source
stringlengths 17
501k
| target
stringlengths 0
8.23k
| task_name
stringlengths 8
85
| task_source
stringclasses 4
values | template_type
stringclasses 4
values | template_idx
int64 0
17
| split
stringclasses 3
values |
|---|---|---|---|---|---|---|
Detailed Instructions: Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
Problem:box : open. banana : ?
Solution:
|
peel
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
zs_opt
| 8
|
train
|
Given the task definition and input, reply with output. Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
drawer : open. bag : ?
|
open
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
zs_opt
| 5
|
train
|
Given the task definition and input, reply with output. Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
jar : open. peas : ?
|
shell
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
zs_opt
| 5
|
train
|
Given the task definition, example input & output, solve the new input case.
Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
Example: jug : pour. shoe : ?
Output: untie
The given analogy relates items to how they are manipulated. Jugs can be poured into. Shoes can be untied.
New input case for you: safe : unlock. box : ?
Output:
|
open
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
fs_opt
| 1
|
train
|
Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
present : open. bag : ?
|
open
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
zs_opt
| 0
|
train
|
Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
banana : peel. bag : ?
open
bottle : squeeze. bottle : ?
pour
faucet : turn. suitcase : ?
|
open
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
fs_opt
| 0
|
train
|
Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
Q: safe : unlock. walnut : ?
A:
|
shell
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
zs_opt
| 4
|
train
|
Definition: Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
Input: shoe : untie. walnut : ?
Output:
|
shell
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
zs_opt
| 2
|
train
|
Instructions: Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
Input: banana : peel. bag : ?
Output:
|
open
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
zs_opt
| 3
|
test
|
Two analogies on manipulating items in a kitchen is given in the form "A : B. C : ?". The phrase "A : B" relates item A to its appropriate manipulation B. Your task is to replace the question mark (?) with the appropriate manipulation of item C, following the "A : B" relation. Your answer should be a verb which shows a way to manipulate the given object.
Example: jug : pour. shoe : ?
Example solution: untie
Example explanation: The given analogy relates items to how they are manipulated. Jugs can be poured into. Shoes can be untied.
Problem: present : open. box : ?
|
Solution: open
|
task1158_bard_analogical_reasoning_manipulating_items
|
NIv2
|
fs_opt
| 5
|
validation
|
Leave plenty of room for self - directed play and unstructured time , and you will be teaching him how to think . " It 's in playing that we first learn to think for ourselves , and perhaps only in playing that we can truly be ourselves , " says Linn . All work and no play makes Jack not just a dull boy but , in the long run , a less happy and productive one , too .
Answer the following question: How does playing help based on the context ?
|
You learn to think for yourself
|
cosmos_qa_1_0_0
|
Flan2021
|
zs_noopt
| 2
|
train
|
Context: I thought they were stupid and a waste of time . Instead I and a couple of my best friends went out to the fields for a snake - killing spree . We drove snakes out of the bushes then beat them to with long , wooden sticks . It was harsh I know but we were kids then and pushing miniature cars around and wetting ourselves with water s just were n't our idea of having fun .
Question generated: Why did the children kill the snakes ?
OPTIONS:
- They were cruel people who hated snakes .
- The snakes were a threat to the children .
- They were children who were acting on impulses .
- None of the above choices .
Context: The Whigs got a sweet spot in the lineup , as they went on during sundown . In the film business , it 's called the magic hour -- when there 's still light out , but no sun . The one thing I have n't mentioned was that for the most part , the band 's sets did n't overlap too much .
Question generated: What type of event is the speaker describing ?
OPTIONS:
- A movie shoot .
- None of the above choices .
- A political debate .
- A concert .
Context: Today , we had our Code Red drill . It was really really really really dark in there ... I could n't even see my own hand . For a while , I got so bored that I started doing sit - ups , but the ground was too hard and it hurt my back . Well anyways , we got to work , and I played around with Adobe Illustrator , and sucessfully created a cool smiley with a nice yellow gradient .
Question generated: Why did the narrator have some free time at work ?
OPTIONS:
- None of the above choices .
- The facility was put in Code Red due to an emergency .
- There was a power outage .
- There was a vacation day offered .
Context: The first bag was made with a Japanese print and you can see it here and here . Shopping : This weekend , DH and I went to stART on the Street in Worcester . My friend Karen from Simply June had a booth there .
Question generated:
|
What may happen next in the speaker 's story ?
OPTIONS:
- They will explain why they could n't buy anything at their friend 's booth .
- They will tell people not to shop there .
- They will explain who their friend is and what they sell .
- They will tell people why they did n't have their own table at the event .
|
cosmos_qa_1_0_0
|
Flan2021
|
fs_noopt
| 4
|
train
|
question: A new Friday , a new week . Nothing much really happened this week . Lets see : Monday - I finished my anime series " My - Otome " Very good series . One of my favorite anime series . Tuesday - Had a bad day on the phones .
OPTIONS:
- They like to watch Anime with their friends .
- None of the above choices .
- They spend a lot of free time talking on the phone .
- They tend to have a lot of bad days .
Q: What may be a fact about the speaker ?
answer: None of the above choices .
question: He 'd be perfect if he did n't smoke a pipe and thus smell of it ! ) After that chat I headed back to my office .... and I 'd left the door open . Oops . Had n't meant to be gone long .
OPTIONS:
- The narrator does not like the smell of smoke .
- The narrator does not like men in general .
- The narrator does not like rude people .
- The narrator does not like people who do n't smoke .
Q: Why would the narrator be upset at their lunch date ?
answer: The narrator does not like the smell of smoke .
question: It cleared up yesterday morning and is beautiful out . I think Sunny misses my Mom ( where she stayed for a week ) , but she was sooo happy to have a good run on the beach .
OPTIONS:
- Sunny is trying to get in shape .
- Sunny is trying to get her mind off something .
- Sunny is trying to train for a marthon .
- Sunny is trying to train for a race .
Q: Why would Sunny go for the run on the beach ?
answer:
|
Sunny is trying to get her mind off something .
|
cosmos_qa_1_0_0
|
Flan2021
|
fs_opt
| 8
|
train
|
Write a question about the following article.
No promises but if there was a tech in the field they would send em out or handle it first thing this morning . I should call . Called no answer not fixed yet .
Question:
|
Why does the speaker think they should call ?
Possible answers:
1). None of the above choices .
2). The tech is still in the field .
3). The problem has n't been fixed .
4). They are impatient .
|
cosmos_qa_1_0_0
|
Flan2021
|
zs_opt
| 8
|
train
|
I blew past them like I did n't see them . She did n't turn around , but the dude practically stared me down , so I can only presume she pointed me out .
Answer the following question: What may be the next move for the narrator after seeing the couple ?
|
The narrator will look to make a quick exit .
|
cosmos_qa_1_0_0
|
Flan2021
|
zs_noopt
| 2
|
train
|
Read the following article and answer the question by choosing from the options.
Thanks DVD people . Then I saw a preview for The Clique movie , which is coming out on DVD this fall . When I first heard about it , I was going to watch it since I was a Clique fan but after seeing this preview , I will pass . I knew since it was going straight to DVD without going to the theaters that this movie was going to blow , but good God , this movie is like a trainwreck waiting to happen .
How did I feel after seeing the preview ?
Pick from:
+ I thought it was good ..
+ I thought it was underwhelming ..
+ I think I liked it ..
+ I ca n't wait to see the actual movie !....A:
|
I thought it was underwhelming .
|
cosmos_qa_1_0_0
|
Flan2021
|
zs_opt
| 6
|
train
|
Question:
I arrived back with the girls still sleeping and the realization that my time and navigation challenged friend also forgot the lighter and axe . I refused to walk back to the little station to pick up a lighter . I was going to wait for the car .
Where might I be if I am in need of a light and an axe ?
Answer:
I may be out camping with friends and family .
Question:
It gives you quotes on different topics - one from McCain and one from Obama on each topic - but it does n't tell you who said what . I found myself immediately trying to figure out who said what so that I could answer based on teh person , not the issue . Then I realized I was doing it and tried to make myself stop . I ended up getting Obama , not surprisingly , but I actually had four check marks on the McCain side , which was really interesting and unexpected .
What type of political ideology does the narrator have ?
Answer:
They are more liberal .
Question:
This Friday is our company 's foundation anniversary . Aside from the thanksgiving mass , award ceremonies and evening cocktails for our valued clients , one of the things I really look forward to is the anniversary bonus given to us officers . Indeed , you can do a lot with that money .
Why does the narrator value the company 's anniversary ?
Answer:
They receive bonuses during it .
Question:
Spontaneity is not an adjective that I would generally use to describe myself . I like to plan . But I had myself a bout of spontaneity this weekend . The Creation Stargate convention was in Chicago this weekend .
What did I do that is normally not part of my personality .
Answer:
|
I made last minute plans to do something fun which is normally out of character .
|
cosmos_qa_1_0_0
|
Flan2021
|
fs_noopt
| 5
|
train
|
I was very peeved when Creative decided to charge roughly ten bucks for what they called enhanced Vista EAX Drivers ; No matter how they tried to spin this , this action is just another example of a company trying to gouge and fleece as much profit as they can at every opportunity from the consumer . I understand that businesses exist to earn money and to increase the bottom line to their share holders . However , a little jurisprudence and good sense can be demonstrated by big companies in deciding where they should draw the line in whether they should impose a fee for something as simple as software drivers .
Generate a question about the above context.
|
What may be the reason why they are so angry at the price ?
|
cosmos_qa_1_0_0
|
Flan2021
|
zs_noopt
| 9
|
train
|
The wide sleeves of the black shihakushou gently fluttered in the air as the long arms swung back and front , the large hands still coarsely callused as ever . The footsteps were as always firm and steady , contrast to the almost hesitant - looking pace he walked up the stairs at . Nothing had changed yet at the same time , everything had changed .
Give answer the following question using evidence from the above passage: How can " nothing " and " everything " happen at the same time ?
|
The change is simply a change of perspective
|
cosmos_qa_1_0_0
|
Flan2021
|
zs_noopt
| 4
|
test
|
It is after midnight here now , which makes it Monday , which makes it two full weeks since I have felt any significant pain ( as in pain over 3/10 ) in my head . After three years of facing off with 8/10 EVERY NIGHT , I still can not quite believe it . It 's going to take time to adjust . OPTIONS:
- Exhausted
- Angry
- Sleepy
- More well rested
A: How will I feel after this ?
The moment he 'd decided to tell her the truth , she seemed to know it , and she placed her hands on his arm , holding his hand close to her . OPTIONS:
- The male friend has decided to be kind .
- None of the above choices .
- The male friend has finally decided to be forthcoming .
- The male friend has decided to volunteer for the event .
A: Why is the female subject so happy with her male friend ?
George W. Bush , Sarah Palin , Newt Gingrich , Sean Hannity , and the misguided Republicans who stayed behind to protest during the congressional recess are wrong . If the petroleum industry and their apologists in politics and the media get their way , and they pump the wells dry before turning to alternatives , a worldwide economic catastrophe will ensue . Had the leaders of the Carter and Reagan administrations been more courageous and foresighted following the last energy crisis , the shift from expensive and dirty fossil fuels to clean and renewable energy would be well underway . Instead , oil costs $ 110 per barrel , gas and diesel cost averages of $ 3.68 and $ 4.12 per gallon respectively in the United States , and the transition from petroleum has hardly begun . OPTIONS:
- They do n't like gas prices .
- They do n't like George Bush .
- They do n't like Sarah Palin .
- None of the above choices .
A: Why is the narrator so pessimistic about the United States ?
It did n't take me long to realize it 's so HOT out today in PIttsburgh . I had a little sweat going by the time I got back . But anywho , back to the walk . I decided to walk toward the point , but having the ADD and being the Pittsburgher that I am , I got got distracted by the shiney PPG buildings and the water fountain . OPTIONS:
- The narrator is likely to be wearing warm clothes .
- The narrator is likely to be wearing shorts .
- The narrator is likely to be wearing a sweater .
- The narrator is likely to be wearing a jacket .
A:
|
What type of clothing may the narrator be wearing amid the weather ?
|
cosmos_qa_1_0_0
|
Flan2021
|
fs_opt
| 0
|
validation
|
Answer the following question: Suggest a movie title for the following movie plot: Toledo, 1808, a Spanish city occupied by French Napoleonic troops. A firing squad executes a small group of Spanish rebels who cry out Down with liberty! or Long live chains! The troops are encamped in a Catholic church which they desecrate by drinking, singing, and eating the communion wafers. The captain caresses a statue of a medieval woman and is knocked unconscious by her husband (a knights funerary statue). In revenge, the captain exhumes the body of the wife to find her face has not decomposed; there is a suggestion of intended necrophilia.Cut to the present day where a nanny is reading the voice-over from a book whilst seated on a park bench. The children in her care are given some pictures by a strange man in the park; there are implications of child abduction or pedophilia. Cut to a close-up of a spider and the interior of a bourgeois apartment where a man is fed up with symmetry as he rearranges his mantelpiece. The children arrive home and show the pictures to their parents who are shocked that the girls have such images. The parents are disgusted and yet erotically stimulated by the images which we assume to be pornographic when we see the images, they are revealed as picture postcards of architecture (there is a satirical nod towards Freudian symbolism in the images of tunnels and columns). The parents then let the children keep the pictures and dismiss the nanny. At bedtime, the husband cant sleep as he is woken in the night by a cockerel, a postman and an emu wandering through his bedroom.In the next scene, the husband visits his doctor, who dismisses these nighttime experiences as apparitions despite the fact that the husband has physical evidence in the form of a letter from the nocturnal postman. The evidence is never considered as the doctors nurse interrupts the conversation to tell her employer that she must visit her sick father. The nurse drives through a rainy night, meeting a military tank on the road that is apparently hunting foxes. The soldiers tell her that the road ahead is...
Answer:
|
Le fantôme de la liberté
|
duorc_SelfRC_title_generation
|
P3
|
zs_noopt
| 5
|
train
|
Suggest a movie title for the following movie plot: Royce (Adrien Brody) awakens to find himself parachuting into an unfamiliar jungle. He meets several others who arrived in the same manner: Mexican drug cartel enforcer Cuchillo (Danny Trejo), Spetsnaz soldier Nikolai (Oleg Taktarov), Israel Defense Forces sniper Isabelle (Alice Braga), Revolutionary United Front officer Mombasa (Mahershala Ali), death row inmate Stans (Walton Goggins), Yakuza enforcer Hanzo (Louis Ozawa Changchien), and a general practice doctor Edwin (Topher Grace). Upon landing, they discover that all are armed and lethal killers, with the apparent exception of Edwin, though none know where they are or how they got there. The group follows Royce, who Isabelle suspects is a former black operations soldier turned mercenary. In the jungle they find empty cages, plants with a neurotoxic poison that Edwin collects on a scalpel, and a deceased US Special Forces soldier. Arriving at higher ground, they find themselves staring at an alien sky and realize that they are not on Earth. The party is attacked by a pack of quadruped alien beasts. Cuchillo is killed, and his body is then used as bait to lure the survivors into a trap, but they avoid it. Royce deduces they are on a planet used as a game preserve, where humans are hunted as game. The group follows the quadruped's tracks to a camp and find a captive Predator. The "hunters", three larger Predators, attack the group. Mombasa is killed and the rest of the group escapes. Isabelle reveals that she has heard of the Predators before, from a report by the only survivor (Major Alan "Dutch" Schaefer) of a Special Forces team who encountered one in Guatemala in 1987. The group next meets Noland (Laurence Fishburne), a lone soldier who has survived on the planet for "10 seasons" by hiding and scavenging from the Predators and their victims. At his hideout, he explains that the Predators sharpen their killing skills by collecting warriors and dangerous beasts from other worlds and bringing them to the planet to hunt. Noland also reveals that there is a...
A:
|
Predators
|
duorc_SelfRC_title_generation
|
P3
|
zs_noopt
| 2
|
train
|
Problem: Given the question: Suggest a movie title for the following movie plot: Peggy Gravel, a neurotic, delusional, suburban housewife, and her overweight maid, Grizelda Brown, go on the lam after Grizelda smothers Peggy's husband, Bosley, to death. The two are arrested by a cross-dressing policeman who gives them an ultimatum: go to jail or be exiled to Mortville, a filthy shantytown ruled by the evil Queen Carlotta and her treasonous daughter, Princess Coo-Coo. Peggy and Grizelda choose Mortville, but still engage in lesbian prison sex. They become associates of self-hating lesbian wrestler Mole McHenry, who wants a sex change to please her lover, Muffy St. Jacques. Most of Mortville's social outcastsâcriminals, nudists, and sexual deviantsâconspire to overthrow Queen Carlotta, who banishes her daughter, Coo-Coo, after she elopes with a garbage collector, who is later shot to death by the guards. Coo-Coo hides in Peggy and Grizelda's house with her dead lover. When Peggy betrays Coo-Coo to the Queen's guards, Grizelda fights them, and dies when the house collapses on her. Peggy, however, joins the queen in terrorizing her subjects, even infecting them (and Princess Coo-Coo) with rabies. Eventually, Mortville's denizens, led by Mole, overthrow Queen Carlotta and execute Peggy by shooting a gun up her anus. To celebrate their freedom, the townsfolk roast Carlotta on a spit and serve her, pig-like, on a platter with an apple in her mouth.
++++++++++++++++++++++++++++++++
The answer is:
Desperate Living
input question: Suggest a movie title for the following movie plot: As the movie opens, Cheech & Chong are siphoning gas from a tow truck to fill the tank of their "borrowed" car. As they drive away, Chong rolls and lights up a joint, igniting the gas fumes and causing an explosion in the car. Cheech is dropped off at a movie studio to ask a girlfriend for clean clothes, claiming his state was caused by rescuing a baby from a fire. Meanwhile, Chong returns the car to their prudish neighbor, resulting in a confrontation as the neighbor rants. Chong returns his sentiments by shooting exhaust fumes out of the house window, killing the neighbor's rose bushes. After smoking up, Chong plugs in his guitar and starts wailing away loudly, annoying the entire neighborhood. Cheech arrives, barely managing to pull the power on the amplifier. Cheech drives Chong to pick up a urine sample for his probation officer (last time, he used an unwashed mayonnaise jar; this time, his sister's urine, and she's pregnant!). While driving down the street, Cheech swerves the van causing the urine to splash all over Chong. Chong pulls out a large bag of what appears to be cocaine, refusing to share until Cheech asks to just "smell" it. Chong shoves the bag in Cheech's face, revealing it to be a bag of his laundry soap. Cheech grabs and drinks from the urine sample, spits it out, and Chong hands the urine to him again! The next morning, Cheech awakens to find the van has been stolen. The phone rings, Chong answers and hands it to Cheech, only to find that Cheech has been fired and that his employer has retrieved the van. The day continues as the guys go to the welfare office causing a ruckus as Cheech attempts to fornicate with one of the office workers on her office floor. Later, Cheech invites the worker over the house, practically pushing Chong out the front door. Upon finding that Cheech's cousin (Red) is in town, Cheech sends Chong to meet with Red. Chong finds Red arguing in a hotel lobby with Pee Wee Herman over an unpaid bill only to discover that Red is trying to get back his large duffel bag,...???
output answer: Cheech & Chong's Next Movie
Please answer this: Suggest a movie title for the following movie plot: After leaving a party at a women's dormitory (aka the "virgin vault"), Matthew (Jonathan Tucker) is trapped in an elevator with an unknown, and unseen, woman when the power goes out. Matthew and this unknown woman have sex in the dark. When Matthew wakes up in the morningâstill in the elevatorâhe finds himself alone with a pair of her panties.[1] On a mission to find his mystery maiden by finding a matching bra for the panties, Matthew becomes the maintenance man of the virgin vault. After releasing mice, he goes room to room, setting traps. He convinces the panicked women to leave their rooms and then starts to look for a match. When he is unsuccessful, he continues to break things (such as the air conditioning) in an effort to find his woman. He also fixes the television set, which is greatly received by women he refers to as "Jane-ites", as they have a great interest in films adapted from books by Jane Austen. He doesn't get much help from his roommate Rod (James DeBello), who keeps telling him to give up, and together they philosophize about men and women. Rod tells him that he doesn't need a girlfriend and that it's futile to try to find the "bra matching the panties", and Matthew accuses him of being too machismo. Rod introduces Matthew to the "penile power", which involves the use of weights attached to his penis as a means of increasing the organ's size. He does this and insults women to make himself feel better about the problem he has with his manhood; he suffers from hypospadias. Early on, Matthew watches as a woman named Patty (Emmanuelle Chriqui) and her boyfriend Crick (Johnny Green) fight. Crick is the epitome of the macho man stereotype, with his big pectorals, conceited attitude, and abusiveness. He wears a pony-tail, a manicured goatee, "male make-up", and chews nicotine gum, much to Matthew's dismay. Matthew tries to save Patty, but is hurt by Crick. Crick leaves, and Patty tries to help Matthew, but Matthew can't help but think of Patty's reputation as a "slut." While searching one...
++++++++
Answer:
|
100 Girls
|
duorc_SelfRC_title_generation
|
P3
|
fs_opt
| 5
|
train
|
Given the question: Suggest a movie title for the following movie plot: A mysterious black freighter sails through the night, apparently deserted. Detecting a cruise ship close by, the ship alters course as disembodied voices announce in German, "Battle Stations! Enemy in sight!" Aboard the cruise ship, the prickly Captain Ashland is making his final voyage, attended by his replacement, Captain Trevor Marshall, who has brought along his family. The freighter heads right for them, blasting its horn. Despite Ashland's best efforts, the charging freighter collides with the cruise ship, sinking it. (Some of the sinking scenes were taken from the 1960 film The Last Voyage and darkened to match the nightly effect.) The next morning, a handful of survivorsâMarshall, his wife Margaret (Howes), and their children Robin and Ben; a young officer named Nick and his love interest Lori; the ship's comic Jackie; and a passenger, Mrs. Morganâare adrift on a large piece of wreckage. Ashland surfaces nearby and he's brought aboard, barely conscious. Later, the survivors come upon the black freighter, unaware it's the ship that attacked them. Finding a boarding ladder slung from the stern, they climb aboard, but not before the ladder plunges into the sea as the officers try to climb it with the injured Ashland. When all are finally aboard, Jackie tries to rally the survivors with humor, but a cable seizes him by the ankle, and he is swung outboard by one of the ship's cranes, which lowers him into the water before cutting him loose, to be swept astern and lost. Shocked, the survivors explore the corridors of the empty, echoing vessel, finding only cobwebs and 1930s memorabilia. Hatches open and close by themselves and lights go on and off while a swinging block knocks out Nick, who is exploring above deck. Meanwhile, a delirious Ashland hears a mysterious voice speaking to him in German, telling him "This ship has been waiting for you...It is your new ship....Your chance has come!" The others finally set up in a dusty bunk room, and they separate to retrieve supplies and the injured captain....
The answer is:
|
Death Ship
|
duorc_SelfRC_title_generation
|
P3
|
zs_noopt
| 6
|
train
|
Problem: Suggest a movie title for the following movie plot: A documentary crew follows the events of Cody Maverick, a 17-year-old rockhopper penguin who lives in Shiverpool, Antarctica with his mother Edna and his older brother Glen. Cody has wanted to be a professional surfer ever since a visit from legendary surfer Ezekiel "Big Z" Topanga several years ago. When a talent scout shorebird named Mikey (Mario Cantone) arrives to find entrants for the "Big Z Memorial" surfing contest, Cody jumps at the chance despite the lackluster support from his family. En route to the contest, Cody befriends another entrant, Chicken Joe. The entrants arrive at Pen Gu Island, the site of the contest, where Cody meets and immediately falls in love with Lani, an eighteen-year-old female gentoo penguin who is a lifeguard. He also meets Tank "The Shredder" Evans, an egotistical penguin who has won the Big Z Memorial nine times since it was first held after Z's disappearance during a previous match ten years ago. Cody sees him disrespecting Big Z's memorial and immediately challenges Tank to a surfing duel. Tank easily wins the duel while Cody nearly drowns in an accident. Lani rescues him and takes him to her uncle, the "Geek", to help Cody recover from his injuries. Cody wakes up and panics when he can't find the souvenir necklace he got as a kid from Big Z. Geek downplays the necklace, but decides to return it when he later finds it in his hut. While returning the necklace, Geek finds Cody sitting on an koa log and offers to help him make a perfect surfboard. They attempt to take the log back to Geek's house, only to lose control of it and end up on a beach far away from the contest. When Cody gets to the beach, he discovers a shack full of old trophies and surfboards, which are actually Z's belongings. After observing Geek solemnly reflecting in the shack, he realizes that Geek is actually Z and asks him to teach him how to surf. Reluctantly, Z agrees, but says that Cody has to make his own board first. The attempt doesn't go well, however, as an impatient Cody doesn't listen to Z's...
A: Surf's Up
Problem: Given the question: Suggest a movie title for the following movie plot: In 1940, Carl Fredricksen is a young 9-year-old boy who idolizes famous explorer Charles Muntz. Muntz has been accused of fabricating the skeleton of a giant exotic bird he says he discovered at Paradise Falls, and vows to return there to catch one alive. One day, Carl befriends a girl named Ellie, who is also a fan of Muntz. She confides to Carl her desire to move her "clubhouse"âan abandoned house in the neighborhoodâto a cliff overlooking Paradise Falls. Carl and Ellie eventually get married and live together in the restored house. Carl sells toy balloons from a cart at a zoo Ellie opens. After suffering a miscarriage[7] and being told they cannot have a child, the two decide to realize their dream of visiting Paradise Falls. They try to save for the trip, but repeatedly end up spending the money on more pressing needs. Finally, an elderly Carl arranges for the trip, but Ellie suddenly becomes ill and dies. Years later, Carl still lives in the house, stubbornly holding out as the surrounding neighborhood is torn down for new construction, but when he accidentally injures a construction worker over damage to his mailbox, a court orders him to move to a retirement home. However, Carl comes up with a scheme to keep his promise to Ellie, and turns his house into a makeshift airship, using thousands of helium balloons. Russell, a young Wilderness Explorer, becomes an accidental stowaway in his effort to earn his final merit badge for assisting the elderly. After surviving a thunderstorm, the flying house lands on a tepui opposite Paradise Falls. Carl and Russell harness themselves to the still-buoyant house and begin to walk it across the mesa, hoping to reach the falls before the balloons deflate. Russell encounters a tall, colorful flightless bird, whom he names "Kevin". They then meet a Golden Retriever named Dug, who wears a special collar that allows him to speak, and who vows to take the bird to his master. The group is set upon by a pack of aggressive dogs led by Alpha, a doberman (who is also...
++++++++++++++++++++++++++++++++
The answer is:
Up
input question: Suggest a movie title for the following movie plot: In The House Next Door, Col (Flynn Boyle) and her husband Walker (Ferguson) find their comfortable and suburban lifestyle suddenly interrupted when Kim (Gosselaar), an intense and ambitious architect, builds a stunning, modern house on the empty lot next to their quaint, charming home. While neighbors are thrilled to have such an upscale and exquisite addition to their street, Col and Walker begin to question the new house when strange and disturbing events begin to happen to those who live in the home.As Col and Walker watch their new neighbors come and go, it becomes clear that the beautiful home brings out the worst in all those that enter it, by amplifying their fears and frailties until it leads to disgrace, accidents, misfortunes and even death.???
output answer: The House Next Door
[Q]: Suggest a movie title for the following movie plot: In 1916, Tsar Nicholas II hosts a ball at the Catherine Palace to celebrate the Romanov tricentennial. His mother, the Dowager Empress Marie Feodorovna, is visiting from Paris and gives a music box and a necklace inscribed with the words âTogether in Parisâ as parting gifts to her youngest granddaughter, eight-year-old Grand Duchess Anastasia. The ball is suddenly interrupted by the sorcerer Grigori Rasputin, the former royal advisor of the Romanovs until he was banished by Nicholas II for treason. Feeling betrayed and seeking revenge, Rasputin sold his soul in exchange for an unholy reliquary, which he uses to place a curse on the Romanov family, sparking the Russian Revolution. Only Marie and Anastasia are able to escape the ensuing siege of the palace, thanks to a young servant boy named Dimitri who shows them a secret passageway in Anastasia's room. Rasputin confronts the two royals outside on a frozen river, only to fall through the ice and drown. The pair manage to reach a moving train, but only Marie climbs aboard while Anastasia falls, hitting her head on the platform and giving her amnesia. Ten years later in 1926, Russia is under communist rule and Marie has publicly offered 10 million rubles for the safe return of her granddaughter. Dimitri and his friend/partner-in-crime Vladimir search for a look-alike to bring to Paris and pass off as Anastasia so they can collect the reward. Elsewhere, Anastasia, now using the name "Anya", leaves the rural orphanage where she grew up, still suffering from amnesia. Accompanied by a stray puppy she names "Pooka", she decides to head to Saint Petersburg, inspired by the passage on the necklace she still has. She is unable to leave Russia due to not having an exit visa, but an old woman advises her to see Dimitri at the abandoned palace where he has made residence. There she encounters Dimitri and Vladimir, who are impressed by her resemblance to the "real" Anastasia and decide to take her with them to Paris. Bartok, Rasputin's albino bat minion, is nearby and...
****
[A]:
|
Anastasia
|
duorc_SelfRC_title_generation
|
P3
|
fs_opt
| 3
|
train
|
Problem: Suggest a movie title for the following movie plot: Tom Sawyer and Huckleberry Finn play hooky from school and have a plan to revive a dead cat with the spirit of a man named Hoss Williams who is on his death bed. Sawyer and Finn talk with Muff Potter, the town drunk, but are interrupted when Injun Joe says that Doc Robinson wants to see them. Muff and Joe meet Robinson and he informs them that they have a job to dig the grave of Williams. Joe is angry that Robinson didn't fix his leg correctly. Meanwhile, Tom continues to skip school and comes up with fantastic stories about why he's not home for dinner, where he tricks the children of the town to do his punishment chores for him. After Williams dies, the two go to the cemetery and find out that Muff and Joe are digging up a grave on the advice of Robinson. Joe continues to be angry at Robinson and demands more money for the job. When Robinson refuses, Injun Joe picks up a shovel, accidentally knocking Muff out, hits Doc Robinson into the grave with the shovel, then grabs Muff's knife and jumps in after Doc Robinson. Tom and Huck witness all this and then run off, making a pact not to tell anyone what they saw. Joe frames Muff for the murder and Muff goes to jail. Meanwhile, the beautiful Becky Thatcher moves to town which sends Sawyer into a romantic daze. At the trial for Muff, Tom is unable to contain himself as Joe is called to the stand and lies about the incident, continuing to frame Muff for the murder. As Tom is called to the stand, he relates what happened, not mentioning that Huck was with him. Suddenly, Injun Joe throws a knife at Tom, narrowly missing Tom's head and jumps out the window of the courthouse, fleeing. After the trial, Tom and Becky get "engaged" but that quickly ends when Tom mentions he's also engaged to Amy Lawrence. After sulking, Tom is attacked by Finn for "breaking the pact" and they both decide to run away. While paddling down the Mississippi, their raft is capsized by a passing riverboat and they end up on an island where they enjoy freedom and muse over what happened to Injun...
A: Tom Sawyer
Problem: Given the question: Suggest a movie title for the following movie plot: For years, the Republic of Wadiya has been ruled by Admiral General Haffaz Aladeen (Sacha Baron Cohen), a childish, tyrannical, sexist, anti-western, and antisemitic despot who surrounds himself with female bodyguards, sponsors al-Qaeda (specially giving shelter to Osama Bin Laden after "they killed his double one year ago") and is working on developing nuclear weapons to attack Israel. He also refused to sell Wadiya's oil fields, a promise he made to his father on his deathbed. After the United Nations Security Council resolves to intervene militarily, Aladeen travels to the UN Headquarters in New York to address the council. Shortly after arriving, Aladeen is kidnapped by Clayton (John C. Reilly), a hitman hired by his treacherous uncle Tamir (Ben Kingsley), whom Aladeen's father passed over as successor in favor of his son. Tamir then replaces Aladeen with a dimwitted political decoy named Efawadh (Baron Cohen), whom he intends to manipulate into signing a document nominally democratizing Wadiya while opening the country's oil fields to Chinese and other foreign vested interests. Aladeen escapes after Clayton accidentally kills himself in a botched torture attempt; when his corpse is discovered Tamir thinks Aladeen has been killed. However, Aladeen is practically unrecognizable as Clayton shaved off his trademark long beard prior to his death. Wandering through New York, Aladeen encounters Zoey (Anna Faris), a human rights activist who offers him a job at her socially progressive, alternative lifestyle co-op. Aladeen refuses the offer and encounters "Nuclear" Nadal (Jason Mantzoukas), the former chief of Wadiya's nuclear weapons program, whom Aladeen thought he had previously executed over an argument about the warhead's shape. Aladeen follows him to New York's "Little Wadiya" which is populated by refugees from his country, and meets him in Death to Aladeen Restaurant, run by and visited by numerous people whom Aladeen had personally ordered executed. Nadal saves Aladeen from nearly being recognized by...
++++++++++++++++++++++++++++++++
The answer is:
The Dictator
[Q]: Suggest a movie title for the following movie plot: Young Tony Thompson (Jonathan Lipnicki) moves with his family to Scotland from California, where his family takes up residence in a small castle while his father is employed building a golf course on the estate of Lord McAshton. Since arriving in his new home Tony has experienced recurring nightmares about vampires and a mysterious comet. Things also don't get any better for him at school as he gets picked on by bullies who happen to be the grandsons of his father's new boss. One night, while dressed up as a vampire, Tony is mistaken for one by the young vampire Rudolph (Rollo Weeks), who is on the run from the evil vampire hunter Rookery (Jim Carter). Tony helps Rudolph find a cow to feed from, and in return Rudolph takes Tony flying. The two boys quickly become friends, and Rudolph confides to Tony that his family only drink animal blood and wish to become human. Rudolph reveals that they are searching for a magical amulet than can be used to turn vampires into humans, but Rookery is also seeking to use the amulet against them. When Rudolph takes Tony to the cemetery where his family lives, they are confronted by Rudolph's parents Frederick (Richard E. Grant) and Freda (Alice Krige) and Rudolph's romantic sister Anna (Anna Popplewell) and rebellious teen brother Gregory (Dean Cook). Frederick doubts Tony's loyalty to his son, but when Tony helps repel an attack from Rookery, Frederick begrudgingly allows Tony to help them. Tony and Rudolph then proceed to get revenge on Flint and Nigel, the school bullies who beat Tony up everyday. Rookery alerts Lord McAshton to the presence of vampires in the village. Lord McAshton reveals that his family has known about the existence of vampires for generations. Elizabeth, an ancestor of Lord McAshton, was romantically involved with Rudolph's uncle Von, who was the last known holder of the amulet, and both lovers were killed by the McAshtons. Learning this, Tony, Rudolph, and Anna seek out Elizabeth's tomb, where Tony experiences a vision pointing out the location of the...
****
[A]:
|
The Little Vampire
|
duorc_SelfRC_title_generation
|
P3
|
fs_opt
| 3
|
train
|
Please answer this: Suggest a movie title for the following movie plot: Set during one long night, corrupt, flamboyant Atlantic City police detective Rick Santoro (Nicolas Cage) attends a boxing match at Gilbert Powell's (John Heard) Atlantic City Arena between heavyweight champion Lincoln Tyler (Stan Shaw) and challenger Jose Pacifico Ruiz. He meets up with his best friend since childhood, Kevin Dunne (Gary Sinise), who is a US Navy Commander working with the Department of Defense to escort Defense Secretary Charles Kirkland (Joel Fabiani) and Powell at the fight after a trip to Norfolk, Virginia. As the first round begins, Dunne is distracted by an attractive redhead named Serena (Jayne Heitmeyer) who wears a ruby ring, and leaves his seat, which is then taken by Julia Costello (Carla Gugino), a mysterious woman with silver-lined eyeglasses, platinum blonde hair and a white satin suit.When Tyler is unexpectedly knocked out by Ruiz, gunshots ring out, mortally wounding Kirkland and grazing Julia Costello's left arm, who loses her glasses and blonde wig, revealing her naturally dark hair. Dunne kills the sniper, and Santoro orders the arena to be locked down. Despite the lock down, Costello escapes into the casino, covers her wounds in pieces of cloth from her blouse and after stealing a blue satin jacket, disguises herself as a hooker.Santoro becomes suspicious when he notices that the "knocked out" Tyler woke up instantly when the shots rang out, and after studying the fight tape, realizes the knockout punch didn't connect. Tyler confesses that he threw the fight in order to pay gambling debts, but he was never told that anyone would be killed, and reveals that he was paid to take a dive by Serena, the same woman in red who tricked Dunne into leaving his post.With the involvement of Tyler, Serena and the sniper - in addition to the man who signaled Tyler to go down and whoever gave him the go-ahead - Santoro suspects a conspiracy and reveals everything he has learned to Dunne. Dunne confesses that the trip to Norfolk was for a test of the AirGuard missile defense system, which...
++++++++
Answer: Snake Eyes
Problem: Suggest a movie title for the following movie plot: Ryu is a deaf-mute man working in a factory. His ailing sister is in desperate need of a kidney transplant, but Ryu's is not a match. After he is laid off from his job, Ryu takes his severance money and contacts a black market organ dealer to exchange one of his kidneys for one that his sister can use. The dealers disappear after taking Ryu's kidney and money. Three weeks later, Ryu learns from his doctor that a donor has been found, but he is unable to afford the operation. To raise money for the operation, Yeong-mi, Ryu's radical anarchist girlfriend, suggests kidnapping the daughter of an executive that fired Ryu. They kidnap Yu-sun, the young daughter of Dong-jin. The girl stays with Ryu's sister, who believes Ryu is merely babysitting her. Ryu and Yeong-mi successfully collect the ransom from Dong-jin. However, Ryu's sister discovers the plan and commits suicide to stop being a burden to him. Ryu takes Yu-sun and his sister's body to a suburban riverbed they used to frequent as children, and begins to bury her. Distracted by the burial and unable to hear, Ryu is unaware when Yu-sun slips into the river, and she drowns. As Dong-jin mourns his daughter, he hires an investigator to find her kidnappers. Dong-jin finds Yeong-mi and tortures her. She apologizes for Yu-sun's death, but warns Dong-jin that her friends (a terrorist group) will kill him if she dies. Unfazed by the threats, Dong-jin electrocutes her. Meanwhile, Ryu locates and murders the organ dealers. He returns to Yeong-mi's apartment and sees the police removing her corpse. Ryu and Dong-jin wait at each other's residence in an attempt to kill the other. Ryu, the first to return home, is knocked unconscious by Dong-jin's booby trap. Dong-jin takes Ryu to the riverbed where his daughter died, slashes his Achilles tendons and waits for Ryu to bleed to death. After dismembering Ryu's corpse, Dong-jin begins digging a hole, when a group of men arrive. After surrounding and stabbing Dong-jin, one man pins a note to his chest with a knife. The note...
A: Sympathy for Mr. Vengeance
Q: Suggest a movie title for the following movie plot: Autographed Julie Adams still featuring the Creature menacing Kay. A geology expedition in the Amazon uncovers fossilized evidence from the Devonian period of a link between land and sea animals: a skeletal hand with webbed fingers. Expedition leader Dr. Carl Maia (Antonio Moreno) visits his friend and former student, Dr. David Reed (Richard Carlson), an ichthyologist. He works at an aquarium in California and has also been a guest at Maia's marine biology institute in Brazil for more than a month. Reed persuades his boss, the financially-minded Dr. Mark Williams (Richard Denning), to fund a return expedition to the Amazon to look for the remainder of the skeleton. The group goes aboard the tramp steamer Rita, which is captained by crusty old Lucas (Nestor Paiva). The expedition consists of David, Carl, and Mark, as well as Reed's girlfriend and colleague, Kay Lawrence (Julie Adams), and another scientist, Dr. Edwin Thompson (Whit Bissell). When they arrive at the camp, they discover that Maia's entire research team has been mysteriously killed while he was away. Lucas suggests it was likely done by a jaguar, but the others are unsure. In fact, the camp was attacked by a piscine amphibious humanoid, a living member of the same species from which the fossil originated. The creature, curious about the expedition, goes to the camp. When its sudden appearance frightens the members, they attack it, and in response the enraged creature kills them. The excavation of the area where Carl found the hand turns up nothing. Mark is ready to give up the search, but David suggests that perhaps thousands of years ago the part of the embankment containing the rest of the skeleton fell into the water and was washed downriver, broken up by the current. Lucas says that the tributary empties into a lagoon. Lucas calls it the "Black Lagoon", a paradise from which no one has ever returned. The scientists decide to risk it, unaware that the amphibious "Gill-man" that killed Carl's assistants earlier has been watching them. Taking...
A:
|
Creature from the Black Lagoon
|
duorc_SelfRC_title_generation
|
P3
|
fs_opt
| 1
|
train
|
Suggest a movie title for the following movie plot: Nithya (Shobana) is the deputy commissioner of the city who lives with her Valliyachan (Janardhanan) since both her parents were killed in an accident. She was put on to investigate a corruption case done by the Home Minister and his friend a business man called Rajan Phillip (Cochin Haneefa). Unknowingly she was helped in the investigation by a criminal nicknamed Superman (Jayaram). Superman aka Harikrishnan nurtures a vendetta with the home minister and rajan phillip and uses Nithya to trap his enemies. In the whole process Superman uses Judiciary as his weapon, by providing vital evidences to Nithya at times in order to collect evidences Superman himself breaks the law, but as it is for the greater good it is forgiven by Nithya in the end.
----
Answer: Superman
Suggest a movie title for the following movie plot: Grace Stewart (Nicole Kidman) is a devout Roman Catholic mother who lives with her two young children in a remote country house in the British Crown Dependency of Jersey in the immediate aftermath of World War II. The children, Anne (Alakina Mann) and Nicholas (James Bentley), have an uncommon disease, characterized by photosensitivity, so their lives are structured around a series of complex rules to protect them from inadvertent exposure to sunlight. The arrival of three servants at the house â aging Mrs. Bertha Mills (Fionnula Flanagan), elderly gardener Edmund Tuttle (Eric Sykes), and a mute girl named Lydia (Elaine Cassidy) â coincides with a number of odd events, and Grace begins to fear there are unknown others in the house. Anne draws pictures of four people she has seen in the house numerous times: a man, woman, a boy called Victor, and an old woman. Grace finds a 19th-century "book of the dead", an album of mourning portrait photos of deceased family members from a previous generation, with some missing pages. She hears noises in the house. With the servants, she tries hunting down the intruders but cannot find them. She does not believe her daughter has seen the others until she hears the ghosts herself. Convinced that something unholy is in the house, she runs out in the fog in search of the local priest to bless the house. Meanwhile, Mr. Tuttle is covering gravestones under autumn leaves. Outside, Grace discovers her husband Charles (Christopher Eccleston), whom she thought had been killed in the war, and brings him back to the house. Charles is distant during the short time he spends there, and Mrs. Mills says, "I do not think he knows where he is." During this time, Grace attacks someone dressed up like her daughter; she is frightened by the face she sees underneath Anne's First Communion veil. However, she finds that she has actually attacked her daughter. Mrs. Mills tells a distraught Anne that she too has seen the unknown people in the house and that big changes are coming. Charles says...
----
Answer: The Others
Suggest a movie title for the following movie plot: While testing a communications laser in a remote part of the Congo jungle, TraviCom employees Charles Travis (Bruce Campbell) and Jeffrey Weems (Taylor Nichols) discover the ruins of a lost city near a volcanic site. Karen Ross (Laura Linney), assisting at TraviCom's headquarters, does not hear back from their team and activates a remote camera at the camp, discovering the camp destroyed and numerous corpses; something large suddenly knocks over and destroys the camera. Karen alerts TraviCom's CEO and Charles' father, R.B. Travis (Joe Don Baker), who informs her that the group was really there looking for a rare blue diamond only found there which would greatly enhance their capabilities, but does not offer any hope to rescue them. Travis implores Karen to lead an expedition and she makes Travis swear that he is sending her to look for Charles, not the diamond. Meanwhile, Dr. Peter Elliott (Dylan Walsh), a primatologist at the University of California, Berkeley, and his assistant Richard (Grant Heslov) teach human communication to primates using a gorilla named Amy (voiced by Shayna Fox). With a special backpack and glove, her sign language is translated to a digitized voice. Despite the success, Peter is concerned that Amy is having nightmares and psychological problems, due to several drawings Amy has made of jungles and the Eye of Providence. Peter attempts to gain funding to take Amy to Africa, but the university is reluctant, and Peter begins inquiring elsewhere. Romanian philanthropist Herkermer Homolka (Tim Curry) offers to fund the expedition; Karen, having learned of the trip, offers to fund it as well and to come along, hoping to discover the fate of her team. In Africa, the group meets their expert guide Captain Munro Kelly (Ernie Hudson) but they are captured by the local authorities and militia leader named Captain Wanta (Delroy Lindo) who grants them passage for a sizable bribe. As the group boards another plane, Munro reveals that Homolka has led previous safaris in search of the "Lost City of...
----
Answer:
|
Congo
|
duorc_SelfRC_title_generation
|
P3
|
fs_opt
| 1
|
train
|
Suggest a movie title for the following movie plot: In 2009, a genetically re-engineered measles virus, originally created as a cure for cancer, turns into a lethal strain which kills 94% of those it infects, mutates 5% into predatory, nocturnal mutants called "Darkseekers" who are extremely vulnerable to sunlight and other sources of UV, with only the remaining 1% immune. Three years after the outbreak, US Army virologist Lieutenant Colonel Robert Neville (Will Smith) lives an isolated life in the ruins of New York City, which is now deserted, unsure if any other uninfected humans are left in the world. The effects of the virus vary in other species, animals that coexist with humans like rats and domestic dogs are infected but wild animals like deer and lions are unaffected. The city has fallen into ruins and overgrown vegetation covers crumbling buildings and wild deer roam the streets while being preyed upon by lions that have escaped Central Park Zoo. Neville's daily routine includes experimentation on infected rats to find a cure for the virus and trips through Manhattan to hunt for food and supplies. He also waits each day for a response to his continuous recorded radio broadcasts, which instruct any uninfected survivors to meet him at midday at the South Street Seaport. Flashbacks reveal that his wife (Salli Richardson) and daughter (Willow Smith) died in a helicopter accident during the chaotic evacuation of Manhattan, prior to the military-enforced quarantine of the island in 2009, in which Neville stays behind on the island as military personnel. Neville's loneliness is mitigated by the companionship of his German Shepherd Sam (given to him by his daughter Marley as a puppy to protect him before she died in the helicopter crash), interaction with mannequins he has set up as patrons at a video store, and recordings of old television broadcasts. At night, he barricades himself and Sam inside his heavily fortified Washington Square Park home to hide from the Darkseekers. One day while waiting for survivors, Sam follows a deer into a dark building....
|
I Am Legend
|
duorc_SelfRC_title_generation
|
P3
|
zs_noopt
| 0
|
test
|
Suggest a movie title for the following movie plot: In Venice, California, student Daisy (Merissa Mathes) leaves a club alone after having an argument with her beatnik boyfriend Max (Carl Schanzer). Walking through the deserted streets, she stops to admire some gruesome paintings in a gallery window painted by artist Antonio Sordi (Campbell), who coincidentally also comes by to look in on his "lost children." After a friendly conversation, Sordi convinces the young woman to pose nude for him that night. At his bell-tower studio, Sordi is possessed by the spirit of a long-dead ancestor and suddenly transforms into a vampiric monster who hacks the screaming Daisy to death with a cleaver. Afterwards, he lowers her mutilated corpse into a vat of boiling wax. Sordi, in his vampire form, stalks Venice in search of victims; he is able to do so freely at all hours. In the middle of the day, he chases a young woman into the surf at a beach and drowns her. At night, he kills a prostitute in a car while pedestrians stroll by, all of them assuming the pair are lovers sharing an intimate moment. Another victim is approached at a party, chased into a swimming pool, and drowned there after the other guests have moved into the house. The murdered women are carried back to Sordi's studio and painted by the artist, their bodies then covered in wax. Max wants to make up with Daisy but cannot find her anywhere. Learning that she has posed for Sordi and become the subject of the latest in the artist's series of "Dead Red Nudes," he visits her sister Donna (Sandra Knight) to ask her forgiveness. Donna tells Max she hasn't seen Daisy for days, and is concerned about the recent rash of disappearances. She reads Max the legend of Sordi's 15th-century ancestor Erno, a painter condemned to be burned at the stake for capturing his subjects' souls on canvas. Unable to convince Max that Antonio Sordi might also be a vampire, she confronts the artist at his studio and asks him if he has seen Daisy. He angrily brushes her off. That night, he later follows her through the streets and murders...
----
Answer: Blood Bath
Q: Suggest a movie title for the following movie plot: Dalton Russell (Clive Owen), seated in what appears to be a jail cell, opens the film with a prologue about having carried out the "perfect robbery". A team of masked robbers, dressed as painters who call each other by variants of the name "Steve", seize control of a Manhattan bank and take the employees and patrons hostage. They divide the hostages into groups and hold them in different rooms. Additionally, they take all of the hostages' clothes and dress everyone in jumpsuits and masks identical to those of the robbers. This way, the robbers and hostages will be indistinguishable to the police. Police surround the bank and detectives Keith Frazier (Denzel Washington) and Bill Mitchell (Chiwetel Ejiofor) take charge of the negotiations. Russell, the leader of the robbers, demands food. The police supply pizzas whose boxes include listening devices; these pick up a language which the police finally identify as Albanian. However, they discover that the conversations are just old propaganda recordings of the deceased Albanian communist dictator Enver Hoxha; it becomes clear that the robbers anticipated surveillance. After being informed of the robbery, Arthur Case (Christopher Plummer), the chairman of the board of directors and founder of the bank, hires "fixer" Madeleine White (Jodie Foster) to try to protect the contents of his safe deposit box within the bank. White, with assistance from the Mayor of New York City, arranges a conversation with Russell, who allows her to enter the bank and inspect the contents of the box, which include documents from Nazi Germany. Russell implies that Case started his bank with money that he received from the Nazis for unspecified services, resulting in the deaths of many Jewish people during World War II. White tells Russell that Case will pay him a substantial sum to destroy the contents of the box. She claims she can arrange a minimal jail sentence as Russell and his team have not yet stolen anything or hurt or killed anyone; Russell declines her offers. Frazier demands...
A: Inside Man
Suggest a movie title for the following movie plot: In the not-too-distant future in which society is teetering upon the brink of collapse, berserk motorbike gang member Crawford "Nightrider" Montazano (Vincent Gil) steals a Pursuit Special, which he uses to escape from police custody after killing a rookie officer of an Australian highway patrol called the Main Force Patrol (MFP). Even though he manages to elude other MFP officers, the MFP's top-pursuit man Max Rockatansky (Mel Gibson) then engages the less-skilled Nightrider in a high-speed chase. He breaks off first, but then is unable to recover his concentration before he and his girlfriend (Lulu Pinkus) are killed in a fiery crash. Nightrider's motorbike gang, led by Toecutter (Hugh Keays-Byrne) and Bubba Zanetti (Geoff Parry), run roughshod over a town, vandalizing property, stealing fuel, and terrorizing the population. Max and fellow officer Jim Goose (Steve Bisley) subsequently arrest Toecutter's young protégé Johnny the Boy (Tim Burns), who was too high to leave the scene of the gang's rape of a young couple. When neither the rape victims nor any of the townspeople show for Johnny's trial, the federal courts close the case, releasing Johnny into Bubba's custody over Goose's furious objections. While Goose visits a nightclub in the city the next day, Johnny sabotages his police motorbike in the parking lot. After being thrown into a field at high speed while taking a ride uninjured, Goose borrows a ute to haul his damaged bike back to the MFP. However, Johnny throws a brake drum at the windscreen, causing Goose to crash the ute. Toecutter forces Johnny to throw a match into the petrol leaking from the wreck, triggering an inferno and severely burning the inverted Goose. After seeing Goose's charred body in a hospital intensive-care unit, Max becomes disillusioned with the MFP and informs his superior Fifi Macaffee (Roger Ward) that he will resign. Fifi convinces Max to take a vacation first before he can make his final decision about leaving. While on vacation, Max's wife Jessie (Joanne Samuel) and...
----
Answer:
|
Mad Max
|
duorc_SelfRC_title_generation
|
P3
|
fs_opt
| 0
|
validation
|
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Let me give you an example: [1,2,3,4,5]
The answer to this example can be: [120, 60, 40, 30, 24]
Here is why: The given list contains five elements, so the answer should contain five elements too. The first element of the answer equals the product of first, second, third, fourth and fifth elements from the given list. That is: 2x3x4x5 = 120. The second element is the product of the first, third, fourth and fifth elements from the given list. That is: 1x3x4x5=60. The other elements are also calculated like this.
OK. solve this:
[8, 0, 11, 4, 7, 10, 12, 3]
Answer:
|
[0, 887040, 0, 0, 0, 0, 0, 0]
|
task1088_array_of_products
|
NIv2
|
fs_opt
| 8
|
train
|
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Example input: [1,2,3,4,5]
Example output: [120, 60, 40, 30, 24]
Example explanation: The given list contains five elements, so the answer should contain five elements too. The first element of the answer equals the product of first, second, third, fourth and fifth elements from the given list. That is: 2x3x4x5 = 120. The second element is the product of the first, third, fourth and fifth elements from the given list. That is: 1x3x4x5=60. The other elements are also calculated like this.
Q: [1, 4, 10, 7, 12, 2, 8, 0]
A:
|
[0, 0, 0, 0, 0, 0, 0, 53760]
|
task1088_array_of_products
|
NIv2
|
fs_opt
| 3
|
train
|
You will be given a definition of a task first, then an example. Follow the example to solve a new instance of the task.
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
[1,2,3,4,5]
Solution: [120, 60, 40, 30, 24]
Why? The given list contains five elements, so the answer should contain five elements too. The first element of the answer equals the product of first, second, third, fourth and fifth elements from the given list. That is: 2x3x4x5 = 120. The second element is the product of the first, third, fourth and fifth elements from the given list. That is: 1x3x4x5=60. The other elements are also calculated like this.
New input: [7, 5, 2, 0, 6, 4, 13, 14]
Solution:
|
[0, 0, 0, 305760, 0, 0, 0, 0]
|
task1088_array_of_products
|
NIv2
|
fs_opt
| 0
|
train
|
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Example Input: [3, 11, 1, 12, 8, 14, 13, 5]
Example Output: [960960, 262080, 2882880, 240240, 360360, 205920, 221760, 576576]
Example Input: [11, 2, 0, 14, 13, 10, 12, 4]
Example Output: [0, 0, 1921920, 0, 0, 0, 0, 0]
Example Input: [3, 0, 14, 2, 5, 4, 11, 9]
Example Output:
|
[0, 166320, 0, 0, 0, 0, 0, 0]
|
task1088_array_of_products
|
NIv2
|
fs_opt
| 3
|
train
|
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Let me give you an example: [1,2,3,4,5]
The answer to this example can be: [120, 60, 40, 30, 24]
Here is why: The given list contains five elements, so the answer should contain five elements too. The first element of the answer equals the product of first, second, third, fourth and fifth elements from the given list. That is: 2x3x4x5 = 120. The second element is the product of the first, third, fourth and fifth elements from the given list. That is: 1x3x4x5=60. The other elements are also calculated like this.
OK. solve this:
[0, 8, 12, 5, 1, 13, 11, 14]
Answer:
|
[960960, 0, 0, 0, 0, 0, 0, 0]
|
task1088_array_of_products
|
NIv2
|
fs_opt
| 8
|
train
|
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Example: [1,2,3,4,5]
Example solution: [120, 60, 40, 30, 24]
Example explanation: The given list contains five elements, so the answer should contain five elements too. The first element of the answer equals the product of first, second, third, fourth and fifth elements from the given list. That is: 2x3x4x5 = 120. The second element is the product of the first, third, fourth and fifth elements from the given list. That is: 1x3x4x5=60. The other elements are also calculated like this.
Problem: [12, 0, 6, 11, 7, 2, 1, 5]
|
Solution: [0, 55440, 0, 0, 0, 0, 0, 0]
|
task1088_array_of_products
|
NIv2
|
fs_opt
| 5
|
train
|
Detailed Instructions: You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Q: [4, 5, 6, 11, 12, 9, 2, 14]
A:
|
[997920, 798336, 665280, 362880, 332640, 443520, 1995840, 285120]
|
task1088_array_of_products
|
NIv2
|
zs_opt
| 9
|
train
|
Part 1. Definition
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Part 2. Example
[1,2,3,4,5]
Answer: [120, 60, 40, 30, 24]
Explanation: The given list contains five elements, so the answer should contain five elements too. The first element of the answer equals the product of first, second, third, fourth and fifth elements from the given list. That is: 2x3x4x5 = 120. The second element is the product of the first, third, fourth and fifth elements from the given list. That is: 1x3x4x5=60. The other elements are also calculated like this.
Part 3. Exercise
[10, 14, 7, 1, 2, 5, 0, 3]
Answer:
|
[0, 0, 0, 0, 0, 0, 29400, 0]
|
task1088_array_of_products
|
NIv2
|
fs_opt
| 7
|
train
|
Instructions: You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
Input: [11, 13, 12, 6, 3, 10, 0, 5]
Output:
|
[0, 0, 0, 0, 0, 0, 1544400, 0]
|
task1088_array_of_products
|
NIv2
|
zs_opt
| 3
|
test
|
You are given a list of integers. A list is shown by comma-separated numbers between two brackets. For example, [7,3,6] is a list. The number in location one is 7, the number in location two is 3, and the number in location three is 6. You should answer with a list such that every element at each location is equal to the product of elements at every other location in the input array. For example, if a list has four numbers, the answer you give should be created like this: First element of your list = product of second, third, and fourth elements in the given list. Second element of your list = product of First, third and fourth elements in the given list, etc.
[2, 6, 9, 7, 11, 4, 5, 8]
|
[665280, 221760, 147840, 190080, 120960, 332640, 266112, 166320]
|
task1088_array_of_products
|
NIv2
|
zs_opt
| 0
|
validation
|
We had takeaway from here, and it was pretty tasteless and yucky, unfortunately. The noodles were unexciting at best, duck was mushy and the sauce for the sweet and sour pork was very sharp indeed. Really cannot recommend going here or, in fact, any of the Chinese restaurants in Morningside, which is a real disappointment.
Is this review positive or negative?
|
negative
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
zs_noopt
| 0
|
train
|
When you own and work at a Bar & Grille one can understand how difficult that may be, but please don't loose site of your clientele. The food, overall is good and mostly homemade, which is a plus. But I am always disappointed by the bar staff...it seems that I am always an inconvenience to them. I could understand long wait times if the place was overflowing with people but when you are one of four at the bar...really?
What is the sentiment of this review?
|
negative
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
zs_noopt
| 1
|
train
|
Problem: Write a negative (OPTIONS:
- negative
- positive) yelp review.
A: http://www.youtube.com/watch?v=CUjpkXoiN-Y Not only did it take 30 minutes to be seated, it took another 30 to get our drinks. And an hour on top of that to get our food. Once we got the food, we were interrupted by a server who had dropped a card in the slot between the table and the window. Instead of reseating us, they actually made half of the dinner party stand around and wait for them to dig for about 20 minutes. When the manager approached us after the fact, he offered us dessert. We had our own cake because it was a going away party...so then he decided to offer us ice cream like that would solve the problem. No thanks. Oh wait, then he asked us if we wanted a candle...no...it's not a birthday and none of us are turning 1. So then he ASKS if we want a discount. Well, considering the fact we couldnt even enjoy the meal, one should have automatically been given. No need to ask. Horrible service. Horrible experience. At least I had an awesome group of people with me!!!! I will never return to Kabuki. Unacceptable.
Q: negative
A: While the hotel appears new and modern, some creepy old problems exist inside, namely bed bugs. After a day of heavy travel, we fell into bed only to awake to find dead bed bugs on our sheets. We notified the front desk, asked to have the sheets changed, only to return after hours to the same sheets. With the Ryder Cup in town, we couldn't change hotels. Also, the interior doors are all spring loaded with electromagnets and randomly slam shut. In addition there is very limited bathroom counter space. The staff is pleasant. The location is only 15 minute walk from the Royal Mile.
Problem: What would be an example of an positive (OPTIONS:
- negative
- positive) review?
Answer: I'd like to preface this by stating that I know of few people who can appreciate a steak more than I do. That said, CUT was by far the best steak I've ever had in my life, and I've been fortunate enough to eat at some pretty good steakhouses. Of course I knew my tab was going to be expensive going into the meal, so I let any inhibitions about money at the front door. I ordered a medium 8 oz wagyu petite filet ($100) with no sauces or rubs - I wanted to truly experience the steak and its flavors. When the steak came out, it was a perfect medium in the center, well marbled, tender, and felt like it was literally melting in my mouth. I normally eat incredibly fast because my line of work requires it - but this meal I ate as slowly as I ever have to prolong the experience as long as possible. I'd probably still be at the table now, 48 hours later, if it weren't for the fact that my steak was getting cold. If you can foot at least $150 a head, I highly recommend CUT for your next Vegas trip. The food was to die for, the staff well mannered and professional, and ambiance terrific. I live in LA and can't wait to try the one out here now.
Input: OPTIONS:
- negative
- positive.
Generate a negative review for a place
Output: Shouldn't even get a star b/c I usually get to go a lot and evidently you must need a masters degree to add extra celery now b/c I get it all the time and they told me I couldn't have it and one one my orders was wrong and b4 I could place another order the girl was pretty much done w/me. They need to hire people w/some common sense and stop hiring people who acted like they just got off the party from the night b4. When I called to tell them about them messing up my order the girl didn't even get my name or even care to apologize to me. Won't go back for a while.
input: Write a negative yelp review (OPTIONS:
- negative
- positive).
output: Pretty can't make up for all the suck. -The line(s) to get in were stupid. Baaaaaa, you feel like a sheep. - It was waaaay over crowded. There was only room for the beautiful people to stand around beautifully. -Don't go there to dance. The "dance" floors are standing room only. -The music sucked. The DJ played the same dance song beat all effing night. -Only the people that pay for bottle service get to set down. - Drinks were Vegas priced (insane for no reason). -It's a long way down when you are ready to GTFO. The club was pretty, the pool was pretty, the private bungalows were pretty. If you are going for pretty, this is the place. If you must go, get on the guest list. At least save yourself the 20-30 dollar cover. Use the internet to figure out how to do that. Edit: The place didn't smell like vomit, unlike several other Vegas establishments.
input: Write a negative yelp review (OPTIONS:
- negative
- positive).
output:
|
If losing weight is what you're after, come here. My friend and I were craving Thai food and the closest place to his house was this. Wrong place, wrong time to want delicious Thai treats. The place had lots of empty tables at dinner time. We placed a to-go order and waited a few minutes. We got fried tofu, beef Thai spicy salad, sweet and sour chicken and Thai iced tea. Fried Tofu: Average and nothing special which is a shame because I love tofu. The peanut sauce was bland and super runny. 1/5 Beef Thai Spicy Salad: Thin slices of beef on a bed of unchopped/ unshredded lettuce, carrots, cucumbers, and I asked for no onions. It was as if it was too damn tideous to chop lettuce! The dressing was pretty good - a little sweet and spicy and you can choose on the spicy level from 1-10. 3/5 Sweet and Sour Chicken: The worst thing to order but this is what my friend wanted. He ate a few pieces until he noticed a very bloody piece of chicken. Seriously, that is plain gross. Salmonella!!! Which reminds me, I should probably check if my friend has puked his brains out. 1/5...make that -5/5 Why even bother running a restaurant if you can't even do the basics? Chopping lettuce and you know, cooking chicken. Salmonella: lose 9lbs in 3 days or your money back! Pad See EEEEEWWWW!!!
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
fs_opt
| 4
|
train
|
Input: What would be an example of an negative review?
An example of an negative review: This is NOT a place to take your meat-eating friends that have not experienced a vegan restaraunt! I love trying new vegan restaraunts and was sad about this one. The food is just not that great, I think they could do much better. Do not order the chicken salad, it is a few peices of veg chicken on top of a bed of shredded cabbage with squeezed lemon, that's it! The sweet & sour chicken is not so great either, or the Hawaiian Burger... The pink lady drink is great though. Definetly try this if you like veg food, but again dont try to impress meat-eaters with this place...
Input: What would be an example of an positive review?
An example of an positive review: New twist on the classic burger, skeptical at first but I fell in love. Ronin Burger is great so are the Oxtail fries (I think that's what they are called). Try it out. You'll love it.
Input: What would be an example of an negative review?
An example of an negative review: The curtains are held up by PVC piping that should say it all. I went there for lunch - place was 10 percent occupied and still took 1 hour for food to come. On top of that food was piss poor - I ordered the pork dish - tasted and looked like old frozen pork that was nuked. Never going back
Input: What would be an example of an negative review?
|
An example of an negative review: I frequented this location approximately 3-4 times a week for almost five years. It used to have the best manager and quick service. The food used to be great and the orders accurate. Now it is totally in shambles and I had to stop going in because I didn't have the time to wait for their slow, terrible service. Not to mention the last half dozen times they were out of my flavor coffee. Will not go to this location ever again, it is in a terrible state.
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
fs_noopt
| 4
|
train
|
Q: positive
A: New BBQ place in this part of town so I had to try it out. I had the rib tips and the peach cobbler. Both were delicious! The rib tips were meaty and had a great smokey flavor. They were very juicy and not over cooked as most places tend to do. The peach cobbler was very tasty with just the right amount of nutmeg. Reminds me of the BBQ joints I used to go to growing up in Mississippi! Highly recommended.
Q: positive
A: Salon Bossa Nova is as good as it gets when it comes to cuts and customer service. I've been going to SBN now since early last summer. There's never any doubt what I'm going to get when I'm there. My stylist, Cassie, is always on time, doesn't talk my ear off, gives a very relaxing hair wash, knows what to do with my hair without asking, and is passionate about her craft. She consistently does a great job. The salon, if I'm not mistaken, also offers a wide range of services. I'm pretty confident that every one of the services and stylist are great. If you're close to them and you get a chance to try them let me know what you think. Note: I submitted a request to yelp to update their address. Currently the address shows that they are in Tempe. They are actually in Chandler next to the World Market off of Ray Rd. http://www.salonbossanova.com/
Q: negative
A: Beer still warm and service slow. Food was not hot. You would think they would want to have the coldest beer but as usual, they don't seem to care. Place is always empty and the reputation is going down
Q: negative
A:
|
Good, overpriced burger joint on Nellis and Vegas Valley. This is not a $ IMHO; it should be $$ since you are paying near $10/burger. It's not a good neighborhood so get your burger to go. Get you drinks at the McDonald's across the street since they're going for $1 these days... My bottom line? If taste means that much and you cannot possibly go 1 extra mile north up Nellis to get to an equally flavorful contender at In-N-Out, then knock yourself out spending that discretionary gas money on a Fatburger special. Otherwise, move on down the road in either direction (In-N-Out to the north, Original Tommy's to the south) and get a competitive burger with gas money in tact. The true rating for me on this is actually 2.4 stars for demerits re: location, price and not compensating for surrounding competition...
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
fs_opt
| 2
|
train
|
Problem: Write a positive (OPTIONS:
- negative
- positive) yelp review.
A: So there was a group of 8 of us ready to eat the heart attack on a plate that is prime rib, mash potatoes w/ gravy, creamed spinach and Yorkshire pudding made w/ pan drippings. YUMMY! We all brought a few bottles of special wine ($15 corking fee per bottle). Not to say their wine list is off but it's not the best in my opinion. Our waitress was funny, attentive and a very good sport considering we were throwing down some serious wine. We all had the prime rib, of course. WHO in their right mind would get anything else? The spinning salad served prior to dinner is made table side and it never disappoints. I HATE BEETS but why do I love them in this salad? I will have to explore that at a later time. Anyway, as expected, food was fab, service even better and they sang me a little song for my birthday and brought me a nice piece of cake. I am a big fan of this place and I even steal the recipes from their website to make my own creamed spinach, creamed horseradish and prime rib. Mine MIGHT be better! Bobby Flay Throwdown?!? Perhaps! Lawry's...ring me up and let's do this!
Q: negative
A: Bartender took ten minutes to ask for my order. I then paid, and she didn't bring me change from the transaction. I thought that was presumptuous for someone who took so long to acknowledge my existence.
Problem: What would be an example of an negative (OPTIONS:
- negative
- positive) review?
Answer: I've come here twice using the take out window. I've had the frozen hot chocolate the first time and got the banana split to go the second time. The frozen hot chocolate was not memorable and the banana split was good but both were way overpriced, $10 or more. Try the frozen hot chocolate as this is what they are known for, but if you want ice cream there are way cheaper alternatives.
Input: OPTIONS:
- negative
- positive.
Generate a negative review for a place
Output: Evidently this place is open 24 hours a day. That's great. My roommate can throw up in the toilet 24 hours a day. I'm not sure I can tell the difference. Basically take the worst of Sbarro's and combine that with the worst of Domino's. Call it "New York Pizza" and you've got Gus'. Stopped in after visiting friends in Phoenix, with whom I went to Tempe(?). But it's kind of fun to go and say the next day, "why the hell did we go there last night?"
input: Write a negative yelp review (OPTIONS:
- negative
- positive).
output: Tried to stop in, and they were out of food.
Input: OPTIONS:
- negative
- positive.
Generate a positive review for a place
Output:
|
I came into Chapman Ford yesterday knowing what I was looking for in terms of a vehicle - 2013 Ford Fusion SE with the 2.0L Ecoboost engine. I had been looking into the newly redesigned Fusions for quite some time online so it was just a matter of time until we made the trip to the dealership to pick one out. Upon driving onto the lot I was immediately greeted by "JR" Baugh, our salesman and he was great throughout the whole buying experience. We hopped into the the Fusion right away and took it for a fairly lengthy test drive which turned out to be great. The car basically sells itself and "JR" was there to provide additional support when we had questions. Everyone at the dealership was welcoming and friendly the whole time, and we weren't on the property for too long which was nice as well. I highly recommend Chapman Ford in Scottsdale, primarily for their friendly staff and lower-pressure salespeople. You can buy a car anywhere, but you purchase it when the staff makes you feel comfortable in doing so - well done Chapman Ford.
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
fs_opt
| 3
|
train
|
It's too bad that the food is decent because the customer service is wretched. We have been going here on and off for the last two years and seems that this place cannot hire competent people. We started calling in our orders because the wait time was so long and the only thing to watch was the lazy staff make jokes with each other. But here is the kicker that sealed the Bagel Bin's fate with us. Today I called in my order. I arrived to pick it up just as it was being finished. A young tall eye-glassed employee maybe with ADD unfolded a paper bag and attempted to catch a fly. He was bored with that so he moved behind the register to play with styrofoam cups. The girl that made my bagels grabbed the bag that this dim-witt was using as a fly-swatter. I spoke up and requested another bag since Harry Pot-stick was catching flies with that one. She apologized but the idiot kid laughed and continued laughing while I walked out. WTF. Done with this joint.
Choose the sentiment of this review?
Available choices:
[i] negative;
[ii] positive;
|
[i]
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
zs_opt
| 1
|
train
|
Problem: Write a negative (OPTIONS:
- negative
- positive) yelp review.
A: I rarely give restaurants a single star rating, and the thing is the food here is okay. What i did not enjoy was being seated directly next to an outdoor dumpster, complete with garbage smell and flies everywhere. Avoid the outdoor seating, bc just about EVERYTIME we go there, we get stuck sitting next ot the damn trash can. The hostesses always try to seat that table bc no one wants to sit there. Its fucking disgusting. We asked to be moved and the hostess was crappy about it and said that all the seats inside were full and that we would have to wait. the last time we sat outside, our waitress took our drink order and then no one came out for like, 30 min. then the waitress told us she forgot she was our waitress. the trick is to eat inside, at the bar. or avoid this place completely. why the hell they cant move the dumpster is beyond me, but i get grossed out just thinking about it.
Q: negative
A: I still cant get over why there's a country bar in Old Town, but I guess it has worked out for the owners. It'll be interesting to see how this place will fare when this country music trend dies out. I've only been 3 or 4 times since they've opened and I was dragged there each time kicking and screaming. Drinks are strong and that's about it... not sure how to two-step and they don't play anything but country. Not for me, but okay for other people.
