Data Management Outsourcing Agreement - Allstate Insurance Co. and Acxiom Corp.
DATA MANAGEMENT
OUTSOURCING AGREEMENT
BETWEEN
ALLSTATE INSURANCE COMPANY
AND
ACXIOM CORPORATION
CONFIDENTIAL DRAFT
DO NOT REDISTRIBUTE
March 19, 1999
Version 5.0.0
SUMMARY TABLE OF CONTENTS
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SUMMARY TABLE OF CONTENTS................................................. II
DETAILED TABLE OF CONTENTS................................................ IV
INDEX OF DEFINED TERMS.................................................... IX
LIST OF SCHEDULES......................................................... XI
1. BACKGROUND AND PURPOSE................................................ 1
2. DEFINITIONS........................................................... 1
3. SERVICES.............................................................. 8
4. MASLS................................................................. 9
5. ACXIOM RESOURCES...................................................... 10
6. SECURITY OBLIGATIONS.................................................. 11
7. ALLSTATE-RETAINED AUTHORITY AND OBLIGATIONS........................... 11
8. FINANCIAL TERMS....................................................... 12
9. RELATIONSHIP MANAGEMENT............................................... 20
10. PROPRIETARY RIGHTS; OWNERSHIP OF WORK PRODUCT......................... 23
11. TERM.................................................................. 25
12. DISENTANGLEMENT....................................................... 26
13. DEFAULT............................................................... 28
14. INSURANCE............................................................. 29
15. REPORTS............................................................... 31
16. RECORDKEEPING AND AUDIT RIGHTS........................................ 32
17. CONFIDENTIALITY....................................................... 33
18. LEGAL COMPLIANCE...................................................... 34
19. REPRESENTATIONS AND WARRANTIES........................................ 35
20. INDEMNIFICATION....................................................... 38
21. DISPUTE RESOLUTION.................................................... 42
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22. PUBLICITY............................................................ 43
23. USE OF AFFILIATES AND SUBCONTRACTORS................................. 44
24. MISCELLANEOUS........................................................ 44
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DETAILED TABLE OF CONTENTS
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SUMMARY TABLE OF CONTENTS............................................... II
DETAILED TABLE OF CONTENTS.............................................. IV
INDEX OF DEFINED TERMS.................................................. IX
LIST OF SCHEDULES....................................................... XI
1. BACKGROUND AND PURPOSE............................................... 1
2. DEFINITIONS.......................................................... 1
2.1. Acxiom Core Software........................................... 2
2.2. Acxiom's Contract Manager...................................... 2
2.3. Acxiom's Key Personnel......................................... 2
2.4. Acxiom's Personnel............................................. 2
2.5. Affiliate...................................................... 2
2.6. Agreement...................................................... 2
2.7. Allstate Software.............................................. 2
2.8. Allstate's Contract Manager.................................... 3
2.9. Allstate's Data................................................ 3
2.10. Allstate's Key Personnel....................................... 3
2.11. Benchmark Price................................................ 3
2.12. Confidential Information....................................... 3
2.13. Current Projects............................................... 4
2.14. Data Acquisition Cost ("DAC").................................. 4
2.15. Data Acquisition System ("DAS")................................ 4
2.16. Data Integrity................................................. 4
2.17. Effective Date................................................. 4
2.18. End-User....................................................... 4
2.19. Fee Reduction.................................................. 5
2.20. Force Majeure Event............................................ 5
2.21. Indemnitees.................................................... 5
2.22. Masl........................................................... 5
2.23. Material Default............................................... 5
2.24. Party.......................................................... 6
2.25. Person......................................................... 6
2.26. Problem........................................................ 7
2.27. Problem Report................................................. 7
2.28. Services....................................................... 7
2.29. Software....................................................... 7
2.30. Term........................................................... 7
2.31. Third-party Data Providers..................................... 7
2.32. Total Data Cost Savings ("TDCS")............................... 8
2.33. Work Order..................................................... 8
2.34. Work Product................................................... 8
3. SERVICES............................................................. 8
3.1. Provision Of Services........................................... 8
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3.2. Current Projects................................................ 8
3.3. Data Acquisition and Related Services........................... 9
3.4. Future Projects................................................. 9
3.5. [INTENTIONALLY LEFT BLANK]...................................... 9
3.6. Business Resumption Services.................................... 9
3.7. Data Integrity Services......................................... 9
4. MASLS................................................................ 9
4.1. Specification of MASLs.......................................... 9
4.2. MASL Measurement and Reporting.................................. 9
4.3. Improvement in MASLs............................................ 10
4.4. Temporary Suspension of MASLs................................... 10
5. ACXIOM RESOURCES..................................................... 10
5.1. General......................................................... 10
5.2. Use of Data Acquisition System.................................. 10
5.3. Use of Data Network............................................. 11
5.4. Non-Exclusivity................................................. 11
6. SECURITY OBLIGATIONS................................................. 11
7. ALLSTATE-RETAINED AUTHORITY AND OBLIGATIONS.......................... 11
7.1. Allstate Authority.............................................. 11
7.2. Access to Personnel and Information............................. 12
8. FINANCIAL TERMS...................................................... 12
8.1. Data Acquisition Fees........................................... 12
8.2. Shared Savings - Data Acquisition Costs......................... 12
8.2.1. Total Data Cost Savings.................................... 12
8.2.2. Determination of Benchmark Price........................... 12
8.2.3. Effect of Supplier Price Changes on TDCS................... 13
8.3. Shared Savings - Other Costs.................................... 13
8.4. Data Network Costs.............................................. 14
8.5. Pricing Audit................................................... 14
8.6. Taxes........................................................... 15
8.7. Services Benchmarking........................................... 15
8.8. Out-of-Scope Services Rate Chart................................ 15
8.9. Fee Reductions.................................................. 16
8.10. Only Payments.................................................. 17
8.11. Invoices....................................................... 18
8.11.1. Data Acquisition Costs.................................... 18
8.11.2. Other Charges............................................. 18
8.11.3. Frequency and Format...................................... 18
8.11.4. Disputed Amounts.......................................... 19
8.11.5. Set-Off................................................... 19
8.12. Most-Favored Customer.......................................... 19
9. RELATIONSHIP MANAGEMENT.............................................. 20
9.1. Key Personnel and Contract Manager.............................. 20
9.1.1. Acxiom's Key Personnel and Contract Manager................ 20
9.1.2. Allstate's Key Personnel and Contract Manager.............. 20
9.1.3. Additional Personnel Requirements.......................... 21
9.1.4. Minimum Proficiency Levels................................. 21
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9.1.5. Training.................................................... 21
9.1.6. Unsatisfactory Performance.................................. 21
9.2. Allstate's Policies.............................................. 21
9.2.1. Computer Information and Access............................. 22
9.2.2. Confidentiality and Intellectual Property................... 22
9.2.3. Other Policies.............................................. 22
9.2.4. Enforcement................................................. 22
9.3. Regulatory Compliance............................................ 22
9.4. Operational Change Procedure..................................... 22
9.5. Work Order Procedure............................................. 23
9.5.1. When Required............................................... 23
9.5.2. Contents of the Work Order.................................. 23
10. PROPRIETARY RIGHTS; OWNERSHIP OF WORK PRODUCT........................ 23
10.1. Rights and Licenses............................................. 24
10.2. Adverse Action.................................................. 24
11. TERM................................................................. 25
11.1. Initial Term; Renewals.......................................... 25
11.2. Extension of Termination Date................................... 25
11.3. Early Termination............................................... 25
11.3.1. Partial Termination of Services by Allstate................ 25
11.3.2. For Convenience............................................ 25
11.3.3. Change in Control of Acxiom................................ 25
11.4. Termination for Material Default................................ 26
11.5. Termination for Force Majeure Event............................. 26
11.6. Effect of Ending of Term........................................ 26
12. DISENTANGLEMENT...................................................... 26
12.1. Disentanglement Process......................................... 26
12.2. Preparation for Disentanglement................................. 27
13. DEFAULT.............................................................. 28
13.1. Remedies........................................................ 28
13.1.1. Allstate's Remedies........................................ 28
13.1.2. Acxiom's Remedies.......................................... 28
13.1.3. Limitation of Liability and Disclaimers.................... 29
13.2. Force Majeure Events............................................ 29
14. INSURANCE............................................................ 29
14.1. General Requirements............................................ 29
14.2. Coverages....................................................... 30
14.3. Miscellaneous Requirements...................................... 31
15. REPORTS.............................................................. 31
15.1. General......................................................... 31
15.2. Media........................................................... 32
16. RECORDKEEPING AND AUDIT RIGHTS....................................... 32
16.1. Recordkeeping................................................... 32
16.2. Audit Rights.................................................... 33
16.3. Open Book Policy................................................ 33
17. CONFIDENTIALITY...................................................... 33
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17.1. Disclosure of Confidential Information.......................... 33
17.2. Required Disclosure............................................. 34
17.3. Notification.................................................... 34
17.4. Injunctive Relief............................................... 34
17.5. Return of Confidential Information.............................. 34
18. LEGAL COMPLIANCE..................................................... 34
19. REPRESENTATIONS AND WARRANTIES....................................... 35
19.1. Acxiom's Representations, Warranties, and Covenants............. 35
19.1.1. Performance of the Services................................ 35
19.1.2. Proprietary Rights Infringement............................ 35
19.1.3. Adherence to Specifications................................ 36
19.1.4. Warranty as to Viruses..................................... 36
19.1.5. Warranty of Year 2000 Compliance........................... 36
19.1.6. Legal and Corporate Authority.............................. 37
19.2. Allstate's Representations, Warranties and Covenants............ 37
19.2.1. Legal and Corporate Authority.............................. 37
19.2.2. Other...................................................... 37
20. INDEMNIFICATION...................................................... 38
20.1. Technology...................................................... 38
20.1.1. Indemnity by Acxiom........................................ 38
20.1.2. Indemnity by Allstate...................................... 39
20.2. Injury or Property Damage....................................... 39
20.2.1. Indemnity by Acxiom........................................ 39
20.2.2. Indemnity by Allstate...................................... 39
20.3. Employees....................................................... 39
20.4. Third-Party Matters............................................. 40
20.4.1. Indemnity by Acxiom........................................ 40
20.4.2. Mutual Indemnities......................................... 40
20.5. Misrepresentation............................................... 40
20.5.1. Indemnity by Acxiom........................................ 40
20.5.2. Indemnity by Allstate...................................... 41
20.6. Subrogation..................................................... 41
20.7. Procedures...................................................... 41
21. DISPUTE RESOLUTION................................................... 42
21.1. General Intent.................................................. 42
21.2. Contract Manager Level.......................................... 42
21.3. Escalation...................................................... 42
21.3.1. First Escalation........................................... 42
21.3.2. Second Escalation.......................................... 42
21.4. Critical Problems............................................... 43
21.5. Legal Action.................................................... 43
21.6. No Termination or Suspension of Services........................ 43
22. PUBLICITY............................................................ 43
23. USE OF AFFILIATES AND SUBCONTRACTORS................................. 44
24. MISCELLANEOUS........................................................ 44
24.1. Entire Agreement................................................ 44
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24.2. Captions; Section Numbers...................................... 44
24.3. Assignment..................................................... 45
24.4. Notices to a Party............................................. 45
24.5. Amendments; Waivers............................................ 46
24.6. Legal Status of Parties........................................ 46
24.7. Severability................................................... 47
24.8. Counterparts................................................... 47
24.9. Governing Law.................................................. 47
24.10. No Third-Party Beneficiaries................................... 47
24.11. Expenses....................................................... 48
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INDEX OF DEFINED TERMS
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A
Acxiom.................................................................. 1
Acxiom Core Software.................................................... 1
Acxiom RM-T............................................................. 1
Acxiom's Contract Manager............................................... 2
Acxiom's Key Personnel.................................................. 2
Acxiom's Personnel...................................................... 2
2
Affiliate............................................................... 2
Agreement............................................................... 2
Allstate................................................................ 1
Allstate Software....................................................... 2
Allstate's Contract Manager............................................. 3
Allstate's Data......................................................... 3
Allstate's Key Personnel................................................ 3
B
Benchmark Price......................................................... 3
C
Confidential Information................................................ 3
Current Project......................................................... 4
D
DAC..................................................................... 4
DAS..................................................................... 4
Data Integrity.......................................................... 4
Data Network............................................................ 10
Disentanglement......................................................... 25
E
Effective Date.......................................................... 4
End-User................................................................ 4
F
Failure................................................................. 16
Fee Reduction........................................................... 4
First Year Savings...................................................... 13
Force Majeure Event..................................................... 5
G
GAAP.................................................................... 31
I
Implementation Date..................................................... 13
Indemnitees............................................................. 5
Infringement Claim...................................................... 37
M
MASL or Minimum Acceptable Service Level................................ 5
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Material Default........................................................ 5
Millenial Dates......................................................... 35
MVR..................................................................... 12
O
Optimization............................................................ 13
P
Parties................................................................. 7
Party................................................................... 7
Person.................................................................. 7
Prior Agreements........................................................ 1
Problem................................................................. 7
Problem Report.......................................................... 7
Projects................................................................ 9
PSA..................................................................... 1
R
RM-Tools Agreement...................................................... 1
S
Services................................................................ 7
Software................................................................ 7
T
TDCS.................................................................... 8
Term.................................................................... 7
Third-Party Data Providers.............................................. 8
W
Work Order.............................................................. 8
Work Product............................................................ 8
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LIST OF SCHEDULES
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SCHEDULE 2.1 Acxiom Core Software
SCHEDULE 2.8 Allstate Software
SCHEDULE 2.13 Current Projects
SCHEDULE 2.31 Third-Party Data Providers
SCHEDULE 3.3 Data Acquisition and Related Services
SCHEDULE 3.6 Business Resumption Services
SCHEDULE 3.7 Data Integrity Services
SCHEDULE 4.1 Minimum Acceptable Service Levels
SCHEDULE 5.1 Interactive Data Resources Provided by Allstate
SCHEDULE 6 Security Obligations
SCHEDULE 8.1 Data Acquisition Fees
SCHEDULE 8.2.2 Determination of Benchmark Price
SCHEDULE 8.8 Out-of-Scope Services Rate Chart
SCHEDULE 9.1 Key Personnel and Contract Manager
SCHEDULE 9.2.1 Computer Information and Access Forms
SCHEDULE 9.2.2 Confidentiality Acknowledgment
SCHEDULE 15 Reports
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DATA MANAGEMENT OUTSOURCING AGREEMENT
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This Data Management Outsourcing Agreement ("Agreement"), dated March ___,
1999, is a contract between Allstate Insurance Company ("Allstate"), with
business offices at Allstate Plaza, 2775 Sanders Road, Northbrook, Illinois
60062, and Acxiom RM-Tools, Inc.("Acxiom"), a wholly-owned subsidiary of Acxiom
Corporation, with business offices at 301 Industrial Boulevard, P.O. Box 2000,
Conway, Arkansas 72033-2000, under which Acxiom shall provide, subject to the
guarantee of Acxiom Corporation, Allstate and Allstate's Affiliates with certain
information-technology services on the terms and conditions set forth below.
