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Master Services Agreement - Gap Inc. and International Business Machinese Corp.

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MASTER SERVICES AGREEMENT

BETWEEN

THE GAP, INC.

AND

INTERNATIONAL BUSINESS MACHINES CORPORATION

DATED: JANUARY 13, 2006

This document contains confidential and proprietary information of The Gap, Inc. Except with the express prior written permission of The Gap, Inc., this document and the information contained herein may not be published, disclosed, or used for any other purpose.

TABLE OF CONTENTS


1.	Definitions		2
	1.1	"Acceptance Test" and "Acceptance Tests"	2
	1.2	"Additional Resource Charge" or "ARC"	2
	1.3	"Affected Employees"	2
	1.4	"Affiliate"	2
	1.5	"Aggregated Service(s)"	2
	1.6	"Aggregate Withhold Amount"	3
	1.7	"Agreement"	3
	1.8	"Annual Services Charge"	3
	1.9	"Applications"	3
	1.10	"Approve" or "Approval"	3
	1.11	"Approved Reassignments"	3
	1.12	"Authorized Users"	3
	1.13	"Benchmark"	4
	1.14	"Benchmarker"	4
	1.15	"Benchmarking"	4
	1.16	"Best Practices"	4
	1.17	"Business Day(s)"	4
	1.18	"Business Objectives"	4
	1.19	"CAS"	4
	1.20	"Change"	4
	1.21	"Change Control Procedures"	4
	1.22	"Charges"	5
	1.23	"Consents"	5
	1.24	"Contract Year"	5
	1.25	"Damage Limit"	5
	1.26	"Data Center"	5
	1.27	"Days"	5
	1.28	"Deficiencies"	5
	1.29	"Deliverable"	5
	1.30	"Disabling Device(s)"	6
	1.31	"Disclosing Party"	6
	1.32	"Documentation"	6
	1.33	"Egregious Act Damage"	6
	1.34	"Egregious Acts"	6
	1.35	"Embedded Supplier Proprietary Documentation"	6
	1.36	"Embedded Supplier Proprietary Intellectual Property"	6
	1.37	"Embedded Supplier Proprietary Software"	7
	1.38	"Embedded Supplier Third Party Documentation"	7
	1.39	"Embedded Supplier Third Party Intellectual Property"	7
	1.40	"Embedded Supplier Third Party Software"	7
	1.41	"Employment Claim(s)"	7

Gap Confidential and Proprietary Information


1.42	"Equipment"	7
1.43	"Excluded Fields"	8
1.44	"Extended Term"	8
1.45	"Extraordinary Event"	8
1.46	"Finally Determined"	8
1.47	"Full-Time"	8
1.48	"Functional Service Area"	8
1.49	"Functional Service Area Statement(s) of Work"	8
1.50	"Gap"	9
1.51	"Gap Base Case"	9
1.52	"Gap Custom Documentation"	9
1.53	"Gap Custom Intellectual Property"	9
1.54	"Gap Custom Software"	9
1.55	"Gap Data"	9
1.56	"Gap Data Center"	10
1.57	"Gap Delay Claim"	10
1.58	"Gap Documentation"	10
1.59	"Gap Equipment"	10
1.60	"Gap Infrastructure Partnership Executive"	10
1.61	"Gap Infringement Claim(s)"	10
1.62	"Gap Infringement Exclusions"	10
1.63	"Gap Infringement Trigger"	10
1.64	"Gap Initiated Policy Change"	11
1.65	"Gap Intellectual Property"	11
1.66	"Gap IT Environment"	11
1.67	"Gap Licensed Property"	11
1.68	"Gap Modified Documentation"	11
1.69	"Gap Modified Intellectual Property"	11
1.70	"Gap Modified Software"	11
1.71	"Gap Owned Intellectual Capital"	11
1.72	"Gap Policies and Procedures"	12
1.73	"Gap Proprietary Documentation"	12
1.74	"Gap Proprietary Intellectual Property"	12
1.75	"Gap Proprietary Software"	12
1.76	"Gap Regulatory Requirements"	12
1.77	"Gap Service Locations"	12
1.78	"Gap Sites"	12
1.79	"Gap Software"	13
1.80	"Gap Systems"	13
1.81	"Gap Third Party Claim(s)"	13
1.82	"Gap Third Party Documentation"	13
1.83	"Gap Third Party Intellectual Property"	13
1.84	"Gap Third Party Software"	13
1.85	"Gap Third Party Vendor"	13

Gap Confidential and Proprietary Information


1.86	"Generally Available"	13
1.87	"GID"	14
1.88	"HIPAA"	14
1.89	"HVAC"	14
1.90	"Implementation Agreement(s)"	14
1.91	"Including"	14
1.92	"Income Tax"	14
1.93	"Initial Term"	14
1.94	"Initiation Date"	14
1.95	"insource"	15
1.96	"Intellectual Property"	15
1.97	"Interface(s)"	15
1.98	"*"	15
1.99	"Managed Strategic Supplier"	15
1.100	"Material Move"	15
1.101	"Migrated Service(s)"	16
1.102	"Monthly Baseline"	16
1.103	"Monthly Performance Review"	16
1.104	"Moral Rights"	16
1.105	"New Services"	16
1.106	"New Sourcing Line(s)"	16
1.107	"Non-Recurring Initiatives"	16
1.108	"Non-Referral Quarter"	16
1.109	"Notice of Failure"	17
1.110	"Object Code"	17
1.111	"Open Source Software"	17
1.112	"Parties" or "Party"	17
1.113	"Permitted Auditors"	17
1.114	"PHI"	17
1.115	"Primary Event"	17
1.116	"Procedures Manual"	17
1.117	"Project"	18
1.118	"Proprietary or Confidential Information"	18
1.119	"Provisioned"	18
1.120	"Quarterly Executive Meetings"	18
1.121	"Receiving Party"	18
1.122	"Reduced Resource Credit" or "RRC"	18
1.123	"Reference Date"	18
1.124	"Refresh"	18
1.125	"Release"	19
1.126	"Residual Knowledge"	19
1.127	"Resource Baseline"	19
1.128	"Resource Charge"	19
1.129	"Resource Unit"	19

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

iii


1.130	"Revisions"	19
1.131	"Sarbanes-Oxley Reporting Requirements and Process"	19
1.132	"Service Levels"	19
1.133	"Service Level Agreement(s)"	19
1.134	"Service Locations"	20
1.135	"Service Taxes"	20
1.136	"Services"	20
1.137	"Shared Subcontractors"	21
1.138	"Software"	21
1.139	"Source Materials"	21
1.140	"Specifications"	21
1.141	"Statement(s) of Work"	21
1.142	"Stranded Costs"	21
1.143	"Subcontractor"	22
1.144	"Supplier"	22
1.145	"Supplier Assumed"	22
1.146	"Supplier Data Center"	22
1.147	"Supplier Documentation"	22
1.148	"Supplier Embedded Items"	23
1.149	"Supplier Equipment"	23
1.150	"Supplier Infringement Claims"	23
1.151	"Supplier Infringement Exclusions"	23
1.152	"Supplier Infringement Trigger"	23
1.153	"Supplier Intellectual Property"	23
1.154	"Supplier Key Employee"	23
1.155	"Supplier Modified Documentation"	23
1.156	"Supplier Modified Intellectual Property"	24
1.157	"Supplier Modified Items"	24
1.158	"Supplier Modified Software"	24
1.159	"Supplier's Outsourcing Relationship Executive"	25
1.160	"Supplier Personnel"	25
1.161	"Supplier Proprietary Documentation"	25
1.162	"Supplier Proprietary Intellectual Property"	25
1.163	"Supplier Proprietary Software"	25
1.164	"Supplier Reference Intellectual Property"	25
1.165	"Supplier Regulatory Requirements"	26
1.166	"Supplier Service Locations"	26
1.167	"Supplier Shared Service Center"	26
1.168	"Supplier Software"	26
1.169	"Supplier Systems"	26
1.170	"Supplier Third Party Claim(s)"	26
1.171	"Supplier's Remedial Acts"	26
1.172	"Supplier Third Party Documentation"	26
1.173	"Supplier Third Party Intellectual Property"	27

Gap Confidential and Proprietary Information


	1.174	"Supplier Third Party Software"	27
	1.175	"Supplier Tools"	27
	1.176	"Technology Change"	27
	1.177	"Term"	27
	1.178	"Termination Assistance Services"	27
	1.179	"Termination Transition Period"	27
	1.180	"Termination Transition Plan"	28
	1.181	"Third Party Service(s)"	28
	1.182	"Third Party Vendor"	28
	1.183	"third source"	28
	1.184	"Transition"	28
	1.185	"Transition Period"	28
	1.186	"Transitioned Employees"	28
	1.187	"Transition-In Plan" or "Transition Plan"	28
	1.188	"UPS"	29
	1.189	"Update"	29
	1.190	"VAT Taxes"	29
	1.191	"Version"	29
	1.192	"Virus(es)"	29

2.	Term		29
	2.1	Initial Term	29
	2.2	Options to Extend	30
	2.3	Fees During Extended Term	30

3.	Services		30
	3.1	Services	30
	3.2	Changes in Policies and Procedures	30
	3.3	Documentation	31
	3.4	Managed Network Services	31
	3.5	Cross Functional Services	31
	3.6	End User Support Services	32
	3.7	RESERVED	32
	3.8	Server Services	32
	3.9	Store Services	32
	3.10	Transition-In	32
	3.11	Equipment	33
	3.12	Replacement Services	33
	3.13	Technology Refresh Services	33
	3.14	Software Services	34
	3.15	Licenses and Permits	34
	3.16	Knowledge Transfer and Best Practices	34
	3.17	Strategic / Business Planning and Process Implementation	35
	3.18	Budgeting Services	35

Gap Confidential and Proprietary Information


	3.19	Reporting Services	35
	3.20	Data Protection and Privacy	36
	3.21	New Services	36

4.	Single Relationship Agreement		37

5.	Implementation Agreements		37
	5.1	Execution	37
	5.2	Order of Precedence	38
	5.3	Terms and Conditions	38
	5.4	Parental Guarantee	39
6.	Unapproved Work		39
	6.1	Gap Approval	39
	6.2	Right to Reject	40
	6.3	Failure to Obtain Approval	40
7.	Service Levels		41
	7.1	Service Level Agreements	41
	7.2	Reports	41
	7.3	Root-Cause Analysis and Resolution	41
	7.4	Cost and Efficiency Reviews	41
8.	Benchmarking		42
	8.1	Benchmarking Process	42
	8.2	Benchmark Adjustments	44