Problem: What would be an example of an negative (OPTIONS:
- negative
- positive) review?
Answer: Had booked reservation two days pior and Did not accommodate their mishap for not finding us in their reservation because someone didn't write it down and was unwilling to correct it. Made us wait when we had reservation. Manager glenn unwilling to help
Input: OPTIONS:
- negative
- positive.
Generate a positive review for a place
Output: Great concept and solid execution. I sampled the goods and it was all... good. Tasty treats with alcohol inside. The girl behind the counter was friendly and hospitable. The classic minimalist parlor decor was a nice touch. Looking through the glass at the tubs of ice cream wasn't that much of a draw. It just didn't have much curb appeal or showcase very well. Thankfully, it tasted better than it looked. I didn't get drunk off my one scoop, but she didn't promise that I would. Also, I was already kinda buzzed when I went in there. I couldn't really taste the alcohol to be honest. I really like that this place is here - I mean, everywhere you look there's some sort of gelato or yogurt shoppe around the corner. Having something different is a reason to make a special trip whereas stumbling upon yet another generic gelato shop may give you the urge to buy a scoop. That's going to have to be what saves this place. I can't imagine there being much of a profit margin in ice cream, and I'm sure the rent ain't cheap. This is worth the trip. I wasn't blown away, but I enjoyed the experience and I also like to support local small businesses. Also, I'm a supporter of putting alcohol in anything I might put in my body. Kudos.
input: Write a positive yelp review (OPTIONS:
- negative
- positive).
output: The only reason I'm giving this restaurant 4 stars is because the atmosphere inside is terrible. (too crazy, very loud, poor lighting, high traffic) Seating outside is another story, especially in the fall. It is beautiful. The food is great and definitely exceeded my expectations. I ordered the Atlantic Salmon as I had heard it was excellent there. I've never been a big fan of salmon and have had several bad experiences with it in other restaurants. My first bite was timid, but by the end I thought I was going to start licking the crumbs off my cedar plank. Amazing. Absolutely amazing. My dish also came with some of the largest asparagus I've had. I'm always very leery of large asparagus as it is almost always too firm. Once again, grilled to perfection just like the salmon. The wait staff was also very courteous and enjoyable. Overall a great experience after we had moved to the courtyard area. I highly suggest, especially if you are a fan of all you can eat lobster.
Problem: What would be an example of an positive (OPTIONS:
- negative
- positive) review?
Answer:
|
Stopped in today based on yelp reviews. I have passed by this plaza/shops and never noticed it before. Got a coffee and a donut, very similar to a beignet (pillow of fried goodness covered in powdered confectioners sugar). Coffee fresh and strong. Pastry lovely and fresh.
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
fs_opt
| 2
|
train
|
Problem: Write a negative (OPTIONS:
- negative
- positive) yelp review.
A: David Copperfield reminded me of the character played by Steve Carell in The Incredible Burt Wonderstone. (If you've never seen the movie Netflix it and you'll see what I mean) A guy who probably used to be brilliant once and who is now just going through the motions because the money is too good to leave. But now he's just bored doing the same thing night after night and it shows. I saw yesterday's matinee and David obviously had a cold or the flu. His voice was raspy and he looked feverish. On the plus side I suppose the guy deserves praise for soldiering on with the show when some performers would have just cancelled. On the other side I'm kind of disappointed I've never seen this guy perform before and then I don't get to see him at his best even though I paid full price. As other reviewers have also noted he's also like 20 years older than his picture on the side of the building. My wife still thinks he looks good for his age however. Also can someone explain to me why Chris Angel gets scathing online reviews, Copperfield still gets generally positive ones, yet they perform some of the exact same tricks? Is the only reason that Angel is a preening narcissist and Copperfield tries to be more down to earth? In 90 minutes I saw maybe two or three good tricks, the rest just left me kind of bored. I probably would have loved this show 30 years ago as a teenager, but college educated adults over 30 can figure out how most of the tricks are done. Perhaps that's why half his audience seems to be people from other countries who don't speak Enlish. I guess I'm just not the target audience for illusionists anymore, although I still like Penn and Teller. Maybe the internet has ruined magic shows, I don't know. Oh well, that's Vegas I guess. Sometimes you win and sometimes you lose.
Q: positive
A: This market has a really great selection of Mediterranean foods and decent prices. It is a random location in a dead strip mall, but that means plenty of parking! This is my go-to place for my middle eastern cuisine ingredients.
Problem: What would be an example of an negative (OPTIONS:
- negative
- positive) review?
Answer: I never realized how gross this place was, until I went sober with a group of 13 from work. Yes, it is great to be on the lake, but the place needs some major renovations. The inside smells horrible... like old and soggy and dusty. I ordered a salad with salmon which was disgusting. I think the salmon took on the flavor of the smell of the inside which was nasty. I have enjoyed the chicken quesadilla and drinks before, but that's about it. Actually, I forgot, their Sunday brunch is pretty good and they do a bloody Mary bar that is good too. Don't take a large group because they act like accommodating you is painful. They also took forever when the restaurant seemed fairly dead. They need to remodel and hire a new chef to re-write the menu because you cannot beat the location. They also need more boat slips... it always fills up fast on the weekend!
Input: OPTIONS:
- negative
- positive.
Generate a negative review for a place
Output: Let me explain why this place deserves no more than 3 stars: They shout customer orders over a loud speaker like you are getting a wake-up call via the 1MC on a US Navy ship. No, that is not a good thing! Plus, it is crowded, packed, and very loud. People seem to come here for the cheap food ($5-6 per order), but you get what you pay for. Carolina's West personnel throw bland food in a styrofoam carton and expect you to be content with some various combinations of lettuce, beans, cheese, and tortillas. The taste is totally bland. Abuelos, which is just a couple miles to the north, is a much better option for Mexican food. Don't say that I didn't warn you!!!
input: Write a positive yelp review (OPTIONS:
- negative
- positive).
output: This is how Neapolitan pizza is supposed to be. Great choice of toppings. Reasonable prices especially for Vegas. The burrata is awesome too.
Q: positive
A:
|
Awesome tapas, Amazing service, excellent overall experience. This was our first time here so we decided to try a few different items, all of which were excellent. Parmesan fries with chipotle aioli was a simple but good accompaniment to the duck tacos, shrimp & crab dip, and our garlic chicken pizza. The standout facet of our visit was by far our server - Snoopy D. Yes, that's her name. At least that's what was on the receipt. She was so helpful and very attentive. When my wife couldn't decide between the hummus and shrimp and crab dip she told us she'd surprise us. When she brought out the dip she ended up bringing us a full size shrimp dip AND some hummus. The hummus free of charge! This was an excellent surprise but it didn't stop there. After we were finished she offered us The Messy Sundae; we respectively declined. On her next stop, she dropped off The Messy Sundae and said "I don't listen very well". Again this was free of charge! Needless to say we will be back again!
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
fs_opt
| 1
|
test
|
How might one describe the sentiment of this review?
Meh. Not good, not horrible, does the job for breakfast. Ordered eggs benedict, and wasn't that best. Eggs were overcooked so you didn't see the yolk oozing over the English muffin (it was dry yolk). I wanted to complain, but I was tired and hungry after a long night out in Vegas. Felt like it was an amateur cook making the eggs benedict. The key is so that the yolk melts over the English muffin. If I was in Vegas and stayed at Planet Hollywood/Hilton again, probably wouldn't go to this place again.
|
negative
|
yelp_polarity_reviews_0_2_0
|
Flan2021
|
zs_noopt
| 6
|
validation
|
You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
['The eggs hatch', 'The parent(s) incubate the eggs', 'The adult birds find mates and mate.', 'The baby birds grow up and get their flight feathers', 'The young birds learn to fly and leave the nest', 'A bird lays eggs in a nest', 'The mother (and sometimes the father) bird take care of the baby birds']
|
No
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 0
|
train
|
Detailed Instructions: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
Problem: ['Mix pancake mix with water', 'Heat a griddle', 'Pour a circle of batter in the griddle', 'When most of the bubbles pop on the surface, flip', 'Cook to desired color', 'Apply butter, syrup and enjoy']
Solution:
|
Yes
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 8
|
train
|
Instructions: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
Input: ['Send the urine with the waste to the bladder through the ureters.', 'They process it with millions of tiny nephrons', 'The kidneys receive blood from the renal artery', 'Remove all the waste', 'The kidneys return the blood back to the body through the renal artery']
Output:
|
No
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 3
|
train
|
Instructions: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
Input: ['Become magma again.', 'The metamorphic rocks melt', 'The magma cools', 'Become sedimentary rocks', 'If subjected to heat and/or pressure from plate-tectonic activity the sedimentary rocks become metamorphic rock', 'The igneous rocks break down into sediment', 'Rock begins as magma from a volcano', 'Crystals form and the magma become igneous rocks']
Output:
|
No
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 3
|
train
|
Detailed Instructions: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
Q: ['The salt water is heated', 'As the saltwater is heated the water becomes a gas', 'The salt particles sink to the bottom of the container', 'Gaseous water is piped into another container', 'Allowed to cool', 'The salt particles are left behind in the first container', 'The second container contains fresh water.']
A:
|
Yes
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 9
|
train
|
Instructions: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
Input: ['Give the cells owner a flow of electricity.', 'Adding an external circuit allows the exchange to continue', 'Sunlight enters the cell', 'The top layer are 'doped' with impurities to allow a negative charge', 'This produces an electric field that allows electrons to flow from negative to positve', 'The bottom layer are 'doped' to allow for a positive charge', 'This prevents the flow of electrons from negative to positive', 'Energy from sunlight knocks electrons loose in both fields', 'A photovoltaic cell is created with two layers of semiconductor material']
Output:
|
No
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 3
|
train
|
You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
One example: ['The seeds are dispersed by wind, animals, etc', 'The seeds reach the ground', 'Grow into new trees', 'The process repeats itself over and over', 'A tree produces seeds', 'These new trees produce seeds']
Solution is here: No
Explanation: These steps are not in order. The first step in this sequence is 'The seeds are dispersed by wind, animals, etc' but the step introducing the seed 'A tree produces seeds' is after the steps referencing the seeds. Therefore, the answer is No
Now, solve this: ['Oxygen diffuses from alveoli in the lungs to the bloodstream', 'The lungs remove oxygen from the air', 'Hemoglobin in red blood cells attaches to the oxygen', 'Oxygen diffuses into cells from capillaries.', 'Red blood cells carry oxygen all around the body', 'Air goes into the lungs']
Solution:
|
No
|
task1548_wiqa_binary_classification
|
NIv2
|
fs_opt
| 6
|
train
|
Detailed Instructions: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
Problem: ['Animals and plants die in soft soil or mud', 'Sediment builds up over the remains', 'The remains decompose, leaving only trace amounts', 'The remaining parts over the years are replaced with mineral', 'A fossil is formed']
Solution:
|
Yes
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 8
|
train
|
Detailed Instructions: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
Problem: ['The ozone layer helps protect us from harmful rays from the sun', 'This upsets the balance of the carbon cycle', 'This rain is called acid rain and can damage forests and kill fish.', 'The wind can blow these gasses for miles and then they get washed out of the air when it rains', 'It is getting damaged from air pollution such as methane gas from livestock and CFCs from spray cans', 'One type of air pollution is the addition of carbon dioxide gas into the air', 'Some scientists believe that releasing too much carbon dioxide into the atmosphere is one of the causes of global warming', 'Acid rain is created when gasses such as sulfur dioxide get high into the atmosphere']
Solution:
|
No
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 8
|
test
|
Q: You need to answer the question 'Are the given steps in order?', given a set of steps describing a process. Your answer must be either Yes or No. If the answer is No, that means the steps are out of order and do not make sense in the order they are in. If the answer is Yes, that means the steps are in order and make sense in the order that they are in. A set of steps are not in order if the steps reference information that is introduced in a later step
['Adults have children', 'Teenagers become adults', 'Humans are born as babies', 'Babies become infants', 'Adults become elderly', 'Infants become children', 'Teenagers undergo puberty', 'Children become teenagers', 'Elderly humans die.', 'Children learn skills']
A:
|
No
|
task1548_wiqa_binary_classification
|
NIv2
|
zs_opt
| 7
|
validation
|
Detailed Instructions: In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Problem:4460 + 1741 + 4129 - 2524 + 3071 - 9631 - 4447
Solution:
|
12121
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
zs_opt
| 8
|
train
|
You will be given a definition of a task first, then an example. Follow the example to solve a new instance of the task.
In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
5 + 3
Solution: 2
Why? Here, '+' represents subtraction operation. So, the answer is 2 (5-3=2).
New input: 7454 - 8105 - 6162 - 9523 - 5441 - 8993
Solution:
|
45678
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
fs_opt
| 0
|
train
|
In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Example: 5 + 3
Example solution: 2
Example explanation: Here, '+' represents subtraction operation. So, the answer is 2 (5-3=2).
Problem: 1281 - 4835 + 1910 + 9442 - 2705 + 960 + 4493
|
Solution: -7984
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
fs_opt
| 5
|
train
|
Detailed Instructions: In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Problem:3929 + 8756 - 9890 - 6575 - 7273 - 257 - 4743 + 4413 - 2042
Solution:
|
21540
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
zs_opt
| 8
|
train
|
Part 1. Definition
In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Part 2. Example
5 + 3
Answer: 2
Explanation: Here, '+' represents subtraction operation. So, the answer is 2 (5-3=2).
Part 3. Exercise
3178 - 5652 + 4423 + 5461 - 1002 - 535 + 1907 - 5456 - 8863
Answer:
|
12895
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
fs_opt
| 7
|
train
|
Detailed Instructions: In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Problem:5751 - 3408 + 4411 - 2216 - 2916 - 517 - 4800 - 8112
Solution:
|
23309
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
zs_opt
| 8
|
train
|
Detailed Instructions: In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Problem:8513 - 7119 - 47
Solution:
|
15679
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
zs_opt
| 8
|
train
|
Detailed Instructions: In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Problem:7724 - 7887 - 2059 - 78 + 6356 - 6027 + 8376
Solution:
|
9043
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
zs_opt
| 8
|
train
|
Instructions: In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
Input: 4934 - 6228 + 1424 + 761
Output:
|
8977
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
zs_opt
| 3
|
test
|
Q: In this task you will be given an arithmetic operation and you have to find its answer. The symbols of operators '+' and '-' has been swapped i.e you need to perform subtraction when you see a '+' symbol and addition in case of '-' symbol.
2619 - 3339 + 5903
A:
|
55
|
task085_unnatural_addsub_arithmetic
|
NIv2
|
zs_opt
| 7
|
validation
|
Definition: In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Input: Criminal Alien Removal Act of 2008 - Directs the the Secretary of Homeland Security to carry out a Criminal Alien Program to: (1) identify incarcerated criminal aliens (as defined by this Act); (2) ensure that such aliens are not released into the community; and (3) remove such aliens from the United States upon release.
Makes a state that does not cooperate with the Secretary of Homeland Security to carry out the Program ineligible for Department of Justice law enforcement grant programs (including the criminal alien incarceration program under the Immigration and Nationality Act).
Authorizes appropriate state officials to: (1) hold an illegal alien for up to 14 days after completion of the term of incarceration in order to effectuate transfer to federal custody if the alien is removable or not lawfully present in the United States; and (2) issue a detainer permitting an alien who completes a term of incarceration to be held until U.S. Immigration and Customs Enforcement takes the alien into custody.
Directs the Secretary to carry out the Program as follows: (1) by December 31, 2010, identify each criminal alien incarcerated in a federal facility who will be deportable or removable upon release; and (2) by December 31, 2012, identify each criminal alien serving a term of three or more years in a state or local facility who will be deportable or removable upon release.
Output:
|
A bill to identify and remove criminal aliens incarcerated in correctional facilities in the United States and for other purposes.
|
task1659_title_generation
|
NIv2
|
zs_opt
| 2
|
train
|
Definition: In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Input: New IDEA Act or New Illegal Deduction Elimination Act - Amends the Internal Revenue Code to deny a tax deduction for wages and benefits paid to or on behalf of an unauthorized alien. Extends to six years the period for assessing and collecting underpayments of tax due to deductions claimed for wages paid to unauthorized aliens.
Directs the Commissioner of Social Security and the Secretaries of Homeland Security (DHS) and the Treasury to jointly establish a program to share information that may lead to the identification of unauthorized aliens. Requires the Secretary of the Treasury to provide taxpayer identity information to the Commissioner of Social Security and the DHS Secretary on employers who paid nondeductible wages to unauthorized aliens and on the aliens to whom such wages were paid.
Amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to: (1) make permanent the E-Verify Program for verifying the employment eligibility of alien workers, (2) apply such program to current employees in addition to new hires, (3) establish a rebuttable presumption that employers who participate in the E-Verify Program and obtain confirmation of identity and employment eligibility have not violated hiring requirements under such Act, and (4) allow employers participating in the E-Verify Program to make a conditional offer of employment pending final verification of the identity and employment eligibility of the job applicant.
Output:
|
To amend the Internal Revenue Code of 1986 to clarify that wages paid to unauthorized aliens may not be deducted from gross income, and for other purposes.
|
task1659_title_generation
|
NIv2
|
zs_opt
| 2
|
train
|
In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Ex Input:
Responsible Redeployment from Iraq Act - Expresses the sense of Congress that: (1) the Authorization for Use of Military Force Against Iraq Resolution of 2002 authorized the President to use the Armed Forces as appropriate to defend U.S. national security against the continuing threat posed by the government of Iraq at the time; (2) the government of Iraq which was in power at that time has been removed; (3) the current Iraqi government does not pose a threat to the United States; and (4) after more than four years of efforts by members of the Armed Forces and U.S. civilians, the government of Iraq must now be responsible for Iraq's future course.
Directs the Secretary of Defense to commence the reduction of the number of Armed Forces in Iraq beginning no later than 120 days after the enactment of this Act and complete the reduction and transition to a limited presence in Iraq by no later than April 1, 2008
Directs the President, by January 1, 2008, to transmit to the congressional defense, appropriations, and foreign relations committees a comprehensive U.S. strategy for Iraq. Requires the President to update such strategy no later than July 1, 2008, and every 90 days thereafter, including a description of the number of Armed Forces deployed to Iraq and the missions for which they are so deployed.
Ex Output:
To require the Secretary of Defense to commence the reduction of the number of United States Armed Forces in Iraq to a limited presence by April 1, 2008, and for other purposes.
Ex Input:
Reducing Immigration to a Genuinely Healthy Total (RIGHT) Act of 2005 - Reduces U.S. immigration levels (and visa allotments) for: (1) family-sponsored immigrants to zero; (2) diversity immigrants to zero; and (3) employment-based immigrants.
Caps fiscal year humanitarian-related entries at 50,000, which shall include: (1) refugees; (2) assylees; (3) Polish, Hungarian, Soviet, and Indochinese parolees; (4) aliens whose removal is canceled and status adjusted; and (5) aliens provided permanent resident status through private legislation.
Eliminates specified legalization and amnesty programs, including: (1) agricultural worker amnesty; (2) Immigration Reform and Control Act (IRCA) legalizations; (3) amnesties under the Nicaraguan Adjustment and Central American Relief Act of 1997, and the Haitian Refugee and Immigration Fairness Act of 1998; and (4) Cuban-Haitian adjustments.
Requires congressional approval for extension of designation of foreign states for temporary protected status designations.
Establishes as nonimmigrant classifications: (1) spouses and minor children of lawful permanent residents (currently, a preference immigrant classification); and (2) parents of U.S. adult citizens (currently, an immediate relative classification exempt from numerical immigrant limitations).
Prohibits automatic citizenship by birth unless at least one of the individual's parents is, at the time of birth, a U.S. citizen or national or an alien lawfully admitted for permanent residence.
Makes voting in a foreign election a basis for automatic loss of U.S. citizenship.
Sets forth the instances under which illegal U.S. presence by a person shall be considered as not demonstrating good moral character for immigration purposes.
Ex Output:
To reform immigration to serve the national interest.
Ex Input:
Social Security Benefits Protection and Restoration Act of 1997 - Directs the Commissioner of Social Security and the Secretary of the Treasury to: (1) study jointly and report to the Congress on the inability of the Social Security Administration to provide American workers with their full social security benefits because of insufficient information necessary to identify account earnings information correctly for such workers at the Administration; (2) take appropriate remedial measures, including devising and implementing a procedure for eliminating backlogged uncredited earnings filed with the Administration. Requires a progress report to the Congress on implementation of such measures, along with any recommendations for appropriate legislative action.
Ex Output:
|
Social Security Benefits Protection and Restoration Act of 1997
|
task1659_title_generation
|
NIv2
|
fs_opt
| 1
|
train
|
Teacher: In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Teacher: Now, understand the problem? If you are still confused, see the following example:
Amends the Water Resources Development Act of 1999 to: (1) authorize appropriations for FY 1999 through 2009 for implementation of a long-term resource monitoring program with respect to the Upper Mississippi River Environmental Management Program (currently, such funding is designated for a program for the planning, construction, and evaluation of measures for fish and wildlife habitat rehabilitation and enhancement); (2) authorize the Secretary of the Army to carry out modifications to the navigation project for the Delaware River, Pennsylvania and Delaware, if such project as modified is technically sound, environmentally (currently, economically) acceptable, and economically justified; (3) subject certain previously deauthorized water resources development projects to the seven-year limitation governing project deauthorizations under the Act, with the exception of such a project for Indian River County, Florida; (4) except from a certain schedule of the non-Federal cost of the periodic nourishment of shore protection projects constructed after December 31, 1999, those projects for which a District Engineer's Report has been completed by such date; (5) require that the project cooperation agreement for the Comite River Diversion Project for flood control include a provision that specifies that any reduction in the non-Federal share that results from certain modifications be credited toward the share of project costs to be paid by the Amite River Basin Drainage and Water Conservation District; (6) allow the Secretary to provide additional compensation to Chesapeake City, Maryland (currently, to the City of Chesapeake, Maryland) for damage to its water supply resulting from the Chesapeake and Delaware Canal Project; (7) provide for the submission of certain reports on water resources development projects by the Secretary, notwithstanding Federal reporting termination provisions; and (8) authorize and provide for an authorization of appropriations for the existing program for the safety and operations expenses of the Federal Railroad Administration, and make available for obligation funds currently appropriated for such program.
Solution: To make technical corrections to the Water Resources Development Act of 1999.
Reason: This Bill makes corrections to the Water Resources Development Act of 1999, hence the generated title is correct.
Now, solve this instance: Provides for the establishment of the Rails to Resources Fund to pay for the costs of commission activities.
Authorizes appropriations.
Student:
|
Rails to Resources Act of 2000
|
task1659_title_generation
|
NIv2
|
fs_opt
| 2
|
train
|
Detailed Instructions: In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
See one example below:
Problem: Amends the Water Resources Development Act of 1999 to: (1) authorize appropriations for FY 1999 through 2009 for implementation of a long-term resource monitoring program with respect to the Upper Mississippi River Environmental Management Program (currently, such funding is designated for a program for the planning, construction, and evaluation of measures for fish and wildlife habitat rehabilitation and enhancement); (2) authorize the Secretary of the Army to carry out modifications to the navigation project for the Delaware River, Pennsylvania and Delaware, if such project as modified is technically sound, environmentally (currently, economically) acceptable, and economically justified; (3) subject certain previously deauthorized water resources development projects to the seven-year limitation governing project deauthorizations under the Act, with the exception of such a project for Indian River County, Florida; (4) except from a certain schedule of the non-Federal cost of the periodic nourishment of shore protection projects constructed after December 31, 1999, those projects for which a District Engineer's Report has been completed by such date; (5) require that the project cooperation agreement for the Comite River Diversion Project for flood control include a provision that specifies that any reduction in the non-Federal share that results from certain modifications be credited toward the share of project costs to be paid by the Amite River Basin Drainage and Water Conservation District; (6) allow the Secretary to provide additional compensation to Chesapeake City, Maryland (currently, to the City of Chesapeake, Maryland) for damage to its water supply resulting from the Chesapeake and Delaware Canal Project; (7) provide for the submission of certain reports on water resources development projects by the Secretary, notwithstanding Federal reporting termination provisions; and (8) authorize and provide for an authorization of appropriations for the existing program for the safety and operations expenses of the Federal Railroad Administration, and make available for obligation funds currently appropriated for such program.
Solution: To make technical corrections to the Water Resources Development Act of 1999.
Explanation: This Bill makes corrections to the Water Resources Development Act of 1999, hence the generated title is correct.
Problem: Child Health Care Quality Research Improvement Act - Directs the Secretary of Health and Human Services to award at least ten grants annually to eligible public or nonprofit private entities at geographically diverse locations throughout the United States for research training programs dedicated to child health services research training initiatives at the doctoral, post-doctoral, and junior faculty levels. Authorizes appropriations for FY 1999 through 2003.
Requires the Secretary to award grants to eligible public or nonprofit entities for the establishment of at least ten national centers for excellence in child health improvement research and five national child health provider quality improvement research networks at geographically diverse locations throughout the United States. Describes eligibility requirements. Authorizes appropriations for FY 1999 through 2003.
Requires the Secretary to: (1) provide support to entities with expertise in pediatric quality of care and outcomes research for improving the quality of children's health, especially in high priority areas (areas of compelling scientific or public policy significance); and (2) establish an advisory committee to evaluate progress in such activities and to identify new high priority areas. Authorizes appropriations for FY 1999 through 2003.
Directs the Secretary to provide assistance to enable Federal agencies to: (1) conduct ongoing biennial supplements and initiate and maintain a longitudinal study on children's health linked to existing national surveys to provide for reliable national estimates of health care expenditures, cost, use, access, and satisfaction for children and for other related purposes; and (2) develop an ongoing 50-State survey to generate such estimates.
Requires the Secretary to award grants to eligible public and nonprofit entities for developing the capacity of local communities to improve child health monitoring. Authorizes appropriations for FY 1999 through 2003.
Directs the Secretary to report to the Congress on progress made in pediatric quality of care and outcomes research.
Solution:
|
Child Health Care Quality Research Improvement Act
|
task1659_title_generation
|
NIv2
|
fs_opt
| 4
|
train
|
Detailed Instructions: In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Q: YMCA Teen Action Agenda Enhancement of 2001 - Directs the Attorney General to award a grant to the YMCA of the USA to make subgrants to local YMCAs for programs for at-risk teens which include specified types of activities.
A:
|
A bill to improve academic and social outcomes for teenage youth.
|
task1659_title_generation
|
NIv2
|
zs_opt
| 9
|
train
|
In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Example Input: Requires the Speaker of the House of Representatives and the President pro tempore of the Senate to make appropriate arrangements for the award, on behalf of Congress, of a gold medal to the First Special Service Force (a joint American-Canadian volunteer unit), collectively, in recognition of their World War II service. Requires the awarded medal to be given to the First Special Service Force Association in Helena, Montana, for display or temporary loan for display elsewhere, including at Fort William Henry Harrison in Helena. Authorizes the Secretary of the Treasury to strike and sell bronze duplicates with proceeds deposited in the U.S. Mint Public Enterprise Fund. Declares that medals struck under this Act are national medals for purposes of specified coins and currency provisions.
Example Output: A bill to grant the Congressional Gold Medal, collectively, to the First Special Service Force, in recognition of its superior service during World War II.
Example Input: Control Your Personal Credit Information Act of 2018 This bill amends the Fair Credit Reporting Act to require a consumer's affirmative written consent before a consumer reporting agency may share that consumer's report with third parties for specified purposes. A consumer must provide proper identification when giving this consent. (Currently, this sharing is generally allowed unless a consumer opts out.) If the consumer provides consent, a consumer reporting agency may share information with a third party for: an extension of credit, or the underwriting of insurance. A consumer reporting agency may provide a consumer report in connection with transactions not initiated by the consumer only if: the consumer provides affirmative consent, and the transaction consists of a firm offer of credit or insurance. The Government Accountability Office must report on how best to protect information collected in consumer files. Consumer reporting agencies may not charge consumers fees in connection with furnishing consumer reports. The bill requires consumer reporting agencies to use reasonable efforts to prevent data breaches of consumer reports.
Example Output: Control Your Personal Credit Information Act of 2018
Example Input: Pool and Spa Safety Act - (Sec. 3) Requires each swimming pool or spa drain cover manufactured, distributed, or entered into commerce in the United States to conform to specified ASME/ANSI entrapment protection standards. Considers that requirement to be a consumer product safety rule issued by the Consumer Product Safety Commission (CPSC) under certain provisions of the Consumer Product Safety Act.
(Sec. 4) Establishes a program of grants to states to: (1) hire and train enforcement personnel; and (2) educate pool construction, installation, and service companies, pool owners and operators, and other members of the public. Conditions grants on a state imposing certain requirements by statute, including: (1) enclosure of residential pools and spas to prevent small children from gaining unsupervised access; and (2) drain entrapment prevention devices and systems on all pools and spas.
(Sec. 6) Requires the CPSC to establish and carry out a public education program on methods to prevent drowning and entrapment in pools and spas. Authorizes appropriations.
Example Output:
|
A bill to increase the safety of swimming pools and spas by requiring the use of proper anti-entrapment drain covers and pool and spa drainage systems, by establishing a swimming pool safety grant program administered by the Consumer Product Safety Commission to encourage States to improve their pool and spa safety laws and to educate the public about pool and spa safety, and for other purposes.
|
task1659_title_generation
|
NIv2
|
fs_opt
| 3
|
train
|
Detailed Instructions: In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Q: Hong Kong Human Rights and Democracy Act Amends the United States-Hong Kong Policy Act of 1992 to direct the Secretary of State to report to Congress on conditions in Hong Kong that are of U.S. interest by March 31, 2015, and annually thereafter for 10 years or until the Secretary certifies that Hong Kong has held free and fair elections for 2 consecutive Chief Executive and 2 consecutive Legislative Council periods. Directs the Secretary to certify to Congress annually whether Hong Kong is sufficiently autonomous to justify separate treatment different from that accorded to China in any new laws, agreements, treaties, or arrangements entered into between the United States and Hong Kong. Authorizes the President to waive this certification requirement if: (1) waiver is in the U.S. national interest, and (2) Congress is given a justification of the waiver on or before the date it takes effect.
A:
|
Hong Kong Human Rights and Democracy Act
|
task1659_title_generation
|
NIv2
|
zs_opt
| 9
|
train
|
In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Example Input: American Unemployed Worker Investment Act of 2013 - Amends the Internal Revenue Code to allow a small business employer (i.e., an employer that employs more than 10 but fewer than 25 full-time employees throughout the taxable year) a work opportunity tax credit for hiring a qualified unemployment compensation recipient. Allows the first $10,000 of wages paid to such a recipient to be taken in account for purposes of such credit. Defines "qualified unemployment compensation recipient" as any individual who is certified as: (1) not being a student for at least six months during the one-year period ending on the hiring date, (2) being in receipt of unemployment compensation on the hiring date, and (3) having a hiring date during the two-year period which begins on the enactment of this Act. Denies such credit unless: (1) the qualified unemployment compensation recipient is employed for not less than 35 hours per week for not less than 1 year, and (2) the number of full-time employees of the employer receiving such credit is increased by 1 for at least 1 year.
Example Output: American Unemployed Worker Investment Act of 2013
Example Input: . Blackfoot River Land Exchange Act of 2014 - (Sec. 4) Extinguishes all claims and all right, title, and interest in specified Indian and non-Indian land as part of the settlement of disputes within the Fort Hall Indian Reservation of the Shoshone-Bannock Indian Tribes in Idaho resulting from the realignment of the Blackfoot River by the Corps of Engineers in 1964. (Sec. 5) Requires the non-Indian land to be held in trust by the United States for the Tribes. (Sec. 6) Directs the Secretary of the Interior to transfer the Indian land to the Blackfoot River Flood Control District No. 7 for use or sale. Requires any proceeds from the sale of the land to be used to compensate: (1) each non-Indian landowner at fair market value for his or her loss of land resulting from this Act's implementation, and (2) the Blackfoot River Flood Control District No. 7 for any expenses it incurs in carrying out this Act. Authorizes the Blackfoot River Flood Control District No. 7 to dispose of the land or proceeds that remain in any manner it determines to be appropriate.
Example Output: Blackfoot River Land Exchange Act of 2014
Example Input: Education Stability for Foster Youth Act This bill amends the Elementary and Secondary Education Act of 1965 to require a state plan for academic content and achievement standards to describe how the state will ensure the educational stability of children in foster care. Specifically, a state plan must include assurances that: (1) a foster child will remain or be enrolled in the child’s school of origin absent a determination that such enrollment is not in the child’s best interest; (2) if such a determination is made, the child will be immediately enrolled in a new school, which must immediately contact the child’s previous school to obtain relevant records; and (3) the state will designate a point of contact for child welfare agencies, who shall also oversee implementation of the state’s responsibilities under the bill. Relatedly, a local educational agency (LEA) plan must provide assurances that the LEA will develop and implement procedures governing the provision and funding of transportation services necessary to maintain a foster child’s enrollment in the child’s school of origin. This bill amends the McKinney-Vento Homeless Assistance Act to alter the definition of “homeless children and youths” to no longer include children who are awaiting foster care placement.
Example Output:
|
Education Stability for Foster Youth Act
|
task1659_title_generation
|
NIv2
|
fs_opt
| 3
|
test
|
Instructions: In this task, you are given a summary for US Congressional and California state bill, your task is to generate a Title for this bill. The preferred titles are under forty words and mention the purpose of the bill.
Input: . Tested Ability to Leverage Exceptional National Talent Act of 2016 or the TALENT Act of 2016 (Sec. 2) This bill codifies provisions establishing the Presidential Innovation Fellows Program (originally established pursuant to Executive Order 13704) to encourage successful entrepreneurs, executives, and innovators to join the government and work in close cooperation with government leaders to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the government serves the American people. The General Services Administration (GSA) shall continue the program in order to enable exceptional individuals with proven track records to serve time-limited appointments in executive agencies to address some of the nation's most significant challenges and improve existing government efforts that would particularly benefit from expertise using innovative techniques and technology. The program shall be administered by a Director, who shall appoint program fellows and facilitate their placement to participate in projects that have the potential for significant positive effects and that are consistent with the President's goals. The GSA shall continue an advisory board to recommend priorities and standards for fulfilling the program's mission and to assist in identifying potential projects and placements for fellows.
Output:
|
TALENT Act of 2016
|
task1659_title_generation
|
NIv2
|
zs_opt
| 3
|
validation
|
instruction:
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
question:
Exhibit 10.8 Affiliate Program / Premium Affiliate Management General Terms and Conditions
The following General Terms and Conditions are intended for (i) Web site owners (hereafter, Affiliates) who wish to participate as Affiliates in the Affiliate Program provided by element 5 (governed by II. and IV. in these General Terms and Conditions) on the basis of these General Terms and Conditions and also for (ii) Software Publishers who distribute their software products as downloads using the services of element 5 GmbH, Vogelsanger Strasse 78, 50823 Cologne, Germany and its subsidiaries (together hereafter, element 5) and who wish to make use of the additional service provided by element 5 (hereafter, Affiliate Management, governed under III. and IV. in these General Terms and Conditions) for integration of the Affiliate Program provided by element 5.
I. Object of the Affiliate Program/ Affiliate Management Program for Software Publishers
The object of the Affiliate Program provided by element 5 (hereafter, Program) is to publish electronic advertisements on the Web site of the Affiliate for selected software products offered by element 5 Software Publishers. Instead of fixed compensation, the Affiliate receives result- dependent Advertising Cost Compensation (also known in the element 5 Control Panel as Commission) in exchange for publishing the advertisements. The Advertising Cost Compensation depends on the actual sales generated by end users referred via the electronic advertisement (the Affiliate's link).
Within the context of sales processed from this Program, element 5 acts (to the end user) as a service provider for Software Publisher and handles the sales process by proxy of Software Publisher in accordance with underlying share-it! Developer Agreement. element 5 receives an additional service fee from the participating Publishers for this Affiliate Management.
Under the terms of this Affiliate Management, Software Publisher's Control Panel shall mean the password protected secure interface on element 5's Web servers that allows the Software Publisher to gain access to Sales data and End User data through a secure online connection and change Software Publisher related settings, e.g. the commission of the Affiliate and activation and deactivation of the Affiliate.
Affiliate's Control Panel shall mean the password protected secure interface on element 5's Web servers that allows the Affiliate to (i) gain access to referred sales through a secure online connection and (ii) change Affiliate related settings, e.g. input or alteration of personal data, definition of default style within the context of the given technical limitations, and requests for new partnerships with Software Publishers or termination of existing partnerships.
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
II. Affiliate Program
§ 1 Affiliate Participation
Participation of an individual Affiliate in the Program is dependent on activation by the Software Publisher. Once the Affiliate has registered, element 5 will send an e-mail to Software Publisher with a request to activate the Affiliate. Once the Affiliate is activated by the Software Publisher, the Affiliate is considered to be a participant in this program and is bound by these General Terms and Conditions.
§ 2 Products under the Agreement
(1) The Products under the Agreement are software products designated by the respective Software Publisher for this purpose and which can be selected by the Affiliate from a product catalog in the Affiliate Control Panel. (2) Following initial activation of a product under the agreement, the Affiliate has the opportunity to choose further software products (including those from other Software Publishers), found in the Affiliate's Control Panel, and offer them on the Affiliate's Web site under these General Terms and Conditions. However, the offering of these new products is dependent on the Software Publisher activating the Affiliate for the respective software.
§ 3 Control Panel
(1) After successfully completing the registration process for participation in the Program, the Affiliate will be sent a user ID and a password to access to the Affiliate Control Panel. With the user ID and password, the Affiliate Control Panel provides the Affiliate access, via a secure online connection, to a secure area on element 5's Web server so that the Affiliate may, at any time, view the number of software sales the Affiliate has referred, as well as change other settings. (2) When using the user ID and password, the Affiliate shall observe the following obligations and precautions: (i) Only the Affiliate may use the user ID and password. (ii) The password shall be kept strictly confidential. The Affiliate shall take due care to ensure that no unauthorized parties learn the password. (iii) If the Affiliate loses its password or if there is a possibility that an unauthorized party has learned the user ID and password, the Affiliate shall immediately report this to element 5, which can then block access by the Affiliate to the Control Panel. All actions carried out with the user ID and password will be attributed to the Affiliate.
§ 4 Integration of the Link
(1) The Affiliate shall integrate the product under the agreement using the appropriate link on its Web site; the link points to the order form operated by element 5. This link is generated by a Link Generator for the respective product under the agreement. The Link
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
Generator is located in the secure area of element 5's Web site in the Affiliate Control Panel. The link that is generated contains an individualized affiliate user ID by means of which any sales can be attributed to the Affiliate. Proper technical integration of the link is the responsibility of the Affiliate. If the links do not function, no Advertising Cost Compensation will be paid. (2) The Affiliate shall indicate on its Web site that (i) the Affiliate is acting as an independent partner of the respective Software Publisher by participation in the Affiliate Program provided by element 5 and (ii) The Software Publisher is the seller of the product and the payment process is administered by element 5. (3) The Affiliate shall produce a brief description for each activated product on its Web site. The Affiliate is responsible for the content, the style and the layout of this information. The Software Publisher can provide the Affiliate with graphics and text in an electronic format for use in describing the product, which the Affiliate shall use for the purpose of advertising the Products under the Agreement and links according to the instructions of the Software Publisher. The Affiliate should be aware that the product prices and availability may change at any time. It is not recommended that the price be listed on the Web site of the Affiliate. Maintenance of these product prices is possible only on the Web sites of the Software Publisher and the Publisher's corresponding site operated by element 5.
§ 5 Order Processing
(1) element 5 shall be responsible for the entire order processing for the referred end user according to the terms and conditions of the underlying share-it! Developer Agreement between the Software Publisher and element 5. element 5 shall provide the order forms for the order processing on its Web server; receive payments from the referred end users and forward these payments, less the agreed Advertising Cost Compensation, the service fees and relevant value added tax (VAT) to the Software Publisher; handle refunds and returns according to the provisions of the underlying share-it! Developer Agreement; and provide end user service relating to the administration of the order. The Software Publisher shall provide technical end-user service. (2) element 5 reserves the right to reject queries and orders which do not meet its requirements; including, in particular, orders by referred end users who do not meet credit requirements, who do not authorize direct debiting from their bank account, or who do not present a valid credit card. (3) An agreement by the Software Publisher with the referred end user does not exist until either a written or electronic order confirmation arrives from element 5 in the name of the Software Publisher or when element 5 begins to fulfill the agreement in the name of the Software Publisher. Typographical, printing and computation errors on the Web site of the Affiliate shall be charged to said Affiliate.
§ 6 Advertising Cost Compensation
(1) element 5 will pay Affiliate its advertising costs (including Vat, if any, on presentation of a valid VAT invoice) if an end user arrives via the link integrated in Affiliate's Web site at the order page hosted by element 5 for the respective Software
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
Publisher's Product under this Agreement and end user uses the automatic ordering system that carries out the registration and payment processing, so that the Affiliate's link is deemed to be directly causative for the entry of the End User into the agreement with the Software Publisher and End User's payment, proving that all requirements are irrevocably met (agreements arising in a qualified manner). Affiliate is only eligible to earn the Advertising Cost Compensation on sales occurring during the term of this Agreement and fees earned up to the date termination will remain payable only if the related orders are not cancelled or returned. (2) Insofar as the referred end user accepts cookies when clicking on Affiliate's link, proceeds from orders will be taken into account which do arise within the lifespan (of max. 180 days) of the cookie(s) used and/ or possibly within the lifespan of a special action of the Software Publisher via integrated link. (3) element 5 shall record and compute on a monthly basis the amount of said Advertising Cost Compensation for the Affiliate. (4) The computation basis for determining the value of the Advertising Cost Compensation is calculated by the gross sales price (including taxes, shipping and handling, etc.) actually invoiced to the referred end user. The percentage of the respective Advertising Cost Compensation shall be stipulated by the Software Publisher, but shall not exceed 50% of the effective gross sales price of the software. (5) The Advertising Cost Compensation shall not be paid if and insofar as it is determined that the end user will not meet its payment obligations or will meet them only partially, or if for any other reason the invoice to the end user was cancelled (e.g. in cases where a charge back of a credit card charge, a debit advice or other return or refund of the software product occurs). If the Advertising Cost Compensation was previously paid by element 5, it can be offset or invoiced to Affiliate at element 5's own discretion. (6) The payment of the Advertising Cost Compensation shall occur monthly insofar as the sum due exceeds a value of 100 EUR / 100 USD. If this is not the case, the sum due can be retained until a total value of at least 100 EUR / 100 USD is reached, at the latest, upon termination of the Affiliate's participation in the Program. (7) The payment can be made by wire transfer, Direct Deposit (US only) or check, as chosen by the Affiliate. (8) The invoicing is deemed to be approved if the Affiliate does not object in writing, including a statement of reasons, within four weeks.
III. Affiliate Management for Software Publishers
§ 1 Participation by the Software Publisher
(1) Software Publisher's participation in Affiliate Management indicates that the Software Publisher agrees to these General Terms and Conditions, and that the Software Publisher shall integrate the Affiliate Program into the Web site using a corresponding link. (2) To generate revenue through this Program by means of sales referred by the Affiliate, the Affiliate, after completion of registration, must be activated by the Software Publisher in the Control Panel. The Software Publisher will be informed of the Affiliate's
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
registration per e-mail with a request for the Affiliate's activation from element 5. (3) By configuring the settings in the Control Panel, the Software Publisher determines the amount of the success-based Advertising Cost Compensation. If the Publisher does not configure any settings, then it will accept the default settings proposed by element 5 when activating the Affiliate. Prior to making changes in the Control Panel regarding the amount of the Advertising Cost Compensation, written notification must be given to element 5 and the Affiliate.
§ 2 Integration of the link
(1) element 5 shall make a hyperlink available to the Software Publisher that links to the appropriate registration form for the Affiliate Program. The link can be accessed in the secure Software Publisher Control Panel on element 5's Web site under Affiliate Management. (2) Every Affiliate must complete the registration form once prior to participating in the Program and agree to these General Terms and Conditions by checking the Online checkbox. Afterwards, the Affiliate can also advertise other Products under this Agreement (see above § 3) after activation by the respective Software Publisher.
§ 3 element 5's Service Fee
For each sale administered by element 5 of the Software under this Agreement, element 5 shall receive an additional service fee of 2% of the gross sales price (including taxes, shipping and handling, etc.) as well as the Advertising Cost Compensation defined in II. § 6 (4) and in addition to VAT or sales tax (where applicable). element 5 will pay the Affiliate the Advertising Cost Compensation as defined in II. § 6 . Further invoicing terms are obtained from the existing business relationship, defined in the respective share-it! Developer Agreement between Software Publisher and element 5.
IV. General terms
§ 1 License
Upon activation of the Affiliate, the Software Publisher grants the Affiliate a non-exclusive, revocable right to use provided advertising material, notices and all further presentations (insofar as available - also known hereafter as Material) only for the purpose of designating its Web site as a partner Web site and presenting the designated advertising Material. Under no circumstances may the transferred Material be edited or modified without prior written permission of the Software Publisher. element 5 and the Software Publisher retain all rights with regard to their logos, their trade name or their trademarks and other commercial protection rights. The Software Publisher and element 5 are authorized to revoke the license granted to the Affiliate at any time by written notice.
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
§ 2 Changes to these provisions
element 5 RESERVES THE RIGHT TO MODIFY AND TO SUPPLEMENT THESE GENERAL TERMS AND CONDITIONS AT ANY TIME. THE CURRENT VERSION WILL BE MAINTAINED FOR VIEWING AS A HYPERLINK ON element 5's WEB SITE IN THE CONTROL PANEL. MOREOVER, element 5 WILL ANNOUNNOUNCE ANY CHANGES TO THESE TERMS VIA E- MAIL. WHITHIN 14 DAYS OF THE ANNOUNCEMENT OF CHANGED PARTICIPATION TERMS, AFFILIATE AND SOFTWARE PUBLISHER MAY OBJECT TO SUCH CHANGES. IF NO OBJECTION IS RECEIVED DURING THIS TIME, THE PARTICIPANT IS DEEMED TO HAVE ACCEPTED THE CHANGES AND THEY WILL BECOME PART OF THE EXISTING RELATIONS UNDER THE AGREEMENT.
§ 3 Correspondenceont>
Correspondence shall take place preferably via e-mail, which is accorded the same status as postal mail. Qualifying dates are always agreed as Receipt by Recipient, unless otherwise noted. For e-mail, the receipt of the message on the destination mail server is deemed to be the time of reception.
§ 4 Independence of Relations under the Agreement
The parties to the contract shall operate their Web sites independently of one another and are solely responsible for the content, technology used, and design. This agreement may not be construed as establishing between the parties a company or an association, nor does it establish an employment relationship or a commercial agent agreement. The parties to this agreement are not authorized to act in the name of the other party and / or to accept offers or make any statements on behalf of the other party. As an exception to the previous sentence, element 5 is authorized to make statements on behalf of the Software Publisher pursuant to these T&C and the element 5 vendor agreement (formerly known as e-sales contract).
§ 5 Guarantee by the Party to the Agreement for its Web site
(1) The Affiliate shall be responsible for the entire content of its Web site. The Affiliate guarantees in particular that (i) It will integrate advertising Material according to the provisions and instructions of the Software Publisher into that Affiliate's Web site insofar as said Material was transferred to the Affiliate; (ii) The material used the Affiliate's Web site will not contain any representations of violence, sexually related contents or discriminatory statements or representations with regard to race, sex, religion, nationality, handicap, sexual preference and orientation, or age, nor will said Material be unlawful in any way; (iii) The Material used on the Affiliate's homepage will not infringe upon the rights of third parties, particularly patents, copyrights, trademarks or other commercial protection rights as well as general personality rights and cannot be mistaken for the products of the Software Publisher and/or element 5 or a Web site operated by the Software Publisher and/or element 5; (iv) It will not send any e-mail without the express
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
consent of the receiver(s) (no spam e-mails). (2) The Affiliate shall guarantee the above named properties of its Web sites and will pay defense costs and indemnify and keep fully indemnified the Software Publisher and element 5, its subsidiaries and its and their directors, officers, employees and agents upon demand from any and all claims, demands, costs, liabilities, losses, expenses, and damages (including reasonable attorneys' fees, costs, and expert witnesses' fees) arising out of or in connection with any breach by Affiliate of its warranty set out in this clause.
§ 6 Limitation of liability
(1) The parties exclude mutual liability for slightly negligent violation of obligations in connection with this agreement, with the exception of § 16 and § 5 (3) of this agreement. This includes in particular the liability exclusion for lost profit, the loss of data or interruption to or errors in the operation of the Web site of the Affiliate. The above liability exclusion also applies to the personal liability of employees, representatives and persons employed to perform the obligations of the parties to the agreement. The limitation of liability does not apply to claims arising through initial incapacity or in case of justifiable impossibility. (2) Any possible product liability claims are unaffected by the above limitations. Insofar as element 5 or the Software Publisher violates an essential obligation under the agreement, the obligation to pay restitution is limited to the damages that typically arise. (3) element 5 makes no guarantees in regard to the Software Publisher's software products offered via its Web site. Moreover, element 5 does not guarantee the Affiliate that the operation of its Web sites will be maintained without interruptions and without errors. Liability is expressly excluded for the consequences of such interruptions or errors.
§ 7 Agreement period / Cancellation
The term of this Agreement will begin upon acceptance of Affiliate's Program application and will end when terminated by either party of this Agreement. This Agreement is entered into for an unlimited period of time. Either party may cancel this Agreement at any time, with or without supplying a reason, through written notification or by making suitable settings in the respective Control Panel.
§ 8 Termination of the agreement
(1) When the agreement ends, all usage rights of the Affiliate and Software Publisher accorded by this agreement with regard to the provided logos or Web site contents expire. (2) Upon termination of the relationship under this agreement, the Affiliate is obligated to undertake all of the technical measures necessary to delete from its Web site all links that refer to the Web sites of element 5 or to the Software Publisher. The same applies upon termination of Affiliate Management for links of the Software Publisher that were established in connection with the participation in Affiliate Management on its Web site. (3) element 5 is authorized to retain final payment for a reasonable time, minimum for 30 days after the end of the respective quarter, to ensure that the correct amount is paid.
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
Affiliate is only eligible to earn the Advertising Cost Compensation on sales of Software Publishers Products occurring during the term of this Agreement and fees earned up to the date termination will remain payable only if the related orders are not cancelled or returned. If the Advertising Cost Compensation was previously paid by element 5, it can be offset or invoiced to Affiliate at element 5's own discretion.
§ 9 Final provisions
(1) Force majeure If a party is unable to fulfill its obligations under the agreement for reason of force majeure, it shall immediately inform the other party thereof and do everything in its power to resume normal operations as quickly as possible. In such case, the affected party shall not be deemed to be in breach of contract and cannot be held liable. (2) Provision for written form Additional agreements, changes or additions are valid only if element 5 has confirmed them in writing. The same applies to the warranting of properties. (3) Severability clause If any provision of this agreement is or becomes invalid, the validity of the remaining provisions shall not be affected. Insofar as a provision is invalid, the parties will agree on a new provision which comes as close as possible to the intent of the invalid provision and which is legally valid. (4) Applicable law and jurisdiction Even in case of agreements with foreign (non-German) Software Publishers and Affiliates, the law of the Federal Republic of Germany applies. The place of jurisdiction for all claims arising in connection with this business relationship is Cologne, Germany.
Source: SOUTHERN STAR ENERGY INC., SB-2/A, 12/2/2005
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
answer:
This includes in particular the liability exclusion for lost profit, the loss of data or interruption to or errors in the operation of the Web site of the Affiliate.
question:
ENDORSEMENT AGREEMENT entered into by and between ANDY NORTH and GOLFERS INCORPORATED
Effective February 21, 2011
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
TABLE OF CONTENTS
Paragraph Page 1. Definitions 3 2. Term 4 3. Grant of License and Exclusivity 4 4. Retention of Rights 4 5. Appearances 4 6. Compensation 5 7. Supply of Endorsed Products 6 8. Approval of Advertising 7 9. Ownership 8 10. SAG and/or AFTRA 8 11. Standards 8 12. Events of Default 8 13. Termination/Remedies 9 14. Company's Debts 9 15. Indemnification 9 16. Insurance 9 17. Waiver 9 18. Notices 10 19. Assignment 10 20. Independent Contractor 10 21. Joint Venture 10 22. Governing Law 10 23 Entire Agreement 10 24. Amendments 10 25. Authority 11 26. Severability 11 27. Compliance with Laws 11 28. Attorney's Fees and Costs 11 29. Force Majeure 11 30. Confidentiality 11 31. Counterparts 11
Page 2 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
ENDORSEMENT AGREEMENT THIS ENDORSEMENT AGREEMENT (herein the Agreement) is effective on this 21s t day of February 2011, by and between Golfers Incorporated, a Delaware Corporation, having a mailing address of 1021 N. Sepulveda Blvd., Suite G, Manhattan Beach, CA 90266 (hereinafter referred to as Company) and Andy North, having a mailing address of 1624 S. High Point Road, Madison, WI 53719 (hereinafter referred to as North). WITNESSETH WHEREAS, North is recognized and known throughout the world to be a highly skilled golfer and television commentator; and WHEREAS, North's name and likeness (hereinafter defined) has commercial value with respect to the advertisement, promotion and sale of products and services in the commercial marketplace; and WHEREAS, Company is engaged in the business of developing, marketing and selling F2 Golf Clubs (hereinafter referred to as Product), and Company desires to obtain North's services and endorsement to be utilized in the advertising and sale of such Product; and WHEREAS, North agrees, subject to the terms and conditions contained herein, to provide certain services to Company and to authorize the use of North's endorsement by Company for such purposes. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. As used herein, the following terms shall be defined as set forth below:
a. Contract Period shall mean that period of time from February 21, 2011 through December 31, 2012.
b. Contract Year shall mean the specific period of time during the Contract Period as more specifically set forth below: · Contract Year 2011 (2/21/11 - 12/31/11) · Contract Year 2012 (1/1/12- 12/31/12)
c. Contract Territory shall mean the world.
d. North's Likeness shall mean and include North's name, image, photograph, voice, initials, signature, biographical information, and persona.
f. North's Endorsement shall mean and include North's public statements and comments about Company's Product.
Page 3 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
g. Endorsed Product(s) shall only mean and include Company's irons, woods, wedges and putters.
2. Term. The Term of this Agreement shall be for the Contract Period unless it is terminated or extended as set forth in this Agreement.
3. Grant of License and Exclusivity. Subject to the terms set forth in this Agreement, North hereby grants to Company the right and privilege to use North's Likeness and North's Endorsement during the Term and within the Contract Territory in all reasonable forms of advertising including, but not limited to television (including the infomercial format), radio, print advertising, brochures, pamphlets, product packaging, point-of-purchase materials, Company's web-site and a demonstration video (hereinafter referred to as Advertising Materials) in connection with Company's advertisement and sale of the Endorsed Product only. During the Term of this Agreement and within the Contract Territory, North agrees not to enter into an agreement with another company or entity for the purpose of endorsing or promoting products similar to the Endorsed Products. Upon the expiration or termination of this Agreement, Company shall be prohibited from using or distributing any new or existing Advertising Materials using North's Likeness and North's Endorsement except for Endorsed Product with North's Likeness and/or North's Endorsement on the packaging that is already in the channel of retail distribution. Company shall be prohibited from selling or shipping any new Endorsed Product with North's Likeness and/or North's Endorsement on the packaging upon the expiration or termination of this Agreement.
4. Retention of Rights. All rights not specifically granted or licensed to Company hereunder shall be reserved and retained by North and may be utilized or licensed by North to any third parties in any manner which is not in contravention of this Agreement.
5. Appearances.
a. Production Appearances.
i. Contract Year 2011. North agrees to make one (1) Production Appearance on behalf of Company during Contract Year 2011 for the purpose of producing the following: (1) one 30-minute infomercial; (2) one 30-second television commercial; (3) one demonstration dvd on how to use the Endorsed Product. (4) product testimonials and (5) still photographs for print advertisements and packaging (hereinafter referred to as Production Appearance). Said Production Appearance shall take place on February 22 & 23, 2011 in or around Phoenix, AZ. The Production Appearance shall be approximately nine (9) hours in duration on February 22nd and five (5) hours in duration on February 23rd. During such Production Appearance, North shall be permitted to wear the apparel of his choice. ii. Contract Year 2012. North agrees to make one (1) Production Appearance on behalf of Company during Contract Year 2012 for the purpose of producing either new or updated Advertising Materials. Said Production Appearance shall take place at a mutually agreed upon time and location. The Production Appearance shall be approximately nine (9) hours in duration on the first day and five (5) hours in duration on the second day. During such Production Appearance, North shall be permitted to wear the apparel of his choice.
Page 4 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
b. Additional Production/Promotional Appearances. If requested by Company, North agrees to use reasonable effort to make Additional Production/Promotional Appearances on behalf of Company (hereinafter referred to as Additional Production/Promotional Appearances). Should Company request for North to conduct Additional Production/Promotional Appearances and North agrees to appear, Company shall pay North an additional fee for such appearance(s) as set forth in paragraph 6.d. below. North has no obligation to make such appearance.
c. Voice-Over Appearances. If requested by Company, North shall make one (1) voice over appearance during the Term. The voice over appearance shall take place at North's personal residence or at another mutually agreed upon location in Wisconsin, and shall not exceed two (2) hours in duration.
d. Promotional Appearance. If requested by Company, North agrees to make one (1) promotional appearance each Contract Year during the Term at certain events to promote the Endorsed Products. Said appearance shall be approximately three (3) hours in duration.
e. Promotion/Media Activities. North will use reasonable efforts to mention the benefits of Company's Endorsed Products when North is being interviewed or North is participating in Public Events as defined below.
f. Expenses. If travel is necessary to provide the services set forth in this Agreement, Company shall provide or reimburse all such travel expenses of North, including round-trip first-class airfare on the airline of North's choice, first-class hotel accommodations, reasonable meal and ground transportation expenses. Company shall deliver the airline tickets to North at least seven (7) days prior to the scheduled appearance, and reimburse North for other such expenses within ten (10) days after receipt of the expense receipts.
g. Scheduling. All appearances shall be scheduled on dates, times and locations that are mutually agreed upon by Company and North. All such appearances shall be scheduled through North's duly authorized agent for this project-Fidelity Sports Group, LLC.
6. Use of F2 Wedges/Using F2 Golf Bag. During the Contract Period and within the Contract Territory, North agrees to:
a. Wedges. Use Company's F2 branded wedges when competing professionally, conducting public clinics or outings, participating in public golf events and when appearing at other public functions where it is appropriate to use or have golf clubs at such events (herein Public Events').
Page 5 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
The Contract Year 2011 Guaranteed Fee shall be paid as follows:
The Contract Year 2012 Guaranteed Fee shall be paid as follows:
b. Golf Bag. Use and carry Company's F2 branded golf bag at all Public Events as defined immediately above. North shall have the right to place a maximum of two (2) non-competitive third party sponsor names/logos that are of a reasonable size on the belly portion of the F2 branded golf bag.
c. Irons, Woods, Putter. Use reasonable efforts to use F2 branded irons, woods and putter at all Public Events. For purposes of clarification, North shall not be required to use F2 branded irons, woods and putters.
7. Compensation. a. Guaranteed Service Fee and Marketing Retainer. In consideration for the rights, services and benefits granted by North hereunder, Company agrees to pay North a non-refundable Guaranteed Service Fee and Marketing Retainer (hereinafter referred to as Guaranteed Fee) of fifty-five thousand dollars ($55,000USD) in Contract Year 2011 and seventy thousand dollars ($70,000USD) in Contract Year 2012.
(i) Twenty-Five thousand dollars ($25,000USD) on or before two days after this Agreement is fully executed. (ii) Fifteen thousand dollars ($15,000USD) on or before July 1, 2011. (iii) Fifteen thousand dollars ($ 15,000USD) on or before November 1, 2011.
(i) Twenty-Five thousand dollars ($25,000USD) on or before February 1, 2012 (ii) Twenty-Five thousand dollars ($25,000USD) on or before July 1, 2012 (iii) Twenty thousand dollars ($20,000USD) on or before November 1, 2012
b. Royalties. In addition to payments due North by Company as set forth in paragraphs 7.a. above, Company further agrees to pay North a one percent (1%) royalty on all Gross Revenue generated from the sale of all Company Products (herein Royalties).
c. Payment of Royalties/Statement of Accounts. (i) Company agrees to pay all royalties due as set forth in section 7.b. above on or before thirty (30) days following the end of each quarterly period during the Contract Period. The quarterly royalty payment shall be accompanied by a statement of account indicating the quantities of Products sold, the Gross Revenue generated from all sales of the Product where the sales were derived from (i.e. direct sales or retail sales) and the royalty payment that is due to North. (ii) Company shall keep, at its principal office, 1021 N. Sepulveda Blvd., Suite G, Manhattan Beach, CA 90266, a complete and accurate set of books and records maintained in accordance with generally accepted accounting principles and business practices. Said books and records shall be maintained for a two (2) year period following the expiration or termination of this Agreement. Company shall make said books available to North or North's representative on reasonable notice during the Term of this Agreement and the two (2) year period immediately following thereafter. The cost of any and all inspections shall be paid by North, unless an inspection shows an under-reporting or under-payment of more than five- percent (5%) for any quarterly period, in which event Company shall reimburse North for all such inspection costs.
Page 6 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
Fidelity Sports Group, LLC Bank of America ABA #: 026009593 SWIFT Code #: BOFAUS3N Trust Account #: 8980 1796 5942
d. Additional Production/Promotional Appearances Fee. In addition to the amounts payable by Company to North set forth in paragraph 7.a. and 7.b. above, and should Company request for North to make Additional Production/Promotional Appearances, Company further agrees to pay North a mutually agreed upon fee for each Additional Production/Promotional Appearance conducted by North. All compensation to be paid to North for Additional Production/Promotional Appearances shall be due and payable to North prior to each scheduled Additional Production/Promotional Appearance.
e. Form of Payment. All payments hereunder shall be made payable to the order of Fidelity Sports Group, LLC, as agent for Andy North and shall be paid via check or wire transfer. If by wire transfer, then direct payment to the following bank account:
f. Late Payments. Amounts not received within ten (10) days following their respective due dates shall be assessed a late charge equal to one and one-half percent (1 _%) per month of the overdue amount until paid, commencing on the eleventh day.
g. Supply of Endorsed Products. Company shall deliver to North, at no charge, and in a timely fashion, a reasonable number of Endorsed Products for North's personal use each Contract Year during the Contract Period. All postage expenses associated with the delivery of the Endorsed Products shall be borne by Company.
8. Approval of Advertising. a. Company agrees that it will not use North's Likeness or North's Endorsement hereunder unless and until all Advertising Materials and their intended use has been approved by North. North agrees that any Advertising Materials submitted for approval as provided herein may be deemed by Company to have been approved hereunder if the same is not disapproved by North within seven (7) business days after receipt thereof. North agrees that any Advertising Materials submitted hereunder will not be unreasonably disapproved and, if it is disapproved, that Company will be advised of the specific grounds for the disapproval. Company shall not use such disapproved Advertising Materials until it has written approval from North.
Page 7 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
b. Should Company utilize stock photographs of North, Company agrees to use current photographs and not to add, delete, alter, amend or modify any existing names, logos, designs, trademarks or other indicia of any other sponsor of North which appear in the portion of the photograph used by Company.
c. Company acknowledges and agrees that the script and layout of the Advertising Materials, including, but not limited to the infomercial, shall be reasonably compatible with North's personality and/or style. Should the Advertising Materials be approved as set forth in Section 8.a. above, the Advertising Materials shall reflect North's personal experience and/or testimonial concerning the Product. Such Advertising Material shall be deemed to be North's representation and warranty that such testimonial copy in fact reflects North's personal experience with and opinion of the Endorsed Product.
9. Ownership. All materials, in any form whatsoever, relating to the Advertising Materials will be and shall remain the absolute property of Company. North acknowledge that they do not now have and in the future will assert no right, title, or interest of any kind or nature whatsoever, in or to any component of the Advertising Materials. Furthermore, subject to North's approval as set forth in section 8 above, Company shall have the right at any time during the Term of this Agreement to make any revisions to the Advertising Materials or prepare versions of all or any part of the Advertising Materials to conform to the requirements of individual markets or customers.
10. SAG and/or AFTRA. In the event of any of the Advertising Materials contemplated herein come within the purview or jurisdiction of the Screen Actors Guild (SAG) and/or the American Federation of Television and Radio Artists (AFTRA), and North is required for any reason to become a member thereof, North agrees to join such union(s), and Company agrees to pay any and all expenses whatsoever including all dues, assessments, or contributions necessary in order for North to render his services hereunder, including any and all pension and health contributions or assessments that may be required by such entities. North's participation in any such Advertising Materials pursuant to this paragraph in the Agreement shall not result in any expenses or diminution of the Guaranteed Fee or Royalties of this Endorsement Agreement whatsoever to North.
11. Standards. Company and North shall at all times deal with each other in good faith and strive to maintain and enhance each other's positive image and reputation. North and Company shall act at all times in a manner that shall not be in contravention of public morals and conventions.
12. Event of Default. a. It shall be an event of default hereunder by North if i) North shall materially breach this Agreement and such breach remains uncured for a period of thirty (30) days after written notice thereof from Company to North, or ii) North shall be indicted for a felony involving moral turpitude which brings disrepute to the Company.
Page 8 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
The foregoing indemnity shall survive the expiration, fulfillment or termination of this Agreement.
b. It shall be an event of default hereunder by Company if i) Company fails to pay all fees when due and payable pursuant to this Agreement, ii) Company is adjudicated as insolvent or declares bankruptcy, or iii) Company shall materially breach this Agreement and such breach remains uncured for a period of thirty (30) days after written notice thereof from North to Company.
13. Termination/Remedies. Either party shall have the right to terminate this Agreement upon the occurrence of an event of default by the other party by providing written notice thereof to the defaulting party. All rights and remedies of the parties herein specified are cumulative and are in addition to, not in limitation of, any rights and remedies the parties may have at law or in equity and all such rights and remedies may be exercised singularly or concurrently.
14. Company's Debts. North shall not be liable for any debts or obligations of Company resulting directly or indirectly from the aforesaid use of the North's Likeness, North's Endorsement or the services provided by North. Company shall make no representation, or in any way imply in its actions or failure to act, that North is on will be liable for debts or obligations of Company.
15. Indemnification. Company shall indemnify, defend, and hold harmless North and its employees, officers, agents, and representatives from and against any and all claims, suits, assessments, losses, obligations, penalties, charges, actions, damages, liabilities, costs, and expenses including reasonable attorney's fees whether incurred at trial or in connection with any review by appeal or certiorari of both the trial and appellate court levels (collectively referred to as Claims) arising out of or in connection with: a Any claim or action for negligent or intentional misconduct of Company in relation to the advertisement, promotion, or sale of the Endorsed Product, or Company's use of North's Likeness or North's Endorsement to advertise, promote, distribute, or sell the Endorsed Product; or b. Any claim or action for personal injury, death, or property damage resulting from a customer's use of the Endorsed Product; or c. Any claims or action for the breach by Company of any of its representations and warranties set forth in this Agreement.
16. Insurance. Company agrees, at its own expense, to obtain and maintain general comprehensive liability insurance, with an insurance company that has a rating of A++ (per AM Best), insuring North as a named insured party, against any claims, suits, losses and damages arising out of or caused by Company's use of North's Likeness. North's Endorsement or North's services hereunder. Such insurance policy shall be maintained with limits of not less than two million dollars ($2,000,000). Said policy of insurance shall remain in force for the duration of this Agreement. A copy of such insurance policy shall be provided to North within thirty (30) days after execution of this Agreement.
17. Waiver. The failure of either party at any time or times to demand strict performance of the other party of any of the terms, covenants or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and each party may at any time demand strict and complete performance by the other party.
Page 9 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
18. Notices. All notices, claims, certificates, requests, demands and other communication hereunder shall be made in writing and will be deemed to have been duly given if delivered by hand, via facsimile transmission, or mailed and addressed as follows:
To Company: Golfers Incorporated 1021 N. Sepulveda Blvd., Suite G Manhattan Beach, CA 90266 Attention: Mike or Steve Abram To North: Andy North c/o Fidelity Sports Group, LLC 514 Broadway Avenue Orlando, Florida 32803 Attention: David J. Moorman, President & CEO
19. Assignment. Neither party to this Agreement shall assign the rights and benefits herein without the prior written consent of the other party.
20. Independent Contractor. Company has engaged North for certain rights which are set forth in this Agreement, and North's relationship to Company, and Company's relationship to North, shall at all times be that of an independent contractor.
21. Joint Venture. This Agreement does not constitute a partnership or joint venture between North and Company. No party shall have the right to obligate or bind the other party in any manner whatsoever.
22. Governing Law. The Agreement shall be governed by and construed under the laws of the State of Florida in the United States of America, and venue for any such legal action shall be in the Circuit Court or County Court in Orlando, FL or the U.S. District Court having jurisdiction over Orlando, FL.
23. Entire Agreement. This writing constitutes the entire agreement and understanding between the parties with respect to its subject matter. This Agreement supersedes all prior or contemporaneous agreements and understandings between the parties with respect to its subject matter.
24. Amendments. This Agreement may be amended only by a written instrument duly executed by both parties.
Page 10 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
25. Authority. Each party warrants and represents to the other that it has the full right, power and authority to enter into and perform this Agreement, to make the covenants and representations contained in this Agreement and further, that the execution, delivery and performance of this Agreement will not violate, conflict with, or constitute a default under, any contract, agreement or undertaking to which it is a party or by which it is bound.
26. Severability. The illegality, unenforceability or invalidity of any term, clause or provision of this Agreement shall not affect any other term, clause or provision hereof, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included.
27. Compliance with Laws. Company represents and warrants to North that it will comply with all rules, regulations, laws, orders, decrees and ordinances of the United States, each state and political subdivision thereof, and each and every foreign country having legal jurisdiction over any aspect of Company's activities under this Agreement, including, but not limited to, the use of North's Likeness in advertisements for and on behalf of the Company.
28. Attorney's Fees and Costs. The prevailing party in any litigation or other proceeding between the parties arising out of the interpretation, application, or enforcement of any provision of this Agreement shall be entitled to recover all of its reasonable fees, court costs, and expenses, including fees for attorneys, whether incurred at trial or in connection with any review by appeal or certiorari, accountants, and other professionals.
29. Force Majeure. In the event any of the appearances set forth in this Agreement are cancelled or delayed due to matters of Force Majeure, as such term is defined below, Company and North shall use their reasonable efforts to reschedule such appearance as soon as possible following such cancellation or delay. As used herein, the term Force Majeure shall mean war, civil unrest, acts of God, unusually severe weather, environmental matters, failure of common carrier, governmental action, labor disputes, casualty, illness, injury and/or emergency.
30. Confidentiality. The compensation terms of this Agreement hereunder and any financial information collected through the review of Company's records or statements shall be treated by the parties as confidential information. The parties hereto agree not to disclose any such terms, amounts or information to any other person or entity whatsoever other than its attorneys, accountants, or as required by law.
31. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Page 11 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
ANDY NORTH:
GOLFERS INCORPORATED: /s/ Michael F. Abram WITNESS: /s/ [ILLEGIBLE] By: Michael F. Abram Its: President Date: 2-21-11
/s/ Andy North WITNESS: /s/ [ILLEGIBLE] Andy North Date: 2-20-11
Page 12 of 12
Source: PERFORMANCE SPORTS BRANDS, INC., S-1, 9/9/2011
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
answer:
A copy of such insurance policy shall be provided to North within thirty (30) days after execution of this Agreement.
question:
EXHIBIT 10.102
[McDATA LOGO]
RESELLER AGREEMENT
AGREEMENT NUMBER: 200-04-634-00
McDATA CORPORATION (McDATA) RESELLER MTI TECHNOLOGY CORPORATION
380 INTERLOCKEN CRESCENT ADDRESS: 14661 FRANKLIN AVE
BROOMFIELD, CO 80021 ADDRESS: TUSTIN, CA 92780
ADDRESS:
THE EFFECTIVE DATE OF THIS RESELLER AGREEMENT SHALL BE: Sept 29, 2004
The following documents are incorporated herein by reference:
Reseller Agreement
Premier Addendum
This Agreement, and all Addendums and attachments hereto, identified above, and Channel Notification Documents as issued by McDATA from time to time constitute the entire agreement between McDATA and Reseller with respect to the subject matter hereof, and supersedes all prior and contemporaneous oral or written representations or agreements between the parties regarding the subject matter of this Agreement.