For and in consideration of the mutual promises and covenants contained
herein, the receipt, sufficiency, and adequacy of which are hereby acknowledged,
the Parties, intending to be legally bound, hereby contract and agree as
follows:
1. BACKGROUND AND PURPOSE
Allstate and Acxiom are presently parties to that certain Agreement for
Professional Services effective as of September 14, 1992 as amended (the "PSA")
whereby Allstate engaged Acxiom to provide certain of Allstate's information
management functions and manage Allstate's relationships with certain third-
party vendors of data. After the execution of the PSA, Allstate and Acxiom
entered into that certain agreement effective as of January 31, 1995 (the "RM-
Tools Agreement" and, with the PSA, the "Prior Agreements") whereby Acxiom
agreed to remarket certain computer software and related services to the
insurance industry and Allstate agreed to provide certain computer software and
services to Acxiom in support of Acxiom's remarketing effort. Allstate wishes to
continue receiving services from Acxiom, and Acxiom wishes to continue providing
such services to Allstate and Allstate's Affiliates; accordingly, the parties
have negotiated and agreed upon the revised and updated terms and conditions set
forth in this Agreement. The Parties mutually acknowledge and agree that this
Agreement replaces and supersedes the terms and conditions of the PSA which is
hereby terminated as of the Effective Date hereof, provided, however, that such
termination (i) shall not apply to any terms or conditions thereof, which by
their terms, survive termination of such agreement and (2) shall not terminate
any proprietary rights that arose as a result of performance of such contracts.
The Parties further agree that the RM-Tools Agreement shall remain in full force
and effect until such time as they, negotiating in good faith and as promptly as
practicable, shall enter into a new agreement relating to the subject matter of
the RM-Tools Agreement.
2. DEFINITIONS
The following words and phrases, when used in this Agreement, shall have
the indicated meanings. (Terms capitalized within a particular definition have
been defined elsewhere within this Agreement.)
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2.1. Acxiom Core Software
"Acxiom Core Software" shall mean the computer programs,
documentation, and related items presently owned by Acxiom that are set
forth in Schedule 2.1. It is understood and agreed that the Parties shall
update Schedule 2.1 by mutual agreement on a quarterly basis.
2.2. Acxiom's Contract Manager
"Acxiom's Contract Manager'" shall mean, initially, the individual
who is so designated in Schedule 9.1 hereto.
2.3. Acxiom's Key Personnel
"Acxiom's Key Personnel'" shall mean, initially, those personnel and
positions so designated in Schedule 9.1 hereto.
2.4. Acxiom's Personnel
"Acxiom's Personnel'" shall mean any of Acxiom's employees,
officers, directors, subcontractors or agents involved in the provision of
services to Allstate pursuant to this Agreement.
2.5. Affiliate
"Affiliate" shall mean, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by, is under common control
with such Person, whether through ownership of voting securities or
otherwise. For this purpose, and without limiting the foregoing, (a) any
Person or group of persons owning more than fifty percent (50%) of the
outstanding voting securities of any other Person shall be deemed to
control such other Person and (b) any Person having the right to direct the
management and policies of any other person shall be deemed to control such
other person.
2.6. Agreement
"Agreement" shall mean this Data Management Outsourcing Agreement
between Allstate and Acxiom dated March ___, 1999, as amended from time to
time, including all attachments, exhibits, and schedules hereto and Work
Orders entered into pursuant to this Agreement.
2.7. Allstate Software
"Allstate Software" shall mean the computer programs, documentation,
and related items presently owned by Allstate that are set forth in
Schedule 2.7 and any future computer programs, documentation, and related
items that are acquired by or developed for Allstate for use in connection
with the Services. It is understood and
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agreed that the Parties shall update Schedule 2.8 by mutual agreement on a
quarterly basis
2.8. Allstate's Contract Manager
"Allstate's Contract Manager'" shall mean, initially, the individual
who is so designated in Schedule 9.1 hereto.
2.9. Allstate's Data
"Allstate's Data'" shall mean the data provided by Allstate, Acxiom,
or a third party for procuring and use by Acxiom in connection with the
provision of the Services.
2.10. Allstate's Key Personnel
"Allstate's Key Personnel'" shall mean, initially, those personnel
who are so designated in Schedule 9.1 hereto.
2.11. Benchmark Price
"Benchmark Price" shall have the meaning given to it in Section
8.2.2 hereof.
2.12. Confidential Information
"Confidential Information" shall mean:
(a) as to either Party, all technical information, materials, data,
reports, programs, documentation, diagrams, ideas, concepts,
techniques, processes, inventions, knowledge, know-how, and
trade secrets, whether in tangible or intangible form, and
whether in written form or readable by machine, developed or
acquired by such Party, except for Work Product;
(b) as to either Party, all information and data relating to such
Party's practices, customers, products, business, costs, or
margins that is not generally known by others in the same line
of business;
(c) as to either Party, any information that such Party identifies
to the other as confidential by a stamp or other similar
notice;
(d) as to either Party, this Agreement:
(e) as to either Party, all other information relating to such
Party that a reasonably prudent technician would expect not to
be made available to third parties without restriction or
payment; and
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(f) as to Allstate, all Work Product.
Confidential Information shall not include information that a Party
can demonstrate was: (i) at the time of disclosure to such Party, in the
public domain or commonly known in either Party's industry; (ii) after
disclosure to such Party, published or otherwise a part of the public
domain through no fault of such Party; (iii) in the possession of such
Party at the time of disclosure to it, if such Party was not then under an
obligation of confidentiality with respect thereto; (iv) received after
disclosure to such Party from a third party who had a lawful right to
disclose such Confidential Information to it; or (v) independently
developed by such Party without reference to Confidential Information of
the other Party.
2.13. Current Projects
"Current Projects" shall mean those information-technology related
development projects that Acxiom is currently performing for Allstate or
that are in progress as of the Effective Date and are set forth in Schedule
2.13 hereto.
2.14. Data Acquisition Cost ("DAC")
Data Acquisition Cost ("DAC") shall mean the price charged for data
by the primary supplier of such data, including any supplier-imposed
surcharges.
2.15. Data Acquisition System ("DAS")
Data Acquisition System ("DAS") shall mean the highly integrated
system of software programs and processes developed by Acxiom and Allstate
pursuant to the PSA to support Allstate's customer-focused information
needs.
2.16. Data Integrity
"Data Integrity" shall mean the objectively measured accuracy and
consistency of acquired or purchased data as determined in accordance with
the methods described in Schedule 3.7.
2.17. Effective Date
"Effective Date" shall be April 1, 1999, and shall mean the date on
which this Agreement becomes effective.
2.18. End-User
"End-User" shall mean any Person authorized by Allstate to request
any Services from Acxiom.
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2.19. Fee Reduction
"Fee Reduction" shall mean the amount determined pursuant to Section
8.9 hereof that is the price reduction for a Failure, as defined therein.
2.20. Force Majeure Event
"Force Majeure Event" shall mean an act of God, act of governmental
body or military authority, fire, explosion, power failure, flood,
epidemic, riot or civil disturbance, war, sabotage, accidents,
insurrections, blockades, embargoes, storms, labor disputes, or similar
event; provided, however, that "Force Majeure Event" expressly excludes the
following: any event that Acxiom could reasonably have prevented.
2.21. Indemnitees
"Indemnitees" shall mean, with respect to a Party entitled to
indemnification hereunder, such Party and its Affiliates, and their
respective officers, directors, employees, agents, successors, and assigns.
2.22. MASL
"MASL," which is the acronym for "minimum acceptable service level,"
shall mean, as to each task or service for which a MASL is specified in
this Agreement, the MASL so specified for such task or service.
2.23. Material Default
"Material Default" shall mean the occurrence of any of the
following:
(a) any material failure by Acxiom to provide the Services in
accordance with an applicable MASL, if Acxiom fails to use
reasonable efforts to correct such failure or if,
notwithstanding Acxiom's reasonable efforts, such failure has
not been corrected within ten (10) business days after Acxiom
has received written notice of such failure from Allstate. (For
purposes of this definition, the words "correct" and
"corrected" shall include implementation of a work-around or
similar temporary measures, provided that Acxiom continues its
best efforts to pursue and promptly implement a full and
complete cure);
(b) a commission by either Party of a material breach of any
obligation to the other Party under Section 9 (Relationship
Management) hereof, Section 10 (Proprietary Rights; Ownership
of Work Product) hereof or Section 17 (Confidentiality) hereof,
provided that such breach, if curable, is not cured within ten
(10) business days after such breach;
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(c) the existence of any material representation or warranty made
in this Agreement by either Party that was materially false
when made; provided, however, that if such material
misrepresentation is curable and such cure will fully and
completely effect a resolution reasonably acceptable to the
other Party, there shall not be a Material Default if the
misrepresentation is cured within thirty (30) days after the
Party that has made the material misrepresentation has been
notified by the other Party of the falsity of the
representation;
(d) insolvency of a Party; general failure of a Party to pay its
debts as they become due; entrance of a Party into receivership
or any arrangement or composition with creditors generally;
filing of a voluntary or involuntary petition or other action
or proceeding for bankruptcy or reorganization or dissolution
or winding-up of a Party; a general assignment for the benefit
of creditors of a Party; or a seizure or a sale of a material
part of a Party's property by or for the benefit of any
creditor or governmental agency;
(e) an assignment or attempted assignment in violation of Section
24.3 hereof; or
(f) a failure by either Party to observe and perform any other
material obligation, covenant, or condition under this
Agreement and, in cases where the breach does not involve a
material violation of law relating to or affecting the
provision of Services: (i) the failure by the breaching Party
to cure such default within thirty (30) days after the
breaching Party has received notice of such default; or, (ii)
if the failure is not one that could be corrected with use of
best efforts within thirty (30) days, the failure by the
breaching Party to adopt a plan to cure within thirty (30) days
and to cure within sixty (60) days. (For purposes of this
definition, the word "cure" shall include implementation of a
work-around or similar temporary measures, provided Acxiom
continues its best efforts to pursue and promptly implement a
full and complete cure).
2.24. Party
"Party" shall mean Allstate or Acxiom; "Parties" shall mean both of
them.
2.25. Person
"Person" shall mean any natural person, corporation, limited
liability company, partnership, trust, association, or other legal person
or entity of any kind, legally constituted.
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2.26. Problem
"Problem" shall mean any problem or circumstance that results from
any of the following:
(a) a perceived failure by either Party to perform its obligations
under this Agreement;
(b) a perceived inadequacy or delay of either Party's performance
under this Agreement; or
(c) a request for products, services, or resources where the
Parties disagree as to whether such products, services, or
resources are within the scope of this Agreement.
2.27. Problem Report
"Problem Report" shall mean a written report executed by both
Parties describing a solution to a Problem.
2.28. Services
"Services" shall mean, collectively, all of the services to be
performed by Acxiom pursuant to Section 3.3 hereof.
2.29. Software
"Software" shall mean any software developed or procured by Acxiom
and used in connection with the provision of the Services to Allstate
hereunder. Software shall include all software used in connection with the
Services regardless of whether such Software is used by Acxiom, Allstate,
or a third party.
2.30. Term
"Term" shall mean the period during which Acxiom shall be obligated
to provide the Services, as specified in Section 11.1 hereof.
2.31. Third-Party Data Providers
"Third-Party Data Providers" shall mean those third parties
(including Acxiom Corporation or Acxiom itself) from which Acxiom procures
data for the benefit of, or to be used by, Allstate. A list of the Third-
Party Data Providers as of the Effective Date is contained in Schedule
2.31.
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2.32. Total Data Cost Savings ("TDCS")
Total Data Cost Savings ("TDCS") shall mean the difference between
the benchmark price and the DAC defined at the Allstate and PP&C user
level.
2.33. Work Order
"Work Order" shall mean a request for the performance of work that
is not being performed at a particular time but that is within the scope of
the Services.
2.34. Work Product
"Work Product" shall mean all information, computer programs,
documentation, and developments created for Allstate's use or benefit in
connection with this Agreement, by Allstate, by Acxiom, or by any other
person engaged by Allstate or Acxiom, and all intermediate and/or partial
versions thereof, including (but not limited to) all source code and object
code with respect thereto, and all designs, specifications, inventions,
discoveries, improvements, ideas, know-how, techniques, materials, program
materials, software, flow charts, notes, outlines, lists, data
compilations, manuscripts, writings, pictorial materials, schematics, other
creations, and the like, whether or not patented or patentable or otherwise
protectable by law. Work Product does not and shall not include any Acxiom
Core Software.
3. SERVICES
From and after the Effective Date, Acxiom shall provide the Services to
Allstate and such of Allstate's divisions, business units, agents, or Affiliates
as Allstate shall designate.
