits by such entities) access at reasonable hours to Supplier Personnel and to Contract Records and other pertinent information, all to the extent relevant to the performance of Supplier’s financial obligations under this Agreement. Such access shall be provided for the purpose of performing audits and inspections to (i) verify the accuracy and completeness of Contract Records, (ii) verify the accuracy and completeness of the Charges and Pass-Through Expenses and Out-of-Pocket Expenses (iii) examine the financial controls, processes and procedures utilized by Supplier in connection with the Services, (iv) examine Supplier’s performance of its other financial obligations to ABM under this Agreement, and (v) enable ABM and the Eligible Recipients to meet applicable legal and regulatory and contractual requirements in each case to the extent applicable to the Services performed by Supplier and/or the charges for such Services. Supplier shall (i) provide any assistance reasonably requested by ABM or its designee in conducting any such audit, (ii) make requested personnel (to the extent still employed by Supplier or its applicable Affiliate or Subcontractor), records and information available to ABM or its designee, and (iii) in all cases, provide such assistance, personnel, records and information in an expeditious manner to facilitate the timely completion of such audit. If any such audit reveals an overcharge by Supplier, and Supplier does not successfully dispute the amount questioned by such audit, Supplier shall promptly pay to ABM the amount of such overcharge (subject to Section 12.1(d), net of any undercharges uncovered by the audit), together with interest at the rate of twelve percent (12%) per annum from the date of Supplier’s receipt of such overcharge. In addition, if any such audit reveals an overcharge of more than five percent

ABM/IBM Proprietary Information

(5%) of the audited Charges in any Charges category, Supplier shall promptly reimburse ABM for the actual cost of such audit (provided that (i) the amount of such reimbursement shall not exceed the amount of the overcharge, and (ii) if ABM retains an auditor or inspector on a contingent fee basis, such contingent fee is reasonable and in accordance with customary industry arrangements). Subject to Section 12.1(d) if any such audit reveals an underpayment by ABM and ABM does not successfully dispute the finding, ABM shall promptly pay Supplier the amount of such undercharge.

	(d)		Audit Assistance. ABM and certain Eligible Recipients are subject to regulation and audit by governmental bodies, standards organizations and other regulatory authorities under applicable Laws, rules, regulations, standards and contract provisions. If a governmental body, standards organization or other regulatory authority exercises its right to examine or audit ABM’s or an Eligible Recipient’s books, records, documents or accounting practices and procedures pursuant to such Laws, rules, regulations, standards or contract provisions, Supplier shall provide all assistance requested by ABM or the Eligible Recipient in responding to such audits or requests for information.
	(e)		General Procedures.

	(i)		Supplier shall obtain audit rights equivalent to those specified in this Section 9.10 from all Subcontractors and will cause such rights to extend to ABM.
	(ii)		Notwithstanding the intended breadth of ABM’s audit rights, ABM shall not be given access to the proprietary information of other Supplier customers or to Supplier locations that are not related to ABM, Eligible Recipients or the Services.
	(iii)		In performing audits, ABM shall endeavor to avoid unnecessary disruption of Supplier’s operations and unnecessary interference with Supplier’s ability to perform the Services in accordance with the Service Levels. Unless otherwise agreed, such audits will be conducted during Supplier’s normal business hours.
	(iv)		Following any audit, ABM shall conduct (in the case of an internal audit), or request its external auditors or examiners to conduct, an exit conference with Supplier to obtain factual concurrence with issues identified in the review.
	(v)		ABM shall be given reasonable private workspace in which to perform an audit, plus access to photocopiers, telephone, facsimile machines, computer hook-ups and any other facilities or equipment needed for the performance of the audit.
	(vi)		ABM shall provide Supplier with notice at least three (3) business days prior to any operational or financial audit by ABM or its authorized agents or representatives; provided that no such notice shall be required with respect to audits conducted by government auditors, inspectors, regulators or representatives. To the extent ABM has advance notice of a governmental audit, it shall provide reasonable notice to Supplier.
	(vii)		Prior to receiving access to Supplier Proprietary Information or Supplier Facilities, external auditors and examiners designated by ABM (other than government auditors and examiners) shall execute a non-disclosure agreement substantially in the form attached hereto as Exhibit 1. ABM’s external auditors and examiners shall not be Direct Supplier Competitors.