ACCEPTED AND AGREED TO BY: ACCEPTED AND AGREED TO BY:
McDATA CORPORATION(McDATA) RESELLER MTI TECHNOLOGY CORPORATION
SIGNED: /s/ Bruce Chumley SIGNED: /s/ Ron Umagat --------------------------- ---------------------------------- NAME: Bruce Chumley NAME: Ron Umagat
TITLE: VP Channel Sales TITLE: VP of Operations
DATE: 9/29/04 DATE: 9/24/04
This Reseller Agreement (the Agreement) is entered into by and between McDATA and Reseller.
1. SCOPE
This Agreement establishes the terms and conditions under which Reseller will purchase, market, sell, license or incorporate for resale the McDATA Products and End User Customer Services in the Territory and the non-exclusive terms under which McDATA will provide the Products and End-User Customer Services (as defined below).
2. DEFINITIONS
2.1 CHANNEL NOTIFICATION DOCUMENT(S) means McDATA's standard form, incorporated herein by reference, for notifying Resellers of price changes, new product announcements, discontinued/obsolete product announcements, engineering change notifications, product information, marketing and sales Incentive programs, and any other business matters affecting pricing, products and services.
2.2 END USER CUSTOMER SERVICES means the collective reference to warranty and post warranty (maintenance) services, including standard and enhanced warranty services, made available by McDATA and provided directly to End User Customers.
2.3 PRODUCT(S) means McDATA hardware, Software, and related features, conversions, and options, as listed in the Addendum and further provided through Channel Notification Documents.
2.4 SOFTWARE means the computer software, In machine executable object code format only, that is delivered and licensed by McDATA with the Product.
2.5 TERRITORY means the area designated on the first page of the incorporated Addendum to this Agreement in which Reseller may, on a non-exclusive basis, market and sell the Products and End User Customer Services.
3. APPOINTMENT/TERRITORY
3.1 Subject to the terms and conditions of this Agreement, McDATA hereby authorizes and appoints Reseller and Reseller accepts the appointment, as a non-exclusive reseller to purchase Products from McDATA and to market, sell, or incorporate for resale McDATA Products to End User Customers in the Territory.
3.2 Reseller's authorization from McDATA to resell McDATA Products is limited to the Territory shown on the first page of this Agreement. Additional sales locations must be pre-approved by McDATA. Reseller may request that additional Reseller sales locations are added to this Agreement. Upon Reseller's request, McDATA will provide Reseller with the criteria and process for applying for authorization of additional sales locations. Reseller agrees that any additional
McDATA authorized sales locations will be governed by the terms and conditions of this Agreement.
3.3 McDATA reserves the right to revise the list of Products and End User Services at any time during the term of this Agreement. McDATA will notify Reseller of such revisions through a Channel Notification Document(s).
4. TERM AND TERMINATION
4.1 TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement without cause upon sixty (60) days prior written notice to the other party.
4.2 TERMINATION FOR BREACH. In addition to any other rights or remedies that may be available at law or in equity, either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured the breach within thirty (30) days of receiving written notice specifying the breach. If the breach is not cured within the thirty (30) day period, termination will become effective on the thirty-first (31st) day following the written notice.
4.3 TERMINATION FOR INSOLVENCY. Either party, upon written notice to the other party, may elect to immediately terminate this Agreement upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either party makes, or attempts to make, an assignment for the benefit of its creditors; (iii) any proceedings are commenced by or for either party under any bankruptcy, insolvency, or debtor's relief law and such proceedings are not set aside within thirty days following their filing; and/or (iv) either party liquidates or dissolves or makes a good faith attempt to liquidate or dissolve.
4.4 EFFECT OF TERMINATION. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it, Inducing injunctive relief. The termination of this Agreement simultaneously terminates all programs and incentives McDATA offered to Reseller through Channel Notification Documents and voids any unused program account balances. Upon cancellation, termination or expiration of this
McDATA Corporation Standard Terms OF Reseller Agreement JUNE 2004
2
Agreement, Reseller agrees to immediately pay all monies due to McDATA under this Agreement.
The parties' rights and obligations under Sections 8,9 and 10 hereof shall survive termination of this Agreement.
5. RESELLER OBLIGATIONS/RESPONSIBILITIES
5.1 SALES. Reseller agrees to actively market, promote, demonstrate, sell and provide the Products and End User Customer Services only within the Territory during the term of this Agreement
5.2 REPORTS. For warranty purposes, McDATA may require Reseller to provide McDATA with a written report containing, without limitation, the following information: End User Customer name, Reseller's authorization or location Number, End User Customer information, Product serial numbers, number of units, and level of warranty. McDATA will notify Reseller of reporting requirements, including content and format, in a Channel Notification Document.
5.3 EDUCATIONAL REQUIREMENTS. Reseller agrees to participate in McDATA-speciflad educational courses for purposes of training Reseller's personnel. Educational course requirements will be provided in a Channel Notification Document and must be satisfied by Reseller to maintain its status as a McDATA authorized Reseller McDATA will provide to Reseller without tuition fee, at a McDATA designated training site, the required educational courses identified on the Addendum.
5.4 END USER CUSTOMER TERMS AND CONDITIONS. Reseller will ensure that the terms of its executed agreements with End User Customers am not in conflict with this Agreement
5.5 POINT OF SALE (POS) REPORTS. Beginning on the first month after the Effective Date, in order to qualify for certain McDATA channel partner program benefits, Reseller will provide McDATA with a written monthly point of sale report (POS Report) listing the Products that Reseller has sold, by model and serial number, together with the names and addresses of all End User Customers. Detailed POS requirements will be communicated through Channel Notification Documents.
5.6 FINANCIAL STATEMENTS. Reseller agrees to provide McDATA with its and its ultimate parent company's most recent financial statements prior to the Effective Date of the Agreement.
6. McDATA OBLIGATIONS/RESPONSIBILITIES
6.1 END USER CUSTOMER SERVICES
McDATA will make available, for End User Customers, warranty, enhanced warranty, and post warranty services according to the terms and conditions of the applicable manufacturer's warranty and McDATA's then-current maintenance policies, McDATA, or an authorized McDATA service provider, will provide technical support and repairs during the warranty and post warranty periods to End User Customers. McDATA reserves the right to revise its technical support program. McDATA will notify Reseller of changes to McDATA's warranty and
technical support and repairs policy through Channel Notification Document(s).
6.2 PRODUCT DISCONTINUATION. McDATA reserves the right to discontinue Products. McDATA will notify Reseller of any Product discontinuance through Channel Notification Document(s).
6.3 PRODUCT AND SERVICE ANNOUNCEMENTS. McDATA will notify Reseller of changes and innovations in performance, serviceability, uses and applications of Products and End User Services through Channel Notification Document(s).
7. END USER CUSTOMER SOFTWARE LICENSE
Product(s) that embody or include Software will be delivered with a shrink-wrap or click-through software license which shall govern End User Customer's use of the Software. McDATA or its suppliers retain title in and to the Software and all intellectual property rights, and no title to the Software or intellectual property rights is transferred to the End User Customers. Such Software is proprietary to, trade secret of, and copyrighted by McDATA or its suppliers.
8. CONFIDENTIALITY
8.1 As used herein, CONFIDENTIAL INFORMATION will mean any and all technical or business information, including third party information, furnished or disclosed, in whatever form or medium (regardless of whether tangible, Intangible, visual or oral), by one party to the other, including but not limited to information regarding patents and patent applications, trade secrets, works of authorship, software programs, software source documents, software architecture, algorithms, formulae, ideas, techniques, know-how, processes, inventions, apparatuses, equipment, models, information related to current, future and proposed products and services, research, experimental work, development, design details, specifications and engineering information, financial information, procurement, purchasing and manufacturing requirements, potential and actual customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising information, marketing plans; information regarding third parties; and any physical manifestations of Confidential Information (such as notes, reports, memoranda, etc.).
McDATA Corporation Standard Terms of Reseller Agreement June 2004
3
8.2 Information will not be deemed Confidential Information hereunder if the receiving party can demonstrate that such Information: (a) is already known to the receiving party prior to disclosure; (b) is independently developed by the receiving party without the use of the disclosing party's Confidential Information; (c) is or becomes publicly available through no fault of the receiving party; or (d) is obtained by the receiving party from a third party other than one having an obligation to the disclosing party with respect to the Confidential Information disclosed. A party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that such party gives the other party reasonable prior written notice sufficient to allow the other party time to contest such disclosure.
8.3 Each party agrees that for a period of three (3) years following the disclosure of Confidential Information, it (a) will not use, directly or indirectly, or reproduce the Confidential Information of the other party for any purpose except in accordance with the terms of the Agreement, (b) will not disclose the Confidential Information of the other party to any third parties except as expressly permitted in this Agreement, and (c) will take all reasonable security measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
8.4 Upon the termination or expiration of this Agreement, or upon any request of a party, all Confidential Information, together with any copies of same as may be authorized herein, will (at the election of the disclosing party) either be returned to the disclosing party or certified destroyed by the receiving party. Notwithstanding the termination or expiration of this Agreement, each party agrees the requirements regarding use, confidentiality and non-disclosure set forth herein will survive the termination or expiration of this Agreement for a period of three (3) years from the date of the disclosure of the Confidential Information.
8.5 Each party acknowledges that its breach of this Section will cause irreparable damage and hereby agrees that the other party shall be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.
9. TRADEMARKS.
Subject to McDATA's prior written approval, McDATA grants Reseller a limited, nonexclusive, non-transferable, revocable license to use McDATA's Trademarks (defined as McDATA's name or any abbreviation thereof, its acronym, logotype or any other trademarks or trade names of McDATA) for the sole purpose of marketing and selling Products and End User Customer Services in the Territory during the term of this Agreement Reseller agrees to comply with McDATA's Logo Usage Guide, which is found at McDATA's web site, www.mcdata.com. By using McDATA's Trademarks, Reseller does not acquire any proprietary rights to such Trademarks, and Reseller agrees not to obtain or attempt to obtain, by any method, any rights, title or interest in or to any of the Trademarks. Additional provisions relating to the proper usage of the Trademarks are sat forth in Channel
Notification Documents.
10. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY
10.1 EXCEPT FOR A BREACH OF SECTION 8 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, NOR FOR ANY DAMAGES RELATING TO LOST DATA, LOST PROFITS, ADVERTISING OR PROMOTIONAL COSTS, TERMINATION OF EMPLOYEES, SALARIES OF EMPLOYEES OR SEVERANCE PAYMENTS, CREATION OF CUSTOMER BASE, OR FUTURE EXPECTATIONS OR OTHER ECONOMIC ADVANTAGE, HOWSOEVER ARISING AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY IN LAW OR IN EQUITY, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Notwithstanding any provision herein to the contrary, McDATA's entire liability in any given instance from any cause whatsoever, and regardless of the form of action, whether in contract, warranty or tort (including negligence) or any other theory of liability in law or in equity, will in no event exceed the lease, of (i) the purchase price for the specific Product that is the subject matter of or is directly relative the cause of action; or (ii) Five Hundred Thousand Dollars ($500,000).
10.3 The foregoing limitations will not apply (i) to claims by either party for personal injury or damage to personal property, or (ii) claims by McDATA for negligent or misuse or unauthorized use by Reseller of any of McDATA's proprietary rights, including Trademarks and Software.
10.4 THE WARRANTIES, IF ANY, PROVIDED IN THIS AGREEMENT (INCLUDING THE APPENDICES AND CHANNEL NOTIFICATION DOCUMENTS) OR AS PROVIDED WITH THE PRODUCTS ARE GIVEN IN LIEU OF ALL OTHER
McDATA Corporation Standard Terms of Reseller Agreement June 2004
4
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
11. MARKETING
McDATA and Reseller may publicly refer to the existence, but not the content, of this Agreement and may reference their business relationship by creating a hyper-link from one party's web site to the other party's web site. Reseller grants McDATA a license to use Reseller's trademarks and corporate logos solely for such marketing and reference purposes. Copies of each party's logo and authorized trademark(s) can be obtained from their respective marketing departments and may not be altered or changed by either party, its employees or agents, without prior written permission from an authorized representative of the other.
12. GENERAL
12.1 NO AMENDMENT OR WAIVER. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by authorized representatives of both parties. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of&sbsp;such rights or any other rights under this Agreement. Notwithstanding the foregoing, the parties agree to the use of Channel Notification Documents as set forth in this Agreement.
12.2 SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a proper authority having jurisdiction over this Agreement, the remaining provisions of this Agreement will remain in full force and effect.
12.3 NO AGENCY CREATED. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Neither party is granted the tight or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of the other party, or to bind such other party in any manner to anything whatsoever.
12.4 NO THIRD PARTY BENEFICIARIES. The parties agree that there shall be no third party beneficiaries to this Agreement, including but not limited to Reseller's End User Customers.
12.5 ASSIGNMENT. Neither party will assign this Agreement or any rights hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing sentence, McDATA may assign this Agreement to any entity controlled by, controlling, or under common control with McDATA or to any successor by merger, divestiture, consolidation or reorganization, or to any purchasers of all or substantially all of the assets of the business of McDATA without consent of Reseller.
12.6 GOVERNING LAWS. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado excluding its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to any transaction contemplated herein.
12.7 DISPUTE RESOLUTION PROCESS. In case of any dispute between the parties relating to this Agreement, such dispute shall be finally resolved in Denver, Colorado (USA) by arbitration under the Commercial Rules of Arbitration of the American Arbitration Association, using three arbitrators, one selected by each of McDATA and Reseller and the third selected in accordance with such Rules. The
arbitrators will decide the issues presented to them applying the substantive laws of the Sate of Colorado (USA). The award of the arbitrators may be granted notwithstanding the absence of any party and such award shall be in writing and shall be final and binding upon the parties and shall not be appealed from or contested in any court or tribunal. Any award rendered hereunder may be entered for enforcement, if necessary, in any court of competent jurisdiction.
12.8 INJUNCTIVE RELIEF. Notwithstanding the above provisions relating to arbitration, the parties agree that in respect of any violation of any provision of this Agreement, including without limitation violation of any proprietary or confidential information, for which an award of damages is an inadequate remedy to project the injured party, the injured party is entitled to seek injunctive relief, including a preliminary injunction, in a court of competent jurisdiction, in addition to any other relief available to it under the arbitration procedures specified above in Section 12.7.
12.9 OFFICIAL LANGUAGE. The official language of this Agreement and all transactions conducted under this Agreement is English.
12.10 FORCE MAJEURE. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, delays by suppliers or shortages of transportation, facilities, fuel, energy, labor, or materials.
McDATA Corporation Standard Terms of Reseller Agreement June 2004
5
12.11 COMPLIANCE WITH LAWS. McDATA and Reseller each agree to comply with all applicable laws and each understand and agree that the continuing rights and obligations of the parties hereunder are specifically conditioned upon compliance with such laws. These laws include, without limitation, the following: (i) the U.S. anti-boycott regulations, (ii) the U.S. Foreign Corrupt Practices Act (FCPA), (iii) the export control laws of the United States of America, (iv) the prevailing regulations which may be issued from time to time by the U.S. Department of Commerce and the Office of Munitions Control and the U.S. Department of State, and (v) any export or import laws of the agencies of the Territory or of any countries into or through which the Products purchased under this Agreement may be transported.
12.12 NOTICES. Notices required hereunder will be in writing and will be deemed given when transmitted by facsimile (provided such facsimile is subsequently confirmed in writing within five (5) days of the facsimile date) or deposited with an express delivery service with guaranteed third-day delivery, prepaid, addressed as follows:
NOTICES TO: McDATA CORPORATION: McDATA Corporation 380 Interlocken Crescent Broomfield, CO 80021 Attn: VP of Sales With a copy to: VP and General Counsel Fax:720-558-3235
NOTICES TO: RESELLER MTI Technology Corp 14661 Franklin Ave Tustin,CA 92780 Attn: CFO Fax : 714-481-4136
12.13 ENTIRE AGREEMENT. This Agreement, together with any and all attachments hereto and applicable Appendices, Addendums and Channel Notification Documents as issued from time to time by McDATA constitutes the entire agreement between McDATA and Reseller with respect to the subject matter hereof, and supersedes all prior and contemporaneous oral or written representations or agreements between the parties regarding the subject matter of this Agreement.
12.14 COUNTERPARTS. This Agreement may be executed in counterparts or by facsimile, each of which shall be an original, and all of which together shall constitute one and the same instrument.
12.15 NUCLEAR, AVIATION OR LIFE SUPPORT APPLICATION. McDATA specifically disclaims liability for use of McDATA Software in connection with the design, construction, maintenance, and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) life support system by Reseller or its End User Customers. Such use is entirely at the user's risk. McDATA shall not be liable to Reseller or its End User Customers, in whole or in part, for any claims arising out of such use. Reseller agrees to defend, indemnify, and hold McDATA harmless from and against any and all claims arising out of use of the Software in such applications by Reseller or its End User Customers.
McDATA Corporation Standard Terms of Reseller Agreement June 2004
6
PREMIER RESELLER ADDENDUM
RESELLER AGREEMENT
This addendum applies to a Reseller that will purchase, market, sell license or incorporate Product to any commercial non-United States government entity, instrumentality or agency.
TERRITORY: NORTH AMERICA
1. SCOPE
1.1 Sales to the US Government are not authorized under this Agreement.
1.2 Reseller is authorized to procure McDATA Products and End User Customer Services through the source defined in Paragraph 2.3, Product Provider. Reseller procurement of Product and End User Customer Services from sources other than the Product Provider is a material breach of this Agreement and may result in termination of this Agreement. In the event Reseller procures Product or End User Customer Services from sources other than its Product Provider, such procurements will not be included in any McDATA marketing and promotional programs made available to Reseller by McDATA. McDATA, at its sole discretion, may change this policy through a Channel Notification Document.
2. DEFINITIONS
2.1 DISTRIBUTOR means a business entity which is authorized by McDATA through a fully executed distributor agreement to market and sell, or incorporate for resale, the McDATA Products and End User Customer Services to McDATA authorized Resellers in its Territory.
2.2 END USER CUSTOMER means any entity which, for its own use and not for resale, (i) purchase McDATA-manufactured Products; and/or (ii) licenses Software associated therewith from McDATA; and/or (iii) receives End User Customer Services from McDATA.
2.3 PRODUCT PROVIDER means either a McDATA-authorized OEM and/or Distributor who provides Product(s) to the Reseller, as set forth in Appendix 1.
2.4 RESELLER means a business entity which is authorized by McDATA through a fully executed Reseller Agreement to (i) market and resell Products; (ii) purchase McDATA-manufactured Products from a Product Provider, without the intention of purchasing such Products for its own use; and/or (iii) resell End User Customer Services from McDATA.
3. TERM
The initial term of this Agreement shall be for a period of one (1) year from the Effective Date unless sooner terminated pursuant to the termination provisions herein. Thereafter, this Agreement automatically renews for successive terms of one (1) year.
4. RESELLER OBLIGATIONS/RESPONSIBILITIES
For enhanced warranty and post warranty services, Reseller shall refer to McDATA's Product Offerings on its website. McDATA will notify Reseller of changes to the Product Offerings through its Channel Notification Documents.
5. END USER CUSTOMER SOFTWARE LICENSE
Product(s) that embody or include Software will be delivered with a shrink-wrap or click-through software license which shall govern End User Customer's use of the Software. Such Software is proprietary to, trade secret of, and copyrighted by McDATA or its suppliers. McDATA or its suppliers retain title in and to the Software and all intellectual property rights, and no title to the Software or intellectual property rights is transferred to the End User Customers.
6. MARKETING
Reseller agrees not to publish or advertise any price below Manufacturer's Suggested List Price on its web site or by means of any online communications or any other mass communications, including without limitation, catalogues, fax blasts, direct mail pieces, or e-mail blasts.
7. GOVERNMENT FLOWDOWN PROVISIONS.
Reseller agrees that flowdown provisions, including, but not limited to United States Government Federal Acquisition Regulations (FARs), Defense FARs or NASA FARs, shall not apply to McDATA and McDATA does not accept such provisions notwithstanding the existence of such provisions. In addition, McDATA is not responsible for fulfilling any contract obligations under any schedule contracts including those obligations under the United States Government General Service Administration (GSA) contract and the California Multiple Award Schedule (CMAS) contract.
McDATA Corporation Standard Terms of Reseller Agreement June 2004
7
APPENDIX I RESELLER AGREEMENT PREMIER PARTNER PRODUCTS, PRODUCT PROVIDER AND REVENUE TARGETS
PRODUCTS:
Reseller is eligible to sell the McDATA Products listed below. McDATA will provide Product information including pricing, availability, features,
accessories, services and support in the Channel Notification Documents. McDATA will update the Product listing from time-to-time through the Channel Notification Documents.
- Fibre Channel Directors
- Switches
- Software
- Fabricenter(TM) Cabinet
004 ANNUALIZED REVENUE TARGET: $500,000
The 2004 Annualized Revenue Target to qualify as a Premier Reseller is $500,000. Reseller is eligible for Premier Reseller program benefits and responsible for the obligations as defined in the Channel Notification Documents.
INITIAL EDUCATION REQUIREMENTS:
Reseller must successfully complete both Sales and Technical Foundation training, for each McDATA authorized sales location, as follows, within ninety (90) days of the effective date of this Agreement.
Sales: All Sales Reps/sales location McDATA Solution (web-based) Technical: 3 individuals Certified Professional Accelerated Track (CPAT)
McDATA will waive the charges associated with the above listed required technical courses for three (3) individuals at Reseller's organization. McDATA may, at its sole discretion, provide additional education incentives to Reseller based upon sales performance. These incentives, if made available, will be communicated via Channel Notification Documents.
McDATA Corporation Reseller Agreement Premier Partner Addendum June 2004
8
PRODUCT PROVIDER:
Reseller will purchase Products directly from one of the Distributors listed on the next page below. Terms and conditions for purchase of Products from the Distributor are as agreed between Distributor and Reseller.
Reseller may elect a new distributor annually by notifying McDATA thirty (30) days prior to renewal of the Agreement. If McDATA does not receive notice of a new distributor election and the Agreement is renewed, Reseller agrees that it will continue to purchase Products through the currently designated distributor.
Under limited circumstances as approved by McDATA in writing, Reseller may purchase from another Product Provider as directed by McDATA. This may include a) critical customer need where Product is not available from Product Provider in the time frame required by End User, but available through another Authorized McDATA Product Provider or b) repeated, documented dissatisfaction with specified Product Provider during the term of the Agreement.
PLEASE INDICATE WHICH ONE OF THE FOLLOWING DISTRIBUTORS YOU CHOOSE TO BUY FROM FOR THE FIRST YEAR OF YOUR AGREEMENT WITH McDATA:
[ ] AVNET
East Coast Sates - Elsa Neves Phone: 877-286-3879 X5815 Fax: 480-794-9324 Email: elsa.neves@avnet.com West Coast Sates - Jan Johnson Phone: 877-967-3664 Fax: 480-794-9324 Email: jan.johnson@avnet.com
[ ] ARROW ESS
Cindie Snell Phone: 303-824-3651 Fax: 303-824.3646 Email: csnell@arrow.com
[ ] BELL MICROPRODUCTS,INC
Lyle Freemen Phone: 952-345-7942 1941 Ringwood Ave Email: lfreerman@bellmicro.com San Jose, California 95131 -1721
[ ] MOCA
Adrienne Hargrove Phone: 1 -800-786-3425 5230 Pacific Concourse Dr, 4th Flr, Fax: Los Angeles, CA 80045 Email:
[X] TIDAL WIRE
Cherie Vallone Phone: 781-332-1104 Email: cvallone@tidalwire.com
McDATA reserves the right to change the Premier Partner criteria each January or upon sixty (60) days advanced notice through a Channel Notification Document. If Reseller fails to comply with any of the above requirements, McDATA reserves the right to change the Reseller Designation and Reseller will become eligible for only those programs applicable to the new Reseller Designation.
McDATA Corporation Reseller Agreement Premier Partner Addendum June 2004
9
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
answer:
|
EXCEPT FOR A BREACH OF SECTION 8 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, NOR FOR ANY DAMAGES RELATING TO LOST DATA, LOST PROFITS, ADVERTISING OR PROMOTIONAL COSTS, TERMINATION OF EMPLOYEES, SALARIES OF EMPLOYEES OR SEVERANCE PAYMENTS, CREATION OF CUSTOMER BASE, OR FUTURE EXPECTATIONS OR OTHER ECONOMIC ADVANTAGE, HOWSOEVER ARISING AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY IN LAW OR IN EQUITY, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
|
task597_cuad_answer_generation
|
NIv2
|
fs_opt
| 9
|
train
|
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Q: Exhibit 2.6
FINAL VERSION
FORM OF
MANUFACTURING AND SUPPLY AGREEMENT
BY AND BETWEEN
PFIZER INC.
AND
UPJOHN INC.
DATED AS OF [●]
Source: UPJOHN INC, 10-12G, 1/21/2020
TABLE OF CONTENTS Page 1. DEFINITIONS 1
2. SUPPLY OF PRODUCT 13
2.1 Agreement to Supply 13 2.2 Use of Facility, Equipment, Molds and Tooling 15 2.3 Capacity 15 2.4 Forecasts and Purchase Orders 16 2.5 Failure to Supply 19 2.6 Delivery; Risk of Loss 21 2.7 Procurement of Materials 22 2.8 Product Samples 23 2.9 Storage 23 2.10 Transitional Support 24
3. PRICE; PAYMENT; PRICE ADJUSTMENTS; TAXES 26
3.1 Price 26 3.2 Price Adjustment 27 3.3 Cost Improvement 30 3.4 Price Review and Audit Procedure 31 3.5 Invoices and Payment 32 3.6 Taxes 33 3.7 No Duplicative Payments 35
4. MANUFACTURING STANDARDS AND QUALITY ASSURANCE 35
4.1 Quality Agreement 35 4.2 Manufacturing Standards 35 4.3 Manufacturing Changes 35 4.4 Pest Control 36 4.5 Legal and Regulatory Filings and Requests 36 4.6 Quality Tests and Checks 37 4.7 Responsibility for Non-Complying Product 38 4.8 Rejection of Non-Complying Product 38 4.9 Disposal of Rejected and Non-Complying Product 40 4.10 Maintenance and Retention of Records 40 4.11 Government Inspections, Seizures and Recalls 40 4.12 Inspections 41 4.13 Segregation of Restricted Compounds 42 4.14 Packaging Material 43
5. COVENANTS 43
5.1 Mutual Covenants 43 5.2 Manufacturer Covenants 44 5.3 Manufacturer's Social Responsibility 46 -ii-
Source: UPJOHN INC, 10-12G, 1/21/2020
TABLE OF CONTENTS (continued) Page 5.4 Notice of Material Events 46 5.5 Disclaimer of Warranties 47
6. ENVIRONMENTAL COVENANTS 47
6.1 Compliance with Environmental Laws 47 6.2 Permits, Licenses and Authorization 47 6.3 Generation of Hazardous Wastes 48 6.4 Environmental Sustainability Information 48 6.5 Environmental and Health and Safety Reviews 48
7. TERM; TERMINATION 49
7.1 Term of Agreement 49 7.2 Term of Facility Addendum 50 7.3 Termination for Cause 50 7.4 Termination for Disposition of Facility 50 7.5 Termination in Event of Insolvency 51 7.6 Termination for Breach of Anti-Bribery Representation 51 7.7 Termination for Convenience by Customer 52 7.8 Effect of Termination or Expiration 52 7.9 Unused Materials 53 7.10 Return of Materials, Tools and Equipment 54
8. INTELLECTUAL PROPERTY 55
8.1 Customer's Intellectual Property 55 8.2 Improvements and Developments 55 8.3 Ownership of Other Property 56 8.4 Limited Right to Use 56
9. JOINT ADVISORY COMMITTEE 56
9.1 Formation and Role 56 9.2 Membership; Chairs 57 9.3 Meetings 57 9.4 Areas of Responsibility 58 9.5 Advisory Role; No Decision-Making Authority 58
10. INDEMNIFICATION; LIMITATIONS OF LIABILITY 58
10.1 Indemnification of Customer 58 10.2 Indemnification of Manufacturer 59 10.3 Indemnification Procedures 60 10.4 Limitations on Liability 62 10.5 Indemnification Obligations Net of Insurance Proceeds and Other Amounts 63 10.6 Additional Matters 64 -iii-
Source: UPJOHN INC, 10-12G, 1/21/2020
TABLE OF CONTENTS (continued) Page 11. INSURANCE 65
11.1 Requirements to Maintain 65 11.2 Amounts and Limits 65
12. CUSTOMER-SUPPLIED MATERIALS; BUY-SELL MATERIALS; TRANSITION 66
12.1 Supply; Rejection; Transition 66 12.2 Title and Risk of Loss 68 12.3 Reimbursement for Loss of Customer-Supplied Materials 68
13. CONFIDENTIALITY 69
14. SUPPLY CHAIN SECURITY 69
14.1 Supply Chain Representations 69 14.2 C-TPAT 69
15. RECORDS AND AUDITS 70
15.1 Records 70 15.2 Audits 70
16. NOTICES 71
17. MISCELLANEOUS 71
17.1 Negotiations of Dispute 71 17.2 Publicity 72 17.3 Governing Law and Venue 72 17.4 Relationship of the Parties 73 17.5 Assignment; Binding Effect 73 17.6 Force Majeure 74 17.7 Severability 75 17.8 Non-Waiver; Remedies 75 17.9 Further Documents 75 17.10 Forms 75 17.11 Headings; Interpretation 76 17.12 Rules of Construction 77 17.13 Counterparts 77 17.14 Amendments 77 17.15 Entire Agreement 77 Attachment A Form of Facility Addendum Attachment B Quality Agreement Attachment C Monthly Inventory Report Attachment D Anti-Bribery and Anti-Corruption Principles Attachment E Policies Attachment F Example Product Materials Adjustment Calculation Attachment G Example Price Calculation of Volume Change Pricing Adjustment -iv-
Source: UPJOHN INC, 10-12G, 1/21/2020
MANUFACTURING AND SUPPLY AGREEMENT
THIS MANUFACTURING AND SUPPLY AGREEMENT (this Agreement), dated as of [●] (the Effective Date), is by and between Pfizer Inc., a Delaware corporation (hereinafter Manufacturer), and Upjohn Inc., a Delaware corporation (hereinafter Customer). Manufacturer and Customer may be referred to herein individually as a Party or collectively as the Parties.
W I T N E S S E T H:
WHEREAS, Pfizer Inc. (Pluto) and Upjohn Inc. (Spinco) have entered into a Separation and Distribution Agreement, dated as of July 29, 2019 (as amended, modified or supplemented from time to time in accordance with its terms, the Separation Agreement), pursuant to which Pluto and Spinco have agreed to separate the Spinco Business from the Pluto Business so that, as of the Distribution Date, the Spinco Business shall be held by members of the Spinco Group and the Pluto Business is held by members of the Pluto Group (the Separation);
WHEREAS, after the Separation, Spinco shall become a standalone publicly traded company, pursuant to the terms of the Separation Agreement and a Business Combination Agreement, dated as of July 29, 2019 (the Business Combination Agreement), by and among Pluto, Spinco, Mylan N.V., a public company with limited liability incorporated under the laws of the Netherlands, and certain of their Affiliates; and
WHEREAS, in connection with the Separation, the Parties are entering into this Agreement, pursuant to which Customer desires to procure from Manufacturer, and Manufacturer desires to supply or cause one of its Affiliates to supply to Customer, Products for sale by Customer or its Affiliates in the Territory during the Term, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of these premises and the covenants and agreements set forth herein, and intending to be legally bound thereby, the Parties hereby agree as follows: 1. Definitions.
As used in this Agreement, the following capitalized terms shall have the meanings set forth below. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Separation Agreement. 1.1 Accounting Method means U.S. Generally Accepted Accounting Principles (GAAP) or, if otherwise agreed by the Parties, an alternative accounting method used in the ordinary course of business. 1.2 Act means the U.S. Federal Food, Drug, and Cosmetic Act, as amended. 1.3 Action means any demand, action, claim, dispute, suit, countersuit, arbitration, inquiry, subpoena, proceeding or investigation of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial or otherwise) by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal.
Source: UPJOHN INC, 10-12G, 1/21/2020
1.4 Additional Quantities shall have the meaning set forth in Section 2.4(c). 1.5 Affected Products shall have the meaning set forth in Section 10.4(a). 1.6 Affiliate(s) means, when used with respect to a specified Person, a Person that controls, is controlled by, or is under common control with such specified Person. As used herein, control (including, with correlative meanings, controlled by and under common control with), when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise. It is expressly agreed that, from and after the Effective Date, solely for purposes of this Agreement (a) each member of the Spinco Group shall be deemed to not be an Affiliate of any member of the Pluto Group and (b) each member of the Pluto Group shall be deemed to not be an Affiliate of any member of the Spinco Group. 1.7 Agreement shall have the meaning set forth in the Preamble. 1.8 API means active pharmaceutical ingredient. 1.9 Batch Size shall have the meaning set forth in Section 2.4(e)(ii). 1.10 Binding Forecast Period shall have the meaning set forth in Section 2.4(b). 1.11 Bulk Drug Product means Product that has been manufactured into a final pharmaceutical product following a specific formulation and set of specifications, including drug substance (e.g., tablets or granules) for administration to humans but has not been packaged for use or for commercialization. 1.12 Business Combination Agreement shall have the meaning set forth in the Recitals. 1.13 Business Day means (a) any day other than a Saturday, Sunday or a day on which banking institutions are authorized or obligated by Law to be closed in New York, New York or (b) with respect to those activities specific to a Facility, any day other than any day on which banks located in the city and country in which the Facility is located are authorized or obligated to be closed. 1.14 Buy-Sell Materials means the materials that Customer sells to Manufacturer for use in manufacturing Product for Customer under the terms of this Agreement and as set forth in the applicable Facility Addendum. For the avoidance of doubt, Buy-Sell Materials are distinguishable from and exclusive of both Product Materials and Customer-Supplied Materials. -2-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.15 Conflict Minerals shall have the meaning set forth in Section 5.3(c). 1.16 Conversion Cost Markup shall have the meaning set forth in Section 2.5(e). 1.17 Conversion Costs means, with respect to a given Product, (a) direct and indirect labor costs, (b) equipment costs, including depreciation, (c) laboratory and quality control costs at the applicable Facility, including Product testing and on-going stability studies, (d) quality assurance costs, (e) general site and manufacturing support costs for resources that support the manufacture of the applicable Product (including utilities, warehousing, consumables, maintenance, engineering, safety, human resources, finance, information technology, plant management and other similar activities, capital improvements in the form of depreciation, an allocation of costs for above site services provided to the applicable Facility for resources that support the manufacture of the applicable Product and an allowance for inventory loss, in each case, at the Facility-level), (f) costs paid to Third Party manufacturers for the manufacture and supply of such Product (or components thereof), (g) all costs associated with the performance of Manufacturer's obligations under Section 4.6, including all activities, tests and checks set forth therein, and (h) costs paid to Third Party contractors for services provided in connection with the manufacture and supply of such Product, in each case associated with such Product. 1.18 CPP shall have the meaning set forth in Section 4.5(a). 1.19 C-TPAT means the Customs-Trade Partnership Against Terrorism program of the U.S. Bureau of Customs and Border Protection. 1.20 C-TPAT Benefits means the expected benefit afforded to importers that have joined C-TPAT related to substantially fewer of their imports being inspected and, hence, fewer supply chain delays. 1.21 Current Good Manufacturing Practices or cGMP means all applicable standards and applicable Laws (as defined below) relating to manufacturing practices for products (including ingredients, testing, storage, handling, intermediates, bulk and finished products) promulgated by the FDA or any other applicable Governmental Authority (including, without limitation, EU or member state level) having jurisdiction, including, but not limited to, standards in the form of applicable Laws, guidelines, advisory opinions and compliance policy guides and current interpretations of the applicable authority or agency thereof (as applicable to pharmaceutical and biological products and ingredients), as the same may be updated, supplemented or amended from time to time. 1.22 Customer shall have the meaning set forth in the Preamble. 1.23 Customer Indemnified Party shall have the meaning set forth in Section 10.1(a). 1.24 Customer-Owned Improvements and Developments shall have the meaning set forth in Section 8.2(b). -3-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.25 Customer Property means all Intellectual Property, together with all materials, data, writings and other property in any form whatsoever, which is (a) owned or controlled by Customer or its Affiliates as of and following the Effective Date and (b) provided to Manufacturer by or on behalf of Customer or its Personnel under this Agreement. 1.26 Customer-Supplied Materials means the materials supplied by Customer to Manufacturer under the terms of this Agreement and as set forth in the applicable Facility Addendum. For the avoidance of doubt, Customer-Supplied Materials are distinguishable from and exclusive of both Product Materials and Buy-Sell Materials. 1.27 Delivery shall have the meaning set forth in Section 2.6(a). 1.28 Developments shall have the meaning set forth in Section 8.2(a). 1.29 Effective Date shall have the meaning set forth in the Preamble. 1.30 Environmental Laws means any Laws relating to (a) human or occupational health and safety; (b) pollution or protection of the environment (including ambient air, indoor air, water vapor, surface water, groundwater, wetlands, drinking water supply, land surface or subsurface strata, biota and other natural resources); or (c) exposure to, or use, generation, manufacture, processing, management, treatment, recycling, storage, disposal, emission, discharge, transport, distribution, labeling, presence, possession, handling, Release or threatened Release of, any hazardous or toxic material, substance or waste and any Laws relating to recordkeeping, notification, disclosure, registration and reporting requirements respecting hazardous or toxic materials, substances or wastes. 1.31 Environmental Liability means any Liability arising under Environmental Laws. 1.32 Exclusive Purchase Requirement means, on a Product SKU-by-Product SKU and country-by country basis within the applicable Territory, (a) in the first two (2) years of the Initial Term, one hundred percent (100%) of Customer's total requirements for such Product SKU and (b) in the third (3rd) year of the Initial Term, fifty percent (50%) of Customer's total requirements for such Product SKU; provided, however, that (x) such quantities of Product reasonably procured by Customer to qualify a back-up supplier for such Product shall be excluded from the Exclusive Purchase Requirement, and (y) for the avoidance of doubt, Customer may commercialize such quantities of Product procured under (x) above without violating the applicable Exclusive Purchase Requirement or related provisions in Section 2.1(e). 1.33 Exclusive Purchase Requirement Suspension Period shall have the meaning set forth in Section 2.5(b). -4-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.34 Exclusivity Period means the three (3) year period immediately following the Effective Date, as such period may be earlier terminated pursuant to this Agreement. 1.35 Extension Period shall have the meaning (a) with respect to this Agreement, as set forth in Section 7.1 and (b) with respect to a Facility Addendum, as set forth in Section 7.2. 1.36 Facility means, with respect to a given Product, Manufacturer's manufacturing facility located at the address set forth in the applicable Facility Addendum for such Product and such other facilities permitted pursuant to this Agreement and any applicable Facility Addendum to be used by Manufacturer in the manufacture, packaging or storage of (a) such Product or (b) materials utilized in the manufacture or storage of such Product hereunder. 1.37 Facility Addendum means a document executed by the Parties or their respective Affiliates for one or more Products to be manufactured in a Facility pursuant to this Agreement, which shall be substantially in the form of Attachment A to this Agreement. 1.38 Facility Conversion Cost means, with respect to a given Facility and Fiscal Year, the sum of all Product Conversion Costs for Products manufactured for Customer or the applicable Affiliate of Customer at such Facility during such Fiscal Year. 1.39 Facility Conversion Cost Adjustment Fiscal Year shall have the meaning set forth in Section 3.2(b)(i). 1.40 Facility Conversion Cost Baseline Fiscal Year shall have the meaning set forth in Section 3.2(b)(i). 1.41 Facility Conversion Cost Threshold shall have the meaning set forth in Section 3.2(b)(i). 1.42 Facility Disposition shall have the meaning set forth in Section 7.4. 1.43 Facility Actual Product Materials Cost means, with respect to a given Facility and Fiscal Year, the sum of all actual costs of Product Materials for Products manufactured for Customer or the applicable Affiliate of Customer at such Facility during such Fiscal Year. 1.44 Facility Estimated Product Materials Cost means, with respect to a given Facility and Fiscal Year, the sum of all estimated costs, as determined in good faith by Manufacturer and notified to Customer prior to the beginning of such Fiscal Year, of Product Materials for Products manufactured for Customer or the applicable Affiliate of Customer at such Facility during such Fiscal Year. 1.45 Familial Relative(s) means a parent, spouse, child or sibling (including any such relationships formed by marriage). -5-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.46 FDA means the U.S. Food and Drug Administration or any successor agency. 1.47 Finished Product means Product that has been packaged for commercialization and distribution to patients incorporating Bulk Drug Product. 1.48 Firm Order shall have the meaning set forth in Section 2.4(b). 1.49 Fiscal Year means each twelve-month fiscal period commencing on January 1 with respect to Facilities located in the United States and December 1 for all other facilities, in each case, during the Term. 1.50 Force Majeure Event shall have the meaning set forth in Section 17.6. 1.51 Forecast shall have the meaning set forth in Section 2.4(b). 1.52 Forms shall have the meaning set forth in Section 17.10. 1.53 Global Trade Control Laws means all applicable economic sanctions, export and import control laws, regulations and orders. 1.54 Government means all levels and subdivisions of U.S. and non-U.S. governments (i.e., local, regional or national and administrative, legislative or executive). 1.55 Government Official means (a) any elected or appointed governmental official (e.g., a member of a ministry of health), (b) any employee or person acting for or on behalf of a governmental official, agency or enterprise performing a governmental function, (c) any candidate for public office, political party officer, employee or person acting for or on behalf of a political party or candidate for public office or (d) any person otherwise categorized as a Government Official under local Law. As used in this definition, government is meant to include all levels and subdivisions of U.S. and non-U.S. governments (i.e., local, regional or national and administrative, legislative or executive). 1.56 Governmental Authority means any nation or government, any state, municipality or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, court, tribunal or other instrumentality, whether federal, state, local, domestic, foreign or multinational, exercising executive, legislative, judicial, taxing, regulatory, administrative or other similar functions of, or pertaining to, government and any executive official thereof. 1.57 Hazardous Materials means (a) any petroleum or petroleum products, radioactive materials, toxic mold, radon, asbestos or asbestos- containing materials in any form, lead-based paint, urea formaldehyde foam insulation or polychlorinated biphenyls; and (b) any chemicals, materials, substances, compounds, mixtures, products or byproducts, biological agents, living or genetically modified materials, pollutants, contaminants or wastes that are now or hereafter become defined, regulated or characterized as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, extremely hazardous wastes, restricted hazardous wastes, special waste, toxic substances, pollutants, contaminants, toxic, dangerous, corrosive, flammable, reactive, radioactive, or words of similar import, under any Environmental Law. -6-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.58 Improvements shall have the meaning set forth in Section 8.2(a). 1.59 Increments shall have the meaning set forth in Section 2.4(e)(ii). 1.60 Indemnifying Party shall have the meaning set forth in Section 10.3(a). 1.61 Indemnitee shall have the meaning set forth in Section 10.3(a). 1.62 Indemnity Payment shall have the meaning set forth in Section 10.5(a). 1.63 In-Flight or Shared Volume Product means those Products identified as such in a Facility Addendum. 1.64 Initial Price shall have the meaning set forth in Section 3.1(a). 1.65 Initial Price Term means, with respect to a Product set forth in a Facility Addendum, the period of time beginning on the Effective Date and ending on the last day of the first full Fiscal Year of the Term of such Facility Addendum. 1.66 Initial Term shall have the meaning (a) with respect to this Agreement, set forth in Section 7.1 and (b) with respect to a Facility Addendum, set forth in Section 7.2. 1.67 Insolvent Party shall have the meaning set forth in Section 7.5. 1.68 Insurance Proceeds means those monies (a) received by an insured from an insurance carrier; (b) paid by an insurance carrier on behalf of the insured; or (c) received (including by way of setoff) from any Person in the nature of insurance, contribution or indemnification in respect of any Liability, in each of cases (a), (b) and (c), net of any applicable premium adjustments (including reserves or retentions and retrospectively rated premium adjustments) and net of any costs or expenses incurred in the collection thereof. 1.69 Intellectual Property means all intellectual property rights throughout the world, including: (a) patents and patent applications and all related provisionals, divisionals, continuations, continuations-in-part, reissues, reexaminations, extensions and substitutions of any of the foregoing; (b) trademarks, service marks, names, corporate names, trade names, domain names, social media names, tags or handles, logos, slogans, trade dress, design rights, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, whether or not registered or applied for registration, including common law trademark rights; (c) copyrights and copyrightable subject matter, whether or not registered or applied for registration; (d) technical, scientific, regulatory and other information, designs, ideas, inventions (whether patentable or unpatentable and whether or not reduced to practice), research and development, discoveries, results, -7-
Source: UPJOHN INC, 10-12G, 1/21/2020
creations, improvements, know-how, techniques and data (including biological, chemical, pharmacological, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing and preclinical and clinical data), technology, algorithms, procedures, plans, processes, practices, methods, trade secrets, instructions, formulae, formulations, compositions, specifications, and marketing, pricing, distribution, cost and sales information, tools, materials, apparatus, creations, improvements, works of authorship in any media, confidential, proprietary or nonpublic information, and other similar materials, and all recordings, graphs, drawings, reports, analyses and other writings, and other tangible embodiments of the foregoing in any form whether or not listed herein, in each case, other than Software; (e) Software; and (f) applications, registrations and common law rights for the foregoing. 1.70 JAC Chair shall have the meaning set forth in Section 9.2(b). 1.71 JAC Meeting shall have the meaning set forth in Section 9.3(a). 1.72 JAC Member shall have the meaning set forth in Section 9.2(a). 1.73 Joint Advisory Committee or JAC shall have the meaning set forth in Section 9.1. 1.74 Late Payment Date shall have the meaning set forth in Section 3.5. 1.75 Latent Defects shall have the meaning set forth in Section 4.8(a). 1.76 Laws means any U.S. and non-U.S. federal, national, international, multinational, supranational, state, provincial, local or similar law (including common law and privacy and data protection laws), statute, ordinance, regulation, rule, code, order, treaty (including any tax treaty on income or capital), binding judicial or administrative interpretation or other requirement or rule of law or legal process, in each case, enacted, promulgated, issued, entered or otherwise put into effect by a Governmental Authority or any rule or requirement of any securities exchange. 1.77 Losses means any and all damages, losses, deficiencies, Liabilities, Taxes, obligations, penalties, judgments, settlements, claims, payments, fines, charges, interest, costs and expenses, whether or not resulting from Third-Party Claims, including the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys', accountants', consultants' and other professionals' fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder. 1.78 Make to Order Products means all Products that are identified as Make to Order Products in the applicable Facility Addendum. 1.79 Manufacturer shall have the meaning set forth in the Preamble. -8-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.80 Manufacturer Indemnified Party shall have the meaning set forth in Section 10.2(a). 1.81 Manufacturer-Owned Improvements and Developments shall have the meaning set forth in Section 8.2(c). 1.82 Manufacturer Third Party Suppliers shall have the meaning set forth in Section 2.7(a). 1.83 Manufacturing Change shall have the meaning set forth in Section 4.3(a). 1.84 Minimum Order Quantity shall have the meaning set forth in the applicable Facility Addendum with respect to each Product. 1.85 Non-Complying Buy-Sell Materials means any Buy-Sell Material that, as of or prior to its delivery by or on behalf of Customer or its Affiliate to Manufacturer or its Affiliate or designee pursuant to this Agreement, does not comply in all material respects with, or has not been used, handled or stored in all material respects in accordance with, the specifications for such Buy-Sell Material, all applicable Laws, cGMP, the Quality Agreement, this Agreement or the applicable Facility Addendum. 1.86 Non-Complying Customer-Supplied Materials means any Customer-Supplied Material that, as of or prior to its delivery by or on behalf of Customer or its Affiliate to Manufacturer or its Affiliate or designee pursuant to this Agreement, does not comply in all material respects with, or has not been used, handled or stored in all material respects in accordance with, the specifications for such Customer-Supplied Material, all applicable Laws, cGMP, the Quality Agreement, this Agreement or the applicable Facility Addendum. 1.87 Non-Complying Product shall have the meaning set forth in Section 4.7. 1.88 Party or Parties shall have the meaning set forth in the Preamble. 1.89 Person means an individual, a general or limited partnership, a corporation, a trust, a joint venture, an unincorporated organization, a limited liability entity, any other entity and any Governmental Authority. 1.90 Personnel means, with respect to a Party, such Party's Affiliates, contractors and agents together with such Party's and its Affiliates', contractors' and agents' respective individual employees, contractors and other agents. 1.91 Pluto shall have the meaning set forth in the Recitals. 1.92 Price means, with respect to a Product: (a) during the Initial Price Term, the Initial Price of such Product; and -9-
Source: UPJOHN INC, 10-12G, 1/21/2020
(b) after the Initial Price Term, the adjusted price for such Product, as calculated on a Fiscal Year basis, in accordance with Section 3.2. 1.93 Product means a product specified in the applicable Facility Addendum which, for the avoidance of doubt, includes all applicable SKUs of such product, in each case, as the same may be amended from time to time by the mutual written agreement of the Parties. 1.94 Product Conversion Cost means, with respect to a given Product, the total units of such Product anticipated to be shipped or actually shipped, as applicable, during a given Fiscal Year (determined in a manner consistent with Manufacturer's customary practices) multiplied by the per-unit Conversion Cost for such Product for such Fiscal Year. 1.95 Product Materials means all raw materials (including, without limitation, active pharmaceutical ingredients and excipients), labeling or packaging materials and components needed for the manufacture and supply of a given Product. For the avoidance of doubt, Product Materials are distinguishable from and exclusive of both Buy-Sell Materials and Customer-Supplied Materials. 1.96 Product SKU means the specific Stock Keeping Unit (SKU) number for a given Product supplied for sale in a given country or region in the applicable Territory, in each case, as such SKU number may be updated from time to time. 1.97 Purchase Order means a written or electronic order form submitted by Customer in accordance with the terms of this Agreement to Manufacturer authorizing the manufacture and supply of a given Product. 1.98 Quality Agreement means those supplemental quality provisions set forth in any Quality Agreement between Manufacturer and Customer relating to a Facility, as the same may be amended or modified from time to time by mutual written agreement of the Parties. The form of Quality Agreement for each Facility is attached hereto as Attachment B. 1.99 Recall means a recall, correction or market withdrawal and shall include any post-sale warning or mailing of information. 1.100 Receiving Site shall have the meaning set forth in Section 2.10(a). 1.101 Record Retention Period shall have the meaning set forth in Section 15.1. 1.102 Records means any books, documents, accounting procedures and practices and other data, regardless of type or form, of all matters relating to Manufacturer's performance of its obligations under this Agreement that enable Manufacturer to demonstrate compliance with such obligations, including, without limitation, Manufacturer's compliance with applicable Laws. -10-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.103 Regulatory Approvals means the permit, approval, consent, registration, license, authorization or certificate of a Governmental Authority necessary for the manufacturing, distribution, use, promotion and sale of a Product for one or more indications in a country or other regulatory jurisdiction, including approval of New Drug Applications and Biologics License Applications (each as defined by applicable Law) in the United States and Marketing Authorizations (as such term is defined by applicable Law) in the European Union. 1.104 Release means any release, spill, emission, leaking, dumping, pumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the indoor or outdoor environment (including ambient air, surface water, groundwater, land surface or subsurface strata, soil and sediments) or into, through or within any property, building, structure, fixture or equipment. 1.105 Restricted Markets means, as applicable and as may be updated from time to time, in each case, under Global Trade Control Laws, the Crimean Peninsula, Cuba, the Donbass Region, Iran, North Korea, and Syria. 1.106 Restricted Party means any: (a) individual or entity placed on lists maintained by an applicable Governmental Authority, including those established under the Act, the List of Excluded Individuals / Entities published by the U.S. Health and Human Services Office of Inspector General, the regulations administered by the U.S. Department of the Treasury Office of Foreign Assets Control, the U.S. Department of Commerce Bureau of Industry and Security, or similar lists of restricted parties maintained by the Governmental Authorities of the countries that have jurisdiction over the activities conducted under this Agreement; (b) individual or entity suspended or debarred from contracting with the U.S. government; or (c) any entity in the aggregate owned or controlled, directly or indirectly, fifty percent (50%) or greater by one or more such individuals or entities described in clause (a). 1.107 Separation shall have the meaning set forth in the Recitals. 1.108 Separation Agreement shall have the meaning set forth in the Recitals. 1.109 Serialization means the assigning of a unique identification code on a given Product unit or Product units of sale at the primary, secondary and/or tertiary level for the purpose assuring authenticity and/or tracking and tracing of the movement of a given Product through the entire supply chain. 1.110 Service Taxes shall have the meaning set forth in Section 3.6(b). 1.111 Specifications means the specifications for the manufacture, processing, packaging, labeling, testing and testing procedures, shipping, storage and supply of a given Product, including all formulae, know-how, raw materials requirements, analytical procedures and standards of quality control, quality assurance and sanitation, set forth with respect to such Product in the applicable Regulatory Approval(s) and provided by Customer to Manufacturer. -11-
Source: UPJOHN INC, 10-12G, 1/21/2020
1.112 Spinco shall have the meaning set forth in the Recitals. 1.113 Standard Cost means, with respect to a given Product in a given Fiscal Year, an amount equal to: (a) the cost of Product Materials (including the cost of active ingredients, intermediates, semi-finished materials, excipients and primary and secondary packaging) associated with such Product (Standard Product Materials Cost); and (b) the Conversion Costs for such Product (Standard Conversion Cost),
in each case of clauses (a) and (b), calculated in accordance with Manufacturer's accounting policies in effect as of the Effective Date and applied consistently across Manufacturer's entire manufacturing operations for the full applicable Facility. Depreciation will be based on original acquisition cost of fixed assets, and not impacted by fair value accounting for business transactions. 1.114 Technical Support shall have the meaning set forth in Section 2.10(a). 1.115 Term shall have the meaning (a) with respect to this Agreement, as set forth in Section 7.1 and (b) with respect to a Facility Addendum, as set forth in Section 7.2. 1.116 Territory means, with respect to a given Product, the countries set forth in the applicable Facility Addendum for such Product. 1.117 Third Party means a Person other than Manufacturer, Customer or their respective Affiliates. 1.118 Third-Party Claim shall have the meaning set forth in Section 10.3(a). 1.119 Triggering Event shall have the meaning set forth in Section 2.5(a). 1.120 VAT means (A) any Tax imposed in compliance with the council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (B) any other Tax of a similar nature, however denominated, to the Taxes referred to in clause (A) above, whether imposed in a member state of the European Union in substitution for, or levied in addition to, the Taxes referred to in clause (A) above, or imposed elsewhere (including goods and services Taxes, but excluding transfer Tax, stamp duty and other similar Taxes). 1.121 VMR Products means all Products that are identified as VMR Products in the applicable Facility Addendum. 1.122 Waste means all wastes that arise from the manufacture, handling or storage of Product hereunder, or which is otherwise produced through the implementation of this Agreement, including Hazardous Materials. -12-
Source: UPJOHN INC, 10-12G, 1/21/2020
2. Supply of Product. 2.1 Agreement to Supply. (a) Affiliates and Facility Addenda. Either the entity designated above as Customer or any Affiliate of Customer and either the entity designated above as Manufacturer or any Affiliate of Manufacturer may enter into Facility Addenda under this Agreement. The entities that execute a Facility Addendum are also deemed to be Customer and Manufacturer (respectively) for all purposes of the Facility Addendum and this Agreement (with respect to the applicable Facility Addendum). (b) Supply Pursuant to Facility Addenda. During the Term of each Facility Addendum, Manufacturer shall manufacture and supply Product to Customer for the Territory applicable to such Product on the terms and subject to the conditions of this Agreement and the applicable Facility Addendum. The terms of this Agreement shall be incorporated by reference into each Facility Addendum that may be executed by the Parties or, as described in Section 2.1(a), their respective Affiliates. During the term of this Agreement, Customer may request that Manufacturer manufacture and supply to Customer clinical trial material, and the Parties shall negotiate in good faith the terms and conditions of such manufacturing and supply arrangement applying the terms and conditions of this Agreement to the extent mutually agreeable. (c) Hierarchy of Terms; Effect of Amendments. In the event of a conflict between the terms of any Facility Addendum and the terms of this Agreement, the terms of this Agreement shall govern and control, except to the extent that the applicable Facility Addendum expressly and specifically states an intent to supersede a specific section of this Agreement on a specific matter. Any amendment to the terms of this Agreement contained in a Facility Addendum shall be effective solely with respect to such Facility Addendum, and not with respect to this Agreement or any other Facility Addendum. Any amendment to the terms of this Agreement shall be effective with respect to all Facility Addenda. Except to the extent otherwise expressly stated in this Agreement, in the event of a conflict between the terms of this Agreement and the terms of the Separation Agreement, the terms of the Separation Agreement shall govern and control. (d) Use of Subcontractors. Subject to Section 2.2(a), Manufacturer shall manufacture and supply Product itself or through its Affiliates, in each case, at the applicable Facilities (and such other facilities as may be specified in the applicable Facility Addendum with respect to applicable Products). With respect to those Third-Party contractors, subcontractors or service providers used by Manufacturer or its Affiliates in the manufacturing or supply of a given Product immediately prior to the Effective Date, Manufacturer may engage such Third-Party contractors, subcontractors or -13-
Source: UPJOHN INC, 10-12G, 1/21/2020
service providers to perform the same activities for such Product under this Agreement without first obtaining Customer's prior written consent. For the avoidance of doubt, the use of any Third-Party contractors, subcontractors or service providers other than in the manner expressly permitted pursuant to this Section 2.1(d) must be approved in advance in writing by Customer, such approval not to be unreasonably withheld, conditioned or delayed. Manufacturer shall be liable for all actions and omissions of its contractors, subcontractors and service providers, and any breach of the terms and conditions of this Agreement by such contractors, subcontractors or service providers shall be deemed a breach of the terms and conditions by Manufacturer under this Agreement. For the avoidance of doubt, as of the Effective Date, as between Manufacturer and Customer, Manufacturer will be solely responsible for maintaining and establishing relationships with the Third-Party contractors, subcontractors or service providers used in the manufacturing or supply of Product (other than the manufacturing or supply of Buy-Sell Materials or Customer-Supplied Materials). (e) Exclusivity. (i) Customer Exclusivity. During the Exclusivity Period, on a Product SKU-by-Product SKU and country-by-country basis within the applicable Territory, Customer shall purchase from Manufacturer, in accordance with the terms and conditions of this Agreement, at least the Exclusive Purchase Requirement of its requirements for such Product SKU in such country; provided, however, that In-Flight or Shared Volume Products shall be excluded from the exclusivity requirements set forth in this Section 2.1(e)(i). Following the Exclusivity Period (and during the Exclusivity Period, with respect to Product SKU quantities in excess of the Exclusive Purchase Requirement in accordance with the preceding sentence), nothing in this Agreement shall prevent Customer or any of its Affiliates from manufacturing Product for itself, or having Product manufactured by a Third Party, including in amounts in addition to the Purchase Orders for Product issued to Manufacturer in accordance with this Agreement. For clarity and notwithstanding anything contained herein, nothing in this Section 2.1(e)(i) (A) is intended to be inconsistent with Section 2.4(e)(i) or to otherwise indicate that Customer is subject to any requirement to purchase Product under this Agreement or (B) is intended to prevent Customer from qualifying a back-up supplier for any Product during the Exclusivity Period. -14-
Source: UPJOHN INC, 10-12G, 1/21/2020
(ii) Upon request by Manufacturer, which Manufacturer may make from time to time during the Term but not more than once during any quarter of a Fiscal Year, Customer shall provide to Manufacturer within thirty (30) days of such request a certification attesting to Customer's compliance with its Exclusive Purchase Requirement obligations pursuant to Section 2.1(e)(i) and signed by a representative of Customer with a title of Vice President or more senior. 2.2 Use of Facility, Equipment, Molds and Tooling. (a) Facilities. For each Product, Manufacturer shall perform all manufacturing activities and all storage activities at the Facilities set forth in the Facility Addendum applicable to such Product. Manufacturer may use any other facility for the manufacture and storage of Products if (i) such facility has been approved for such manufacture by all applicable Governmental Authorities and (ii) Manufacturer obtains Customer's prior written consent with respect to the use of such other facility as set forth in Section 4.3(a) (such approval not to be unreasonably withheld, conditioned or delayed). The Parties shall agree to either execute a new Facility Addendum or amend an existing Facility Addendum in order to include such facility. Manufacturer shall notify Customer of its intent to use any alternate facility as soon as reasonably practicable. (b) Purchase and Installation of Equipment, Dedicated Change Parts and Tooling. Subject to this Section 2.2(b), Manufacturer shall be responsible for (i) purchasing, installing and validating at the Facilities all new equipment, dedicated change parts and tooling; (ii) modifications to existing equipment, dedicated change parts and tooling necessary for the manufacture, packaging, labeling and Delivery of Product hereunder; and (iii) maintenance of all such equipment, dedicated change parts and tooling, and all costs and expenses associated therewith; provided that in no event shall Manufacturer be required to purchase any new equipment, install any equipment purchased or requested by Customer or add (or, for clarity, allocate or dedicate) any additional manufacturing or storage capacity in connection with Customer's requests for additional capacity for manufacturing or for other activities to be carried out by Manufacturer hereunder not otherwise expressly provided for hereunder or in an applicable Facility Addendum. If Customer makes such a request for additional equipment or capacity, then the Parties shall promptly meet and discuss Customer's request in good faith, including an appropriate allocation of costs between the Parties with respect thereto. 2.3 Capacity.
Subject to Section 2.2(b), Manufacturer shall devote adequate manufacturing capacity to be capable of manufacturing and supplying Product to Customer in accordance with the provisions of this Agreement and the Facility Addenda. Manufacturer shall promptly notify Customer if Manufacturer reasonably believes its existing capacity and demands thereon would prevent it from meeting Customer's anticipated Product requirements as set forth in any Forecast that conforms to the requirements set forth in Section 2.4. -15-
Source: UPJOHN INC, 10-12G, 1/21/2020
2.4 Forecasts and Purchase Orders. (a) VMR Products Forecasting and Purchase Orders. With respect to the VMR Products, the processes and mechanisms by which Forecasts are prepared and Purchase Orders are issued shall be as set forth in the applicable Facility Addenda and the remainder of this Section 2.4 shall not apply with respect to such VMR Products as applicable. (b) Make to Order Product Forecasts. Except as otherwise set forth in a Facility Addendum, in each calendar month during the Term of a Facility Addendum, Customer shall provide to Manufacturer a rolling Product SKU-level forecast of its estimated requirements of Make to Order Products for the eighteen (18)-month period commencing with the month in which such forecast is provided (each, a Forecast). In the event Customer delivers a Forecast where the allocation of Product requirements over the time period of the Forecast are not consistent with historical trends, at Manufacturer's request, the Parties will meet to discuss the Forecast in good faith in the context of previous allocations of Product requirements. Such Forecasts represent Customer's reasonable estimates of the quantity of Products it will require during the applicable period covered by each such Forecast. Except as otherwise set forth in a Facility Addendum, each Forecast shall be a non-binding forecast and for informational purposes only, except that: (i) the portion of such Forecast covering the first three (3) calendar months reflected therein (the Binding Forecast Period) shall be binding and shall constitute a firm order for the quantity of each Product specified therein (each, a Firm Order), (ii) each of months four (4) through six (6) of a given Forecast may not differ by more than twenty-five percent (25%) (whether positive or negative) from the quantity of such Product set forth in those months in the previous Forecast, and (iii) each of months seven (7) through twelve (12) of a given Forecast may not differ by more than fifty percent (50%) (whether positive or negative) from the quantity of such Product set forth in those months in the previous Forecast. For the avoidance of doubt, (1) this subsection (b) applies to Forecasts for API and Bulk Drug Product and (2) the Forecast with respect to Finished Product shall apply to the roll-up level of the Bulk Drug Product that is incorporated into the Finished Product. (c) Make to Order Purchase Orders. Manufacturer shall provide Product to Customer pursuant to Purchase Orders issued by Customer to Manufacturer, which Purchase Orders will be issued on a Product SKU-by-Product SKU basis, not to exceed one (1) Purchase Order per Product SKU per calendar month unless otherwise agreed between the Parties in advance in writing. No verbal communications or e-mail shall be construed to mean a commitment to purchase Product. Customer shall be required to order -16-
Source: UPJOHN INC, 10-12G, 1/21/2020
pursuant to a Purchase Order at least the amount of Product set forth in the Firm Order for such Product in the applicable calendar month. Manufacturer shall provide to Customer such quantities of Product as may be ordered by Customer pursuant to such Purchase Orders, up to one hundred ten percent (110%) of the quantity set forth in the most recent Forecast for the applicable period. In the event that Customer orders quantities of Product above one hundred ten percent (110%) of the quantity set forth in the most recent Forecast for the applicable period (such quantities above one hundred ten percent (110%) referred to as Additional Quantities), Manufacturer shall use its commercially reasonable efforts, but shall not be obligated, to supply such Additional Quantities. For purposes of this paragraph, the most recent Forecast for any given month shall mean the Forecast submitted by Customer in the month prior to the month in which the applicable Purchase Order is issued. All Purchase Orders shall specify the quantity and description of Products ordered, the applicable Facility where such Products will be Delivered, the required delivery date (subject to the provisions of Section 2.4(d)), and the manner of Delivery (including the carrier to be used). (d) Delivery Date. Unless expressly set forth to the contrary in a Facility Addendum, Customer will issue Purchase Orders for Product no later than a period equal to the Binding Forecast Period prior to the required delivery date. By way of example only, if the Binding Forecast Period is the first three (3) months of a Forecast with respect to a Product, then Customer will issue Purchase Order for such Product no later than three (3) months prior to the required delivery date. (e) No Minimum Purchase Obligation; Minimum Order Quantities. (i) No Obligation. Without limiting Customer's obligations under Section 2.1(e), 2.4(b), 2.4(c), 2.4(d) or 2.4(e)(ii), Manufacturer hereby acknowledges and agrees that Customer is not otherwise obligated to purchase any minimum or specific quantity, volume or dollar amount of Product under any Facility Addendum unless expressly set forth in the applicable Facility Addendum. (ii) Minimum Order Quantities. Notwithstanding Section 2.4(e)(i), Customer acknowledges and agrees that (A) each Purchase Order Customer places hereunder for Product that is either API or Bulk Drug Product shall be equal to, or a whole multiple of, the Batch Size for such applicable Product as set forth in the applicable Facility Addendum and (B) each Purchase Order that Customer places hereunder for Product that is Finished Product shall be equal to or greater than the Minimum Order Quantity for such applicable Product as set forth in the applicable Facility Addendum; provided that, where Customer places Purchase Orders under (B) above that exceed the applicable Minimum Order Quantity, Customer shall -17-
Source: UPJOHN INC, 10-12G, 1/21/2020
place such Purchase Orders for such excess quantities in Increments above the Minimum Order Quantity as specified in the applicable Facility Addendum. As used herein, Batch Size means the production quantity for a given run of a Product SKU and Increments means the quantity step change above the applicable Minimum Order Quantity, in each case, as specified in the applicable Facility Addendum. (f) Acceptance and Rejection of Orders. Within ten (10) Business Days of receipt of a Purchase Order, Manufacturer may reject such Purchase Order by written notice to Customer only on the basis that it is inconsistent with the terms of this Agreement, including a Purchase Order containing (i) a delivery schedule that is inconsistent with Section 2.4(d), (ii) a Product quantity that is inconsistent with Section 2.4(e)(ii), (iii) a Product quantity that is less than the Firm Order for the applicable period or (iv) subject to Section 2.4(c), a Product quantity that is more than one hundred ten percent (110%) of the Forecast for the applicable period. Manufacturer shall be deemed to have accepted Customer's Purchase Order for Products in the event it either (a) indicates its acceptance of Customer's Purchase Order in writing or (b) does not indicate its rejection of a Purchase Order within ten (10) Business Days of receipt pursuant to this Section 2.4(f). (g) Changes to Purchase Orders. Purchase Orders, once submitted to Manufacturer, may be amended only by mutual written agreement of the Parties; provided that Manufacturer shall exercise its commercially reasonable efforts to comply with proposed amendments to Purchase Orders that Customer may request after sending a Purchase Order to Manufacturer. (h) Cancellations. In the event that Customer cancels all or part of a Purchase Order (provided that a cancellation shall be deemed to have occurred to the extent that Customer fails to issue a Purchase Order with respect to the full amount of Product contemplated by any portion of a Forecast with respect to the Binding Forecast Period) and such cancellation is not due to Manufacturer's breach of this Agreement or any Facility Addendum, Manufacturer will use good faith efforts to reallocate capacity and mitigate any resultant costs of such cancellation and, unless otherwise set forth with respect to the relevant cancelled Product under the applicable Facility Addendum, Customer will be charged for one hundred percent (100%) of any and all non-cancellable Third-Party costs actually and reasonably incurred by Manufacturer in accordance with this Agreement prior to cancellation for materials or services related to the cancelled portion of the Purchase Order for which reasonably acceptable documentation is submitted by Manufacturer to Customer. -18-
Source: UPJOHN INC, 10-12G, 1/21/2020
(i) Conflicts. In the event of any conflict between the provisions of this Agreement and any Customer Purchase Order, Manufacturer's acceptance form or Manufacturer's invoice form or any similar such forms, the provisions of this Agreement shall govern and control. (j) Product Inventory as of Effective Date. Promptly following the Effective Date, Manufacturer shall provide Customer with a Product inventory report organized by Facility, lot number, remaining shelf life, and such other data points with respect to such Product inventory as Customer may request. For the avoidance of doubt, (i) Manufacturer shall be entitled to fill Purchase Orders with such inventory that complies with the terms and conditions of this Agreement, including Section 5.2, and (ii) the Parties shall meet to discuss in good faith the disposition of all such Product inventory that does not meet the criteria set forth in (i) above. 2.5 Failure to Supply. (a) Capacity Allocation. In the event that Manufacturer fails to manufacture and deliver Product in accordance with accepted Purchase Orders or applicable Specifications, Manufacturer shall notify Customer promptly, including details of the reasons for the failure and Manufacturer's estimated timeline of when the failure will be corrected. Manufacturer shall be solely responsible for undertaking commercially reasonable measures to minimize any shortage of Product delivered to Customer as a result of such manufacturing issues. If Manufacturer fails to manufacture and deliver Product in accordance with accepted Purchase Orders or applicable Specifications by the delivery date specified in the applicable Purchase Order(s) in accordance with Section 2.4(d), other than due to a Force Majeure Event, (i) for a period of two (2) or more months past such delivery date four (4) or more times in any rolling twelve (12) month period, or (ii) for a period of four (4) or more months past such delivery date on one occasion (each of (i) and (ii), a Triggering Event), then Manufacturer shall use its best efforts to allocate on a quarterly basis its manufacturing capacity and Product Materials to the manufacture and supply of Products for Customer on a ratable basis based on the use of each during the twelve (12)-month period immediately preceding such Triggering Event (or either (1) the Term of the applicable Facility Addendum, if the Term is less than twelve (12) months, or (2) such other period set forth in the applicable Facility Addendum); provided that (A) if Customer's Minimum Order Quantity for the applicable Product(s) exceeds its ratable allocation of manufacturing capacity or Product Materials (as applicable) for the applicable quarter, Customer shall continue to accrue its allocation of capacity until such quarter when Customer's allocation of capacity is equal to or greater than its accrued allocation of capacity and (B) this Section 2.5(a) shall not apply to the extent that Customer fails to timely provide adequate Customer-Supplied Materials or Buy-Sell Materials to Manufacturer in accordance with Section 12. For the avoidance of doubt, Manufacturer shall notify Customer promptly in writing of any anticipated Triggering Event when Manufacturer has reason to believe that such Triggering Event is likely to occur and provide such information with respect to such anticipated Triggering Event as Customer may reasonably request. -19-
Source: UPJOHN INC, 10-12G, 1/21/2020
(b) Suspension of the Exclusive Purchase Requirement. In the event of a Triggering Event, Customer's Exclusive Purchase Requirement with respect to each and every Product that is the subject of the Triggering Event shall be temporarily suspended until such time as Manufacturer notifies Customer that Manufacturer is able to resume the manufacture and supply of the subject Product(s) on the terms and conditions of this Agreement (such period referred to as the Exclusive Purchase Requirement Suspension Period); provided that, (i) during such Exclusive Purchase Requirement Suspension Period, Customer shall use commercially reasonable efforts to limit its orders for the subject Product(s) to the quantities specified in the last Forecast that preceded the Triggering Event for the applicable period(s) and promptly notify Manufacturer in the event and to the extent that Customer's orders exceed such quantities specified in such Forecast and (ii) Customer shall be entitled to take delivery of Product(s) ordered during the Exclusive Purchase Requirement Suspension Period even if such delivery is scheduled for or actually occurs subsequent to the Exclusive Purchase Requirement Suspension Period. (c) Modification of the Exclusive Purchase Requirement. Upon the expiration of the Exclusive Purchase Requirement Suspension Period, Customer shall use commercially reasonable efforts to resume ordering from Manufacturer, on a Product-by-Product basis, the subject Product(s) in accordance with Customer's Exclusive Purchase Requirement during the Exclusivity Period. (d) Business Continuity. Manufacturer shall maintain a written business continuity plan to be able to assure supply of Product to Customer in the event of a disruption to supply from the primary location or Facility of manufacture, including any disruption resulting from a Force Majeure Event and make such plan available from time to time upon Customer's request. (e) Remedies. Customer shall have the right to terminate this Agreement on an affected Product-by-affected Product basis immediately upon written notice to Manufacturer in the event a Triggering Event (under clause (ii) thereof) continues for more than one hundred and eighty (180) days. Customer shall also have the right to cancel orders for any quantities of Product affected by any Triggering Event effective upon notice to Manufacturer, and Customer shall have no further obligations to purchase any such cancelled quantities of Product. In the event a Triggering Event occurs during the Exclusivity Period, Manufacturer shall, at Manufacturer's cost and expense, provide such assistance as is reasonably requested by Customer to assist any alternate manufacturer in meeting Customer's requirements for the Product until Manufacturer has remedied the cause of such Triggering Event and is -20-
Source: UPJOHN INC, 10-12G, 1/21/2020
able to supply Product to Customer in its requested quantities. Such assistance shall include providing, subject in all cases to Section 2.10(h), Technical Support in respect of the affected Product(s). In the event of a Triggering Event, Manufacturer shall be liable for any actual amounts that Customer is contractually required to pay to any Third-Party customer of Customer that result from Customer's inability to supply the affected Product to such Third-Party customer as a direct result of such Triggering Event; provided that (1) Customer shall provide to Manufacturer appropriate evidence of such amounts (including invoices from the applicable customers) and the applicable contractual requirements (redacted, in each case, of information pertaining to pricing and other commercial terms that are not directly related to the claimed amounts), it being understood and agreed that, upon request, Manufacturer will enter into customary confidentiality arrangements prior to such information being shared and (2) Manufacturer shall not be liable for any such amounts in the aggregate in any Fiscal Year in excess of the aggregate Conversion Cost Markup during such Fiscal Year with respect to all Products manufactured at the Facility that is the subject of the applicable Triggering Event. Conversion Cost Markup means, for a Product for any Fiscal Year, ten percent (10%) of the product of (A) Manufacturer's Standard Conversion Cost for such Product for such Fiscal Year and (B) the quantity of such Product ordered by Customer for delivery during such Fiscal Year. The rights of Customer set forth in this paragraph are in addition to any other rights set forth in this Agreement. 2.6 Delivery; Risk of Loss. (a) Delivery. Unless otherwise set forth in the applicable Facility Addendum, Manufacturer shall deliver Product to Customer FCA (Incoterms 2010) at the applicable Facility, and all Purchase Orders will be deemed to have been completed when the quantity of Product made available to Customer at the applicable Facility is between ninety percent (90%) and one hundred and ten percent (110%) of the quantity of Product set forth in any accepted Purchase Order (each such event, a Delivery). Delivery shall occur by or within the delivery date(s) set forth in the applicable Purchase Order or such other date as may be agreed to in writing by the Parties from time to time. Without limiting Customer's rights and remedies under Section 4.8, Manufacturer acknowledges and agrees that, unless such early Delivery was agreed upon by the Parties in writing, Manufacturer shall provide Customer with such data as Customer may reasonably request from time to time for measures of key performance indicators (KPI). (b) Certificates of Compliance. Manufacturer shall include certificates of compliance and certificates of analysis with all Delivery of Product or prior to Delivery upon reasonable request of Customer. -21-
Source: UPJOHN INC, 10-12G, 1/21/2020
(c) Title. Unless otherwise set forth in the applicable Facility Addendum, title to Product and risk of loss or damage shall pass to Customer upon Delivery to Customer pursuant to Section 2.6(a). 2.7 Procurement of Materials. (a) Manufacturer shall order and maintain sufficient quantities of all Product Materials, including safety stock as required by the applicable Facility Addendum, to enable Manufacturer to manufacture and Deliver Product in accordance with its Delivery obligations under this Agreement and the applicable Facility Addendum. With respect to those Third Party suppliers of Product Materials used by Manufacturer or its Affiliates in the ordinary course in the manufacturing or supply of a given Product immediately prior to the Effective Date (Manufacturer Third Party Suppliers), Manufacturer shall be permitted to purchase solely the same Product Materials from such Manufacturer Third Party Suppliers in connection with its activities under this Agreement without first obtaining Customer's prior written consent. Any other Third-Party supplier for Product Materials (or procurement of a different Product Material from any Third-Party supplier) must be approved in advance in writing by Customer (such approval not to be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, as of the Effective Date, as between Manufacturer and Customer, Manufacturer will be solely responsible for maintaining and establishing relationships with the Third-Party suppliers of Product Materials. The costs of all such Product Materials shall be included in the Price of the applicable Product. (b) Unless otherwise set forth in the applicable Facility Addendum for a specific Product, Customer shall have no liability for excess or obsolete Product Materials purchased by Manufacturer, (x) except as set forth in Section 2.4(h) or Section 7.9 or (y) unless the excess or obsolescence is caused by a change to the specifications for such Product Materials or the Specifications of a given Product in accordance with this Agreement after such Product Materials have been purchased by Manufacturer based upon a Firm Order or accepted Purchase Order). (c) Customer understands and acknowledges that (i) certain Product Materials have a limited shelf-life, are long lead time items, and are subject to minimum order quantities specified by the applicable supplier and (ii) Manufacturer will rely on the Firm Orders and Forecasts to order Product Materials required to meet the Firm Orders (plus safety stock for certain Product Materials of a Product as reasonably determined by Manufacturer). In addition, Customer understands that, to ensure an orderly supply of the Product Materials, Manufacturer may elect to purchase the Product Materials in sufficient volumes to meet the production requirements for Products during part or all of the forecasted periods; provided, however, that Customer shall not have any liability with respect to any purchase by Manufacturer or any of its Affiliates of labeling or packaging materials (including labels, cartons and leaflets) in excess of the amount required to meet the Firm Order applicable at such time plus the amount of applicable Product forecasted to be ordered in months four (4) through six (6) of the Forecast applicable at such time. -22-
Source: UPJOHN INC, 10-12G, 1/21/2020
(d) Manufacturer must review with Customer any assessment made (or related action proposed to be taken) by Manufacturer related to rejection or destruction of any Customer-Supplied Materials, Buy-Sell Materials, Product, or Product Materials intended for Customer's Product to discuss viability for commercial use. 2.8 Product Samples.