3.1. Provision of Services
Commencing at 12:01a.m., local time, on the Effective Date, and at
all times thereafter during the Term, except as otherwise expressly stated
herein, and subject to the qualifications, limitations, and exclusions
expressed elsewhere in this Agreement, Acxiom shall perform (i) all
services that Acxiom was performing or was obligated to perform for
Allstate immediately prior to the Effective Date under the PSA and (ii) all
other services described in this Section 3.
3.2. Current Projects
From the Effective Date, Acxiom shall continue to be responsible for
the continuing and uninterrupted development and implementation of all
Current Projects as they are being performed immediately prior to the
Effective Date for the fees previously agreed upon by the Parties pursuant
to the PSA
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3.3. Data Acquisition and Related Services
From the Effective Date, Acxiom shall provide data acquisition and
related services as set forth in Schedule 3.3 hereto.
3.4. Future Projects
From the Effective Date, Acxiom shall perform such additional
projects, relating to the Services ("Projects") in the area of data
acquisition, data processing, information management, professional
consulting, system design and development, software maintenance,
programming, and software acquisition, as Allstate may request and Acxiom
may agree from time to time. Projects may be requested orally unless
required to be specified in Work Orders pursuant to the procedures set
forth in Section 9.5, below; provided, however, that once any oral request
has been agreed upon, written documentation evidencing such agreement shall
be executed by the Parties as promptly as possible prior to the inception
of any work on such Project.
3.5. [Intentionally Left Bank]
3.6. Business Resumption Services
From the Effective Date, Acxiom shall provide business resumption
services as set forth in Schedule 3.6 hereto.
3.7. Data Integrity Services
From and after the Effective Date, Acxiom shall provide the data
integrity services as set forth in Schedule 3.7 hereto.
4. MASLS
4.1. Specification of MASLs
Schedule 4.1 specifies certain MASLs. The initial MASLs for those
Services previously provided under the PSA and not specified in Schedule
4.1 shall be the higher (i.e., the more beneficial to Allstate) of (i) the
actual service levels provided immediately prior to the Effective Date or
(ii) the MASLs, if any, previously specified for such services under the
Prior Agreements. All MASLs shall be subject to adjustment pursuant to
this Section 4.
4.2. MASL Measurement and Reporting
Acxiom shall measure and report its performance against the MASLs
during each month, by the 10th business day of the following month.
Measurements of availability shall exclude scheduled downtime, delays in
processing schedules requested by or caused by Allstate, and unscheduled
downtime to the extent attributable to Force Majeure Events, or the acts or
omissions of Allstate or its
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employees, agents, third-party contractors, and suppliers. Acxiom shall
meet with Allstate's Contract Manager at least quarterly to review Acxiom's
actual performance against the MASLs and shall recommend remedial actions
to resolve performance deficiencies.
4.3. Improvement in MASLs
MASLs shall be adjusted by written agreement of the Parties from time
to time, but not less frequently than at the end of each anniversary of the
Effective Date, to be made higher or more stringent so as to reflect
changes in technology, changes in Allstate's business and environment, and
other changes in circumstances. Acxiom shall use commercially reasonable
efforts to improve its performance in relation to the MASLs over the Term,
through the implementation of efficiency-enhancing hardware and software
technologies.
4.4. Temporary Suspension of MASLs
In the event, and to the extent, that Acxiom fails to meet a specific
MASL as a consequence of material errors or omissions of Allstate or its
employees, contractors, or agents, such MASL will be temporarily suspended
for such reasonable amount of time as is necessary for Acxiom to return to
compliance, provided that Acxiom shall use its best efforts to return to
compliance. Acxiom shall take such reasonable precautions as it deems
necessary to prevent the recurrence of any such event.
5. ACXIOM RESOURCES
5.1. General
Except as provided in Schedule 5.1, Acxiom shall have full and total
responsibility for obtaining all Software, hardware, documentation,
services, and other resources that it will need in order for it to be able
to provide the Services in accordance with the MASLs. Schedule 5.1 is a
listing of such resources to be provided by Allstate in connection with the
provisions of data interactively. All resources specified in Schedule 5.1
that have been provided by Acxiom prior to the Effective Date shall be
transferred to Allstate as of the Effective Date at no additional charge to
Allstate.
5.2. Use of Data Acquisition System
DAS will be used to support Allstate's auto and property new business
underwriting, auto and property renewal underwriting, existing auto-correct
classification processes, claims and any other areas of business upon which
the Parties may agree. Any business unit or Affiliate of Allstate or any
insurance or financial services entity in which Allstate has ownership
interest of 10% or greater may utilize the DAS for comparable risk
assessment, administrative and/or claims purposes for the same fees
described in this Agreement.
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5.3. Use of Data Network
Acxiom shall be required to use, and cause its suppliers to use, the
IBM Global network, or such other network as Allstate directs in its sole
discretion, (the "Data Network") for all data transmissions relating to the
Services. Allstate will be responsible for all charges related to
utilizing the Data Network for transmission of information to support DAS.
Allstate will coordinate Acxiom's efforts to add new suppliers to the Data
Network. Allstate will bear all Data Network transmission costs incurred
on Allstate's behalf. Acxiom will not utilize the Data Network connections
established for Allstate to transmit data for any other insurance company
without the prior written consent of Allstate.
5.4. Non-Exclusivity
Nothing herein shall prevent Allstate from obtaining any type of
Services, or any other services, from any other provider during the Term.
Notwithstanding the preceding sentence: (1) prior to obtaining Services
from another provider during the Term, Allstate shall provide Acxiom the
opportunity to submit an offer to continue to provide Services and Allstate
shall accept such offer if, in Allstate's reasonable determination, such
offer permits Allstate to continue to receive the best Services at the best
price, and (2) Allstate shall provide Acxiom the opportunity to submit an
offer to provide other services to Allstate and Allstate shall accept such
offer if, in Allstate's discretion, such offer permits Allstate to receive
the best services at the best price. Nothing herein shall prevent Allstate
from providing any Services or any other services to itself or its
Affiliates using its own facilities, employees and Affiliates.
6. SECURITY OBLIGATIONS
At all times during the Term, Acxiom shall be fully and solely responsible
for ensuring the integrity of Allstate's Data and the security of the storage,
processing, compilation, or transmission of all Allstate's Data and of all
equipment, storage facilities, and transmission facilities on which or through
which Allstate's Data is stored, processed, compiled, or transmitted, including,
but not limited to, the prevention and detection of Acxiom employee fraud,
abuse, or other inappropriate use or access by any Acxiom employee. In this
respect, Acxiom shall perform, among other things, all the tasks and take all
the measures described in Schedule 6 and shall take such other initiatives or
measures as necessary and appropriate under the circumstances.
7. ALLSTATE-RETAINED AUTHORITY AND OBLIGATIONS
7.1. Allstate Authority
Allstate shall retain all decision-making authority with respect to
the overall assessment and direction of the Services, introduction of new
products and Projects, and modification or discontinuance of products or
Projects. Acxiom shall cooperate with Allstate and provide Allstate with
advice, information, and assistance in
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identifying and defining data management projects outside the scope of the
Services and future data management requirements to meet Allstate's
business objectives.
7.2. Access to Personnel and Information
Allstate shall reasonably cooperate with Acxiom in all matters
relating to Acxiom's performance of the Services. Such cooperation shall
include (but not be limited to) reasonable access to Allstate's
administrative, technical, and other similar personnel as reasonably
required by Acxiom to provide the Services.
8. FINANCIAL TERMS
As the sole and entire consideration for all of the Services to be
performed by Acxiom and for all of the other tasks, services, and obligations of
Acxiom under this Agreement, Allstate shall pay to Acxiom the amounts set forth
in this Section 8.
8.1. Data Acquisition Fees
Unless otherwise specified in a Work Order or in Schedule 8.1 hereto,
Allstate will pay to Acxiom the DAC for any data acquired by Acxiom for
Allstate in connection with the Services plus an amount equal to three and
one-half percent (3.5%) of such DAC; provided however, that the foregoing
fees shall not apply to state Motor Vehicle Registration ("MVR") fees and
surcharges, for which Allstate shall pay the fees set forth in Schedule
8.1; and provided further that any taxes imposed upon the acquisition or
use of such data shall be paid by Allstate, and that Allstate shall not pay
Acxiom any service fees or surcharges for Acxiom's handling and payment of
such taxes.
8.2. Shared Savings - Data Acquisition Costs
8.2.1. Total Data Cost Savings
Allstate shall pay to Acxiom forty percent (40%) of the TDCS
resulting from Acxiom's performance of the Services. TDCS shall be
computed as the difference of the Benchmark Price less the DAC for
any data acquired by Acxiom for Allstate pursuant to this Agreement.
8.2.2. Determination of Benchmark Price
Acxiom shall be responsible for documenting and tracking the
Benchmark Price as follows.
8.2.2.1. For types of data previously obtained
directly by Allstate, the Benchmark Price shall be the
average price paid by Allstate for such data during the
twelve (12) month period prior to Acxiom's taking
responsibility for the acquisition of such data.
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8.2.2.2. For types of data obtained by Acxiom pursuant
to the PSA, the Benchmark Price shall be that Benchmark Price
as determined pursuant to the PSA and set forth in Schedule
8.2.2 hereto.
For types of data for which no historical pricing information
is available (e.g., new types of data), the parties shall endeavor,
in good faith, to agree upon a Benchmark Price. In the event that the
parties are unable to mutually agree upon a Benchmark Price, a
request for quote will be sent out with volume estimates supplied and
the response to such request will be used as the benchmark.
8.2.3. Effect of Supplier Price Changes on TDCS
In the event that a data supplier other than Acxiom increases
or decreases the cost of data, part or all of the increased or
decreased cost will be passed on to Allstate by Acxiom. According to
the circumstances surrounding the price increase or decrease, TDCS
may or may not be affected. The following scenarios detail when TDCS
will and will not be affected, and how the increase or decrease will
be passed on to Allstate.
8.2.3.1. If a supplier price increase is levied
against all of such suppliers' customers (e.g., an increase
in the `list price' for such data), the Benchmark Price will
be increased by the full amount of the price increase.
8.2.3.2. If a supplier price increase is levied only
against Acxiom or Allstate, the Benchmark Price will not be
adjusted.
8.2.3.3. If a supplier price decrease is applicable to
all of such suppliers' customers (e.g., a decrease in `list
price' for such data), the Benchmark Price will be decreased
by the full amount of such price decrease.
8.2.3.4. If a supplier price decrease is applicable
only to Acxiom or Allstate and such decrease is achieved as a
result of Acxiom's efforts hereunder, the Benchmark Price
will not be adjusted, provided, however that if such decrease
is not attributable to Acxiom's efforts hereunder, the
Benchmark Price will be decreased by the full amount of such
price decrease.
8.3. Shared Savings - Other Costs
As part of its responsibilities to optimize the efficiency and cost-
effectiveness of Services, Acxiom shall use its best commercial
efforts to reduce Allstate's costs associated with the Services,
without reduction in the MASLs and without increasing the overall
costs associated with the Services. Allstate will
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pay to Acxiom forty percent (40%) of the "First Year Savings"
directly resulting from each specifically identifiable "Optimization"
(e.g., improved technology reducing the number of servers required
for Allstate's requirements) that reduces Allstate's direct costs,
calculated on the following general terms:
(a) The First Year Savings will be estimated three months after the
mutually-agreed "Implementation Date" of the Optimization, and
will equal the excess (if any) of: (i) the estimated amount of
the direct costs that would have been incurred by Allstate or
paid to third-parties, for the first twelve months after the
calendar month in which the Implementation Date occurs, had the
Optimization not been implemented, over (ii) the estimated
amount of the direct costs incurred by Allstate or to be paid to
third parties for such twelve-month period.
(b) The Optimization must be specifically identifiable and any First
Year Savings must be a direct result of Acxiom's actions. Any
cost savings achieved as result of Allstate directing Acxiom to
implement a cost-saving or efficiency-optimizing solution, shall
not be deemed an Optimization and Allstate shall not pay Acxiom
for any resulting savings.
8.4. Data Network Costs
Allstate will bear all Data Network transmission costs incurred on
Allstate's behalf. Acxiom shall invoice Allstate for any Data Network
transmission costs paid by Acxiom on Allstate's behalf, and such costs
shall be payable by Allstate, without any surcharges, service fees, or
other additions.
8.5. Audit
Acxiom shall, at Allstate's request, provide Allstate's auditors with
the ability to fully audit all relevant portions (as reasonably determined
by Allstate) of Acxiom's books and records to verify the calculations
provided for in this Section 8. Acxiom shall provide such auditors with
reasonable access to such information relating to this Agreement and
Acxiom's business as may be necessary to confirm the accuracy of the
pricing model and pricing adjustment computations for any given year. Any
overcharges, undercharges, or errors in computation discovered in the
course of any such audit shall be reflected on the next invoice produced by
Acxiom hereunder. In the event that such an audit reveals net overcharges
in excess of five percent (5%) of the amount that should have been payable
by Allstate hereunder, Acxiom shall (i) reimburse Allstate for all costs
associated with such Audit; (ii) refund or credit Allstate (at Allstate's
option) the full amount of such overcharges; and, (iii) pay Allstate
interest at a rate equal to two (2) percentage points above the floating
"prime rate" as published from time to time by The Wall Street Journal.
-----------------------
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8.6. Taxes
(a) Allstate shall pay any applicable taxes that may be levied or
based upon this Agreement or upon the Services and facilities provided by Acxiom
hereunder, including without limitation sales, use, nonresident, value-added,
excise, and similar taxes, but excluding taxes levied or imposed upon the income
or business privileges of Acxiom.
(b) To the extent Acxiom is required to collect and remit any
Allstate Tax, Acxiom shall invoice Allstate, as a separate line
item, the amount of any such tax.
(c) Allstate shall have the right to contest the validity and
payment of any Allstate Tax allegedly owed under this Section.
Acxiom agrees to cooperate with Allstate in all such contests.