(f)

Supplier Internal Audit. If Supplier determines as a result of its own internal audit that it has overcharged ABM, then Supplier shall promptly pay or credit to ABM the amount of such overcharge, together with interest from the date of Supplier’s receipt of such overcharge at the Prime Rate. In the event such an audit results in a determination that Supplier has undercharged

ABM/IBM Proprietary Information

			ABM, then, subject to Section 12.1(d) and ABM’s right to dispute the amount of such undercharge, Supplier shall immediately report such undercharge to ABM and invoice ABM for such undercharged amounts.
	(g)		Supplier Response. Supplier and ABM shall meet to review each audit report prepared in connection with this Section 9.10 promptly after the issuance thereof. Supplier will respond to each audit report in writing within thirty (30) days from receipt of such report, unless a shorter response time is reasonable under the circumstances. Supplier and ABM shall develop and agree upon an action plan to promptly address and resolve any deficiencies, concerns and/or recommendations in such audit report and Supplier, at its own expense, shall undertake remedial action in accordance with such action plan and the dates specified therein.
	(h)		Supplier Response to Government Audits. If an audit by a governmental body, stock exchange or regulatory authority having jurisdiction over ABM, an Eligible Recipient or Supplier results in a finding that Supplier is not in compliance with any generally accepted accounting principle or other audit requirement or any Law relating to the performance of its obligations under this Agreement, then unless otherwise agreed, Supplier shall address and resolve the deficiency(ies) identified by such governmental body, stock exchange or regulatory authority in accordance with Section 15.10 and within the time period specified by such auditor. Supplier shall do so at its own expense if and to the extent such audit deficiency or finding of non-compliance results from Supplier’s failure to comply with its obligation under this Agreement.
	(i)		SAS70 Audit. In addition to its other obligations under this Section 9.10, Supplier shall cause a Statement of Auditing Standards (“SAS”) 70 Type II audit (or equivalent audit) to be conducted by an independent public accounting firm on a quarterly basis (e.g., February 28, May 31, August 31 and November 30) for Supplier Facilities in North America at or from which outsourcing services are provided, including the Supplier Facilities at or from which Services are provided under this Agreement. Each quarterly SAS 70 Type II audit shall focus in general on Supplier’s policies, procedures and internal controls during the preceding twelve (12) months, and in particular on those applicable to a random sample of Supplier’s customers selected by the independent public accounting firm. Supplier shall promptly provide ABM and its independent auditors with a copy of the resulting audit report (and in all events shall provide such report within sixty (60) days after the end of the defined quarterly period). Such report shall be provided at no additional charge to ABM. Supplier shall respond to the portions of such report that are relevant to ABM or the Eligible Recipients in accordance with Section 9.10(g).
	(j)		Audit Costs.

	(i)		Except as provided in Section 9.10(j)(ii) below, Supplier and its Subcontractors shall provide the Services described in this Section 9.10 as part of the Monthly Base Charges and at no additional Charge to ABM.
	(ii)		As part of the Monthly Base Charges, Supplier shall provide, at ABM’s request, up to 1,000 FTE hours of audit assistance for audits initiated by ABM in any Contract Year (“Baseline Audit FTEs”). The ABM Contract Manager or his or her designee shall request, define and set the priority for such audit assistance. Supplier shall report monthly on the level of effort expended by Supplier in the performance of such audit assistance and shall not exceed the Baseline Audit FTEs without ABM’s prior approval. Subject to Sections 9.10(j)(iii), (iv) and (v), if ABM authorizes Supplier to exceed the Baseline Audit FTEs in any Contract Year, ABM shall either pay Supplier for such additional FTE hours at the rates specified in Schedule J or apply such additional FTE hours against the Baseline Project FTEs described in Section 11.8(a).
	(iii)		Notwithstanding Section 9.10(j)(ii), to the extent the level of audit assistance requested by ABM and provided by Supplier Personnel in connection with any audit initiated by

ABM/IBM Proprietary Information

ABM is, in the aggregate, eight (8) FTE hours or less, there shall be no additional Charge to ABM for such assistance and such FTE hours shall not be counted against the Baseline Audit FTE pool described in Section 9.10(j)(ii) above.