If representative lot samples of production batches of Product are requested by Customer in order to satisfy its obligations under applicable Law, including any regulatory requirements, or to any Governmental Authority, then Manufacturer shall provide Customer (or any such Third Party as Customer shall designate) with representative lot samples of each production batch of Product promptly upon Customer's request. Customer shall be entitled to review, upon reasonable prior written notice, all manufacturing Records relating to such samples, including all analytical procedures and cleaning validation relating to the equipment used in connection with the manufacture of the samples. Such Product samples shall be Delivered to Customer (or such Third Party as Customer shall designate) in accordance with the provisions set forth in Section 2.6(a) and at the Price as determined in accordance with the terms of Section 3. Customer shall pay for such samples when invoiced in accordance with Section 3.5. 2.9 Storage.
Manufacturer will store Products, Buy-Sell Materials, Product Materials, and Customer-Supplied Materials in accordance with the requirements of the Quality Agreement. With respect to those Third-Party warehouses used by Manufacturer or its Affiliates in the ordinary course for the storage of a given Product, Buy-Sell Materials, Product Materials, or Customer-Supplied Materials immediately prior to the Effective Date, Manufacturer may engage such Third-Party warehouse to perform the solely same activities for such Product, Buy- Sell Materials, Product Materials, and Customer-Supplied Materials under this Agreement without first obtaining Customer's prior written consent. The use of any Third Party warehouse for the storage of any Product, Buy-Sell Materials, Product Materials, or Customer- Supplied Materials other than in the manner expressly permitted pursuant to this Section 2.9 must be approved in advance in writing by Customer, such approval not to be unreasonably withheld, conditioned or delayed. Manufacturer shall obtain the right for Customer to audit, at Customer's expense, any such Third-Party warehouse upon reasonable prior advance written notice and during normal business hours. Manufacturer has no obligation to store Product more than fifteen (15) Business Days following the requested delivery date for such Product; provided that (a) Manufacturer shall be obligated to store Product for such longer -23-
Source: UPJOHN INC, 10-12G, 1/21/2020
period as may be reasonably necessary for Customer to arrange transportation for such Product in the event that Manufacturer experiences delays in the manufacture, release, or supply of a particular Product that results in the delivery of a quantity of Product that exceeds historical or Forecast quantities of Product for the applicable period and; (b) with respect to any Product that Customer reasonably believes should not be released by Manufacturer, Manufacturer shall store such Product until the Parties' definitive resolution pursuant to this Agreement and the Quality Agreement as to whether such Product should be released. At the expiration of the applicable time frame in the preceding sentence, notwithstanding any provision of this Section 2.9 to the contrary, Manufacturer may transport and store the subject Product at a Third-Party warehouse at Customer's expense. 2.10 Transitional Support. (a) On a Product-by-Product basis, Customer may elect, upon written notice to Manufacturer, for Manufacturer to provide Customer with reasonable technical support, as more fully set forth in this Section 2.10, to transfer production of a given Product or Products to a Customer facility or a facility of an alternative source of supply as designated by Customer (such support, Technical Support and such facility, the Receiving Site). Customer may make such election for Technical Support at any time during the Term (including in the event of a Triggering Event under Section 2.5(a) or in advance of any expiration of this Agreement) or promptly after the termination or expiration of this Agreement but in no event more than ninety (90) days following the effective date of such termination or expiration. Such reasonable Technical Support shall consist of: (i) supply of a technical package to facilitate the transfer of all relevant manufacturing information for such Product(s) to the Receiving Site, including formulation descriptions, manufacturing instructions, Specifications, methods, data required for applicable regulatory submissions and facility qualification, and material supplier information, as applicable, except for any information that is subject to confidentiality obligations owing to a Third Party; provided that the technical package will not include any manufacturing information, including formulation descriptions, manufacturing instructions, Specifications, methods and material supplier information, that is generally available to or known by the public, can be obtained on reasonable terms from Third Parties or is already available or being utilized by Customer or its Affiliate at one of Customer's or its Affiliate's facilities; (ii) host site visits to the Manufacturer's Facility by Customer to observe production of the applicable Product or Products, in each case, at a mutually agreed date and subject to confidentiality procedures or requirements as may be requested or implemented by Manufacturer; provided that the request for each such visit shall be made so as to allow for sufficient advance preparation time and can be accommodated in the requested timeframe without interruption to Manufacturer's routine production or operations; -24-
Source: UPJOHN INC, 10-12G, 1/21/2020
(iii) performance of high-level consultation and answering reasonable queries for Customer through the transfer process; and (iv) provision of reasonable Product samples required under applicable Law for transfer activities. (b) Customer shall be responsible for identifying and requesting any and all Technical Support that is required from Manufacturer to assure such technology transfer is successful. (c) The Parties shall reasonably cooperate and mutually agree to facilitate the provision of any additional reasonable Technical Support with respect to the applicable Product or Products to Customer, including assistance through the transfer process, Manufacturer Personnel visits to the Receiving Site and training and troubleshooting during the Receiving Site's first production run of the applicable Product or Products, in each case, as and to the extent reasonably agreed by Manufacturer in each instance (and subject to Sections 2.10(d), 2.10(e) and 2.10(f)). (d) The Parties will work together in good faith to plan for upcoming and ongoing Technical Support needs and to accommodate such plans in order to maintain ongoing business continuity. In addition, Manufacturer shall have no obligation to hire or retain any individuals or make any capital expenditures in connection with Technical Support, and Manufacturer's obligation to provide Technical Support is contingent upon the continued employment by Manufacturer of those individuals capable of providing such Technical Support. Manufacturer may terminate its obligation to provide any Technical Support with respect to the applicable Product under this Agreement if Customer or any of its Affiliates hires any Manufacturer Personnel involved in providing Technical Support to Customer hereunder (without limiting any applicable non-solicitation obligations of Customer pursuant to the Business Combination Agreement). (e) Customer shall be solely responsible for any and all regulatory or other Governmental Authority requirements, activities and related costs and expenses that arise in conjunction with any Technical Support, technology transfer of production or production of each Product to or at the Receiving Site. These activities may also include, but are not limited to, creation of additional data or technical information, analytical method modifications or other work of a technical nature required to support regulatory queries or contemporary standards and guidelines driven by the manufacturing transfer (subject to Section 8.2). -25-
Source: UPJOHN INC, 10-12G, 1/21/2020
(f) Subject to Section 2.5(e), Customer is responsible for, and shall promptly reimburse Manufacturer for, any and all reasonable out-of- pocket costs and expenses incurred by or on behalf of Manufacturer in connection with any Technical Support provided to Customer under this Agreement, including employee costs to be charged at a rate that reasonably approximates the cost of providing the Technical Support, without any intent to cause Manufacturer to make profit or incur loss. (g) With respect to each Product for which Manufacturer provides Technical Support under this Agreement, Manufacturer shall provide to Customer any analytical materials and methods in Manufacturer's possession or control that are required in connection with disclosures to any applicable Governmental Authority to qualify the applicable Product Materials, Buy-Sell Materials, or Customer- Supplied Materials for such Product or such Product itself for release testing to meet the then-current applicable marketing authorization, in each case, subject to Section 13. (h) Nothing in this Agreement shall require Manufacturer to provide more than 75 hours per calendar year per Product in connection with any Technical Support. Notwithstanding anything to the contrary herein, except as expressly provided in Section 2.10(g), Manufacturer shall have no obligation to disclose, license or otherwise provide confidential or proprietary information of Manufacturer, its Affiliates or any Third Party in connection with this Agreement or any Technical Support or technology transfer therein. 3. Price; Payment; Price Adjustments; Taxes. 3.1 Price. (a) Initial Price. On a Fiscal Year-by-Fiscal Year basis, Customer shall purchase each Product from Manufacturer at the Price for such Product for such Fiscal Year, as determined in accordance with the terms of this Section 3. The Price for each Product during the Initial Price Term (such Price, the Initial Price for such Product) is set forth in the Facility Addendum for such Product. Following the Initial Price Term, the Price of such Product may be adjusted only as set forth in Section 3.1(b) and Section 3.2. (b) Price in Extension Periods. In the event that Customer elects to extend the Initial Term of the Agreement or of a Facility Addendum, the Price for each applicable Product in any Extension Period shall be one hundred percent (100%) of Manufacturer's Standard Product Materials Cost plus one hundred and ten percent (110%) of Manufacturer's Standard Conversion Cost of such Product, each for the initial Fiscal Year of the first Extension Period with respect to such Product. During each Extension Period, the Price of such Product may be adjusted as set forth in Section 3.2; provided that the initial Fiscal Year of the first Extension Period shall operate as the Facility Conversion Cost Baseline Fiscal Year (as defined below). -26-
Source: UPJOHN INC, 10-12G, 1/21/2020
(c) Subject to the limitations and conditions set forth in this Agreement, it is the intention of the Parties that the Price of each Product reflects one hundred percent (100%) of Manufacturer's Standard Product Materials Cost plus one hundred and ten percent (110%) of Manufacturer's Standard Conversion Cost of such Product. The Price for each Product will be set forth in the currency specified in the applicable Facility Addendum. (d) Changes to the Standard Cost Methodology. Manufacturer shall have the right to change the Standard Cost methodology once per Fiscal Year; provided that any change shall be consistent with the Accounting Method and applied across all products manufactured at the applicable Facility. If Manufacturer elects to change the Standard Cost methodology, Manufacturer shall calculate both (i) the revised Standard Cost using the methodology effective during the then-current Fiscal Year of the Term of the applicable Facility Addendum and (ii) the percentage change in Standard Cost caused by the change in methodology relative to the former methodology. If such Standard Cost methodology change results in an increase of Facility Conversion Cost for Products manufactured for Customer of more than two percent (2%), then Manufacturer shall revert to the former methodology for purposes of the calculation of Price during such Fiscal Year. 3.2 Price Adjustment. (a) Product Materials Adjustment. (i) On a Facility-by-Facility basis, with respect to each full Fiscal Year of the Term of the applicable Facility Addendum, the Price of each Product manufactured at the applicable Facility will be updated to reflect one hundred percent (100%) of the full estimated amount of the increase or decrease in the cost of Product Materials for each such Product. (ii) In each Fiscal Year of the Term of this Agreement, Manufacturer shall submit a report to Customer by no later than the end of the first quarter of such Fiscal Year setting out the Facility Actual Product Materials Cost with respect to each Facility for the prior Fiscal Year. In the event that the Facility Actual Product Materials Cost differs from the Facility Estimated Product Materials Cost, when adjusted to reflect actual volume, then Manufacturer shall issue either (A) an invoice to Customer for any amounts owed by Customer to Manufacturer or (B) a credit memo for amounts owed by Manufacturer to Customer reflecting the difference between the Price as invoiced and an adjusted Price for such Fiscal Year; -27-
Source: UPJOHN INC, 10-12G, 1/21/2020
provided, however, that any such adjustment made in accordance with the foregoing shall be subject in all cases to the provisions of Section 3.2(e). Customer shall pay all undisputed amounts due in the currency specified in the applicable Facility Addendum within sixty (60) calendar days from the date of the invoice. If Customer disputes all or any portion of an invoice, it shall be required to pay only the amount not in dispute, and in such event Customer shall notify Manufacturer of the amount and nature of the dispute. Payment by Customer of any amount reflected in any invoice shall not result in a waiver of any of Customer's rights under this Agreement. (b) Conversion Cost Adjustments. (i) Subject to the remainder of this Section 3.2(b), on a Facility-by-Facility basis, if the Facility Conversion Costs of a Facility during any Fiscal Year following the first full Fiscal Year of the Term of the applicable Facility Addendum (such Fiscal Year, a Facility Conversion Cost Adjustment Fiscal Year) are estimated to be (a) less than seventy-five percent (75%) of the Facility Conversion Costs for the Facility Conversion Cost Baseline Fiscal Year (as defined below) or (b) greater than one hundred and twenty-five percent (125%) of the Facility Conversion Costs for the Facility Conversion Cost Baseline Fiscal Year (clauses (a) and (b) referred to collectively as the Facility Conversion Cost Threshold), when adjusted to reflect a constant volume between the Facility Conversion Cost Adjustment Fiscal Year and the Facility Conversion Cost Baseline Fiscal Year, then the Price for such Product will be updated beginning with such Facility Conversion Cost Adjustment Fiscal Year to reflect one hundred and ten percent (110%) of the increase or decrease in Facility Conversion Costs. An example calculation of the foregoing Price adjustment is attached hereto as Attachment G. Subject to the last sentence of Section 3.1(b), the Facility Conversion Cost Baseline Fiscal Year shall be, as of the Effective Date, 2019 budget volumes and costs as summarized in the applicable Facility Addenda; provided that in each instance in which the Price is adjusted in accordance with the immediately preceding sentence of this Section 3.2(b)(i), the Facility Conversion Cost Baseline Fiscal Year shall be the applicable Facility Conversion Cost Adjustment Fiscal Year. (ii) In the event that Price is adjusted as a result of a change to Facility Conversion Cost under Section 3.2(b)(i), the Facility Conversion Cost Threshold for all remaining Fiscal Years in the Initial Term (or Extension Periods as appropriate) will be reduced such that if Facility Conversion Costs of a Facility during any Facility Conversion Cost Adjustment Fiscal Year are estimated to be (a) less -28-
Source: UPJOHN INC, 10-12G, 1/21/2020
than eighty percent (80%) of the Facility Conversion Costs for the Facility Conversion Cost Baseline Fiscal Year or (b) greater than one hundred and twenty percent (120%) of the Facility Conversion Costs for the Facility Conversion Cost Baseline Fiscal Year, then the Price for such Product will be updated beginning with such Facility Conversion Cost Adjustment Fiscal Year to reflect the full estimated amount of the increase or decrease in Conversion Cost. (iii) Notwithstanding anything to the contrary in this Section 3.2(b), Manufacturer shall not have the ability to adjust the Price to reflect actual volume for Products in a Facility to the extent that Customer has reduced its demand for one or more Products in such Facility due to Manufacturer's breach of or other failure to supply under this Agreement or the applicable Facility Addendum. (iv) In each Fiscal Year following the first full Fiscal Year of the Term of this Agreement, Manufacturer shall submit a report to Customer by no later than the end of the first quarter of such Fiscal Year setting out the actual volume of Product for each Facility for the prior Fiscal Year. In the event that the actual Facility Conversion Costs demonstrate that the then applicable Facility Conversion Cost Threshold has been exceeded, and Manufacturer had not previously adjusted the applicable Price in accordance with this Section 3.2(b) to account for such adjustment, then Manufacturer shall either issue (A) an invoice to Customer for any amounts owed by Customer to Manufacturer or (B) a credit memo for amounts owed by Manufacturer to Customer reflecting the difference between the Price as invoiced and the adjusted Price for such Fiscal Year; provided, however, that any such adjustment made in accordance with the foregoing shall be subject in all cases to the provisions of Section 3.2(b)(iii). For clarity, any amount owed by Customer to Manufacturer or owed by Manufacturer to Customer shall be one hundred and ten percent (110%) of Manufacturer's Conversion Cost, reduced by a 20% allowance for variable costs. Customer shall pay all undisputed amounts due in the currency specified in the applicable Facility Addendum within sixty (60) calendar days from the date of the invoice. If Customer disputes all or any portion of an invoice, it shall be required to pay only the amount not in dispute, and in such event Customer shall notify Manufacturer of the amount and nature of the dispute. Payment by Customer of any amount reflected in any invoice shall not result in a waiver of any of Customer's rights under this Agreement. (c) Notwithstanding the above, the price for Buy-Sell Materials will be updated annually in each year following the first Fiscal Year to reflect one hundred percent (100%) of the full estimated amount of the cost of Buy-Sell Materials to Manufacturer. Customer may not change the price of Buy-Sell -29-
Source: UPJOHN INC, 10-12G, 1/21/2020
materials during any Fiscal Year. Upon any notification by Customer to Manufacturer of any reduction in the price of Buy-Sell Materials for the upcoming Fiscal Year, Manufacturer shall submit to Customer an inventory of such Buy-Sell Materials on hand and a calculation of the positive difference between the aggregate price for such Buy-Sell Materials applying the price for the current Fiscal Year and the aggregate price for such Buy-Sell Materials applying the price for the upcoming Fiscal Year. Customer shall promptly and in no event later than sixty (60) days issue to Manufacturer a credit memo in the amount of such positive difference reflected in Manufacturer's notice. (d) The increases or decreases described in this Section 3.2 shall be determined by Manufacturer in a manner consistent with the accounting methodologies used by Manufacturer as of the Effective Date and shall be based on the applicable Forecasts provided by Customer in July of the applicable Fiscal Year and applied consistently across Manufacturer's entire manufacturing operations for the full Facility. (e) Manufacturer shall notify Customer of any estimated expected changes to Prices for the upcoming Fiscal Year by no later than June 1 of the then-current Fiscal Year and shall notify Customer of any actual changes to Prices for the upcoming Fiscal Year by no later than October 30 of the then-current Fiscal Year. Between June 1 and October 30, the Parties will engage in ongoing discussions to ensure that any final changes to Prices for the applicable Fiscal Year conform to the terms and conditions of this Agreement. Manufacturer will promptly respond to Customer's inquiries regarding any proposed changes to the Price of Products and provide reasonable documentation to Customer supporting the estimated or actual change in such Prices. Any actual, adjusted Price of each Product shall become effective on the first day of the first month of such upcoming Fiscal Year. (f) Any disputes relating to changes in Price for a given Product will be resolved pursuant to Section 3.4. 3.3 Cost Improvement.
At Customer's reasonable request, Manufacturer and Customer agree to discuss in good faith the implementation of possible cost reduction opportunities with the objective to reduce the net Price of Product. Without limiting the generality of the foregoing, Manufacturer shall use commercially reasonable efforts to reduce the price of Product Materials. -30-
Source: UPJOHN INC, 10-12G, 1/21/2020
3.4 Price Review and Audit Procedure. (a) Manufacturer shall maintain complete and accurate Records that fairly reflect the relevant costs and calculations used to determine the Price of each Product and shall retain such Records for a period of not less than three (3) years after the applicable Product was manufactured and delivered hereunder. With respect to a Price change under Section 3.2 for any Product in an upcoming Fiscal Year, if Customer requests such a review in writing within thirty (30) days following notice to Customer of such change, then: (i) the Parties shall reasonably discuss and attempt to resolve any disagreement with respect thereto and (ii) if such disagreement is not resolved within thirty (30) days following commencement of such discussions, Customer shall have the right, no more than one (1) time per Fiscal Year each for the subject of (1) and (2) below and on no less than thirty (30) days' notice to Manufacturer, to appoint a reputable and internationally recognized independent Third-Party audit firm reasonably acceptable to Manufacturer (and which agrees to be bound by Manufacturer's customary confidentiality agreement) to audit such relevant Records, during normal business hours and on a confidential basis, to verify that, either (1) the change in the relevant Products' Price for an applicable Facility for the upcoming Fiscal Year, as applicable, or (2) the true-up determination with respect to (x) the estimated and actual Facility Conversion Costs of a Facility with respect to any Fiscal Year or (y) the Facility Estimated Product Materials Cost and the Facility Actual Product Materials Cost with respect to any Fiscal Year, was accurately and equitably calculated by Manufacturer in accordance with this Agreement; provided that Customer shall be deemed to have waived its right for such a review if Customer does not make such request within thirty (30) days following delivery of Manufacturer's notice to Customer of such increase. For the avoidance of doubt, any such audit initiated by Customer in accordance with clause (ii) above shall include in the scope of audit all of the Products manufactured at the applicable Facility, and not be limited in scope to the discrete Product(s) in question. Subject to Section 3.4(b)(2), Customer shall bear all costs and expenses of conducting such an audit, and such accounting firm shall work on an hourly or flat fee basis without a contingency fee or other performance or bonus fee. Such accounting firm shall, as promptly as practicable, provide in writing (I) a detailed report of such audit to Manufacturer and (II) a separate report limited to the Price for the subject Products in the relevant Fiscal Year as calculated by such accounting firm in accordance with this Agreement to Manufacturer and Customer. The Price for the Products during a Fiscal Year, as calculated by such accounting firm, absent any manifest error, shall be binding upon the Parties with respect to such increase or required payment, as applicable; provided that, within fifteen (15) days of receipt of the audit report, Manufacturer shall have the right to dispute such Price or calculation thereof by submitting written notice to Customer and the accounting firm accompanied by information supporting Manufacturer's position. Within thirty (30) days of receipt of Manufacturer's notice of dispute, the accounting firm shall issue its final findings with respect to the Price for the relevant Product in the relevant Fiscal Year and such decision, absent manifest error, shall be binding upon the Parties. -31-
Source: UPJOHN INC, 10-12G, 1/21/2020
(b) If, as a result of any audit by Customer pursuant to Section 3.4(a), the aggregate Price calculated by the accounting firm with respect to all Products manufactured at the applicable Facility for a Fiscal Year is: (i) less than ninety-five percent (95%) of the aggregate Price for all such Products established by Manufacturer pursuant to Section 3.2 for such Products during such Fiscal Year, then, if Customer has made payments to Manufacturer for such Products at the higher Price established by Manufacturer during such Fiscal Year, Manufacturer shall refund to Customer the overpayment made by Customer; or (ii) more than one hundred and five percent (105%) of the aggregate Price for all such Products established by Manufacturer pursuant to Section 3.2 for such Products during such Fiscal Year, then, if Customer has made payments to Manufacturer for such Products at the lower Price established by Manufacturer for such period, Customer shall promptly pay Manufacturer for the amount of the underpayment that should have been paid by Customer;
in each case of clauses (i) and (ii), (1) such payment to be made within sixty (60) days of the owing Party's receipt of the relevant detailed report and final Price pursuant to Section 3.4(a) and (2) Manufacturer shall be responsible for payment of the applicable accounting firm's reasonable and actual fees in connection with such audit. 3.5 Invoices and Payment.
Manufacturer shall submit invoices to Customer upon Delivery of Product. All invoices for Products will be in functional currency unless otherwise specified in the applicable Facility Addendum, and all undisputed payments hereunder shall be in full and be made without any withholding, offset or any other deductions. Manufacturer shall include the following information on all invoices: (a) the applicable Purchase Order number and billing address; (b) the quantity of Product delivered (and where applicable, the type, description or part number, if any); (c) the required delivery date specified in the applicable Purchase Order; (d) the actual date of Delivery; (e) the Price; (f) any applicable Taxes, transportation charges or other charges provided for in the applicable Purchase Order; (g) the applicable invoice number; and (h) the Delivery Facility, unless otherwise specified in the Facility Addendum. Subject to Customer's rights under Section 4.8 to reject Non-Complying Product or Product that is not otherwise Delivered in accordance with the terms of and conditions of this Agreement, Manufacturer shall invoice Customer for Product upon Delivery of the applicable Product in accordance with Section 2.6(a). Customer shall be obligated to pay only for actual quantities of -32-
Source: UPJOHN INC, 10-12G, 1/21/2020
Product delivered. Unless otherwise set forth in the applicable Facility Addendum with respect to a particular Product or Products, Customer shall pay all undisputed amounts due in the currency specified in the applicable Facility Addendum within sixty (60) calendar days from the date of the invoice. If Customer disputes all or any portion of an invoice, it shall be required to pay only the amount not in dispute, and in such event Customer shall notify Manufacturer of the amount and nature of the dispute. Payment by Customer of any amount reflected in any invoice shall not result in a waiver of any of Customer's rights under this Agreement. If any payment required to be made under this Agreement is not made within twenty (20) days of the applicable date when such payment is due (the Late Payment Date), interest shall accrue on such past due amount from the Late Payment Date until the date payment is actually made at a quarterly rate equal to the lesser of (i) the Three-Month U.S. dollar LIBOR (Reuters Page LIBOR01) on the Late Payment Date (or the next Business Day if such Late Payment Date is not a Business Day), and (ii) the maximum rate permitted by applicable Law. Time for any payments hereunder shall be of the essence. 3.6 Taxes. (a) All sums payable under this Agreement are exclusive of any amount in respect of VAT. If any action of one Party (the Supplier) under this Agreement constitutes, for VAT purposes, the making of a supply to another Party (or a member of that Party's Group) (the Recipient) and VAT is or becomes chargeable on that supply, the Recipient shall pay to the Supplier, in addition to any amounts otherwise payable under this Agreement by the Recipient, a sum equal to the amount of the VAT chargeable on that supply against delivery to the Recipient of a valid VAT invoice issued in accordance with the laws and regulations of the applicable jurisdiction. (b) Without duplication of amounts covered by Section 3.6(a), Customer (or the applicable Affiliate) shall be responsible for all VAT, sales, goods and services, use, gross receipts, transfer, consumption and other similar Taxes (excluding, for clarity, Taxes imposed on net income, profits and gains and franchise Taxes), together with interest, penalties and additions thereto (Service Taxes), imposed by applicable taxing authorities on the direct sale of Products to Customer or any of its Affiliates or any payment hereunder; provided that such Service Taxes are shown on a valid invoice. If Manufacturer or any of its Affiliates is required to pay any part of such Service Taxes, Manufacturer shall provide Customer with evidence that such Service Taxes have been paid, and Customer (or its applicable Affiliate) shall reimburse Manufacturer for such Service Taxes. Manufacturer shall, upon the reasonable request of Customer, promptly revise any invoice to the extent such invoice was erroneously itemized or categorized. Each Party shall, and shall cause its Affiliates to, use commercially reasonable efforts to (i) minimize the amount of any Service Taxes imposed on the provision of Services hereunder, including by availing itself of any available exemptions from or reductions to any such -33-
Source: UPJOHN INC, 10-12G, 1/21/2020
Service Taxes, and (ii) cooperate with the other Party in providing any information or documentation that may be reasonably necessary to minimize such Service Taxes or obtain such exemptions or reductions. If at any time Manufacturer (or any of its Affiliates) receives a refund (or credit or offset in lieu of a refund) of any Service Taxes borne by Customer (or any of its Affiliates), then Manufacturer or its Affiliate receiving such refund or utilizing such credit or offset shall promptly pay over the amount of such refund, credit or offset (net of all reasonable related out-of-pocket costs, expenses and Taxes incurred in respect thereof) to Customer or its applicable Affiliate, it being understood that Customer and its applicable Affiliate shall be liable for (x) any subsequent disallowance of such refund, credit or offset and any related interest, penalties or additions thereto and (y) any reasonable out-of- pocket costs and expenses related to such disallowance. (c) The Parties and their Affiliates shall reasonably cooperate to determine whether any Tax withholding applies to any amounts paid under this Agreement and, if so, shall further reasonably cooperate in (i) minimizing the amount of any such withholding Taxes, including by availing itself of any available exemptions from or reductions to any such withholding Taxes, (ii) providing any information or documentation that may be reasonably necessary to minimize such withholding Taxes or obtain such exemptions (including, without limitation, pursuant to any applicable double taxation or similar treaty) or (iii) receiving a refund of such withholding Taxes or claiming a Tax credit therefor. If any such withholding is required by applicable Law, the paying Party (or its applicable Affiliate) shall properly and timely withhold and remit such Taxes to the applicable taxing authority and use reasonable efforts to provide the other Party with a copy of any receipt (where it is common practice for the applicable taxing authority to provide such a receipt) or other documentation confirming such payment, and such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the receiving Party (or its applicable Affiliate). The paying Party (or its applicable Affiliate) shall not be required to gross up any amounts invoiced to the paying Party to account for, or otherwise compensate the receiving Party (or its applicable Affiliate) for, any Taxes that are required to be withheld under applicable Law. (d) Where a Party or any member of its Group is required by this Agreement to reimburse or indemnify the other Party or any member of its Group for any cost or expense, the reimbursing or indemnifying Party (or the applicable member of its Group) shall reimburse or indemnify the other Party (or the applicable member of its Group) for the full amount of the cost or expense, inclusive of any amounts in respect of VAT imposed on that amount to the extent properly reflected on a valid invoice, except to the extent that the reimbursed or indemnified Party reasonably determines that it (or such member of its Group), or a member of the same group as it (or such member of its Group) for VAT purposes, is entitled to credit for or repayment of that VAT from any relevant taxing authority. -34-
Source: UPJOHN INC, 10-12G, 1/21/2020
(e) For purposes of this Agreement, and except as otherwise specifically provided in this Agreement, Tax matters shall be exclusively governed by the Tax Matters Agreement, and in the event of any inconsistency between the Tax Matters Agreement and this Agreement with respect to Tax matters, the Tax Matters Agreement shall control. 3.7 No Duplicative Payments. Notwithstanding anything to the contrary in this Agreement, no Party (or Affiliate thereof) shall enjoy a duplicative right, entitlement, obligation, or recovery with respect to any matter arising out of the same facts and circumstances. 4. Manufacturing Standards and Quality Assurance. 4.1 Quality Agreement.
On a Facility-by-Facility and Product-by-Product basis, the Parties will comply with the requirements and provisions set forth in the Quality Agreement applicable to the applicable Facility and Product, the form of which has been attached hereto as Attachment B and, through such attachment, made a part hereof. In the event of a conflict between the terms of the applicable Quality Agreement and the terms of this Agreement, the terms of the Quality Agreement shall govern and control for all quality and regulatory compliance matters and the terms of this Agreement shall govern and control for all other matters. 4.2 Manufacturing Standards.
Manufacturer shall manufacture and supply each Product (including disposing of all Waste and other materials) in accordance with all applicable Specifications, applicable Laws, requirements under the applicable Quality Agreement, and this Agreement. 4.3 Manufacturing Changes. (a) Discretionary Changes. Subject to Section 4.3(b), in the event that either Party desires to change, revise, modify or otherwise alter the Specifications, manufacturing processes, Product Materials, Buy-Sell Materials, Customer-Supplied Materials, or Facilities with respect to a given Product in any manner (each, a Manufacturing Change), the Party desiring the Manufacturing Change shall notify the other Party in writing of the proposed Manufacturing Change and the Parties will promptly meet to discuss, in good faith, the feasibility of implementing such Manufacturing Change and the allocation of costs between the Parties for such Manufacturing Change; provided that the requested Manufacturing Change will not be implemented unless and until the Parties mutually agree in writing to implement such Manufacturing Change. Unless otherwise agreed upon by the Parties, the Party requesting the Manufacturing Change will be responsible for, and will bear the costs of, any filings or other actions that either Party must take with the applicable Governmental Authority as a result of such Manufacturing Change. -35-
Source: UPJOHN INC, 10-12G, 1/21/2020
(b) Required Changes. If, at any time, a Manufacturing Change is required by a Governmental Authority in a country in which Regulatory Approval for a given Product has been granted, a Governmental Authority in a country in which Customer seeks to obtain Regulatory Approval for a given Product, or a Governmental Authority in the country in which the Facility that manufactures a given Product is located, then the Party that first has knowledge of the required Manufacturing Change shall notify the other Party in writing of such required Manufacturing Change, and Manufacturer will review such Manufacturing Change with Customer. Manufacturer will bear all costs and expenses associated with implementing the Manufacturing Change, unless such Manufacturing Change relates solely to a Product or Products manufactured for Customer (including any required labeling changes), in which case Customer will bear all costs and expenses associated with implementing such Manufacturing Change for such Product, including any changes to labeling or packaging, but only to the extent such costs are reasonable and documented. 4.4 Pest Control.
Manufacturer shall manufacture all Products, and Manufacturer shall store all Product Materials, Buy-Sell Materials, Customer-Supplied Materials, and all Products, in a clean, dry area, free from insects and rodents, in a manner to prevent entry of foreign materials and contamination of Product. Manufacturer's pest control measures shall include the adequate cleaning of the Facility, control of food and drink, protection of Product from the environment, monitoring of flying and crawling pests and logs detailing findings and actions taken. Manufacturer's pest control program shall be detailed in a written procedure which complies with applicable Laws, including cGMPs, and which shall be subject to review and approval by Customer. If Customer has specific concerns about procedures in place at any Facility, Customer will present such issues in its audit findings and the Parties will discuss in good faith a mutually agreeable plan for resolution of such issues. Failure of Manufacturer to comply with this Section 4.4 shall be deemed a material breach of this Agreement. 4.5 Legal and Regulatory Filings and Requests. (a) Manufacturer shall reasonably cooperate with Customer in responding to all requests for information from, and in making all legally required filings with, Governmental Authorities in the Territory having jurisdiction to make such requests or require such filings. Manufacturer shall: (a) obtain and comply with all licenses, consents and permits required under applicable Laws in the Territory (and Manufacturer shall provide Customer with a -36-
Source: UPJOHN INC, 10-12G, 1/21/2020
copy of all such licenses, consents and permits that are material upon Customer's reasonable request); and (b) comply with all applicable Laws in the Territory with respect to its manufacturing and packaging processes, the Facility or otherwise, to permit the performance of its obligations hereunder. Upon Customer's request, Manufacturer shall apply for and obtain Certificates of Pharmaceutical Production (CPP) from the Governmental Authorities of the country where the Facility is located, such CPPs to be issued to countries where CPPs according to Customer's opinion are required. Manufacturer shall pay all reasonable costs necessary to obtain such CPPs and be entitled to be reimbursed against invoice by Customer at cost; provided that Manufacturer shall make good faith efforts to consolidate its invoices for such reimbursement for CPPs and submit to Customer on a Fiscal Year quarterly basis. (b) In the event that Customer wishes to extend the Territory with respect to a certain Product, Customer shall notify Manufacturer of such request and Manufacturer shall consider Customer's request in good faith. For the avoidance of doubt, in the event that the Parties agree to extend the Territory with respect to a certain Product, any resulting Manufacturing Change shall be treated as a discretionary Manufacturing Change and governed by Section 4.3(a). 4.6 Quality Tests and Checks.
Manufacturer shall perform all bulk holding stability, manufacturing trials, validation (including, but not limited to, method, process and equipment cleaning validation), raw material, in-process, bulk finished product and stability (chemical and/or microbial) tests or checks required to assure the quality of a given Product and any tests or checks required by the Specifications, the Quality Agreement, applicable Facility Addendum or applicable Laws. With respect to any Product manufactured prior to Closing or located at a Facility as of Closing, Manufacturer shall maintain, continue and complete any and all such activities, tests and checks, including, without limitation, all ongoing stability testing. All costs associated with the performance of Manufacturer's obligations under this Section 4.6 (including with respect to any Product manufactured prior to Closing or located at a Facility as of Closing) are included in the Price of each Product and, accordingly, Manufacturer shall perform the foregoing at its cost and expense, without further reimbursement from Customer. Manufacturer shall obtain Product for these tests from batches of Product manufactured under this Agreement, and Manufacturer is responsible for providing all necessary technical, quality and operational resources. All tests and test results shall be performed, documented and summarized by Manufacturer in accordance with the Specifications, Quality Agreement, applicable Facility Addendum, applicable Laws and reasonable quality assurance requirements provided by Customer to Manufacturer in writing. Manufacturer shall maintain all production Records and disposition of each batch of Product. -37-
Source: UPJOHN INC, 10-12G, 1/21/2020
4.7 Responsibility for Non-Complying Product.
Manufacturer shall not release any Product for Delivery to Customer that does not conform to the covenants set forth in Section 5.2(e) (such non-conforming Product, Non-Complying Product), without the prior written approval of Customer. Manufacturer shall quarantine all such Non-Complying Products and shall promptly submit to Customer a report detailing the nature of such non-compliance and Manufacturer's recommended disposition, including the investigation and testing done. Manufacturer shall also provide any additional information regarding such Non-Complying Product as may reasonably be requested by Customer. Customer shall not be required to pay for any Non-Complying Product or for the destruction or other disposition thereof (unless an investigation determines that the root cause for such Product being Non-Complying Product is Non-Complying Buy-Sell Materials or Non-Complying Customer-Supplied Material). 4.8 Rejection of Non-Complying Product. (a) Customer's Ability to Reject. Customer may reject any Non-Complying Product or Product that is not delivered to Customer in accordance with this Agreement by providing written notice of such rejection to Manufacturer within seventy-five (75) days following Customer's receipt of any Delivery of Product hereunder; provided, however, that Customer may, until the expiry date for a Product, provide notice of rejection of any Delivery of such Product having (i) latent defects, (ii) any defects that are not reasonably discoverable by Customer through standard inspection and testing of Products or (iii) defects caused by the breach by Manufacturer of any of its representations or warranties under this Agreement (collectively, Latent Defects); provided, further, that, and notwithstanding the foregoing, Customer shall notify Manufacturer within sixty (60) days after Customer first becomes aware of any such Latent Defect. (b) Manufacturer's Ability to Reject. Manufacturer may reject any Non-Complying Product by (i) providing Customer with no less than sixty (60) days' prior written notice of Manufacturer's intention to reject such Non-Complying Product along with the documentation set forth in Section 4.7, (ii) meeting with Customer at Customer's request to discuss the basis for the proposed rejection of the subject Non-Complying Product, and (iii) providing Customer with notice of rejection in the event that Manufacturer rejects the subject Non- Complying Product at the end of such sixty (60) day period (or such other time frame as the parties may agree upon). (c) Manufacturer's Obligation; Replacement. Manufacturer shall respond to any rejection, defect notice or any quality-related complaint from Customer pursuant to Section 4.8(a) in a timely manner or such other time frame as may be specified in the applicable Quality Agreement. Manufacturer shall conduct an analysis of the causes of any such complaint, shall report to Customer on any corrective action taken and shall reasonably consider -38-
Source: UPJOHN INC, 10-12G, 1/21/2020
Customer's suggestions related to such corrective action or other quality-related matters. Customer shall promptly return any Product (or portions thereof) rejected pursuant to Section 4.8(a) to Manufacturer at Manufacturer's expense. With respect to any Non- Complying Product rejected by Customer, in addition to any other rights or remedies of Customer hereunder, Customer may elect, in its sole discretion, upon written notice to Manufacturer to either (i) have Manufacturer replace any Non-Complying Product as soon as practicable at no additional charge to Customer; provided that (A) the Manufacturer shall replace such Non-Complying Product within a period of ninety (90) days beginning on the date that the Manufacturer confirms or a Third-Party laboratory determines that the subject Product is a Non-Complying Product, and (B) if Manufacturer fails to replace such Non-Complying Product within such ninety (90) day period, then a Triggering Event shall be deemed to have occurred and the provisions of Section 2.5 shall apply; or (ii) be reimbursed for the Price of the Non-Complying Product actually paid. Manufacturer shall reimburse Customer for the cost of all Customer-Supplied Materials used to manufacture any Non-Complying Product (unless such Product is a Non-Complying Product due to any Non-Complying Customer-Supplied Material, as applicable). (d) Independent Testing. If the Parties are unable to agree on whether Product rejected by Customer is Non-Complying Product, then Manufacturer may hire an independent Third-Party laboratory, subject to Customer's prior written approval of such laboratory, not to be unreasonably withheld, conditioned or delayed, to perform testing on such rejected Product in accordance with the Specifications, applicable Laws and the Quality Agreement, which Third Party laboratory shall promptly provide the results thereof to Customer and Manufacturer. Manufacturer must engage such Third-Party laboratory within the thirty (30) day period following Manufacturer's receipt of Customer's rejection notice. If Manufacturer fails to engage such Third-Party laboratory during such thirty (30) day period, then Manufacturer will be deemed to have waived its right to engage such Third-Party laboratory. The determination of such tests shall be binding upon the Parties for all purposes hereunder; provided that, if such tests are unable to determine whether or not such rejected Product is Non-Complying Product, or if Manufacturer does not engage such Third-Party laboratory within the thirty (30) day period, then such Product shall be deemed to be Non-Complying Product. If such tests determine that the rejected Product is, or such Product is so deemed to be, Non-Complying Product, then Manufacturer shall bear the costs of such tests and Customer's remedies with respect to Non-Complying Product as set forth in this Agreement shall apply to such Non-Complying Product. Otherwise, Customer shall (i) bear the costs of such tests and shall remain obligated to pay Manufacturer the Price for such Product in accordance with Section 3 and (ii) reimburse Manufacturer for any shipping charges paid by Manufacturer pursuant to Section 4.8(c) with respect to the return of such -39-
Source: UPJOHN INC, 10-12G, 1/21/2020
Product to Manufacturer. Without limiting the foregoing obligations, if Customer reasonably requests in writing, then Manufacturer shall use commercially reasonable efforts to re-deliver such Product to Customer at Customer's expense. For the avoidance of doubt, provided that the Product conforms to the minimum shelf-life dating set forth in Section 5.2(e)(v) upon initial Delivery, such minimum shelf-life dating requirement shall not apply to the subject Product upon re-delivery in accordance with the immediately preceding sentence. (e) Survival. The provisions of this Section 4.8 shall survive termination or expiration of this Agreement or the applicable Facility Addendum. 4.9 Disposal of Rejected and Non-Complying Product.
All Non-Complying Product and Product rejected pursuant to this Agreement shall be removed (if applicable) and disposed of by Manufacturer in accordance with all applicable Laws, and as approved in advance by Customer in writing (such disposal cost to be at Manufacturer's expense, unless it is subsequently determined that Customer wrongly rejected such Product pursuant to Section 4.8). Manufacturer shall make documentation relating to such disposition available to Customer upon Customer's reasonable request. Manufacturer shall not sell for salvage or for any other purpose any rejected or Non-Complying Product, without the prior written approval of Customer. Manufacturer shall destroy all Non-Complying Product prior to disposal and Manufacturer shall deface and render unreadable all words or symbols that identify Customer, including Customer's trademarks and logotypes that adorn any packaging containing such Product, prior to disposal of such Product. 4.10 Maintenance and Retention of Records.
Manufacturer shall maintain detailed Records with respect to Product Materials, Buy-Sell Materials, and Customer-Supplied Materials usage and finished Product production in accordance with the Quality Agreement. 4.11 Government Inspections, Seizures and Recalls. (a) Notification; Initiation of Recalls. If (i) Manufacturer determines or comes to learn that a Product distributed to the market contains a latent defect or (ii) the FDA or any other Governmental Authority conducts an inspection at Manufacturer's Facility, seizes any Product, Buy-Sell Materials, Customer-Supplied Materials, or Product Materials, requests a Recall of any Product, Buy-Sell Materials, Customer-Supplied Materials, or Product Materials, or otherwise notifies Manufacturer of any violation or potential violation of any applicable Law at the Facility, or (iii) Customer notifies Manufacturer of its intent to initiate a Recall, then, with respect to each ((i)- (iii)), Manufacturer shall promptly notify Customer (as applicable) and shall take such actions as may be required under the Specifications or Quality -40-
Source: UPJOHN INC, 10-12G, 1/21/2020
Agreement. As applicable, Manufacturer shall promptly send any reports relating to such inspections, Recalls, violations or potential violations of applicable Law to Customer; provided that Manufacturer may reasonably redact any such reports to protect its confidential and proprietary Information that does not relate to Products. In the event that any such Governmental Authority requests, but does not seize, a given Product in connection with any such inspection, Manufacturer shall, to the extent reasonably practicable and permitted by applicable Law (1) promptly notify Customer of such request, (2) satisfy such request only after receiving Customer's approval, (3) follow any reasonable procedures instructed by Customer in responding to such request and (4) promptly send any samples of the applicable Product requested by the Governmental Authority to Customer. Manufacturer shall give and permit full and unrestricted access to all or any of its premises at any time to any authorized representative of any Governmental Authority or any of its agents or advisers and shall cooperate fully with any such representatives, in each case, relating to any such inspection. Manufacturer shall not initiate any Recall of Product, except as provided in the Quality Agreement, without the prior written agreement by Customer. (b) Costs. In the event a Recall results from any breach by Manufacturer of this Agreement, including Recalls on account of a given Product containing a latent defect, in addition to any other rights or remedies available to Customer under this Agreement, Manufacturer shall reimburse Customer for Customer's costs and expenses associated with such Recall, including costs of materials supplied by Customer (including Customer-Supplied Materials), shipping costs, administrative costs associated with arranging and coordinating the Recall and all actual Third Party costs associated with the distribution of replacement Product; provided that Customer shall be solely responsible for all, and shall reimburse Manufacturer for Manufacturer's costs and expenses associated with any Recall to the extent such Recall does not result from a breach by Manufacturer of this Agreement (e.g., is due to any Non- Complying Customer-Supplied Material or Non-Complying Buy-Sell Material). 4.12 Inspections.
Subject to the remainder of this Section 4.12, no more than once per calendar year, upon thirty (30) days' advance written notice to Manufacturer, Customer may physically inspect or audit (consistent with Section 15.2) the Facilities under this Section 4.12; provided that Customer will use good faith efforts to choose dates of inspection or audit that do not unreasonably interfere with the operation of Manufacturer's business; provided, further, that Customer shall consider in good faith any alternative dates of inspection or audit proposed by Manufacturer within five (5) days of Manufacturer's receipt of such notice (it being understood that nothing in this Section 4.12 shall require Customer to accept any such proposed alternative dates of inspection or audit). Notwithstanding the limits set forth in the -41-
Source: UPJOHN INC, 10-12G, 1/21/2020
foregoing sentence, Customer may more frequently conduct for cause physical inspections or audits of a Facility with five (5) days' advance written notice to Manufacturer if Customer has reasonable cause to believe that an inspection or audit of such Facility is warranted because Manufacturer's activities with respect to such Facility are in breach of this Agreement, applicable Laws, the Quality Agreement or the applicable Facility Addendum. Any such inspection or audit shall include access to relevant Records (subject to the terms of Section 15.2) and Personnel and being present during, as applicable, start-up manufacturing operations, validation, cleaning, sampling, laboratory testing, warehouse receiving and storage, pack out and shipping. Manufacturer shall provide technical assistance and direction to Customer and its representatives at the Facility. Subject to the terms and conditions set forth herein, Customer may conduct, at its own expense, periodic quality audits, to ensure Manufacturer's compliance with the terms of this Agreement. Manufacturer shall cooperate with Customer's representatives for all of these purposes, and shall promptly correct any deficiencies noted during the audits. Any Records or information accessed or otherwise obtained by Customer or its representatives during any such inspection or audit or any visit at any Facility shall be deemed Manufacturer's confidential and proprietary Information and each representative of Customer will be subject to non-use and other confidentiality obligations substantially comparable to those set forth herein for Customer. 4.13 Segregation of Restricted Compounds.
Unless otherwise set forth in a Facility Addendum with respect to a Product, Manufacturer shall not manufacture a Product using facilities or equipment shared with the following classes of product without prior consultation and agreement with Customer: (a) steroids, hormones, or otherwise highly active or toxic products that carry a likelihood of a serious adverse effect (e.g., carcinogenicity; anaphylaxis; reproductive and/or developmental toxicity; serious target organ toxicity) following a potential product cross-contamination or carry-over scenario, particularly at low exposure concentrations (i.e., with reference to an acceptable daily exposure (ADE) value or permitted daily exposure (PDE) value < 10 µg/day); (b) immunosuppressors where the ADE or PDE value < 10 µg/day; (c) live or infectious biological agents; (d) live or attenuated vaccines; (e) biotherapeutics where the ADE or PDE value < 10 µg/day and sufficient deactivation cannot be demonstrated; (f) products exclusive for animal use; (g) non-medicinal products; or (h) radiopharmaceuticals. Manufacturer shall not manufacture any highly sensitizing products, including beta-lactam antibiotics, as well as certain non-beta-lactam antibiotics, or otherwise highly sensitizing products that can elicit an immediate hypersensitivity reaction (Type I hypersensitivity; immunoglobulin E-mediated) in the same Facility as a Product. -42-
Source: UPJOHN INC, 10-12G, 1/21/2020
4.14 Packaging Material.
Unless otherwise provided in the applicable Facility Addendum, Customer shall determine and be responsible for the text (including any logos or other graphics) for all packaging material used in connection with Product. Manufacturer shall assure that all packaging materials are accurate and consistent with Customer's specifications for such text or graphics, including such matters as placement, size and colors. Manufacturer shall promptly notify Customer of any errors or deficiencies in such provided packaging materials. 5. Covenants. 5.1 Mutual Covenants. Each Party hereby covenants to the other Party that it will perform its activities under this Agreement in full compliance with all applicable Global Trade Control Laws, including as follows: (a) unless a license or other authorization is first obtained, the issuance of which is not guaranteed, neither Party will knowingly transfer to the other Party any goods, software, technology or services that are (1) controlled at a level other than EAR99 under the U.S. Export Administration Regulations; (2) controlled under the U.S. International Traffic in Arms Regulations; (3) specifically identified as an E.U. Dual Use Item; or (4) on an applicable export control list of a foreign country; (b) prior to engaging in any activities in a Restricted Market, involving individuals ordinarily resident in a Restricted Market or including companies, organizations, or Governmental Authorities from or located in a Restricted Market in each case in connection with this Agreement, each Party must first notify the other Party (which notice, notwithstanding Section 17, shall be addressed to (a) Pluto at gtc@pfizer.com and (b) Spinco at [●]), who will review and, if compliant with Global Trade Control Laws, approve (subject to any appropriate conditions) such activities (such approval not to be unreasonably withheld or delayed), within five (5) Business Days of such notification; provided that (1) to the extent relating to U.S. sanctions or export controls, such notification and approval shall not be required if the activity contemplated would be permissible for U.S. persons subject to U.S. sanctions (including without limitation under a U.S. Department of the Treasury Office of Foreign Assets Control general license), and (2) once notification is made and approval is granted with respect to a specific counterparty in a Restricted Market, further notification and approval will not be required for future transactions or activities with the same counterparty (unless there is a change in circumstances, processes or intermediate parties, including, but not limited to, carriers, or otherwise a change to Global Trade Control Laws relevant to that Restricted Market or counterparty); provided that, notwithstanding the foregoing, neither Party shall undertake any of the activities described in this clause (2) without the prior written approval of the other Party; and -43-
Source: UPJOHN INC, 10-12G, 1/21/2020
(c) notwithstanding anything set forth in Section 4.14 to the contrary, for the purposes of any and all packaging and shipping of any goods, software, technology or services pursuant to the activities contemplated under this Agreement, Manufacturer will determine: (i) a classification under relevant import and export laws; (ii) the country of origin; and (iii) a value for customs;
provided, however, that the Party acting as the importer of record (IOR) or exporter of record (EOR) shall have the right to request a review of any determination contemplated by clause (i), (ii) or (iii) above; provided, further, that if the IOR or EOR (as applicable) disagrees with such determination, then such Party shall maintain the right to refuse to export or import the applicable goods, software, technology or services. 5.2 Manufacturer Covenants. Manufacturer hereby covenants to Customer that: (a) The Facility and all equipment, tooling and molds utilized in the manufacture and supply of Product hereunder by or on behalf of Manufacturer shall, during the Term of this Agreement, be maintained in good operating condition and shall be maintained and operated in accordance with all applicable Laws. The manufacturing and storage operations, procedures and processes utilized in manufacture and supply of Product hereunder (including the Facility) shall be in full compliance with all applicable Laws, including cGMP and health and safety laws. (b) Manufacturer shall perform all of its obligations under this Agreement in compliance with the applicable Laws in the Territory. Manufacturer is in compliance and shall continue to comply, and shall cause its Personnel to comply, with all applicable Laws, including Laws requiring Serialization; provided that, with respect to compliance with Laws requiring Serialization, Customer shall reimburse Manufacturer for all investments made or costs incurred by Manufacturer in connection with any Serialization requirements specific to a given Product or Products (which, for clarity, shall not include Serialization requirements applicable to both Products and other products produced by Manufacturer in the Facility), but only to the extent such costs are reasonable and documented and are directed specifically with respect to a Product or Products. Manufacturer has and shall continue to have, and shall cause its Personnel to have, all professional licenses, consents, authorizations, permits, and certificates, and shall have and shall cause its Personnel to have completed all registrations and made such notifications as required by applicable Law for its performance of the services under this Agreement. (c) Manufacturer shall hold during the Term of this Agreement all licenses, permits and similar authorizations required by any Governmental Authority in the Territory for Manufacturer to perform its obligations under this Agreement. -44-
Source: UPJOHN INC, 10-12G, 1/21/2020
(d) Manufacturer shall have good title to all Product supplied to Customer pursuant to this Agreement and shall pass such title to Customer (or its designee) free and clear of any security interests, liens, or other encumbrances. (e) Products furnished by Manufacturer to Customer under this Agreement: (i) shall be manufactured, packaged, labeled, handled, stored and Delivered in accordance with, shall be of the quality specified in, and shall conform upon Delivery to Customer (or its designee) to, the Specifications; (ii) shall be manufactured, packaged, labeled, handled, stored and Delivered in compliance with all applicable Laws including, without limitation, cGMPs, and in accordance with the Quality Agreement, this Agreement and the applicable Facility Addendum; (iii) shall not contain any Product Material that has not been used, handled or stored by or on behalf of Manufacturer in accordance with the Specifications, all applicable Laws, the Quality Agreement, this Agreement and the applicable Facility Addendum; (iv) shall not be adulterated or misbranded within the meaning of Sections 501 and 502, respectively, of the Act or any other applicable Law; and (v) shall, at the time Delivered, have at least a remaining shelf-life as specified in the applicable Facility Addendum.
Notwithstanding the foregoing clauses (i) through (v) of this Section 5.2(e) or anything else contained in this Agreement or any Facility Addendum or Quality Agreement, Manufacturer shall have no liability under this Agreement (including under Section 4.11(b) or Section 10.1) or any Facility Addendum or Quality Agreement for any Non-Complying Product which is non-complying due to any Non-Complying Customer-Supplied Materials or Non-Complying Buy-Sell Materials. (f) Manufacturer has not and will not directly or indirectly offer or pay, or authorize such offer or payment, of any money or anything of value or improperly or corruptly seek to influence any Government Official or any other Person in order to gain an improper business advantage, and, has not accepted, and will not accept in the future, such a payment. Manufacturer will comply with the Anti-Bribery and Anti-Corruption Principles set forth in Attachment D. (g) Manufacturer shall ensure that it and its Personnel comply with the standard policies, regulations and directives listed on Attachment E and incorporated herein. -45-
Source: UPJOHN INC, 10-12G, 1/21/2020
5.3 Manufacturer's Social Responsibility. (a) Manufacturer covenants that it shall not, during the Term of this Agreement (i) use involuntary or underage labor (defined in accordance with applicable Laws) at the Facilities where its performance under this Agreement will occur or (ii) maintain unsafe or unhealthy conditions in any dormitories or lodging that it provides for its employees. Manufacturer agrees that during the Term of this Agreement, it shall promptly correct unsafe or unhealthy conditions in any dormitories or lodging that it provides for its employees. (b) Manufacturer covenants that it will perform its obligations under this Agreement in a manner consistent with all of the Pharmaceutical Industry Principles for Responsible Supply Chain Management, as codified as of the Effective Date at http://www.pharmaceuticalsupplychain.org. (c) Manufacturer shall not use, and shall not allow to be used, any (i) cassiterite, columbite-tantalite, gold, wolframite, or the derivatives tantalum, tin or tungsten that originated in the Democratic Republic of Congo or an adjoining country or (ii) any other mineral or its derivatives determined by the Secretary of State to be financing conflict pursuant to Section 13(p) of the Securities Exchange Act of 1934 ((i)-(ii) collectively, Conflict Minerals), in the production of any Product. Notwithstanding the foregoing, if Manufacturer uses, or determines that it has used, a Conflict Mineral in the production of any Product, Manufacturer shall immediately notify Customer, which notice shall contain a written description of the use of the Conflict Mineral, including, without limitation, whether the Conflict Mineral appears in any amount in the applicable Product (including trace amounts) and a valid and verifiable certificate of origin of the Conflict Mineral used. Manufacturer must be able to demonstrate that it undertook a reasonable country of origin inquiry and due diligence process in connection with its preparation and delivery of the certificate of origin. (d) Manufacturer will provide Customer with periodic access, upon reasonable notice, to any of its Facilities where it is performing under this Agreement, to its employees and Records and to any associated dormitories or lodging that Manufacturer provides to its employees, to permit Customer to determine Manufacturer's compliance with this Section 5.3. Customer may exercise its inspection rights under this Section 5.3(d) upon receipt of any information that would suggest to a reasonable Person that Manufacturer is not fulfilling its obligations under this Section 5.3. 5.4 Notice of Material Events.
Manufacturer will promptly notify Customer of any actual or anticipated events of which Manufacturer is aware that have or would be reasonably expected to have a material effect on any Product or on its ability to manufacture or supply any Product in accordance with the provisions set forth herein, including any labor difficulties, strikes, shortages in materials, plant closings, interruptions in activity and the like. -46-
Source: UPJOHN INC, 10-12G, 1/21/2020
5.5 Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES NOR RECEIVES ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF ANY FIRMWARE, SOFTWARE OR HARDWARE PROVIDED OR USED HEREUNDER, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. 6. Environmental Covenants. 6.1 Compliance with Environmental Laws. (a) Manufacturer shall perform all of its obligations herein in compliance with all Environmental Laws and all licenses, registrations, notifications, certificates, approvals, authorizations or permits required under Environmental Laws. (b) Manufacturer shall be solely responsible for all Environmental Liabilities arising from its performance of this Agreement. 6.2 Permits, Licenses and Authorization. (a) Manufacturer shall be solely responsible for obtaining, and shall obtain in a timely manner, and maintain in good standing, all licenses, registrations, notifications, certificates, approvals, authorizations or permits required under Environmental Laws, whether de novo documents or modifications to existing documents, which are necessary to perform the services hereunder, and shall bear all costs and expenses associated therewith. (b) Manufacturer shall provide copies of all material items referenced in Section 6.2(a) to Customer upon request by Customer and shall operate in compliance therewith. (c) Manufacturer shall provide Customer with reasonably prompt verbal notice, confirmed in writing within twenty-four (24) hours, in the event of any major incident, which shall include any event, occurrence, or circumstance, including any governmental or private action, which materially impacts or could materially impact Manufacturer's ability to fulfill its obligations under this Agreement. These include, but are not limited to: (i) material revocation or modification of any of the documents described in Section 6.2(a), -47-
Source: UPJOHN INC, 10-12G, 1/21/2020
(ii) any action by Governmental Authorities that may reasonably lead to the material revocation or modification of Manufacturer's required permits, licenses, or authorizations, as listed above, (iii) any Third Party Claim against the management or ownership of the Facility that could reasonably materially impact Manufacturer's obligations under this Agreement, (iv) any fire, explosion, significant accident, or catastrophic Release of Hazardous Materials, or significant near miss incident, (v) any significant non-compliance with Environmental Laws and (vi) any environmental condition or operating practice that may reasonably be believed to present a significant threat to human health, safety or the environment. (d) Notwithstanding the requirements noted above, each Party, whether Customer or Manufacturer, is required to create and maintain: (i) required licenses, permits and agreements, including those necessary to affect imports, exports, and activities covered by economic sanctions regulations, including annual agreements for activities involving Restricted Markets; (ii) policies, procedures, controls, and systems to support compliance with Global Trade Control Laws; and (iii) agreements with Customs Brokers, freight forwarders, financial institutions, and other third parties, as necessary. 6.3 Generation of Hazardous Wastes.
Without limiting other legally applicable requirements, Manufacturer shall prepare, execute and maintain, as the generator of Waste, all registrations, notices, shipping documents and manifests required under applicable Environmental Laws and in accordance therewith. Manufacturer shall utilize only reputable and lawful Waste transportation and disposal vendors, and shall not knowingly utilize any such vendor whose operations endanger human health or the environment. 6.4 Environmental Sustainability Information.
Manufacturer will disclose to Customer, on an annual basis, its results with respect to any efforts to reduce greenhouse gas emissions, water consumption or the generation of waste associated with the performance of this Agreement, to the extent Manufacturer otherwise prepares such results. 6.5 Environmental and Health and Safety Reviews. (a) Manufacturer covenants that it will, to the Manufacturer's knowledge, completely and accurately disclose to Customer all material environmental and health and safety information regarding its Products (including an obligation to supplement this information, as necessary) during the Term of this Agreement, as reasonably requested by Customer. -48-
Source: UPJOHN INC, 10-12G, 1/21/2020
(b) Manufacturer shall permit Customer (at Customer's expense) to conduct reasonable annual reviews of the environmental and health and safety practices and performance of the Facilities with respect to the Products where Manufacturer's performance under this Agreement is occurring; provided that such review shall not include any invasive sampling at such Facilities and shall not unreasonably interfere with Manufacturer's operation of such Facilities. In connection with such reviews, Manufacturer shall reasonably assist in the completion of an environmental health and safety survey of Manufacturer or the scheduling of an environmental health and safety audit of the Facility, as applicable, in each case with respect to the Products. Customer shall share its findings (including any deficiencies) with Manufacturer as soon as practicable, Manufacturer shall have the sole right to report any such deficiencies to third parties and Manufacturer shall use commercially reasonable efforts to correct, at no expense to Customer, such deficiencies in its environmental and health and safety management practices with respect to the Products that are not in compliance with applicable Law or create significant risk to human health or the environment. Manufacturer acknowledges that such reviews conducted by Customer are for the benefit of Customer only; they are not a substitute for Manufacturer's own environmental and health and safety management obligations under this Agreement and accordingly, Manufacturer may not rely upon them. 7. Term; Termination. 7.1 Term of Agreement.
Unless otherwise provided in the applicable Facility Addendum, this Agreement (a) shall commence on the Effective Date and shall continue for a period of four (4) years from such date (the Initial Term of this Agreement), unless sooner terminated pursuant to Section 7.3, 7.4, 7.5, 7.6 or 7.7, and (b) may be extended for up to three (3) additional periods of twelve (12) months (each, an Extension Period) by written notice given by Customer to Manufacturer not less than twelve (12) months prior to the expiration of the Initial Term or the applicable Extension Period, as the case may be. The Initial Term and all Extension Periods shall be referred to collectively as the Term of this Agreement. For the avoidance of doubt, the Term of this Agreement shall continue until all Facility Addenda hereunder expire or otherwise terminate, unless this Agreement or such Facility Addenda are sooner terminated pursuant to Section 7.3, 7.4, 7.5, 7.6 or 7.7. -49-
Source: UPJOHN INC, 10-12G, 1/21/2020
7.2 Term of Facility Addendum.
Unless otherwise provided in the applicable Facility Addendum, each Facility Addendum shall commence on the Effective Date and shall continue for a period of four (4) years from such date (the Initial Term of the Facility Addendum), unless extended or terminated pursuant to Section 7.3, 7.4, 7.5, 7.6 or 7.7. A Facility Addendum may be extended for up to three (3) additional periods of twelve (12) months (each, an Extension Period) by written notice given by Customer to Manufacturer not less than twelve (12) months prior to the expiration of the Initial Term or the applicable Extension Period, as the case may be. The Initial Term and all Extension Periods shall be referred to collectively as the Term of the Facility Addendum. 7.3 Termination for Cause. (a) Either Party may terminate this Agreement and the applicable Facility Addendum, on a Product-by-Product basis, with respect to a particular Product, upon written notice to the other Party in the event of a material breach by the other Party of any term of this Agreement or Facility Addendum with respect to such Product, which breach remains uncured for ninety (90) calendar days following written notice to such breaching Party of such material breach. (b) Either Party may terminate this Agreement and the applicable Facility Addendum, on a Facility Addendum-by-Facility Addendum basis, with respect to a particular Facility, upon written notice to the other Party in the event of a material breach by the other Party of any term of this Agreement or Facility Addendum with respect to such Facility, which breach remains uncured for ninety (90) calendar days following written notice to such breaching Party of such material breach. (c) For clarity, in the event that multiple Products are manufactured by or on behalf of Manufacturer under this Agreement in the same Facility, a material breach by Manufacturer of this Agreement or Facility Addendum that is an act or omission specific to one or more Products in a Facility, but not all Products in such Facility, shall give rise to an ability of Customer to terminate this Agreement solely with respect to the affected Product(s) under Section 7.3(a) but shall not give rise to an ability of Customer to terminate the relevant Facility Addendum under Section 7.3(b). 7.4 Termination for Disposition of Facility.
In the event that Manufacturer or any of its Affiliates, directly or indirectly, sells, assigns, leases, conveys, transfers or otherwise disposes of any Facility (a Facility Disposition), then Manufacturer shall immediately notify Customer of such event and Customer shall be entitled for a period of six (6) months after the receipt of such notice to terminate any Facility Addendum with respect to such Facility for cause immediately upon written notice to Manufacturer and, in the event Customer decides not to terminate the Facility Addendum for cause, Customer shall be entitled for a period of two (2) years (or such longer period in order to obtain approval for manufacture from all applicable Governmental Authorities) after -50-
Source: UPJOHN INC, 10-12G, 1/21/2020
receipt of such notice to receive Technical Support at Manufacturer's sole cost to enable Customer to orderly transfer production of affected Product or Products to a Customer facility or an alternative facility as designated by Customer; provided that Manufacturer shall notify Customer of any proposed or planned Facility Disposition by Manufacturer or any of its Affiliates as soon as reasonably practicable and in any event no later than the date that is three (3) months prior to the effective date of such Facility Disposition. 7.5 Termination in Event of Insolvency.