In the event that Allstate elects to contest the validity or
payment of any Allstate Tax, Allstate shall not be required to
pay any such tax until the contest is resolved. In no event
shall Acxiom be required to pay any Allstate Tax and Allstate
shall remit to Acxiom any such payment, as well as the payment of
any fees, penalties or late charges related thereto which Acxiom
may be required to pay, as a result of any determination in
connection with any contest with taxing authorities. Allstate
shall pay such amount within twenty-five (25) days of receipt by
Allstate of an invoice from Acxiom. Allstate shall not be
responsible for any penalties or late charges assessed due to
Acxiom's negligence. Allstate reserves the right to intervene in
any dispute with a taxing authority as to the taxability of the
Software System or services provided to Allstate pursuant to this
Agreement.
8.7. Services Benchmarking
With Allstate's direction and cooperation, and as part of the
Services, Acxiom shall propose and effect a continuing benchmarking program
and methodology acceptable to Allstate that takes into consideration
adjustments, if any, for reasonably comparable elements of the Services and
that will enable Allstate to compare the fees and MASLs set forth in this
Agreement with an annually updated database of peer companies and ensure
that said fees and MASLs are aligned with the industry's best rates and
practices and appropriate adjustments to meet such industry best rates and
practices shall be made annually as a Contract Change. At Allstate's
direction, Acxiom shall work with any benchmarking firm Allstate selects.
8.8. Out-of-Scope Services Rate Chart
Allstate shall pay for any "Out-of-Scope services" (i.e., ancillary
services that are not a part of Services), on a time-and-materials basis at
the rates set forth in the "Rate Chart" attached as Schedule 8.8. Such
rate will remain fixed until the second anniversary of the Effective Date.
Thereafter, Acxiom may increase such rates only
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once each year of the Term (and only upon and as of an anniversary of the
Effective Date) by an amount not to exceed the lesser of: (i) three percent
(3%) of the then-applicable rate; or (ii) the increase, during such year,
in the United States Department of Labor, Bureau of Labor Statistics,
Employment Cost Index, Total Compensation, Private Industry Workers By
Industry and Occupational Group for Professional Specialty and Technical.
Allstate shall reimburse Acxiom for reasonable out-of-pocket expenses
incurred by Acxiom in the performance of Out-of-Scope services, such as
reasonable travel and living expenses, provided such expenses are invoiced
with reasonable supporting documentation and authorized in writing by
Allstate prior to being incurred. Acxiom shall provide invoicing for Out-
of-Scope services with documentation that references Allstate's authorizing
documentation, Allstate account number, charges, and description. No
invoice with respect to Out-of-Scope services will be paid unless such
services were authorized in advance in writing by Allstate's Contract
Manager.
8.9. Fee Reductions
This Section 8.9 specifies certain "Fee Reductions." It is understood
that these Fee Reductions are intended to reflect, to some extent, the
diminished value of Acxiom's Services in such events; such Fee Reductions
are not intended to compensate Allstate for any breach or default by Acxiom
under this Agreement, nor to constitute penalties, damages, liquidated
damages, or other compensation for any such breach or default. Any damages
recovered by Allstate for a Material Default shall be reduced by the Fee
Reduction previously paid by Acxiom to Allstate and directly related to the
Material Default.
Upon the occurrence of any failure to meet any of the following
critical MASLs for the event in the applicable month (a "Failure"),
Allstate's Contract Manager may impose a Fee Reduction in respect of said
month as set forth in this Section 8.9 with respect to Acxiom's actual
performance as measured against the MASL.
With respect to the Failures set forth in the tables below: (i) if the
particular Failure occurs in any two (2) consecutive months, the Fee
Reduction for the second (2nd) of such months with respect to that device
or event shall be the applicable Fee Reduction amount set forth below; (ii)
if the particular Failure occurs in any three (3) consecutive months, the
Fee Reduction for the third (3rd) of such months, and for each succeeding
month until the first month when the Failure no longer occurs, shall be
three (3) times the applicable Fee Reduction amount set forth below.
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<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
MASL Fee Reduction
---------------------------------------------------------------------------------------------------
<S> <C>
MASLs related to delivery of data The total amount of any fee paid to
pursuant to DAS Acxiom in excess of the DAC (plus
applicable taxes)
---------------------------------------------------------------------------------------------------
MASL I Acxiom Help Desk $10 per occurrence exceeding maximum
time on help desk
---------------------------------------------------------------------------------------------------
MASL II Reporting $10 per late report
---------------------------------------------------------------------------------------------------
MASL III Processing Service Levels- Net revenue after data expense
Batch
---------------------------------------------------------------------------------------------------
MASL IV Processing Service Level- "
Interactive
---------------------------------------------------------------------------------------------------
MASL V Integrity of Data "
---------------------------------------------------------------------------------------------------
</TABLE>
Acxiom shall pay all Fee Reductions to Allstate by credit against
future invoices back to the Allstate division, business unit, agent or
Affiliate whose request generated the Fee Reduction, or, at Allstate's
written request, by wire transfer to an account designated by Allstate, on
or before the first day of the month after the month in which it receives
notice from Allstate of the assessment of said Fee Reduction.
Allstate shall give Acxiom reasonable advance notice of anticipated
changes in numbers of End-Users or processing volumes (measured by numbers
of data requests, transactions, reports, End-Users or other similar
objective and measurable criteria). Fee Reductions will not be imposed in
the event the Failure is attributable to: (i) an act or omission of
Allstate; (ii) a Force Majeure event; (iii) material changes in hardware or
software environments implemented by Allstate or a third party and not
approved by Acxiom; or (iv) increases in processing volumes for which
Acxiom did not receive reasonable advance written notice.
8.10. Only Payments
The fees set forth in this Section 8 are the only payments to be
made by Allstate to Acxiom under this Agreement. Acxiom shall be solely
responsible for, and shall indemnify Allstate against, all costs and
expenses of Acxiom necessary to meet Acxiom's obligations arising under
this Agreement, including (but not limited to) labor expenses, hardware and
software costs, and general business expenses (including, but
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not limited to, travel, meals, and overhead expenses). Except as otherwise
expressly stated, Allstate will not pay Acxiom any additional fees,
assessments, or reimbursements.
8.11. Invoices
8.11.1. Data Acquisition Costs
Acxiom shall furnish: (a) each Allstate PP&C region, each
claims office, and each other user of DAS specified by Allstate with
a separate monthly invoice for its proportionate share of DAC,
applicable surcharges, taxes, and TDCS, and (b) the Allstate
headquarters with a monthly invoice for its proportionate share of
DAC, applicable surcharges and TDCS, as well as the share of such
charges not otherwise allocated to other DAS users, which shares
shall be separately stated on such invoice. Subject to the
provisions of Sections 8.11.4 and 8.11.5 hereof, and until such time
as the Parties successfully implement an Electronic Data Interchange
system, which shall include provision of a consolidated monthly
invoice with separate line items by Allstate cost center ("EDI")
between them, Allstate shall pay each such invoice no later than 30
business days after receipt. After the successful implementation of
EDI, but still subject to the provisions of Sections 8.11.4 and
8.11.5, Allstate shall pay: (x) such invoices related to DAS
provided to PP&C regions, claims office and other DAS users not
classified by Allstate as part of Allstate's home office not later
than 15 business days after receipt, (y) such invoices related to
DAS provided to users classified by Allstate as part of Allstate's
home office not later than 30 business days after receipt, and (z)
interest at the rate of one percent (1%) per month on any undisputed
amounts not paid within the time frames referenced in this sentence.
8.11.2. Other Charges
Acxiom shall furnish Allstate with a single monthly invoice
setting forth in detail all charges payable by Allstate other than
those invoiced pursuant to Section 8.11.1 hereof. Subject to the
provisions of Sections 8.11.4 and 8.11.5 hereof, Allstate shall pay
each such invoice no later than 30 business days after receipt.
8.11.3. Frequency and Format
All invoices shall be furnished by Acxiom not later than
the tenth (10th) day of each calendar month for Services delivered
during the immediately preceding calendar month. Invoices shall be
provided in formats reasonably requested by Allstate from time to
time. Upon request of Allstate, Acxiom shall provide Allstate with a
consolidated report showing all invoices furnished to all Allstate
units, status of payments of such invoices, and such other invoicing
and payment information that is reasonably requested by Allstate.
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8.11.4. Disputed Amounts
Allstate may, in good faith, dispute any invoice or any
portion thereof and shall be required to pay to Acxiom only the
undisputed amounts until the dispute is resolved to Allstate's
satisfaction. The failure of Allstate to pay a disputed amount shall
not constitute a breach or Material Default by Allstate, provided
that Acxiom shall have been given notice of the subject of the
dispute in accordance with Section 21 hereof and that the
appropriate dispute resolution procedures of this Agreement shall
have been initiated by Allstate or Acxiom with respect to the
matter.
8.11.5. Set-Off
Allstate may set-off against any and all amounts otherwise
to be paid to Acxiom pursuant to any of the provisions of this
Agreement: (i) any and all amounts owed by Acxiom to Allstate under
the provisions of Section 20 (Indemnification); and (ii) any other
amounts claimed in good faith to be owed to Allstate by Acxiom in
respect of this Agreement. Within sixty (60) days of any set-off by
Allstate, Allstate shall provide to Acxiom a detailed written
accounting of such set-off and a written statement of the reasons
for such set-off.
8.12. Most-Favored Customer
Notwithstanding the foregoing if Acxiom offers to any new or
existing customer, any services substantially the same as those described
in this Agreement at a price lower or a discount greater than the price
charged to Allstate hereunder, or offers more comprehensive services at the
same or a lower price, then Acxiom shall offer such lower price or greater
discount to Allstate in lieu of the price thereof that is reflected in the
price set forth in this Agreement (or, if the price has already been paid,
Acxiom shall pay to Allstate a refund of the difference between the price
already paid and the lower price or shall offer to Allstate such additional
or more comprehensive services at the lower price (or greater discount).
Without limiting the generality of Section 8.11.5, Allstate may offset such
overcharge amount against any amounts due to Acxiom under this Agreement or
any other contract with Allstate. In any event, any acquisition by Allstate
of services or products from Acxiom shall be at the terms, conditions, and
prices granted by Acxiom to its most-favored customer receiving
substantially the same services or products. Acxiom shall notify Allstate
of the occurrence of the lower price or greater discount (or provision of
more comprehensive services) as described in this Section 8.12 within
thirty (30) days after its implementation of such lower price or greater
discount (or provision of more comprehensive services). Acxiom further
shall notify Allstate on a periodic basis, no less frequently than
annually, if there has been no such occurrence of lower price, greater
discount or provision of more compliance servers during such preceding
period.
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9. RELATIONSHIP MANAGEMENT
9.1. Key Personnel and Contract Manager
9.1.1. Acxiom's Key Personnel and Contract Manager
Upon thirty (30) days' prior written notice, Acxiom may
reassign any of Acxiom's Key Personnel including (but not limited
to) Key Personnel assigned solely to Allstate, to other job
functions within Acxiom; provided however, that such reassigned
persons shall not perform any services for State Farm Mutual
Insurance Company, Farmers Group, Inc., Nationwide Mutual Insurance
Company, American Family Mutual Insurance Company, United Services
Automobile Association, SAFECO Corporation, GEICO, American
International Group or The Progressive Corporation or any of their
respective subsidiaries or affiliates within six (6) months of being
reassigned. Acxiom shall promptly replace such reassigned person
with another person at lease as well qualified. Acxiom represents
that Acxiom's Contract Manager is an experienced manager who is, or
will endeavor to become, knowledgeable as to Allstate's activities
and any applicable MASLs. Allstate shall have the right to
interview, as Allstate deems necessary, and participate in the
selection of Acxiom's Key Personnel and Contract Manager, and Acxiom
shall not designate any Key Personnel or its Contract Manager
without Allstate's prior written consent, which consent shall not be
unreasonably withheld. Upon thirty (30) days' prior written notice,
Acxiom may reassign the Contract Manager to other job functions
within Acxiom; provided however, that such reassigned Contract
Manager shall not perform any services for State Farm Mutual
Insurance Company, Farmers Group, Inc., Nationwide Mutual Insurance
Company, American Family Mutual Insurance Company, United Services
Automobile Association, SAFECO Corporation, GEICO, American
International Group or The Progressive Corporation or any of their
respective subsidiaries or affiliates within six (6) months of being
reassigned. Acxiom shall promptly replace such reassigned person
with another person at least as well qualified. Acxiom's Contract
Manager will act as the primary liaison between Acxiom and
Allstate's Contract Manager, will have overall responsibility for
directing all of Acxiom's activities hereunder, and will be vested
with all necessary authority to fulfill that responsibility.
9.1.2. Allstate's Key Personnel and Contract Manager
Allstate's Key Personnel shall provide advice and
assistance to Acxiom in areas requiring particular technical or
functional expertise or work experience. If any one of Allstate's
Key Personnel is unable to perform the functions or responsibilities
assigned to him or her in connection with this Agreement, or if he
or she is no longer employed by Allstate, Allstate shall promptly
replace such person or reassign the functions or responsibilities to
another person. Allstate's Contract Manager shall act as the primary
liaison
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between Allstate and Acxiom's Contract Manager and shall have
overall responsibility for directing all of Allstate's activities
hereunder and shall be vested with all necessary authority to
fulfill that responsibility.
9.1.3. Additional Personnel Requirements
In addition to Acxiom's Key Personnel, Acxiom shall make
available such additional personnel as are necessary to properly
perform Acxiom's obligations under this Agreement at performance
levels at least equal to the MASLs.
9.1.4. Minimum Proficiency Levels
Acxiom's Key Personnel and all other personnel assigned by
Acxiom or its subcontractors to perform Acxiom's obligations under
this Agreement shall have experience, training, and expertise at
least equal to the highest commercial standards applicable to such
personnel for their responsibilities in the business in which Acxiom
is engaged and shall have sufficient knowledge of the relevant
aspects of the Services and shall promptly obtain sufficient
knowledge of Allstate's practices and areas of expertise to enable
them to properly perform the duties and responsibilities assigned to
them in connection with this Agreement. In addition, the Services
shall conform to the highest commercial standards applicable to such
Services in the business in which Acxiom is engaged.