	(iv)		Notwithstanding Section 9.10(j)(ii), to the extent the audit assistance requested by ABM can be provided by Supplier using personnel already assigned to ABM hereunder without impacting Service Levels, there will be no additional charge to ABM for such audit assistance. If the audit assistance requested by ABM cannot be provided by Supplier using such personnel then assigned to ABM without impacting Service Levels, ABM, in its sole discretion, may forego or delay any work activities or temporarily or permanently adjust the work to be performed by Supplier, the schedules associated therewith or the Service Levels to permit the performance of such audit assistance using personnel already assigned to perform the Services.
	(v)		Notwithstanding Section 9.10(j)(ii), there will be no additional charge to ABM for audit assistance if, in performing such an audit, ABM uncovers evidence that Supplier has breached any material obligation(s) under this Agreement.

9.11 Agency and Disbursements.

	(a)		Disbursements. Beginning on the Commencement Date, Supplier shall make payments to certain lessors, licensors and suppliers as paying agent of ABM or the Eligible Recipients, or shall reimburse ABM for payments made by ABM or the Eligible Recipients to such lessors, licensors and suppliers, if and to the extent such payments relate to Third Party Contracts, Equipment leases or Third Party Software licenses for periods on or after the Commencement Date as to which Supplier is financially responsible, but which have not been formally transferred to Supplier.
	(b)		Limited Agency. ABM hereby appoints Supplier as its limited agent during the Term solely for the purposes of the administration of and payment of Pass-Through Expenses, amounts under Managed Third Party agreements and amounts under Third Party Contracts, Equipment leases and Third Party Software licenses for which Supplier is financially responsible under Schedules E or J.1. ABM shall provide, on a timely basis, such affirmation of Supplier’s authority to such lessors, licensors, suppliers and other third parties as Supplier may reasonably request.
	(c)		Reimbursement for Substitute Payment. If either Party in error pays to a third party an amount for which the other Party is responsible under this Agreement, the Party that is responsible for such payment shall promptly reimburse the paying Party for such amount.
	(d)		Notice of Decommissioning. Supplier agrees to notify ABM promptly if and to the extent any ABM or Eligible Recipient owned Equipment or ABM or Eligible Recipient leased Equipment will no longer be used to provide the Services. The notification will include the identification of the Equipment and location, and the date it will no longer be needed by Supplier, along with the reason for decommissioning. Upon receipt of any such notice, ABM may (or may cause the applicable Eligible Recipient to), in its sole discretion, terminate the Equipment lease for such leased Equipment as of the date specified in such notice and sell or otherwise dispose of or redeploy such ABM or Eligible Recipient owned Equipment that is the subject of such a notice as of the date specified in such notice. Upon Supplier ceasing to use any Equipment (or, in the case of leased Equipment, upon the last day ABM or Eligible Recipient is obligated to make such leased Equipment available to Supplier, if earlier), Supplier shall return the same to ABM in condition at least as good as the condition thereof on the Commencement Date, ordinary wear and tear excepted. Supplier shall pack and prepare such Equipment for shipping and shall arrange for the shipping of such Equipment to the location designated by ABM. For Equipment located at a Supplier Facility, Supplier shall pay to ship such Equipment to the designated location; for Equipment located at an ABM Facility, ABM shall pay for any such shipping.