9.	Strategic Relationship Management		45
	9.1	Definitions	45
	9.2	Managed Strategic Supplier Services	45
	9.3	Appointment as Limited Agent	47
	9.4	Lease Management	47

10.	Service Locations		48
	10.1	Service Locations	48
	10.2	Shared Environment	48
	10.3	Safety Procedures	49
	10.4	Security Procedures	49
	10.5	Access To Gap Sites	51
	10.6	Furniture, Fixtures and Equipment	51
	10.7	Gap's Responsibilities Regarding Utilities	51
	10.8	Supplier's Responsibilities Regarding Facilities	52
	10.9	Physical Security	52
	10.10	Employee Services	52
	10.11	Use of Gap Sites	52

Gap Confidential and Proprietary Information


	10.12	Damage to Gap Facilities, Buildings, or Grounds	53
	10.13	Use of Supplier Service Locations	53

11.	Data Backup and Disaster Plan		54
	11.1	Data Backup	54
	11.2	Disaster Plan	54
	11.3	Disaster Avoidance	54
	11.4	Disaster Recovery	55
	11.5	Public Telecommunications Facilities	55

12.	Communications Systems and Access to Information		55

13.	Non-Exclusive Relationship		56
	13.1	Non-Exclusivity	56
	13.2	Multi-Vendor Environment	57

14.	Human Resources		57

15.	Statements of Work		57

16.	Gap Authorized User Satisfaction		57
	16.1	Baseline Gap Authorized User Satisfaction Survey	57
	16.2	Gap Authorized User Satisfaction Survey	58

17.	Gap Responsibilities		58
	17.1	Obligations	58
	17.2	Interfering Acts	58
	17.3	Strategic Control	59

18.	Services Team		59
	18.1	Supplier Outsourcing Relationship Executive	59
	18.2	Supplier Key Employees	60
	18.3	Conduct of Supplier Personnel	60
	18.4	Substance Abuse	61
	18.5	Union Agreements and WARN Act	62

19.	Management And Control		62
	19.1	Governance	62
	19.2	Meetings	62
	19.3	Gap Policies and Procedures	63
	19.4	Change Control Procedures	63
	19.5	Gap Infrastructure Partnership Executive	64
	19.6	Gap Personnel	64

20.	Data and Reports		65
	20.1	Provision of Data	65

Gap Confidential and Proprietary Information

vii


	20.2	Ownership of Gap Data	65
	20.3	Correction of Errors	65
	20.4	Return of Data	65
	20.5	Reports	65
	20.6	Safeguarding Client Data	66
	20.7	Data Retention	66

21.	Consents		66
	21.1	Obtaining Consents	66
	21.2	Consent Remedy	66
	21.3	Assignment of Existing Agreements	67

22.	Software, Documentation and Intellectual Property		67
	22.1	Gap Licenses to Supplier	67
	22.2	Gap Owned Intellectual Capital	68
	22.3	Joint Patent and Patent License Rights	70
	22.4	Supplier Embedded Items and Supplier Modified Items	71
	22.5	Supplier Proprietary Software and Supplier Third Party Software	72
	22.6	Supplier Proprietary Documentation and Supplier Third Party Documentation	72
	22.7	Supplier Proprietary Intellectual Property and Supplier Third Party Intellectual Property	73
	22.8	Supplier Reference Intellectual Property	73
	22.9	License Restriction	73
	22.10	Works Made For Hire	73

23.	Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity		74
	23.1	Authority to License and Non-Infringement	74
	23.2	Quiet Enjoyment	75
	23.3	Supplier's Proprietary Rights Indemnity	75
	23.4	Gap's Proprietary Rights Indemnity	78
	23.5	Conditions to Indemnity Obligations	80
	23.6	*	80

24.	Documentation		81

25.	Installation and Acceptance Tests		81
	25.1	General	81
	25.2	Installation Tests	81
	25.3	Additional Testing	82
	25.4	Failed Acceptance Testing	82

26.	Pricing		83
	26.1	General	83
	26.2	Non-Recurring Initiative Pricing	83

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

viii


	26.3	Cost of Living Adjustment	83
	26.4	All Fees Stated	84
	26.5	Taxes	84
	26.6	Payment Does Not Imply Approval	87
	26.7	Withhold Remedy	87
	26.8	Technology Changes	88

27.	Invoices and Payments		88
	27.1	General	88
	27.2	Invoice Summary	89
	27.3	Billing Adjustments	90
	27.4	Billing Disputes And Reports	90

28.	Limitations of Liability and Damages		91
	28.1	Damage Recovery Exclusion	91
	28.2	Limitation of Liability Amount	91
	28.3	Exclusions	91
	28.4	Egregious Acts	92
	28.5	Direct Damages	93

29.	Representations, Warranties, and Covenants		94
	29.1	General	94
	29.2	Performance Warranty	94
	29.3	Service	94
	29.4	Litigation Warranty	94
	29.5	Licensed Users and Rights to Use Software	94
	29.6	Support Not to be Withheld	95
	29.7	Assignment of Warranties	95
	29.8	Viruses	95
	29.9	Disabling Devices	96
	29.10	Insurance Premiums	96
	29.11	Compliance with Laws	96
	29.12	Changes in Law and Regulations	97
	29.13	Inducements	97
	29.14	Technical Architecture and Product Standards	97
	29.15	Open Source Warranty	97
	29.16	Representations and Warranties Throughout Agreement	98
	29.17	Warranty Disclaimer	98

30.	Remedy Waiver		98

31.	Internal Dispute Resolution		99
	31.1	Intent	99
	31.2	Informal Resolution	99
	31.3	Fact Finding Report	99

Gap Confidential and Proprietary Information


	31.4	Dispute Resolution Mandatory	100
	31.5	Applicability To Disputes With Suppliers Other than Supplier	100

32.	[Reserved]		100

33.	Termination		100
	33.1	Change of Control	100
	33.2	Termination for Cause by Gap	101
	33.3	Termination for Cause by Supplier	101
	33.4	Termination for Insolvency	101
	33.5	Termination for Failure to Implement Benchmark Adjustments	102
	33.6	Termination for Convenience	102
	33.7	Termination Assistance	102
	33.8	Payment of Fees	102
	33.9	Cumulative Remedies	103

34.	Termination/Expiration Assistance Services		103
	34.1	Termination/Expiration Transition Plan	103
	34.2	Performance of Services	103
	34.3	Termination Transition Period	104
	34.4	Transition Services	105

35.	Insurance and Indemnity		107
	35.1	Required Insurance Coverage	107
	35.2	Claims Made Coverages	108
	35.3	Certificates Of Insurance	108
	35.4	Subcontractors To Be Insured	109
	35.5	Cancellation Or Lapse Of Insurance	109
	35.6	Other Insurance Requirements	110
	35.7	General Indemnity	110
	35.8	Damage to Gap Facilities, Buildings, or Grounds	112
	35.9	Indemnities Throughout Agreement	113

36.	Confidentiality		113
	36.1	Definition of Proprietary or Confidential Information	113
	36.2	Exclusions	113
	36.3	Non-Disclosure and Non-Use	114
	36.4	Treatment of Gap Data	115
	36.5	Compelled Disclosures	115
	36.6	Return of Proprietary or Confidential Information	116
	36.7	Solicitation of Gap Customers	116
	36.8	Nonexclusive Equitable Remedy	116
	36.9	Residual Knowledge	117

Gap Confidential and Proprietary Information



37.	Audit, Inspection, and Examination of Records		117
	37.1	Maintenance of Books and Records	117
	37.2	Audits Authorized by Gap	117
	37.3	Audit Settlements	118
	37.4	Internal Audits	119

38.	Bankruptcy and Liquidation		120

39.	Assignment and Merger		121
	39.1	Assignment	121
	39.2	Separation	121
	39.3	Acquisitions and Mergers by Gap	122

40.	Extraordinary Events		122
	40.1	Defined	122
	40.2	Extraordinary Event Pricing	123

41.	Use of Reduced Resource Credits		123
	41.1	Business Impacts	123
	41.2	Third Source and Insource Limits on RRCs	123
	41.3	RRCs To Include IT Tower Pricing	124

42.	Amendment of Agreement		124

43.	Waiver		124

44.	Independent Contractor		124

45.	Subcontractors		125
	45.1	Approval Required	125
	45.2	Request for Approval	125
	45.3	Review of Request	126
	45.4	Supplier Obligations Remain Unchanged	126
	45.5	Approval of Subcontractor Personnel/Termination	126

46.	Interpretation of Agreement		126
	46.1	Conflict Between Agreement and Exhibits	126
	46.2	Choice of Law	127
	46.3	Venue and Jurisdiction	127
	46.4	Agreement Drafted by All Parties	128
	46.5	Terminology	128
	46.6	Section Headings	128
	46.7	Counterparts	128
	46.8	Appointment of Agent for Service of Process	128

Gap Confidential and Proprietary Information



47.	Notices		129

48.	Entire Agreement		130

49.	Severability		130

50.	Electronic Transfer of Intellectual Property		130

51.	Force Majeure		130

52.	Liens		131

53.	Demonstrations and Promotions		131
	53.1	Promotions Referring to Gap	131
	53.2	Demonstration and Promotions Not Warranties	131
	53.3	*	132

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

xii

MASTER SERVICES AGREEMENT

This Master Services Agreement, dated for reference purposes as of January 13, 2006 ("Reference Date"), is entered into between The Gap, Inc., a Delaware corporation, and International Business Machines Corporation, a New York corporation.

RECITALS

A.	Gap desires to contract with Supplier, and Supplier desires to contract with Gap, to provide the Services (as defined below) in accordance with the Service Levels (as defined below), the Business Objectives (as defined below), and the other requirements of this Agreement.

Gap's strategic and business objectives, to be accomplished through this Agreement, include: (1) implementing the standardized, strategic architecture as quickly as possible without major disruption to Gap's business; (2) obtaining a dramatic reduction in Gap's overall operating expense to reduce Gap's total cost of ownership; (3) improving deployment of new Authorized User (as defined below) equipment; (4) reducing downtime to Authorized Users; (5) supporting the old and new Gap IT infrastructures during migration; (6) receiving reliable & flexible Services from Supplier; (7) obtaining an end state that results in a best-in-class solution for all aspects of Gap's IT infrastructure; (8) dramatically reducing complexity as compared to Gap's current IT infrastructure; (9) improving overall management of Gap's IT infrastructure; (10) achieving flexibility to quickly expand and contract the Services and the Gap IT infrastructure to meet Gap's business requirements, address changes in the global marketplace, and/or facilitate moving toward a strategic architecture; (11) creating an IT infrastructure which allows Gap IT to instantly react to business requests for functionality without requiring the time and expense of implementing a totally new IT environment for each request (e.g., functionality, capacity, or reduction on demand); (12) defining and implementing key statistics, metrics, and monitoring for the Gap IT infrastructure to facilitate proactive IT management rather than reactive IT management; (13) Gap retention of overall strategic responsibility for the IT infrastructure; (14) Supplier's compliance with Gap's Policies and Procedures (as defined below), including Gap's IT delivery model; (15) obtaining highly-motivated Supplier Personnel (as defined below) that will provide high-quality services at a competitive cost; (16) utilizing Gap strategic business partner's products within the Gap IT infrastructure; (17) increasing the level of customer service and satisfaction; (18) compliance with the Sarbanes-Oxley Corporate Reform Act and Gap's Sarbanes-Oxley Reporting Requirements and Process (as defined in Section 1.131 below); and (19) proactive management of the Services to improve overall business value, performance, availability, and reliability ((1) � (19) are collectively referred to herein as the "Business Objectives").