9.1.5. Training
Acxiom shall provide, and cause its subcontractors to
provide, all such training to the employees of Acxiom and its
subcontractors as may be necessary for them to perform, on behalf of
Acxiom, all of Acxiom's duties under this Agreement.
9.1.6. Unsatisfactory Performance
Notwithstanding Section 9.1.1, if Allstate believes that
the performance or conduct of any person employed or retained by
Acxiom to perform Acxiom's obligations under this Agreement is
unsatisfactory or is not in compliance with the provisions of this
Agreement, Allstate shall so notify Acxiom and Acxiom shall promptly
address the performance or conduct of such person, or, at Allstate's
request, immediately replace such person with another person
acceptable to Allstate.
9.2. Allstate's Policies
Acxiom shall ensure that it and all Acxiom Personnel comply with the
following Allstate policies and such additional policies as may be provided
by Allstate
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to Acxiom from time to time, and Acxiom shall cooperate with Allstate to
facilitate Allstate's compliance with such policies:
9.2.1. Computer Information and Access
Prior to performing any services pursuant to this
Agreement, the Acxiom Personnel shall execute Allstate's standard
forms concerning access protection and data/software security in the
form attached hereto as Schedule 9.2.1. Computer data and software
shall be used by Acxiom Personnel only in connection with Acxiom's
obligations hereunder. Failure of Acxiom to comply with these rules
may result in Allstate restricting offending personnel from access to
Allstate computer systems or data, or if such failure is willful,
reckless or grossly negligent, immediate termination of this
Agreement.
9.2.2. Confidentiality and Intellectual Property
Prior to performing any services pursuant to this
Agreement, all Acxiom Personnel shall execute the "Acknowledgment"
attached hereto as Schedule 9.2.2 or such other similarly restrictive
document in form and substance acceptable to the parties with respect
to the protection of confidential information and assignment of
intellectual property rights.
9.2.3. Other Policies
When on Allstate's premises, Acxiom shall, and shall cause
all Acxiom Personnel to, abide by all Allstate corporate policies that
may be established by Allstate from time to time.
9.2.4. Enforcement
Acxiom shall render all reasonable assistance requested by
Allstate in the event Allstate is required to enforce any of the
foregoing policies, or Acknowledgments with respect to any current or
former Acxiom Personnel.
9.3. Regulatory Compliance
Acxiom shall assist Allstate in regulatory compliance and further
assist Allstate to the extent Acxiom's actions are attributed to Allstate.
Allstate agrees to reimburse Acxiom for all expenses reasonably incurred
and approved in advance by Allstate in complying with this Section 9.3.
9.4. Operational Change Procedure
Acxiom may make operational changes in the manner in which it
provides the Services, using such processes as the Parties mutually agree
upon from time to time. Operational changes shall include, by way of
example: Acxiom logging changes according to a documented change-control
process; conducting mutually agreed,
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regular change control meetings; Acxiom notifying Allstate and End-Users,
as appropriate, of planned change control activities with sufficient lead
times to avoid disruption; and Acxiom scheduling outages during hours that
meet Allstate operational needs and minimize disruption.
9.5. Work Order Procedure
9.5.1. When Required
A Work Order shall be required to implement any new Service
or Project or to make material modifications to an existing Service
or Project if: (i) the estimated cost to Allstate of such new or
modified Service or Project exceeds Fifty Thousand Dollars
($50,000.00); or (ii) the terms under which such new or modified
Service or Project will be provided by Acxiom are materially at
variance with the terms of this Agreement (e.g., special financial
terms); or (iii) either party requests that such new or modified
Service or Project be specified in a Work Order.
9.5.2. Contents of the Work Order
Each Work Order issued pursuant to the Agreement shall
contain the following (to the extent applicable to the services to
be performed): a detailed description of the services to be
performed; specifications; implementation plans; time schedules;
financial terms if different from those set forth herein; MASLs; and
acceptance criteria. Work Orders shall be governed by the terms and
conditions of this Agreement. All Work Orders shall be agreed to and
signed by the Allstate Contract Manager and the Acxiom Contract
Manager prior to the start of the Services set forth therein.
10. Proprietary Rights; Ownership of Work Product
Allstate shall be the sole and exclusive owner of all of the Work Product,
and of all copyright, patent, trademark, trade secret, and other proprietary
rights in the Work Product. Ownership of Work Product will inure to the benefit
of Allstate from the date of creation, or of fixation in a tangible medium of
expression, as applicable, of such Work Product. Each copyrightable aspect of
the Work Product will be considered as though it was a "work made for hire"
within the meaning of the Copyright Act of 1976, as amended. If and to the
extent that the Work Product, or any part thereof, is found as a matter of law
not to be a "work made for hire" within the meaning of the Copyright Act of
1976, as amended, Acxiom hereby assigns and agrees to assign to Allstate
exclusively all right, title, and interest in and to the Work Product, and all
copies thereof, and the copyright, patent, trademark, trade secret, and all
other proprietary rights in the Work Product, without further consideration,
free from any claim, lien for balance due, or rights of retention thereto on the
part of Acxiom. As set forth in Section 9.2.1 hereof, Acxiom shall obtain
similar written undertakings from Acxiom Personnel who will perform the services
relating to this Agreement, so as to ensure Allstate's ownership of the Work
Product. Acxiom also acknowledges that Allstate does not intend
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Acxiom to be a joint author of the Work Product within the meaning of the
Copyright Act of 1976, as amended, and that in no event shall any Work Product
be deemed to have been developed with the intent that Acxiom be a joint author
thereof. Allstate will have unrestricted access to all Acxiom's materials,
premises, and computer files containing the Work Product provided, however
Allstate shall give reasonable notice prior to exercising such right. Allstate
shall grant Acxiom a non-transferable, non-exclusive personal license to use any
Work Product solely for the provision of Services to Allstate, and, subject to
the terms and conditions of the license agreement attached hereto as Exhibit
____, Acxiom may use the Work Product in connection with the provision of
Services to Acxiom's other customers with the prior written consent of Allstate,
which may be withheld in Allstate's sole discretion. Acxiom shall promptly and
fully disclose and deliver the Work Product to Allstate, in writing if requested
by Allstate, and shall execute and deliver any and all lawful patent, copyright,
or other applications, assignments, and other documents that Allstate requests
for protecting the Work Product, whether in the United States or any other
country. Allstate shall have the full and sole power to prosecute such
applications and to take all other action concerning the Work Product, and
Acxiom shall cooperate fully and in a lawful manner, at the expense of Allstate,
in the preparation and prosecution of all such applications and in any legal
actions and proceedings concerning the Work Product. Acxiom shall retain all
right, title, and interest in all intangible ideas, know-how, and techniques
developed by Acxiom that are not Work Product and Acxiom hereby grants to
Allstate a perpetual, non-exclusive, royalty free license to use any such ideas,
know-how, and techniques that are embedded in the Work Product.
10.1. Rights and Licenses
Acxiom shall be responsible for obtaining from third parties all
rights and licenses required to perform the Services. With respect to all
technology used and to be used by Acxiom to perform the Services hereunder,
Acxiom hereby grants and agrees to grant to Allstate, or cause to be
granted by the licensor thereof, without additional charge, such licenses
and sublicenses as may be necessary in order for Allstate, and its
authorized representatives, to use, or receive the benefit of the use by
Acxiom of, such technology in connection with the Services. Further,
Acxiom shall exercise its best efforts to obtain from third parties on
behalf of Allstate, without additional charge, such licenses,
authorizations, or consents as may be necessary for Allstate and its
authorized representatives to use any technology necessary for Allstate (or
its authorized representative) to continue to perform the Services for
Allstate after a Disentanglement.
10.2. Adverse Action
Each of the Parties covenants to perform its responsibilities under
this Agreement in a manner that does not infringe, or constitute an
infringement or misappropriation of, any patent, trade secret, copyright,
or other intellectual property right of any third party, or a violation of
the other Party's software license agreements or intellectual property
rights disclosed to or known by such Party.
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11. TERM
11.1. Initial Term; Renewals
The period during which Acxiom shall be obligated to provide the
Services under this Agreement shall commence on the Effective Date and end
on the fifth (5th) anniversary of the Effective Date; provided, however,
that Allstate may, in its sole discretion, extend the Term for an
additional five (5) years by providing written notice delivered to Acxiom
at least ninety (90) days before the end of the then-current initial or
extended Term. Acxiom shall notify Allstate of the expiration of the Term,
and of any renewal thereof, no earlier than twelve (12) months, nor later
than six (6) months, before the date on which the Term would expire (if not
renewed).
11.2. Extension of Termination Date
Allstate may, at its sole option and discretion, extend the
effective date of any expiration or termination of the Term for up to six
(6) successive thirty-day (30) periods upon at least fifteen (15) days'
prior written notice to Acxiom.
11.3. Early Termination
11.3.1. Partial Termination of Services by Allstate
Allstate shall have the right to terminate any of the
Services described in Section 3 upon thirty (30) days' written
notice to Acxiom if Allstate determines, in its sole discretion,
that it no longer has need for such Services; provided, however,
that Allstate may not terminate any Services pursuant to this
Section 11.3.1 for the purpose of engaging another vendor to perform
such Services except as provided in Section 5.4 hereof.
11.3.2. For Convenience
Allstate shall have the right to terminate any of the
Services described in Section 3 for its convenience upon twelve (12)
months' written notice to Acxiom. Allstate shall have the right to
end the Term for its convenience effective at 11:59 p.m. on the
intended date of termination by delivering to Acxiom a written
notice of termination at least 12 months before said intended date
of termination.
11.3.3. Change in Control of Acxiom
In the event of a change in control of Acxiom resulting
from a single transaction or series of related transactions,
Allstate shall have the right to end the Term upon ten (10) days'
written notice to Acxiom, provided that Allstate shall have
delivered such notice to Acxiom not later than 180 days following
the effective date of such change in control. Solely for purposes of
the preceding sentence, "control" shall mean the legal, beneficial,
or equitable
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ownership, direct or indirect, of more than fifty percent (50%) of
the aggregate of all voting or equity interests in Acxiom; "change
in control" shall mean any change in the legal, beneficial, or
equitable ownership, direct or indirect, such that control of Acxiom
is no longer with the same entity as on the Effective Date.
11.4. Termination for Material Default
Section 21 (Dispute Resolution) hereof notwithstanding, the Term may
be ended by either Party, by written notice delivered to the other Party,
if the other Party commits a Material Default which remains uncured within
the time specified in Section 2.24 hereof. Termination shall be effective
at 11:59 p.m. on the last day of any applicable cure period, or if no cure
period is specified on the date specified in the notice, subject to the
provisions of Section 21.6 hereof.
11.5. Termination for Force Majeure Event
If a delay or interruption of performance by a Party resulting from
its experiencing a Force Majeure Event exceeds thirty (30) days, then the
other party may terminate the Term, effective at 11:59 p.m. on the intended
date of termination, by delivering to the non-performing Party written
notice of termination specifying the date of termination.
11.6. Effect of Ending of Term
The expiration or termination of the Term, though ending the
obligation of Acxiom to provide the Services, will not constitute a
termination of the Agreement, which will continue in effect until all other
duties and obligations of the Parties have been performed, discharged, or
excused.
12. Disentanglement
12.1. Disentanglement Process
Concurrently with the expiration or termination of the Term (or any
Services) under any of the provisions of Section 11, the following shall
occur (collectively, a "Disentanglement"):
(a) Upon notice of termination or intention not to renew this
Agreement, the Parties shall cooperate fully with one
another to facilitate a smooth transition of the Services
being terminated from Acxiom to Allstate or Allstate's
designated replacement provider;
(b) Without limiting the obligations of Acxiom pursuant to
Section 10.1 above, Acxiom shall, subject to the terms of
any third-party contracts, exercise its best efforts to
procure any third-party authorizations necessary to grant
Allstate the use and benefit of any third-party
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contracts (including, but not limited to, software licenses)
between Acxiom and third-party contractors then being
utilized by Acxiom in enabling it to provide such Services;
(c) Acxiom's obligation to provide the Services under this
Agreement shall cease in a manner and over a period of time
consistent with the Disentanglement process, but in no event
longer than one (1) year, during which period Allstate
agrees to pay Acxiom for the Services at the fees which are
in effect as of the date of notice of termination;
(d) Acxiom shall, subject to the terms of any applicable
software license, transfer, license, or sub-license to
Allstate all proprietary and third-party software (including
but not limited to Acxiom Core Software) that would be
needed in order to allow Allstate to continue to perform for
itself, or obtain from other providers, the Services, as the
same might exist at the time of Disentanglement; the license
fee for the Acxiom Core Software shall be a one-time fee in
an amount to be agreed upon by the parties or, in the event
the Parties are unable to agree upon the amount of the
license fee, a third-party software-consultant jointly
selected by the parties shall determine the amount of the
license fee and any fees charged by such third-party
software-consultant shall be evenly divided between the
Parties; and
(e) Acxiom shall deliver to Allstate, at Allstate's request, all
documentation and data related to Allstate held by Acxiom or
any of Acxiom's Personnel, and Acxiom shall destroy all
copies thereof not turned over to Allstate.
12.2. Preparation for Disentanglement
In preparation for the Disentanglement:
(a) Acxiom shall provide to Allstate sufficient information and
cooperation to enable Allstate's personnel, or that of its
other providers, to fully assume the provision to Allstate
of the Services;
(b) Acxiom shall cooperate with Allstate and all of Allstate's
other service providers to ensure a smooth transition at the
time of Disentanglement, with no interruption of Services,
no adverse impact on the provision of Services or Allstate's
activities, no interruption of any services provided by
third parties, and no adverse impact on the provision of
services provided by third parties;
(c) Acxiom shall ensure that the assets used in providing the
Services will be maintained, protected, and adequately
insured throughout the Term;
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(d) Acxiom shall obtain advance consents (including, without
limitation, obtaining consent to the time of entering into
all new licenses to be used for the benefit of Allstate)
from Acxiom's licensors to the conveyance or assignment of
licenses to Allstate upon Disentanglement; and
(e) Acxiom shall take such additional actions and perform such
additional tasks as may be necessary to ensure a timely
Disentanglement in compliance with the provision of this
Section, including full performance, on or before the date
of expiration or termination of the Term, of Acxiom's
obligations under this Section.