ABM/IBM Proprietary Information

9.12 Subcontractors.

	(a)		Use of Subcontractors. Except as provided in Section 9.12(b), Supplier shall not subcontract any of its responsibilities without ABM’s prior written approval, which may be withheld in ABM’s sole discretion. Prior to entering into a subcontract with a third party for the Services, Supplier shall (i) give ABM reasonable prior notice specifying the components of the Services affected, the scope of the proposed subcontract, the identity and qualifications of the proposed Subcontractor, the extent to which ABM will have the right to hire employees of the proposed Subcontractor, the additional Service Taxes, if any, associated with the use of the proposed Subcontractor, and the reasons for subcontracting the work in question; and (ii) obtain ABM’s prior written approval of such Subcontractor. ABM shall have the right to revoke its prior approval of a Subcontractor for reasonable cause and direct Supplier to replace such Subcontractor as soon as possible. Subcontractors listed on Schedule D as of the Effective Date are deemed to be approved by ABM.
	(b)		Shared Subcontractors. Supplier may, in the ordinary course of business, subcontract (i) for third party services or products that are not exclusively dedicated to ABM and that do not include regular direct contact with ABM or Eligible Recipient personnel or the performance of services at ABM Sites, or (ii) with temporary personnel firms for the provision of temporary contract labor (collectively, “Shared Subcontractors”); provided, that such Shared Subcontractors possess the training and experience, competence and skill to perform the work in a skilled, workmanlike manner. ABM shall have no approval right with respect to such Shared Subcontractors. If, however, ABM expresses dissatisfaction with the services or products of a Shared Subcontractor, Supplier shall work in good faith to resolve ABM’s concerns on a mutually acceptable basis and, at ABM request, replace such Shared Subcontractor.
	(c)		Supplier Responsibility. Supplier shall be responsible for any failure by any Subcontractor or Subcontractor personnel to perform in accordance with this Agreement or to comply with any duties or obligations imposed on Supplier under this Agreement to the same extent as if such failure to perform or comply was committed by Supplier or Supplier employees. Supplier shall be responsible for the performance of all such Subcontractors and Subcontractor personnel providing any of the Services hereunder. Supplier shall be ABM’s sole point of contact regarding the Services, including with respect to payment.

9.13 Telecommunications Matters

	(a)		Supplier or a Supplier Subcontractor will, at no additional charge to ABM, perform the functions of a Responsible Organization (“RespOrg”) with respect to all “called party pays” toll free numbers (e.g., those in the 800, 888 and similar service access code) (collectively “Toll Free Numbers”) for which ABM requests such RespOrg services, and will fully and promptly perform all RespOrg functions under applicable tariffs (including the Bell Operating Company Tariffs) or rules, regulations and procedures of the FCC and the North American Number Coordinator pertaining to 800 Service Management System functions with respect to such Toll Free Numbers (“800 Service Management Systems SMS/800 Functions”); provided that Supplier and/or its Subcontractor shall not hold in reserve or otherwise refuse to release such Toll Free Numbers upon written request of ABM to release or transfer some or all Toll Free Numbers.
	(b)		To the extent technologically and operationally compatible and permitted by applicable Laws, the Services may be connected/interconnected by ABM to other services provided by Supplier or to services provided by ABM itself or any other vendor.
	(c)		To the extent Supplier elects to change one or more of its underlying providers of interexchange facilities, such change shall not, unless otherwise agreed, result in any interruption, diminution in service quality, or increase in the Charges.
	(d)		Orders for the installation or relocation of elements of the Services must be submitted in writing by an authorized ABM representative and evidenced by an ABM service order number. ABM shall only be responsible for orders placed, and information directions and commitments relevant to such

ABM/IBM Proprietary Information

orders delivered to Supplier by such authorized ABM representatives. Supplier will accept service orders only from authorized ABM representatives identified on such list and will not solicit the placement of orders by unauthorized employees of ABM or Eligible Recipients. Supplier shall send ABM written confirmation of service orders not initiated by an authorized ABM or an Eligible Recipient representative and submitted in writing to Supplier within one (1) business day of Supplier’s receipt of each such order. Supplier shall implement such service order(s) only upon receipt of ABM’s written ratification of such order(s). Unless otherwise agreed by ABM in its sole discretion, in the event Supplier implements a service order placed by an individual without authorization without first receiving ratification of the order by an authorized representative, the order shall be deemed null and void ab initio, Supplier will promptly discontinue the affected Services, and Supplier will not charge ABM any deinstall or other charge that would otherwise apply.