In the event that a Party hereto (a) becomes insolvent, or institutes or has instituted against it a petition for bankruptcy or is adjudicated bankrupt, (b) executes a bill of sale, deed of trust, or a general assignment for the benefit of creditors, (c) is dissolved or liquidated or (d) has a receiver appointed for the benefit of its creditors, or has a receiver appointed on account of insolvency (in the case of clauses (a)-(d), such Party shall be referred to as the Insolvent Party), then the Insolvent Party shall immediately notify the other Party of such event and such other Party shall be entitled to (i) terminate this Agreement or any and all Facility Addenda for cause immediately upon written notice to the Insolvent Party or (ii) request that the Insolvent Party or its successor provide adequate assurances of continued and future performance in form and substance acceptable to such other Party, which shall be provided by the Insolvent Party within ten (10) calendar days of such request, and the other Party may terminate this Agreement and any or all Facility Addenda for cause immediately upon written notice to the Insolvent Party in the event that the Insolvent Party fails to provide such assurances acceptable to the other Party within such ten (10) day period. 7.6 Termination for Breach of Anti-Bribery Representation.
Customer may terminate this Agreement and any and all Facility Addenda effective immediately upon notice to Manufacturer, if Manufacturer (a) breaches any of the representations and warranties set forth in Section 5.2(f) or (b) Customer learns (i) that improper payments are being or have been made or offered to any Government Official or any other Person by Manufacturer or those acting on behalf of Manufacturer with respect to any obligations performed hereunder or (ii) that Manufacturer or those acting on behalf of Manufacturer with respect to the performance of any obligations hereunder has accepted any payment, item, or benefit, regardless of value, as an improper inducement to award, obtain or retain business or otherwise gain or grant an improper business advantage from or to any other Person or entity. Further, in the event of such termination, Manufacturer shall not be entitled to any further payment, regardless of any activities undertaken or agreements with additional Third Parties entered into by Manufacturer prior to such termination, and Manufacturer shall be liable for damages or remedies as provided by this Agreement, at Law or in equity. -51-
Source: UPJOHN INC, 10-12G, 1/21/2020
7.7 Termination for Convenience by Customer. (a) This Agreement and/or any or all Facility Addendum (unless otherwise specified in the applicable Facility Addendum) may be terminated on a Product-by-Product basis by Customer immediately upon written notice to Manufacturer, if Customer cannot continue to distribute, use, market or sell such Product supplied under this Agreement or the relevant Facility Addendum without violating any then-current Laws. (b) This Agreement and/or any or all Facility Addenda shall be deemed to be terminated by Customer on a Product-by-Product basis without any further action of either Customer or Manufacturer in the event that Customer fails to order a Product during any rolling eighteen (18) month period; provided that this subsection (b) shall not apply with respect to API as Product. 7.8 Effect of Termination or Expiration. (a) The termination or expiration of this Agreement (whether in its entirety or with respect to any Product or Facility) or any Facility Addendum for any reason shall not release any Party hereto of any liability which at the time of termination or expiration had already accrued to the other Party in respect to any act or omission prior thereto. (b) Upon termination of this Agreement by Customer in whole or in part or upon the termination of any Facility Addendum, in each case, pursuant to Section 7.3, 7.4, 7.5 or 7.6, and on a terminated-Product-by-terminated-Product basis, at Customer's option and pursuant to Customer's instructions, Manufacturer shall provide Customer with sufficient inventory of such terminated Product to ensure business continuity according to then-current terms and pricing (subject to Section 3) until the earlier of: (i) Customer's identification of, and securing of Regulatory Approval for, another supplier of such terminated Product or (ii) unless otherwise set forth in the applicable Facility Addendum as the Inventory Tail Period for such Product, a time period that reflects Customer's reasonable needs of such Product as mutually agreed upon by the Parties in good faith. Manufacturer shall take such further action, at Manufacturer's expense, that Customer may reasonably request to minimize delay and expense arising from termination or expiration of this Agreement. For the avoidance of doubt, Manufacturer's obligation to supply Product pursuant to this Section 7.8(b) shall be subject to and governed by the terms of this Agreement, including terms pertaining to Forecasts and Purchase Orders and payment terms. (c) Upon Customer's request at any time during the Term, Manufacturer shall promptly notify Customer of any material contracts, licenses, permits, and other material documents, in each case, that are specific to, and are used solely in connection with, a Product or Facility Addendum and provide copies or access thereto subject to any restrictions on the provision of copies -52-
Source: UPJOHN INC, 10-12G, 1/21/2020
or access. Upon termination or expiration of this Agreement in whole or in part or any Facility Addendum, if requested by Customer within ninety (90) days immediately following the effective date of such expiration or termination of this Agreement and pursuant to Customer's reasonable request and instructions, Manufacturer shall use commercially reasonable efforts to, as applicable, make assignments or partial assignments of such material contracts, licenses, permits, and other material documents, as applicable, in each case subject to any restrictions on assignment, or as may otherwise be set forth in any Contract relating thereto. Customer shall reimburse Manufacturer for all out-of-pocket costs reasonably incurred by Manufacturer in activities conducted pursuant to this Section 7.8(c), unless this Agreement has been terminated by Customer pursuant to Section 7.3, 7.4, 7.5 or 7.6, in which case Manufacturer shall bear all such reasonable expenses. (d) The termination or expiration of this Agreement shall not affect the survival and continuing validity of Section 2.10 (Transitional Support) (with respect to Manufacturer's obligations and to the extent Technical Support has been requested prior to, or within ninety (90) days following, the effective date of termination or expiration), Section 3.5 (Invoices and Payment), Sections 4.1, 4.5, 4.6, 4.8, 4.10, 4.11, 4.12 and 4.13 (Manufacturing Standards and Quality Assurance), Section 5 (Covenants), Section 6 (Environmental Covenants), Section 7.8 (Effect of Termination or Expiration), Section 7.9 (Unused Materials), Section 7.10 (Return of Materials, Tools and Equipment), Section 8 (Intellectual Property), Section 10 (Indemnification; Limitations of Liability), Section 11 (Insurance), Section 13 (Confidentiality), Section 15 (Records and Audits), Section 16 (Notices), Section 17 (Miscellaneous), or of any other provision which is expressly intended to continue in force after such termination or expiration. 7.9 Unused Materials.
In the event of the expiration of this Agreement or termination of this Agreement in whole or in part (including the termination of any Facility Addendum) by Customer in accordance with Section 7.3, 7.4, 7.5 or 7.6, Customer may, at its option within ninety (90) days immediately following the effective date of the expiration or termination of this Agreement, purchase any work in process and/or Product Materials that Manufacturer has purchased exclusively for Customer in accordance with this Agreement for the production of any terminated Product. Customer shall pay Manufacturer's direct cost for works in process, and Manufacturer's purchase price from its suppliers for Product Materials. In the event of the termination of this Agreement by Customer in accordance with Section 7.7 or the termination of this Agreement by Manufacturer in accordance with Section 7.3, 7.4, 7.5 or 7.6, Customer shall purchase at cost all Product Materials purchased in accordance with Customer's Purchase Orders and on reasonable reliance upon Customer's Forecast; provided that Manufacturer uses its reasonable commercial efforts to exhaust existing stocks of such Product Materials prior to the date of -53-
Source: UPJOHN INC, 10-12G, 1/21/2020
termination. In the event of the termination or expiration of this Agreement for any other reason, Customer shall have no obligation to purchase any Product Materials. Any Product Materials that are not purchased or required to be purchased by Customer pursuant to this Section 7.9 shall be disposed of or destroyed in accordance with Customer's instructions, which costs shall be borne by Manufacturer. 7.10 Return of Materials, Tools and Equipment. (a) Upon termination or expiration of this Agreement in whole or in part or, with respect to any Product, Facility or any Facility Addendum for any reason whatsoever, at Customer's request, Manufacturer shall, as promptly as practicable given relevant circumstances, deliver to Customer in accordance with Customer's reasonable instructions all Specifications (and copies thereof), artwork, labels, bottles, all premiums and packaging materials purchased by Customer and all Product Materials, Buy-Sell Materials, Customer-Supplied Materials, and equipment, molds, tablet press tooling or proprietary materials in Manufacturer's possession and control that during the Term had, pursuant to this Agreement or a Facility Addendum, either (i) been provided by Customer to Manufacturer, or (ii) purchased by Manufacturer (and reimbursed by Customer), in each case, that are used and held for use exclusively for the manufacture for Customer of Product or Products impacted by such termination or expiration; provided that Manufacturer shall not be so required to deliver any materials, tools or equipment that are fixtures or fittings or any items the removal of which from the Facility using good faith diligent efforts would be reasonably likely to disrupt in any material respect, or cause damage to, the Facility or its operations or any materials, tools or equipment owned, leased or otherwise controlled by Manufacturer or any of its Affiliates or any material expense. At Customer's request, Manufacturer shall, as promptly as reasonably practicable given relevant circumstances and in accordance with Customer's reasonable instructions, remove all such equipment, molds and tablet press tooling from the Facility and make such equipment, molds and tooling available for pickup at the Facility by a carrier designated by Customer. All delivery, removal and transportation costs reasonably incurred in connection with this Section 7.10(a) shall be borne by Customer, except in the event Customer terminates this Agreement pursuant to Section 7.3, 7.4, 7.5 or 7.6, in which case all such reasonable costs shall be borne by Manufacturer. (b) Any Product quarantined at the time of expiration or termination of this Agreement shall be disposed of or destroyed by Manufacturer in accordance with Customer's instructions and at Customer's cost; provided that, to the extent (i) such quarantine is the result of Manufacturer's gross negligence, fraud, willful misconduct or breach of this Agreement or (ii) this Agreement is terminated in whole or in part with respect to such Product (including the termination of the applicable Facility Addendum) by Customer in accordance with Section 7.3, 7.4, 7.5 or 7.6, then Manufacturer shall be responsible for all costs incurred by Manufacturer in connection with disposing and destroying such quarantined Product. -54-
Source: UPJOHN INC, 10-12G, 1/21/2020
8. Intellectual Property. 8.1 Customer's Intellectual Property.
Customer hereby grants to Manufacturer a non-exclusive license during the Term to use any Customer Property and Customer-Owned Improvements and Developments solely in connection with Manufacturer performing its obligations under this Agreement or the Facility Addendum in accordance with the terms hereof or thereof, as applicable. Manufacturer shall not acquire any other right, title or interest in or to the Customer Property or Customer-Owned Improvements and Developments as a result of its performance hereunder, and any and all goodwill arising from Manufacturer's use of any Customer Property or Customer-Owned Improvements and Developments shall inure to the sole and exclusive benefit of Customer. 8.2 Improvements and Developments. (a) Each Party acknowledges and agrees that improvements or modifications to Customer Property may be made by or on behalf of Manufacturer (Improvements), and creative ideas, proprietary information, developments, or inventions may be developed under or in connection with this Agreement by or on behalf of Manufacturer (Developments), in each case either alone or in concert with Customer or Third Parties. (b) Manufacturer acknowledges and agrees that, as between the Parties, any Improvements or Developments that are specific to and otherwise solely relate to, the manufacturing, processing or packaging of Products (such Improvements and Developments, collectively, Customer-Owned Improvements and Developments) shall be the exclusive property of Customer, and Customer shall own all rights, title and interest in and to such Customer-Owned Improvements and Developments. Manufacturer agrees to and hereby does irrevocably transfer, assign and convey, and shall cause its Personnel to irrevocably transfer, assign and convey, all rights, title and interest in and to each of the Customer-Owned Improvements and Developments to Customer free and clear of any encumbrances, and Manufacturer agrees to execute, and shall cause its subcontractors and Personnel to execute, all documents necessary to do so. All such assignments shall include existing or prospective Intellectual Property rights therein in any country. -55-
Source: UPJOHN INC, 10-12G, 1/21/2020
(c) Customer acknowledges and agrees that, as between the Parties, all Improvements and Developments made by or on behalf of Manufacturer in the conduct of activities under this Agreement or a Facility Addendum other than Customer-Owned Improvements and Developments (such Improvements and Developments, collectively, Manufacturer-Owned Improvements and Developments) shall be the exclusive property of Manufacturer, and Manufacturer shall own all rights, title and interest in and to such Manufacturer- Owned Improvements and Developments. Customer agrees to and hereby does irrevocably transfer, assign and convey, and shall cause its Personnel to irrevocably transfer, assign and convey, all rights, title and interest in and to each of the Manufacturer-Owned Improvements and Developments to Manufacturer free and clear of any encumbrances, and Customer agrees to execute, and shall cause its Personnel and subcontractors to execute, all documents necessary to do so. All such assignments shall include existing or prospective Intellectual Property rights therein in any country. 8.3 Ownership of Other Property.
Unless otherwise agreed by the Parties or specified in the Separation Agreement, Customer is the sole owner of any and all tools, specifications, blueprints and designs directly owned and supplied or paid for by Customer (i.e., not any materials that are included in the Price of Product), and Manufacturer shall not use, transfer, loan or publicize any of the above, except as necessary for its performance under this Agreement. 8.4 Limited Right to Use.
Subject to the provisions of Section 8.1, nothing set forth in this Agreement shall be construed to grant to Manufacturer any title, right or interest in or to any Intellectual Property controlled by Customer or any of its Affiliates. Use by Manufacturer of any such Intellectual Property shall be limited exclusively to its performance of this Agreement. 9. Joint Advisory Committee. 9.1 Formation and Role.
The Parties shall, as soon as practicable but not later than within ninety (90) days after the Effective Date, form a joint advisory committee (the Joint Advisory Committee or JAC). The JAC will provide a forum for the good faith discussion of major matters related to this Agreement, including in particular (but not limited to) matters of commercial performance, supply, overall performance, capital investment and business planning (strategy and management), and the transition to Customer-Supplied Materials arrangements contemplated by Section 12.1(f), but also any other items, matters or activities, including with respect to any Facility. -56-
Source: UPJOHN INC, 10-12G, 1/21/2020
9.2 Membership; Chairs. (a) Membership. The JAC shall consist of up to five (5) representatives appointed by each Party in writing, or such other number of representatives as the Parties may agree in writing from time to time (each, a JAC Member). Either Party may invite any person that is not a JAC Member (including consultants and advisors of a Party) to participate in meetings of the JAC, without a right to participate in the discussions of the JAC, so long as (i) such person is under an appropriate obligation of confidentiality, (ii) the inviting Party provided at least three (3) Business Days' prior notice to the other Party identifying such person and (iii) the non- inviting Party does not reasonably object to such person participating in the discussions of the JAC prior to such meeting. (b) JAC Chairs. The JAC shall be co-chaired by one JAC Member of each Party (each, a JAC Chair), to be elected by the respective Party when naming its JAC Members. The JAC Chairs shall cooperate in good faith to: (i) notify the JAC Members of each Party of each JAC Meeting, which notice shall be provided at least thirty (30) calendar days in advance of such meeting (to the extent practicable) with respect to the ordinary quarterly JAC Meetings; (ii) collect and organize agenda items for each JAC Meeting, and circulate such agenda to all JAC Members at least two (2) Business Days prior to each meeting date; provided, however, that any JAC Member shall be free to propose additional topics to be included on such agenda, either prior to or in the course of any JAC Meeting; (iii) preside at JAC Meetings; and (iv) prepare the written minutes of each JAC Meeting and circulate such minutes for review and approval by the JAC Members of each Party, and identify action items to be carried out. 9.3 Meetings. (a) Ordinary JAC Meetings. During the Term of this Agreement, the JAC shall meet on a quarterly basis or as otherwise determined in writing by the Parties, and such meetings may be conducted in person, by videoconference or by telephone conference (each such meeting, a JAC Meeting). In-person meetings of the JAC will alternate between appropriate venues of each Party, as reasonably determined by the Parties. The Parties shall each bear all expenses of their respective representatives relating to their participation on the JAC. The members of the JAC also may convene or be polled or consulted from time to time by means of telecommunications, video or telephone conferences, electronic mail or correspondence, as deemed necessary or appropriate. (b) Additional JAC Meetings. Either Party may call an additional meeting of the JAC at any time upon twenty (20) Business Days' prior written notice if such Party reasonably determines that there is a need for discussions at the level of a JAC Meeting on top of the ordinary quarterly JAC Meetings, and reasonably specifies such grounds in its notice to the other Party. -57-
Source: UPJOHN INC, 10-12G, 1/21/2020
(c) Provision of Information. Upon the request of the JAC Chairs or at least four (4) members of the JAC, each Party will provide written materials and information relating to matters within the purview of the JAC in advance of a JAC Meeting. In addition, the JAC shall be informed by each Party in good faith about any matters or issues within the purview of the JAC which a Party should reasonably deem to be of high importance for the other Party. 9.4 Areas of Responsibility.
Subject to the terms of this Agreement, the JAC shall act as a forum to discuss in good faith in particular the following major items, matters and areas of interest: (a) Oversee, review and coordinate the activities of the Parties under this Agreement; (b) Each Facility's overall performance under this Agreement; and (c) Any other major matters, roles, obligations and responsibilities under this Agreement, to the extent any Party reasonably provides such matter to the JAC for discussion. 9.5 Advisory Role; No Decision-Making Authority. (a) Advisory Role. The JAC and its members shall only have an advisory role and shall discuss in good faith and provide to the Parties its opinion on the matters in its purview. The Parties agree to reasonably take into account the opinions and views expressed by the JAC and its members for performing their respective obligations under this Agreement. (b) No Decision-Making Authority. The JAC shall have no decision-making authority over the matters in its purview unless the Parties mutually decide in writing to delegate the decision-making authority on such specific item or matter to the JAC. Moreover, it shall not be within the authority of the JAC to (i) directly impose on either Party or its Affiliates any additional obligation(s) or a resolution on the Parties with respect to any dispute regarding the existence or extent/amount of any obligation, including payments obligations, under this Agreement, or to (ii) amend, modify or waive compliance with this Agreement. 10. Indemnification; Limitations of Liability. 10.1 Indemnification of Customer. (a) Subject to the provisions of this Section 10 and, for clarity, without limiting anything in the Separation Agreement or any other Ancillary Agreements, Manufacturer shall indemnify, defend and hold harmless Customer, its Affiliates and its and their respective directors, officers, managers, members, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing (each, a Customer Indemnified Party) from and against any and all Losses of such Customer -58-
Source: UPJOHN INC, 10-12G, 1/21/2020
Indemnified Parties to the extent relating to, arising out of or resulting from any Action of a Third Party arising out of or resulting from any of the following items (without duplication): (i) any breach by Manufacturer or its Personnel of this Agreement or any Facility Addendum; (ii) any injury or death of any Person due to any breach by Manufacturer or its Personnel of this Agreement or any Facility Addendum; (iii) the infringement or misappropriation of a Third Party's Intellectual Property by the use or practice by Manufacturer or its Affiliate of any Product manufacturing process that has been changed (including as to the facility in which such manufacturing process takes place) on or following the Effective Date without the written approval of Customer to make such change; (iv) Manufacturer's supply of Non-Complying Product under this Agreement; or (v) the gross negligence, fraud or willful misconduct of Manufacturer or its Personnel in connection with the performance or non-performance of this Agreement. (b) Notwithstanding the foregoing, Manufacturer shall not be liable for Losses described in Section 10.1(a) to the extent such Losses are: (i) caused by the gross negligence, fraud or willful misconduct of a Customer Indemnified Party in connection with the performance or non-performance of this Agreement; (ii) caused by the breach of any of the terms of this Agreement or a Facility Addendum by a Customer Indemnified Party, including in connection with the performance or non-performance of this Agreement or (iii) subject to Customer's indemnification obligations pursuant to Section 10.2. 10.2 Indemnification of Manufacturer. (a) Subject to the provisions of this Section 10 and, for clarity, without limiting anything in the Separation Agreement or any Ancillary Agreements, Customer shall indemnify, defend and hold harmless Manufacturer, its Affiliates and its and their respective directors, officers, managers, members, employees and agents, and each of the heirs, executors, successors and assigns of any of the foregoing (each, a Manufacturer Indemnified Party) from and against any and all Losses of such Manufacturer Indemnified Parties to the extent relating to, arising out of or resulting from any Action of a Third Party arising out of or resulting from any of the following items (without duplication): (i) any breach by Customer or its Personnel of this Agreement or any Facility Addendum; (ii) the gross negligence, fraud or willful misconduct of Customer or its Personnel in connection with the performance or non-performance of this Agreement; (iii) the infringement or misappropriation of a Third Party's Intellectual Property by the use or practice by Manufacturer or its Affiliate in performance of this Agreement of any Product manufacturing process that has been changed with the written approval of Customer to make such change; (iv) Customer's supply of Non-Complying Customer-Supplied Materials or Non-Complying Buy- Sell Materials under this Agreement; or (v) the use, sale, offer for sale, import or other commercialization of any Product (including any injury or death of any Person due to any of the foregoing in this clause (v)). -59-
Source: UPJOHN INC, 10-12G, 1/21/2020
(b) Notwithstanding the foregoing, Customer shall not be liable for Losses described in Section 10.2(a) to the extent such Losses are: (i) caused by the gross negligence, fraud or willful misconduct of a Manufacturer Indemnified Party in connection with the performance or non-performance of this Agreement; (ii) caused by the breach of any of the terms of this Agreement or any Facility Addendum by a Manufacturer Indemnified Party or (iii) are subject to Manufacturer's indemnification obligation pursuant to Section 10.1. Furthermore, Customer shall not be liable for Losses pursuant to Section 10.2(a)(iii) above to the extent such infringement or misappropriation is caused by Manufacturer's unauthorized use or unauthorized modification of any Customer Property, Customer- Owned Improvements and Developments, Buy-Sell Materials or Customer-Supplied Materials. 10.3 Indemnification Procedures. (a) If, at or following the date of this Agreement, any Person entitled to be indemnified under this Section 10 (the Indemnitee) shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) who is not a member of the Pluto Group or the Spinco Group of any claim or of the commencement by any such Person of any Action with respect to which the Party from whom indemnification may be sought under this Section 10 (the Indemnifying Party) (such claim, a Third-Party Claim), such Indemnitee shall give such Indemnifying Party written notice thereof as promptly as practicable, but in any event within thirty (30) days (or sooner if the nature of the Third-Party Claim so requires) after becoming aware of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in reasonable detail, including the facts and circumstances giving rise to such claim for indemnification, and include copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnitee to provide notice as provided in this Section 10.3(a) shall not relieve an Indemnifying Party of its obligations under this Section 10, except to the extent, and only to the extent, that such Indemnifying Party is materially prejudiced by such failure to give notice in accordance with this Section 10.3(a). (b) An Indemnifying Party may elect (but shall not be required) to defend (and seek to settle or compromise), at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnitee), any Third-Party Claim; provided that the Indemnifying Party shall not be entitled to defend such Third-Party Claim and shall pay the reasonable fees and expenses of one separate -60-
Source: UPJOHN INC, 10-12G, 1/21/2020
counsel for all Indemnitees if the claim for indemnification relates to or arises in connection with any criminal action, indictment or allegation or if such Third-Party Claim seeks an injunction or equitable relief against the Indemnitee (and not any Indemnifying Party or any of its Affiliates). Within thirty (30) days after the receipt of notice from an Indemnitee in accordance with Section 10.3(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify the Indemnitee of its election whether the Indemnifying Party will assume responsibility for defending such Third-Party Claim, which election shall specify any reservations or exceptions to its defense. After notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third-Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee; provided, however, in the event that the Indemnifying Party has elected to assume the defense of the Third-Party Claim but has specified, and continues to assert, any reservations or exceptions in such notice, then, in such case, the reasonable fees and expenses of one separate counsel for all Indemnitees shall be borne by the Indemnifying Party; and provided further that the Indemnifying Party will pay the reasonable fees and expenses of such separate counsel if, based on the reasonable opinion of legal counsel to the Indemnitee, a conflict or potential conflict of interest exists between the Indemnifying Party and the Indemnitee which makes representation of both parties inappropriate under applicable standards of professional conduct. (c) If an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim, or fails to notify an Indemnitee of its election as provided in Section 10.3(b), then the applicable Indemnitee may defend such Third-Party Claim at the cost and expense of the Indemnifying Party to the extent indemnification is available under the terms of this Agreement. If an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim, or fails to notify an Indemnitee of its election as provided in Section 10.3(b), then, it shall not be a defense to any obligation of the Indemnifying Party to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party's views or opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not approve of the quality or manner of the defense thereof or, subject to Section 10.3(d), that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability. (d) Neither Party may settle or compromise any Third-Party Claim for which either Party is seeking to be indemnified hereunder without the prior written consent of the other Party, which consent may not be unreasonably withheld, conditioned or delayed, unless such settlement or compromise is solely for monetary damages that are fully payable by the settling or compromising party, does not involve any admission, finding or determination of wrongdoing or violation of Law by the other Party and provides for a full, unconditional and irrevocable release of the other Party from all Liability in connection with the Third-Party Claim. -61-
Source: UPJOHN INC, 10-12G, 1/21/2020
10.4 Limitations on Liability. (a) Except in the event of (i) Third Party Claims subject to a Party's indemnification obligations pursuant to Section 10.1, (ii) Third Party Claims subject to a Party's indemnification obligations pursuant to Section 10.2, (iii) the gross negligence, fraud or willful misconduct of a Party or its Personnel, (iv) a Party's willful breach of this Agreement, (v) a breach of Section 13 or (vi) customer liabilities pursuant to, and subject to the limitations set forth in, Section 2.5(e), neither Party's aggregate liability to the other Party (or its Personnel that are indemnitees under Section 10.1 or Section 10.2, as applicable) under this Agreement for the initial twelve (12) month period immediately following the Effective Date, and for any twelve (12) month period thereafter during the Term, shall exceed, on a cumulative basis, the amount that is one and one half (11∕2) times the aggregate amounts paid or payable pursuant to this Agreement in the preceding twelve (12) month period preceding the loss date by Customer to Manufacturer but solely with respect to the supply hereunder of Product (or Products) for which such corresponding liability arose (the Affected Products) and not any other Products (or if, as of the time the liability arises, this Agreement has not been in effect for twelve (12) months, then the amounts paid or payable by Customer to Manufacturer hereunder during the period from the Effective Date until such time the liability arises, shall be annualized to a full twelve (12) months but solely with respect to the supply hereunder of the Affected Product(s) and not any other Products). (b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR DAMAGES OR CLAIMS ARISING OUT OF (I) A BREACH OF SECTION 13 OF THIS AGREEMENT, (II) CUSTOMER LIABILITIES PURSUANT TO, AND SUBJECT TO THE LIMITATIONS SET FORTH IN, SECTION 2.5(E), (III) A PARTY'S OR ITS PERSONNEL'S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, (IV) A PARTY'S WILLFUL BREACH OF THIS AGREEMENT, OR (V) A PARTY'S INDEMNIFICATION OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 10.1 OR SECTION 10.2, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY INDEMNIFIED PARTY HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL OR INDIRECT DAMAGES, LOSS OF REVENUE OR PROFITS, DIMINUTION IN VALUE, DAMAGES BASED ON MULTIPLE OF REVENUE OR EARNINGS OR OTHER PERFORMANCE METRIC, LOSS OF BUSINESS REPUTATION, PUNITIVE AND EXEMPLARY DAMAGES OR ANY SIMILAR DAMAGES ARISING OR RESULTING FROM OR RELATING TO THIS AGREEMENT, WHETHER SUCH ACTION IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE. -62-
Source: UPJOHN INC, 10-12G, 1/21/2020
10.5 Indemnification Obligations Net of Insurance Proceeds and Other Amounts. (a) The Parties intend that any Loss subject to indemnification or reimbursement pursuant to this Section 10 will be net of Insurance Proceeds or other amounts actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) from any Person by or on behalf of the Indemnitee in respect of any indemnifiable Liability. Accordingly, the amount that any Indemnifying Party is required to pay to any Indemnitee will be reduced by any Insurance Proceeds or other amounts actually recovered (net of any out-of-pocket costs or expenses incurred in the collection thereof) from any Person by or on behalf of such Indemnitee in respect of the related Loss. If an Indemnitee receives a payment (an Indemnity Payment) required by this Agreement from an Indemnifying Party in respect of any Loss and subsequently receives Insurance Proceeds or any other amounts in respect of the related Loss, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or such other amounts (net of any out-of-pocket costs or expenses incurred in the collection thereof) had been received, realized or recovered before the Indemnity Payment was made. (b) An insurer that would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of any provisions contained in this Agreement, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other Third Party shall be entitled to a wind-fall (i.e., a benefit that such insurer or other Third Party would not be entitled to receive in the absence of the indemnification provisions) by virtue of the indemnification provisions hereof. Each Party shall, and shall cause the members of its Group to, use commercially reasonable efforts (taking into account the probability of success on the merits and the cost of expending such efforts, including attorneys' fees and expenses) to collect or recover any Insurance Proceeds that may be collectible or recoverable respecting the Liabilities for which indemnification may be available under this Section 10. Notwithstanding the foregoing, an Indemnifying Party may not delay making any indemnification payment required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Action to collect or recover Insurance Proceeds, and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement. -63-
Source: UPJOHN INC, 10-12G, 1/21/2020
10.6 Additional Matters. (a) Indemnification payments in respect of any Liabilities for which an Indemnitee is entitled to indemnification under this Section 10 shall be paid reasonably promptly (but in any event within sixty (60) days of the final determination of the amount that the Indemnitee is entitled to indemnification under this Section 10) by the Indemnifying Party to the Indemnitee as such Liabilities are incurred upon demand by the Indemnitee, including reasonably satisfactory documentation setting forth the basis for the amount of such indemnification payment, documentation with respect to calculations made and consideration of any Insurance Proceeds that actually reduce the amount of such Liabilities. (b) If (i) a Party incurs any Liability arising out of this Agreement or any Ancillary Agreement; (ii) an adequate legal or equitable remedy is not available for any reason against the other Party to satisfy the Liability incurred by the incurring Party; and (iii) a legal or equitable remedy may be available to the other Party against a Third Party for such Liability, then the other Party shall use its commercially reasonable efforts to cooperate with the incurring Party, at the incurring Party's expense, to permit the incurring Party to obtain the benefits of such legal or equitable remedy against the Third Party. (c) If payment is made by or on behalf of any Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim. (d) In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnitee or Indemnifying Party shall so request, the Parties shall endeavor to substitute the Indemnifying Party for the named defendant or otherwise add the Indemnifying Party as party thereto, if at all practicable. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Action as set forth in this Section 10, and the Indemnifying Party shall fully indemnify the named defendant against all costs of defending the Action (including court costs, sanctions imposed by a court, attorneys' fees, experts fees and all other external expenses), the costs of any judgment or settlement, and the cost of any interest or penalties relating to any judgment or settlement with respect to such Third-Party Claim. -64-
Source: UPJOHN INC, 10-12G, 1/21/2020
11. Insurance. 11.1 Requirements to Maintain. During the Term, Manufacturer shall self-insure or shall provide and maintain such insurance coverage, in minimum types and amounts as described below in this Section 11. (a) Any and all deductibles or retentions for such insurance policies shall be assumed by, for the account of, and at Manufacturer's sole risk. (b) To the extent of the liabilities assumed by Manufacturer under this Agreement, such insurance policies of Manufacturer shall be primary and non-contributing with respect to any other similar insurance policies available to Customer or its Affiliates. (c) Manufacturer shall furnish to Customer certificates of insurance (electronic is acceptable), evidencing the required insurance coverage, upon execution of this Agreement and annually, thereafter. 11.2 Amounts and Limits. The insurance required under this Section 11 shall be written for not less than any limits of liability specified herein or as required by applicable Law, whichever is greater. All insurance carriers shall have a minimum of A- A.M. Best rating. Manufacturer shall have the right to provide the total limits required by any combination of self-insurance, primary and umbrella/excess coverage; said insurance to include the following: (a) Insurance for liability under the workers' compensation or occupational disease Laws of any state of the United States (or be a qualified self-insurer in those states of the United States) or otherwise applicable with respect to Persons performing the services and employer's liability insurance covering all claims by or in respect to the employees of Manufacturer, providing: (i) Coverage for the statutory limits of all claims under the applicable State Workers' Compensation Act or Acts. If a Facility Addendum will result in exposures under the U.S. Longshore and Harbor Workers' Compensation Act and its amendments (work dockside or on water), the Jones Act (involving seamen, masters and crew of vessels) or the Federal Employers' Liability Act (railroad exposure), coverage shall be extended to include insurance coverages mandated thereby; (ii) Employer's liability insurance with a limit of not less than $1,000,000; (iii) Manufacturer warrants that all of its employees involved in this Agreement are covered by statutory workers' compensation; and -65-
Source: UPJOHN INC, 10-12G, 1/21/2020
(iv) Where allowed by Applicable Law, Customer and its Affiliates shall be provided a waiver of subrogation, except for losses due to the sole negligence of Manufacturer. (b) Commercial general liability insurance with the following limits and forms/endorsements:
Each Occurrence: $2,000,000 (i) Occurrence form including premises and operations coverage, property damage, liability, personal injury coverage, products and completed operations coverage, and transit. (ii) To the extent of Manufacturer's indemnification obligations, Customer and its Affiliates shall be additional insureds via ISO form CG20101185 or its equivalent. (c) Automobile and Truck Liability Insurance: $2,000,000 combined single limit for bodily injury and property damage arising out of all owned, non- owned and hired vehicles, including coverage for all automotive and truck equipment used in the performance of this Agreement and including the loading and unloading of same. (d) Umbrella (excess) liability coverage in an amount not less than $3,000,000 per occurrence and in the aggregate. (e) If Manufacturer has care, custody or control of Customer-Supplied Material, Manufacturer shall be responsible for any loss or damage to it and provide all risk property coverage at full replacement cost for property and at the costs-per-unit as specified in the Facility Addendum for inventory. 12. Customer-Supplied Materials; Buy-Sell Materials; Transition. 12.1 Supply; Rejection; Transition. (a) Customer shall at its own expense supply Manufacturer with the Customer-Supplied Materials identified in the applicable Facility Addendum. Customer shall supply Manufacturer with the Buy-Sell Materials at a price that Customer determines, subject to Section 3.2(c), and communicates to Manufacturer. At Customer's option, the Customer-Supplied Materials and Buy-Sell Materials may be delivered directly from Customer's Third-Party vendor to Manufacturer at the vendor's or Customer's expense. Customer or its vendor shall supply Manufacturer with a copy of the certificate of analysis for the Customer-Supplied Materials and Buy-Sell Materials no later than delivery of the Customer-Supplied Materials or Buy-Sell Materials to Manufacturer. Customer hereby covenants to Manufacturer that each Customer-Supplied Material and Buy-Sell Materials furnished by or on behalf of Customer to Manufacturer or its Affiliate or designee under -66-
Source: UPJOHN INC, 10-12G, 1/21/2020
this Agreement will, upon delivery by Customer to Manufacturer pursuant to this Agreement, comply with, and have been used, handled and stored in accordance with, the specifications for such Customer-Supplied Materials or Buy-Sell Materials (as applicable), all applicable Laws, the Quality Agreement, this Agreement and the applicable Facility Addendum and otherwise have no defects. Manufacturer's obligations to manufacture and supply Product under this Agreement are subject to and conditioned upon Customer's timely delivery of Customer-Supplied Material and Buy-Sell Materials in accordance with this Section 12. (b) Manufacturer shall provide to Customer a monthly rolling forecast of its requirements for Customer-Supplied Materials and Buy-Sell Materials based upon Customer's Forecasts for Products, and Manufacturer shall issue to Customer pro forma purchase orders for Customer-Supplied Materials and actual purchase orders for Buy-Sell Materials, in each case, according to parameters included in the applicable Facility Addendum, including safety stock and lead time requirements. Manufacturer shall be responsible to receive, sample, store and maintain the inventory of such ordered Customer-Supplied Materials and Buy-Sell Materials at Manufacturer's Facility. (c) Within each calendar month during the Term, Manufacturer will provide a monthly inventory report of Customer-Supplied Materials substantially in the format attached as Attachment C to this Agreement. The Parties acknowledge and agree that the Manufacturer's timely providing the referenced monthly inventory report is a critical component of the Customer's Customer-Supplied Materials management program and further that any such failure on the part of Manufacturer to timely provide such monthly inventory report shall be addressed at the immediately following scheduled JAC Meeting. (d) Manufacturer may reject any Non-Complying Buy-Sell Materials or Non-Complying Customer-Supplied Materials by (i) providing Customer with no less than sixty (60) days' prior written notice of Manufacturer's intention to reject along with the documentation setting forth in reasonable detail the basis for rejection, (ii) meeting with Customer at Customer's request to discuss the basis for the proposed rejection, and (iii) providing Customer with notice of rejection in the event that Manufacturer rejects the subject Non- Complying Buy-Sell Materials or Non-Complying Customer-Supplied Materials (as applicable) at the end of such sixty (60) day period (or such other time frame as the Parties may agree upon). (e) Customer shall submit invoices to Manufacturer upon delivery to Manufacturer or its applicable Affiliate of Buy-Sell Materials, and Manufacturer shall make payments with respect thereto, in accordance with the invoice and payment requirements set forth in Section 3.5, applied correlatively, and the parties shall discuss in good faith further requirements with respect to the supply of Buy-Sell Materials. -67-
Source: UPJOHN INC, 10-12G, 1/21/2020
(f) Customer shall use its commercially reasonable efforts to convert all Buy-Sell Materials arrangements to Customer-Supplied Materials arrangements as promptly as practicable after the Effective Date; provided that Customer shall provide updates with respect to such efforts at each JAC Meeting until all such Buy-Sell Materials arrangements shall have been converted to Customer-Supplied Materials arrangements. 12.2 Title and Risk of Loss. (a) Title to the Customer-Supplied Materials supplied by Customer to Manufacturer shall remain with Customer; provided, however, that risk of loss shall pass to Manufacturer at the time Customer-Supplied Materials are delivered to the Manufacturer DDP (Incoterms 2010) at the applicable Facility. Manufacturer shall not use Customer-Supplied Materials for any purposes other than those related to the manufacture of a Product pursuant to this Agreement. (b) The risk of loss or damage to Customer-Supplied Materials during the possession thereof by Manufacturer shall be solely with Manufacturer. (c) Manufacturer shall insure or self-insure the Customer-Supplied Materials and Products while such is in Manufacturer's possession at an agreed-upon value. (d) The title and risk of loss for Buy-Sell Materials shall pass to Manufacturer upon delivery to the Manufacturer DDP (Incoterms 2010) at the applicable Facility. 12.3 Reimbursement for Loss of Customer-Supplied Materials. Manufacturer shall reimburse Customer for excess Customer-Supplied Materials used as a result of Manufacturer's failure to achieve the minimum average yield or usage (as applicable) set forth in the applicable Facility Addendum. During the first quarter of each Fiscal Year during the Term of this Agreement, Manufacturer will report to Customer the actual yield achieved for all Customer-Supplied Materials used during the previous calendar year on a Facility-by-Facility basis. If the achieved yield is lower than the minimum average yield specified in the applicable Facility Addendum on an aggregated basis for all Customer- Supplied Materials for each applicable Facility Addendum, then Manufacturer will reimburse to Customer the actual cost of the excess Customer-Supplied Materials used as set forth in the applicable Facility Addendum. For the avoidance of doubt, (a) rejected batches and all Customer-Supplied Material that is, for any reason other than a determination that such Customer-Supplied Materials are non-conforming, not incorporated into Product delivered hereunder, shall be included in the annual yield calculation and (b) Customer-Supplied Materials for which Manufacturer is responsible for reimbursing Customer pursuant to Section 4.11(b) shall not be included in the annual yield calculation. -68-
Source: UPJOHN INC, 10-12G, 1/21/2020
13. Confidentiality.
The confidentiality obligations of the Parties and their respective Groups with respect to disclosures of information hereunder shall be governed, mutatis mutandis, by Section 6.08, Section 6.09 and Section 6.10 of the Separation Agreement. 14. Supply Chain Security. 14.1 Supply Chain Representations.
Manufacturer represents, warrants and covenants to Customer that:
Manufacturer has reviewed its supply chain security procedures and that these procedures and their implementation are, and shall remain during the Term of this Agreement, in accordance with the importer security criteria set forth by the C-TPAT. Manufacturer represents and warrants that it has developed and implemented, or shall develop and implement within sixty (60) calendar days of its execution of this Agreement, procedures for periodically reviewing and, if necessary, improving its supply chain security procedures to assure compliance with C-TPAT minimum security criteria. 14.2 C-TPAT.
Manufacturer acknowledges that Customer is a certified member of C-TPAT. As a C-TPAT member, Customer is required to make periodic assessment of its international supply chain based upon C-TPAT security criteria. Manufacturer agrees to conduct and document an annual security audit at each of its Facilities and to take all necessary corrective actions to ensure the continued participation of Customer in C- TPAT. Manufacturer agrees to share with Customer the results of such annual audits and agrees to prepare and submit to Customer a report on the corrective actions taken in response thereto. In addition, Customer may audit Manufacturer's Records and Facilities for the purpose of verifying that Manufacturer's procedures are in accordance with the C-TPAT security criteria, and Manufacturer shall provide Customer with access to Manufacturer's Records and Facilities reasonably necessary for the purpose of conducting such audit. Manufacturer agrees to notify Customer of any event that has resulted in or threatens the loss of its C-TPAT Benefits (if it is a member of the C-TPAT program) or alternatively jeopardizes Customer's retention of its own C-TPAT Benefits. In an effort to secure each part of the supply chain, Manufacturer agrees to work in good faith to become a member of the C-TPAT program, if Manufacturer is organized or incorporated in the United States, Mexico or Canada, or the equivalent supply chain security program criteria administered by the customs administration in Manufacturer's home country if Manufacturer is not organized or incorporated in the United States, Mexico or Canada. -69-
Source: UPJOHN INC, 10-12G, 1/21/2020
15. Records and Audits. 15.1 Records.
Manufacturer will maintain complete and accurate Records. Any Records that are financial in nature such as, but not limited to, time sheets, billing Records, invoices, payment applications, payments of consultants and subcontractors and receipts relating to reimbursable expenses shall be maintained in accordance with applicable Law in the jurisdiction in which the applicable Facility is located. Manufacturer shall maintain such Records for a period equal to the later of (x) three (3) years after the expiration or termination of this Agreement or the applicable Facility Addendum, (y) the expiration of the statute of limitation for the Tax period applicable to such Records, or (z) for such period as otherwise may be required by applicable Law (the Record Retention Period). 15.2 Audits.
Customer or its representatives, including its external auditors, may audit such Records of Manufacturer, including all Records related to Manufacturer's compliance with applicable Laws, at any time during the Term of this Agreement or applicable Facility Addendum or the Record Retention Period, during normal business hours and upon reasonable advance written notice to Manufacturer (but in no event more than one (1) time per year except for cause). Manufacturer shall make such Records readily available for such audit. Any Records or information accessed or otherwise obtained by Customer or its representatives in connection with any audit (including any audit pursuant to Section 3.4) shall be deemed Manufacturer's confidential and proprietary Information and each representative of Customer will be subject to non-use and other confidentiality obligations substantially comparable to those set forth herein for Customer. Except as otherwise provided in Section 3.4, if any financial audit reveals that Manufacturer has overcharged Customer, Manufacturer shall reimburse Customer for such overcharge within thirty (30) days of Manufacturer's receipt of the relevant audit results, and in the event that any such overcharge equals an amount equal to or greater than five percent (5%) of the total amounts invoiced during the period under such audit, then Manufacturer shall promptly reimburse Customer for all reasonable Third Party costs and expenses actually incurred in the conduct of such audit. If any financial audit reveals that Customer has underpaid Manufacturer, Customer shall reimburse Manufacturer for such underpayment within thirty (30) days of Customer's receipt of the relevant audit results. For clarity, if there is a conflict between Section 3.4(a) and this Section 15.2 with respect to the review of a Price increase, Section 3.4(a) shall govern and control. -70-
Source: UPJOHN INC, 10-12G, 1/21/2020
16. Notices.
All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and (a) when served by personal delivery upon the Party for whom it is intended; (b) one (1) Business Day following the day sent by overnight courier, return receipt requested; (c) when sent by facsimile; provided that the facsimile is promptly confirmed; or (d) when sent by e-mail; provided that a copy of the same notice or other communication sent by e-mail is also sent by overnight courier, return receipt requested, personal delivery, or facsimile as provided herein, on the same day as such e-mail is sent, in each case to the Person at the address, facsimile number or e-mail address set forth below, or such other address, facsimile number or e-mail address as may be designated in writing hereafter, in the same manner, by such Person: If to Customer: [INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS]
with copy (which shall not constitute notice) to:
[INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS]
If to Manufacturer: [INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS]
with a copy (which shall not constitute notice) to:
[INSERT NAME] [INSERT ADDRESS] ATTENTION: [INSERT NAME/TITLE] EMAIL ADDRESS: [INSERT E-MAIL ADDRESS]
Either Party may, by notice to the other Party, change the addresses and names applicable to such Party given above. 17. Miscellaneous. 17.1 Negotiations of Dispute.
The dispute resolution procedures set forth in Article VII of the Separation Agreement shall apply mutatis mutandis with respect to any controversy, claim, counterclaim, dispute, difference or misunderstanding arising out of or relating to the interpretation or application of any term or provisions of this Agreement, a Purchase Order or Facility Addendum. Further, the requirement to attempt to resolve a dispute in accordance with this Section 17.1 does not affect a Party's right to terminate this Agreement or a Purchase Order as provided in Section 7 hereof, and neither Party shall be required to follow these procedures prior to terminating this Agreement. -71-
Source: UPJOHN INC, 10-12G, 1/21/2020
17.2 Publicity.
Manufacturer shall not use the name, trade name, service marks, trademarks, trade dress or logos of Customer (or any of its Affiliates) in publicity releases, advertising or any other publication, nor identify Customer as a customer, without Customer's prior written consent in each instance. Customer shall not use the name, trade name, service marks, trademarks, trade dress or logos of Manufacturer (or any of its Affiliates) in publicity releases, advertising or any other publication, without Manufacturer's prior written consent in each instance. Nothing in this Section 17.2 shall or is intended to limit any Party's rights under the Separation Agreement or any Ancillary Agreement. 17.3 Governing Law and Venue. (a) This Agreement and all Actions (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof or thereof shall be governed by and construed in accordance with the Law of the State of Delaware, without regard to any Laws or principles thereof that would result in the application of the Laws of any other jurisdiction. The Parties expressly waive any right they may have, now or in the future, to demand or seek the application of a governing Law other than the Law of the State of Delaware. (b) Each of the Parties hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such court shall not have jurisdiction, the United States District Court for the District of Delaware, and any appellate court from any appeal thereof, in any Action arising out of or relating to this Agreement or the transactions contemplated hereby, and each of the Parties hereby irrevocably and unconditionally (i) agrees not to commence any such Action except in such courts, (ii) agrees that any claim in respect of any such Action may be heard and determined in the Court of Chancery of the State of Delaware or, to the extent permitted by Law, in such other courts, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Action in the Court of Chancery of the State of Delaware or such other courts, (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Action in the Court of Chancery of the State of Delaware or such other courts and (v) consents to service of process in the manner provided for notices in Section 16. Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by Law. -72-
Source: UPJOHN INC, 10-12G, 1/21/2020
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE OTHER ANCILLARY AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING THE FINANCING). EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17.3(C). 17.4 Relationship of the Parties.
The relationship hereby established between Customer and Manufacturer is solely that of independent contractors. Manufacturer has no authority to act or make any agreements or representations on behalf of Customer or its Affiliates. This Agreement is not intended to create, and shall not be construed as creating, between Manufacturer and Customer, the relationship of fiduciary, principal and agent, employer and employee, joint venturers, co-partners, or any other such relationship, the existence of which is expressly denied. No employee or agent engaged by Manufacturer shall be, or shall be deemed to be, an employee or agent of Customer and shall not be entitled to any benefits that Customer provides to its own employees. 17.5 Assignment; Binding Effect. (a) Except as otherwise provided in this Section 17.5, neither Party shall assign this Agreement or any rights, benefits or obligations under or relating to this Agreement, in each case whether by operation of law or otherwise, without the other Party's prior written consent (not to be unreasonably withheld, conditioned or delayed). (b) Either Party may assign its rights and obligations under this Agreement to one or more of its Affiliates without the other Party's consent; provided that such Affiliate remains at all times during the Term an Affiliate of such Party; provided, further, that no such assignment shall release such Party from its obligations under this Agreement. -73-
Source: UPJOHN INC, 10-12G, 1/21/2020
(c) Customer may, without Manufacturer's consent, assign the rights and obligations of this Agreement (i) on a Product-by-Product basis, to a Third Party in connection with a bona fide transfer, sale or divestiture of all or substantially all of its business to which such Product relates or in the event of such business's spin-off, merger or consolidation with another company or business entity or (ii) to any Third Party which acquires or succeeds to all or substantially all of the assets of the business of Customer to which this Agreement and the Facility Addenda relate (including in connection with such business's spin-off, merger or consolidation with another company or business entity). (d) Subject to Section 7.4, Manufacturer may, without Customer's consent, assign the rights and obligations of this Agreement (i) on a Facility-by-Facility basis, to a Third Party in connection with a bona fide transfer, sale or divestiture of such Facility or (ii) to any Third Party which acquires or succeeds to all or substantially all of the assets of the business of Manufacturer to which this Agreement and the Facility Addendum relates (including in connection with such business's spin-off, merger or consolidation with another company or business entity). (e) Notwithstanding anything to the contrary in this Agreement, neither Party may assign this Agreement in whole or in part to a Restricted Party. (f) In the event of a permitted assignment, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and permitted assigns. Any attempted assignment that contravenes the terms of this Agreement shall be void ab initio and of no force or effect. Notwithstanding anything contained in this Agreement, each Party hereby acknowledges and agrees that the other Party may perform any of its obligations, and exercise any of its rights, under this Agreement, any Facility Addendum and Quality Agreement through any of its Affiliates. 17.6 Force Majeure.
Subject to Manufacturer's obligations under Section 2.5(a), no Party shall be liable for any failure to perform or any delays in performance, and no Party shall be deemed to be in breach or default of its obligations set forth in this Agreement, if, to the extent and for so long as, such failure or delay is due to any causes that are beyond its reasonable control and not to its acts or omissions, including, without limitation, such causes as acts of God, natural disasters, hurricane, flood, severe storm, earthquake, civil disturbance, lockout, riot, order of any court or administrative body, embargo, acts of Government, war (whether or not declared), acts of terrorism, or other similar causes (Force Majeure Event). For clarity, raw material price increases, unavailability of raw materials, and labor disputes shall not be deemed a Force Majeure Event. In the event of a Force Majeure Event, the Party prevented from or delayed in performing shall promptly give notice to the -74-
Source: UPJOHN INC, 10-12G, 1/21/2020
other Party and shall use commercially reasonable efforts to avoid or minimize the delay. In the event that the delay continues for a period of at least sixty (60) calendar days, the Party affected by the other Party's delay may elect to (a) suspend performance and extend the time for performance for the duration of the Force Majeure Event or (b) cancel all or any part of the unperformed part of this Agreement or any Purchase Orders. 17.7 Severability.
If any provision of this Agreement or the application of any provision thereof to any Person or circumstance, is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the Parties. 17.8 Non-Waiver; Remedies.
Waiver by any Party of any default by the other Party of any provision of this Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default, nor shall it prejudice the rights of the other Party. No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall a single or partial exercise thereof prejudice any other or further exercise thereof or the exercise of any other right, power or privilege.
All remedies specified in this Agreement shall be cumulative and in addition to any other remedies provided at Law or in equity. 17.9 Further Documents.
Each Party hereto agrees to execute such further documents and take such further steps as may be reasonably necessary or desirable to effectuate the purposes of this Agreement. 17.10 Forms.
The Parties recognize that, during the Term of this Agreement, a Purchase Order acknowledgment form or similar routine document (collectively, Forms) may be used to implement or administer provisions of this Agreement. The Parties agree that the terms of this Agreement shall govern and control in the event of any conflict between terms of this Agreement and the terms of such Forms, and any additional or different terms contained in such Forms shall not apply to this Agreement. -75-
Source: UPJOHN INC, 10-12G, 1/21/2020
17.11 Headings; Interpretation.
(a) The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.
(b) The definitions in Section 1 shall apply equally to both the singular and plural forms of the terms defined.
(c) Unless the context of this Agreement otherwise requires:
(i) (A) words of any gender include each other gender and neuter form; (B) words using the singular or plural number also include the plural or singular number, respectively; (C) derivative forms of defined terms will have correlative meanings; (D) the terms hereof, herein, hereby, hereto, herewith, hereunder and derivative or similar words refer to this entire Agreement; (E) the terms Section and Attachment refer to the specified Section or Attachment of this Agreement and references to paragraphs or clauses shall be to separate paragraphs or clauses of the Section or subsection in which the reference occurs; (F) the words include, includes and including shall be deemed to be followed by the phrase without limitation; (G) the word or shall be disjunctive but not exclusive; and (H) the word from (when used in reference to a period of time) means from and including and the word through (when used in reference to a period of time) means through and including;
(ii) references to any federal, state, local, or foreign statute or Law shall (A) include all rules and regulations promulgated thereunder and (B) be to that statute or Law as amended, modified or supplemented from time to time; and
(iii) references to any Person include references to such Person's successors and permitted assigns, and in the case of any Governmental Authority, to any Person succeeding to its functions and capacities.
(d) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.
(e) The phrase to the extent shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply if.
(f) The terms writing, written and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.
(g) All monetary figures shall be in United States dollars unless otherwise specified.
(h) All references to this Agreement or any Facility Addendum shall include any amendments, modifications or supplements thereto. -76-
Source: UPJOHN INC, 10-12G, 1/21/2020
17.12 Rules of Construction.
The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent. The Parties acknowledge that each Party and its attorney has reviewed and participated in the drafting of this Agreement and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting Party, or any similar rule operating against the drafter of an agreement, shall not be applicable to the construction or interpretation of this Agreement. 17.13 Counterparts.
This Agreement may be executed in two (2) or more counterparts (including by electronic or .pdf transmission), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of any signature page by facsimile, electronic or .pdf transmission shall be binding to the same extent as an original signature page. 17.14 Amendments.
No provisions of this Agreement shall be deemed waived, amended, supplemented or modified by any Party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of the Party against whom it is sought to enforce such waiver, amendment, supplement or modification. 17.15 Entire Agreement.
This Agreement, the Separation Agreement, the other Ancillary Agreements, including any related annexes, exhibits, schedules and attachments, as well as any other agreements and documents referred to herein and therein, shall together constitute the entire agreement between the Parties relating to the transactions contemplated hereby and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the Parties or any of their respective Affiliates relating to the transactions contemplated hereby.
[Signature Page Follows] -77-
Source: UPJOHN INC, 10-12G, 1/21/2020
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first written above. UPJOHN INC. PFIZER INC.
By: By: Name: Name: Title: Title:
[Signature Page to Manufacturing and Supply Agreement]
Source: UPJOHN INC, 10-12G, 1/21/2020
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
A:
|
Commercial general liability insurance with the following limits and forms/endorsements:
Each Occurrence: $2,000,000 (i) Occurrence form including premises and operations coverage, property damage, liability, personal injury coverage, products and completed operations coverage, and transit. (ii) To the extent of Manufacturer's indemnification obligations, Customer and its Affiliates shall be additional insureds via ISO form CG20101185 or its equivalent.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 4
|
train
|
You will be given a definition of a task first, then some input of the task.
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Exhibit 10.37 DISTRIBUTORSHIP AGREEMENT THIS DISTRIBUTORSHIP AGREEMENT (the Agreement) is entered into and made effective as of ____________ (the Effective Date), by and between STAAR SURGICAL AG, a Swiss corporation, with a principal place of business at Hauptstrasse 104, CH - 2560 Nidau, Switzerland, (STAAR), and _______________, a corporation organized and existing under the laws of _________________, with its principal place of business at _______________________ (Distributor). Recitals A. STAAR is engaged in the manufacture, global distribution and sale of ophthalmic products, including a range of devices for cataract, glaucoma and refractive surgery. B. Distributor is engaged in and has experienced and trained personnel for the marketing, distribution and sale of ophthalmic products in ________________. C. STAAR desires to engage Distributor, and Distributor desires to be engaged by STAAR, to market, distribute and sell the Products (as defined below) in _______________ on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants and conditions contained herein, and other good and valuable consideration, the parties hereby agree as follows: Agreement 1. Appointment and Acceptance 1.1 STAAR hereby appoints Distributor, and Distributor hereby accepts such appointment, to purchase the Products from STAAR and market, distribute and sell them in the Territory on the terms and conditions set forth herein. Distributor shall not have the right to appoint any subdistributors, subcontractors or other third parties to market, distribute or sell the Products. All Products shall be marketed, distributed and sold solely under STAAR's Trademarks. STAAR may utilize any of its affiliates to carry out STAAR's obligations under this Agreement; provided that STAAR shall remain liable for the due observance and performance of this Agreement by any such affiliate. 1.2 Distributor shall (a) procure the Products solely from STAAR (or its affiliates) and not (b) procure, manufacture, market or sell in the Territory any implantable medical devices that compete directly or indirectly with the Products, during the term of this Agreement. Distributor shall use its best efforts to promote and sell the Products to the maximum number of responsible customers in the Territory. 1.3 Subject to Section 8.3, Distributor's right to market, distribute and sell the Products in the Territory shall be exclusive. Distributor shall not sell any Products to a customer if Distributor knows or has reason to believe that such customer intends to remove those Products from the Territory. Distributor acknowledges and agrees that STAAR retains the right to sell the Products in the Territory directly or indirectly, including but not limited to via electronic commerce (without compensation to the Distributor). The Distributor shall cooperate with STAAR in servicing corporate accounts for customers operating in multiple Territories.
1
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
1.4 During the term of this Agreement, and subject to the terms and conditions hereof, STAAR hereby grants to Distributor, and Distributor hereby accepts, the limited, nontransferable, nonexclusive right and license to use the trade name, trademarks, and logos of STAAR (collectively, Trademarks), without the right to grant sublicenses, solely in connection with the marketing, distribution and sale of the Products in the Territory pursuant to this Agreement. Distributor shall use and display the Trademarks solely in the manner, form, design, color and layout agreed by STAAR in its sole discretion. Distributor shall not use the Trademarks as part of or in combination with Distributor's trade name or marks. Distributor shall only market, distribute and sell the Products under the Trademarks and shall not use the Trademarks in any advertising or promotional campaigns or otherwise, or use any confusingly similar names or logos, in any manner that, in STAAR's sole discretion, may be misleading or harmful to STAAR (or its affiliates). Subject to the limited use rights granted to Distributor in respect of the Trademarks under this Agreement, all powers that would be conferred on authorized users under other laws are expressly excluded. 1.5 The term Products shall mean those certain products, specified by brand name, manufactured and marketed under the Trademarks by STAAR that are listed on Exhibit A-1 hereto. STAAR may from time to time modify or change the Products on Exhibit A-1 in its sole discretion, and if so, will notify Distributor promptly thereof. In the event that STAAR discontinues a Product, it will provide at least thirty (30) days' prior written notice to Distributor. Distributor shall not modify, disassemble or reverse engineer any Product, in whole or in part. 1.6 The term Territory shall mean ________. Distributor shall not promote, market, distribute or sell the Products outside the Territory. 1.7 Except for the rights expressly granted to Distributor pursuant to Sections 1 and 2, Distributor acknowledges and agrees that STAAR reserves and retains all rights with respect to the marketing, distribution and sale of the Products in the Territory (and elsewhere). Notwithstanding any other provision hereof to the contrary, STAAR shall have the unrestricted right, at its sole discretion, directly or indirectly through third party distributors, to among other things (a) supply, market, distribute and sell any product in the Territory other than the Products, (b) supply, market, distribute and sell any Product in the Territory on an OEM basis under third party trademarks, and (c) market, distribute and sell the Products (or any other product) in any geographic region outside the Territory. 2. Business of Distributor Distributor is and shall remain an independent contractor. Distributor agrees that STAAR has granted it no authority to act or make any representations or warranties on behalf of STAAR. Distributor is at all times acting for its own account, and at its own expense. Distributor represents to STAAR that Distributor has trained and experienced personnel, facilities and other resources in the Territory in order to diligently, professionally and effectively market, distribute and sell the Products. Distributor shall comply with all applicable laws, statutes, regulations and treaties relating to the marketing, distribution and sale of the Products and the performance of its duties and obligations hereunder. Distributor shall be free to establish its own pricing for Products sold by Distributor and shall notify STAAR of its pricing, as in effect from time to time.
2
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
3. Term The term of this Agreement shall commence on the Effective Date and terminate in _____________, on _____________, unless terminated earlier pursuant to the terms of this Agreement; provided, however, that this Agreement may be renewed for successive one (1) year periods if STAAR and Distributor expressly agree in writing and in their sole discretion to renew this Agreement prior to the foregoing termination date or any successive renewal term. 4. Prices and Terms 4.1 The prices which Distributor shall pay to STAAR for the Products shall be as specified on Exhibit A 1. Such prices are exclusive of any national, state, local or other governmental sales, transfer, use, excise, value-added or other taxes, customs duties, or similar tariffs and fees, which shall be the sole responsibility of Distributor. In the event that STAAR is required to pay any such taxes, duties, tariffs or fees, the full amount thereof shall be added to the applicable invoice and payable by Distributor. Company may change the prices of the Products from time to time with thirty (30) days prior written notice to Distributor. 4.2 Payment for the Products shall be in U.S. Dollars, or such other currency as STAAR may require in its sole discretion, and made within thirty (30) days of STAAR's invoice. Late payments shall be subject to an interest charge of 1% per month or the maximum amount permitted by applicable law, whichever is less. 4.3 In the event STAAR establishes a line of credit for Distributor or permits Distributor to purchase Products on open account, STAAR retains title to said Products and reserves all rights with respect to such delivered Products permitted by law, including, without limitation, the rights of recession, repossession, resale and stoppage in transit until the full amount due from Distributor in respect of such Products has been paid. 5. STAAR Obligations STAAR shall, during the term of this Agreement: 5.1 Provide Product training, at mutually acceptable times and places, for a reasonable number of Distributor's personnel; provided that Distributor shall pay all expenses of its personnel attending such training sessions (including without limitation salaries and transportation); 5.2 Furnish Distributor, without charge, reasonable quantities of English-language Product literature which STAAR may publish or prepare from time to time; 5.3 Render reasonable periodic assistance to Distributor on Product technical and sales issues; and
3
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
5.4 Invoice Distributor for each Product sold by Distributor. 6. Distributor Obligations Distributor shall, during the term of this Agreement, and at its expense: 6.1 Actively use its best efforts to advertise, promote and penetrate the market for the Products in the Territory; 6.2 Employ adequate staff having specialized technical training, maintain adequate stocks of Products, and maintain facilities and other resources within the Territory, at its own expense, in order to maximize the distribution and sale of the Products; 6.3 Provide STAAR with an annual marketing plan setting forth Distributor's plan for the marketing, distribution and sale of the Products in the Territory, including (a) Distributor's goals and objectives for Product promotion, sales, and distribution, (b) advertising campaigns for trade journals and other publications, (c) customer training and education, (d) participation at trade shows and exhibits, (e) special promotions and financing and acquisition programs, such as reagent rental programs, (f) distribution strategies and market analysis, including a detailed summary of the activities of competitors in the marketplace, and (g) anticipated capital expenditures, personnel requirements and other resources to be utilized in the succeeding year; 6.4 Participate in appropriate exhibitions and trade shows as part of its marketing of the Products in the Territory, it being understood and agreed that STAAR and its affiliates also shall have the right to participate in exhibitions and trade shows in the Territory; 6.5 Submit to STAAR regular quarterly status reports reflecting sales activities (detailed by customer name and units sold per customer per month), anticipated requirements of customers in the Territory, general market conditions, and a summary of activities by competitors; 6.6 Provide customer training and warranty services; and 6.7 Refrain from making any claims or representations concerning the Products other than as set forth in the applicable specifications or labeling therefor and never disparage either STAAR or the Products. 6.8 In the event that Distributor terminates this Agreement, then for one year thereafter, Distributor shall not sell, promote, advertise or market in the Territory products which are competitive with the Products. 7. Forecasts/Purchase Orders/Minimum Product Quantities 7.1 Distributor shall on a calendar-quarter basis furnish to STAAR a written good-faith, non-binding estimate of Distributor's Product requirements in the Territory and requested shipping dates (the Forecast) for each of the succeeding twelve (12) months. Any purchase orders issued by Distributor are subject to acceptance by STAAR and will not be deemed accepted until a written confirmation has been dispatched by STAAR.
4
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
7.2 Distributor shall order Products from STAAR under this Agreement by submitting to STAAR a written purchase order specifying Products, quantities, and requested delivery dates to enable STAAR to fill the order. Each purchase order submitted to STAAR is subject to acceptance by STAAR at its offices to which such order was submitted. The purpose of the purchase order to be issued under this Agreement is for scheduling only; no terms and conditions of Distributor's purchase orders or any other document or instrument of Distributor shall be binding upon STAAR or amend or modify this Agreement in any manner, notwithstanding any language to the contrary contained in any such purchase order, instrument or document. Distributor should place its last order in each quarter by the tenth day of the last month in each quarter (e.g., March 10, June 10, September 10, and December 10). 7.3 During each Contract Year, as defined below, Distributor shall purchase from STAAR the minimum quantity of each Product that shall be mutually agreed between the parties in advance of the applicable Contract Year (Minimum Product Quantities). The Minimum Purchase Quantities for the Contract Year are as set forth on Exhibit B attached hereto. Within ninety (90) days prior to the expiration of each Contract Year, the parties will discuss in good faith and agree on the Minimum Product Quantities for the successive Contract Year; provided, however, that, if the parties fail to reach agreement on or otherwise specify the Minimum Purchase Quantities for the successive Contract Year, the Minimum Product Quantities for such successive Contract Year shall be __________ percent (___%) of the Minimum Purchase Quantities for the existing Contract Year. Contract Year means for the first Contract Year of the Agreement, the period commencing on the Effective Date hereof and ending one year thereafter and for subsequent Contract Years, the successive twelve (12) month period thereafter. Failure of Distributor to purchase the Minimum Purchase Quantities for any Contract Year, shall be considered a material breach of this Agreement. 8. Delivery 8.1 Delivery of all Products ordered by Distributor shall be made Ex Works at STAAR's export manufacturing or other facility or named shipping point as determined by STAAR. ICC INCOTERMS (2010 edition) shall apply, except insofar as these INCOTERMS may be inconsistent with the terms of this Agreement. 8.2 In the event Distributor fails to take delivery and/or shipment of Products pursuant to the terms of this Agreement: (a) STAAR shall be entitled to store the Products in a warehouse at the expense and risk of Distributor; (b) the price of the Products shall become immediately due and payable by Distributor; and (c) after thirty (30) days from the date upon which the price becomes payable, STAAR may dispose of the Products in a commercially reasonable manner without notice to Distributor and recover any shortfall and related expenses from Distributor. 8.3 All Products ordered pursuant to accepted purchase orders shall be scheduled for delivery in accordance with STAAR's then current and normal delivery times.
5
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
9. Warranty and Quality Control 9.1 STAAR warrants that, for the period of twelve (12) months from the date of delivery to Distributor hereunder (the Warranty Period), the Products will meet STAAR's published specifications or labeling for such Products as in effect at the time of such delivery (Warranty). To the maximum extent permitted by applicable law and except as otherwise stated in this Agreement: (a) the foregoing Warranty is exclusive; and (b) all other terms, representations, undertakings, rights, remedies and warranties are excluded, whether express or implied (including but not limited to any warranties of merchantability, fitness for a particular purpose or against infringement). To the maximum extent permitted by applicable law, the exclusive remedy for breach of the Warranty shall be, at STAAR's option, the repair or replacement, at STAAR's expense, of the non-conforming Product; provided that Distributor notifies STAAR of the non-conformity and returns the non-conforming Product within the Warranty Period. Products may only be returned by Distributor when accompanied by a return material authorization number issued by STAAR. Shipping expenses for Products returned by Distributor will be prepaid by Distributor. STAAR shall pay for the return or replacement shipment to Distributor of Products repaired or replaced under the Warranty. For Products returned for repair or replacement that are not covered under Warranty, STAAR's standard repair charges shall be applicable in addition to all shipping expenses. The above Warranty is contingent upon proper installation, use and maintenance of the Products and does not apply to Products which have been misused, mishandled, adulterated, repaired or modified without STAAR's written approval. To the maximum extent permitted by applicable law, STAAR shall not be responsible for any incidental or consequential loss, damage, or expense which arises directly or indirectly from the use of any Product. Without limiting the above, and to the maximum extent permitted by applicable law, Distributor's sole remedy in contract or in tort (including in negligence) and STAAR's liability shall be limited to the repair or replacement of any Product which is returned to and found to be defective or non-conforming by STAAR. 9.2 Distributor shall not make any representation or warranty as to the Products except for the warranty stated in Section 9.1 above. Distributor shall not alter the Products and shall not recommend or knowingly sell the Products for any uses except as described in STAAR's Product label and labeling and in accordance with the written instructions and warnings furnished by STAAR. Distributor agrees to deliver to its customers at or before sale all specifications, inserts, instructions, and warnings furnished by STAAR and to retain records evidencing such delivery. 10. Regulatory and Post-Market Surveillance Requirements 10.1 During the term of this Agreement and for at least ten (10) years thereafter, Distributor shall maintain records to allow for traceability of individual serial/lot numbers to customers for all sales of the Products. Upon request by STAAR, Distributor shall supply STAAR with a report of the information contained in such records. 10.2 In the event that STAAR deems it necessary to recall any Product, or any governmental authority requests recall of any Product distributed or sold by Distributor in the Territory, Distributor and STAAR shall cooperate fully with each other in effecting such recall, with an effort to reduce as much as possible the expense thereof and Distributor must notify STAAR of any contemplated or requested recalls as soon as possible (and at all times within any period required to notify any regulatory authority under applicable law) and prior to Distributor taking any steps to effect such a recall. Without limiting Distributor's obligations under law, as between Distributor and STAAR, the decision of whether or not to recall any Product shall be made solely by STAAR. Distributor shall notify all customers who received the recalled Product and shall record all receipts of Product returned under any recall. Distributor shall maintain copies of recall notification letters and maintain distribution logs that detail where each Product was shipped by Distributor.
6
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
10.3 Distributor shall fully document and inform STAAR in writing of any Complaints or other matters addressed in this Section 10. Documentation with respect to Complaints shall include the Product model and serial or lot number, customer contact information, and as much detail as possible regarding the nature of the Complaint. Distributor will forward to STAAR any Complaint involving significant bodily injury, illness or death resulting from use of Products within one (1) calendar day of receipt and Distributor must notify STAAR of any such incident prior to issuing any notice required by law in respect of such incident (including those to be issued to governmental or regulatory authorities). Distributor shall forward to STAAR all other Complaints within five (5) calendar days of receipt. If any evaluation of Product involved in a Complaint by STAAR is necessary or appropriate, Distributor will use best efforts to retrieve the affected Product, if available, and return it to STAAR. STAAR will pay for the return shipment of such Product to STAAR. STAAR will be responsible for investigating all Complaints, determining if reporting to regulatory authorities in the Territory is required, and submitting such reports to regulatory authorities when required. The term Complaints as used in this Section 10.3 means any report, complaint or other communication received by Distributor (or its employees, contractors, agents or representatives) from end users of Products or their healthcare providers related to the safety or efficacy of the Products. 10.4 STAAR informs Distributor that Sections 10.1, 10.2, and 10.3 above are requirements of the Medical Device Directive (93/42/EEC), and that non-compliance by Distributor of these Sections will constitute grounds for STAAR to immediately cease supply of Products to Distributor and will be deemed a failure by Distributor to perform a material obligation, warranty, duty or responsibility hereunder. 10.5 Distributor acknowledges and agrees that it has full understanding of and shall duly observe and abide by any and all legal and regulatory requirements applicable to the import, commercialization, marketing, distribution or sale of Products in the Territory (collectively, Regulatory Requirements). Distributor further acknowledges and agrees that STAAR does not take any, and shall not be responsible for, any legal liability or responsibility for damages, costs or legal consequences that may result from any failure by Distributor to observe or comply with any Regulatory Requirements. 10.6 Distributor shall observe all transport and storage requirements and conditions applicable to the Products as indicated on any Product packaging. 11. Governmental Approvals and Registrations 11.1 With the exception of the health registrations for the Products provided for in Section 11.2 below, Distributor shall secure (and provide copies thereof to STAAR) all necessary governmental permits, licenses, sponsorships and registrations required in connection with the importation and resale of the Products in the Territory. Upon expiration or termination of this Agreement, Distributor shall transfer to STAAR (or its nominee) all right and title to all sponsorships or import licenses or permits governing the importation and resale of the Products into the Territory.