13. DEFAULT
13.1. Remedies
13.1.1. Allstate's Remedies
If Acxiom commits an uncured Material Default under this
Agreement, Allstate will be entitled to end the Term in accordance
with the provisions of Section 11.4 (Termination for Material
Default) hereof. Termination shall not constitute a Party's
exclusive remedy for such a Material Default, and neither Party
shall be deemed to have waived any of its rights accruing hereunder
prior to such Material Default or otherwise available at law or in
equity. If either Party ends the Term as a result of a claimed,
uncorrected Material Default by the other Party and such other Party
does not agree that a Material Default was committed, then such
other Party shall have the right to avail itself of all remedies
available to it under the law or in equity, none of which is
exclusive and any or all of which may be pursued.
13.1.2. Acxiom's Remedies
If Allstate commits an uncured Material Default under this
Agreement, Acxiom will be entitled to end the Term; provided,
however, that if the Material Default concerns Allstate's failure to
pay Acxiom the fees specified in Section 8, Acxiom shall first give
Allstate notice and an opportunity to cure such Material Default
within thirty (30) days after such notice. Termination shall not
constitute a Party's exclusive remedy for such a Material Default,
and neither Party shall be deemed to have waived any of its rights
accruing hereunder prior to such Material Default or otherwise
available at law or in equity. If either Party ends the Term as a
result of a claimed, uncorrected Material Default by the other Party
and such other Party does not agree that a Material Default was
committed, then such other Party shall have the right to avail
itself of all remedies available to it under the law or in equity,
none of which is exclusive and any or all of which may be pursued.
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13.1.3. Limitation of Liability
Subject to the express provisions and limitations of this
Section 13.1.3, the Parties intend that each Party will be liable to
the other Party for all damages (including, but not limited to,
cover) incurred as a result of the breaching Party's failure to
perform its obligations.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOST INCOME OR LOST REVENUE. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED BELOW, EACH PARTY'S AGGREGATE CUMULATIVE
LIABILITY HEREUNDER FOR ALL DIRECT DAMAGES ARISING UNDER OR RELATING
TO THIS AGREEMENT NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT, OR
OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO THE
GREATER OF: (i) ACXIOM'S NET REVENUE BILLED LESS DIRECT DATA EXPENSE
WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OUT OF WHICH THE
LIABILITY AROSE; OR (ii) FIVE MILLION DOLLARS ($5,000,000). THE
FOREGOING LIMITATION UPON PROVIDER'S LIABILITY SHALL NOT APPLY TO
CLAIMS SUBJECT TO INDEMNIFICATION BY ACXIOM (SECTION 20) OR CLAIMS
WITH RESPECT TO A BREACH OF CONFIDENTIALITY (SECTION 17).
13.2. Force Majeure Events
If a Force Majeure Event affects a Party's performance hereunder,
the affected obligations, after notification by such Party to the other
Party, shall be deemed suspended until the Force Majeure Event has ended
and a reasonable period of time for overcoming the effects thereof has
passed; provided, however, that if the delay or interruption of performance
resulting from a Force Majeure Event exceeds thirty (30) days, then this
Agreement may be terminated subject to Section 11.5 (Termination for Force
Majeure Event). Both Parties shall use reasonable efforts to minimize
delays that occur due to a Force Majeure Event. Notwithstanding the above,
Acxiom shall in no event be excused from those obligations not directly
affected by a Force Majeure Event, and if the Force Majeure Event is caused
by Acxiom's failure to comply with any of its obligations under this
Agreement or by Acxiom's negligence or omission, there shall be no relief
from any of its obligations under this Agreement.
14. INSURANCE
14.1. General Requirements
Without limiting Acxiom's undertaking to defend, hold harmless, and
indemnify Allstate Indemnitees as provided in Section 20 hereof, Acxiom
shall purchase and maintain insurance to protect Acxiom from all claims of
the type set
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forth below that arise out of or result from Acxiom's operations, services,
and/or performance under this Agreement and for which Acxiom may be liable,
whether such operations, services, and/or performance are provided by
Acxiom or by any of Acxiom's agents, consultants, suppliers, or
subcontractors or by anyone directly employed by any of them, or by anyone
for whose acts any of them may be liable.
14.2. Coverages
The insurance required hereunder shall be written for not less than
the limits of coverage specified herein, or as required by law in any
jurisdiction with authority over Acxiom's operations, services, and/or
performance, whichever is greater. Coverage shall be written on an
occurrence basis.
(a) Worker's Compensation Insurance offering statutory coverage as
required by the laws of the jurisdiction in which the Services
are performed.
(b) Employers Liability Insurance with limits of not less than One
Million Dollars ($1,000,000.00) for each accident or disease.
(c) Commercial General Liability Insurance with a combined single
limit of not less than One Million Dollars ($1,000,000.00) per
occurrence for personal injury (including wrongful death), and
broad-form property damage liability inclusive of independent
contractors, blanket contractual liability for this insured
Agreement and product/completed operations coverage maintained
for not less than two (2) years following completion and
acceptance of the work.
(d) Umbrella or Excess Liability Insurance with limits not less
than Five Million Dollars ($5,000,000.00) per occurrence which
will provide additional limits for commercial general and
automobile liability insurance.
(e) Professional Liability Insurance covering errors and omissions
with limits of not less than Five Million Dollars
($5,000,000.00) per occurrence. The policy shall have an
extended reporting period of two (2) years. When policies are
renewed or replaced, the policy retroactive date must coincide
with, or precede, the commencement date of services in
connection herewith.
(f) Automobile Liability Insurance with a limit of not less than
One Million Dollars ($1,000,000.00) per accident on vehicles
owned, leased, or rented by Acxiom and used while performing
under this Agreement.
(g) Fidelity Bond coverage with limits of not less than One Million
Dollars ($1,000,000.00) per occurrence.
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14.3. Miscellaneous Requirements
Acxiom shall comply with the following terms for all insurance
coverage required by Section 14.2 hereof:
(a) Acxiom shall provide insurance coverage by insurance companies
having policy holder ratings no lower than "A" and financial
ratings not lower than "XII" in the Best's Insurance Guide,
latest edition in effect as of the date of this Agreement.
(b) Acxiom shall verify and ensure that all of Acxiom's agents,
consultants, suppliers, and subcontractors are adequately
insured against claims arising out of or relating to their
performance related to this Agreement.
(c) The Policies described in clauses (c), (d), and (e) of Section
14.2 shall name Allstate as an additional insured on a primary
basis.
(d) The insurance policies listed above shall not be restricted by
the country or state in which the Services are being performed.
In the case of Services performed outside the United States and
when required by law, the insurance must be placed with a
company admitted to do business in that country.
(e) The foregoing insurance coverages shall be primary and
non-contributing with respect to any other insurance or
self-insurance that may be maintained by Allstate and its
subsidiaries and affiliates and shall contain a cross-liability
or severability-of-interest clause. The fact that Acxiom has
obtained the insurance required in this Section 14.2 shall in
no manner lessen nor affect Acxiom's other obligations or
liabilities set forth in this Agreement. Acxiom shall supply
certificates of insurance satisfactory to Allstate and all its
subsidiaries and affiliates, demonstrating that all of the
insurance required above is in force, that not less than thirty
(30) days' written notice will be given to Allstate prior to
any cancellation or restrictive modification of the policies,
and that the waivers of subrogation are in force. At the
request of Allstate or any of its subsidiaries or affiliates,
Acxiom shall provide a certified copy of each insurance policy
required under this Agreement.
15. REPORTS
15.1. General
Acxiom shall furnish Allstate with information and reports in the
form and with the frequency, but in no event less frequently than monthly,
that Allstate may reasonably request from time to time including, but not
limited to, those reports set
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forth in Schedule 15 hereto. Acxiom's reports shall include (but not be
limited to) information regarding: Acxiom's performance of the Services;
cost-management; subcontractor relationships; and End-User satisfaction.
Acxiom shall promptly inform Allstate of any deficiencies, omissions, or
irregularities in Allstate's requirements or in Acxiom's performance of the
Services that may come to Acxiom's attention. Acxiom shall furnish Allstate
with all existing and future research and development resources, such as
published materials, and industry studies conducted for or by Acxiom, that
come to its attention and pertain to the services and that might assist
Allstate in setting its policies or requirements under this Agreement.
15.2. Media
Acxiom shall furnish Allstate with all reports in both hard copy and
electronic form per Allstate's specifications as reasonably requested by
Allstate from time to time.
16. RECORDKEEPING AND AUDIT RIGHTS
16.1. Recordkeeping
Acxiom shall maintain complete and accurate records and books of
account with respect to this Agreement utilizing generally accepted
accounting principles ("GAAP"), consistently applied and complying in all
respects with all applicable laws. Such records and books, and the
accounting controls related thereto, shall be sufficient to provide
reasonable assurance that:
(a) transactions are recorded so as to permit the preparation of
Acxiom's financial statements in accordance with GAAP and to
maintain accountability for its assets; and
(b) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
Such records and books of account of Acxiom's business shall be
maintained by Acxiom at its principal business office and each of the
parties may examine and make extracts of information and copy any part
thereof at any reasonable time during normal business hours.
Acxiom shall retain for a period of four (4) years from the end of
each calendar year during the Term, or such longer period as may be
required by law, all records and information required to verify amounts
invoiced under this Agreement for such calendar year. Allstate, or an
auditing firm retained by Allstate, shall be granted access to the
aforesaid records during normal business hours upon reasonable notice to
Acxiom.
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16.2. Audit Rights
Allstate, or its authorized representatives, will have the right, at
any time, without any notice, to perform an operational audit with respect
to Acxiom's performance hereunder including (but not limited to) the
Services and any obligation of Acxiom related to security. Acxiom shall
grant Allstate and its representatives full and complete access, during
normal business hours and upon reasonable notice, to the relevant portion
of Acxiom's books and records as they relate to this Agreement, or as they
may be required in order for Allstate to ascertain any facts relative to
any claim against Acxiom that might become a charge against Allstate or its
property. Acxiom shall provide Allstate, or its authorized
representatives, such information and assistance as reasonably requested in
order to perform such audits. If any such audit reveals a material
inadequacy or insufficiency of Acxiom's performance, then the cost of such
audit shall be borne by Acxiom. With respect to any audit that relates to
sums to be paid hereunder, if any such audit reveals that Acxiom has
overcharged Allstate in an amount in excess of five percent (5%) above the
fees specified in any Schedule hereto during the period to which the audit
relates, then the cost of such audit shall be borne by Acxiom.
16.3. Open Book Policy
Subject to the terms of the Special confidentiality Agreement
attached hereto as Exhibit _____. Acxiom shall provide Allstate, on a
quarterly basis, full and complete reports of its current financial plans,
accounting records, and operational plans related to this Agreement,
including (but not limited to) its plans and records regarding the cost and
profitability of providing Services to Allstate. Acxiom shall promptly
respond to any questions regarding such reports.
17. CONFIDENTIALITY
17.1. Disclosure of Confidential Information
Each Party shall:
(a) use the same care to prevent disclosure of the Confidential
Information of the other Party to third parties as it employs
to avoid disclosure, publication, or dissemination of its own
information of a similar nature, but in no event less than a
reasonable standard of care;
(b) use the Confidential Information of the other Party solely for
the purpose of performing its obligations under this Agreement;
(c) not acquire any right in or assert any lien against
Confidential Information of the other Party; and
(d) promptly return, or provide a copy of, as the requesting Party
directs, Confidential Information upon the request of the other
Party.
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(e) Notwithstanding the foregoing, each Party may disclose
Confidential Information of the other Party to its employees,
agents, and subcontractors who have: (i) a need to know such
Confidential Information in order to perform their duties; and
(ii) a legal duty to protect the Confidential Information. A
Party receiving Confidential Information of the other Party
assumes full responsibility for the acts or omissions of its
subcontractors and employees with respect to such Confidential
Information.
17.2. Required Disclosure
Either Party may disclose Confidential Information to the extent
required by law or by order of a court or governmental agency; provided,
however, that the recipient of such Confidential Information shall give the
owner of such Confidential Information prompt notice and shall use its best
efforts to cooperate with the owner of such Confidential Information if the
owner wishes to obtain a protective order or otherwise protect the
confidentiality of such Confidential Information. The owner of such
Confidential Information reserves the right to obtain a protective order or
otherwise protect the confidentiality of such Confidential Information.
Further, either party may disclose the terms of this Agreement to the
extent required to enforce its terms or the rights of such Party.
17.3. Notification
In the event of any disclosure or loss of Confidential Information,
the receiving Party shall immediately notify the disclosing Party.
17.4. Injunctive Relief
Each Party acknowledges that any breach of any provision of this
Section 17 by either Party, or its personnel or subcontractors, will cause
immediate and irreparable injury to the other Party, and in the event of
such breach, the injured Party shall be entitled to injunctive relief,
without bond or other security, and to any and all other remedies available
at law or in equity.
17.5. Return of Confidential Information
Unless it is expressly authorized by this Agreement to retain the
other Party's Confidential Information, a Party shall promptly return or
destroy, at the other Party's option and request, the other Party's
Confidential Information and all copies thereof, and shall certify to the
other Party that it no longer has in its possession or under its control
any Confidential Information in any form whatsoever, or any copy thereof.