C.	Both Parties acknowledge that a principal objective of Gap in entering into this Agreement is to insure that the Services enable Gap to achieve the Business Objectives stated above.

The Parties also intend for this Agreement to provide a contractual infrastructure to facilitate the acquisition of new sourcing service lines by Gap from Supplier such as logistics and supply chain management, supply chain applications, and human resources support; it being understood that Gap's decisions to introduce such services and which supplier it will utilize are in its sole discretion.

AGREEMENT

In consideration of the foregoing Recitals (which are incorporated herein) and the mutual covenants and agreements contained herein, the Parties hereto agree as follows:

Definitions

The following terms, when used in this Agreement, shall have the following meanings:

1.1

"Acceptance Test" and "Acceptance Tests"

"Acceptance Test" and "Acceptance Tests" shall have the meaning specified in Section 25.3 (Additional Testing).

1.2

"Additional Resource Charge" or "ARC"

"Additional Resource Charge" or "ARC" shall have the meaning specified in Exhibit C (Fees and Resource Baselines).

1.3

"Affected Employees"

"Affected Employees" shall have the meaning specified in Exhibit H (Human Resources).

1.4

"Affiliate"

"Affiliate" as to Supplier or Gap, shall mean any corporation, partnership, limited liability company, or other domestic or foreign entity (a) of which a controlling interest is owned directly or indirectly by a Party, or (b) controlled by, or under common control with, a Party.

1.5

"Aggregated Service(s)"

"Aggregated Service(s)" shall have the meaning specified in Section 8.1A (Benchmarking Process).

Gap Confidential and Proprietary Information

1.6

"Aggregate Withhold Amount"

"Aggregate Withhold Amount" shall have the meaning specified in Section 26.7 (Withhold Remedy).

1.7

"Agreement"

"Agreement" shall mean this Master Services Agreement, together with the Exhibits, Schedules, Documentation, future Gap-Approved Statements of Work, and all other materials incorporated herein by reference.

1.8

"Annual Services Charge"

"Annual Services Charge" shall have the meaning specified in Exhibit C (Fees and Resource Baselines).

1.9

"Applications"

"Applications" shall mean those items of Software owned, licensed, leased, or otherwise obtained by Gap as are identified in Exhibit D.8 (Existing Agreements) as amended from time to time by Gap in its sole discretion. All Applications shall be implemented in accordance with Section 19.4 (Change Control Procedures) of the Agreement.

1.10

"Approve" or "Approval"

"Approve" or "Approval" shall mean (1) the written authorization by Gap's Chief Information Officer (or his or her designee) or the Gap Infrastructure Partnership Executive (or his or her designee) for any consent, authorization, amendment, and/or other approval required from Gap under this Agreement, and (2) with respect to any consent, authorization, amendment, and/or approval requiring the authorization of payment, or imposing an obligation on Gap for any fees, costs, or other expenses, the written authorization of the applicable Gap Infrastructure Partnership Executive.

1.11

"Approved Reassignments"

"Approved Reassignments" shall have the meaning specified in Section 18.1 (Supplier Outsourcing Relationship Executive).

1.12

"Authorized Users"

"Authorized Users" shall mean any individual or entity authorized by Gap to use the Services under this Agreement, whether on-site or accessing remotely.

Gap Confidential and Proprietary Information

1.13

"Benchmark"

"Benchmark" shall have the meaning specified in Section 8.1D (Benchmarking Process).

1.14

"Benchmarker"

"Benchmarker" shall have the meaning specified in Section 8.1A (Benchmarking Process).

1.15

"Benchmarking"

"Benchmarking" shall have the meaning specified in Section 8.1D (Benchmarking Process).

1.16

"Best Practices"

"Best Practices" shall mean (whether or not capitalized) established procedures or processes developed or used by Supplier, utilizing its accumulated knowledge as a world class technology service provider, to deliver Services in a high quality, effective and efficient manner.

1.17

"Business Day(s)"

"Business Day(s)" shall mean Gap's designated business days for Gap or the Gap Affiliate in the specific country in which the Services are being provided by Supplier.

1.18

"Business Objectives"

"Business Objectives" shall have the meaning specified in the Recitals.

1.19

"CAS"

"CAS" shall have the meaning specified in Section 10.4G (Security Procedures).

1.20

"Change"

"Change" shall have the meaning specified in Exhibit A.1 (Glossary).

1.21

"Change Control Procedures"

"Change Control Procedures" shall have the meaning specified in Section 19.4 (Change Control Procedures).

Gap Confidential and Proprietary Information

1.22

"Charges"

"Charges" shall have the meaning specified in Exhibit C (Fees and Resource Baselines)

1.23

"Consents"

"Consents" shall have the meaning specified in Section 21.1 (Obtaining Consents).

1.24

"Contract Year"

"Contract Year" shall have the meaning specified in Exhibit C (Fees and Resource Baselines).

1.25

"Damage Limit"

"Damage Limit" shall have the meaning specified in Section 28.2 (Limitation of Liability Amount).

1.26

"Data Center"

"Data Center" shall mean Supplier Data Center(s) and the Gap Data Center(s).

1.27

"Days"

"Days" shall mean (whether or not capitalized) calendar days.

1.28

"Deficiencies"

"Deficiencies" or "Deficiency" shall mean and include: (1) defect(s) in design, materials, services, or workmanship; (2) Incidents (as defined in Exhibit A.1 (Glossary to the Statements of Work)) and Problems (as defined in Exhibit A.1 (Glossary to the Statements of Work)); and (3) error(s), omission(s),or deviation(s) from any of the Specifications which result in the Services not performing, or the Services not being performed, in accordance with the provisions of this Agreement.

1.29

"Deliverable"

"Deliverable" shall mean (whether or not capitalized) an item and/or a service to be provided by Supplier under this Agreement identified as a deliverable in a Statement of Work, Exhibit, or Schedule.

Gap Confidential and Proprietary Information

1.30

"Disabling Device(s)"

"Disabling Device(s)" shall have the meaning specified in Section 29.9 (Disabling Devices).

1.31

"Disclosing Party"

"Disclosing Party" shall have the meaning specified in Section 36.2 (Exclusions).

1.32

"Documentation"

"Documentation" shall mean all written or electronic policies and procedures relating to Services, training course materials (including computer-based training programs or modules), technical manuals, logical and physical designs, application overviews, functional diagrams, data models, production job run documents, specifications, reports, or other written materials used to provide Services under this Agreement or developed under this Agreement (as to each, whether in hard or soft copy).

1.33

"Egregious Act Damage"

"Egregious Act Damage" shall have the meaning specified in Section 28.4 (Egregious Acts).

1.34

"Egregious Acts"

"Egregious Acts" shall have the meaning specified in Section 28.4 (Egregious Acts).

1.35

"Embedded Supplier Proprietary Documentation"

"Embedded Supplier Proprietary Documentation" shall mean all Documentation: (1) developed or otherwise acquired and owned by Supplier, or (2) developed by a third party for, and owned by Supplier, to the extent embedded or incorporated by Supplier into a Deliverable, the Gap Intellectual Property, the Gap Software, or the Gap Documentation during the Term pursuant to performance of the Services.

1.36

"Embedded Supplier Proprietary Intellectual Property"

"Embedded Supplier Proprietary Intellectual Property" shall mean all Intellectual Property: (1) developed or otherwise acquired and owned by Supplier, or (2) developed by a third party for, and owned by Supplier, to the extent embedded or incorporated by Supplier into a Deliverable, the Gap Intellectual Property, the Gap Software, or the Gap Documentation during the Term pursuant to performance of the Services.

Gap Confidential and Proprietary Information

1.37

"Embedded Supplier Proprietary Software"

"Embedded Supplier Proprietary Software" shall mean Software and related Documentation: (1) developed or otherwise acquired and owned by Supplier, or (2) developed by a third party for, and owned by Supplier, to the extent embedded or incorporated by Supplier into a Deliverable, the Gap Intellectual Property, the Gap Software, or the Gap Documentation during the Term pursuant to performance of the Services.

1.38

"Embedded Supplier Third Party Documentation"

"Embedded Supplier Third Party Documentation" shall mean all Documentation (excluding any and all such Documentation that is Generally Available and/or provided with Software that is Generally Available) licensed, leased, or otherwise obtained (unless it is otherwise Provisioned by Supplier for Gap, in which case it will be deemed Gap Documentation) from a Third Party Vendor by Supplier to the extent embedded or incorporated by Supplier into a Deliverable, the Gap Intellectual Property, the Gap Software, or the Gap Documentation during the Term pursuant to performance of the Services.

1.39

"Embedded Supplier Third Party Intellectual Property"

"Embedded Supplier Third Party Intellectual Property" shall mean Intellectual Property (excluding any and all such Intellectual Property that is Generally Available) licensed, leased, or otherwise obtained (unless it is otherwise Provisioned by Supplier for Gap, in which case it will be deemed Gap Intellectual Property) from a Third Party Vendor by Supplier to the extent embedded or incorporated by Supplier into a Deliverable, the Gap Intellectual Property, the Gap Software, or the Gap Documentation during the Term pursuant to performance of the Services.

1.40

"Embedded Supplier Third Party Software"

"Embedded Supplier Third Party Software" shall mean all Software (excluding any and all such Software that is Generally Available) licensed, leased, or otherwise obtained (unless it is otherwise Provisioned by Supplier for Gap, in which case it will be deemed Gap Software) from a Third Party Vendor by Supplier to the extent embedded or incorporated by Supplier into a Deliverable, the Gap Intellectual Property, the Gap Software, or the Gap Documentation during the Term pursuant to performance of the Services.

1.41

"Employment Claim(s)"

"Employment Claim(s)" shall have the meaning specified in Section 44 (Independent Contractor).