7
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
11.2 STAAR shall provide to Distributor all necessary information and data to obtain appropriate health registrations and applications in the Territory. Distributor shall use its best efforts to obtain all necessary registrations, which registrations shall be obtained in the name of STAAR. Distributor agrees that it will have no right or interest in said registrations and applications; that STAAR is and shall remain the exclusive owner of such registrations and applications free and clear of any claims by Distributor; and that Distributor shall make no claim to the same at any time during or after the term of this Agreement. Distributor shall respect such property rights of STAAR and comply with all local laws and regulations in respect thereof. Distributor shall also assist STAAR, at STAAR's request, in taking any steps necessary to defend such rights, and any reasonable expenses incurred in this regard by Distributor shall be reimbursed by STAAR. 11.3 Distributor shall at all times keep STAAR apprised of all Regulatory Requirements and any changes thereto and, on an annual basis, shall report to STAAR in writing of any such changes and confirm in such report that there have been no changes in any Regulatory Requirements other than as specified in the annual report. 11.4 Copies of all permits, licenses, sponsorships and registrations referred in Sections 11.1 and 11.2 shall be promptly forwarded to STAAR. 12. STAAR's Proprietary Information and Rights 12.1 Distributor recognizes and understands that all information not generally known concerning Company and the Products, including but not limited to Company's organization and business affairs, customer lists, sales information, operating procedures and practices, technical data, designs, software, know-how, trade secrets, and processes (the Proprietary information), whether owned by Company or licensed by Company from third parties, are subject to a valuable proprietary interest of Company, and that Distributor is under an obligation to maintain the confidentiality of such Proprietary Information. Without limiting the generality of the foregoing obligations, Distributor agrees that for the term of this Agreement and thereafter until such time as the Proprietary information is in the public domain, Distributor will (i) not disclose, publish or disseminate any Proprietary Information, (ii) not use any Proprietary Information for its own account, (iii) not authorize any other person to disclose, publish or disseminate the Proprietary information, and (iv) treat all Proprietary Information in a confidential manner, including appropriate marking and secure storage of written Proprietary Information. 12.2 No title or ownership of the software bundled or included with any Product (Software) is transferred to Distributor, and such Software remains the proprietary property of Company. The Software is protected by the U.S. Copyright. Act and by international copyright treaties. All Software, including documentation and any subsequent updates provided by Company to Distributor, is licensed only for use on the single Product on which the Software is first installed. Unauthorized copying of the Software is expressly forbidden, and Distributor agrees not to distribute copies of the Software to nonlicensed parties. In no event shall Distributor reverse engineer, decompile, or disassemble the Software.
8
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
12.3 Distributor acknowledges that the Company is the owner and/or licensee in the Territory of the trademark(s) indicated on the Product packaging, advertising or promotional material or utilized in the sale of the Products (the Trademarks). During the term of this Agreement, Distributor is authorized to use the Trademarks solely in connection with Distributor's advertisement, promotion and distribution of the Products in the Territory. Whenever the Trademark is used, e.g., on any package, label or advertisement, the right or most prominent use shall always be accompanied by a legend acceptable to Company indicating that the Trademark is licensed to the Distributor by Company. 12.4 Distributor shall neither use nor permit others to use the name STAAR, or any abbreviation or modification thereof, or the Trademarks or any other trademark or trade name of Company as part of the Distributor's firm name or corporate titles, in signs or in letterheads without the prior written consent of Company. Distributor may designate itself as a Distributor of Products in the Territory in such form and manner as Company may approve of in advance in writing. Distributor shall not grant this privilege to any third party or to any affiliates without Company's prior written consent. 12.5 Distributor acknowledges that Company owns and retains all patents, trademarks, copyrights and other proprietary rights in the Products, and agrees that it will not at any time during or after the termination of this Agreement assert or claim any interest in or take any action which may adversely affect the validity or enforceability of any trademark, trade name, trade secret, copyright, or other proprietary right owned by or licensed to Company. No license, either express or implied, is granted to the Distributor by this Agreement to any patents, trademarks, copyrights, processes, or other proprietary rights of Company or its affiliates, except the right to sell the Products sold to the Distributor hereunder in the Territory, and the license to use the Software and Trademarks in connection therewith. 12.6 Distributor acknowledges that any breach of the provisions of this Section shall result in serious and irreparable injury to STAAR for which STAAR cannot be adequately compensated by monetary damages alone. Thus, Distributor agrees that, in addition to any other remedy it may have, STAAR shall be entitled to enforce the specific performance of the obligations of Distributor under this Section and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages. Distributor shall be responsible for any breach of the provisions for this Section by any employee, agent or representative of Distributor. 13. Indemnification; Infringement; Insurance; and Limitation of Liability 13.1 Distributor shall indemnify, defend with competent and experienced counsel and hold harmless STAAR, and its officers, directors, employees, affiliates and agents (each, a Indemnities), from and against any and all claims, demands, suits or actions (including without limitation attorneys' fees and disbursements) which may be asserted against STAAR for any kind of damages, including without limitation damage or injury to property or persons and incidental and consequential damages, by any third party or any of the Indemnities arising out of, in connection with or resulting from (a) any breach of any representation or performance obligation of Distributor hereunder, or (b) any act or omission of Distributor, its employees, agents or representatives.
9
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
13.2 Distributor shall, at its own expense, maintain at a minimum general and product liability coverage in the Territory of at least US$2 million per occurrence, US$5 million in the aggregate. On a separate endorsement, Distributor shall name STAAR as an additional named insured. Such separate endorsement shall indicate that Distributor's insurance is primary and that STAAR's coverage as an additional named insured is not contributory. Each such insurance policy and endorsement shall provide that the insurance will not be canceled or reduces without at least thirty (30) days' prior written notice to STAAR. On request, Distributor shall provide STAAR with copies or certificates of all such insurance policies. 13.3 EXCEPT FOR EACH PARTY'S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 12 AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 13, WITHOUT LIMITING ANY RIGHT DISTRIBUTOR MAY HAVE UNDER LOCAL STATUTES THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, OR FOR DAMAGES DUE TO LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 14. Termination 14.1 STAAR or Distributor shall have the right, at its option, to terminate this Agreement, by giving written notice to the other party, effective immediately on receipt of such notice, on the occurrence of any of the following events: (a) In the event that the other party becomes or is deemed insolvent; proceedings are instituted by or against it in bankruptcy, insolvency, reorganization or dissolution; or it makes a general assignment for the benefit of creditors; (b) In the event that the other party fails to observe or perform any obligation, warranty, duty or responsibility under this Agreement and such failure continues unremedied for a period of thirty (30) days following written notice thereof by the non breaching party; or 14.2 STAAR shall have the right to terminate this Agreement by giving written notice to Distributor, effective immediately on receipt of such notice, (a) if Distributor fails to meet the Annual Minimum Volume as set forth in Section 7.2 or (b) pursuant to Section 15, or in the event the parties are unable to agree upon changes in the prices for Products within thirty (30) days following STAAR's notice thereof. 14.3 Notwithstanding the provisions of Section 3 above, either party shall have the right to terminate this Agreement, without cause, upon no less than ninety (90) days' prior written notice to the other party.
10
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
14.4 Upon any termination or expiration of this Agreement: (a) All sums due to either party from the other shall be promptly paid; (b) Distributor orders received and accepted by STAAR prior to the effective date of the termination of this Agreement shall be fulfilled in accordance with their terms; (c) All property belonging to one party but in the custody of the other shall be returned; (d) STAAR shall have the option to repurchase any or all current and resalable Products in Distributor's inventory at eighty percent (80%) of Distributor's original net purchase price (reflecting a twenty percent (20%) restocking and administrative fee); (e) Distributor shall cease all display, advertising and use of STAAR trade names, trademarks (including the Trademarks), logos and designations, except uses on the Products which remain in Distributor's possession, and shall transfer all registrations and sponsorships for the Products to STAAR or its designee; and (f) The parties have considered the possibility that one or both parties will incur expenses in preparing for performance of this Agreement and that one or both parties will incur expenses and suffer losses as a result of termination, and the parties have nevertheless agreed that the terminating party shall not incur any liability whatsoever for any damage, loss or expense of any kind suffered or incurred by the other party (or for any compensation to the other party) arising from or incident to any termination or non-renewal of this Agreement by the terminating party pursuant to its terms, whether or not the terminating party is aware of any such damage, loss or expense. Without limiting the generality of the foregoing, upon any termination of this Agreement by either Party in accordance with its terms (or otherwise), in no event shall STAAR be required to pay to Distributor any good will or other payment of any nature or kind based on the sales, business development or other activities of Distributor during the term of this Agreement. Distributor, for itself and on behalf of each of its employees, hereby waives any rights which may be granted to it or them under the laws and regulations of the Territory or otherwise which are not granted to it or them by this Agreement. Termination is not the sole remedy under this Agreement, and, whether or not termination is effected, all other remedies shall remain available. 15. U.S. Laws and Regulations 15.1 Distributor acknowledges and agrees that it shall comply in all respects with all United States and local country laws, regulations and standards applicable to its activities under this Agreement, including but not limited to the exporting and importing requirements (including the prohibition of the re-export of Products and associated technical data) set forth in this Agreement and in applicable governmental regulations.
11
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
15.2 Distributor warrants and represents that neither Distributor nor any person acting on Distributor's behalf shall make, directly or indirectly, any offer or promise or authorization of a bribe, kickback, payoff or any other payment or gift intended to improperly influence an agent, government official, political party or candidate for public office to exercise their discretionary authority or influence in order to assist in the sale, marketing, promotion, importation, licensing or distribution of the Products and shall complete and sign the attached Foreign Corrupt Practices Certification (Exhibit C). Specifically, Distributor shall not (a) violate any applicable anti-bribery or anti-corruption laws; or (b) offer, pay or promise to pay, give or promise to give, or authorize the payment or giving of, anything of value to any official representative of any Governmental Entity or authority or any political party or officer thereof or any candidate for office in any jurisdiction (individually and collectively, a Government Official), (i) for the purpose of (A) influencing any act or decision of such Government Official in his official capacity, (B) inducing such Government Official to do or omit to do any act in violation of his lawful duty, (C) securing any improper advantage, or (iv) inducing such Government Official to influence or affect any act or decision of any Government Entity, or (ii) in order to assist Distributor in obtaining or retaining business for or with, or directing business to Distributor or any of its affiliates. The term Governmental Entity as used in this Section 15.2 means any government or any department, agency or instrumentality thereof, including any entity or enterprise owned or controlled by a government, or a public international organization. Distributor shall maintain for at least two (2) years and make readily available to STAAR or its duly authorized representatives' books, records and accounts prepared in accordance with generally accepted accounting principles that accurately and completely reflect the nature of every transaction related to the sale of the Products. 16. Data Protection 16.1 For the purposes of this Section, the following terms shall have the following meanings: Data Protection Laws means any applicable data protection or privacy laws. It shall include: (a) the EU Data Protection Directive 95/46/EC and EU ePrivacy Directive 2002/58/EC as implemented by countries within the European Economic Area (EEA); (b) from 25 May 2018, the EU General Data Protection Regulation (GDPR) as implemented by countries within the EEA and the UK; and/or (c) other laws that are similar, equivalent to, successors to, or that are intended to or implement the laws that are identified in (a) and (b) above; Shared Personal Data shall have the meaning as set out in Section 16.4; and The terms data controller, data subject, personal data, processing, and sensitive personal data shall have the same meanings ascribed to them under Data Protection Laws. 16.2 STAAR and Distributor each acknowledge and agree that where a party processes personal data under or in connection with this Agreement it alone determines the purposes and means of such processing as a data controller. 16.3 Each Party confirms that it has complied, and will continue to comply, with its obligations relating to personal data that apply to it under applicable Data Protection Laws. 16.4 To the extent Distributor discloses, provides or otherwise makes available, personal data to STAAR under or in connection with the Agreement (Shared Personal Data), Distributor acknowledges that STAAR and/or its service providers or agents may process such Shared Personal Data for any purpose related to this Agreement, including, without limitation, for any purpose necessary for STAAR and/or its service providers or agents to comply with applicable law.
12
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
16.5 In connection with the Shared Personal Data, Distributor warrants that it: (a) has provided adequate notices to, and obtained valid consents from, the relevant individuals, in each case, to the extent necessary for STAAR and/or its service providers or agents to process the Shared Personal Data (including any sensitive personal data) in connection with this Agreement which may include the transfer of the Shared Personal Data to STAAR outside of the EEA; and (b) shall not, by act or omission, cause STAAR to violate any Data Protection Laws, notices provided to, or consents obtained from, data subjects as result of processing the Shared Personal Data in connection with this Agreement. 16.6 To the extent of any conflict in relation to personal data between the terms contained in this Section and the rest of the Agreement, then the terms of this Section shall control to the extent of such conflict. 17. Survival In addition to Distributor's obligation to pay STAAR all amounts due hereunder, the provisions under Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 24 and 25 shall survive termination of the Agreement, as well as such other provisions which by their meaning and intent have applicability beyond the terms of this Agreement. 18. Publicity Distributor agrees that any publicity or advertising which shall be released by it in which STAAR is identified in connection with the Products shall be in accordance with the terms of this Agreement and with any information or data which STAAR has furnished in connections with this Agreement (or related to the Product). STAAR shall have the right to review and approve all such publicity and advertising prior to dissemination thereof. 19. Assignment Neither party may, directly or indirectly (including in connection with a change of control transaction), transfer or assign this Agreement or any of the rights or obligations hereunder without the prior written consent of the other; provided that STAAR may assign any of its rights and delegate any of its obligations hereunder to its subsidiaries and affiliated companies or in connection with a sale or transfer of all or substantially all of its business to which this Agreement relates, whether by merger, sale of assets or otherwise, without Distributor's prior written consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 20. Integrated Agreement This Agreement constitutes the entire understanding and agreement between STAAR and Distributor regarding the subject matter hereof and terminates and supersedes all prior formal or informal understandings or agreements relating thereto.
13
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
21. Force Majeure Performance of the parties hereto of their respective obligations hereunder shall be subject to force majeure and acts of God, including but not limited to insurrections, riots, wars and war-like operations, terrorist acts, explosions, governmental acts, epidemics, failure of contractors to perform, strikes, fires, accidents, acts of any public enemy, inability to obtain required materials, supplies, products or qualified labor, delay in transportation and any applicable law, regulation or restriction of any foreign, federal, state or local governmental entity or instrumentality. However, the parties hereto shall use their commercially reasonable efforts to avoid, remove or cure said circumstances. Any party temporarily excused for performances hereunder by any such circumstance shall resume performance with utmost dispatch when such circumstances are removed or cured. Any party claiming such circumstances as an excuse for delay in performance shall give prompt notice in writing thereof to the other party. Nothing herein and no contrary provisions of any law, regulation, or governmental pronouncement shall, however, relieve Distributor of its obligation to make the payments to STAAR required hereunder at the times and in the manner herein specified. 22. No Waiver No waiver by either party of any breach or default of any of the covenants or agreements herein contained shall be deemed a waiver as to any subsequent or similar breach or default. No right or remedy herein conferred upon either party is exclusive of any other right or remedy herein or by law or in equity provided or permitted. 23. Severability This Agreement is divisible, and provisions herein held to be violate of any applicable treaties, statutes or regulations of any governmental agency having jurisdiction shall effect only that portion held to be invalid or inoperative, and the remaining portions of this Agreement shall remain in full force and effect. 24. Notice Any notice required or permitted to be given hereunder shall be in writing and (a) delivered in person or by internationally-recognized express delivery or courier service (e.g., FedEx, DHL or UPS), (b) sent by facsimile, or (c) deposited in the mail registered or certified first class, postage prepaid and return receipt requested (provided that any notice given pursuant to clause (b) is also confirmed by the means described in clause (a) or (c)), to the address or facsimile number of the party appearing below its signature below or to such other address as such party from time to time may designate in writing in compliance with the terms hereof. Each notice shall be deemed given when so delivered personally, or sent by facsimile transmission, or, if sent by express delivery or courier service four (4) business days after being sent, or if mailed, ten (10) days after date of deposit in the mail. 25. Governing Law and Dispute Resolution 25.1 This Agreement, which is in English, shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. The parties hereby expressly disclaim and exclude any applicable provisions of the United Nations Convention for the International Sales of Goods.
14
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
25.2 The parties waive their rights to seek remedies in court (except where the relief sought is an injunction or other equitable relief), including any right to a jury trial. Except in a case where the relief sought is an injunction or other equitable relief, the parties agree that any dispute between the parties arising out of, relating to or in connection with this Agreement, whether characterized or sounding in contract or tort or otherwise, shall be resolved exclusively through binding arbitration conducted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall be held in Los Angeles, California, USA. Judgment upon the award rendered may be entered in any court having jurisdiction. Each party shall bear its own expenses of the arbitration, but the arbitration fees and costs shall be borne equally between the parties participating in the arbitration. Disputes shall not be resolved in any other forum or venue. 26. Counterparts This Agreement may be executed in duplicate counterparts, each of which shall be deemed to be an original and all of which counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, STAAR and Distributor have caused their duly authorized representatives to execute this Distributorship Agreement on this __ day of ____, 20___. STAAR SURGICAL AG DISTRIBUTOR By: By: Name: Name: Title: Title:
15
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
EXHIBIT A-1
List of Products and Prices
All prices in U.S. dollars, or such other currency as STAAR determines in its sole discretion.
A-1-1
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
EXHIBIT B Minimum Product Quantities
B-1
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
EXHIBIT C Foreign Corrupt Practices Certification I, _________, as the [__________] of ___________ hereby certify as follows: 1. I understand and will comply with the anti-bribery provisions of the U.S Foreign Corrupt Practices Act and the UK Bribery Act. Neither I, nor any person employed by me or my business or representing my business, has or will make, offer, promise or authorize, directly or indirectly, any payment or transfer of anything of value to any official, representative or employee of any government, government agency or instrumentality, for the purpose of influencing a decision by any of them to take actions favorable to STAAR Surgical Company or its subsidiaries (STAAR) or represent them on any matter related directly or indirectly to the purchase of any of STAAR's products. 2. No officer, director, partner, owner, principle, employee or agent of my business is an official or employee of a governmental agency or instrumentality in a position to influence action or decisions regarding me or my business activities on behalf of STAAR and I will inform STAAR, by written notice, if, and as soon as , any such person assumes such a position as official or employee of a governmental agency or instrumentality while at the same time remaining an officer, director, partner, owner, principle, employee or agent of mine or my business at which time STAAR may elect to terminate this contract without any further liability to me or my business. 3. I will indemnify an hold harmless STAAR from any and all fines, damages, losses, costs and expenses (including without limitation reasonable attorneys' fees) incurred by STAAR as a result of any breach of this Certification by me. 4. I understand and agree that failure to comply with the terms of this Certification will entitle STAAR to terminate any and all if its contractual relationships with me and my business. DISTRIBUTOR: By: Officer Title: Print Name: Date:
C-1
Source: STAAR SURGICAL CO, 10-Q, 8/1/2018
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?
Output:
|
Distributor acknowledges that Company owns and retains all patents, trademarks, copyrights and other proprietary rights in the Products, and agrees that it will not at any time during or after the termination of this Agreement assert or claim any interest in or take any action which may adversely affect the validity or enforceability of any trademark, trade name, trade secret, copyright, or other proprietary right owned by or licensed to Company.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 1
|
train
|
Detailed Instructions: In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Q: QuickLinks -- Click here to rapidly navigate through this document
EXHIBIT 10.1
Sponsorship Agreement
THIS AGREEMENT made this 5th day of December, 2007, between R. C. Boyd Enterprises, LLC, a Texas limited liability company, whose principal place of business is located at 2003 Navasota Cove, Westlake, Texas, referred to in this Agreement as Company or Boyd, and Cano Petroleum, Inc., a Delaware corporation qualified to transact business in Texas, whose principal place of business is located at 801 Cherry Street, Suite 3200, Fort Worth, Texas 76102, referred to in this agreement as Sponsor or Cano.
WHEREAS, the Company is the owner of the rights to the television production known as Honey Hole (hereinafter Honey Hole or Show);
WHEREAS, Sponsor desires to acquire the exclusive right to be the lead sponsor of the Show at an agreed price and under specified terms and conditions;
NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, and agreements set forth in this Agreement, the Company and Cano agree as follows:
1. Required Production. The Company shall produce no less than forty (40) original episodes of the Show per year;
2. Lead Sponsorship. The Company agrees that Cano shall be identified as the lead sponsor, by having a thirty second lead-in promotion at the beginning of each episode; a thirty second trailer promotion at the end of each episode; and two thirty second commercials during each episode.
3. Signage at Public Appearances. The Company agrees that Cano shall be entitled to place signage, up to 6 feet × 10 feet at each public appearance made by Honey Hole, including four (4) Kids Corner children's benefits during the term of this Agreement.
4. Use of Logo. The Company agrees that the Cano logo and slogan shall appear on the primary boat and vehicle used in each episode. Cano recognizes and agrees that it does not and will not have exclusive rights and that other sponsor's logos may appear on the primary boat and vehicle. The Company agrees that Cano's logo shall be substantially the same size as other such sponsors;
5. Featured Guests. The Company agrees to feature not less than two (2) persons designated by Cano as guests on not less than six (6) separate episodes per year.
6. Provision of Lead in Trailer and Commercials. Cano has already provided the Company with voice over lead-in(s), 30 second commercials and trailers of a quality satisfactory to the Company and content that meets the Company's minimum standards. The Company shall utilize the already produced lead-in, commercials and trailers.
7. Sales and Other Taxes. The Company will add sales, excise and any other tax or surcharge to its invoices which it is obligated to collect and remit under the laws of the State of Texas, the United States or any other jurisdiction.
8. Notice. Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by personal delivery in writing or registered or certified mail, return receipt requested. Notice to Boyd shall be sufficient if made or addressed to 2003 Navasota Cove, Westlake, Texas 76092. Notice to Cano shall be sufficient if made or addressed to Cano Petroleum, Inc., 801 Cherry Street, Suite 3200, Fort Worth, Texas 76102. Each party may change the address at which notice may be sent to that party by giving notice of such change to the other party in accordance with the provisions of this Paragraph.
9. Term and Renewal. The term of this Agreement shall be one (1) year, commencing January 1, 2008 and ending on December 31, 2008.
10. Force Majeure. In the event that either party shall be prevented from performing any of its obligations due under the terms of this Agreement by an act of God, by acts of war, riot, or civil commotion, by an act of State, by strikes, fire, flood, or by the occurrence of any other event beyond the control of the parties hereto, that party shall be excused from any further performance of the obligations and undertakings set forth under the terms of this Agreement.
11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and venue for any legal action brought in State Court shall lie exclusively in Tarrant County, Texas and venue for any action brought in federal court shall lie exclusively in the Northern District of Texas, Fort Worth Division.
12. Rights Cumulative. The rights and remedies granted in this agreement to Cano in the event of default are cumulative, and the exercise of such rights shall be without prejudice to the enforcement of any other right or remedy authorized by law or this agreement.
13. Attorneys' Fees. If any legal action is brought by either of the parties hereto, it is expressly agreed that the prevailing party in such legal action shall be entitled to recover from the other party reasonable attorney's fees in addition to any other relief that may be awarded. For the purposes of this clause, the prevailing party is the party in whose favor final judgment is entered. In the event that declaratory or injunctive relief alone is granted, the court may determine which, if either, of the parties shall be considered to be the prevailing party. The amount of reasonable attorney's fees shall be determined by the court, in the trial of such action or in a separate action brought for that purpose. Attorney's fees awarded under the provisions of this paragraph shall be in addition to any other relief that may be awarded.
14. Multiple Counterparts. This Agreement is executed in duplicate copies, each of which shall be considered a true and original copy of this Agreement.
15. Payment of Money. In consideration of the services to be rendered under this Agreement as set forth above, the Company shall be entitled to compensation in the amount of $150,000.00 (One Hundred Fifty Thousand Dollars), to be paid in equal installments of $37,500.00 (Thirty Seven Thousand Five Hundred Dollars) on January 1, 2008, April 1, 2008, July 1, 2008 and October 1, 2008. If Cano fails to make any payment when required by this Agreement, the Company shall have the option of canceling this Agreement following the passage of ten (10) days after having given Cano written notice of its default. While the Company shall have no further obligation to Cano following cancellation of the Agreement, Cano shall remain liable for all unpaid installments for the then current term of the Agreement, which installments shall be immediately due and payable.
16. Exculpatory Clause. The parties agree that Cano will not be liable to the Company or any third party for any injury sustained by the Company, its employees, independent contractors, invitees or any other third party while preparing for, filming or working on post production of any episode.
17. Place of Performance. All sums payable under this Agreement shall be paid to the Company at Southlake, Tarrant County, Texas.
18. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party.
19. Other Agreements. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties with respect to the subject matter of this contract, and contains all of the covenants and agreements between the parties with respect to the subject matter. Each party to this contract acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are
2
not set forth in this contract, and that no agreement, statement, or promise not contained in this contract shall be valid or binding.
20. Partial Invalidity. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
21. Government Regulation. This Agreement is subject to all applicable federal, state and municipal laws, regulations and ordinances, whether existing or enacted hereafter, including the rules and regulations of all governmental agencies or commissions having jurisdiction in matters covered by this Agreement or either of the parties hereto.
This Agreement is executed in duplicate on the 5th day of December, 2007, in Fort Worth, Tarrant County, Texas, to be effective January 1, 2008.
3
R. C. BOYD ENTERPRISES, LLC By: /s/ R.C. Boyd
Printed Name: R.C. Boyd Title: President CANO PETROLEUM, INC. By: /s/ Jeff Johnson
Printed name: Jeff Johnson Title: CEO
QuickLinks
EXHIBIT 10.1
Question: Highlight the parts (if any) of this contract related to Minimum Commitment that should be reviewed by a lawyer. Details: Is there a minimum order size or minimum amount or units per-time period that one party must buy from the counterparty under the contract?
A:
|
The Company agrees to feature not less than two (2) persons designated by Cano as guests on not less than six (6) separate episodes per year.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 9
|
train
|
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Exhibits 10.9 SERVICES AGREEMENT
This SERVICES AGREEMENT is entered into on, and effective as of, August __, 2019 (the Effective Date) among TransMontaigne Management Company, LLC, a Delaware limited liability company (EmployeeCo) and TLP Management Services, LLC, a Delaware limited liability company (the Operating Company). The above-named entities are sometimes referred to in this Agreement (as defined herein) each as a Party and collectively as the Parties.
WHEREAS, EmployeeCo employs certain individuals (the Services Employees) who provide management, operational and administrative services as necessary to operate the business of the Operating Company and its affiliates (the Services).
NOW THEREFORE, in consideration of the premises and the covenants, conditions, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
ARTICLE I Services
1.1 Provision of Services. EmployeeCo agrees to provide to the Operating Company and its affiliates the Services and such other services as may be determined by the Parties from time to time.
1.2 Reimbursement and Allocation. The Operating Company shall reimburse EmployeeCo for all direct or indirect costs and expenses incurred by EmployeeCo in connection with performing its obligations under this Agreement including, but not limited to:
(a) salaries of the Services Employees;
(b) the cost of employee benefits for the Services Employees, including 401(k), pension, bonuses and health insurance benefits (whether through insurance policies provided by third-parties or self-insurance);
(c) costs associated with workers' compensation claims and other disputes or liabilities associated with the Services Employees;
(d) severance costs with respect to any terminated Services Employees; and
(e) all sales, use, employment, excise, value added or similar taxes, if any, that may be applicable from time to time with respect to the Services.
Such reimbursements shall be made by the Operating Company to EmployeeCo in advance or immediately upon such costs being incurred, or otherwise in accordance with historical practice, unless otherwise agreed between the Operating Company and EmployeeCo.
1
1.3 Additional Fee. As an additional fee, the Operating Company shall also pay to EmployeeCo an amount equal to 1% of the amount of all reimbursements made under Section 1.2, payable at the same time as such reimbursements, unless otherwise agreed between the Operating Company and EmployeeCo.
1.4 Settlement of Obligations. The Parties may settle their financial obligations under this Agreement Pursuant to the Parties' normal inter-affiliate settlement processes.
ARTICLE II Miscellaneous
2.1 Choice of Law; Submission to Jurisdiction. This Agreement shall be subject to and governed by the laws of the State of Colorado, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Each Party hereby submits to the jurisdiction of the state and federal courts in the State of Colorado and to venue in Denver, Colorado.
2.2 Entire Agreement. This Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.
2.3 Termination of Agreement. This Agreement shall remain in effect until terminated by the Parties. This Agreement may be terminated by (a) the written agreement of the Parties or (b) by either Party upon 5 days written notice to the other Party. All payment obligations hereunder shall survive the termination of this Agreement in accordance with their respective terms.
2.4 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto. Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Agreement.
2.5 Assignment. No Party shall have the right to assign its rights or obligations under this Agreement without the consent of the other Parties hereto; provided, however, that either party hereto may make a collateral assignment of this Agreement solely to secure working capital financing for such party.
2.6 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof.
2.7 Severability. If any provision of this Agreement shall be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
2
2.8 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
[Signature Page Follows]
3
IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the date first written above.
TRANSMONTAIGNE MANAGEMENT COMPANY, LLC By: /s/ Daniel R. Revers Name: Daniel R. Revers Title: President TLP MANAGEMENT SERVICES, LLC By: /s/ Michael A. Hammell Name: Michael A. Hammell Title: EVP, General Counsel
Question: Highlight the parts (if any) of this contract related to Anti-Assignment that should be reviewed by a lawyer. Details: Is consent or notice required of a party if the contract is assigned to a third party?
|
No Party shall have the right to assign its rights or obligations under this Agreement without the consent of the other Parties hereto; provided, however, that either party hereto may make a collateral assignment of this Agreement solely to secure working capital financing for such party.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 0
|
train
|
Teacher:In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Teacher: Now, understand the problem? Solve this instance: STRATEGIC ALLIANCE AGREEMENT This Strategic Alliance Agreement (this Agreement) is made and entered into as of May 17, 2016, (the Effective Date) by and between Giggles N' Hugs, Inc., a Nevada corporation (the Company), and Kiddo, Inc., a Florida corporation, Inc., (Consultant). WHEREAS, Consultant is retained by the Company as an Independent Contractor to introduce investors, celebrity spokespersons, press and media relationships, raise public awareness of the company and its public securities, and for other services related to Consultant's expertise; and WHEREAS, the Company and Consultant have agreed upon, and wish to memorialize their agreement concerning the status and responsibilities of the parties. NOW, THEREFORE, the parties agree as follows: 1. Services (a) General. Consultant shall use all best efforts to provide services including the following: ● Capital ○ Introduction to key investors. ○ Introduction to strategic partners ○ Introduction to celebrity endorsement and involvement, including but not limited to celebrity investors. ● Branding ○ Concept generation for overall brand strategy and market launch. ○ Facilitate and help structure strategic relationships partnerships with key influencers and celebrities and their children in various major markets, including NY and Los Angeles. ● Marketing ○ Public relations and marketing services, including grass-roots campaign, social media, local and national TV interviews and shows, local and national newspaper and magazine exposure and interviews, investor relations and shareholder awareness. ○ Expansion of brand awareness through creating and managing social media alliances with mommy bloggers and studios to start using location/possible tie-ins to national and local events, including Super Saturday LA, Super Saturday Hamptons, etc. ○ Solicit Advertising and partnership opportunities with consultants current and future corporate clients ○ Introduction of company to NY market with pop-up or take over existing play space and brand Company to the NY market. ○ Reach out to mall partners in partnership with the Company. Utilizing the Company's existing mall relationships and current offers. ● Licensing and Merchandising ○ Review all of Company's intellectual property for use in future plans, not including legal work ○ Facilitate and help structure strategic partnerships ○ with distribution partners, publishing partners, advertising partners, retail partners, licensing partners, etc. ○ Facilitate and help structure strategic relationship with merchandising and manufacturing partners, such as Hasbro or Mattel, etc. ○ Facilitate and help structure strategic relationship with merchandise partners for children's clothing line, frozen food line, toys and games, etc. ○ Create and begin 2017 roll out plan including product placement and further expansion of retail locations. 1
● Entertainment ○ Consultant will facilitate and structure strategic relationships with publishing companies for Children's books, live news shows, TV show, entertainment shows, movies, and branding, etc. ○ Launch overall concept implementation from Characters development for in-house programming, live shows, TV show, books, product including apparel and toys, gadgets. ● Food and Beverage ○ Consultant will facilitate and structure strategic relationships with frozen and fresh food manufacturing and delivering companies, such as the idea of the brought to home meals with companies such as Blue Apron for kids meals. ○ Use best efforts to create brand partnerships and other strategic relationships described above. Best efforts means that degree of effort which would be reasonable for a person under similar circumstances. b) Projected timeline. Consultant will make all best efforts to conduct the following services in the time stated: Day 1: Concept generation for overall brand strategy ideation. Create plan for concept launch. Review all Giggles IP for use in future plans. Begin grass-roots campaign and social media buzz regarding the brand, and its existence as a public company to increase SH awareness. Getting the story out May: Launch overall concept implementation from Characters development for in-house programming, live shows, TV show, books, product including apparel and toys, gadgets. getting ready June: Introduction of POSSIBLE key financial partners and brand like partners to align with brand. Aside from raising awareness for the brand, which should already show appreciable increase in stock price, we will procure individual investors who desire to be part of Giggle and Hugs in partnership alignments. July: Reach out to mall partners in partnership with Giggles & Hugs. At this time, the brand has generated more a buzz and we should be able to make the best deals possible for expansion. The stock price should have shown an increase and there should be more funds available for growth. This expansion effort will pave the way for the next level of investor. Planning on growth to new locations within 6-9 months from this point. Start creating alliances with mommy bloggers and studios to start using location/possible tie in to Super Saturday LA, among other local events that will help broaden the brand awareness. Possible tie in to Super Saturday Hamptons, and other events that make sense for the brand. Same as above for purposes of bringing the brand to influencers and others in the industry. October: Introduce Giggles & Hugs to NY market with pop-up or take over existing play space and brand Giggles & Hugs to the NY market. Bring in NY influencers and celebs with their kids. Expand the buzz for the brand. 2
November: Merchandise partner such as Hasbro or Mattel Products in process while trying to partner for a retailer/distributor on both levels Children's books - after we have built out Giggles and Hugs characters and figure out what that looks like from live show, TV show, book, branding etc. Possible TV show opportunity (not priority) To accomplish this phase, we will utilize our licensing partner, Brand Centric, and will introduce you to our partners on licensing to work together on all licensing fronts. Frozen foods. We will need to revisit your deal that was on the table at that time. It will be appropriate to enter into that deal as part of the general over-all scheme to grow the brand. Also, the idea of the brought to home meals such as Blue Apron for kids meals. We believe that this area has potential. We should visor that deal now, and prepare for the roll out of the product in accordance with this area of the proposed timeline. Merchandise partner for children's clothing line December: Create and begin 2017 roll out plan including product placement and further expansion of G&H locations. January: Implementation of roll out plan. 2. Consideration. In consideration for all duties and obligations contained herein, on or before the Effective date above, Company shall issue to Consultant a warrant to purchase 4,400,000 shares of the Company's common stock, which is equal to 10% of the issued and outstanding shares of common stock of the Company at the time of the grant. (a) The exercise price for the warrants shall be $0.075 per share, and shall not increase for any reason. (b) Upon achievement of certain milestones, the Warrants shall immediately vest upon any of the following events which may occur at any time (Milestones): 1) 10% upon the execution of this Agreement; and attached PR contract. 2) 20% upon the Company's receipt of a net equity investment of $1 million into the Company from any source (Included Investors), except those with a prior relationship with Company or its agents; 3) 20% upon the Company's receipt of an additional net equity investment of $1 million (an aggregate of $2 million) from Included Investors; 4) 20% upon the closing price for the Company's common stock closes above $80 (eighty cents) per share for 10 out of any 20 consecutive trading days; 5) 15% upon the announcement and consummation of a strategic relationship with at least two A-List Celebrity upon terms and conditions mutually agreed upon with the Company and Consultant. 6) 15% upon the launch and initial distribution of a Giggles N' Hugs branded product line, which may be clothing, furniture, frozen food, toys or similar merchandising (a Product Line). 3
(c) It is agreed that one event shall not trigger more than one of the above vesting provisions (e.g. a strategic relationship Honest Company and Jessica Alba shall not vest 30% of the Warrants under items 5 and 6, above). Further, no vesting of Milestones 2-4, will be triggered as a result of an acquisition of the Company, or a public or registered offering of its securities, unless such result is from the direct performance of Consultant. (d) Company will only sell, transfer or issue stock at prices that are in the best interest of the company and its shareholders. 3. Termination. Either party may terminate this agreement after 3 years following the effective date. (a) In addition, this Agreement will terminate upon the following: (1) Completion of work or period of work provided in this agreement. (2) Termination by Company or Consultant for any material breach, which is not cured within 30 days after written notice of any such material breach from the non-breaching party, pursuant to the terms of the Agreement. (3) By the Company, at its option, if at least two Milestones (excluding Milestones 1) are not achieved within 12 months from the Effective Date. 4. Relationship of Parties. Consultant is an independent contractor and is not an agent or employee of, and has no authority to bind, the Company by contract or otherwise. Consultant will report as self-employment income all compensation received by Consultant pursuant to this Agreement. Consultant will indemnify the Company and hold it harmless from and against all claims, damages, losses, costs and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed by law on the Company to pay any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with compensation received by Consultant pursuant to this Agreement. Consultant will not be entitled to receive any vacation or illness payments or to participate in any plans, arrangements, or distributions by the Company pertaining to any bonus, profit sharing, insurance or similar benefits for the Company's employees. 5. Confidential Information. Consultant acknowledges that, in connection with providing the Services, Consultant will acquire confidential and proprietary information of the Company, including without limitation information relating to the Company's business, products, technology and customers, and that all such information is and will be confidential and proprietary information of Company (collectively Confidential Information). Confidential Information will not include, however, any information that is or becomes part of the public domain through no fault of Consultant or that Company regularly gives to third parties without restriction on use or disclosure. Consultant will not disclose or permit disclosure of any Confidential Information of the Company to third parties other than as required to perform the Services. Consultant agrees to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Company in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Consultant further agrees to notify the Company in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the Company's Confidential Information, which may come to Consultant's attention. 4
6. Non-Solicitation. Consultant will not, during the Term, and for a period of one (1) year thereafter, directly or indirectly: (i) solicit, recruit or promote the solicitation or recruitment of any employee or consultant of the Company for the purpose of encouraging that employee or consultant to leave the Company's employ or sever an agreement for services; or (ii) solicit, participate in or promote the solicitation of any of the Company's clients, customers, or prospective customers with whom Consultant had a Material Contact (hereinafter defined) and/or regarding whom Consultant received Confidential Information, for the purpose of providing products or services (Competitive Products/Services). Material Contact means interaction between Consultant and the customer, client or prospective customer within one year prior to Consultant's separation of services from the Company that takes place to manage, service or further the business relationship. This limitation is not intended to limit the Company's right to prevent misappropriation of its Confidential Information beyond the non-solicitation period. Consultant and Company agree that if any court of competent jurisdiction shall for any reason conclude that any portion of this non-solicitation covenant shall be too restrictive, the court shall determine and apply lesser restrictions, it being the intent of the parties that some such restrictions shall be applicable for the protection of Company and its shareholders. 7. Property of Company. (i) Definition of Innovations. Consultant agrees to disclose in writing to the Company all inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, technical and business plans, specifications, hardware, circuits, computer languages, computer programs, databases, user interfaces, encoding techniques, and other materials or innovations of any kind that Consultant may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing Services or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (collectively, Innovations). (ii) Ownership of Innovations. Consultant and the Company agree that, to the fullest extent legally possible, all Innovations will be works made for hire owned exclusively by the Company. Consultant agrees that, regardless of whether the Innovations are legally works made for hire, all Innovations will be the sole and exclusive property of the Company. Consultant hereby irrevocably transfers and assigns to the Company, and agrees to irrevocably transfer and assign to the Company, all right, title and interest in and to the Innovations, including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights (collectively, Intellectual Property Rights) therein. At the Company's request and expense, during and after the term of this Agreement, Consultant will assist and cooperate with the Company in all respects and will execute documents, and, subject to the reasonable availability of Consultant, give testimony and take such further acts reasonably requested by the Company to enable the Company to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Innovations. Consultant hereby appoints the officers of the Company, as Consultant's attorney-in-fact to execute documents on behalf of Consultant for this limited purpose. Consultant's obligation to assist the Company shall continue beyond the termination of Consultant's relationship with the Company, but the Company shall compensate Consultant at a reasonable rate after the termination of such relationship for time actually spent at the Company's request providing such assistance. 5
8. Moral Rights. Consultant also hereby irrevocably transfers and assigns to the Company, and agrees to irrevocably transfer and assign to the Company, and waives and agrees never to assert, any and all Moral Rights (as defined below) that Consultant may have in or with respect to any Innovation, during and after the term of this Agreement. Moral Rights mean any rights to claim authorship of any Innovation, to object to or prevent the modification or destruction of any Innovation, to withdraw from circulation or control the publication or distribution of any Innovation, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a moral right. 9. No Rights Granted. Nothing in this Agreement will be construed as granting any rights under any patent, copyright or other intellectual property right of the Company, nor will this Agreement grant Consultant any rights in or to the Company's Confidential Information, except the limited right to use the Confidential Information as required in connection with performing the Services. 10. No Conflict. Consultant represents to the Company that Consultant can provide the Services to the Company without conflict with his obligations to any other party and covenants to the Company that, in performing the Services, he will not violate any obligations to any third party, including obligations concerning providing services to others and confidentiality of proprietary information. 11. General. (a) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws, except with respect to issues governed by the copyright laws of the United States. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Los Angeles County, California, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. (b) Disagreements; Attorneys' Fees. The parties agree to attempt to resolve any disputes, controversies or claims (Dispute) arising out of or relating to this Agreement in a meeting between a representative of each party who has decision-making authority with respect to a Dispute. Should the meeting either not take place or not result in a resolution of the Dispute within thirty (30) days following notice of the Dispute to the other party, then either party may bring suit or action in accordance with this Agreement. Each party hereto agrees that in the event that the other party is required to engage an attorney to enforce any of the terms or obligations contained in this Agreement, the non-prevailing party shall pay all reasonable costs and expenses of that attorney or firm, whether or not a complaint or suit is filed with any court of competent jurisdiction. 6
(c) Assignment. The services provided for in this Agreement, are of a personal nature and Consultant may not assign or transfer any of Consultant's rights or delegate any of Consultant's obligations under this Agreement, in whole or in part, without the Company's express prior written consent. Any attempted assignment, transfer or delegation, without such consent, will be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assigns. (d) Complete Understanding; Modification. This Agreement constitutes the complete and exclusive understanding and agreement of the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. (e) Severability. If one or more provisions of this Agreement are held to be illegal or unenforceable, such illegal or unenforceable portion shall be limited or excluded from this Agreement to the minimum extent required under such jurisdiction so that this Agreement shall otherwise remain in full force and effect and enforceable. (f) Notices. All notices must be in writing and delivered to the other party's principal business address, by personal delivery, overnight courier service, email or by facsimile. Notices will be deemed given as of the date of receipt, which date shall be evidenced by the signature of an authorized representative of the receiving party or by written evidence of a successful transmission of an email or facsimile. (g) No Agency. Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership or joint venture between the parties. (h) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together shall constitute one and the same instrument. (i) Survival. Sections 5, 6 and 11 shall survive termination of this Agreement. (j) Remedies and Enforcement. The parties acknowledge and agree that their remedy (ies) at law for a breach or threatened breach of any of the provisions of this Agreement would be inadequate, and the breach shall be per se deemed as causing irreparable harm to the non-breaching party. In recognition of this fact in the event of a breach or threatened breach of any of the provisions of this Agreement, the Parties agree that, in addition to any remedy at law available, including, but not limited to monetary damages, the Parties, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available to the non-breaching Party. (k) Construction. This Agreement shall be construed within the fair meaning of each of its terms and not against the party drafting the document. REMAINDER OF PAGE LEFT INTENTIONALLY BLANK 7
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date. GIGGLES N' HUGS, INC. KIDDO, INC. By: /s/ Joey Parsi By: /s/ Michelle Steinberg Name: Joey Parsi Name: Michelle Steinberg Its: Chief Executive Officer Its: Vice-President 8
Question: Highlight the parts (if any) of this contract related to Ip Ownership Assignment that should be reviewed by a lawyer. Details: Does intellectual property created by one party become the property of the counterparty, either per the terms of the contract or upon the occurrence of certain events?
Student:
|
Consultant and the Company agree that, to the fullest extent legally possible, all Innovations will be works made for hire owned exclusively by the Company.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 6
|
train
|
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Q: Exhibit 10.6 ATTACHMENT A ERCHONIA CORPORATION EXCLUSIVE DISTRIBUTOR AGREEMENT
This agreement (Agreement) is made by and between Erchonia Corporation. (Erchonia) whose address is 650 Atlantis Rd., Melbourne, Florida, USA, 32904 and InnerScope Hearing Technologies Inc, (Distributor) whose address is 2151 Professional Drive, Second Floor, Roseville, California, USA, 95661 hereafter referred to collectively as the (Parties).
Recitals
A. Erchonia is engaged in, among other things, the business of developing and promoting low level lasers. Erchonia desires to retain Distributor to promote, distribute and sell such equipment listed in Schedule A (the Products). B. Distributor is engaged in the business of, among other things, selling medical products and services, specifically for the treatment of hearing disorders. C. Distributor desires to obtain the exclusive right to distribute the Products pursuant to the terms set for in this Agreement. D. The parties agree that these recitals shall be considered a term of this Agreement. NOW, THEREFORE, the parties agree:
1. Grant of License.
a. Subject to the terms set forth in this agreement, Erchonia grants Distributor the exclusive, non- transferable right and license to promote, distribute and sell the Products identified in Exhibit A to those type of customer specified in Exhibit B and only within the Territory specified in Exhibit B. Distributor shall only distribute or sell the Products to customers who are licensed health care professionals and meet the other requirements set forth in Exhibit B.
b. Erchonia retains the right, in its sole discretion, to add, delete, upgrade, or modify the Products from time to time. Upon receipt of notice of such change, Distributor shall cease to market and distribute earlier versions of the Products and/or Products deleted from Schedule A. Distributor will deliver, at Erchonia's expense, all recalled, discontinued or products otherwise rendered unmarketable (under the terms of this paragraph) to Erchonia. Erchonia will fully reimburse Distributor for all costs related to the cost of materials and products returned to Erchonia
2. Obligations of Distributor.
a. Distributor shall use its best efforts to market, promote and sell the Products to the authorized customers in the Filed of Use and in the Territory during the term of this agreement.
b. Distributor agrees that during the term of this agreement it meet the minimum performance goals set forth in Exhibit C to this agreement. Failure to meet these minimum performance goals for any period, shall, at Erchonia's option (i) be considered a breach of this agreement for which Erchonia shall have all the rights and remedies provided for herein upon a breach of this agreement, including termination of this agreement, or (ii) shall give Erchonia to terminate or limit the exclusivity provisions of this agreement
c. Upon Erchonia's reasonable request, Distributor shall consult with Erchonia regarding Distributor's marketing and promotion efforts in the Territory and Field of Use and shall cooperate with Erchonia's reasonable requests regarding Distributor's marketing and promotional efforts.
d. Distributor shall maintain appropriate records concerning the sales of the Products. Such records shall include at a minimum the name, address and telephone number of each customer, the date of sale, a listing of the Products sold to each customer. Upon Erchonia's request, Distributor shall provide Erchonia with regular periodic reports including the information described in this paragraph. All such information shall be available for inspection by Erchonia, upon reasonable notice. Distributor shall also maintain such other records related to sales of the Products as Erchonia may reasonably request.
e. Distributor shall pay for all products purchased in a timely manner. Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
f. Distributor shall not, and may not permit any other person, including customers, to reproduce, distribute, sell or dispose of the Products, in whole or in part, except as expressly permitted under this Agreement.
g. Distributor will at all times be and represent itself to be an independent distributor, not an agent or employee of Erchonia.
h. Distributor may not make any contracts or commitments on behalf of Erchonia nor make any warranties or other representations regarding the Products other than those authorized herein.
i. Distributor must adhere to and comply with any use recommendations or restrictions for the Products as indicated or recommended by Erchonia. Distributor shall not make any statements, representations, or recommendations inconsistent with any use restriction or limitation.
j. Distributor shall not sell or export the Products outside the United States without prior written consent of Erchonia. To the extent sales of the Products outside the United States are permitted, Distributor will be solely responsible to comply with all applicable import and export laws and regulations.
k. Distributor shall promptly notify Erchonia of any complaint about negative, unwanted, deleterious, or other side effects due to the use of the Products, including the complainant's name, contact information, and date of complaint.
l. During the term of this agreement Distributor shall at all time act in responsible and professional manner. Distributor shall not do anything which is contrary to or which in Erchonia's reasonable business judgment is harmful to its honor, goodwill or reputation.
m. Distributor shall at all times comply with all applicable laws and regulations.
3. Restriction on Promotion of Competing Products. During the term of this agreement, Distributor shall not market, sell advertise or promote the sale or use of any product or device which is competitive with or substantially similar to the Products, without the prior express written consent of Erchonia, nor shall they assist any third party in doing so. Notwithstanding the foregoing, to the extent Distributor or Distributor's customer is a licensed health care professional or licensed health care practitioner, nothing in this paragraph shall prevent or limit Distributor or Distributor's customer from exercising their independent medical judgment with regard to the treatment of any patient.
4. Orders, Payment, and Shipment.
a. Erchonia agrees to provide Products to Distributor pursuant to orders placed by Distributor in the form of individual purchase orders issued by Distributor to Erchonia. Such purchase orders shall set forth the quantity of each product ordered, the required delivery date, and the point of delivery. The price for the Products shall be as designated in Schedule A. Erchonia may revise its prices from time to time and deliver a written 90 day notice of the reasonable price revision to Distributor; provided that Erchonia agrees that the prices listed in Exhibit A shall not be increased during the first 90 days of this agreement.
b. Erchonia shall submit invoices to Distributor after or concurrent with shipment of Products to Distributor at the delivery address. Distributor shall pay half (1/2) of the purchase price prior to shipment and the remaining balance 30 days after shipment of the Products. Payments received after the 30 day calendar period will be subject to a late fee of 1.5% of the invoice amount. All payments shall be made in U.S. Dollars.
c. Distributor is responsible for all shipping costs and applicable sales taxes. Distributor is also responsible for all customs and duties applicable to any sales of the Products outside the United States, to the extent such sales are authorized or permitted.
5. Expenses and Taxes.
a. Distributor is responsible for any out-of-pocket expenses incurred including but not limited to Products for demonstration, Products for treatment, sales and promotional material, seminar costs including room rental, and travel-related expenses.
b. Distributor is responsible for all federal, state and local taxes attributable to compensation received
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
pursuant to this Agreement, including sales, income, social security, and unemployment.
6. Term and Termination.
a. Unless terminated earlier as provided in this agreement, this Agreement shall have an initial term of three (3) years. This agreement shall automatically renew for a period of three (3) years and upon the parties mutual agreement on new minimum performance goals for the renewal period.
b. Either party may terminate this Agreement in the event of a material breach by the other party, provided the breaching party is first given reasonably detailed, written notice of the breach. If the breach is not cured within ten days of such notice, the Agreement will terminate immediately.
c. This Agreement may be terminated immediately by Erchonia under any of the following conditions: (a) if the Distributor is declared insolvent or bankrupt; (b) if a petition is filed in any court to declare Distributor bankrupt or for reorganization under the Bankruptcy Law or any similar statute and such petition is not dismissed within 30 days.
d. Upon termination of this Agreement by either party, Distributor shall immediately cease using the Trademarks (defined below) and discontinue all representations that it is an authorized distributor of the Products or is in anyway affiliated with Erchonia.
e. Except upon termination due to Distributors breach of this agreement, Erchonia will complete delivery of all purchase orders accepted by it prior to termination of this agreement; provided that Distributor shall remain liable for full payment of all such orders.
f. The provisions of paragraphs 2 (c) (reporting), 7 (Confidentiality), 8 (Protection of Intellectual Property, 10 (Warranty; Limitation of Liability), 11 (Indemnification), 12 (General Provisions) shall survive termination of this agreement.
7. Confidentiality.
a. In connection with this Agreement, the Distributor will have disclosed to it or otherwise have access to information that is confidential and proprietary to Erchonia. Such information includes but is not limited to Product designs, methods and processes, know-how, business or marketing strategies, Product plans, plans for research and development, development tools, financial information, production costs and information, and supplier and customer lists and information and medical research conducted in pursuit of intended medical applications of the product.
b. Distributor will not copy, reproduce, disclose, disseminate or provide any confidential information to any third party, without the prior written consent of Erchonia. In addition, Distributor agrees that it will use such confidential information only for the purpose of carrying out its obligations under this agreement. Upon termination of this agreement for any reason, Distributor will return all such confidential information and any copies of it to Erchonia and will remove and delete any such confidential information for any computers, computer systems or other electronic, magnetic or optical media in its possession or control.
c. Notwithstanding the above, the following materials will not be deemed confidential:
i. Information which was in the public domain at the time of disclosure
ii. Information which was published or otherwise became part of the public domain after disclosure to the Distributor through no fault of the Distributor; and
iii. Information which was received from a third party who did not acquire it, directly or indirectly, from Erchonia under an obligation of confidence except where required by law.
8. Protection of Intellectual Property.
a. Ownership of all applicable copyrights, trade secrets, patents and other intellectual property rights in the Products are and shall at all times remain vested in Erchonia, its licensors or assigns.
b. Distributor shall promptly inform Erchonia of any suggested modifications or improvements to the Products and shall, upon Erchonia's request and at Erchonia's expense, execute any documents necessary or appropriate to assign or confirm that all intellectual property rights in any modification
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
or improvement related to the Products are fully vested in Erchonia.
c. Distributor shall not modify nor create or attempt to create, by reverse engineering or otherwise, the Products supplied hereunder, or adapt the Products in any way for other uses without Erchonia's prior written consent
d. Several of the Products may be protected by one or more U.S. or international patents. Distributor shall take reasonable steps to ensure that all patent markings and/or notices for or related to the Products are properly placed on the Products, and on any advertising or marketing materials for the Products, and it shall not remove any such markings, notices or labels from any of the Products or related materials or related advertising or marketing materials.
9. Use of Erchonia Trademarks.
a. All trademarks, including service marks, trade names and trade address that Erchonia uses in connection with the license granted hereunder (the Trademarks) are and remain the exclusive property of Erchonia. Nothing contained in this Agreement shall be deemed to give Distributor any right, title or interest in any Trademark. The Trademarks include but are not limited to: the names Erchonia, Erchonia Medical, the phrase Erchonia, Designs Into the Future, the Erchonia logo, packaging design, and Product design.
b. During the term of this Agreement, Erchonia grants Distributor a non-exclusive, non-transferable license to use the Trademarks for advertising and promotion of Products. Distributor shall use the Trademarks according to quality standards defined by Erchonia which shall be reasonable and shall be no greater than the standards used by Erchonia for its own advertising and promotion.
c. Upon Erchonia's request, the Distributor shall at its expense deliver to Erchonia representative samples of labels, advertisements, catalogs, spec sheets, and the like, containing the Trademarks, and to inspect all of Distributors websites, social media accounts and any online information posted by Distributor, to ensure that such Trademarks are used only in a manner complaint with the quality standards. Should such material fail to meet the standards set by Erchonia, as determined by Erchonia in its sole discretion, Distributor shall not use and shall withdraw and retract any promotion or advertising that Erchonia finds unsuitable and will at its expense destroy such materials or make them compliant.
d. All goodwill associated with such trademark use by Distributor inures to the benefit of Erchonia.
10. Warranty; Limitation of Liability.
a. Distributor Warranty. Distributor represents that it has requisite knowledge and experience to provide the products and services contracted for herein.
b. Erchonia Warranty and Warranty Limitations: Other than the written warranty accompanying the Products, Erchonia DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
c. IN NO EVENT SHALL Erchonia BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE PRODUCTS.
11. Indemnification.
a. Erchonia shall indemnify, defend and hold Distributor harmless from any claims, demands, liabilities or expenses, including reasonable attorneys' fees, incurred by Distributor as a result of any claim or proceeding against Distributor arising out of or based upon: (i) a claim that the Products infringe upon any U.S. patent, trademark, copyright or other intellectual property rights of any third party, (ii) the products fail to comply with applicable federal law or regulation.
b. Distributor shall promptly notify Erchonia of any suit or claim by a third party relating to the Products or use of the Products and Distributor shall promptly furnished Erchonia with a copy of each
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
communication, notice or other action relating to said claim. Erchonia shall have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related to any claim for which Erchonia is obligated to indemnify Distributor at Erchonia expense; and Distributor shall provide reasonable information and assistance requested by Erchonia in connection with such claim or suit.
c. Distributor shall indemnify, defend and hold Erchonia harmless from any claims, demands, liabilities or expenses, including reasonable attorneys' fees, incurred by Erchonia as a result of any claim or proceeding against Erchonia arising out of or based upon (i) the combination, operation or use of the Products with any hardware, products, programs or data not supplied or approved in writing by Erchonia, if such infringement would have been avoided but for such combination, operation or use; (ii) the modification of the Products by Distributor or its Customers; (iii) any breach of this agreement by Distributor; or (iv) any negligent, grossly negligent, or willful or reckless acts by Distributor, or any of its officers, employees, agents or representatives.
12. General Provisions:
a. Assignment. Distributor may not assign to any person any duties or obligations arising under this Agreement without Erchonia's prior written consent (which consent may be withheld in Erchonia's sole discretion). Notwithstanding the foregoing, the Distributor may engage individuals, at the sole expense and responsibility of the Distributor, to assist the Distributor in performing any of the Distributor's duties or obligations arising under this Agreement. Erchonia may not assign any duties or obligations arising under this Agreement, except to a successor who acquires substantially all of the assets of Erchonia.
b. Arbitration. The parties intend to negotiate in good faith and resolve any dispute arising under this Agreement. In the event the parties are unable to resolve any such dispute to binding arbitration for settlement in accordance with the rules of the American Arbitration Association, the arbitrator will determine the manner in which the parties are to pay the costs of such arbitration, including reasonable attorneys' fees
c. Notices. All notices and communications required under this Agreement will be in writing and will be delivered in person, faxed or mailed, postage prepaid, by overnight express carrier, to the address of the parties listed at the beginning of this Agreement, or to any other address as such party designates in a written notice to the other party. All notices sent pursuant to the terms of this section will be deemed received on the date of delivery if personally delivered or faxed, or if sent by overnight express carrier, on the next business day immediately following the day sent
d. Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provisions hereof.
e. Governing Law. This Agreement shall be governed in all respects by the laws of the United States and the State of Florida, except for conflict of laws provisions. The parties agree that for any dispute, controversy or claim arising out of or in connection with this Agreement, venue and personal jurisdiction shall be in the federal or state court with competent jurisdiction located in Brevard Country, Florida.
f. Entire Agreement. This Agreement constitutes and expresses the entire agreement and understanding between the parties hereto with respect to the subject matter, all revisions discussions, promises, representation, and understanding relative thereto, if any, being herein merged.
Dated: .
Erchonia Medical Corporation. By _____________________ Its _____________________
Distributor: ________________________ InnerScope Hearing Technologies, Inc. By _______________________ Its _______________________ Exhibits Exhibit A - Products and Pricing Exhibit B - Territory and Field of Use
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
Exhibit C - Minimum Performance Goals Rev. IMS 8/29/2018 3:38 PM
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
SCHEDULE A ERCHONIA CORPORATION Products and Pricing Erchonia 3LT Laser - Hearing Products Version (product may be renamed) All prices are per unit sold excluding freight, duty, and taxes. Prices will remain in effect for the period of the initial 5 year term. Wholesale Price Item To Be determined when successful research project is complete. The parties agree to cooperate in developing a private label version of the above products on the terms the parties may agree. The private label products shall be versions of the above products labeled and packaged to bear the Distributor's name or the Distributor's trade name. In addition, customized packaging for the private label products may also be developed on the terms agreed to by the parties. Pricing for the private labeled products may be modified due to any increased costs of production or packaging for the private labeled products. In addition, Erchonia may require reasonable minimum purchasing requirements for each run of private labeled products.
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
EXHIBIT B
Licensed Territory
Worldwide
Field of Use
The products will be sold only for the use in the treatment of hearing disorders.
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
Exhibit C
Minimum Performance Goals
Minimum Performance won't be determined until FDA 50k market clearance is obtained. At that time parties will operate in good faith to set performance goals.
Note: Performance goals to begin 120 days after receipt of FDA market clearance.
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
A:
|
IN NO EVENT SHALL Erchonia BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE PRODUCTS.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 4
|
train
|
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
EXHIBIT 99.2
e-business Hosting Agreement 1.0 Introduction This e-business Hosting Agreement (Agreement) between International Business Machines Corporation (IBM) and The Quantum Group Inc., (Customer), sets forth the terms and conditions under which IBM will provide hosting and related services (Services) to Customer. The Agreement includes the terms and conditions and the documents referenced herein (Base Terms) and the following Attachments: Attachment A - Services; Attachment B - Hosting Components; and Attachment C - Charges In the event of a conflict between the Base Terms and an attachment listed herein (Attachment), the Base Terms will prevail, except where an Attachment, or a provision contained therein expressly states that it will prevail over the Base Terms. 2.0 Definitions Acceptable Use Policy means the Acceptable Use Policy for IBM e-business Services, located on the Internet at www.ibm.com/services/e-business/aup.html, as of the Effective Date, and any subsequent modification in accordance with Section 13.2 below. Affiliates means entities that control, are controlled by, or are under common control with a party to this Agreement. Base Components means the hardware and software that IBM makes available, if any, as specified in Attachment B. Bandwidth means the measurement of samples of usage taken every five (5) minutes during a calendar month and collecting two (2) readings (cumulative of inbound feeds and cumulative of outbound feeds at the same measured point in time). The measurements are stored and become data points. At the end of the month, all data points taken during the month are ranked in ascending order. IBM will discard the top five percent (5%) for each set (inbound and outbound) of data points. The highest remaining sample of the two (2) sets becomes the Customer's Committed or Burstable usage number for that billing cycle. Burstable Bandwidth means the bandwidth consumption in excess of the Committed Bandwidth. Committed Bandwidth means the fixed circuit capacity that IBM will make available to Customer for connectivity to the Internet. Customer's data traffic between the e-business Hosting Center and the Internet may not exceed Committed Bandwidth, unless otherwise expressly specified in an Attachment. Content means information, software, and data that Customer provides, including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets or servlets that Customer or its Subcontractors or Services Recipients create, install, upload or transfer in or through the e-business Hosting Environment and/or Customer Components. Content Administrator means an employee or Subcontractor of Customer who is authorized by Customer to install, upload and/or maintain Content using a User Identification. Customer means IBM's Customer to whom the Services are being provided. Customer Components means the hardware, software and other products, data and Content that Customer provides, including those specified in Attachment B. Customer Initiated Changes means patches or changes to the environment dictated to be installed by Customer, and installed by either Customer or by IBM. Customer Production Ready Date or CPRD means the date (following the Hosting Service Ready Date) that the following items have been completed: (1) Customer has notified IBM that Customer has completed application testing and loading of Customer Content, and (2) IBM has notified Customer that monitoring and reporting have been enabled and end users may now begin using the Services. Commencing on the Customer Production Ready Date, Customer will not have administrative access for fully managed devices, unless specifically requested for a limited period of time mutually agreed between the parties, using the established change management procedures.
Page 1 of 36
Direct Access Storage or DAS means data storage devices that are directly attached to a server.
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Direct Access Storage or DAS means data storage devices that are directly attached to a server. e-business Hosting Environment means the Base Components and the IBM provided Internet access bandwidth, collectively. Hosting Service Ready Date means a date when IBM notifies Customer that Services are available for Customer use and IBM installation responsibilities have been completed for such Services. Services may be initiated in stages and monthly recurring charges will begin for any portion of Services specified in such notification. e-business Hosting Center means a facility used by IBM to provide Services. Internet means the public worldwide network of TCP/IP-based networks. Local Storage has the same definition as Direct Access Storage Logical Unit Number or LUN means the individual component in the SAN storage system that may be accessed. Each disk or disk partition in a SAN storage system array has a LUN assigned to it. Managed Application Service means a service provided by IBM that includes the Services defined in Attachment A as Managed Application Services. Managed Application Solution means a Customer's application hosting environment consisting of network, storage and server devices and includes Managed Application Services for all of the devices. A Managed Application Solution cannot contain any Managed Devices that do not also include Managed Applications Services in order to qualify for a Service Level Agreement as defined in Attachment A. Managed NAS Storage - Dedicated Environment means a physical NAS Storage controller and associated disks, provisioned by IBM or Customer that is dedicated to a Customer and managed by IBM. Managed NAS Storage - Shared Environment means a physical NAS Storage controller and associated disks, provisioned by IBM, that is shared between customers and managed by IBM. Resources are allocated by IBM based on requirements from the Customer and these resources are dedicated for the Customer's use. Managed SAN Storage - Dedicated Environment means a physical SAN Storage controller and associated disks that is dedicated to Customer (not shared with other IBM customers) and managed by IBM. Resources are allocated by IBM based on requirements from the Customer. Managed SAN Storage - Shared Environment means a physical SAN Storage controller and associated disks that is shared between two or more IBM customers and managed by IBM. Resources are allocated by IBM based on requirements from the Customer. Managed Server means a physical or Virtual Server Base Component for which IBM is providing setup, configuration, administration and management Services. Materials means literary or other works of authorship (such as programs, program listings, programming tools, documentation, reports, drawings and similar works) that IBM may deliver to Customer as part of Services. Materials does not include licensed program products available under their own license agreements or Base Components. Middleware means any programming that serves to glue together or mediate between two separate and often already existing programs. A common application of middleware is to allow programs written for access to a particular database to access other databases. The systematic tying together of disparate applications, often through the use of middleware, is known as Application Integration. Network Interface Card (NIC) means a computer circuit board or card that is installed in a computer so that it can be connected to a network. Operational Assistance means the additional operational and physical assistance Services provided by IBM. Operational Events means the activities related to physical operations of an unmanaged Customer environment. These activities can include: Device reboot or restart Changing a tape Changing a CD or a disk floppy Preparing tapes for sending them offsite Vendor management for hardware repair or replacement
Page 2 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Other types of events with the prior approval of the IBM PM Operating System or OS means the master control program (for example, Windows or AIX) that manages a computer's internal functions and provides a means of control to the computer's operations and file system. OS Image means the initial binary image that a boot loader loads into memory and transfers control to start an operating system. The OS image is typically an executable containing the operating system kernel. OS Instance means an occurrence of the OS Image. Ping means a utility to determine whether a specific IP address is accessible. Required Consents means any consents or approvals required to give IBM and its Subcontractors the right or license to access, use and/or modify in electronic form and in other forms, including derivative works, the Customer Components, without infringing the ownership or intellectual property rights of the providers, licensors, or owners of such Customer Components. Services Recipients means any entities or individuals receiving or using the Services, or the results or products of the Services. SmartHands means the additional systems administrative and technical, physical and logical assistance Services provided by IBM. mm. System Administration means day-to-day routine tasks performed in a production environment by a system administrator. This does not include, re-carving storage sub-systems, re-building enterprise class systems, major upgrades to the environment, major security services, database administration, application development, systems integration or extensive performance tuning responsibilities. Storage Area Network or SAN means the storage area network environment consisting of a storage area network fabric composed of storage area network switches, Host Bus Adapters and cables and a storage area network storage controller and associated disks. System Images means the files related to the OS and applications, but excluding Customer data files. Subcontractor means a contractor, vendor, agent, or consultant selected and retained by IBM or Customer, respectively. TCP/IP means Transmission Control Protocol/Internet Protocol. Time and Materials (T&M) means the additional operational, systems administrative and technical, physical and logical assistance Services provided by IBM that are not included with the services set forth in Attachment A - Services User Identification or User ID means a string of characters that uniquely identifies a Content Administrator. Virtual Local Area Network (VLAN) means a logical grouping of two or more devices which are not necessarily on the same physical network segment, but which share the same network segment. Virtual Private Network (VPN) means a private network that uses a public network (usually the Internet) to connect remote sites or users together. Virtual Server means an instance of a fully functional server residing with other instances on a physical server and isolated from other instances via virtualization software (such as VMWare) and shares the resources of the physical server. The virtualization software provides resource management for all of the instances. 3.0 IBM Services Responsibilities IBM will perform the Services described in Attachment A and other applicable Attachments. IBM Contact IBM will designate an individual to whom Customer will address communications specific to the provision of the Services provided under this Agreement (IBM Contact). 4.0 Term and Termination Term This Agreement will be effective beginning on 12:01 a.m., Eastern Time, on the day after the date of last signature to these Base Terms (Effective Date). This Agreement will remain in effect for Thirty-six (36)
Page 3 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
months following the Hosting Service Ready Date (Term), unless terminated earlier in accordance with the terms herein. Termination for Cause Customer or IBM may terminate this Agreement for material breach of this Agreement by the other upon written notice containing the specific nature and dates of the material breach. The breaching party will have thirty (30) days from receipt of notice to cure such breach, except for nonpayment by Customer, which must be cured within five (5) days from receipt of notice. If such breach has not been timely cured, then the non-breaching party may immediately terminate this Agreement upon written notice. Termination for Convenience Customer may terminate this Agreement, or any portion of Services specified herein, for convenience by: providing at least sixty (60) days prior written notice to IBM; and paying the applicable early termination charges specified in Attachment C. Effect of Termination Upon the date of termination, all Customer payment obligations accrued hereunder through the date of termination will become due and payable. 5.0 Charges and Payment Charges Customer will pay to IBM all applicable charges specified in Attachment C. Charges may be specified as one-time, recurring, or usage. IBM will invoice such charges when they begin or are due as set forth in Attachment C. Payment IBM invoices will specify the amount due. Payment is due and payable by month end for any invoice received by the 10th of the month, otherwise payment is due thirty (30) days from receipt of invoice. Customer agrees to pay accordingly, including any late payment fees. Payment will be made in United States dollars. Taxes Customer will pay or provide appropriate exemption documentation for all taxes, duties, levies, and any other fees (except for taxes based upon IBM's net income) related to the Services imposed by any governmental authorities. Charges specified herein are exclusive of any such taxes, duties, levies or fees. 6.0 Warranties and Disclaimers IBM Representations and Warranties IBM represents and warrants that: it will perform the Services using reasonable care and skill and in accordance with this Agreement; and it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. Exclusivity of Warranties THE WARRANTIES IN SECTION 6.1 ARE THE EXCLUSIVE WARRANTIES FROM IBM. THEY REPLACE ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Security Customer acknowledges that IBM offers numerous security options, and it is Customer's responsibility to select the set of security options that it determines meet Customer's needs. IBM will implement the security options specified herein. Customer acknowledges that IBM does not control the transfer of data over telecommunications facilities, including the Internet. IBM does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of the e-business Hosting Environment or Customer Components. Customer agrees that IBM shall have no liability for any provision of security-related services or advice that IBM may voluntarily provide outside the scope of Services specified herein.