18. LEGAL COMPLIANCE
Both Acxiom and Allstate shall at all times perform their obligations
hereunder in compliance in all material respects with all applicable national,
state, and local laws and
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regulations of all applicable jurisdictions, and in such a manner as not to
cause the other to be in material violation of any applicable laws or
regulations including (but not limited to) the U.S. Fair Credit Reporting Act,
as amended by the Consumer Credit Reporting Reform Act of 1996, 15 U.S.C. 1681,
et seq. ("FCRA"), any similar state privacy laws, and any applicable
requirements of any national, state, or local authority regulating credit
reporting, insurance, health, safety, employment, the environment, or
telecommunications. If any such laws and regulations are changed, or new laws or
regulations are enacted after the date of Acxiom's execution of this Agreement
and Acxiom's cost to perform is thereby directly increased or decreased, the
amounts otherwise to be paid to Acxiom pursuant to any of the provisions of this
Agreement may be adjusted as the Parties shall mutually agree.
With respect to consumer reports that are purchased by Acxiom at Allstate's
request, Allstate hereby certifies that it or its Affiliates will be the end
user(s) of such reports and that such reports will be used for the following
purposes and for no other purposes: (a) in connection with the underwriting
(including rating) of insurance; and/or (b) in connection with the written
consent of the consumer. The Parties acknowledge that each of the above
purposes constitutes a permissible purpose under the FCRA. Allstate will
maintain copies of consumers' written consents and will make such copies
available to Acxiom reasonably promptly upon receipt of Acxiom's written
request. Allstate agrees that every request for a consumer report will
constitute a recertification to Acxiom at the time of ordering such report that:
(x) Allstate and/or its Affiliates will be the end user(s) of such report; (y)
such report is being requested for a stated permissible purpose; and (z) the
report will be used for no purpose other than the stated permissible purpose.
19. Representations and Warranties
19.1. Acxiom's Representations, Warranties, and Covenants
19.1.1. Performance of the Services
Acxiom warrants that all Services provided hereunder will
be performed to the best of Acxiom's ability and in a good
workmanlike manner and that materials provided by Acxiom hereunder
will conform to and perform in accordance with the specifications
stated herein and in each Schedule, if applicable, and in all
associated documentation. Acxiom shall manage third party vendor
relationships, quality of data Acxiom furnishes to Allstate, and
costs of data in a manner consistent with the terms and spirit of
this Agreement.
19.1.2. Proprietary Rights Infringement
Acxiom covenants that at no time during the Term shall the
use of any services, techniques, or products provided or used by
Acxiom infringe upon any third party's patent, trademark, copyright,
or other proprietary or intellectual-property right, nor make use of
any misappropriated trade secrets.
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19.1.3. Adherence to Specifications
The Software, including all enhancements, modifications,
and new releases thereof, will operate in accordance with the
specifications and documentation provided to Allstate. For a period
of ninety (90) days from Allstate's written acceptance of any
Software installed at Allstate's facilities, Acxiom will correct,
without charge to Allstate, any errors which cause the Software to
fail to perform in accordance with the relevant specifications. This
warranty will not apply to the extent that such error is a result of
modifications performed by a party not employed by or under the
control of Acxiom. For all Software not installed at Allstate's
facilities, Acxiom will correct all malfunctions without charge to
Allstate during the Term of this Agreement.
19.1.4. Warranty as to Viruses
Acxiom warrants that the Software (and any portion thereof)
does not contain any timer, clock, counter, virus or other limiting
design, routine or instructions: (i) which have destructive
capabilities; (ii) which cause the Software (or any portion thereof)
to become erased, inoperable or otherwise incapable of being used in
the full manner for which it was designed and licensed pursuant to
this Agreement (including but not limited to any design or routine
that would impede copying thereof); (iii) which would render any
hardware or software inoperable; or (iv) which would cause data to
become altered, damaged or removed. Furthermore, the Software does
not contain any limiting design or routine which would cause it to
be erased, become inoperable, or otherwise incapable of being used
in the full manner for which it was designed and licensed pursuant
to this Agreement solely because such Software has been installed or
moved to a central processing unit or system which has a serial
number, model number, or other identification different from that on
which the Software was originally installed.
19.1.5. Warranty of Year 2000 Compliance
Acxiom warrants that the use, processing or occurrence of
the date January 1, 2000 or any subsequent date ("Millennial Dates")
will not adversely affect the performance of the Software with
respect to date-dependent data, computations, output or other
functions (including, but not limited to, calculating, comparing,
searching, and sequencing) and that the Software will create, store,
process and output information related to or including Millennial
Dates without error or omissions and at no additional cost to
Allstate. At Allstate's request, Acxiom will provide evidence
sufficient to demonstrate adequate testing of the Software to meet
the foregoing requirements.
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19.1.6. Legal and Corporate Authority
Acxiom represents and warrants that: it is a corporation
duly formed and in good standing under the laws of Arkansas and is
qualified and registered to transact business in all locations where
the performance of its obligations hereunder would require such
qualification; it has all necessary rights, powers, and authority to
enter into and perform this Agreement, and the execution, delivery,
and performance of this Agreement by Acxiom have been duly
authorized by all necessary corporate action; and the execution and
performance of this Agreement by Acxiom will not violate any law,
statute, or regulation and will not breach any agreement, covenant,
court order, judgment, or decree to which Acxiom is a party or by
which it is bound. Acxiom represents and warrants that it has, and
covenants that it shall maintain in effect, all licenses and permits
necessary for it to provide the Services contemplated by this
Agreement. Acxiom represents and warrants that Acxiom owns or leases
and covenants that it will own or lease, free and clear of all liens
and encumbrances, other than lessors' interests, or security
interests of Acxiom's lenders, all right, title, and interest in and
to the tangible property and technology and the like that Acxiom
intends to use or uses to provide such Services and in and to the
related patent, copyright, trademark, and other proprietary rights,
or has received appropriate licenses, leases, or other rights from
third parties to permit such use.
19.2. Allstate's Representations, Warranties and Covenants
19.2.1. Legal and Corporate Authority
Allstate represents and warrants that: it is a corporation
duly formed and in good standing under the laws of Illinois and is
qualified and registered to transact business in all locations where
the performance of its obligations hereunder would require such
qualification; it has all necessary rights, powers, and authority to
enter into and perform this Agreement; the execution, delivery, and
performance of this Agreement by Allstate have been duly authorized
by all necessary corporate action; and the execution and performance
of this Agreement by Allstate will not violate any law, statute, or
regulation and will not breach any agreement, covenant, court order,
judgment, or decree to which Allstate is a party or by which it is
bound.
19.2.2. Other
Allstate does not make any representation or warranty with
respect to the Services or any component thereof. All hardware,
software, networks and other information-technology related assets
made available or conveyed by Allstate to Acxiom under this
Agreement are made available or conveyed to Acxiom "AS IS, WHERE IS"
and there are no warranties of any kind with
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respect to the condition, capabilities, or other attributes of such
items, except as otherwise expressly stated in this Agreement.
19.3. Disclaimer
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
EXPRESS WARRANTIES BY EITHER PARTY. THERE ARE NO IMPLIED WARRANTIES
OR CONDITIONS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR PARTICULAR PURPOSE.
20. INDEMNIFICATION
20.1. Technology
20.1.1. Indemnity by Acxiom
Acxiom shall defend, indemnify, and hold the Allstate
Indemnitees harmless from and shall pay all final damages and costs
awarded against any of them arising out of, any claim brought by any
third party against any of them for actual or alleged infringement
of any patent, trademark, copyright, or similar property right
including misappropriation of trade secrets, based upon technology
or data used by Acxiom in providing the Services (collectively,
"Infringement Claim"); and Acxiom shall defend, indemnify, and hold
the Allstate Indemnitees harmless from and against any and all
liabilities, losses, costs, damages, and expenses, including
reasonable attorney's fees, associated with any such claim or action
incurred by any of them in connection with any Infringement Claim
that involves technology provided or developed by Acxiom. Acxiom
may, in its reasonable discretion, either procure a license to
enable Allstate to continue to use such technology or data or
develop or obtain a non-infringing substitute acceptable to
Allstate. Acxiom will have no obligation with respect to any claim
or action to the extent that it is based solely upon: (i)
modification of a program or machine by Allstate, any third-party
contractor to Allstate, or any agent of Allstate; (ii) data provided
by Allstate to Acxiom; (iii) Allstate's combination, operation or
use with apparatus, data or programs neither furnished nor approved
by Acxiom; (iv) the use by Allstate of any software provided by any
third party other than in accordance with relevant software licenses
whether or not such license agreements are provided to Acxiom; or
(v) the use of software owned by or licensed to Allstate by a party
other than Acxiom and supplied by Allstate to Acxiom.
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20.1.2. Indemnity by Allstate
Allstate shall defend, indemnify, and hold the Acxiom
Indemnitees harmless from and shall pay all final damages and costs
awarded against any of them arising out of, any claim brought by any
third party against any of them for actual or alleged infringement
of any patent, trademark, copyright, or similar property right
including misappropriation of trade secrets, based upon software
that is proprietary to Allstate. Allstate may, in its reasonable
discretion, either procure a license to enable Acxiom to continue to
use such technology or develop or obtain a non-infringing
substitute. Allstate shall have no obligation with respect to any
claim or action to the extent that it is based solely upon: (i)
modification of a program or machine by Acxiom, any third-party
contractor to Acxiom, or any agent of Acxiom; (ii) Acxiom's
combination, operation, or use with apparatus, data, or programs not
furnished by Allstate; (iii) the use by Acxiom of any software
provided by any third party other than in accordance with relevant
software licenses whether or not such licenses are provided to
Allstate; or (iv) the use of software owned by or licensed to Acxiom
by a party other than Allstate and supplied by Acxiom to Allstate.
20.2. Injury or Property Damage
20.2.1. Indemnity by Acxiom
Without limiting Acxiom's obligations with respect to
insurance as provided in Section 14 hereof, Acxiom shall indemnify,
defend, and hold the Allstate Indemnitees harmless with respect to
any third party claim alleging bodily injury, including death, or
damage to tangible personal or real property, to the extent that
such injury or damage arises from physical acts or omissions that
constitute negligence, willful misconduct, or violations of law by
Acxiom or its personnel, agents, or subcontractors.
20.2.2. Indemnity by Allstate
Allstate shall indemnify, defend, and hold the Acxiom
Indemnitees harmless with respect to any third party claim alleging
bodily injury, including death, or damage to tangible personal or
real property, to the extent that such injury or damage arises from
physical acts or omissions that constitute negligence, willful
misconduct, or violations of law by Allstate or its personnel,
agents, or subcontractors.
20.3. Employees
Acxiom shall indemnify, defend and hold harmless the Allstate
Indemnitees, from and against any and all liabilities, losses, taxes,
withholdings, claims, demands, damages, judgments, and costs and expenses,
including reasonable attorneys' fees,
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based upon claims against any of them that arise out of or in connection
with (i) any aspect of the employment relationship or the termination of
the employment relationship between Acxiom and Acxiom's employees assigned
to provide the Services hereunder, except to the extent such liability is
caused by Allstate's acts or omissions; (ii) any action brought by any of
Acxiom's Personnel seeking to be treated as Allstate employees and/or
claiming entitlement to any of Allstate's employee benefits; (iii) any
action seeking to declare Allstate as a joint employer with Acxiom of any
of Acxiom's Personnel providing services to Allstate hereunder; (iv) any
determination resulting from or pursuant to any arbitration proceeding,
court proceeding by a court of competent jurisdiction, administrative
proceeding or other similar proceeding that Allstate was the employer of
any of Acxiom's Personnel providing services to Allstate hereunder; or (v)
theft, fraud, or misappropriation by Acxiom or its Affiliates or their
respective officers, employees, agents, subcontractors, or successors, of
tangible or intangible property of Allstate.
20.4. Third-Party Matters
20.4.1. Indemnity by Acxiom
Acxiom shall defend, indemnify, and hold the Allstate
Indemnitees harmless from and against any and all claims by any
third parties, and any and all liabilities, losses, costs, damages,
and expenses, including reasonable attorney's fees, based upon or
related to third-party services utilized by Acxiom in providing
Services.
20.4.2. Mutual Indemnities
Each Party shall defend, indemnify, and hold the other
Party's Indemnitees harmless from and against claims by third
parties based upon an alleged breach of any agreement between the
indemnifying party and such third party.
20.5. Misrepresentation
20.5.1. Indemnity by Acxiom
Acxiom shall indemnify, defend, and hold harmless the
Allstate Indemnitees from and against any claim by any third party
and any and all loss, liability, damages, costs, and expenses,
including reasonable attorney's fees, sustained or incurred by such
Indemnitee as a direct result of any misrepresentation by Acxiom in
this Agreement or any breach or default by Acxiom with respect to
any warranty, promise, agreement, duty, or obligation of Acxiom
contained in this Agreement.
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20.5.2. Indemnity by Allstate
Allstate shall indemnify, defend, and hold harmless the
Acxiom Indemnitees from and against any claim by any third party and
any and all loss, liability, damages, costs, and expenses, including
reasonable attorney's fees, sustained or incurred by such Indemnitee
as a direct result of any misrepresentation by Allstate in this
Agreement or any breach or default by Allstate with respect to any
warranty, promise, agreement, duty, or obligation of Allstate
contained in this Agreement.
20.6. Subrogation
If an indemnifying Party shall be obligated to indemnify an
Indemnitee pursuant to this Section 20, the indemnifying Party shall, upon
payment of such indemnity in full, be subrogated to all rights of the
Indemnitee with respect to the claims and defenses to which such
indemnification relates.