1.42

"Equipment"

"Equipment" shall mean the Gap Equipment and Supplier Equipment.

Gap Confidential and Proprietary Information

1.43

"Excluded Fields"

"Excluded Fields" shall have the meaning specified in Section 22.3C (Joint Patent and Patent License Rights).

1.44

"Extended Term"

"Extended Term" shall have the meaning specified in Section 2.2 (Options to Extend).

1.45

"Extraordinary Event"

"Extraordinary Event" shall have the meaning specified in Section 40.1 (Defined).

1.46

"Finally Determined"

"Finally Determined" shall mean when a claim or dispute has been finally determined by a court of competent jurisdiction, arbitration, mediation, or other agreed-upon governing party.

1.47

"Full-Time"

"Full-Time" shall mean a forty (40) hour work week providing services solely and exclusively for Gap.

1.48

"Functional Service Area"

"Functional Service Area" shall mean a reference to the aggregation of Services and Deliverables to be performed pursuant to a Functional Service Area Statement of Work.

1.49

"Functional Service Area Statement(s) of Work"

"Functional Service Area Statement(s) of Work" shall mean the following statements of work: Cross Functional Services Statement of Work attached hereto as Exhibit A.2 (as amended from time to time in accordance with this Agreement); Store Services Statement of Work attached hereto as Exhibit A.3 (as amended from time to time in accordance with this Agreement); End User Support Services Statement of Work attached hereto as Exhibit A.4 (as amended from time to time in accordance with this Agreement); Managed Network Services Statement of Work attached hereto as Exhibit A.5 (as amended from time to time in accordance with this Agreement); and Server Services Statement of Work attached hereto as Exhibit A.6 (as amended from time to time in accordance with this Agreement). Whether provided in a Statement of Work or not, the Glossary to the Statements of Work attached hereto as Exhibit A.1 shall be incorporated into the above-mentioned Statements of Work.

Gap Confidential and Proprietary Information

1.50

"Gap"

"Gap" shall mean The Gap, Inc., a Delaware corporation, and its Affiliates and all Gap facilities and departments receiving Services under this Agreement.

1.51

"Gap Base Case"

"Gap Base Case" shall mean that information set forth in Exhibit C (Fees and Resource Baselines).

1.52

"Gap Custom Documentation"

"Gap Custom Documentation" shall mean any Documentation developed specifically for Gap by, or on behalf of, Supplier (or jointly with others) as part of the Services (i) in accordance with Gap's requirements, and (ii) which is specific to Gap's business operations. Gap Custom Documentation does not include any Supplier Documentation or Supplier Modified Documentation. Gap Custom Documentation shall be identified as a Deliverable.

1.53

"Gap Custom Intellectual Property"

"Gap Custom Intellectual Property" shall mean any Intellectual Property developed specifically for Gap by, or on behalf of, Supplier (or jointly with others) as part of the Services (i) in accordance with Gap's requirements, and (ii) which is specific to Gap's business operations. Gap Custom Intellectual Property does not include any Supplier Intellectual Property or Supplier Modified Intellectual Property. Gap Custom Intellectual Property shall be identified as a Deliverable.

1.54

"Gap Custom Software"

"Gap Custom Software" shall mean any Software developed specifically for Gap by, or on behalf of, Supplier (or jointly with others) as part of the Services (i) in accordance with Gap's requirements, and (ii) which is specific to Gap's business operations. Gap Custom Software does not include any Supplier Software or Supplier Modified Software. For purposes of clarity, Software developed by Supplier to facilitate the efficient delivery of Services, including software interfaces, shall be Supplier Proprietary Software. Gap Custom Software shall be identified as a Deliverable.

1.55

"Gap Data"

"Gap Data" shall mean all of the Gap data, records, and information to which Supplier has access, or otherwise is provided to Supplier, that is entered into, is transmitted by, or is transmitted through the Gap IT Environment (including, but not limited to, any modifications to any such data, records and information, and any derivative works created therefrom,) under this Agreement in connection with providing the Services. Gap Data shall

Gap Confidential and Proprietary Information

exclude Supplier Confidential Information, Supplier Documentation, Supplier Software, Supplier Modified Documentation, Supplier Modified Software, Supplier Modified Intellectual Property or other Supplier Intellectual Property.

1.56

"Gap Data Center"

"Gap Data Center" shall mean Gap's data centers specified in Exhibit D.22 (Gap Data Centers) or as otherwise agreed in writing by the Parties.

1.57

"Gap Delay Claim"

"Gap" Delay Claim� shall have the meaning specified in Section 3.10.B (Failure to Comply with the Transition-In Plan).

1.58

"Gap Documentation"

"Gap Documentation" shall mean all the Gap Proprietary Documentation, Gap Modified Documentation and Gap Third Party Documentation.

1.59

"Gap Equipment"

"Gap Equipment" shall mean the hardware, machines, and other equipment owned, leased or otherwise obtained by Gap as of the Reference Date and utilized by Supplier to provide the Services.

1.60

"Gap Infrastructure Partnership Executive"

"Gap Infrastructure Partnership Executive" shall have the meaning specified in Section 19.5 (Gap Infrastructure Partnership Executive).

1.61

"Gap Infringement Claim(s)"

"Gap Infringement Claim(s)" shall have the meaning specified in Section 23.4A (Gap's Proprietary Rights Indemnity).

1.62

"Gap Infringement Exclusions"

"Gap Infringement Exclusions" shall have the meaning specified in Section 23.4D (Gap's Proprietary Rights Indemnity; Gap Infringement Exclusions).

1.63

"Gap Infringement Trigger"

"Gap Infringement Trigger" shall have the meaning specified in Section 23.4A (Gap's Proprietary Rights Indemnity; Indemnification).

Gap Confidential and Proprietary Information

1.64

"Gap Initiated Policy Change"

"Gap Initiated Policy Change" shall have the meaning specified in Section 3.2 (Changes in Policies and Procedures).

1.65

"Gap Intellectual Property"

"Gap Intellectual Property" shall mean *.

1.66

"Gap IT Environment"

"Gap IT Environment" shall mean Supplier Systems used to deliver the Services and Gap Systems.

1.67

"Gap Licensed Property"

"Gap Licensed Property" shall have the meaning specified in Section 22.1A (Gap Licenses to Supplier).

1.68

"Gap Modified Documentation"

"Gap Modified Documentation" shall mean any item of Gap Documentation that has been modified, enhanced, or otherwise altered by Supplier, after the Reference Date, pursuant to the performance of the Services.

1.69

"Gap Modified Intellectual Property"

"Gap Modified Intellectual Property" shall mean any item of Gap Intellectual Property that has been modified, enhanced, or otherwise altered by Supplier, after the Reference Date, pursuant to the performance of the Services.

1.70

"Gap Modified Software"

"Gap Modified Software" shall mean any item of Gap Software that has been modified, enhanced, or otherwise altered by Supplier, after the Reference Date, pursuant to the performance of the Services.

1.71

"Gap Owned Intellectual Capital"

"Gap Owned Intellectual Capital" shall mean *.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

1.72

"Gap Policies and Procedures"

"Gap Policies and Procedures" shall mean the Gap Documentation, policies, procedures, and guidelines as set forth in Exhibit D.1 (Gap Policies and Procedures), and as such Documentation, policies, procedures, and guidelines are amended, modified, and/or replaced by Gap from time to time and made available to Supplier during the Term of this Agreement.

1.73

"Gap Proprietary Documentation"

"Gap Proprietary Documentation" shall mean Documentation (1) developed and owned by Gap, or (2) developed by a third party for, and owned by, Gap, and which is used by Supplier in connection with providing the Services.

1.74

"Gap Proprietary Intellectual Property"

"Gap Proprietary Intellectual Property" shall mean Intellectual Property (1) developed and owned by Gap, or (2) developed by a third party for, and owned by, Gap, and which is used by Supplier in connection with providing the Services.

1.75

"Gap Proprietary Software"

"Gap Proprietary Software" shall mean Software (1) developed and owned by Gap, or (2) developed by a third party for, and owned by, Gap, and which is used by Supplier in connection with providing the Services, excluding, the Applications.

1.76

"Gap Regulatory Requirements"

"Gap Regulatory Requirements" shall have the meaning specified in Section 29.11 (Compliance with Laws).

1.77

"Gap Service Locations"

"Gap Service Locations" shall mean the premises that are occupied, owned, operated, or leased by Gap from which Supplier is authorized to provide Services.

1.78

"Gap Sites"

"Gap Sites" shall mean the premises occupied, owned, operated or leased by Gap from which Supplier may provide Services, and/or to which Supplier provides the Services, as set forth in Exhibit D.17 (Gap Sites), as such Exhibit may be amended from time to time by Gap.

Gap Confidential and Proprietary Information

1.79

"Gap Software"

"Gap Software" shall mean the Gap Proprietary Software, Gap Modified Software, Gap Third Party Software, and the Applications.

1.80

"Gap Systems"

"Gap Systems" shall mean the Gap Equipment, Gap Software, Gap Intellectual Property, and Gap Owned Intellectual Capital.

1.81

"Gap Third Party Claim(s)"

"Gap Third Party Claim(s)" shall have the meaning specified in Section 35.7B (General Indemnity; Gap's Indemnity).

1.82

"Gap Third Party Documentation"

"Gap Third Party Documentation" shall mean any Documentation licensed, leased, or otherwise obtained from a Third Party Vendor by Gap and used by Supplier in connection with providing the Services.

1.83

"Gap Third Party Intellectual Property"

"Gap Third Party Intellectual Property" shall mean all Intellectual Property licensed, leased, or otherwise obtained from a Third Party Vendor by Gap and which is used by Supplier in connection with providing the Services.

1.84

"Gap Third Party Software"

"Gap Third Party Software" shall mean all Software licensed, leased, or otherwise obtained from a Third Party Vendor by Gap and which is used by Supplier in connection with providing the Services, excluding, the Applications.

1.85

"Gap Third Party Vendor"

"Gap Third Party Vendor" shall mean any Third Party Vendor (other than Supplier or any Supplier Third Party Vendor) contracting directly or indirectly with Gap to provide any products or services.

1.86

"Generally Available"

"Generally Available" shall mean available as a non-development product, licensed, or available for purchase, in the general commercial marketplace (e.g., Microsoft Word, SAP, OS/390, DB2).

Gap Confidential and Proprietary Information

1.87

"GID"

"GID" shall mean Gap Inc. Direct.

1.88

"HIPAA"

"HIPAA" shall have the meaning specified in Section 0 (Treatment of Gap Data).

1.89

"HVAC"

"HVAC" shall have the meaning specified in Section 10.7 (Gap's Responsibilities Regarding Utilities).