(e)

With respect to the compatibility of the Services provided by Supplier with Equipment for which ABM is financially and operationally responsible, Supplier agrees to consult with ABM on request concerning the compatibility of Services with such Equipment including, in the case of Equipment and related software that ABM proposes to acquire, informing ABM of the likely effects (if any) of the use of such Equipment and related software on the quality, operating characteristics and efficiency of the Services and the effects (if any) of the Services on the operating characteristics and efficiency of such Equipment and related software. Supplier further agrees to provide all interface specifications requested by ABM with respect to any Service.

9.14 FCC Actions

(a)

If Supplier and/or its Subcontractors are required to file a tariff or other regulatory submission pursuant to Section 9.14(b), below, and the initial tariff option or submission that Supplier or its Subcontractors file to implement this Agreement is not permitted to become effective by the Federal Communications Commission or if any ruling, order or determination shall materially and adversely affect Supplier’s or its Subcontractors’ ability to offer the Services under the terms and conditions set forth herein, Supplier shall develop a proposal the purpose of which will be to provide comparable service to ABM on terms and conditions substantially equivalent to those contained in this Agreement, to the extent permissible under applicable legal and regulatory requirements. ABM shall cooperate with Supplier in the development of such a proposal. Such service may be provided under (i) other existing Supplier or Subcontractor tariffs (if that can be done at such tariffs’ then-effective rates without further revision), (ii) newly-filed tariffs or regulatory submissions, or (iii) public postings by Supplier or its Subcontractors of rates and other terms of service. If Supplier is unwilling or unable to develop such proposal within thirty (30) days of any such event, such proposal is not reasonably acceptable to ABM, or such proposal fails to take effect within thirty (30) days of the Parties’ agreement to such proposal, ABM shall have the right to terminate any affected portions of this Agreement without payment of Termination Charges or other liability. A proposal shall be deemed not reasonably acceptable to ABM if it fails to comply with applicable legal or regulatory requirements, increases ABM’s total costs of receiving the Services, requires material changes to ABM facilities, systems, software or equipment, or has a material adverse impact on the functionality, interoperability, performance or resource efficiency of the Services.