20.7. Procedures
If any legal action is commenced against an Indemnitee entitled to
indemnification under this Section 20, prompt written notice thereof shall
be given to the indemnifying Party. After such notice, if the indemnifying
Party shall acknowledge in writing to such Indemnitee that the right of
indemnification under this Agreement applies with respect to such claim,
then the indemnifying Party shall be entitled, if it so elects, in a
written notice delivered to the Indemnitee not fewer than ten (10) days
prior to the date on which a response to such claim is due, to take control
of the defense and investigation of such claim and to employ and engage
attorneys of its sole choice, and reasonably satisfactory to the
indemnified Party, to handle and defend same, at the indemnifying Party's
expense. The Indemnitee shall cooperate in all reasonable respects with
the indemnifying Party and its attorneys in the investigation, trial, and
defense of such claim and any appeal arising therefrom; provided, however,
that the Indemnitee may, at its own expense, participate, through its
attorneys or otherwise, in such investigation, trial, and defense of such
claim and any appeal arising therefrom. No settlement of a claim that
involves a remedy other than the payment of money by the indemnifying Party
shall be entered into by the indemnifying Party without the prior written
consent of the Indemnitee, which consent may be given or withheld in the
Indemnitee's sole discretion, to the extent that it concerns equitable
remedies or the Indemnitee's Confidential Information or proprietary
technology. After notice by the indemnifying Party of its election to
assume full control of the defense of any such claim, the Indemnitee shall
not be liable to the indemnifying Party for any legal expenses incurred
thereafter by such indemnifying Party in connection with the defense of
that claim. If the indemnifying Party does not assume full control over
the defense of a claim subject to such defense as provided in this Section,
the indemnifying Party may participate in such defense, at its expense, and
the Indemnitee shall have the right to defend the claim in such manner as
it may deem appropriate, at the expense of the indemnifying Party.
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21. DISPUTE RESOLUTION
21.1. General Intent
The Parties intend that all problems and disputes between the
parties of any nature relating to this Agreement or arising from the
transactions contemplated hereby will be resolved through the procedures of
this Section 21, provided, however, that neither party shall be under any
obligation to invoke the procedures of this Section 21 with respect to
disputes concerning any alleged breach of Section 17 (Confidentiality) or
Section 20 (Indemnification) hereof or any other dispute for which
injunctive relief is sought. The procedures in this Section 21 will not
replace or supersede any other remedy to which a party is entitled under
this Agreement or under applicable law. Moreover, the procedures will not
be construed as an agreement to arbitrate or mediate any dispute. It is the
intention of the Parties that they continue to perform their respective
duties during the pendency of any dispute subject to this Section 21.
21.2. Contract Manager Level
The parties will initially attempt to resolve disputes arising in
the ordinary course of the parties performance under this Agreement, at the
Contract Manager level by those directly involved.
21.3. Escalation
21.3.1. First Escalation
If, after a reasonable period of time, not to exceed five
(5) business days, the Contract Managers have not been able in good
faith to resolve any dispute, each party will prepare a written
statement outlining the dispute and attempted resolution and will
submit the statement to Procurement Governance Officer or such other
officer as identified by Allstate and to Acxiom's ASBU Business Unit
Leader who will discuss the dispute (either in person or by
telephone) and will attempt in good faith to resolve the dispute.
21.3.2. Second Escalation
If, after a reasonable period of time, not to exceed ten
(10) business days after receiving the written statement pursuant to
Section 21.3.1, the persons described in Section 21.3.1 have not
been able in good faith to resolve the dispute, the written
statement shall be forwarded to Allstate's Vice President of
Procurement Governance and to Acxiom's Group Leader or Acxiom
Services Division Leader who will discuss the dispute in person and
will attempt in good faith to resolve the dispute.
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21.4. Critical Problems
If the dispute or problem is related to a critical problem in which
data is corrupted or the Services are being performed in a manner that
causes financial liability to Allstate and the Contract Managers are unable
to resolve such dispute or problem within forty-eight (48) hours (twenty-
four (24) hours if the problem is related to the interactive ordering
process) after having received notice of such dispute or problem, then the
problem shall be immediately escalated to the executives specified in
Section 21.3.2. Notwithstanding the provisions of Section 21.3.2 above,
the executives shall use their best efforts to resolve the dispute or
problem within forty-eight (48) hours after the escalation to them.
21.5. Legal Action
If either Party believes in good faith that the time frames
described in this Section 21 will have a material adverse impact on such
party, then this Section 21 shall be deemed to apply no longer to such
dispute and the Parties may take any legal action in a court of law or
equity to assert or enforce a claim it has against the other Party under
this Agreement.
21.6. No Termination or Suspension of Services
Notwithstanding anything to the contrary contained herein, and even
if any Problem or other dispute arises between the Parties and regardless
of whether or not it requires at any time the use of the dispute resolution
procedures described above, in no event nor for any reason shall Acxiom
interrupt the provision of Services to Allstate or any obligations related
to Disentanglement, disable any hardware used to provide Services, or
perform any other action that prevents, slows down, or reduces in any way
the provision of Services or Allstate's ability to conduct its activities,
unless: (i) authority to do so is granted by Allstate or conferred by a
court of competent jurisdiction; (ii) the Term of this Agreement has been
terminated or expired pursuant to Section 11 hereof and a Disentanglement
satisfactory to Allstate has occurred, or (iii) Allstate has failed to pay
Acxiom any undisputed amounts due to be paid under this Agreement, after
having received written notice of such failure and the relevant cure period
has expired.
22. PUBLICITY
Each Party shall submit to the other all advertising, written sales
promotion, press releases, and other publicity matters relating to this
Agreement in which the other Party's name or mark is mentioned or language from
which the connection of said name or mark may be inferred or implied, and
neither Party shall publish or use such advertising, sales promotion, press
releases, or publicity matters without the prior written approval of the other
Party. However, either Party may include the other Party's name and a mutually
agreed factual description of the work performed and the preferential rights
granted with respect thereto under this Agreement in employee communications, in
its communications with stock analysts
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and investors; in its list of references, in the experience section of proposals
to third parties, in internal business planning documents, in its or its
Affiliates' annual report to stockholders, and whenever required by reason of
legal, accounting, or regulatory requirements.
23. USE OF AFFILIATES AND SUBCONTRACTORS
Acxiom shall not perform its obligations through its Affiliates or through
the use of Acxiom-selected independent contractors, including hardware and
software, without the advance written consent of Allstate, which consent may be
withheld in Allstate's sole discretion, and Acxiom shall not be relieved of its
obligations under this Agreement by use of any such Affiliates or
subcontractors; provided that Acxiom may subcontract for goods and services that
are incidental to the performance of the Services, do not involve the
acquisition of data, and do not involve the expenditure of more than Two Hundred
Fifty Thousand Dollars ($250,000) within any ninety (90) day period. Acxiom
shall be responsible for supervising the activities and performance of each
subcontractor and shall be jointly and severally responsible with each
subcontractor for any act or failure to act of such subcontractor. If Allstate
determines that the performance or conduct of any Acxiom subcontractor is
unsatisfactory, Allstate may notify Acxiom of its determination in writing,
indicating the reasons therefor, in which event Acxiom shall promptly take all
necessary actions to remedy immediately the performance or conduct of such
contractor or to replace such contractor by another third party or by Acxiom
personnel.
24. MISCELLANEOUS
24.1. Entire Agreement
This Agreement, including the Schedules and Exhibits hereto,
constitutes the entire understanding and agreement between the Parties with
respect to the transactions contemplated herein and supersedes all prior or
contemporaneous oral or written communications with respect to the subject
matter hereof. No usage of trade, or other regular practice or method of
dealing between the Parties or others, may be used to modify, interpret,
supplement, or alter in any manner the express terms of this Agreement.
24.2. Captions; Section Numbers
Captions, Tables of Contents, Indices of Definitions, and Schedule
and Exhibit titles are used herein for convenience only and may not be used
in the construction or interpretation of this Agreement. Any reference
herein to a particular Section number (e.g., "Section 2"), shall be deemed
a reference to all Sections of this Agreement that bear sub-numbers to the
number of the referenced Section (e.g., Sections 2.1, 2.1.1, etc.).
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24.3. Assignment
Except for subcontracting permitted under the terms of Sections 23
hereof, neither this Agreement, nor any interest therein, nor any of the
rights and obligations of Acxiom hereunder, may be directly or indirectly
assigned, sold, delegated, or otherwise disposed of by Acxiom, in whole or
in part, without the prior written consent of Allstate, which may be
withheld in its sole discretion. For purposes of this Section, an
"assignment" shall also be deemed to have occurred upon a change in control
of Acxiom resulting from a single transaction or series of related
transactions, or a restructuring of Acxiom, or transfer or removal of
assets from Acxiom or assumption of debt by Acxiom such that as a result of
such restructuring, transfer, removal, or assumption Acxiom no longer
possesses a net worth equal to or greater than that of Acxiom on the
Effective Date. Solely for purposes of the preceding sentence, "control"
shall mean the legal, beneficial, or equitable ownership, direct or
indirect, of more than fifty percent (50%) of the aggregate of all voting
equity interests in Acxiom; "change in control" shall mean any change in
the legal, beneficial, or equitable ownership, direct or indirect, such
that control of Acxiom is no longer with the same entity as on the
Effective Date.
24.4. Notices to a Party
Except as expressly otherwise stated herein, all notices, requests,
consents, approvals, or other communications provided for, or given under,
this Agreement, shall be in writing, and shall be deemed to have been duly
given to a Party if delivered personally, or transmitted by facsimile to
such Party at its telecopier number set forth below, or sent by first class
mail or overnight courier to such Party at its address set forth below, or
at such other telecopier number or address, as the case may be, as shall
have been communicated in writing by such Party to the other Party in
accordance with this Section. All notices will be deemed given when
received in the case of personal delivery or delivery by mail or overnight
courier, or when sent in the case of transmission by facsimile with a
confirmation, if confirmed by copy sent by overnight courier within one (1)
day of sending the facsimile.
Notices to Allstate shall be addressed as follows:
Allstate Insurance Company
Attention: Peggy Cardaman, Contract Manager
2775 Sanders Road, E-6
Northbrook, Illinois 60062-7965
Telecopier No.: 847-402-0578
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with a copy to the attention of Allstate's general counsel addressed as
follows:
Allstate Insurance Company
Attention: Hugh D. Bohlender, Counsel
2775 Sanders Road, Suite A8
Northbrook, Illinois 60062-6127
Telecopier No.: 847-402-0158
Notices to Acxiom shall be addressed as follows:
Acxiom Corporation
Attention: Karl Babij, Contract Manager
301 Industrial Boulevard
Conway, AR 72033-2000
Telecopier No.: 501-336-3902
with a copy to the attention of Acxiom's general counsel at:
Acxiom Corporation
Attention: Catherine Hughes, General Counsel
301 Industrial Boulevard
Conway, AR 72033-2000
Telecopier No.: 501-336-3723
24.5. Amendments; Waivers
Except as provided expressly herein, this Agreement may not be
modified, amended, or in any way altered except by written document duly
executed by both of the Parties hereto. No waiver of any provision of this
Agreement, nor of any rights or obligations of any Party hereunder, will be
effective unless in writing and signed by the Party waiving compliance, and
such waiver will be effective only in the specific instance, and for the
specific purpose, stated in such writing. No waiver of breach of, or
default under, any provision of this Agreement will be deemed a waiver of
any other provision, or of any subsequent breach or default of the same
provision, of this Agreement.
24.6. Legal Status of Parties
This Agreement will not be construed to constitute either Party as a
representative, agent, employee, partner, or joint venturer of the other.
Acxiom will be an independent contractor for the performance under this
Agreement. Acxiom will not have the authority to enter into any agreement,
nor to assume any liability, on
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behalf of Allstate, nor to bind or commit Allstate in any manner. Acxiom's
employees who provide services pursuant to this Agreement or who are
located on Allstate's premises shall remain employees of Acxiom, and Acxiom
will have sole responsibility for such employees including (but not limited
to) responsibility for payment of compensation to such personnel and for
injury to them in the course of their employment. Acxiom shall be
responsible for all aspects of labor relations with such employees
including (but not limited to) their hiring, supervision, evaluation,
discipline, firing, wages, benefits, overtime and job and shift
assignments, and all other terms and conditions of their employment, and
Allstate will have no responsibility therefor. Acxiom shall defend,
indemnify, and hold harmless Allstate Indemnitees from and against any and
all claims, liabilities, losses, costs, damages, and expenses, including
attorney's fees, based upon or related to a claim that Acxiom's or its
subcontractors' employees are employees of Allstate.
24.7. Severability
If any provision of this Agreement is determined to be invalid or
unenforceable, that provision shall be deemed stricken and the remainder of
the Agreement will continue in full force and effect insofar as it remains
a workable instrument to accomplish the intent and purposes of the Parties;
the Parties shall replace the severed provision with the provision that
will come closest to reflecting the intention of the Parties underlying the
severed provision but that will be valid, legal, and enforceable.
24.8. Counterparts
This Agreement may be executed in duplicate counterparts. Each such
counterpart shall be an original and both together shall constitute but one
and the same document. This Agreement shall not be deemed executed unless
nor until at least one counterpart bears the signatures of both parties'
designated signatories.
24.9. Governing Law
This Agreement and the performance of the Parties hereunder shall be
governed and construed in accordance with the substantive laws of the State
of Illinois. All actions or proceedings arising out of, or related to,
this Agreement shall be brought only in an appropriate federal or state
court in Cook County Illinois and the Parties hereby consent to the
jurisdiction of such courts over themselves and the subject matter of such
actions or proceedings.
24.10. No Third-Party Beneficiaries
This Agreement is an agreement between the Parties, and confers no
rights upon any of the Parties' employees, agents, or contractors or upon
any other person, partnership, or entity.
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24.11. Expenses
Each Party shall pay all expenses paid or incurred by it in
connection with the planning, negotiation, and consummation of this
Agreement.
The duly authorized representatives of the Parties have executed this
Agreement as of the Effective Date.
<TABLE>
<S> <C>
ALLSTATE INSURANCE COMPANY ACXIOM CORPORATION
By: ______________________________________ By: ___________________________________
George E. Ruebenson Name: Paul L. Zaffaroni
Vice President, Procurement Governance Name:: Acxiom Services Division Leader
</TABLE>
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ACXIOM RM-TOOLS, INC.
BY: _______________________________
Name: Paul L. Zaffaroni
Title: Vice President
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