Page 4 of 36
Other Disclaimers
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Other Disclaimers IBM does not warrant uninterrupted or error-free operation of any Service or that IBM will correct all defects. IBM does not make any representation or warranty with respect to Customer's responsibilities set forth in Section 11.6. IBM provides Materials, non-IBM products, and non-IBM services WITHOUT WARRANTIES OF ANY KIND. However, non-IBM manufacturers, suppliers, or publishers may provide their own warranties to you. IBM does not operate as a provider of services regulated by the Federal Communications Commission (FCC) or state regulatory authorities (State Regulators), and does not intend to provide any services which are regulated by the FCC or State Regulators. If the FCC or any State Regulator imposes regulatory requirements or obligations on any Services provided by IBM hereunder, IBM may change the way in which such Services are provided to Customer to avoid the application of such requirements or obligations to IBM (e.g., by acting as Customer's agent for acquiring such Services from a third party common carrier). 7.0 Confidentiality All information exchanged between the parties is non-confidential. If either or both parties require the exchange of confidential information, such information will be exchanged under the terms and conditions of a separate written confidentiality agreement. With respect to any confidential information contained in or traveling through the e-business Hosting Environment or Customer Components, as is contemplated herein, the provisions of Sections 6, 9, and 10 herein will prevail to the extent of any inconsistent provisions in the confidentiality agreement. 8.0 Indemnification Indemnification by IBM If a third party claims that Materials or Base Components IBM provides to Customer infringe that party's patent or copyright, IBM will defend the Customer and its employees, officers, and directors against that claim at IBM's expense and pay all costs, damages, and reasonable attorneys' fees that a court finally awards (or which IBM agrees in any final settlement), provided that Customer: promptly notifies IBM in writing of the claim; and allows IBM to control, and cooperates with IBM in, the defense and any related settlement negotiations. If such a claim is made or appears likely to be made, Customer agrees to permit IBM to enable Customer to continue to use the Materials or Base Components, or to modify them, or replace them with non-infringing Materials or Base Components that are at least functionally equivalent. If IBM determines that none of these alternatives is reasonably available, Customer agrees to return the Materials or Base Components (if in Customer's possession) to IBM on IBM's written request. IBM will give Customer a credit equal to the amount Customer paid IBM for the applicable Materials or for use of the applicable Base Components up to a maximum of twelve (12) months of applicable charges. This is IBM's entire obligation to Customer with regard to any claim of infringement. Notwithstanding the foregoing, IBM is not responsible for third party claims based on: anything Customer provides which is incorporated into the Materials; Customer's modification of the Materials; the combination, operation, or use of the Materials with any product, data, or apparatus that IBM did not provide; or non-IBM hardware, software, or data, including those that may be in the Base Components. Indemnification by Customer Customer will defend IBM and its Affiliates and their employees, officers, and directors, at Customer's expense, and pay all costs, damages, and reasonable attorneys' fees that a court finally awards (or which Customer agrees in any final settlement) for any third party claim: that Content or Customer's use of the Services violates a Customer's obligation in Sections 11.3(b) or 11.5 (b); that Customer Components infringe that party's patent or copyright; that is brought by a Services Recipient and is related, directly or indirectly, to the Services; or
Page 5 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
arising out of or related to a mechanics' lien Customer is required to cancel and discharge pursuant to this Agreement. For indemnification under this Section 8.2, IBM will: promptly notify Customer in writing of the claim; and allow Customer to control, and will cooperate with Customer in, the defense and any related settlement negotiations. 9.0 Limitation of IBM's Liability Circumstances may arise where, because of a default on IBM's part or other liability, Customer is entitled to recover damages from IBM. Regardless of the basis on which Customer is entitled to claim damages from IBM (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM is liable for no more than: indemnification payments as provided in Section 8.1; damages for bodily injury (including death) and damage to real property and tangible personal property; and the amount of any other actual direct damages, up to the greater of $100,000 or the charges paid by Customer to IBM for the Services in the twelve (12) months immediately preceding the accrual of the first claim related to the Services. The foregoing limit also applies to any of IBM's Affiliates and Subcontractors. It is the cumulative maximum for which IBM and its Affiliates and Subcontractors are collectively responsible. Under no circumstances is IBM, its Affiliates or its Subcontractors liable for any of the following: third party claims against Customer for damages (other than those expressly provided in Subsections 9.0(a) and 9.0(b)); or loss of, or damage to, Customer's or any other entity's records or data. 10.0 Disclaimer of Consequential Damages In no event will either party be liable to the other for special, incidental, or indirect damages or for any consequential damages (including lost profits or savings), even if they are informed of the possibility; provided that this Section 10.0 does not apply to Customer's failure to pay any amounts owing to IBM under this Agreement (including amounts owing for Services that would have been rendered but for Customer's breach of this Agreement). 11.0 Other Customer Obligations Customer Contact Customer will designate an individual to whom all of IBM's communications will be addressed and who has the authority to act and make decisions for Customer in all aspects of the Services, including requesting changes, problem resolution, Service requests, assignment of Customer focal points with authority over specific Services, and designation of Customer Authorized Representatives (Customer Contact). Services Support Customer will comply with its responsibilities to support the Services as specified in applicable Attachments. Such obligations are to be performed at no charge to IBM. IBM's obligations are contingent on Customer meeting such support obligations. Representations and Warranties Customer represents and warrants that: it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; Customer has no contractual or other obligation that (i) restricts or prohibits Customer's execution or performance of this Agreement, or (ii) Customer will breach in connection with the execution or performance of this Agreement; and its use of the Services and all Content will comply with the Acceptable Use Policy. Suspected Violations IBM reserves the right to investigate potential violations of the representations and warranties in Subsection 11.3(b). If IBM reasonably determines that a breach of any such warranty has occurred, then IBM may, in its sole discretion: restrict Customer's access to the Services;
Page 6 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
remove or require removal of any offending Content; terminate this Agreement for cause; and/or exercise other rights and remedies, at law or in equity. Except in an emergency or as may otherwise be required by law, before undertaking the activities in Subsection 11.4(a) or 11.4(b), IBM will attempt to notify Customer by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Customer will promptly notify IBM of any event or circumstance related to this Agreement, Customer's use of the Services, or Content of which Customer becomes aware that could lead to a claim or demand against IBM and Customer will provide all relevant information relating to such event or circumstance to IBM at IBM's request. Customer Components Customer (or its Affiliates or third parties) retains all right, title, and interest or license in and to the Customer Components. Customer hereby grants to IBM, its Affiliates and Subcontractors all rights and licenses to, or agrees to promptly obtain and keep in effect Required Consents for all Customer Components, necessary for IBM to perform all of its obligations as set forth in this Agreement. Upon request, Customer will provide to IBM evidence of any such rights, licenses, or Required Consents. IBM will be relieved of its obligations to the extent that they are affected by Customer's failure to promptly obtain and provide to IBM any such rights, licenses, or Required Consents. IBM will adhere to reasonable terms and conditions pertaining to Customer Components as notified in writing to IBM. IBM agrees not to remove or alter any copyright or other proprietary notice on or in any Customer Component without Customer's consent. Capacity Planning Customer acknowledges it is its responsibility to determine whether the Services, e-business Hosting Environment, Customer Components and their combination will meet Customer's capacity, performance, or scalability needs. Customer is responsible for planning for and requesting changes to the e-business Hosting Environment, including any additional capacity required to support anticipated peaks in demand that may significantly increase web site hits, transaction volumes, or otherwise increase system resource utilization. Content Customer is solely responsible for: all Content including, without limitation, its selection, creation, encryption, transmission, transfer, design, licensing, installation, accuracy, maintenance, testing, backup and support; all copyright, patent and trademark clearances in all applicable jurisdictions and usage agreements for any and all Content; the selection and implementation of controls on the access and use of Content; and the selection, management, separate storage of keys, and use of any public and private keys and digital certificates it may use with the Services. 12.0 Other License and Rights License for Base Components IBM (or its Affiliates or subcontractors) retains all right, title, and interest in Base Components. IBM grants Customer a nonexclusive, nontransferable, revocable license to access and use the Base Components solely in connection with the Services as provided under this Agreement. Customer agrees not to download or otherwise copy, reverse assemble, reverse compile, decompile, or otherwise translate the software portions of the Base Components, other than to make one copy for backup purposes. If IBM provides as a Base Component a Microsoft Corporation product, the terms and conditions of the Microsoft Customer License Terms will also apply for such products. Such Terms are located on the Internet at http://www.ibm.com/services/e-business/hosting/microsoftlicense.html. Customer agrees not to remove or alter any copyright or other proprietary notice on or in any Base Component without IBM's consent.
Page 7 of 36
No Sale or Lease of Goods
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
No Sale or Lease of Goods As between Customer and IBM, IBM retains all right, title and interest in the Base Components. No goods are sold or leased by IBM under this Agreement. If Customer desires to purchase or lease goods from IBM, such purchase or lease will be governed by a separate mutually acceptable written agreement between Customer and IBM or an IBM Affiliate. No Lease of Real Property This Agreement is a services agreement and not a lease of any real property. 13.0 Changes Service Description IBM, in its reasonable discretion, may change the terms and conditions of Attachment A upon at least ninety (90) days prior notice to Customer if such change was the result of: law, regulation, or similar governmental action; a ruling by a court of competent jurisdiction; or changes in the method of service delivery that affect similar IBM e-business hosting customers. Changes as a result of a, b, or c above will be effective on the date IBM specifies in the notice. Acceptable Use Policy IBM, in its reasonable discretion, may modify the Acceptable Use Policy upon thirty (30) days' prior notice to Customer. If such modification has a material adverse effect on the Customer's use of the Services and provided such modification is not required by law, regulation, or similar governmental action, or a ruling by a court of competent jurisdiction, Customer's sole remedy is to terminate this Agreement without the payment of termination charges provided Customer gives IBM notice of its intent to terminate within ninety (90) days of the effective date of such modification. Project Change Control Procedure This Agreement may be amended only by a writing signed by authorized representatives of both parties. Requests for such amendment (Project Change Request or PCR) should be submitted in writing by the requesting party. The PCR should reference this Agreement, describe in a reasonable level of detail the proposed change, the rationale for the change, and the impact the proposed change may have on the Agreement. The parties will review the PCR and will do one of the following: authorize the change by signing the PCR; agree in writing to submit the PCR for further investigation. In such case, Customer agrees to pay IBM for its reasonable charges, if any, for such investigation. The investigation will determine the technical merits and the effect on the charges, schedule, and other terms and conditions that may result from the implementation of the PCR. The parties will then decide either to accept or to reject the PCR; or reject the PCR. If the PCR is rejected, the rejecting party will inform the requesting party of the reason for the rejection. A mutually signed PCR will be deemed an amendment to this Agreement. Any modification of this Agreement requested by Customer as a result of laws applicable to Customer will be considered a PCR covered by this Subsection. Until a change is agreed in writing, both parties will continue to act in accordance with the latest agreed version of the Agreement. 14.0 General Headings The headings of the various sections of this Agreement have been inserted for convenience only and shall not affect the interpretation of this Agreement. Survival Any of these terms and conditions which by their nature extend beyond the Agreement termination or expiration remain in effect until fulfilled, including, without limitation, Sections 4.4, 5, 6, 7, 8, 9, 10, 11.3, 11.4, 11.7, 12.2, 12.3, and 14, and apply to both Customer's and IBM's respective successors and assignees.
Page 8 of 36
Choice of Law
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Choice of Law This Agreement will be governed by the substantive laws of the State of New York, without regard for its conflict of laws provisions. Waiver of Jury Trial The parties waive any right to a jury trial in any proceeding arising out of or related to this Agreement. Severability If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall in no way be affected or impaired thereby, so long as the remaining provisions of this Agreement still express the original intent of the parties. If the original intent of the parties can not be preserved, this Agreement shall either be renegotiated or terminated. Publicity and Trademarks Neither party grants the other the right to use its or any of its Affiliates' trademarks, trade names, or other designations in any promotion, publication, or Web site without prior written consent. Except as may be required by law or as may be required by IBM to perform the Services, neither party may disclose to any third party the terms and conditions of this Agreement, without prior written consent. No Third-Party Beneficiaries Except as expressly provided in Section 8, this Agreement does not create any intended third party beneficiary rights. Personnel Each party is responsible for the supervision, direction, and control of its respective personnel. IBM reserves the right to determine the assignment of its personnel. IBM may subcontract portions of the Services to Subcontractors and Affiliates selected by IBM. No Agency This Agreement does not create an agency, joint venture, or partnership between the parties. Assignment Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other. Any attempt to do so is void. Neither party will unreasonably withhold such consent. The assignment of this Agreement, in whole or in part, to any Affiliates in the United States or to a successor organization by merger or acquisition does not require the consent of the other. IBM is also permitted to assign its rights to payments under this Agreement without obtaining Customer's consent. It is not considered an assignment for IBM to divest a portion of its business in a manner that similarly affects all of its customers. No Resale Customer shall not resell the Services, in whole or in part. This does not prevent Customer from making their Content available to Customer's end users. Risk of Loss Risk of loss for all Base Components shall at all times remain with IBM. Risk of loss for all Customer Components shall at all times remain with Customer. Force Majeure Except for payment obligations hereunder, neither party is responsible to fulfill its obligations to the extent due to causes beyond its control. Actions Period Neither party will bring a legal action related to this Agreement more than two years after the cause of action accrued.
Page 9 of 36
Waiver
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Waiver The failure of one party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver, nor shall it deprive that party of the right to insist later on adherence thereto. Any waiver must be in writing and signed by an authorized representative of the waiving party. Freedom of Action Each party is free to enter into similar agreements with others. Limitation of Licenses Each of us grants only the licenses or rights expressly specified herein. No other licenses or rights (including licenses or rights under patents) are granted, either directly, by implication, estoppel, or otherwise. Materials For Materials that IBM delivers to Customer that are created during the performance of Services or otherwise (such as those that preexist the Services), IBM or third parties have all right, title, and interest (including ownership of copyright). IBM will deliver one copy of the Materials to Customer. IBM grants Customer an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, and perform copies of such Materials and distribute within Customer's Affiliates only. Customer agrees to reproduce the copyright notice and any other legend of ownership on any copies made. Business Contact Information Customer agrees to allow IBM and its Affiliates to store and use Customer's business contact information, including names, business phone numbers, and business e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors acting on IBM's behalf, IBM business partners who promote, market, and support certain IBM products and services, and assignees of IBM and it's Affiliates for uses consistent with our business relationship. Data Protection For personal information processed by IBM on Customer's behalf as part of the Services, IBM will act in accordance with Customer's instructions by following such processing and security obligations as are contained in this Agreement. Customer also confirms that Customer is solely responsible for ensuring that any processing and security obligations comply with applicable data protection laws. Customer's contact information shall not be considered personal information processed on Customer's behalf. Geographic Scope The parties agree that while Services Recipients outside of the United States of America may access the Services, Customer's rights and IBM's obligations arising out of the Agreement are valid only in the United States of America. Notices Any notices required or permitted hereunder will be effective upon receipt and will be personally delivered; mailed via the postal service; sent by reliable overnight courier; or transmitted by confirmed facsimile. Except for notices under Section 11.4, all notices will be in writing and addressed to the applicable party's designated representative at the address specified in this Agreement. Except as to notices permitted or required under Sections 4 or 8, the parties agree that electronic mail messages sent between them using security procedures sufficient to reasonably authenticate them will be deemed writings. In addition, IBM may provide notice under Section 13.2 by a posting to the Web site identified in Section 2.0 (a).
Page 10 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
___________________________________________________________________________________ In entering into this Agreement, Customer is not relying upon any representation made by or on behalf of IBM that is not specified in the Agreement, including without limitation, the charges to be paid or the results of any of the Services to be provided under this Agreement. By signing below, Customer and IBM agree that this Agreement, including these Base Terms and Attachments, is the complete agreement between the parties relating to this subject matter. Once signed, 1) any reproduction of this Agreement or an Attachment made by reliable means (for example, photocopy or facsimile) is considered an original and 2) all Services ordered under this Agreement are subject to it.
After signing, please return a copy of this Agreement to the IBM or partner sales representative listed above.
Page 11 of 36
Attachment A - Services
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Attachment A - Services 1.0 Description IBM will provide a hosting infrastructure and related services in an e-business Hosting Center as described herein (Managed Hosting Services). IBM shall have sole root access (privileged access with authority to perform system-level functions or security administration) for all Base Components, except for partially managed servers (Partially Managed Servers) specified in Attachment B. IBM's scheduled maintenance hours for the e-business Hosting Center are each Sunday between 3:00 a.m. and 6:00 a.m. local time. Managed Hosting Services may not be available during this time. IBM reserves the right to interrupt Managed Hosting Services to perform emergency maintenance as needed. In any such circumstances, IBM will use commercially reasonable measures to notify Customer. Scheduled maintenance hours may change upon notice. 2.0 Base Component Software IBM will provide the following Base Component software: Base Component software selected by IBM for server monitoring and management; Base Component software selected by IBM for antivirus scanning of Windows 2003 servers; Base Component software selected by IBM to enable backup and restoration Services; and Base Component software specified in Attachment B. Upon expiration or termination of this Attachment, Customer will certify in writing to IBM that all use of software Base Components by Customer has ceased and that Customer has retained no copy of such software. 3.0 Customer Components Customer will provide Customer Components identified in Attachment B, subject to the following provisions: the provision for and expense of installation and maintenance for Customer Components is the responsibility of Customer. Upon Customer's request, IBM will schedule maintenance, notify Customer of the schedule, provide access to the e-business Hosting Center for Customer's authorized maintenance vendors as required, and escort authorized maintenance personnel while on premises at an e- business Hosting Center; Customer is responsible for obtaining and maintaining personal property insurance sufficient to cover the value of Customer Components; Customer is responsible for any shipping or temporary storage costs incurred during the delivery of Customer Components to the e- business Hosting Center or removal of Customer Components from the e-business Hosting Center, unless otherwise expressly set forth in an Attachment; Customer is responsible for authorizing its Content Administrators to access and modify Content by providing User Identifications to such Content Administrators and for the control and distribution of User Identifications and any misuse of such User Identifications; and on or before five (5) days following expiration or termination of this Attachment, Customer will erase Customer Components from any servers and disk space that IBM provides as Base Components. On or before fifteen (15) days following expiration or termination of this Attachment, Customer will remove all Customer Components and any other Customer property from the e-business Hosting Center (excluding any Base Components and other IBM property). If Customer does not remove or erase Customer Components and its other property within such periods, IBM has the option to: move any and all Customer Components and other Customer property to storage and charge Customer all associated costs; liquidate Customer Components and other Customer property in any reasonable manner and charge Customer all associated costs; and erase all Customer Components from servers and disk space that IBM provides as Base Components. 4.0 Services Provided by IBM IP Address Services IBM will provide the number of registered primary IP addresses specified in Attachment B.
Page 12 of 36
Transition Management
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Transition Management IBM will assign a transition manager to manage and oversee the installation and integration of Base and/or Customer Components specified in Attachment B and prepare for ongoing operation. The project manager will: participate in a pre-boarding call with Customer to review Customer's hosting environment and identify information needed for installation; report installation status to Customer; schedule and conduct a boarding call with Customer to confirm that installation of Customer's hosting environment is complete and that it is ready for use (Hosting Service Ready Date); and be available to assist Customer with questions and issues during normal business hours for the e-business Hosting Center (Monday through Friday, 8:00 a.m. - 6:00 p.m., excluding national holidays). Steady State Support IBM will assign a project manager who will be a single point of contact during the ongoing provision of Services to assist Customer with implementation of additional Services and resolution of problems. The account support representative will: notify Customer of planned or emergency e-business Hosting Center maintenance; assist with change requests; and be available to assist Customer with questions and issues during normal business hours for the e-business Hosting Center (Monday through Friday, 8:00 a.m. - 6:00 p.m., excluding national holidays). Management Segment IBM will provide a local area network connection that will enable IBM to manage Base and/or Customer Components and provide other Services at the e-business Hosting Center. IBM will implement a VLAN and any routing and switching configuration within the IBM hosting infrastructure that is needed to support a management segment. 4.4.1 Backup Segment IBM will provide a Gigabit local area network connection that will enable IBM to manage the backup of the System Images and will also provide a SAN connection to manage the backup of Customer data. IBM will implement a Backup VLAN and any routing and switching configuration within the IBM hosting infrastructure that is needed to support a backup segment. Internet Connectivity IBM will provide a primary connection between the e-business Hosting Center and the Internet with Internet Committed Bandwidth in increments of one (1) Mbps as selected by Customer and specified in Attachment B. Customer will provision and manage all SSL certificates. IBM will assign private IP addresses for Customer's servers at the e-business Hosting Center. Customer is responsible for working with IBM during the technical discovery phase to ensure that these IP addresses do not pose any conflicts with Customer's existing IP addressing schema. During the term IBM shall not change the public IP address(s) assigned to the Customer without the Customer's prior written consent. Customer's data traffic between the IBM e-business Hosting Center and the Internet may exceed Committed Bandwidth, if capacity is available from the IBM e-business Hosting Center network infrastructure. Each calendar month, IBM will measure Customer's actual bandwidth usage by sampling the inbound and outbound data traffic volume between the IBM e-business Hosting Center and the Internet every five (5) minutes. At the end of the month, IBM will discard the five percent (5%) of the samples with the highest data traffic volume. Customer's Peak Bandwidth Usage for that month is the remaining sample with the highest data traffic volume. If Customer's Peak Bandwidth Usage for the month exceeds Committed Bandwidth, Customer will incur a Peak Bandwidth Usage charge, for the amount of usage that exceeds Committed Bandwidth, at the rate specified in Attachment C. In addition, IBM will provide access to bandwidth utilization reports through a Customer accessible web portal.
Page 13 of 36
Managed Switch, Firewall and Load Balancing
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Managed Switch, Firewall and Load Balancing IBM will provide the installation and ongoing management of switch, firewall and Load balancing components specified in Attachment B. IBM will: Install the switch and firewall components defined in Attachment B, implement switch and firewall settings requested by Customer, and test one (1) path to each Network Interface Card (including secondary) in each component; Operate and provide support for all switch and firewall components requested in the Attachment B and monitor their availability 7x24 every day of the year; Provide on-call technical support 7x24 every day of the year for switch and firewall components that may include: Assistance with problem determination; Reboot/power-on of failed switch and firewall components and provide Customer notification; and Implementation of changes to switch and firewall settings requested by Customer. Back up of Customer-requested switch and firewall settings and the restoration of settings in the event of a failure; Provide Customer daily status of firewalls via a Customer accessible IBM web portal; Provide Customer daily status of their network via the Customer accessible IBM web portal; IBM will assign private IP addresses in the range of 10.200.x.x for the private network for component servers at the Hosting Facility. Customer is responsible for working with IBM during the technical due diligence period to ensure that these IP addresses do not pose any conflicts with Customer's existing IP addressing schema; In case of a conflict, Customer will provide network address translation (NATing) for the IP addresses in conflict; and The IPSec tunnels for the VPNs will be based on IPSEC 3-DES technology. Support the following load balancing techniques. The actual technique to be used for Customer will be determined during implementation and documented in the operations run book maintained by IBM. Round Robin (default load balancing technique) Connections are distributed evenly across all members in the pool. Ratio Member - Connections are sent to a member with a high ratio number more often than a member with a lower ratio number. Node Address - The total number of connections sent to a member in the pool is determined by the weight number you assign the node address. Least Connections Member - Connections are sent to the member with the least active connections. Node Address - Connections are sent to the node serving the least amount of connections. Observed 10. Member - Connections are sent to a member based on a combination of the number of current connections and the response time of the member. The Load Balancer analyzes the performance of the member over time and sends connections to the member based on the trend. 11. Node Address - Connections are sent to a node based on a combination of thenumber of current connections and the response time of the node. The Load Balancer analyzes the performance of the nodes over time and sends connections to the node based on the trend. 12. Predictive 13. Member - Connections are sent to a member based on a combination of the number of current connections and the response time of the member over time. 14. Node Address - Connections are sent to a node based on a combination of the number of current connections and the response time of the node over time. 15. Fastest Node Address - Connections are sent to the node that responds most quickly.
Page 14 of 36
Security Management
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Security Management The security management specified in this section are included as part of the switch & firewall Services specified above. IBM will: be responsible for day-to-day logical security management for the firewall(s), switches and servers dedicated to Customer's e-business Hosting Environment; assist in logically connecting (at OSI Layer 3) Customer networks to the IBM managed networks only when the connection is specifically identified and agreed to in advance by both parties in writing; implement and administer technical and procedural controls to prevent unauthorized, logical access; report incidents of security breach or suspected security breach to Customer; replace software vendor-supplied default password settings with unique secure passwords; implement network intrusion detection/event logging mechanisms; host based intrusion for an additional fee, if requested by Customer; perform regular vulnerability scans of installed Base Component software for: known/reported component vulnerabilities available security patches/fixes; includes firewall and all IP enabled devices in the network both inside as well as outside the firewall; scan external connections to the customer's environment; scan the internal connections to the customer's servers; scan the connection to the Supplier management and backup segments; update list of common vulnerability signatures weekly; update list of security patches by device and OS weekly; perform weekly scans of all IP enabled devices; 10. post weekly exception reports to the customer accessible web portal; 11. recommend corrective action; 12. notify Customer of all critical vulnerability discovered during the scan; 13. notify Customer of all repeat vulnerability that have not been corrected or acknowledged by the Customer; 14. Outages caused by Customer not approving Supplier recommended vulnerability fixes will not be eligible for SLAs. 15. Known/reported component vulnerabilities; and 16. Install available security patches/fixes at the earliest opportunity afforded by the change control process; install available security patches/fixes using the change control process, as approved by the Customer in writing; establish rules for password selection and control, for example: passwords must be robust and not incremental, easily discerned, and changed on regular intervals such as 90 days; user ids / passwords should be disabled after a predefined number of unsuccessful access attempts or after a period of prolonged inactivity; if supported by the operating system/applications, the software should enforce password syntax and change interval; define and implement clear procedures for detecting, recording and reporting security incidents and issues. Fully Managed Servers IBM will provide installation and ongoing management of server Base and/or Customer Components specified (as Fully Managed Servers) in Attachment B, 24x7 everyday of the year. Following installation and prior to IBM beginning ongoing management, Customer may request root access for a limited period of time, solely for the purpose of loading and configuring Customer Content. It is required that the Customer
Page 15 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
will not modify or change any of the administrative areas (for example, UNIX /, /etc, /bin, /usr/sbin, or /var) without written consent from IBM. IBM will not begin ongoing server management until Customer returns sole root access to IBM and IBM verifies that the environment is stable and supportable. IBM will: Install the Managed Servers requested in a Attachment B including infrastructure related software object modules consisting of a predefined combination of operating system, applicable fixes, selected security / virus patches for Windows based systems, management tools and agents; Test network connectivity paths to server components requested in a Attachment B; Perform the operations events and predefined actions for Managed Servers requested in a Attachment B; Provide technical support, including problem determination, for the device hardware and OS. IBM will install agents to monitor and report on only the following: Network Interface Up/Down Physical Memory Utilization Processor Utilization - Overall Disk Space Utilization OS services and/or daemons Provide routine Server Administration for the Managed Servers requested in the applicable Attachment A; Perform one (1) weekly full and six (6) daily incremental backups of System Images during the Scheduled Maintenance window unless otherwise set forth in the applicable Attachment A. The System Images will capture the information necessary to be able to perform a successful single step bare metal restore. Provide retention in the IBM library for weekly full backup of System Images for a period of fourteen (14) calendar days unless otherwise set forth in the applicable Attachment B; Restore System Images at no additional charge up to two (2) times per month per Managed Server per Customer. This excludes bare metal restores. Bare metal restores may be performed for an additional charge using SmartHands rates. Provide offsite storage for weekly backup of System Images. Such backups shall be sent offsite once a week and be retained offsite for a period of twenty-eight (28) calendar days unless otherwise set forth in the applicable Attachment B; Provide daily status of the state of the Customer environment using a Customer accessible IBM web portal; Provide details and a monthly summary of the thresholds being monitored using a Customer accessible IBM web portal; Provide details and a monthly summary of the utilization of Managed Server components such as CPU, memory and disk. Reports will be provided using the Customer accessible IBM web portal; Provide details of trouble tickets and their status and action taken to resolve the trouble ticket using a Customer accessible IBM web portal; Identify maintenance releases for supported O/S technologies outlined in Attachment D (Supported Technologies) and provide assessment and notification to Customer; Apply OS maintenance releases that are approved by IBM; Identify security patches/hotfixes for supported O/S technologies outlined in Attachment D (Supported Technologies) and, for critical patches, provide assessment and notification to Customer and the IBM PE and IBM PM within seventy-two (72) hours of release from vendor; Apply patches to the OS that are approved by IBM or Customer; and Provide device availability statistics for Managed Servers using a Customer accessible IBM web portal. In addition, the following will apply for Managed Servers: When IBM owns administrative rights, then following installation and prior to IBM beginning ongoing management, Customer may request root access for a limited period of time, solely for the purpose of loading and configuring Customer Content. It is required that the Customer will not modify or change any of the administrative rights (e.g. Linux /, /etc, /bin, /usr/sbin, /var, etc; Microsoft Local Administrator Accounts/Groups, user right assignments, System File/Directory permissions, etc) without written
Page 16 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
consent from IBM. IBM will not begin ongoing server management until Customer returns sole root access to IBM and IBM verifies that the environment is stable and supportable. When IBM owns administrative rights, Customer may request temporary administrative rights in writing during ongoing management. It is required that the Customer will not modify or change any of the administrative rights (e.g. Linux /, /etc, /bin, /usr/sbin, /var, etc; Microsoft Local Administrator Accounts/Groups, user right assignments, System File/Directory permissions, etc) without written consent from IBM. During this period the SLA will be suspended. If Customer chooses to own administrative rights, SLAs for those Managed Servers will be suspended for the term of the Attachment B. IBM may request temporary administrative rights to deploy patches and other administrative tasks. Although there are no limitations on the number of change requests, the number of emergency requests will be limited to three (3) requests per month, per Customer at no additional charge. Additional requests shall be at the SmartHands rate. Customer must test their applications and approve the IBM applying maintenance releases for their OS such that the environment is always within two maintenance releases. All SLAs will be suspended and service will be provided on a best effort basis for any environment that does not comply with this requirement. IBM will support the current release (N) and the release immediately preceding the current release (N-1) of the operating system software. IBM and IBM will work jointly to determine when operating system and micro code upgrades and fixes are applied. IBM will not: Setup and maintain Customer end users; Install, maintain or support Customer applications; Provide application troubleshooting services unless Managed Application Service or T&M services have been purchased; Perform logical database administration; and Perform backups of Customer Content. Such backups are provided as part of the Storage Services as outlined in this Attachment A. Monitoring of Fully Managed Servers IBM will install software components to enable monitoring of the Base and/or Customer Components specified in Attachment B. On a 24x7 everyday of the year basis, IBM will: monitor all Network Interface Cards (NIC); monitor selected operating system thresholds, logs and processes; respond to exceptions and alerts. IBM will execute any internal Standard Operating Procedures (SOP) or a reasonable SOP provided by Customer. Additionally, IBM will make the initial determination as to whether the issue falls within the operational/system/network area or is an application issue; determine if there are patches available for the OS; apply patches to the OS that are approved by IBM in writing; Make the initial determination as to whether the issue falls within the Operational/System/Network area; Immediately notify the Customer of Severity 1 and 2 incidents; monitor for hardware predictive failure analysis alerts when using IBM servers; and notify Customer in writing when Customer intervention or decisions are required. Customer may request, in writing, the granting of temporary administrative rights after the Customer environment has been turned over to IBM for monitoring. IBM will not monitor the affected components while Customer has administrative rights and any SLA provisions will be suspended during this period. IBM will provide Customer with information on the web portal that show monitoring statistics that include daily and historical information (maintained for a one (1) month period). These reports will include the utilization of the components included in the threshold monitoring, such as CPU, memory and disk. Monitoring of the Base and/or Customer Components with associated alerts will not be activated from IBM's production monitoring systems until the Customer Production Ready Date. Customer shall not be
Page 17 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
eligible for an Availability Credit until the first full calendar month following the Customer Production Ready Date. Basic Monitoring Services (Ping Monitoring) IBM will provide basic Ping monitoring of the Base and/or Customer Components on a 24x7 everyday of the year basis. IBM will provide installation and ongoing monitoring for server and non-server partially managed, monitored Base and/or Customer Components. Customer will own administrative rights for the devices to be monitored. However, IBM may request and will be granted temporary administrative rights in order to install, setup, or maintain any agents required to perform the monitoring. IBM reserves the right to adjust the thresholds for any monitored event in order to reduce the instances of false positives. Customer will be notified in of the change. IBM reserves the right to take a basic monitored server offline if it is deemed by IBM to be a security risk for the rest of the IBM environment. IBM will inform the Customer, the IBM PE and the IBM PM of such action. IBM will: Monitor all network interface cards (NIC); Request the temporary root access privilege from Customer if required Provide Customer with a user ID and password to a secure portal for viewing of real-time monitoring status and alert history; Send an administrative alert via electronic mail to a customer-supplied address if a NIC fails to respond to a Ping; Notify Customer in writing when Customer intervention or decisions are required. Maintain and monitor systems used to provide monitoring; Test and apply patches to monitoring systems as needed; and Provide monitoring statistics on the IBM Web portal. IBM will not: Respond to exceptions and alerts; Monitor any hardware, application, database, network, or operating system components other than those specified above; Provide third-party monitoring agents; and Provide any reporting either in hard-copy or electronic form other than what is available through the Customer portal. Monitoring of the Base and/or Customer Components with associated alerts will not be activated from IBM's production monitoring systems until the Customer's Customer Production Ready Date. Customer shall not be eligible for an Availability Credit until the first full calendar month following the Customer Production Ready Date. In addition, the following will apply for Basic Monitoring Services: Following the initial installation, Customer will be given root access to the Base Components; IBM will provide space, power and cooling for the Base and/or Customer Components; IBM will include up to five (5) Operational Events per month; Customer Content backup is not included in the base offering and can be provided at an additional cost; Customer System Image backup is not included in the base offering and can be provided at an additional cost; System Administration is not included in the base offering; Patch management is not included in the base offering; The status of all server Base and/or Customer Components based solely on the ping monitoring of the network interface cards will be shown on the web portal and the customer will also be notified; and IBM will issue the ping command for each server base component at least every fifteen (15) minutes. Advanced Monitoring Services IBM will provide 24x7 advanced device monitoring of the server and non-server Base and/or Customer Components. Customer will own administrative rights for the devices to be monitored. However, IBM may request and will be granted temporary administrative rights in order to install, setup, or maintain native SNMP agents as required to perform the monitoring. IBM reserves the right to adjust the thresholds for any monitored event in order to reduce the instances of false positives. Customer will be notified in of the change.
Page 18 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
IBM will: Monitor all network interface cards (NIC); Monitor the following operating system metrics: CPU utilization; Memory and Swap utilization; Disk and filesystem utilization; Monitor for hardware predictive failure analysis alerts when using IBM servers; Define and set thresholds for all monitored events based on industry standard best practices; Provide Customer with a user ID and password to a secure portal for viewing of real-time monitoring status and alert history; Send an administrative alert via electronic mail to a customer-supplied address for all events that exceed the maximum allowable threshold; Notify Customer in writing when Customer intervention or decisions are required. Maintain and monitor systems used to provide monitoring; Test and apply patches to monitoring systems as needed IBM will not: Respond to exceptions and alerts; Monitor any application, database, network, or operating system components other than those specified above; Provide third-party monitoring agents; Provide any reporting either in hard-copy or electronic form other than what is available through the Customer portal. IBM will provide Customer with information on the IBM Web portal that show monitoring statistics that include daily and historical information (maintained for additional one (1) month period). These reports will include the utilization of the components included in the threshold monitoring, such as CPU, Memory and Disk. This historical information may optionally, for an additional fee, include one year of history. The reports for iSeries may be different from those available for other platforms. Monitoring of the Base and/or Customer Components with associated alerts will not be activated from IBM's production monitoring systems until the Customer's Customer Production Ready Date. Customer shall not be eligible for an Availability Credit until the first full calendar month following the Customer Production Ready Date. Virtual Servers for Microsoft Windows and Linux OS Customer environment can consist of virtual as well as physical devices. For Virtual Servers, IBM will provide the following Services: Services defined under Managed Servers in Section 4.8 (Fully Managed Servers; Physical servers needed to operate a virtual server farm; All licenses for virtualization software and management tools (e.g. VMware ESX3.0; VMotion and others as needed); Capacity management for the physical server farm to ensure each virtual server has resources required for operation as specified in Attachment B; Restart virtual machine in the event of a virtual or physical machine failure; and Include twenty (20) GB of virtual disk for OS and application code for each Virtual Server. Storage Services - Managed SAN Fabric IBM will provide installation, configuration, ongoing system administration and management support services for the SAN Fabric Base and/or Customer Components (SAN Fabric) identified in Attachment B at the e-business Hosting Center. IBM will zone the SAN switches as necessary for security. IBM retains sole root/administrative access (privileged access with authority to perform system-level functions or security administration) in order to perform installation and ongoing management services for the SAN Fabric. The following items apply to the SAN Fabric:
Page 19 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
The managed servers will be connected to the SAN Storage via multiple connections to the SAN switches using two or more HBAs for redundancy in each server, as described for each server in Attachment B. The storage backup media server will be connected to the SAN Storage via redundant connections to the SAN switches using two or more HBAs in each server. In the event that additional SAN switches are required, Customer will sign a new PCR for the additional SAN switches. Managed SAN Storage - Shared Environment IBM will provide installation and ongoing system administration and management support services for the shared SAN storage device components specified in Attachment B. Disk space will be allocated by IBM based upon Customer provided specifications from a common pool of SAN storage. SAN switches with zoning dedicated to a Customer and dedicated LUNs will be used to securely implement individual data storage requirements. Managed SAN storage applies only to Customer data storage and excludes System Images. Customer will be responsible for populating the files and databases and for all Customer Content. IBM retains sole root/administrative access (privileged access with authority to perform system-level functions or security administration) in order to perform installation and ongoing management services for SAN storage. The following items apply to the SAN storage shared environment: managed servers will be connected to the SAN storage via redundant connections to different SAN switches using two (2) or more HBAs in each server; the storage backup media server will be connected to the SAN Storage via redundant connections to the SAN switches using two or more HBAs in each server; and if additional SAN Storage capacity is required, Customer will sign a project change request for additional SAN capacity.
Virtual Private Network IBM will configure and manage the number of VPNs identified in Attachment B. The VPNs will consist of an IPSec tunnel based on 3- DES Shaw technology in the firewall at the e-business Hosting Center. IBM will configure and manage the VPN tunnel at the e-business Hosting Center. Customer will configure and manage a corresponding IPSec tunnel based on 3-DES Shaw technology at Customer's location. The IPSec connection will be from specified devices at Customer's site to specified devices at the e-business Hosting Center as defined by Customer. Physical Database Administration (Microsoft SQL) IBM will provide physical and operational database administration support for Micorsoft SQL, database software (Database Software) for the number of Base Component database servers with the Database Software specified in Attachment B (Database Administration Servers). Customer will provide all Database Software, and any required licenses, as a Customer Component. IBM will install Database Software on the Database Administration Servers. IBM will provide four (4) hours of database setup support for each of the Database Administration Servers. Each month IBM will provide four (4) hours of database administration support for each of the Database Administration Servers. Additional hourly database administration and setup support charges will be at the additional hourly support rate specified in Attachment C, unless otherwise specified in a project change request between Customer and IBM. IBM will not provide Physical or Logical data base administration for MySQL. Customer Care IBM will provide a toll free number (inside the US) to receive problem notifications and service requests 7x24 each day of the year from authorized Customer representatives regarding Services provided under this Agreement. Customer representatives shall be identified via email to the IBM project manager. Changes or additions to the Customer representatives will also be made to the IBM project manager via email.
Page 20 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
IBM will assign the following priority levels to each reported problem as listed in the table below: Severity 1 - Critical impact problem that makes the Customer environment unavailable or degraded to a level where Customer is unable to conduct business. Severity 2 - Major Impact. Customer is able to conduct business but a function or service is not available. Severity 3 - Minor impact. The Customer environment is not seriously affected. Severity 4 - No impact. Short coming, dissatisfaction, or question. Emergency - Ability to conduct business is not being affected, however due to other business driving decisions, the request needs to be treated as a Severity 1. IBM will: attempt to resolve on the first call service requests such as password resets for administrative ID's, access control for authorized Customer representatives following the mutually agreed process and starting and stopping of services. document Customer or IBM internally generated call identification data in their Customer Care (Technical Support) System. provide monthly reports showing service request, resolution, call aging data, and other call report information within ten (10) business days from the end of the calendar month. The reports will be provided via the web portal. direct Customer calls, as appropriate, to an IBM technical specialist, coordinate problem determination, attempt resolution, perform root cause analysis, make ticket history available via the web portal and log and track calls to closure.
Page 21 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
will assign the following priority levels and respond to each reported problem as shown in the following table: Severity Initial Communication Recurring Communication Communication Content 1 - Critical Impact IBM provides notification within 15 minutes of a confirmed outage.
IBM support is available 24 x 7 for the duration of the outage. On-site support at IBM Hosting facility within four (4) hours when IBM on-site support is requested by Customer.
· Current Status · Estimated Resolution Time · Next Activity Planned
2 - Major Impact IBM provides notification within 30 minutes of a confirmed outage.
IBM support is available 24 x 7 for the duration of the outage. · Current Status · Estimated Resolution Time · Next Activity Planned 3 - Minor Impact IBM provides notification within 1 hour of a confirmed outage.
IBM support is available 24 x 7 for the duration of the outage. · Current Status · Estimated Resolution Time · Next Activity Planned 4 - No Impact or a Question IBM provides notification within 24 hours. IBM support is available 24 x 7 for the duration of the outage. · Current Status · Estimated Resolution Time · Next Activity Planned Emergency IBM provides notification within 15 minutes of a confirmed outage
IBM support is available 24 x 7 for the duration of the outage. Each Customer is only allowed three (3) emergency requests per month.
· Current Status · Estimated Resolution Time · Next Activity Planned
Customer is allowed up to three (3) emergency requests per month at no additional charge. Additional emergency requests will be charged at the additional hourly support rate specified in Attachment C. Relocation of Managed Hosting Services In the event that IBM determines that it is necessary to relocate Managed Hosting Services within the same or to another e-business Hosting Center, Customer will cooperate in good faith with IBM to facilitate such relocation, provided that such relocation is based on reasonable business needs of IBM (including the needs of other IBM customers), or the expansion of the space requirements of Customer. IBM will use commercially reasonable efforts, in cooperation with Customer, to minimize any interruption to Services in the event of such relocation. Security Obligations IBM will: implement firewall settings and other security parameters as defined by Customer and accepted by IBM; administer firewalls specified in Attachment B; perform nightly memory and file system anti-virus scanning and install virus signature definition file updates, as available, for Base Components and Customer Components with Windows operating systems; perform regular scanning of commonly used TCP and UDP ports, on Base and/or Customer Components to attempt to detect ports and services that may be vulnerable to intrusion. IBM will
Page 22 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
use reasonable efforts to inform Customer of intrusion vulnerabilities detected, and schedule and apply changes to security settings agreed to by Customer to attempt to mitigate vulnerabilities. IBM makes no representation or warranty that IBM's monitoring or analysis procedures will identify all intrusions Customer may encounter; perform monthly security parameter status checking and identify when security checking finds parameter status to be different from what was originally established; and authorize root access, administrator access or their equivalents for Base Components to IBM-designated personnel only. Customer must comply and ensure any Customer Subcontractors comply with the following security obligations. Customer will: authorize IBM to perform the Services described above in item a. of Security Obligations; provide firewall setting requirements (ports, filters, and traffic direction) to IBM and provide the number of nodes required for IBM to perform firewall administration; provide IBM with security parameters and settings. Security parameters and settings will be used for monthly security status checking and are subject to IBM's review and acceptance; not access or attempt to access IBM's secure internal network or the resources or information of other IBM customers; when performing any technical security integrity review, penetration test, or vulnerability scan of Base Components or Customer Components: (a) only test, scan or review the IP addresses supplied by IBM to Customer that are part of the Services; (b) only test, scan, or review Customer dedicated Base Components and Customer Components; (c) provide IBM at least one week's prior written notice of the date and time of the review; (d) provide the source IP address information and reviewer contact information to IBM; (e) not perform such reviews more than once per calendar quarter; and not perform or simulate denial-of-service attacks; not administer or create privileged User IDs (User IDs having system or security administrative authority) at the base operating system level or on subsystems managed by IBM; and not disclose any information arising out of IBM or Customer scanning of Base Components or Customer Components to any other entity without IBM's prior written consent. IBM strongly recommends that Customer and any Customer Subcontractors comply with the security guidelines listed below, but Customer may deviate from such guidelines after prior written notice to IBM. IBM will have no liability for any damages arising out of Customer's or Customer's Subcontractors' deviation from any or all of the following guidelines: not use Base Components or Customer Components as a relay to provide Internet access at Customer locations; initiate connections from Base Components or Customer Components to Customer Premises Equipment using either caller ID or Challenge Handshake Authentication Protocol (CHAP); only initiate traffic flows from more secure to less secure networks (i.e., from the Customer secure network to the e-business hosting environment ); access Servers in the e-business Hosting Environment from Customer's premises by establishing a one way trust relationship with password when using Windows; not initiate NFS traffic through the Internet access firewall; only use NFS within a single layer, meaning NFS traffic will not cross firewalls and the Servers will be in the same VLAN; not place NFS export files in the same file structure used for system files and executable files in Customer Components; when creating CGI programs, such programs will: (a) validate input to construct a command line. The input character string will have to be validated to ensure that it does not trigger an undesirable system response including the ability to change file permissions; (b) do not run in privileged mode;
Page 23 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
(c) do not create files in any system-related directory; (d) do not need to be stored in any directory other than a designated cgi-bin directory or require the interpreter be stored in the cgi-bin directory; and (e) do not create buffer overflow conditions or other problems that could expose the Server to unauthorized access; not initiate inbound ICMP echo requests or replies from the Internet to the Base Components or Customer Components and outbound ICMP echo replies or ICMP replies for traceroute from the Base Components or Customer Components to the Internet unless Customer provides IBM with source IP addresses; and 10. not initiate SNMP traffic from Customer premises to the e-business Hosting Environment. Technical Due Diligence Period A two (2) week technical due diligence period commencing within two (2) weeks following the execution of this Agreement is required. During this technical due diligence period Customer and IBM technical teams will work together and determine more specific detail regarding configuration, networking, firewall, server, SAN, backup and monitoring installation, configuration and management details, settings, rules, and the schedules and thresholds to be monitored. Any changes as a result of the technical due diligence period will be handled as follows: Any delays in the procurement of equipment will be documented in the project plan by the IBM project manager and communicated to Customer in a timely manner. Any delays in the schedule will be documented in the project plan by the IBM project manager and communicated to Customer in a timely manner; and IBM and Customer will use the PCR process to make any changes to this Agreement as a result of this technical due diligence period. Changes may result in adjustments to pricing. Service Level Agreement IBM will provide an availability service level agreement (Server Availability SLA) for Qualifying Servers based on the applicable SLA Target Percentage (as such terms are defined below). The first device in the path to the Qualifying Server must be an IBM Managed Device, and the Server Availability SLA applies up through and including the last IBM Managed Server. Definitions The following definitions apply to this Server Availability SLA: Actual Available Minutes (AAM) means the Total Available Minutes minus minutes of Qualified Outages. Availability Credit means an amount equal to five percent (5%) of monthly recurring charges for Managed Hosting Services. Such credits are available when the services provided for the affected devices are less than the Monthly Availability Percentage. IBM Managed Device means a Base Component located in an IBM e-business Hosting Center for which IBM is performing management responsibilities. For servers, only the servers identified as Fully Managed Servers in Exhibit A are considered an IBM Managed Device. Monthly Availability Percentage means the amount equal to the total number of minutes in the applicable month minus the Qualifying Outage Minutes for that month, divided by the total number of minutes in that month. Monthly Recurring Charge means the total of Customer's monthly recurring charges. Outage means the period (measured in whole minutes) from the time indicated in a trouble ticket (when the Outage was reported to IBM) to the Outage end time based upon the problem resolution (as reflected in the trouble ticket call record). For clustered devices, all of the devices in the cluster must not be available for use by Customer. Qualifying Server means the IBM Managed Server that has been selected by Customer and approved by IBM. Qualifying Outage Minutes means the aggregate of all Outages in a month, minus any Outages in that month resulting from any exclusion described in Section 8.6 below. SLA Target Percentage means the Service Levels defined in 8.2 (Service Levels). Unqualified Outage(s) means an Outage(s) that can be attributed to the listed availability exclusions as set forth in Section 8.6 (Exclusions).
Page 24 of 36
Service Levels
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Service Levels IBM will provide the following monthly availability Service Level Agreement (SLA) for the Services provided by IBM: For Managed Devices and Managed Servers (including firewall(s) and switches) that are not clustered or configured in a high availability configuration, the SLA is a minimum of 99.7 percent. For Managed Devices and Managed Servers (including firewall(s) and switches) that are clustered or configured in a high availability configuration, the SLA is a minimum of 99.9 percent. For Managed Application Solution (including firewalls(s) and switches) that are clustered or configured in a high availability configuration, the SLA is a minimum of 98.0 percent. For Managed Application Solution (including firewalls(s) and switches) that is not clustered or configured in a high availability configuration, the SLA is a minimum of 99.5 percent. For Basic Monitoring Services the SLA is a minimum of 99.9 percent applicable only for the core infrastructure components (including power, cooling, Internet connectivity, firewalls, load balancers, SSL acceleration, Network Intrusion Detection, VLAN segments, switches, VPN connection at the Hosting Center, and all related connections). For Advanced Monitoring Services the SLA is a minimum of 99.9 percent applicable only for the core infrastructure components (including power, cooling, Internet connectivity, firewalls, load balancers, SSL acceleration, Network Intrusion Detection, VLAN segments, switches, VPN connection at the Hosting Center, and all related connections). Availability Credits If in any month during the term of Managed Hosting Services the Monthly Availability Percentage for a Qualifying Server is less than the SLA Target Percentage for that Qualifying Server, Customer shall be eligible to receive an Availability Credit, subject to Section 8.3(b), 8.4, 8.5, 8.6 and 8.7. If in any month during the term of Managed Hosting Services the Monthly Availability Percentage for Basic Monitoring or Advanced Monitoring Services is less than the SLA Target Percentage for Basic Monitoring or Advanced Monitoring Services, Customer shall be eligible to receive an Availability Credit, subject to Section 8.3(b), 8.4, 8.5, 8.6 and 8.7. Customer agrees to contact the IBM Help Desk to report problems and open trouble tickets that reflect the start time of the Outage event. Settlement of Credits Availability Credits will be aggregated on a quarterly basis and settled by the last day of the first month following the end of the quarter in which such Availability Credits were earned. (For example, the aggregate Availability Credits earned in the first quarter 2007 will be applied against Monthly Recurring Charge for Services the Customer incurs in the April 2007 invoice.) Any Availability Credits owed from IBM to Customer upon the expiration or termination of the Services will be paid within one (1) month following the effective date of expiration or termination. If the Monthly Recurring Charge for a subject month has not been incurred, or for any other reason has been credited or waived, Customer shall not be eligible for an Availability Credit for that month. Customer shall receive no more than five percent (5%) of Customer's Monthly Recurring Charge for Managed Hosting Services as an Availability Credit in a given month. Commencement of Service Level Agreement IBM will exercise commercially reasonable efforts to meet the SLA Target Percentage. Notwithstanding the foregoing, Customer shall not be eligible for an Availability Credit until the first full calendar month following the Hosting Service Ready Date. Exclusivity of Remedies Customer agrees that its sole remedy for IBM's failure to meet an SLA Target Percentage is the Availability Credit as provided in this Attachment. Exclusions IBM is not responsible for any Outage outside of its control, including but not limited to, the following examples: periods of scheduled or emergency maintenance activities or scheduled Outage; Outage due to problems with Customer provided Content or programming errors including, but not limited to, Content installation and integration;
Page 25 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Outage due to system administration, commands, file transfers performed by Customer representatives; Outage due to work performed at Customer request (for example T&M assistance); other activities Customer directs, denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against parties (including carriers and IBM's other vendors), and other force majeure items; lack of availability or untimely response time of Customer to respond to incidents that require its participation for source identification and/or resolution, including meeting Customer responsibilities for any prerequisite Services; Outage due to Customer breach of its material obligations under the Base Terms; Outages caused by Customer Content or Customer initiated patches; Outages caused by Customer not approving applying IBM recommended OS patches; Outages caused by the Customer not approving applying of OS maintenance releases; Periods where the Customer may have been granted System Administration rights; Customer denies IBM recommended software patches, hardware and/or OS changes; m. Outage due to failure of non-IBM managed Customer Component hardware or software; Power outages caused by customer not providing dual power equipment; Power outages caused by improperly configured power supplies; Power outages caused by incorrectly connected power supplies; Power outages caused by customer configured and managed equipment that results in over utilization of power circuits; and Customer's performance of any technical security integrity review, penetration test, or vulnerability scan pursuant to security obligations set forth herein. Open Source Software additional terms If requested by Customer, IBM will procure Red Hat Linux Software on behalf of Customer. The Red Hat software will be provided as a Customer Component (Customer Component Linux Software) licensed by Red Hat, Inc. (Red Hat) to Customer under Red Hat's Subscription Agreement (accessible at http://www.redhat.com/licenses). Customer agrees to the terms and conditions of Red Hat's Subscription Agreement and agrees that Red Hat's Subscription Agreement for the Customer Component Linux Software shall be between Red Hat and Customer. The Linux operating system Customer Component software will be shipped to Customer, not IBM. IBM is not a party to such license. IBM's provision of Services hereunder shall not constitute a distribution of the Customer Component Linux Software by IBM. If requested by Customer, IBM will install Customer Component Linux Software as is and makes no representations or warranties, either express or implied, with respect to the Customer Component Linux Software or any Open Source Software and does not indemnify against any claim that Customer Component Linux Software or any Open Source Software infringes a third party's intellectual property right. Under no circumstances shall IBM be liable for any damages arising out of Customer's use of the Customer Component Linux Software or any Open Source Software. Customer receives no express or implied patent or other license from IBM with respect to the Customer Component Linux Software or any Open Source Software. Customer and IBM agree that any modification or creation of derivative works of Linux or Open Source Software is outside the scope of this Agreement. Linux and any other Open Source Software (OSS), including patches, fixes, and updates, which IBM installs, configures, updates, operates or otherwise assists in procuring on Customer's behalf as a result of providing services under this Agreement are licensed and distributed to you by Linux and OSS distributors and/or respective copyright and other right holders, including Red Hat, Inc. (Right Holders) under the Right Holders' terms and conditions. IBM is neither a party to the Right Holders' terms and conditions nor a distributor of Linux or OSS and merely does the work described in this Agreement on your behalf upon your specification. You receive no express or implied patent or other license from IBM with respect to Linux or any OSS. IBM installs Linux and OSS as is and makes no representations or warranties, either express or implied, with respect to Linux or OSS, and does not indemnify against any claim that Linux or OSS infringes a third party's intellectual property right. Under no circumstances shall IBM be liable for any damages arising out of your use of Linux or OSS.
Page 26 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Both of us agree that any modification or creation of derivative works of Linux or OSS is outside the scope of this Agreement. Responsibilities of IBM and Customer Overall - (with physical database administration support)
RESPONSIBILITIES IBM CUSTOMER
- Installation -
Designate an individual to whom all of IBM's communications will be addressed and who has the authority to act and make decisions for Customer in all aspects of the Services, including requesting changes, problem resolution, Service requests, assignment of Customer focal points with authority over specific Services, and designation of Customer Authorized Representatives (Customer Contact)
Perform
Designate an individual to whom Customer will address communications specific to the provision of the Services. IBM's call management center may be the IBM Contact for some Services (IBM Contact) Perform
Assign authorized representatives with appropriate functional knowledge and technical skill who may submit problems or Service requests to the IBM call management center by calling an IBM-provided toll-free telephone number or by e- mail Perform
Perform the installation activities specified herein Perform Register domain names with an accredited domain name registrar and pay all charges associated with such registration Perform
Install Customer applications Perform Perform physical DBA tasks to install and configure the database(s) Perform Perform all logical DBA tasks to install and configure the databases Perform Provide backup and restore requirements to IBM Perform Perform necessary physical database administration tasks to prepare Customer database(s) for backup Perform
Perform necessary logical database administration tasks to prepare Customer databases for backup Perform
Provide e-mail addresses for Customer notification of thresholds exceeded or process exceptions Perform
Procure Base Components specified in Attachment B Perform Notify Customer when IBM installation activities are completed (Hosting Service Ready Date) Perform
Provision all SSL certificates Perform Inform IBM in writing within five (5) business days following IBM's notification of the completion of IBM installation activities, if Customer believes IBM has not satisfactorily completed IBM installation activities Perform
- Ongoing Management and Support -
Provide the ongoing Services specified herein Perform Provide ongoing administration, tailoring, monitoring, or maintenance of Customer applications Perform
Provide first level of support for problems with Customer Components and transfer problems related to IBM's responsibilities to the IBM call management center Perform
Assist IBM in the investigation of problems, to the extent such investigation involves Customer's or its Subcontractors' responsibilities, and exercise commercially reasonable efforts to resolve problems related to such responsibilities Perform
Provide ongoing physical database administration for the database(s) Perform Provide ongoing logical database administration Perform Perform the IBM security obligations specified herein Perform Perform the Customer security obligations specified herein Perform
Page 27 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Update Base and/or Customer Components with applicable fixes (patches, hotfixes, program temporary fixes and service packs) as determined by IBM Perform
Maintain responsibility for all labor and expenses associated with full version operating system software upgrades (to be eligible for continued service, the operating system version running on the managed servers must be one currently supported by the manufacturer of that operating system) Perform
Maintain copies of critical Content and establish a procedure to recover such Content without resort to the e-business Hosting Environment or Services Perform
Manage all SSL certificates Perform
Server
RESPONSIBILITIES IBM Customer
- Installation, Configuration and Setup for Fully Managed Servers
Rack and stack and cable the equipment Perform Procure and install Base Components Perform Provision cabinet space Perform Provision additional power Perform Create network diagram Perform Assign public and private IP addresses Perform Provision internet bandwidth Perform Procure licenses for backup tools and agents Perform Load CDs, if requested by Customer Perform Configure IP addresses on the servers Perform Perform connectivity testing of Base and/or Customer Components Perform Identify the predefined events that will be monitored Perform Configure thresholds defined by Customer Perform Install and configure monitoring tools Perform Install and configure clients for the monitoring tools Perform Perform readiness testing, including testing the flow of alerts Perform Enable switch monitoring Perform Notify Customer when installation activities are completed Perform
- Ongoing Management and Support for Fully Managed Servers -
Perform 7 x 24 each day of the year monitoring of the managed servers for actions and events Perform
Maintain required documentation for server management and operation Perform Research OS patches Perform Provide problem determination and corrective measures and support for alerts and predefined error events and thresholds Perform
Use reasonable efforts to update Base and/or Customer Components with applicable fixes approved by the Customer Perform
Load CDs if requested by Customer Perform Call IBM Service if needed Perform Assist IBM in the investigation of problems with the Services to the extent such investigation involves Customer's or its subcontractors' responsibilities Perform
Monthly reports of thresholds being measured Perform Perform root cause analysis for problems related to the equipment or services being provided by IBM Perform
Page 28 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Shared or Dedicated SAN Storage
RESPONSIBILITIES IBM Customer - Installation, Configuration and Setup - Install SAN configuration and management console and agents on the SAN Storage Perform Provide IBM with disk configuration specifications (folders, directories, quorum disk layout, disk space size, and Raid level) Perform
Configure Server HBAs for access to the SAN Storage Perform Install the SAN devices Perform Connect the SAN storage device to the SAN switches and to the administration segment Perform
Define storage partitions Perform Configure the SAN storage per Customer provided specifications Perform Provide documentation which details the installation parameters for the server and SAN storage Base and/or Customer Components Perform
Document SAN storage configuration Perform Test SAN storage functionality Perform Perform connectivity testing of the SAN storage Perform Perform quality assurance reviews on all operational and administrative support procedures Perform
Identify the predefined actions and events (the Actions and Events) IBM will perform on the SAN Storage Perform
- Ongoing Management and Support - Maintain required documentation for the SAN storage management and operation Perform Perform 7x24 everyday of the year monitoring of the managed SAN storage for actions and events Perform
Provide problem determination and corrective measure support for actions and events Perform
Reallocate SAN based LUNS to different systems and servers (for example: rezoning, import, recognition, and file system remount), as requested by Customer. Perform
Assist IBM in the investigation of problems with the Services to the extent such investigation involves Customer's or its Subcontractors' responsibilities Perform
Page 29 of 36
Backup, Restore and Offsite Data Storage
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Backup, Restore and Offsite Data Storage
RESPONSIBILITIES IBM Customer
- Installation, Configuration and Setup -
Install selected Base Components, including external cable connections and storage server Perform
Connect the tape library to the designated backup media server Perform Document the tape library and backup media server configuration and setup parameters Perform
Test hardware functionality Perform Notify IBM of any specific procedures required for backup of Customer data files and the scheduled backup window Perform
Creation and documentation of Customer backup and restore procedures Perform Provide list of files to be backed up Perform Identify and maintain list of Customer designated data files to be backup up Perform Install and configure the storage manager software provided by IBM Perform Verify that the storage manager software is installed and configured properly Perform Install backup software clients Perform Configure backup software clients on OS instances Perform Perform a test backup of the systems by initiating a backup of Customer designated data files Perform
- Ongoing Management and Support -
Maintain required documentation for server management and operation Perform Assist IBM in the investigation of problems with the Services to the extent such investigation involves Customer's or its subcontractors' responsibilities Perform
Perform daily incremental backups Perform Perform weekly full system backups Perform Keep daily backups in the library for seven (7) days backups (actual backup, retention and rotation schedules to be determined by Customer and IBM) Perform
Create a copy on tape of the weekly full system backup tapes and send offsite for storage with thirty (30) days retention Perform
Examine backup logs for results of daily backup activity Perform Take actions to alleviate alerts and error messages during the backups Perform Call the IBM Help Desk to request a take to be restored from the library or from offsite storage. Perform
Indicate if the offsite storage recall is an emergency request to be fulfilled within six (6) hours (additional charges may apply) Perform
Identify data file name and version requiring restore Perform Initiate obtaining of the tapes(s) from offsite storage, if necessary Perform Initiate restore of Customer designated backed up files as requested Perform Perform root cause analysis for problems Perform
Page 30 of 36
Switch and Firewall
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Switch and Firewall
RESPONSIBILITIES IBM Customer - Installation, Configuration and Setup - Configure the local VLANs Perform Specify switch and firewall settings specific to the application Perform Configure VLANs and zones for the SAN switches Perform Configure firewall settings Perform Test a single path to switch and firewall Base and/or Customer Components Perform Enable switch and firewall monitoring Perform - Ongoing Management and Support - Operate and monitor availability of the switches and firewalls 7x24 each day of the year Perform
Assist IBM in the investigation of problems with the Services to the extent such investigation involves IBM's, Customer's or its subcontractors' responsibilities Perform
Request changes to switch and firewall settings Perform Administer changes to switch and firewall Perform Perform monthly patch scanning on servers that may be vulnerable to intrusion or need hot fixes applied Perform
Inform Customer of hot fixes and vulnerabilities detected and use reasonable efforts to schedule and apply changes to settings, as needed Perform
Backup Customer-specified switch and firewall settings and restore settings in the event of a failure Perform
Physical Database Administration (Microsoft SQL)
IBM Customer
- Implementation -
Provide Customer with database survey to gather support requirements Perform Complete database survey Perform Acquisition of license for Database Software Perform Configuration of Database Software in accordance with Customer requirements as provided in the database survey Perform Assist
Installation and configuration of application software and Content Perform Provide documentation specifying the application directory structure, and/or database structure including table definitions, indices and table spaces Perform
Establish connectivity between database instance and data server and notify Customer when Database Software is ready for use by Customer Perform
Create directory structure and/or execute database definitions Perform Enable the application functions, once installed and configured, to work with the Database Software and Customer's hosting environment Assist Perform
Establish standard database availability monitoring to assess the availability of database components Perform
Provide documentation for application and database components to be monitored for availability Perform
Acquire any necessary certificates or keys necessary for authentication functions associated with the Database Software Perform
Install any certificates or keys provided by Customer necessary for authentication functions associated with the Database Software Perform
Retain control and management of the Database Software support/administration IDs/object owner IDs Perform
- Ongoing Management and Support -
Page 31 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Provide application software troubleshooting, problem determination, and problem resolution. Note, where the application software is third party software, IBM's responsibility will be limited to coordinating with the applicable vendor and managing such vendors resolution. Perform
Provide system software troubleshooting, problem determination, and problem resolution Perform
Assist Customer with Database Software in problem determination of application problems and notify Customer once a problem is suspected to be an application problem Perform Assist
Provide database troubleshooting and problem determination Perform Contact appropriate IBM support organization for all database related problems after problem has been recorded in the problem management system with key problem- related data by IBM's call management center Perform
Determine backup/recovery plan Perform Implement backup/recovery plan to allow point in time recovery or version recovery as determined by Customer Perform Assist
Provide application-level assistance in problem determination of Database Software problems Perform
Assist Customer in application problem resolution through the implementation of database changes required by Customer Perform Assist
Apply fixes, PTFs and patches provided by Customer to correct database problems, as necessary, within the framework of the Project Change Control Procedures Perform
Install Database Software minor release upgrades for an already installed version of each database product using the IBM standard change control procedures (minor release upgrade is any change in the release number to the right of the point by the software manufacturer - e.g.: x.y) Perform
Provide any code promotions for application software code and all Content updates Perform Install application software configuration changes, upgrades and patches, and any updates to Content. Notify IBM of any required database configuration changes needed as a result of the changes, upgrades and patches, and/or updates Perform
Install system software configuration changes, upgrades and patches, and updates. Perform Implement any required database configuration changes based on Customer's recommendations Perform
Provide all end user support including administration of application user Ids and groups and end user password resets Perform
Provide requirements for pruning, rotation and/or archiving of any application and database log files Perform
Implement any required pruning, rotation and/or archiving of any application and database log files Perform
Provide documentation for performance related parameter/configuration settings Perform Implement initial database performance tuning and provide additional performance tuning based on analysis of performance metrics provided by Customer Perform Assist
Provide documentation on performance metrics and performance results that the application and database should be measured against, including any necessary tools and/or scripts to collect performance data Perform
Implement automated performance monitoring and data collection Perform Assist Monitor Database Software components for availability and/or their presence in memory (up/down status) Perform
Assist Customer in testing efforts and monitoring of Customer-provided performance tools and metrics to determine if environment is properly tuned Perform Assist
Collection of performance and capacity data as provided by Customer's application(s) software Assist Perform
Implement performance enhancements to the specific Database Software based on documented tuning parameters and procedures supplied by Customer and specific to Customer application(s) Perform
Collection of performance and capacity data as provided by systems software Perform Notify IBM within fifteen (15) minutes of a suspected a Database Software component problem Perform
Monitoring application health and availability and functional testing of application Perform Establish IBM as single point of contact with Database Software manufacturer Perform Procure and keep current service contracts with the Database Software manufacturer for 24x7 maintenance and support including upgrades and updates/fixes. IBM will be named as a primary contact in the service agreement(s) Perform
Page 32 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Provide the appropriate support information for Customer contact and Database Software manufacturer support contact (IDs, contact names, telephone numbers, license numbers, etc.) Perform
Implementation of any Database Software product major version upgrade (major version upgrade is any change in the version number to the left of the point by the software manufacturer - e.g.: x.y) Perform
Establish single point of contact with application software vendor Perform
Attachment B - Hosting Components
Part I - IBM Provided Infrastructure
e-business Hosting Center: Atlanta
Internet Bandwidth Internet access committed bandwidth 3 Mbps Number of registered IP addresses 1
Virtualized Firewalls Quantity 2 Model Cisco virtualized firewalls Failover Configuration Yes Number IPSEC VPN tunnels to be set up at the IBM data center (Customer to set up and manage the corresponding VPN tunnels at their sites)
1
Virtual Firewalls Switch Ports and VPN tunnels Quantity of pairs of active / passive virtual firewalls 3
Virtual firewalls and switch ports for Virtual servers, including firewall ports 1
Additional remote clients for VPN sessions 0 Additional site-to-site VPN tunnels 9 Private dedicated backend connection 0
Page 33 of 36
Part II - IBM- managed Base Components
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Part II - IBM- managed Base Components Server Base Components
e-business Hosting Center: Atlanta
Fully Managed Server Base Components Server Quantity 2 Model x3650 Processor 2 x Dual-Core Intel Xeon Processor X5260 (3.33GHz 6MB 1333MHz 80W) Memory 8 GB Local Disk drives · 2 x 73 GB Disk for OS Used for OS, not Customer data OS * Linux RedHat AS SAN connections? No NAS connection? No Fully Managed? Yes Administrative rights owned by IBM during steady state? Yes
Quantity 10 Model x3850 Processor 2 slots, 4x 3 GHz CPUs Memory 8 GB Local Disk drives · 3 x 73 GB 2.5 disk- 2 OS + 1 hot spare OS * Win2003 (Qty 6), Linux RedHat AS (Qty 4). SAN connections? Yes NAS connection? No Fully Managed? Yes Administrative rights owned by IBM during steady state? Yes
SAN Fabric and SAN Storage Base Components - Shared Environment SAN Fabric Number of servers connected to the SAN 10 Number of SAN switch Ports 20
SAN Storage Base Components - Shared environment SAN Storage - Shared Amount of usable space to be allocated, in GB 1600 GB
Raid Level Raid5 (standard)
Page 34 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Part III - Customer Components Customer will provide all Content and all components not specified as IBM provided infrastructure or IBM provided Base Components in Part I or Part II of this Attachment B.
Page 35 of 36
Attachment C - Charges
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Attachment C - Charges
One-time Charges One-time charges for Managed Hosting Services of $81,217.00 will be invoiced in January 2009 and payable in accordance with section 5.2 Payment. Monthly Recurring Charges Monthly recurring charges for Managed Hosting Services of $37,000.00 will begin on the Hosting Service Ready Date and may be prorated based on the date during the month that Managed Hosting Services commence, change, or end. Usage Charges
Additional hourly support Operational Assistance Per Hour $89.10 SmartHands (systems administrative and technical assistance) Per Hour $188.02 Operational DBA Per Hour; MS SQL $204.37 Charges for additional hourly support requested by Customer, if any, (support that is outside the scope of services included in the monthly recurring charges specified above) will be due as incurred. IBM will charge for additional hourly support in fifteen (15) minute increments. b. Peak Bandwidth Usage Peak Bandwidth Usage charges for data traffic in excess of Committed Bandwidth are due as incurred. IBM will determine Peak Bandwidth Usage charges each month by subtracting the Committed Bandwidth from the Peak Bandwidth Usage for that month and multiplying the difference by the Peak Bandwidth Usage rate of $147.14.00 per Mbps. c. SmartHands hourly support Charges for SmartHands hourly support requested by Customer, if any, will be due as incurred. IBM will charge for SmartHands hourly support in fifteen (15) minute increments. d. Additional Hourly Database Support Charges for additional hourly database support (Additional Hourly Database Support) requested by Customer, if any, (database support that is outside the scope of database support hours included in the monthly recurring charges) will be due as incurred. IBM will charge for Additional Hourly Database Support in fifteen (15) minute increments. Termination Charges In the event the Customer elects to terminate this Agreement, or any portion of the Services described herein, for convenience, Customer will pay the applicable termination charges as set forth in the table below. 3-year (thirty six (36) month) Term: For termination: For any terminated Services, Customer will be charged:
prior to first anniversary of the Hosting Service Ready Date four (4) months' applicable recurring monthly charges plusany unpaid One Time Charges from the first anniversary of the Hosting Service Ready Date and prior to the second anniversary of the Hosting Service Ready Date
three (3) months' applicable recurring monthly charges
from the second anniversary of the Hosting Service Ready Date and prior to the expiration of this Agreement two (2) month's applicable recurring monthly charges
Page 36 of 36
Source: QUANTUM GROUP INC /FL, 8-K, 1/20/2009
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Customer is responsible for obtaining and maintaining personal property insurance sufficient to cover the value of Customer Components;
EXHIBIT 10.26 MICOA AGENCY AGREEMENT
Mutual Insurance Corporation of America, a Michigan insurance corporation (MICOA) and Stratton, Cheeseman & Walsh-Nevada, Inc., a Nevada corporation, (Agency), (sometimes commonly referred to as the Parties) agree as follows:
A. AUTHORITY OF AGENCY
Subject to requirements imposed by law, the underwriting rules, procedures and regulations of MICOA and this agreement, the Agency is authorized to:
1. Solicit within the State of Nevada, receive and transmit immediately and directly to MICOA, proposals for health care liability insurance contracts for which a commission is specified in the schedule of commissions provided by Exhibit A, attached and as amended or supplemented by such attachments from time to time.