ABM/IBM Proprietary Information

	(b)		To the extent required by Law, and within thirty (30) days after the Effective Date of this Agreement, Supplier and/or its Subcontractors will file any tariff, tariff option or other regulatory submission applicable to Supplier and/or its Subcontractors and required to implement the Agreement. Such filing shall be consistent in all material respect with all applicable provisions of this Agreement and shall not be less favorable to ABM and the Eligible Recipients than the rates and other terms and conditions of this Agreement. Supplier will make a copy of any applicable filings available to ABM for ABM’s review and inspection and will provide ABM with a copy of all amendments to such tariffs or other filings having a bearing on the Agreement when such amendments are filed with the appropriate governmental agencies. In addition, Supplier will provide a draft of any revisions that may substantively affect ABM’s rights and obligations under this Agreement at least ten (10) days before such revisions are filed with the FCC, where feasible. If Supplier makes revisions to a tariff, tariff option or other submission that materially and adversely affect ABM’s rights hereunder without obtaining ABM’s written consent, ABM shall have the right to terminate any affected portions of this Agreement without payment of Termination Charges or other liability.
	(c)		Supplier and ABM shall not (and Supplier shall cause its Subcontractors not to) interpose as a defense in any action to enforce the other Party’s rights under this Agreement that such terms and conditions are invalid or unenforceable because of inconsistency with applicable Law or regulation or with Supplier’s or its Subcontractors’ tariffs, tariff options or other regulatory submissions, if any, and will not make such a claim in any tribunal in a dispute with the other Party.
	(d)		If, at any time during the Term, the Federal Communications Commission or any other regulatory body with jurisdiction over a material portion of the Services, pursuant to a final order that is not subject to further appeal, alters the rules or regulations applicable to Supplier, its Subcontractors or the Services in a manner that requires or permits Supplier or its Subcontractors to detariff all or any material portion of the Services, Supplier and/or its Subcontractors shall promptly detariff (and withdraw any tariff, tariff option or other regulatory submission specifically relating to) such Services or the affected portions thereof and thereafter perform such Services solely in accordance with the terms and conditions of this Agreement.
	(e)		If, at any time during the Term, the Federal Communications Commission or any other applicable regulatory authority with jurisdiction over a material portion of the Services determines that it is unlawful for Supplier or its Subcontractors to provide both regulated and non-regulated Services under a single agreement, the Parties agree to execute a separate agreement under which the non-regulated services will be provided and, except as otherwise agreed by the Parties or required by applicable Laws, the terms and conditions applicable to such non-regulated Services shall be identical in all non-ministerial respects to those provided herein.
	(f)		If, at any time during the Term, the Federal Communications Commission or any other applicable regulatory authority with jurisdiction over a material portion of the Services promulgates or passes a law, statute, rule, regulation or order that adversely affects Supplier’s or its Subcontractors’ ability to offer the Services under the terms and conditions set forth herein, Supplier shall provide service to ABM under other arrangements with rates, terms and conditions no less favorable to ABM than those set forth in this Agreement. If any such law, statute, rule, regulation, or order shall require the enhancement or improvement of a Service provided under this Agreement, Supplier shall not, and shall cause its Subcontractors not to, resist same and shall improve or enhance such Service as required.

9.15 Retained Systems and Business Processes.

(a)

No Adverse Effect. Supplier shall not, by any act or omission, adversely affect or alter the functionality, interoperability, performance, accuracy, speed, responsiveness, quality, cost or resource efficiency of the Retained Systems and Business Processes without the prior consent of ABM. Nor shall Supplier, by any act or omission, require changes to the Retained Systems and

ABM/IBM Proprietary Information

			Business Processes, including associated business processes, applications, systems, software, utilities, tools or equipment, without the prior consent of ABM.
	(b)		Interface. Supplier shall cause the processes, Systems, Software and Equipment used to provide the Services to interface and integrate with the Retained Systems and Business Processes.
	(c)		Keep Informed. Supplier shall use commercially reasonable efforts to inform itself and maintain up to date knowledge about all aspects of the existing and future Retained Systems and Business Processes.
	(d)		Assistance. As part of the Services, Supplier shall provide ABM (upon ABM’s request) with Services in relation to Retained Systems and Business Processes, including: (i) liaising with ABM or third parties regarding the impact of any alterations to the Retained Systems and Business Processes and vice versa; and (ii) identifying favorable vendors, and acting as ABM’s agent, in relation to the acquisition, support and development of Retained Systems and Business Processes.

9.16 Network Configuration Data.

Supplier (i) shall provide ABM (and its third party vendors) with network configuration data in relation to the network Supplier provides for ABM and/or the Eligible Recipients; and (ii) hereby grants to ABM (and its third party vendors) the right to use such data in connection with businesses of ABM and the Eligible Recipients.