1.90

"Implementation Agreement(s)"

"Implementation Agreement(s)" shall mean agreements to be executed by Gap or Gap Affiliates and Supplier or Supplier Affiliates in various countries other than the United States, that (1) incorporate by reference this Agreement in its entirety; (2) include modifications to this Agreement required to comply with specific foreign national, provincial, state, and local laws, rules, directives, and regulations; and (3) address identified tax and related issues as directed by Gap.

1.91

"Including"

"Including," and its derivatives (such as "include" and "includes"), shall mean "including without limitation." This term is as defined, whether or not capitalized in the Agreement.

1.92

"Income Tax"

"Income Tax" shall have the meaning specified in Section 26.5A (Taxes; Definitions).

1.93

"Initial Term"

"Initial Term" shall have the meaning specified in Section 2.1 (Initial Term).

1.94

"Initiation Date"

"Initiation Date" shall mean the hire date by Supplier of the Transitioned Employees and shall be the date on which Supplier is responsible for provision of all Services.

Gap Confidential and Proprietary Information

1.95

"insource"

"insource" shall have the meaning specified in Section 41.2 (Third Source and Insource Limits on RRCs).

1.96

"Intellectual Property"

"Intellectual Property" shall mean all inventions (whether or not subject to protection under patent laws) works of authorship and other expressions fixed in any tangible or electronic medium (whether or not subject to protection under copyright laws), Moral Rights, trademarks, trade names, trade dress, trade secrets, publicity rights, know-how, ideas (whether or not subject to protection under trade secret laws), and all other subject matter subject to protection under patent, copyright, Moral Right, trademark, trade secret or other laws, including, all new or useful art, configurations, Documentation, methodologies, best practices, operations, routines, combinations, discoveries, formulae, manufacturing techniques, technical developments, artwork, Software, programming, applets, scripts, designs, or other business processes.

1.97

"Interface(s)"

"Interface(s)" when used as a noun, shall mean either a computer program developed by, or licensed to, Gap or Supplier to (1) translate or convert data from a Gap or Supplier format into another format used by Supplier at Gap as a standard format, or (2) translate or convert data in a format used by Supplier or a Third Party Vendor to a format supported by Supplier at Gap or vice versa. "Interface" when used as a verb, shall mean to operate as described above.

1.98

"*"

"*" shall have the meaning specified in Section 23.6 (*).

1.99

"Managed Strategic Supplier"

"Managed Strategic Supplier" shall have the meaning specified in Section 9.1 (Definitions).

1.100

"Material Move"

"Material Move" shall have the meaning specified in Section 10.11 (Use of Gap Sites).

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

1.101

"Migrated Service(s)"

"Migrated Service(s)" shall have the meaning specified in Section 13 (Non-Exclusive Relationship).

1.102

"Monthly Baseline"

"Monthly Baseline" shall have the meaning specified in Section 3 (Definitions) of Exhibit C (Fees and Resource Baselines).

1.103

"Monthly Performance Review"

"Monthly Performance Review" shall have the meaning specified in Section 19.2B (Meetings; Monthly Performance Reviews).

1.104

"Moral Rights"

"Moral Rights" shall mean any personal or non-economic right to a work, including rights of attribution, integrity of the work, any right to object to any distortion or other modification of a work, and any similar right existing under the law of any country in the world or under any treaty.

1.105

"New Services"

"New Services" shall mean those services that are materially different in purpose from, and in addition to, the Services. All New Services require Gap Approval.

1.106

"New Sourcing Line(s)"

"New Sourcing Line(s)" shall have the meaning specified in Section 3.21C (New Services; New Sourcing Lines).

1.107

"Non-Recurring Initiatives"

"Non-Recurring Initiatives" shall mean a discrete unit of non-recurring work that is not (1) an inherent, necessary, or customary part of the day-to-day Services in any Functional Service Area, and (2) required to be performed by Supplier to meet the existing Service Levels (other than Service Levels related to Non-Recurring Initiative performance). All Non-Recurring Initiatives require Gap Approval.

1.108

"Non-Referral Quarter"

"Non-Referral Quarter" shall have the meaning specified in Section 0 (Mandatory References).

Gap Confidential and Proprietary Information

1.109

"Notice of Failure"

"Notice of Failure" shall have the meaning specified in Section 25.4 (Failed Acceptance Testing).

1.110

"Object Code"

"Object Code" shall mean the form of computer software resulting from the compiling, assembly, or other translation or processing of the Source Materials of such software by a computer into machine language or intermediate code, which is not convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by a computer.

1.111

"Open Source Software"

"Open Source Software" shall mean any Intellectual Property that is subject to the GNU General Public License, GNU Library General Public License, Artistic License, BSD License, Mozilla Public License, or any similar license, including, those licenses listed at www.opensource.org/licenses.

1.112

"Parties" or "Party"

"Parties" or "Party" shall mean Gap and Supplier in the plural and Gap or Supplier, as the case may be, in the singular.

1.113

"Permitted Auditors"

"Permitted Auditors" shall have the meaning as specified in Section 37.2 (Audits Authorized by Gap).

1.114

"PHI"

"PHI" shall have the meaning as specified in Section 0 (Treatment of Gap Data)

1.115

"Primary Event"

"Primary Event" shall mean (whether or not capitalized) an event upon which a cause of action, claim or other liability can be based.

1.116

"Procedures Manual"

"Procedures Manual" shall mean the procedures manual set forth in Exhibit D.1 (Gap's Policies and Procedures).

Gap Confidential and Proprietary Information

1.117

"Project"

"Project" shall mean any Services provided pursuant to Gap or, as applicable, Supplier project management methodology then in place, including those Services provided in connection with a Non-Recurring Initiative. For the avoidance of doubt, for purposes of this Agreement, the use of the term Project alone shall not be deemed to be a Non-Recurring Initiative.

1.118

"Proprietary or Confidential Information"

"Proprietary or Confidential Information" shall have the meaning set forth in Section 36.1 (Definition of Proprietary or Confidential Information).

1.119

"Provisioned"

"Provisioned" shall mean items licensed, leased, or otherwise obtained by Supplier at the request of and on behalf of Gap for which Gap is financially responsible as set forth on the Financial Responsibility Matrix (Exhibit C.7).

1.120

"Quarterly Executive Meetings"

"Quarterly Executive Meetings" shall have the meaning specified in Section 19.2C (Meetings; Quarterly Executive Meetings).

1.121

"Receiving Party"

"Receiving Party" shall have the meaning specified in Section 36.2 (Exclusions).

1.122

"Reduced Resource Credit" or "RRC"

"Reduced Resource Credit" or "RRC" shall have the meaning specified in Exhibit C (Fees and Resource Baselines).

1.123

"Reference Date"

"Reference Date" shall have the meaning set forth in the introductory paragraph.

1.124

"Refresh"

"Refresh" shall have the meaning specified in Section 3.13 (Technology Refresh Services).

Gap Confidential and Proprietary Information

1.125

"Release"

"Release" shall mean a redistribution of Software that contains new features, new functionality, and/or performance improvements.

1.126

"Residual Knowledge"

"Residual Knowledge" shall have the meaning specified in Section 36.9 (Residual Knowledge).

1.127

"Resource Baseline"

"Resource Baseline" shall have the meaning specified in Exhibit C (Fees and Resource Baselines).

1.128

"Resource Charge"

"Resource Charge" shall have the meaning specified in Exhibit C (Fees and Resource Baselines).

1.129

"Resource Unit"

"Resource Unit" shall have the meaning specified in Exhibit C (Fees and Resource Baselines).

1.130

"Revisions"

"Revisions" shall mean Updates, Releases, and Versions.

1.131

"Sarbanes-Oxley Reporting Requirements and Process"

"Sarbanes-Oxley Reporting Requirements and Process" shall be as attached hereto as Exhibit O (Sarbanes-Oxley Reporting Requirements and Process).

1.132

"Service Levels"

"Service Levels" shall mean those Supplier performance criteria as set forth in the Service Level Agreement.

1.133

"Service Level Agreement(s)"

"Service Level Agreement(s)" shall mean the service level agreement(s) attached hereto as Exhibit B (Service Level Agreements).

Gap Confidential and Proprietary Information

1.134

"Service Locations"

"Service Locations" shall have the meaning specified in Section 10.1 (Service Locations).

1.135

"Service Taxes"

"Service Taxes" shall have the meaning specified in Section 26.5 (Taxes; Definitions).

1.136

"Services"

"Services" shall mean all functions, responsibilities, tasks, subtasks, Deliverables, goods, and other services: (1) identified in the Statements of Work, or Specifications; (2) identified in this Agreement as being part of the required services; (3) identified in the Transition-In Plan; (4) routinely performed during the thirteen (13) month period prior to the Reference Date by the Gap personnel and third party contractors transitioned to Supplier, displaced, or whose functions were displaced, as a result of this Agreement, even if not specifically described in the Agreement, provided, however, such services, functions or responsibilities (i) shall not include services, functions or responsibilities that were discontinued (such as through reorganizations) by Gap prior to the Reference Date, or were discontinued in accordance with the delivery solution of the Services and (ii) shall relate to information technology and business processes performed by such Gap personnel and third party contractors; (5) of a nature and type, consistent with Supplier's best practices, that would generally be performed by the information technology department/group of a multinational Fortune 200 company, even if not specifically described in the Agreement to support the Resource Baselines; (6) necessary to keep pace with technological advances and advances in the methods of delivering services, to enable Gap to stay competitive in the field of corporate information technology delivery; (7) to support the Monthly Baselines and reflected in Supplier Assumed component of Gap's Base Case even if not specifically described in the Agreement, identified within fifteen (15) months after the Reference Date; and (8) otherwise necessary to comply with the terms of this Agreement. Without increasing the scope of the Services, if any component task, subtask, service, or function is; (A) an inherent or necessary part of the Services defined in subparts (1), (2), (3), (4), (5), (6), (7) or (8) of this Section; or (B) a customary part of the Services defined in subparts (1), (2), (3), (4), (5), (6), (7) or (8) of this Section, and not in conflict with Supplier's established methods of providing services; and, as to a service(s) within either subpart (A) or (B) of this sentence above, is not specifically described in this Agreement, then such service or function shall be deemed to be part of the Services. Any hardware and/or software provided to Gap by Supplier pursuant to this Agreement shall be deemed part of the Services.

Gap Confidential and Proprietary Information

1.137

"Shared Subcontractors"

"Shared Subcontractors" shall have the meaning specified in Section 45.1 (Approval Required).