2. Produce and deliver certificates of insurance and written binders in accordance with MICOA underwriting requirements. The Agency is not authorized to accept or bind any risk or to otherwise obligate MICOA without specific authority from MICOA.
3. Provide all usual and customary services of an Agency on all policies placed with MICOA subject to the following:
a. MICOA will not be responsible for Agency expenses including but not limited to rent, transportation, employee hire or solicitor's fees, postage, telegrams, telephone, advertising, licensing fees or any other Agency expenses whatsoever.
b. The Agency will not undertake or initiate advertising of any nature in connection with business or policies related to MICOA without the approval of MICOA.
4. To promptly report all claims and losses of which the Agency has knowledge and properly notify MICOA when the Agency receives notice of the commencement of any related legal action. Agency shall refrain from admitting or denying liability on the part of the company in connection with any claim or lawsuit.
5. In return for the exclusive appointment of Agency by MICOA to sell its professional liability products listed on the &sbsp;attached Commission Schedule
in Nevada, Agency agrees not to sell any competing professional liability products in Nevada, without the written consent of MICOA. Provided that, if a particular risk has been submitted to MICOA and MICOA has declined that risk, then Agency may search appropriate markets for placement of that risk, and may place that risk with another insurance company.
6. Designated Agent representatives upon request from MICOA will be expected to participate in MICOA's Nevada Market Managers Group activities and to attend all scheduled meetings.
7. MICOA will share on a project basis development costs of all promotional materials and some advertising costs related to Nevada sales, provided that all such expenditures or budgets for them are approved by MICOA in writing in advance.
8. Agency may solicit subagencies for appointment, subject to MICOA's prior written approval of each subagency following disclosure to and review by MICOA of information requested by MICOA for each proposed subagency. All such appointments by Agent shall stipulate that MICOA may terminate the subagency at any time without cause upon at least 90 days notice and that the subagency shall comply with all MICOA requirements and duties owed MICOA by Agency concerning solicitation, communications, and service to insureds. Subagencies shall also be required to submit all proposals immediately and directly to MICOA.
B. MICOA BILLED POLICIES
For business subject to Exhibit A, placed with and billed by MICOA directly to the policyholder, the following shall apply in addition to all the other provisions of this agreement:
1. The processing and submittal of all such business shall be subject to provisions outlined in MICOA's written requirements and forms as they may be implemented by MICOA from time to
time;
2. Commissions on premiums shall be paid to the Agency within 30 business days of the month in which such premiums are received and recorded by MICOA, subject to deduction by MICOA of any return commissions due from the Agency.
3. Except as provided in Section D or unless authorized by the Agency, MICOA or its affiliates shall not use its records of business placed by the Agency with MICOA to solicit individual policyholders for the sale of other lines of
-2-
insurance or other products or services. When the Agency grants such authorization, Agency shall be paid the applicable commission on such sales, provided an appropriate agreement is in place with MICOA.
4. If this agreement is terminated, MICOA shall, at the Agency's request, provide the Agency with a list of existing MICOA-billed policies placed by the Agency including their expiration dates.
5. The Agency's name shall appear on all policies, premium notices, and cancellation notices to policyholders. Copies of all such items sent to policyholders shall be provided by MICOA to the Agency.
C. POLICY CANCELLATION
Cancellation of any policy in force, when requested in writing by the insured, will be honored by MICOA, except for those MICOA is not otherwise permitted to cancel.
D. EXPIRATIONS
1. In the event this Agreement is terminated for any reason, MICOA agrees to purchase from Agency, and Agency agrees to sell to MICOA Agency's ownership interest in the expirations for the MICOA insurance issued pursuant to this Agreement. The purchase price shall be two times Agency's commissions on business produced directly by Agency during the last 12 full months preceding the termination date. The purchase shall be completed within 60 calendar days after the termination date. In return for this payment, for a two-year period following the termination date, Agency will not directly or indirectly sell any professional liability insurance to any individuals or entities who were MICOA insureds in Nevada at the time of termination of this Agreement.
2. If Agency enters into a subagency agreement under which the subagency has the right to retain ownership of expirations on business produced by the subagency, then the purchase of expirations under subparagraph 1 above will not include the purchase of those subagency expirations, and the purchase price paid to Agency will not include the commissions paid for such business produced by the subagency.
-3-
E. AGENCY'S ERRORS AND OMISSION, AND FIDELITY & ELECTRONIC CRIME INSURANCE
The Agency will maintain valid errors and omissions insurance, with minimum limits of $1,000,000 per incident, and a fidelity and electronic crime policy through an insurer, both of which shall contain terms and limits of coverage acceptable to MICOA covering the Agency's solicitors and each of its employees. The Agency shall provide MICOA a copy of each policy; doing so on a regular and current basis shall be a precondition to all of Agency's rights under this Agreement, including but not limited to the payment of all earned commissions.
F. TERMINATION OF AGREEMENT
1. This agreement shall terminate:
a. Automatically if any public authority cancels or declines to renew the Agency's license or Certificate of Authority.
b. Immediately if either party gives detailed written notice to the other of alleged gross and willful misconduct, fraud or material misrepresentation.
2. This Agreement shall terminate, subject to any automatic renewal or extension for one year as required by law, upon either party giving at least one hundred twenty (120) days advance written notice to the other, if not otherwise contrary to applicable law or this Agreement.
3. If the Agency is delinquent in either accounting or payment of
monies due MICOA, MICOA may by written notice to the Agency immediately terminate, suspend or modify any of the provisions of this agreement. Such action shall not be taken by MICOA over minor differences between the records of the Agency and MICOA.
4. All supplies, including forms and policies furnished by MICOA and any copies or other reproductions of them, shall remain the property of MICOA and shall be returned to MICOA or its representative upon demand.
G. INDEMNIFICATION
The respective parties shall indemnify and hold one another harmless as follows:
-4-
1. MICOA shall indemnify and hold Agency harmless against any MICOA act or omission, except to the extent the Agency has caused, compounded, or contributed to such error.
2. Agency shall indemnify and hold Agency harmless against any act or omission of the Agency, except to the extent MICOA has caused, compounded, or contributed to such error.
3. The Agency and MICOA shall properly notify one another upon receiving notice of the commencement of any action related to such liabilities. MICOA shall be entitled to participate in any such action or in consultation with Agency and its carrier to assume the defense of any such action. If MICOA assumes the defense of any such action, it shall not be liable to the Agency for any legal or other expenses subsequently incurred on the Agency's behalf absent MICOA's advance approval of such expenses.
4. Neither party shall, except at its own risk and expense, voluntarily assume any liability, make any payment or incur any expense without the prior written consent of the other.
H. POTENTIAL OPPORTUNITIES
1. Other Programs. Agency and MICOA agree that Agency may be offered the opportunity to support MICOA's workers' compensation, and its other nonphysician professional liability or product programs in Nevada when MICOA proceeds with related marketing plans. Such plans may also include Agency's involvement in sales of MICOA commercial and personal products. Appropriate agreements must be negotiated separately from this agreement for each such product, and for each such territory, including but not limited to Nevada.
2. Territory. Agency and MICOA further agree to consider, subject to successful negotiation of appropriate agreements separate from this agreement, expansion of Agencies' sales territories for MICOA beyond Nevada.
I. MISCELLANEOUS
1. Amendment. This agreement may be amended only in writing by mutual agreement of the Agency and MICOA, except that MICOA's name herein shall be deemed changed automatically for purposes of this agreement without written amendment upon approval of any such change by MICOA's domiciliary regulator.
2. Non Waiver. Any failure by MICOA to insist upon compliance with any provisions of this Agreement or of the rules and regulations of MICOA shall not be construed as or constitute a waiver of them by MICOA.
-5-
3. Integrated Agreement. This Agreement and its attachments as modified from time to time supersedes and replaces as of its effective date, all previous agreements, if any, between MICOA and the Agency. There are other agreements between MICOA and the Agency's parent corporation, SC&W, which are not superceded.
4. &bbsp; Independent Contractor. The Agency is an independent insurance Agency and independent contractor, and not an employee, manager, officer or owner of MICOA.
5. Applicable Law. This Agreement shall be interpreted under the laws of the State of Nevada. Any provisions of this Agreement or any amendments to the Agreement that are or become in conflict with any applicable statutes or regulations shall be deemed to be amended to conform to those statutes or regulations.
6. Counterparts. This Agreement and any Exhibits which require signatures may be executed in counterparts which shall
together be regarded as binding upon the Parties.
7. Authority. The persons signing below represent and warrant that they are duly authorized representatives of the respective Parties, fully willing and able to execute this Agreement.
8. Assignment. MICOA may assign this Agreement to its parent, affiliate, or subsidiary corporations who are licensed insurers upon written notice to Agency. Agency may not assign this Agreement without the written permission of MICOA or its successors or assigns.
9. Resolution of Disputes. In the event of any dispute arising out of this Agreement, MICOA and Agency agree to submit such dispute to arbitration as follows:
a. There shall be three arbitrators; one shall be selected by the Agency, one shall be selected by MICOA, and a third shall be selected by those two arbitrators. If the two arbitrators cannot agree on the selection of a third, American Arbitration Association's regional office closest to Agency's main office shall be requested to appoint the third arbitrator.
b. The determination of the arbitrators shall be final and binding upon the Agency and MICOA.
c. Neither MICOA nor the Agency shall be entitled to punitive and/or exemplary damages.
-6-
d. The arbitration shall be conducted in accordance with the procedures of the above referenced regional office of the American Arbitration Association. The Agency and MICOA shall pay the cost of their arbitrator and share equally in the expense of the third arbitrator.
e. Either Party, may where permitted by the law of Nevada, enter judgment upon the arbitrators' award.
10. Year 2000 Compliance. Agency must at times assure that any of its computers, data processing systems, software components, and network arrangements use for MICOA business completely and accurately, present, produce, store and calculate all dates after December 31, 1999; and that they will not produce abnormally ending or incorrect results involving such dates as used in any forward or regression data based functions. All such items must yield date-related functionalities and date fields which accurately indicate the century and millennium and correctly perform all calculations involving a four digit year field.
Signed and effective this 25th day of May, 1999.
AGENCY
By: /s/ Terrence L. Walsh ------------------------------------
Its: President
MICOA
By: /s/ Thomas C. Payne, M.D. ------------------------------------ Thomas C. Payne, M.D. Secretary/Treasurer
-7-
EXHIBIT A
AGENCY AGREEMENT SCHEDULE OF COMMISSIONS AND WRITTEN PREMIUM
New Business Policies: 12% of the annual premium Renewal Policies: 12% of the annual premium
Appointed agents who are not a party to a current MICOA agency contract and/or
are not affiliated with an agency which has an agency contract will receive a 1% commission rate for all lines of business stated above.
Commission will decrease by .5% effective 10/1/99 as part of a repayment program under a project memorandum dated 4/7/99. This decrease will stay in effect until SC&W reaches $10MM in premium or at a maximum of 10 years.
-8-
April 7, 1999
Mr. Terrence Walsh Stratton, Cheeseman & Walsh, Inc. 1301 N. Hagadorn East Lansing, MI 48823
RE: NEVADA DEPARTMENT PROJECT MEMORANDUM
Dear Terry:
In response to MICOA's request to develop a complete insurance distribution system for Nevada, including physicians professional liability and personal and commercial insurance by July 1999, Stratton, Cheeseman & Walsh, Inc. (SC&W) has spent and will continue to spend a substantial amount of time and money. In recognition that these expenditures will directly benefit MICOA, SC&W and MICOA agree to the following:
- During the first two years of developing the Nevada distribution system, a portion of the start up costs will be shared. Subject to compliance with a detailed budget developed by SC&W and MICOA, these reimbursable costs shall include:
- Salaries and benefits for SCW-Nevada, Inc. employees and agents.
- 20% of your total personal benefits and salary, and 100% of your personal travel expenses incurred with respect to the Nevada office, which respective percentages are intended to recognize your personal support of MICOA's Nevada initiative.
- Legal expenses directly attributable to the Nevada initiative.
- Nevada office set up.
- Consultant's expenses paid by SC&W in direct support of the initiative.
- The above costs are to be designated and itemized in the preapproved budget and reimbursed by MICOA at 100% for the first full year of development and 50% for the second year. It is agreed that the first year began effective October 1, 1997.
- All other costs attributable to the normal operation of the Nevada insurance agency site are the sole responsibility of SC&W.
- After the first two years (i.e. after October 1, 1999) all expenses will be borne by SC&W and those amounts paid to SC&W during the first two years shall be repaid. Repayment shall be through reduction of commissions due SC&W by 0.5% or if
-7-
SC&W exceeds $10.0 million in premium revenues by offset in the event any money is owed the Agency by MICOA. Such reduction or offset shall occur for so long as necessary to repay amounts reimbursed by MICOA during the two-year period of development; but in no event will repayment be collected for a period of greater than ten years. Any unpaid amounts at the end of ten years shall be forgiven by MICOA.
- Nevada rent expenses will be shared on a 50/50 basis between MICOA and SC&W.
- In order to allow SC&W to expand the distribution system in Nevada with select and controlled subagents, an exclusive agency agreement will be negotiated which will spell out the terms and conditions of the relationship. A commission rate of 12% will be paid for both new and renewal physicians liability business. Other commission rates will be determined as products become available. This Agency Agreement should be finalized by April 30, 1999.
- MICOA may pay future payments advanced pursuant to this letter on a monthly basis, unless doing so would be impractical, in which case another periodic form of&bbsp;payment will be arranged. Amounts owed for past time periods will be paid as follows: one-third by March 25, 1999; one-third by May 1, 1999; and one-third by June 1, 1999. All other amounts owed under this Project Memorandum to be paid by October 1, 1999.
SC&W's responsibilities, under this Project Memorandum, will include assisting MICOA with market assessment, distribution, and sales integration into Nevada. SC&W agrees not to serve in a strategic marketing capacity for another insurer
in Nevada while it is providing such services for MICOA or for a period of one year thereafter.
Terry, please countersign and return this letter to indicate your acceptance.
Sincerely,
MUTUAL INSURANCE CORPORATION OF AMERICA
/s/ Thomas C. Payne, M.D. ----------------------------------------- Thomas C. Payne, M.D. Secretary/Treasurer
ACCEPTED AND AGREED TO: STRATTON, CHEESEMAN & WALSH, INC.
/s/ Terrence L. Walsh ----------------------------------------- Terrence L. Walsh CEO
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
The Agency will maintain valid errors and omissions insurance, with minimum limits of $1,000,000 per incident, and a fidelity and electronic crime policy through an insurer, both of which shall contain terms and limits of coverage acceptable to MICOA covering the Agency's solicitors and each of its employees.
Exhibit 10.1 JACKSONVILLE JAGUARS SPONSORSHIP AGREEMENT This Sponsorship Agreement (this Agreement) is entered into as of November 27, 2017 (the Execution Date) by and between Jacksonville Jaguars, LLC, a Delaware limited liability company (Club), and The ARC Group, Inc., a Florida corporation (owner and operator of Dick's Wings and Grill) (Sponsor). This Agreement consists of this Sponsorship Agreement and Exhibits A and B hereto, each of which is incorporated into and forms a part of this Agreement by this reference. RECITALS A. Club owns and operates the National Football League (NFL) team known as the Jacksonville Jaguars (the Team) and has the right to grant sponsorship rights and to exploit certain commercial, advertising and related opportunities with respect to the Team, including at the football- based stadium in Jacksonville, Florida currently named EverBank Field (the Stadium). B. Sponsor wishes to obtain certain sponsorship rights, benefits and opportunities with respect to the Team in connection with the advertising and promotion of the Sponsor Business (as defined below). In consideration of the mutual covenants contained herein, the parties agree as follows: 1. Term of Agreement. This Agreement shall be binding on the parties hereto as of the Execution Date. The term of this Agreement (the Term) shall commence as of April 1, 2018 (the Effective Date) and shall expire upon the later of: (a) the conclusion of the 2022/23 NFL season and (b) the last day in February, 2023 (such expiration date, the Scheduled Expiration Date), unless sooner terminated pursuant to the terms of this Agreement. 2. Sponsor Rights and Benefits. Subject to the terms and conditions of this Agreement, as part of the consideration of the full and timely payment of the Sponsor Fees, Club hereby grants to Sponsor, and Sponsor hereby accepts, solely in the Territory, and during the Term: (i) the right to use the Benefits set forth on Exhibit A and the license and right to use the Team Marks solely in connection with the advertisement and promotion of Sponsor's Dick's Wings and Grill branded restaurants (the Sponsor Business) in accordance with this Agreement; and (ii) the right to use the designation Official Wings of the Jacksonville Jaguars and such other designations as Club and Sponsor may agree to in a writing from time to time (collectively, the Official Designations), solely in connection with the Sponsor Business. No license or right is granted for the use of any other Club intellectual property for any other purpose, in any geographic area outside the Territory, for any medium of distribution that cannot be reasonably limited to the Territory, or during any period before or after the Term. The rights granted to Sponsor pursuant to this Section 2 may not be used to promote or advertise any products or services of Sponsor other than the Sponsor Business, or any other person or entity, whether directly or by affiliation, cooperation, co-sponsorship, or any joint programs or promotions. 3. Annual Fees; Playoff Payment. (a) In consideration for the Benefits, during each Contract Year of the Term, Sponsor shall pay Club, in accordance with this Section 3(a) and Section 2(d) of the Terms and Conditions, the amount set forth next to the applicable Contract Year below (the Annual Fee). First Contract Year (2018/19): $ 200,000 Second Contract Year (2019/20): $ 204,000 Third Contract Year (2020/21): $ 208,080 Fourth Contract Year (2021/22): $ 212,240 Fifth Contract Year (2022/23): $ 216,490 Sponsor shall pay Club the Annual Fee for each Contract Year of this Agreement in six (6) equal installments, each due on or prior to the 1st of each month between June and November of the applicable Contract Year. (b) In addition to the Annual Fees identified in Section 3(a) above, Sponsor shall provide Club with food, beverage and serving products from Sponsor's Dicks' Wings restaurant with values equal to the following (each, an Annual Trade Value): First Contract Year (2018/19): $ 35,000 Second Contract Year (2019/20): $ 35,700 Third Contract Year (2020/21): $ 36,410 Fourth Contract Year (2021/22): $ 37,140 Fifth Contract Year (2022/23): $ 37,890 As part of the Annual Trade Value, Sponsor shall provide Club with a designated liaison who will coordinate the menu and quantities to be provided by Sponsor. Sponsor shall deliver the food (the cost of which is included in the Annual Trade Value) to the Stadium at the time and location specified by Club. If any portion of the Annual Trade Value is not used in any given Contract Year, such unused amount shall carry forward to the subsequent Contract Year. If any portion of the Annual Trade Value is not used at the end of the Term, Club shall be permitted to use such unused amount within twelve (12) months following expiration of this Agreement. The parties acknowledge that the Annual Trade Value is inclusive of any taxes, surcharges or related fees applicable to the orders placed by Club during the Term.
Source: ARC GROUP, INC., 8-K, 12/11/2017
(c) If, during the Term, the Team plays in the Hall of Fame game, or any post-season playoff game, including any wild card, divisional playoff, conference championship, or Super Bowl (each, a Playoff Game), to the extent Club has the necessary rights to grant the Benefits identified on Exhibit A for such Playoff Game, Sponsor shall pay Club an additional amount per Playoff Game equal to a pro-rated portion of the Annual Fee applicable during the then-current Contract Year. The pro-rated portion shall be determined by Club using Club's internal line item accounting values as set forth in Club's standard rate card for such Benefits during each Playoff Game; provided that the cost of the Playoff Game tickets shall be based upon the generally applicable price for such tickets (the Playoff Payments). Sponsor shall pay the Playoff Payments in accordance with Section 2(d) of the Terms and Conditions not later than 30 days following Sponsor's receipt of an invoice requesting payment for such Playoff Games; provided that Club's failure to deliver such an invoice shall not, and not be construed to, relieve Sponsor of any obligation to pay any amount owed to Club. 4. Definitions. Capitalized terms used but not otherwise defined herein have the respective meanings given to them on Exhibit B (as it may be amended or otherwise modified from time to time, the Terms and Conditions). 5. Standard Terms and Conditions. Except as expressly set forth in this Sponsorship Agreement or Exhibit A, all Benefits granted by Club to Sponsor hereunder shall be subject to, and Sponsor shall at times comply with, the terms and conditions set forth in the Terms and Conditions. 6. Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally or by electronic mail (confirmed by one of the other permissible methods of giving notice hereunder), one business day after being sent by a nationally recognized overnight courier, or three business days after being mailed by registered or certified mail, postage prepaid and return receipt requested, to the parties at the following addresses (or at such other address as a party may specify by notice to the other): To Sponsor: The ARC Group, Inc. To Club: Jacksonville Jaguars, LLC 6327-4 Argyle Forest Blvd. 1 EverBank Field Drive Jacksonville, Florida 32244 Jacksonville, Florida 32202 Attn: Rick Akam Attn: Scott Massey Title: CEO Senior Vice President, Corporate Partnerships Email: rick@dickswings.com masseys@nfl.jaguars.com With a copy to: _________________________ With a copy to: Jacksonville Jaguars, LLC _________________________ 1 EverBank Field Drive _________________________ Jacksonville, Florida 32202 Attn: ____________________ Attn: Megha Parekh Title: ____________________ Senior Vice President, Chief Legal Officer Email: ____________________ parekhm@nfl.jaguars.com Notwithstanding the foregoing, delivery of an invoice via solely electronic mail shall constitute sufficient delivery under this Agreement. 7. Integration; Amendment. This Agreement contains the complete understanding between the parties hereto and supersedes all prior and contemporaneous written or verbal agreements or understandings (including but not limited to all negotiations, term sheets, letters of intent, presentations, and prior drafts of this Agreement) relating to the subject matter hereof. This Agreement may not be amended or otherwise modified except in a writing specifically referring to this Agreement and signed by authorized representatives of Sponsor and Club. 8. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together shall constitute one single agreement. Delivery of an executed counterpart by electronic transmission shall have the same effect as delivery of an original ink counterpart. IN WITNESS WHEREOF, each party has caused this Agreement to be executed in Jacksonville, Florida, by its duly authorized representative with the intent that it be binding as of the Execution Date. CLUB: SPONSOR: JACKSONVILLE JAGUARS, LLC The ARC Group, Inc. By: /s/ Scott Massey By: /s/ Richard W. Akam Scott Massey Rick Akam SVP, Corporate Partnerships CEO
Page 2 of 4
Source: ARC GROUP, INC., 8-K, 12/11/2017
EXHIBIT A Sponsorship Benefits For purposes of clarity, the Benefits set forth on this Exhibit A are subject to the terms and conditions of this Agreement, including the Club Approval Rights under Section 5 of the Terms and Conditions. 1. STADIUM SIGNAGE a. Carousel Messaging: Sponsor shall receive three (3) minutes of real time (and not game clock time) of display of a Sponsor Mark on LED carousel Signage on one (1) of the main video boards above the north or south end zone during each quarter of each preseason and regular season Jaguars Home Game. During each three (3) minute segment, Sponsor may include up to thirty seconds (:30) of animated messaging. Sponsor shall be solely responsible for any costs related to the animated messaging. a. Ribbon LED Signage: Sponsor shall receive display of a Sponsor Mark on the LED ribbon boards located on the fascia on the east and west sides of the Stadium for thirty seconds (:30) of real time (and not game clock time) during each quarter of each preseason and regular season Jaguars Home Game. The exact timing of each display shall be determined by Club. b. Concourse Signage: Sponsor shall receive display of a Sponsor Mark or Advertisement on five (5) back-illuminated advertising panels at certain locations on the Stadium concourses to be displayed during each preseason and regular season Jaguars Home Game. The exact size and location of each panel shall be determined by Club. 2. RADIO a. Radio Spots: Sponsor shall receive the following radio spots in Club radio programming broadcasted by Club's primary radio partner. The exact timing of each spot shall be determined by Club or Club's primary radio partner: i. Jaguars Thursday: A total of twenty-three (23) thirty second (:30) spots for broadcast of an advertisement of the Sponsor Business during certain initial broadcasts of Jaguars Thursday. ii.Pre-Game Show: One (1) thirty second (:30) spot for broadcast of an advertisement of the Sponsor Business during each initial broadcast of the Pre-Game Show (for a total of twenty (20) spots during each Contract Year). iii.In-Game: One (1) thirty second (:30) spot for broadcast of an advertisement of the Sponsor Business during the initial broadcast of each preseason and regular season Team Game radio broadcast (for a total of twenty (20) spots during each Contract Year). 3. DIGITAL a. Banner Ad: During each Contract Year, Sponsor shall receive display of a Sponsor Mark on one (1) banner advertisement in respect of the Sponsor Business that rotates throughout www.jaguars.com (approximately 300x250 pixels) and that links to Sponsor's official website. The exact placement of the banner shall be determined by Club in its sole discretion. b. Gameday Magazine: During each Contract Year, Sponsor shall receive space to display one (1) full page advertisement in respect of the Sponsor Business and display of a Sponsor Mark in each digital (or printed, as determined by Club) issue of the Gameday Magazine distributed to Club's season ticket members prior to each Jaguars Home Game. The exact size and placement of the advertisement and timing of each distribution of the Gameday Magazine shall be determined by Club in its sole discretion. c. Social Media Feature: During each Contract Year, Sponsor shall be the presenting sponsor of a video feature that highlights a top rushing play by a Team player during each preseason and regular season Team Game (the Feature). The top rushing play shall be determined by Club in its sole discretion. Such presenting sponsorship shall consist of the following: i. A Sponsor Mark displayed in the Feature, which shall be published by Club to Club's official Facebook, Twitter, Instagram or Snapchat account. The post will tag Sponsor's official corresponding social media account. The content, timing and frequency of such social media posts and the social media platforms shall be determined by Club. 4. HOSPITALITY a. Season Tickets: Sponsor shall receive tickets (in Section 150, Row X, Seats 5-8, or a substantially similar location) to each preseason and regular season Jaguars Home Game.
Page 3 of 4
Source: ARC GROUP, INC., 8-K, 12/11/2017
5. CONCESSIONS a. Branded Concession Stands: During each preseason and regular season Jaguars Home Game and Other Events as requested by Club or the Stadium concessionaire (Concessionaire), Sponsor shall have the right to display Sponsor branding on (i) one (1) fixed concession stand in the Stadium located in the Bud Light Party Zone; and (ii) the fixed concession stand identified as Concession Stand 118 on the Stadium concourse (collectively, the Stands). The exact size and location of the Stands shall be determined by Club. The exact design of the Stands shall be mutually agreed upon between Sponsor and Club. Sponsor may display Signage displaying a Sponsor Mark in and/or on the Stand. Sponsor shall be responsible for all costs associated with the branding and Advertising in respect of the Stand. b. Vending: Subject to the Concessions Agreement (as defined herein), Sponsor shall have the right to have its food products sold or otherwise distributed from the Stands and/or certain general concessions areas at the Stadium determined by Club or the Concessionaire. For purposes of clarity, nothing in this Agreement grants Sponsor the right to operate the Stand or otherwise sell or distribute food products from or within the Stand. Sponsor shall enter into an agreement with the Concessionaire to memorialize any such rights regarding the sale or distribution of Sponsor's products at the Stadium during each Jaguars Home Game and Other Events (the Concessions Agreement). The exact products to be sold and distributed shall be subject to Club's final approval. For purposes of clarity, Club reserves the right to sell other products at the Stadium competitive to the Sponsor Business. Sponsor acknowledges that such rights do not automatically extend to Other Events at the Stadium. Sponsor acknowledges that Sponsor shall cooperate with the Concessionaire regarding logistics and management of the Sponsor's food products, and appropriate storage and dispensation of the food products. In the event of any recall with respect to Sponsor's products provided to the Concessionaire pursuant to this Agreement or the Concessions Agreement, Sponsor shall notify both Club and the Concessionaire immediately upon issuance of such recall, and Club may, at its sole discretion and without penalty, suspend the Benefits for a duration as reasonably determined by Club. Any costs or expenses incurred by Club or the Concessionaire with respect to any such recall shall be the sole responsibility of Sponsor. Sponsor shall be responsible for the management and control over the services provided by its staff members operating the Stands (Sponsor Staff) and Sponsor shall be solely responsible for determining the terms of employment for Sponsor Staff. Sponsor shall train Sponsor Staff or require Sponsor Staff to undergo training provided by Concessionaire. The staffing levels at each Stand shall be subject to Club's approval.
Page 4 of 4
Source: ARC GROUP, INC., 8-K, 12/11/2017
Question: Highlight the parts (if any) of this contract related to License Grant that should be reviewed by a lawyer. Details: Does the contract contain a license granted by one party to its counterparty?
|
Subject to the terms and conditions of this Agreement, as part of the consideration of the full and timely payment of the Sponsor Fees, Club hereby grants to Sponsor, and Sponsor hereby accepts, solely in the Territory, and during the Term: (i) the right to use the Benefits set forth on Exhibit A and the license and right to use the Team Marks solely in connection with the advertisement and promotion of Sponsor's Dick's Wings and Grill branded restaurants (the "Sponsor Business") in accordance with this Agreement; and (ii) the right to use the designation "Official Wings of the Jacksonville Jaguars" and such other designations as Club and Sponsor may agree to in a writing from time to time (collectively, the "Official Designations"), solely in connection with the Sponsor Business.
|
task597_cuad_answer_generation
|
NIv2
|
fs_opt
| 0
|
train
|
Detailed Instructions: In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Q: Exhibit 99(h)(3) WHOLESALE MARKETING AGREEMENT THIS AGREEMENT is entered into effective as of the 24t h day of August 2018, by and among ALPS Distributors, Inc., a Colorado corporation (the Distributor) and S2K Financial LLC, a Delaware limited liability company (S2K). WITNESSETH: WHEREAS, the Distributor has entered into a Distribution Agreement with each fund set forth in Exhibit A hereto, each a Delaware statutory trust and each of which is registered under the Investment Company Act of 1940, as amended (the 1940 Act), as a closed-end management investment company (each a Fund and collectively referred to as the Funds); WHEREAS, the Distributor is the distributor of each Fund and enters into broker-dealer selling agreements (Selling Agreements) with respect to each such Fund; WHEREAS, the Funds' shares may be sold by broker-dealers registered with the Securities and Exchange Commission (the SEC) and the Financial Industry Regulatory Authority (FINRA); and WHEREAS, the Distributor wishes to retain S2K, through registered representatives of S2K (Authorized S2K Representatives), to introduce the Funds to registered representatives of broker-dealers and registered investment advisers located at the financial institutions (each, an Intermediary and collectively, Intermediaries) that may have customers interested in investing in a Fund. NOW, THEREFORE, in consideration of these premises and of the mutual covenants and agreements hereinafter contained, the sufficiency of which is hereby acknowledged by the parties, the parties hereto agree as follows: 1. Services Provided by S2K. S2K agrees, subject to the provisions of this Agreement, through its Authorized S2K Representatives, to use its reasonable best efforts to market the Funds to the Intermediaries, and to identify, refer and/or introduce Intermediaries to the Funds. In connection therewith, S2K may (i) engage in seminars, conferences and media interviews for financial intermediaries; (ii) distribute sales literature and other communications (including electronic media) regarding the Funds, subject to review and approval of such material by the Distributor; and (iii) perform other services reasonably contemplated in writing by S2K and the Distributor. S2K shall not act as an underwriter in connection with S2K's wholesale activities relating to shares of the Funds where S2K receives all or substantially all of the sales load, as set forth in each Fund's then-current prospectus (Prospectus). S2K will market the Funds to Intermediaries that: (a) are registered as broker-dealers with the SEC, FINRA, and any other applicable jurisdiction in which they operate and are required to be so registered by law;
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
(b) will enter into a Selling Agreement agreed to by Distributor and such broker-dealers, or in such other form of Intermediary agreement (which shall include, without limitation, broker/dealer Selling Agreements, platform agreements and wirehouse agreements) as required by an Intermediary with the Distributor to sell shares of the Funds to investors (copies of which shall be made available to S2K); and (c) will sell shares of the Funds through representatives in accordance with the then-current applicable Prospectus and in accordance with the provisions of the Selling Agreement. 2. Services Provided by the Distributor. (a) The Distributor will coordinate the completion and execution of Selling Agreements with broker-dealers and/or Intermediaries. (b) Advertising and Sales Literature Review (i) The Distributor shall provide review of broker-dealer related advertising and sales literature pieces (marketing pieces) submitted to Distributor by S2K. Documentation (which shall include electronic correspondence) not defined as marketing pieces, which shall include, but is not limited to, correspondence and materials provided directly in response to due diligence requests, shall be principally reviewed and approved by S2K. (ii) Distributor's services are based on the understanding that S2K will utilize current systems and expertise owned by Distributor, specifically the AdLit Advertising Review System (AdLit), and that Distributor will base its reviews on: (i) the guidelines contained within Distributor's Sales and Advertising Guide and Distributor's Written Supervisory Procedures; (ii) rules and guidance issued by FINRA and the SEC related to communications with the public and/or communications to institutional investors, as those terms are defined in FINRA Rules 2210 and 2211 and in various other FINRA and SEC rules and interpretive material; and (iii) Distributor's submission guidelines with respect to the use of trademarked and/or copyright materials, to the extent applicable. All material submitted to Distributor will be provided by Distributor to S2K with comments or approval no later than three business days after receipt in AdLit. (iii) Each marketing piece submitted to Distributor for review will be subject to the following process: a) Each piece will undergo review at Distributor by a FINRA-licensed registered principal possessing the required expertise and appropriate license to review the marketing piece submitted to Distributor; b) Distributor's comments shall consist of (i) recommendations for changes that, in the opinion of the Distributor reviewer, will be consistent with the guidelines specified by Distributor in Section 2(b)(ii) above, or (ii) in the form of an acknowledgement that the submitted material is consistent with such guidelines with no additional changes. In the event of the latter, the item will be approved by the registered principal and filed with the applicable regulatory body if necessary;
- 2 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
c) Distributor will provide system training and ongoing consulting with respect to advertising review guidelines and rules for each marketing piece submitted via the process described herein; and d) Distributor will make all required FINRA filings of marketing materials which have been approved by Distributor. (iv) If S2K wishes Distributor to perform an expedited review of marketing pieces within one business day of Distributor' receipt of such marketing pieces, the expedited review will be performed subject to and in accordance with the following: a) A charge of $250 will apply to each request for expedited review, in addition to FINRA filing fees. b) The marketing piece must be 30 pages or less in actual length in order to be considered for expedited review. Web pages and other marketing pieces over 30 pages require a more in-depth review; therefore, Distributor cannot guarantee a one business day review for these items. c) The marketing piece must be submitted via Distributor's AdLit system by no later than 3:00 P.M. Mountain Time (2:00 P.M. PT/5:00 P.M. ET) on a business day in order to ensure that the Distributor has a full one business day to review and provide S2K with comments within such one business day timeframe. d) S2K must check the box on the AdLit coversheet whereby S2K requests and accepts the terms and fee(s) associated with expedited review in order to ensure that Distributor is notified of the expedited request. e) Distributor cannot guarantee that a marketing piece will be APPROVED within one business day of being received via AdLit. Distributor will review and submit comments to S2K within this timeframe. If Distributor fails to provide S2K with comments within one business day, the $250 expedited review charge will not apply. 3. Performance Requirements. S2K shall devote sufficient staff and expenditures to the performance of its services as shall be consistent with industry standards for the marketing of shares of the Fund. S2K shall perform these services in a professional and competent manner and shall provide such office space and equipment, telephone facilities and personnel as it determines may be reasonably necessary or beneficial in order to provide such services at no cost to the Distributor. 4. Duration and Termination. The term of this Agreement shall commence on the Effective Date and shall end on the 60th day following a written notice from one party to the other of its decision to terminate this Agreement at the end of such 60-day period or upon termination of the applicable Distribution Agreement with respect to a Fund. Termination of this Agreement as to a Fund shall not terminate this Agreement with respect to any other Fund so long as such other Fund's (or Funds', as the case may be) Distribution Agreement is effective. If this Agreement is terminated by one party, it shall terminate the entire Agreement.
- 3 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
5. Compensation; Expenses (a) As described in the Fund's Prospectus, the Fund may impose a sales charge load in connection with the purchase of shares of the Fund, a portion of which will be paid to S2K pursuant to the terms and conditions of the Prospectus. (b) In consideration of the marketing, sales and other related activities provided by S2K, the Distributor may compensate S2K for such services on each Fund's behalf and at the direction of each such Fund. The amount of compensation payable by the Distributor to S2K hereunder shall be determined on a class by class basis. At the direction of each Fund, ALPS or its designated agent will facilitate the payment of the applicable dealer reallowance fee to S2K in the amounts set forth in Exhibit B hereto. S2K shall perform such distribution-related activities for which such payments are appropriate under all applicable rules and regulations and shall make such occasional certification as required by the Distributor to such effect. (c) No compensation with respect to a Fund shall be due and owing hereunder until the Distributor actually receives payments from such Fund, to the extent applicable. (d) Notwithstanding anything to the contrary herein, in no event shall S2K be entitled to receive fees or compensation that would cause a Fund's sales charges to exceed the maximum amount allowed under FINRA rules or applicable law. (e) S2K shall reimburse Distributor for all reasonable out-of-pocket expenses, including but not limited to: FINRA advertising/filing fees (including additional fees for expedited reviews as set forth in Section 2(b) herein). 6. Representations. (a) S2K hereby represents and warrants to the Distributor that: (i) It is a limited liability company duly organized and existing and in good standing under the laws of the State of Delaware; (ii) It and all requisite personnel have or shall obtain and each shall use their best efforts to maintain all approvals and licenses necessary for the performance of the Services including proper registration and licensing with the SEC and or FINRA, as applicable; (iii) It is and will use its best efforts to remain duly licensed or registered with the SEC, applicable state securities regulators and FINRA, as applicable; (iv) It is empowered under applicable laws and by its limited liability company agreement to enter into and perform this Agreement;
- 4 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
(v) No consent, approval, authorization or other order of governmental authority is required in connection with the execution or delivery by S2K of this Agreement; (vi) There are no actions, suits or proceedings pending, or to the knowledge of S2K, threatened against S2K at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which would be reasonably expected to have a material adverse effect on the business or property of S2K; (vii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by S2K will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over a Fund, except for such conflicts or defaults that would not reasonably be expected to have a material adverse effect on the business or property of S2K; (viii) It will make no representations concerning a Fund other than those contained in the applicable Prospectus or in any promotional materials or sales literature furnished to S2K by the Distributor or prepared by S2K and approved for use by the Distributor, except as otherwise noted in this Agreement; (ix) While it is authorized by the Distributor to solicit purchases of Fund shares, it is understood that it will not open or maintain customer accounts or handle orders for a Fund; (x) All requisite corporate actions have been taken to authorize it to enter into and perform this Agreement; (xi) It and Authorized S2K Representatives are and will use best efforts to remain properly registered with and licensed by the SEC and are and will use best efforts to remain members in good standing of FINRA or any relevant subsidiary thereof, as applicable; (xii) The Authorized S2K Representatives will be registered representatives of S2K and subject to S2K's supervisory oversight in accordance with all applicable laws, rules and regulations in connection with the services provided hereunder; and (xiii) S2K understands and agrees that this Agreement does not relieve S2K of any obligation to which S2K may be subject under any applicable federal or state law. (b) The Distributor represents and warrants to S2K that: (i) It is a corporation duly organized and existing and in good standing under the laws of the State of Colorado;
- 5 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
(ii) It is a member of FINRA and it and its employees and representatives have all required licenses and registrations required by the SEC, FINRA or any other governing body to act under this Agreement; (iii) It is empowered under applicable laws and by its Articles of Incorporation and By-laws to enter into and perform this Agreement; (iv) All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement; (v) No consent, approval, authorization or other order of governmental authority is required in connection with the execution or delivery by the Distributor of this Agreement; (vi) There are no actions, suits or proceedings pending or to the knowledge of the Distributor, threatened against the Distributor at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which would be reasonably expected to have a material adverse effect on the business or property of the Distributor; (vii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Distributor will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over a Fund, except for such conflicts or defaults that would not reasonably be expected to have a material adverse effect on the business or property of the Distributor; (viii) It has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations under this Agreement in accordance with industry standards; (ix) Each Fund has filed a registration statement (a Registration Statement) with the SEC relating to its shares under the Securities Act of 1933, as amended (the 1933 Act), on Form N-2 which includes a Prospectus. The Registration Statement (including the Prospectus) conforms in all material respects to the requirements of the 1933 Act, the 1940 Act and the rules thereunder; and (x) To the extent required by applicable law, the Funds are registered and their shares are qualified for sale in the jurisdictions listed on Exhibit C unless S2K is notified in writing to the contrary. S2K may rely solely on such representation to the extent that S2K will only market a Fund in those jurisdictions where such Fund is registered. The Distributor otherwise assumes no responsibility or obligation as to S2K's right to market a Fund in any jurisdiction.
- 6 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
7. Indemnification. (a) S2K shall indemnify and hold harmless the Distributor and each of its affiliates, officers, directors, employees, agents and control persons (as defined in Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1934, as amended (the 1934 Act)), from and against any loss, liability, claim, damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damage or expense and reasonable counsel fees incurred in connection therewith), as incurred, arising in connection with (i) S2K's violation of any of the provisions of this Agreement or (ii) S2K's violation of any applicable law, rule or regulation with respect to its conduct under the Agreement; provided, however, that in no case is the foregoing indemnity to be deemed to protect the Distributor or any of its affiliates, officers, directors, employees, agents or control persons (as defined in Section 15 of the 1933 Act or Section 20 of the 1934 Act) against any liability to which the Distributor or any such person would otherwise be subject by reason of its willful misfeasance, bad faith or gross negligence or by reason of the Distributor's reckless disregard of its obligations and duties under this Agreement. (b) The Distributor shall indemnify and hold harmless S2K and each of its affiliates, directors, officers, employees, agents and control persons (as defined in Section 15 of the 1933 Act or Section 20 of the 1934 Act), from and against any loss, liability, claim, damage or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damage or expense and reasonable counsel fees incurred in connection therewith), as incurred, arising in connection with (i) the Distributor's violation of any of the provisions of this Agreement, (ii) the Distributor's violation of any applicable law, rule or regulation with respect to its conduct under the Agreement, or (iii) any untrue statement of a material fact or any omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading in any advertising or promotional material published or provided by the Distributor to S2K; provided, however, that in no case is the foregoing indemnity to be deemed to protect S2K and its affiliates, directors, officers, employees, agents and control persons (as defined in Section 15 of the 1933 Act or Section 20 of the 1934 Act), against any liability to which S2K or any such person would otherwise be subject by reason of its willful misfeasance, bad faith or gross negligence or by reason of the reckless disregard of S2K's obligations and duties under this Agreement. (c) Any and all claims, losses, cost or expenses shall be limited to actual and direct costs. In no event shall any party be responsible to the other for indirect, special or consequential damages. 8. Confidentiality. (a) Each party to this Agreement shall safeguard and hold confidential from disclosure to unauthorized parties all Confidential Information (as defined below) of the other party or parties. For purposes of this Section 8, the term Confidential Information shall mean any and all information which is in any way connected with, derived from or related to the business of a party, including without limitation, any business and financial records, any retail or institutional customer information, computer programs, technical data, investment information, lists, compilations, compositions, programs, plans, devices, descriptions, drawings, methods, techniques, processes, designs, theories concepts or ideas, and any information relating to the pricing or marketing policies, suppliers or customers of a party.
- 7 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
(b) Confidential Information shall not include information to the extent such information is (i) already known to the receiving party free of any restriction at the time obtained, including information in the public domain; (ii) subsequently learned from an independent third party free of restriction; (iii) known through no wrongful act of any party; or (iv) independently developed by one party without reference to information which is confidential. (c) For purposes of this Section 8, only the officers, directors and employees and agents of the parties, including their respective accountants, auditors and attorneys, shall be authorized parties, provided those individuals have a need to know the Confidential Information that is consistent with their respective positions and legal obligations and responsibilities. In the event that one party (the Disclosing Party) is requested or required by a court of competent jurisdiction or by any regulatory body which regulates the conduct of the Disclosing Party to disclose any Confidential Information of another party (the Non-Disclosing Party), the Disclosing Party shall provide the Non-Disclosing Party with prompt notice of any such request or requirement so that the Non-Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Non-Disclosing Party, the Disclosing Party is nonetheless, in the opinion of counsel, required to disclose Confidential Information, the Disclosing Party may, without liability hereunder, disclose only that portion of the Confidential Information which such counsel advises the Disclosing Party is required to be disclosed, provided that the Disclosing Party attempt to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the Non-Disclosing Party, at the Non-Disclosing Party's expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. (d) Each party further acknowledges and agrees that, in the event of a breach by it of the provisions of this Section 8, the other party or parties will suffer irreparable harm and damages and, accordingly, shall be entitled to seek injunctive or other equitable relief in a court of competent jurisdiction. (e) The provisions of this Section 8 shall survive any termination of this Agreement. 9. Fund Materials. S2K shall be entitled to produce materials (Fund Materials) for use in marketing a Fund as described herein, so long as the Fund Materials are produced, reviewed, principally approved, used and filed, where necessary, in accordance with FINRA and SEC regulations and those of any jurisdiction in which a Fund is solicited through use of the Fund Materials. All expenses and costs attributable to the foregoing provision shall be borne by S2K in accordance with Section 2 and Section 5 herein. S2K shall remain liable for any representations made by it or contained in materials produced and approved by S2K for use in marketing the Funds. 10. Relationship of the Parties. In carrying out the provisions of this Agreement, S2K is, for all purposes, an independent contractor and none of S2K's offices, directors, employees or representatives is an employee of the Distributor. As an independent contractor, S2K has no authority, express or implied, to speak for, act for or bind the Distributor in any manner whatsoever.
- 8 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
11. Regulatory Issues. (a) It is understood and agreed that in performing S2K's duties under this Agreement, S2K hereby undertakes to, and will use commercially reasonable efforts to cause each of its representatives, officers, directors or employees who perform services under this Agreement to act in a manner consistent with written instructions received from the Distributor. (b) Each party hereto agrees that any Nonpublic Personal Information, as the term is defined in Regulation S-P (17 CFR 248.1 - 248.30) (Reg S-P), may be disclosed by a party hereunder only for the specific purpose of permitting the other party or parties to perform services set forth in this Agreement. Each party agrees that with respect to such information, it will comply with Reg S-P and any other applicable Federal or state regulations and that it will not disclose any Nonpublic Personal Information received in connection with this Agreement to any party except to the extent required to carry out the services set forth in this Agreement or as required by applicable law. 12. Use of Names; Marketing Materials. Each party to this Agreement shall obtain the other party's prior written consent before using any marketing or sales literature related to the consenting party, and shall not use the other party's names in any marketing or advertising materials without prior written consent from the consenting party. 13. Miscellaneous Provisions. (a) Notices. All notices and other communications hereunder shall be in writing, shall be deemed to have been given when received or when sent by telex or facsimile, and shall be given to the following addresses (or such other addresses as to which notice is given): To Distributor: ALPS Distributors, Inc. 1290 Broadway, Suite 1100 Denver, Colorado 80203 Attn: Jeremy O. May, President Fax: (303) 623-7850 To S2K: 777 Third Avenue 28t h Floor New York, New York 10017 Attn: Steven Kantor
- 9 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
(b) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the transaction contemplated herein and supersedes all prior agreements or understandings between the parties hereto relating to the subject matter hereof. No oral representation, agreement or understanding made by any party hereto shall be valid or binding upon such party or any other party hereto. (c) Amendments. Except as otherwise provided herein, no provision of this Agreement may be amended other than by a writing signed by the Distributor and S2K. (d) Severability; Assignment. Each provision of this Agreement is intended to be severable. If any provision of this Agreement shall be held illegal or made invalid by court decision, statute, rule or otherwise, such illegality or invalidity shall not affect the validity or enforceability of the remainder of this Agreement. No party to this Agreement has the right to assign any of its rights or obligations hereunder, except as already set forth under this Agreement. (e) Headings. The headings in this Agreement are inserted for convenience and identification only and are in no way intended to describe, interpret, define or limit the size, extent or intent of this Agreement or any provision hereof. (f) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. (g) Application of Law; Consent to Jurisdiction. This Agreement and the application and interpretation hereof shall be governed exclusively by the laws of the State of Colorado. The parties to this Agreement agree that any appropriate state or any Federal Court located in Denver, Colorado shall have exclusive jurisdiction of any case or controversy arising under or in connection with this Agreement and shall be a proper forum in which to adjudicate such case of controversy. The parties hereto consent to the jurisdiction of such courts. (Signature page follows)
- 10 -
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. Distributor ALPS DISTRIBUTORS, INC. By: Name: Steven B. Price Its: Senior Vice President and Director of Distribution Services S2K FINANCIAL LLC By: Name: Steven Kantor Its: Chief Executive Officer [Signature Page to Wholesale Marketing Agreement]
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
Exhibit A NorthStar Real Estate Capital Income Fund NorthStar Real Estate Capital Income Fund-T NorthStar Real Estate Capital Income Fund-ADV NorthStar Real Estate Capital Income Fund-C
Exhibit A
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
Exhibit B Fee Schedule At the direction of each Fund set forth in Exhibit A to this Agreement, ALPS or its designated agent will facilitate the payment of the applicable dealer reallowance fee to S2K (as a percentage of the offering price) in the amounts set forth in each such Fund's then-current Prospectus. Note: The following applies to all Funds set forth in Exhibit A to this Agreement with the exception of the NorthStar/Townsend Institutional Real Estate Fund Inc.: In no event will a Fund's aggregate selling commissions, dealer manager fees and distribution and servicing fees, if applicable, exceed 8.0% of the aggregate gross proceeds raised in the Fund's offering. Therefore, the Distributor's facilitation of the dealer reallowance payments set forth in each Fund's then-current Prospectus shall cease with respect to the applicable Fund as of the date such 8.0% threshold has been reached with respect to such Fund.
Exhibit B
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
Exhibit C Jurisdictions [List of jurisdictions where the Funds are registered for sale]
Exhibit C
Source: CC REAL ESTATE INCOME FUND-ADV, POS 8C, 12/5/2018
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
A:
|
In no event shall any party be responsible to the other for indirect, special or consequential damages.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 9
|
test
|
Teacher:In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
Teacher: Now, understand the problem? Solve this instance: EXHIBIT 10.46
WEB HOSTING AGREEMENT
This agreement shall void and nullify any and all previous agreements to this date between Galacticomm and Horst Entertainment Inc.
There shall be no additional fees of any kind paid to Galaticomm, other than those stated within this agreement for software usage and/or bandwidth usage.
Horst Entertainment agrees to pay Galactcomm $0.01 (one cent) per access up to 400,000 accesses thereafter payment shall be $0.005 (one-half cent) per access. Horst Entertainment shall send this amount to Galacticomm by no later than Wednesday for accesses used from the previuos week (Monday thru Sunday).
Galacticomm must provide a person(s) to correct any technical problems (Server being down or inaccessible) 24 hours per day, 7 days per week. This person(s) must be available by beeper or telephone. Horst Entertainment shall provide this same 24 hour service at the broadcast location.
In the event Galacticomm, Inc. chooses to terminate this agreement, Horst Entertainment Inc. will have the right to purchase a license copy of the software in the amount of $15,000.00.
All parties have read and fully agree to all terms and conditions as set forth in this Web Hosting Agreement. Any disputes arising herein shall be settled in a court in FLorida.
/s/ Yannick Tessier 9/9/97 - ----------------------- ------ Galacticomm Date
[ILLEGIBLE] HORST 9/9/97 - ------------------------- ------ Horst Entertainment Inc. Date
Question: Highlight the parts (if any) of this contract related to License Grant that should be reviewed by a lawyer. Details: Does the contract contain a license granted by one party to its counterparty?
Student:
|
In the event Galacticomm, Inc. chooses to terminate this agreement, Horst Entertainment Inc. will have the right to purchase a license copy of the software in the amount of $15,000.00.
|
task597_cuad_answer_generation
|
NIv2
|
zs_opt
| 6
|
validation
|
Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
[EX Q]: CONTEXT: I am surprised no one has suggested a bullet proof vest as the explanation. The first shot, hitting Bond in the shoulder, is above the location of any kevlar plates. This shot leaves an entry wound and shrapnel. The second shot, that knocks Bond off the train, makes impact around his ribs on his right side. If Bond did have a bullet proof vest on, this area is likely to be covered. The impact from the bullet is transferred through the kevlar plate/s onto a larger area of Bonds body. Rather than penetrating his ribcage, and leaving an entry wound, the vest stops the bullet. Stopping the bullet before it enters his body imparts a lot more force onto Bond, which explains him being thrown off the train. It also explains the 4 broken ribs and minor organ damage. Bullet wounds are typically puncture wounds, deep and localised. Without a vest, Bond would have suffered much more serious organ damage as the bullet tears through him. Bullet proof vests typically leave blunt trauma injuries, affecting larger areas, and are not likely to leave scarring. One direct bullet wound is not likely to break 3 ribs, however the impact through a kevlar plate definitely is. <sep> Q: in Skyfall opening scene on train, does Bond fake getting shot? A: I am surprised no one has suggested a bullet proof vest as the explanation. The first shot, hitting Bond in the shoulder, is above the location of any kevlar plates Q: Where was he injured? A: The second shot, that knocks Bond off the train, makes impact around his ribs on his right side <sep> FOLLOWUP_Q: Did he have internal injuries from the bullet?
[EX A]: 4 broken ribs and minor organ damage
[EX Q]: CONTEXT: Bran is believed to be dead. When Robb marches to war, Theon Greyjoy betrays the Starks and takes Winterfell. Bran and Rickon escape. Theon eventually has two boys slain at a farm and says that they were Bran and Rickon. As far as the greater world knows, all the Stark men are dead, which leaves Sansa (the oldest girl) as the heir to Winterfell. Whoever marries her will become Lord of that region. <sep> Q: Why is Sansa Stark so important? A: As far as the greater world knows, all the Stark men are dead, which leaves Sansa (the oldest girl) as the heir to Winterfell <sep> FOLLOWUP_Q: What does she do after all the Stark men die?
[EX A]: Whoever marries her will become Lord of that region
[EX Q]: CONTEXT: Largely he gains his confidence from Tony Stark. Their working together and sharing their personal issues caused Banner to rethink the way he thought of "the other guy". Stark coped with his condition by turning it into the Iron Man, and helping others. Banner still feared what "the other guy" would do when unleashed. This was then reinforced after he is induced into becoming the Hulk on the Helicarrier. Upon awaking in the abandoned warehouse and learning the Hulk aimed for it to prevent casualties, Banner came to realize that the Hulk isn't always a danger to others. Thusly he chose to join the other heroes in New York City to defend Earth, whereas earlier in the film he had made it abundantly clear that his only role was to identify the location of the Tesseract. <sep> Q: Why does Banner finally allow the Hulk to come out? A: Banner came to realize that the Hulk isn't always a danger to others <sep> FOLLOWUP_Q: Where does he get the confident he needs to be sure he can point the beast towards the enemy, and not towards the Avengers?
[EX A]:
|
Largely he gains his confidence from Tony Stark
|
task1441_doqa_movies_answer_generation
|
NIv2
|
fs_opt
| 6
|
train
|
Teacher:Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
Teacher: Now, understand the problem? Solve this instance: CONTEXT: Because Sam was their top earner and with the change in casinos after their trial, they kept him around to keep earning. He had already proven himself during his previous trials about his license and not only that, he survived the bombing. This had two implications, first is that he wasn't like Nicky and the second, he had far too much press after he survived the bombing as he was the center of attention with the gaming board. They really couldn't kill him without proving they (the bosses) were involved. <sep> Q: Why was Sam "Ace" Rothstein spared by the bosses? A: Because Sam was their top earner and with the change in casinos after their trial, they kept him around to keep earning <sep> FOLLOWUP_Q: The bosses decide to eliminate anyone involved or with knowledge of the skim
Student:
|
He had already proven himself during his previous trials about his license and not only that, he survived the bombing
|
task1441_doqa_movies_answer_generation
|
NIv2
|
zs_opt
| 6
|
train
|
Detailed Instructions: Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
Problem:CONTEXT: They were never actually in a relationship! They started dating after Sub Rosa (Season 1) then things went pearshaped after McGee asked were their relationship was going and Abby was happy just to leave things as they were! They only dated for half of the season! At the end of Season 8, however there is a very tender moment between the two of them and McGee tells Abby 'If something ever happened to you I would..." which indicates that he still has feelings for Abby and worries about her while also giving the hint that he cares and wants to protect her. <sep> Q: Did McGee and Abby ever get into a relationship? A: They were never actually in a relationship <sep> FOLLOWUP_Q: The series suggests that there is something going on, can you explain more?
Solution:
|
They started dating after Sub Rosa (Season 1) then things went pearshaped
|
task1441_doqa_movies_answer_generation
|
NIv2
|
zs_opt
| 8
|
train
|
Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
Q: CONTEXT: From what I can gather all sensates were born sensates, which is why people in the same cluster have the same birthday and take their first breaths together. It isn't until later when someone activates their connection to their other selves in the cluster that they become aware of them, which is what Angelica does. Will and Sarah are both sensates, who made eye contact with each other when they were children hence their connection, to one another, even though he is still unaware of the rest of his cluster, or knows what is happening. He doesn't make eye contact with Whispers or Jonas until he his older. A similar thing happens between Riley and Yrsa in Iceland when Riley was still a child. Yrsa made eye contact with her at some point which is what connected them and then used that connection to try and keep her safe from Whispers and the Biologic Preservation Organization. So even though both Will and Riley were unaware of the rest of the cluster, it is shown that they still have some sensate abilities. <sep> Q: Will and Sarah's connection A: people in the same cluster have the same birthday and take their first breaths together <sep> FOLLOWUP_Q: What does being in the same cluster mean?
A:
|
hen someone activates their connection to their other selves in the cluster that they become aware of them
|
task1441_doqa_movies_answer_generation
|
NIv2
|
zs_opt
| 4
|
train
|
Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
[Q]: CONTEXT: According to the narrative of the program, it seems that Walter White is dead. However, if one looks at how he was wounded it is conceivable that he wouldn't have died from the wound that he received and that he simply became unconscious at the end of the episode. While an M-60 fires a 7.62 (.30 cal) round, its bullets are copper jacket military rounds. These rounds don't expand and often inflict non-fatal wounds if they don't strike major organs or blood vessels. As demonstrated in the episode "Felina", the series denouement, Walter isn't struck directly by a rounds but is hit by a ricochet. This could cause a serious injury and perhaps an incapacitating one; however death seems to be a stretch. Assuming that Walt's injury (on his lower right side) could have struck his liver or his renal artery and thus caused him to bleed out internally. Unfortunately, such a wound would have made it impossible for him to have walked out of the neo-Nazi's hideout and around for what would have been at least ten minutes. Given that the police shown to have arrived within seconds of Walt's collapse, he could have easily been saved if paramedics had been called. The series states that Walter White is dead. The injury that he received could have been easily survivable. <sep> Q: Is Walter White dead? A: According to the narrative of the program, it seems that Walter White is dead <sep> FOLLOWUP_Q: BUT it only showed gum on floor they did not bury hum
[A]: The series states that Walter White is dead. The injury that he received could have been easily survivable
[Q]: CONTEXT: They didn't change the whole climax scene. In one version Rudra's father saying him that the girl he loved is actually his step sister, so he can not marry her. On the other hand, the scene is same but there is no dialogue as it is muted and audience needs to understand from their reaction and background score. This change was made because the film got poor audience response due to the dialogue delivery of the conversation. <sep> Q: What are the differences between two climax of Solo? A: In one version Rudra's father saying him that the girl he loved is actually his step sister, so he can not marry her <sep> FOLLOWUP_Q: What happens in the other version?
[A]: On the other hand, the scene is same but there is no dialogue as it is muted and audience needs to understand from their reaction and background score
[Q]: CONTEXT: Since becoming the Three Eyed Raven, Bran has the ability to remember, well, everything that's ever happened in Westeros, including how he fell from the tower (although given that Sam was able to tell him some, ahem, surprising news, it seems that he doesn't just "know" everything in the past). Bran also has a habit of repeating things he never could have heard people say, just as a subtle way of saying "just so you know, I know". As he throws Bran from the window, Jaime quips to Cersei, "The things I do for love". When Bran paraphrases this line back to Jaime while staring him in the eye in S8e2, it becomes clear to Jaime that Bran knows what happened. He does something similar with Littlefinger, quoting "chaos is a ladder" at him, despite it being impossible for him to have heard the original conversation. <sep> Q: When does Bran Stark remember Jaime pushing him? A: Since becoming the Three Eyed Raven, Bran has the ability to remember Q: What does he remember exactly? A: everything that's ever happened in Westeros, including how he fell from the tower (although given that Sam was able to tell him some, ahem, surprising news Q: How can he remember everything that has ever happened? A: Bran also has a habit of repeating things he never could have heard people say <sep> FOLLOWUP_Q: So how does Jamie discover that Brian remembers all things?
[A]:
|
it becomes clear to Jaime that Bran knows what happened
|
task1441_doqa_movies_answer_generation
|
NIv2
|
fs_opt
| 5
|
train
|
Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
Q: CONTEXT: In Prometheus, Elizabeth Shaw and Charlie Holloway are scientific partners who are also in a relationship before the events of the movie. They discover the location of LV-223 and get the support from Weyland to fund a scientific trip. It is entirely coincidental that they are in a relationship, though of course that fact is used later in the plot. They are a couple on the ship because they are responsible for the expedition. The situation in Alien Covenant is entirely different. This is a colonization ship, a deliberate, one-way trip to settle on another planet. It is clearly deliberate that the ship is (entirely?) crewed by couples who are likely to want to settle and raise families in their destination. I don't think you can extrapolate the second example to say it is 'encouraged officially'. Its clearly encouraged, possibly a requirement for the people funding a colonization of another planet, but why would it be a general requirement? The trip in Prometheus and the later Nostromo isn't one-way and is largely crewed by single people. <sep> Q: Is it a coincidence that there are many couples boarding ships in Alien? A: The situation in Alien Covenant is entirely different. This is a colonization ship, a deliberate, one-way trip to settle on another planet <sep> FOLLOWUP_Q: I am wondering in the Alien universe, having a married couple to go onto the same trip is encouraged officially?
A: I don't think you can extrapolate the second example to say it is 'encouraged officially'. Its clearly encouraged
****
Q: CONTEXT: Largely he gains his confidence from Tony Stark. Their working together and sharing their personal issues caused Banner to rethink the way he thought of "the other guy". Stark coped with his condition by turning it into the Iron Man, and helping others. Banner still feared what "the other guy" would do when unleashed. This was then reinforced after he is induced into becoming the Hulk on the Helicarrier. Upon awaking in the abandoned warehouse and learning the Hulk aimed for it to prevent casualties, Banner came to realize that the Hulk isn't always a danger to others. Thusly he chose to join the other heroes in New York City to defend Earth, whereas earlier in the film he had made it abundantly clear that his only role was to identify the location of the Tesseract. <sep> Q: Why does Banner finally allow the Hulk to come out? A: Banner came to realize that the Hulk isn't always a danger to others <sep> FOLLOWUP_Q: Where does he get the confident he needs to be sure he can point the beast towards the enemy, and not towards the Avengers?
A: Largely he gains his confidence from Tony Stark
****
Q: CONTEXT: He usually runs unopposed. The only time he did run against anyone he lost but that was to Sideshow Bob. Quimby was re-instated when Bob is found guilty of fraud and imprisoned. He also survives a recall election, with no candidate in the race against him garnering the five percent necessary to force a recall <sep> Q: Why is Mayor Quimby still mayor? A: He usually runs unopposed <sep> FOLLOWUP_Q: Has it ever been addressed on the show?
A:
|
Sideshow Bob. Qu
****
|
task1441_doqa_movies_answer_generation
|
NIv2
|
fs_opt
| 4
|
train
|
Part 1. Definition
Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
Part 2. Example
CONTEXT: The balance of power had shifted considerably since the first set of quotes. King Joffrey is dead, and his younger brother Tommen is now king. Unlike his wild card of an elder brother, Tommen is gentler and more prone to manipulation by his new bride. The Lannisters impeccable image has also been shattered. They failed to prevent the assassination of their king in the midst of his own wedding day, and the suspected assassin is the king's Lannister uncle. Not only do they look incompetent, they are divided among themselves. On the other hand, the Tyrells' situation is much stronger now. Tommen is already wrapped around Margaery's pretty little finger, and she knows that the assassination was orchestrated in part by her own family. In Margaery's eyes, the Lannisters look disoriented and lost. Putting on a show trial for one of their own, whom she knows is innocent of any wrongdoing. Whatever power Cersei held over Margaery has now been diminished. <sep> Q: What was Margaery's motivation to call Cersei 'sister' again? A: Whatever power Cersei held over Margaery has now been diminished. <sep> FOLLOWUP_Q: Why has it been diminished?
Answer: King Joffrey is dead, and his younger brother Tommen is now king.
Explanation: The answer why Cersei's power over Margaery has now diminished is clearly mentioned in the passage.
Part 3. Exercise
CONTEXT: The people of Dark City are kept in the city in darkness. Part of the way the Strangers keep the human populous from suspecting they are part of an experiment is to keep them from realizing that fact. So, they implant them with memories of being outside the city, in the daylight, to keep them docile. Shell Beach, in particular, represents hope. Without the belief that there is something better just outside the city, the humans would likely go mad with the realization that they are stuck in an elaborate prison. Of course, since there is no actual Shell Beach, they keep the memories vague, so that everyone thinks they know where it is, but can't give clear directions. Nobody questions this because they've all been programmed by the Strangers not to -- until John Murdock comes along. John Murdock knows there's something wrong with the city, and his partial memory implant gives him glimpses of Shell Beach, which he latches onto as a means of unraveling the mysteries of the city. John lacks the programming to accept things as they are, and his questions eventually lead Bumstead, who has been programmed to be a detective, to join him. He is, in essence, looking for hope, and in the end, he must create it himself. <sep> Q: Why did the Strangers make up Shell Beach in human's heads when they were not even supposed to go there? A: they are part of an experiment is to keep them from realizing that fact. So, they implant them with memories of being outside the city, in the daylight, to keep them docile <sep> FOLLOWUP_Q: do you this this is dangerous?
Answer:
|
Without the belief that there is something better just outside the city, the humans would likely go mad with the realization that they are stuck in an elaborate prison
|
task1441_doqa_movies_answer_generation
|
NIv2
|
fs_opt
| 7
|
train
|
Instructions: Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
Input: CONTEXT: In addition to Faizan's answer of giving them as sacrifices to be spared by the White Walkers, you also have to consider that Craster was sleeping with his own daughters, likely for his enjoyment (and less for theirs) and they were also doing all their work for him. So new daughters simply mean more workers and more "company", while a son is not really of use to him. And it is clear that Craster isn't really a man to shed tears for his dying kin. Rather on the contrary, a son could actually be a danger to him if he grows up and decides to revolt against his father's cruelty to his sisters. Craster has conditioned his daughters into obedience to him (and even more so in a medieval world where women were even less likely to revolt against their patriarch, even if they actually would have been able to do so in unison). A son might be harder to keep "under control" and as said, wouldn't have any use for Craster, since he doesn't really need a fighter, due to his arrangement with the Crows. It would merely mean a disruptance to the nice little life he's built himself there. So I think even without the White Walkers a son probably wouldn't have a long life at Craster's Keep. <sep> Q: Why does Craster give those sacrifices to the White Walkers? A: you also have to consider that Craster was sleeping with his own daughters Q: Why are the newborn babies needed? A: ew daughters simply mean more workers and more "company", while a son is not really of use to him Q: Is there a benefit for Caster tho? A: a son could actually be a danger to him if he grows up and decides to revolt against his father's cruelty to his sisters <sep> FOLLOWUP_Q: What happened to the sons after being left?
Output:
|
I think even without the White Walkers a son probably wouldn't have a long life at Craster's Keep
|
task1441_doqa_movies_answer_generation
|
NIv2
|
zs_opt
| 3
|
train
|
Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
CONTEXT: Of course this changes from country to country, but generally speaking it's not illegal to film on the streets, since it's a public area. Most car scenes are recorded with chroma just for pratical reasons. In a professional production you look for "quality" and you can achieve it only if you have control. It's all about control. With a studio setting you get full control of the lights, the movements, etc. in one word, the scene. And of course, you minimize the hitches that can occurs in the real world (also safety concers). However you should film outdoor shots to enrich and give credibility to your scene. <sep> Q: Why are most scenes in a car recorded with chroma? A: Most car scenes are recorded with chroma just for pratical reasons Q: What reasons are those? A: In a professional production you look for "quality" and you can achieve it only if you have control. It's all about control Q: Is it illegal to film while driving in a public place? A: Of course this changes from country to country, but generally speaking it's not illegal to film on the streets, since it's a public area Q: Are there any safety concerns when filming? A: you minimize the hitches that can occurs in the real world (also safety concers <sep> FOLLOWUP_Q: Is there anything else you can tell me on this subject?
|
you should film outdoor shots to enrich and give credibility to your scene
|
task1441_doqa_movies_answer_generation
|
NIv2
|
zs_opt
| 0
|
test
|
Given a paragraph about movies, and a set of conversational question answers about the paragraph, answer a follow-up question from the paragraph. The paragraph has the prefix 'CONTEXT:'. Each conversation question has a prefix `Q:` followed by the answer prefix `A:`, and the follow-up question has a prefix `FOLLOWUP_Q:`.
One example is below.
Q: CONTEXT: The balance of power had shifted considerably since the first set of quotes. King Joffrey is dead, and his younger brother Tommen is now king. Unlike his wild card of an elder brother, Tommen is gentler and more prone to manipulation by his new bride. The Lannisters impeccable image has also been shattered. They failed to prevent the assassination of their king in the midst of his own wedding day, and the suspected assassin is the king's Lannister uncle. Not only do they look incompetent, they are divided among themselves. On the other hand, the Tyrells' situation is much stronger now. Tommen is already wrapped around Margaery's pretty little finger, and she knows that the assassination was orchestrated in part by her own family. In Margaery's eyes, the Lannisters look disoriented and lost. Putting on a show trial for one of their own, whom she knows is innocent of any wrongdoing. Whatever power Cersei held over Margaery has now been diminished. <sep> Q: What was Margaery's motivation to call Cersei 'sister' again? A: Whatever power Cersei held over Margaery has now been diminished. <sep> FOLLOWUP_Q: Why has it been diminished?
A: King Joffrey is dead, and his younger brother Tommen is now king.
Rationale: The answer why Cersei's power over Margaery has now diminished is clearly mentioned in the passage.
Q: CONTEXT: I think Gus' initial plan was to sweeten the deal enough for Walt to become his chemist. While extremely distrustful of him to begin with because of Jesse, Gus takes a risk and accepts Walt into his trade and even gives him the lab at the behest of Gale encouraging Gus that purity means more money. Assuming everything went smoothly and certain events didn't occur, it is plausible that even after learning Walt's connection to Hank that it would still be beneficial to Gus to keep him on as long as he survived due to the extra money Gus could make and the monetary incentive for Walt. Judging by the series as a whole, Gus only intended death for Walt after he ran over his dealers, breaking the peace to save Jesse's life, who was still considered a lowly junkie by Gus. <sep> Q: Was Gus planning to kill Walt from the start? A: Gus only intended death for Walt after he ran over his dealers <sep> FOLLOWUP_Q: Why did he run over his dealers?
A:
|
breaking the peace to save Jesse's life, who was still considered a lowly junkie by Gus
|
task1441_doqa_movies_answer_generation
|
NIv2
|
fs_opt
| 9
|
validation
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.