10. ABM RESPONSIBILITIES

10.1 Responsibilities.

In addition to ABM’s responsibilities as expressly set forth elsewhere in this Agreement, ABM shall be responsible for the following:

	(a)		ABM Contract Manager. ABM shall designate one (1) individual (the “ABM Contract Manager”) to whom all Supplier communications concerning this Agreement may be addressed (except as otherwise expressly provided in this Agreement), who shall have the authority to act on behalf of ABM and the Eligible Recipients in all day-to-day matters pertaining to this Agreement. ABM may change the designated ABM Contract Manager from time to time by providing notice to Supplier. Additionally, ABM will have the option, but will not be obligated, to designate additional representatives who will be authorized to make certain decisions (e.g., regarding emergency maintenance) if the ABM Contract Manager is not available.
	(b)		Cooperation. ABM, through the ABM Contract Manager (or his or her designee), shall cooperate with Supplier by, among other things, making available, as reasonably requested by Supplier, management decisions, information, approvals and acceptances so that Supplier may accomplish its obligations and responsibilities hereunder.
	(c)		Requirement of Writing. To the extent Supplier is required under this Agreement to obtain ABM’s approval, consent or agreement, such approval, consent or agreement must be in writing and must be signed by the ABM Contract Manager or an authorized ABM representative. Notwithstanding the preceding sentence, the ABM Contract Manager may agree in advance in writing that as to certain specific matters oral approval, consent or agreement will be sufficient.
	(d)		ABM Personnel. ABM, and not Supplier, shall be responsible and therefore solely liable for all acts and omissions of ABM Personnel, including acts and omissions constituting gross negligence, willful misconduct and/or fraud.

ABM/IBM Proprietary Information

10.2 Savings Clause.

Supplier’s failure to perform its responsibilities under this Agreement or to meet the Service Levels shall be excused if and to the extent such Supplier non-performance is caused by (i) the wrongful or tortious actions of ABM, an Eligible Recipient or an ABM Third Party Contractor performing obligations on behalf of ABM under this Agreement, or (ii) the failure of ABM, an Eligible Recipient or an ABM Third Party Contractor to perform ABM’s obligations under this Agreement (unless and to the extent, as to ABM Third Party Contractors, such failure is attributable to Supplier’s failure to properly manage such ABM Third Party Contractor in accordance with Section 6.11 and Schedule K), but only if (A) Supplier expeditiously notifies ABM of such wrongful or tortious action or failure to perform and its inability to perform under such circumstances, (B) Supplier provides ABM with a reasonable opportunity to correct such failure to perform and thereby avoid such Supplier non-performance, (C) Supplier uses commercially reasonable efforts to avoid or mitigate the impact of such failure to perform, (D) Supplier uses commercially reasonable efforts to perform notwithstanding such failure to perform, and (E) if there are questions as to causation, Supplier conducts a Root Cause Analysis and thereby demonstrates that such failure to perform is the cause of Supplier’s non-performance.

11. CHARGES

11.1 General.

	(a)		Payment of Charges. In consideration of Supplier’s performance of the Services, ABM agrees to pay Supplier the applicable Charges set forth in Schedule J.
	(b)		No Additional Charges. ABM shall not pay any Charges for the Services in addition to those set forth in this Article 11, or Schedule J. Any costs incurred by Supplier prior to the Effective Date are included in the Charges set forth in Schedule J and are not to be separately paid or reimbursed by ABM.
	(c)		No Charge for Reperformance. At no additional expense to ABM, Supplier shall reperform (including, subject to Section 13.2(c), any required backup or restoration of data) any Services that result in incorrect outputs to the extent due to an error or breach by Supplier, and the resources required for such performance shall not be counted in calculating the Charges payable or resources utilized by ABM hereunder.
	(d)		Charges for Contract Changes. Unless otherwise agreed, System Changes, changes in the Services (including changes in the ABM Standards) and changes in the rights or obligations of the Parties under this Agreement (collectively, “Contract Changes”) will result in changes in the applicable Charges only if and to the extent (i) the Agreement expressly provides for a change in the Supplier Charges in such circumstances; (ii) the agreed upon Charges or pricing methodology expressly provides for a price change in such circumstances (for example, Schedule J specifies the number of FTEs or hours of coverage to be provided for the quoted price, or defines a Resource Baseline for the Resource Unit in question with ARCs and RRCs for increased or decreased usage); or (iii) the Contract Change meets the definition of New Services and additional Charges are applicable in accordance therewith.
	(e)		Eligible Recipient Services.