1.138

"Software"

"Software" shall mean individually each, and collectively all, of the computer programs and/or software, licensed by Gap or Supplier from a Third Party Vendor, or otherwise provided by Supplier or Gap under this Agreement, including any: (1) embedded and/or re-marketed Third Party Vendor software and/or computer programs, (2) Interfaces, (3) Source Materials, and/or (4) Object Code. Software shall include any and all Revisions thereto, and any and all programs provided by a Third Party Vendor, Supplier, or Gap in the future under this Agreement. Notwithstanding anything in this Agreement to the contrary, Supplier shall have no obligation to provide Gap any Software that is Source Materials other than where the Source Material is Gap Custom Software and/or Gap Modified Software.

1.139

"Source Materials"

"Source Materials" shall mean, with respect to Software, the source code of such Software and all related compiler command files, build scripts, scripts relating to the operation and maintenance of such Software, application programming interface (API), graphical user interface (GUI), object libraries, all relevant instructions on building the Object Code of such Software, and all Documentation relating to the foregoing.

1.140

"Specifications"

"Specifications" shall mean (1) the Statements of Work, as attached and as modified and appended, including all documents incorporated therein; (2) all other performance requirements included or incorporated by reference into this Agreement, including: Gap's Policies and Procedures (Exhibit D.1) and the Service Level Agreement (Exhibit B); and (3) to the extent it is not inconsistent with the above, the Documentation.

1.141

"Statement(s) of Work"

"Statement(s) of Work" shall mean the Functional Service Area Statement(s) of Work and such other statements of work that Gap and Supplier may enter into from time to time to document and authorize additional Services (including Non-Recurring Initiatives) and/or New Services.

1.142

"Stranded Costs"

"Stranded Costs" shall mean (i) all substantiated fees payable to third parties for Approved non-cancelable contracts entered into, or as to those portions of existing agreements amended by Supplier with Approval on or after the Reference Date, to provide the

Gap Confidential and Proprietary Information

Services, including leases and service contracts, and all reasonable termination or assignment fees payable in connection with the termination or assignment to Gap of any such contracts ("Stranded Contracts"), (ii) the substantiated cost of any assets, less depreciation, purchased by or placed into service by Supplier after the Reference Date solely for use in the performance of the Services ("Stranded Assets"), (iii) actual and substantiated salary, redeployment and severance costs paid, not to exceed * compensation (salary and benefits), for Supplier Personnel during the period they are not re-deployed as a result of termination under this Agreement, and (iv) those Transition Fees and Unrecovered Transition Costs (as defined in Exhibit C (Fees and Resource Baselines)) incurred through the effective date of termination, but not yet billed by Supplier and paid by Gap. For the avoidance of doubt, as to the Affected Employees, for a of period * (*) * from the Reference Date, the following shall be deemed included in Unrecovered Transition Costs: (a) severance costs (as defined in Exhibit H (Human Resources)) and (b) as to term employees (as defined in Exhibit H (Human Resources)), salary and benefits for the balance of the Affected Employee's term commitment (as set forth in Exhibit H (Human Resources)) remaining at the time of the termination.

1.143

"Subcontractor"

"Subcontractor(s)" shall mean any person, entity, or organization to which Supplier proposes to delegate or has delegated any of its obligations hereunder in accordance with Section 45 (Subcontractors).

1.144

"Supplier"

"Supplier" shall mean International Business Machines Corporation, a New York corporation ("IBM"), and any Affiliates, Subcontractors, employees, consultants, agents, contractors, or other third parties providing services on behalf of Supplier under this Agreement.

1.145

"Supplier Assumed"

"Supplier Assumed" shall mean those expenses designated as Supplier's responsibility in Exhibit C (Fees and Resource Baselines).

1.146

"Supplier Data Center"

"Supplier Data Center" shall mean Supplier's operations monitoring and data centers specified in Exhibit D.20 (Supplier Locations) or as otherwise agreed in writing by the Parties.

1.147

"Supplier Documentation"

"Supplier Documentation" shall mean Supplier Proprietary Documentation, Supplier Modified Documentation, Embedded Supplier Proprietary

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

Documentation, Supplier Third Party Documentation, and Embedded Supplier Third Party Documentation.

1.148

"Supplier Embedded Items"

"Supplier Embedded Items" shall have the meaning specified in Section 22.4 (Supplier Embedded Items and Supplier Modified Items).

1.149

"Supplier Equipment"

"Supplier Equipment" shall mean the hardware, machines, and other equipment owned or leased by Supplier after the Reference Date and used by Supplier to perform the Services.

1.150

"Supplier Infringement Claims"

"Supplier Infringement Claims" shall have the meaning specified in Section 23.3A (Supplier's Proprietary Rights Indemnity).

1.151

"Supplier Infringement Exclusions"

"Supplier Infringement Exclusions" shall have the meaning specified in Section 23.3D (Supplier Infringement Exclusions).

1.152

"Supplier Infringement Trigger"

"Supplier Infringement Trigger" shall have the meaning specified in Section 23.3A (Supplier's Proprietary Rights Indemnity).

1.153

"Supplier Intellectual Property"

"Supplier Intellectual Property" shall mean *.

1.154

"Supplier Key Employee"

"Supplier Key Employee" shall have the meaning specified in Section 18.2 (Supplier Key Employees).

1.155

"Supplier Modified Documentation"

"Supplier Modified Documentation" shall mean any item of Supplier Documentation (other than any Supplier Documentation that constitutes Supplier Reference Intellectual Property) that has been modified, enhanced, or otherwise altered by Supplier, after

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

the Reference Date, pursuant to the performance of the Services. Supplier Modified Documentation shall not include any such Supplier Documentation that is modified, enhanced or otherwise altered by Supplier: (1) specifically for any of its other customers concurrently with, or prior to, the same modification, enhancement, or other alteration of any such Supplier Documentation for Gap, or (2) for general use in connection with the performance by Supplier of services for customers receiving services similar to the Services (to the extent such modification, enhancement or other alteration is not first made for Gap pursuant to the performance of the Services), such Documentation identified in (1) and (2) shall be Supplier Documentation. The rights of Gap to Supplier Modified Documentation do not expand or alter the rights of Gap to the underlying Supplier Documentation as set forth in this Agreement.

1.156

"Supplier Modified Intellectual Property"

"Supplier Modified Intellectual Property" shall mean any item of Supplier Intellectual Property (other than any Supplier Intellectual Property that constitutes Supplier Reference Intellectual Property) that has been modified, enhanced, or otherwise altered by Supplier, after the Reference Date, pursuant to the performance of the Services. Supplier Modified Intellectual Property shall not include any such Supplier Intellectual Property that is modified, enhanced or otherwise altered by Supplier: (1) specifically for any of its other customers concurrently with, or prior to, the same modification, enhancement, or other alteration of any such Supplier Intellectual Property for Gap, or (2) for general use in connection with the performance by Supplier of services for customers receiving services similar to the Services (to the extent such modification, enhancement or other alteration is not first made for Gap pursuant to the performance of the Services), such Intellectual Property identified in (1) and (2) shall be Supplier Intellectual Property. The rights of Gap to Supplier Modified Intellectual Property do not expand or alter the rights of Gap to the underlying Supplier Intellectual Property as set forth in this Agreement.

1.157

"Supplier Modified Items"

"Supplier Modified Items" shall have the meaning specified in Section 22.4 (Supplier Embedded Items and Supplier Modified Items).

1.158

"Supplier Modified Software"

"Supplier Modified Software" shall mean any item of Supplier Software (other than any Supplier Software that constitutes Supplier Reference Intellectual Property) that has been modified, enhanced, or otherwise altered by Supplier, after the Reference Date, pursuant to the performance of the Services. Supplier Modified Software shall not include any such Supplier Software that is modified, enhanced or otherwise altered by Supplier: (1) specifically for any of its other customers concurrently with, or prior to, the same modification, enhancement, or other alteration of any such Supplier Software for Gap, or (2) for general use in connection with the performance by Supplier of services for customers receiving services similar to the Services (to the extent such modification, enhancement or other alteration is not first made

Gap Confidential and Proprietary Information

for Gap pursuant to the performance Services), such Software identified in (1) and (2) shall be Supplier Software. The rights of Gap to Supplier Modified Software do not expand or alter the rights of Gap to the underlying Supplier Software as set forth in this Agreement.

1.159

"Supplier's Outsourcing Relationship Executive"

"Supplier's Outsourcing Relationship Executive" shall have the meaning specified in Section 18.1 (Supplier Outsourcing Relationship Executive).

1.160

"Supplier Personnel"

"Supplier Personnel" shall mean the employees, agents, contractors, subcontractors, or representatives of Supplier, Supplier Subcontractors, and Supplier Affiliates who perform any Services under this Agreement.

1.161

"Supplier Proprietary Documentation"

"Supplier Proprietary Documentation" shall mean all Documentation: (1) developed and owned by Supplier, or (2) developed by a third party for, and owned by Supplier, which is used for the performance of the Services, excluding the Embedded Supplier Proprietary Documentation.

1.162

"Supplier Proprietary Intellectual Property"

"Supplier Proprietary Intellectual Property" shall mean all Intellectual Property: (1) developed and owned by Supplier, or (2) developed by a third party for, and owned by Supplier, which is used in the performance of the Services, excluding, the Embedded Supplier Proprietary Intellectual Property.

1.163

"Supplier Proprietary Software"

"Supplier Proprietary Software" shall mean Software and related Documentation: (1) developed and owned by Supplier, or (2) developed by a third party for, and owned by Supplier, which is used for the performance of the Services, excluding, the Embedded Supplier Proprietary Software.

1.164

"Supplier Reference Intellectual Property"

"Supplier Reference Intellectual Property" shall mean Supplier Documentation, Supplier Software and Supplier Intellectual Property (a) which is used by Supplier to assist in the delivery or development of the Services, (b) which is generally used by Supplier in connection with the performance of services for, and/or provision of tangible property to, customers, and (c) which is not embedded or otherwise incorporated into a Deliverable.

Gap Confidential and Proprietary Information

1.165

"Supplier Regulatory Requirements"

"Supplier Regulatory Requirements" shall have the meaning specified in Section 29.11 (Compliance with Laws).

1.166

"Supplier Service Locations"

"Supplier Service Locations" shall mean the premises occupied, owned, operated, or leased by Supplier to provide the Services.

1.167

"Supplier Shared Service Center"

"Supplier Shared Service Center" shall mean a Supplier Service Location from which Supplier performs, for other customers, services similar to the Services.

1.168

"Supplier Software"

"Supplier Software" shall mean Supplier Proprietary Software, Supplier Modified Software, Embedded Supplier Proprietary Software, Supplier Third Party Software, and Embedded Supplier Third Party Software.

1.169

"Supplier Systems"

"Supplier Systems" shall mean Supplier Equipment, Supplier Intellectual Property, Supplier Modified Software, Supplier Modified Intellectual Property, and Supplier Software.

1.170

"Supplier Third Party Claim(s)"

"Supplier Third Party Claim(s)" shall have the meaning specified in Section 35.7A (General Indemnity; Supplier's Indemnity).

1.171

"Supplier's Remedial Acts"

"Supplier's Remedial Acts" shall have the meaning specified in Section 23.4C (Gap's Proprietary Rights Indemnity; Remedial Acts).

1.172

"Supplier Third Party Documentation"

"Supplier Third Party Documentation" shall mean all Documentation (excluding any and all such Documentation that is Generally Available and/or provided with Software that is Generally Available) licensed, leased, or otherwise obtained (unless it is otherwise Provisioned by Supplier for Gap, in which case it will be deemed Gap Documentation) from a Third Party Vendor by Supplier which is used for the performance of the Services, excluding, the Embedded Supplier Third Party Documentation.

Gap Confidential and Proprietary Information

1.173

"Supplier Third Party Intellectual Property"

"Supplier Third Party Intellectual Property" shall mean Intellectual Property (excluding any and all such Intellectual Property that is Generally Available) licensed, leased, or otherwise obtained (unless it is otherwise Provisioned by Supplier for Gap, in which case it will be deemed Gap Intellectual Property) from a Third Party Vendor by Supplier which is used in the performance of the Services, excluding, the Embedded Supplier Third Party Intellectual Property.

1.174

"Supplier Third Party Software"

"Supplier Third Party Software" shall mean all Software (excluding any and all such Software that is Generally Available) licensed, leased, or otherwise obtained (unless it is otherwise Provisioned by Supplier for Gap, in which case it will be deemed Gap Software) from a Third Party Vendor by Supplier which is used for the performance of the Services, excluding, the Embedded Supplier Third Party Software.

1.175

"Supplier Tools"

"Supplier Tools" shall have the meaning specified in Section 22.9 (License Restriction).

1.176

"Technology Change"

"Technology Change" shall have the meaning specified in Section 26.8 (Technology Changes).

1.177

"Term"

"Term" shall mean the Initial Term and the Extended Term, if any.

1.178

"Termination Assistance Services"

"Termination Assistance Services" shall mean those transition, information technology, and related services provided by Supplier to Gap upon the termination or expiration of this Agreement for any reason as set forth in the Termination Transition Plan or in Section 34 (Termination/Expiration Assistance Services) of this Agreement (as applicable). The Termination Assistance Services shall be deemed part of the Services.

1.179

"Termination Transition Period"

"Termination Transition Period" shall have the meaning specified in Section 34.3 (Termination Transition Period).

Gap Confidential and Proprietary Information

1.180

"Termination Transition Plan"

"Termination Transition Plan" shall mean an integrated plan developed by Gap and Supplier to effectuate a seamless transition of the Services, from Supplier to Gap (or another vendor) in the event of termination or expiration of this Agreement for any reason and as further set forth in Section 34.1 (Termination/Expiration Transition Plan).

1.181

"Third Party Service(s)"

"Third Party Service(s)" shall have the meaning specified in Section 13 (Non-Exclusive Relationship).

1.182

"Third Party Vendor"

"Third Party Vendor" shall mean any person or entity (excluding Gap or Supplier) contracting directly or indirectly with Gap or Supplier to provide Equipment, Intellectual Property, Services or other products or services that are used or provided under this Agreement.

1.183

"third source"

"third source" shall have the meaning specified in Section 41.2 (Third Source and Insource Limits on RRCs).

1.184

"Transition"

"Transition" means the transition described in Section 3.10 (Transition-In) and in Exhibit D.15 (Transition-In Plan).

1.185

"Transition Period"

"Transition Period" means the period of time commencing on the Reference Date and ending one hundred and eighty (180) Days thereafter, unless otherwise agreed by the Parties in writing.

1.186

"Transitioned Employees"

"Transitioned Employees" shall have the meaning specified in Exhibit H (Human Resources).

1.187

"Transition-In Plan" or "Transition Plan"

"Transition-In Plan" or "Transition Plan" shall mean the timeline and services relating to the transition of responsibility for the Services from Gap or Gap's current third party vendors to Supplier as set forth in Exhibit D.15 (Transition-In Plan). The Transition-In Plan and all reports or other Documentation developed by Supplier pursuant to the Transition-

Gap Confidential and Proprietary Information

In Plan shall automatically become a part of this Agreement immediately upon their creation or delivery, as the case may be. The Transition-In Plan shall include, at a minimum: (a) all of the transition tasks required to be performed by Supplier, (b) all of the tasks required to be performed by Gap (any responsibility not explicitly allocated to Gap is deemed to be a transition task to be performed by Supplier), (c) the specific resources to be provided by Gap, (d) the completion date for each transition task, (e) the acceptance criteria (and, if appropriate, testing) to be applied by Gap in evaluating transition deliverables, (f) a complete description of any one-time or other charges to Gap which are associated with the Transition-In Plan, including deliverable criteria and timing for payment(s), other than the Charges, (g) Supplier's proposed migration strategy for Transitioned Employees and the Gap IT Environment, and (h) all other pertinent details.

1.188

"UPS"

"UPS" shall have the meaning specified in Section 10.7 (Gap's Responsibilities Regarding Utilities).

1.189

"Update"

"Update" shall mean a redistribution of Software that corrects an error as well as addressing common functional and performance issues.

1.190

"VAT Taxes"

"VAT Taxes" shall have the meaning specified in Section 26.5 (Taxes; Cooperation; Invoices).

1.191

"Version"

"Version" shall mean any delivery of Software that is a Release and/or a collection of Updates.

1.192

"Virus(es)"

"Virus(es)" shall have the meaning specified in Section 29.8 (Viruses).

Term

2.1

Initial Term

This Agreement shall be effective as of the Reference Date and shall continue in effect for ten (10) years after the Initiation Date (the "Initial Term"), unless earlier terminated as provided herein.

Gap Confidential and Proprietary Information

2.2

Options to Extend

Gap may elect to extend the term of this Agreement for up to three (3) additional terms each of which, at Gap's sole discretion, may range in length from thirty (30) days to one (1) year ("Extended Term"). If Gap does not exercise its option to extend at the end of the Initial Term, the extension option shall automatically lapse. Gap shall exercise its extension option by providing Supplier written notice no later than one hundred twenty (120) days prior to the expiration of the Initial Term. Such notice shall include the length of the Extended Term.

2.3

Fees During Extended Term

The fees to be paid by Gap during the Extended Term(s) of this Agreement shall be the applicable fees set forth in Section 26 (Pricing), adjusted for COLA in accordance with Exhibit C (Fees and Resource Baselines), and pursuant to the benchmarking process set forth in Section 8 (Benchmarking).

Services

3.1

Services

As of the Reference Date, Supplier shall provide Transition Services, and as of the Initiation Date and continuing throughout the Term, Supplier shall provide the Services to Gap and the Authorized Users as such Services may evolve or are otherwise supplemented, enhanced, modified or replaced in accordance with this Agreement. Except as specifically set forth in this Agreement, Supplier shall provide all Supplier Equipment, Supplier Intellectual Property, Supplier Third Party Intellectual Property, Supplier Personnel, and other resources necessary to provide the Services in accordance with the Service Levels and other performance requirements of this Agreement. Supplier shall provide the Services to Gap as an integrated service offering in accordance with this Agreement and without regard to the lines of business, intra-Affiliate relationships, or geographic locations within Supplier's organization from which such Services are offered, or the internal profit center within Supplier's organization to which the financial accounting for a Service is ultimately attributed. To the extent specific Equipment, Intellectual Property, tools, policies, procedures, and/or guidelines are identified, referenced, or referred to in the Agreement or any Exhibits, such Equipment, Intellectual Property, tools, policies, procedures, and/or guidelines shall include any amendments, modifications, updates, and/or replacements to such Equipment, Intellectual Property, tools, policies, procedures, and/or guidelines by Gap from time to time during the Term of this Agreement.

3.2

Changes in Policies and Procedures

If Supplier determines that its compliance with (i) a Gap Initiated Policy Change, (ii) an additional reporting requirement pursuant to Section 3.19 (Reporting Services) or (iii) complying with architectural or technical standards as provided in Section 17.3 (Strategic Control), will increase Supplier's actual cost of delivering the Services by an amount equal to or

Gap Confidential and Proprietary Information

greater than $* during the remainder of the Term, Supplier shall notify Gap in writing within three (3) months of implementing such change, and shall provide Gap with supporting documentation and data necessary to substantiate Supplier's estimated actual cost increase. Upon validation by Gap of Supplier supporting documentation and data, Gap shall have the option of either (a) rescinding the particular Gap Initiated Policy Change or additional reporting request; or (b) (i) in the event there is no Resource Charge applicable to the increase in Supplier's actual cost and such actual cost increase is between $* and $*, by adjusting the fees to be paid hereunder to Supplier to offset the demonstrated increased cost to Supplier, (ii) in the event there is no Resource Charge applicable to the increase in Supplier's actual cost and such actual cost increase exceeds $*, as agreed by the parties through Change Control Procedures or (iii) in the event there is a Resource Charge applicable to the increase in Supplier's actual cost, through an ARC. In the event Supplier is required to implement multiple changes as a result of a single Gap Initiated Policy Change or an additional reporting requirement, such multiple changes may be aggregated by Supplier for purposes of calculating the increase in Supplier's actual cost of delivering the Services under this Section (Changes to Policies and Procedures).

"Gap Initiated Policy Change" shall mean a change to Gap Policies and Procedures that is initiated by Gap, but shall not include changes made to address regulatory compliance issues (which changes are addressed in Section 29.12 (Changes in Law and Regulations)) or changes made to address a Supplier failure to provide Services in accordance with this Agreement.

3.3

Documentation

Supplier shall provide the Services required with respect to all Documentation in accordance with Section 0 (Documentation) and the Functional Service Area Statements of Work and as otherwise provided under this Agreement. In addition, at no additional charge to Gap, Supplier shall provide Gap with at least three (3) copies of Documentation developed for Gap under this Agreement (or otherwise required to be provided to Gap under this Agreement and which Supplier is authorized to provide) to enable Gap to fully utilize as permitted under this Agreement the Services, Equipment, and Software.

3.4

Managed Network Services

Supplier shall provide the managed network services set forth in Exhibit A.5 (Managed Network Services), and as otherwise provided under this Agreement.

3.5

Cross Functional Services

Supplier shall provide the cross functional services set forth in Exhibit A.2 (Cross Functional Services), and as otherwise provided under this Agreement.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

3.6

End User Support Services

Supplier shall provide the end user support services set forth in Exhibit A.4 (End User Support Services), and as otherwise provided under this Agreement.

3.7

RESERVED

3.8

Server Services

Supplier shall provide the mainframe services and application and utility server services set forth in Exhibit A.6 (Server Services), and as otherwise provided under this Agreement.

3.9

Store Services

Supplier shall provide the store services set forth in Exhibit A.3 (Store Services), and as otherwise provided under this Agreement.

3.10

Transition-In

A. Transition-In Plan

Supplier shall provide to Gap the transition-in services described in Exhibit D.15 (Transition-In Plan) and in accordance with the transition schedule set forth in Exhibit D.15 (Transition-In Plan). Supplier shall provide the transition-in services without materially (i) disrupting or adversely impacting the business or operations of Gap or Gap Authorized Users, (ii) degrading the Services being provided, or (iii) interfering with the ability of Gap or Gap Authorized Users to obtain the benefit of the Services, except as may be otherwise provided in the Transition-In Plan. Unless otherwise stated in the Agreement, the transition-in services shall not defer any obligations or liabilities of Supplier under this Agreement.

B. Failure to Comply with the Transition-In Plan

In the event Supplier fails to meet the Transition Complete date as set forth in Exhibit D.15 (Transition-In Plan), unless modified or extended by the written agreement of the Parties, Gap may elect to terminate this Agreement for convenience pursuant to Section 33.6 (Termination for Convenience) and without payment of the Termination for Convenience charges scheduled therein. Notwithstanding the preceding sentence, Gap shall be responsible for Stranded Costs pursuant to Section 34.4(D) (Transition Services).

Supplier shall, upon the occurrence of acts or omissions by Gap which have been determined by Supplier to, or are likely to, adversely impact its ability to deliver or meet a Transition-In Plan Critical Deliverable by the date set forth in the Transition-In Plan ("Gap Delay Claim"), advise Gap's Infrastructure Partnership Executive of such Gap Delay Claim in writing promptly, but in no event longer than five (5) business days, of Supplier having

Gap Confidential and Proprietary Information

knowledge of such occurrence, of the facts surrounding such claim and time impact, and Gap shall provide a response and/or resolution plan to Supplier within two (2) days thereafter. If Gap determines that the Gap Delay Claim was a primary cause for a delay of Supplier in delivering a Transition-In Plan Critical Deliverable, the time for Supplier to meet that Transition-In Plan Critical Deliverable shall be extended to adjust for the impact of such occurrence as well as those Transition-In Plan Critical Deliverables directly dependant upon the extended Transition-In Plan Critical Deliverable. If Supplier does not agree with Gap's decision, Supplier shall submit the Gap Delay Claim to the Dispute Resolution Process described in Section 31 (Internal Dispute Resolution). If, at the conclusion of the Dispute Resolution Process, it is determined that the delay was caused by Gap's acts or omissions, the time for Supplier to meet the Transition-In Plan Critical Deliverable will be extended to account for the Gap delay. Supplier's failure to advise Gap of a Gap Delay Claim as provided above shall preclude it from raising such acts or omissions as a basis for avoiding a credit under this Section.

3.11

Equipment

Supplier shall provide the Services using, or through access to, the Equipment that is either (1) Supplier Equipment, or (2) Gap Equipment. The Parties financial responsibilities with respect to Equipment (including any updates or refresh of such Equipment) are set forth in Exhibit C.7 (Financial Responsibility Matrix). Gap shall be responsible for the risk of loss of, and damage to, Gap Equipment (unless such Gap Equipment is in Supplier's custody). Supplier shall be responsible for the risk of loss of, and damage to, Supplier Equipment unless such Supplier Equipment is located in a Gap Store or in a Gap location at which there are no Supplier Personnel assigned full time and the loss or damage is not caused by Supplier.

3.12

Replacement Services

As more specifically described in the Statements of Work, Supplier shall, upon Gap's Approval, and at no additional cost to Gap other than any applicable ARCs and the terms of any New Services, replace, upgrade, and provide additional Supplier Equipment as may be necessary for Supplier to perform the Services in accordance with the Service Levels and as provided in this Agreement.

3.13

Technology Refresh Services

A. Supplier shall provide all Services required to implement this Section 3.13 at no additional charge to Gap except to the extent included in Exhibit C (Fees and Resource Baseline) or as otherwise Approved in a Statement of Work. Supplier will upgrade and replace the Equipment and Software in accordance with the technical architecture and standards required pursuant to any Functional Service Area Statement of Work and timeframes in accordance with Exhibit D.18 (Refresh Schedule). The Services provided pursuant to this Section 3.13 are collectively referred to as "Refresh" and require Gap's Approval prior to

Gap Confidential and Proprietary Information

implementation. Supplier will implement the Refresh requirements in accordance with the schedule set forth in Exhibit D.18 (Refresh Schedule).

B. In performing all Refresh Services and unless otherwise required pursuant to a Functional Service Area Statement of Work or otherwise agreed to by the Parties in writing, Supplier shall first replace the oldest Equipment and Software based on the in-service date or age of each such item. The Refresh schedule for each Functional Service Area shall be determined in accordance with the timeframe and/or events specified in the applicable Functional Service Area Statement of Work, or as otherwise Approved by Gap. All Refresh Services shall be performed in accordance with the schedule, technical architecture standards and product catalogs required pursuant to the Functional Service Area Statements of Work. Gap reserves the right to Approve and modify the Refresh schedule based on its business requirements, subject to the Change Control Procedures set forth in Section 5 (Change Management) of Exhibit A.2 (Cross Functional Services).

C. The financial responsibility of the Parties for Equipment and Software used in conjunction with the Services, including Refresh, shall be as set forth in Exhibit C.7 (Financial Responsibility Matrix).

D. Supplier shall perform the Refresh in accordance with Exhibit D.18 (Refresh Schedule).

3.14

Software Services

Supplier shall procure any additional software required by Supplier to provide the Services, meet Service Levels, or otherwise comply with this Agreement (the "New Software"), subject to ARCs, RRCs, and, as applicable, New Services.

3.15

Licenses and Permits

Supplier is responsible for obtaining all licenses, approvals, permits and authorizations required by applicable federal, state, or local laws or regulations that Supplier is required to have in order to perform the Services and, except as otherwise agreed to in writing by the Parties or as otherwise provided in this Agreement, Supplier is financially responsible for all fees, costs and taxes associated with such licenses, approvals, permits and authorizations. Supplier shall provide to Gap all such licenses, approvals, permits and authorizations within three (3) Business Days after Supplier's receipt of Gap's request.

3.16

Knowledge Transfer and Best Practices

Supplier shall implement the knowledge transfer process set forth in this Agreement to ensure that Supplier Personnel share the knowledge they have gained while performing the Services with Gap and the Gap Authorized Users. The knowledge transfer process shall ensure that important knowledge, information, and practices pass from Supplier and Supplier Personnel to Gap and Gap Authorized Users. At a minimum, such knowledge transfer

Gap Confidential and Proprietary Information

processes will include Supplier meeting with Gap and designated Gap Authorized Users at least once every twelve (12) months, or more frequently as Gap may request, to (a) explain how the Gap IT Environment operates in connection with the provision of the Services; (b) explain how the Services are provided; and (c) provide such training, Documentation and other materials as Gap may require for Gap to understand and operate the Gap IT Environment and understand and provide the Services after the expiration or termination of the Agreement.

As part of the Monthly Performance Reviews, Supplier shall report to the Gap Infrastructure Partnership Executive on Supplier observed opportunities for the introduction of best practices into Gap's information technology processes. Beginning in the second year of the Agreement, and annually thereafter, Supplier shall work with Gap's Infrastructure Partnership Executive to develop and present a yearly forum/briefing to Gap (1) to recommend best practice improvements to the Services, (2) to assist Gap in understanding how the use of such best practices is intended to align Gap's technology investments with its Business Objectives, and (3) to assist Gap in analyzing return on its technology investments related to the Services.

3.17

Strategic / Business Planning and Process Implementation

Supplier shall provide the strategic and other business planning and process implementation services as required pursuant to the applicable Functional Service Area Statements of Work.

Supplier will provide business and technology intelligence and recommendations to support Gap's optimization of its Equipment and Software refresh strategy. Supplier shall provide Gap with prioritized availability and knowledge of Supplier's new technology developments that have been discussed publicly at no additional cost (for avoidance of doubt, the reference to �no additional cost� refers only to the prioritized availability and knowledge, not provision of the actual technology) to the extent Supplier has made such developments Generally Available.

3.18

Budgeting Services

Supplier shall provide the budgeting services as required pursuant to applicable the Functional Service Area Statements of Work.

3.19

Reporting Services

In order to monitor the status, performance, and quality of the Services provided to Gap, Supplier shall provide Gap with various written reports described in Exhibit D.13 (Management Reports), as such reports may be amended from time to time by Gap. The nature and time frame of the reports shall be determined by Gap.

Unless stated otherwise in a Statement of Work or as directed by Gap, each of such reports shall be comprised of three (3) hard copies and (1) electronic copy to be

Gap Confidential and Proprietary Information

delivered to each of Gap's Infrastructure Partnership Executive and the applicable Program Manager, together with a formal transmittal letter executed by Supplier's Outsourcing Relationship Executive and the applicable Program Manager. If no time period is designated by Gap, after the reports have been defined and Approved by Gap, reports are due five (5) days from the end of the reporting period, or issue occurring.

3.20

Data Protection and Privacy

Supplier shall comply with Gap's Data Protection and Privacy Procedures as set forth in the Exhibit D.1 (Gap Policies and Procedures). In addition, subject to mandatory compliance with applicable law, Supplier shall perform a reference and criminal background investigation on all Supplier Personnel with access to Gap Data and/or the Gap IT Environment. Notwithstanding the foregoing, *. Within five (5) days of any investigation, Supplier shall notify Gap of adverse results of any such reference and criminal background investigation to the extent permitted by law. Supplier shall not permit any Supplier Personnel who Supplier knows has been convicted of a crime of dishonesty, breach of trust, or money laundering to provide Services under this Agreement, or to have access to any Gap Proprietary or Confidential Information or Gap Data.

3.21

New Services

A. New Services Proposal

If Gap requests that Supplier perform any New Services, Supplier shall promptly prepare a New Services proposal for Gap's consideration. Supplier shall prepare New Services proposals at no additional charge to Gap and shall deliver such proposal to Gap within a timeframe that is reasonable based on the nature and scope of the proposed New Services and, in event the proposed New Services are being competitively bid, in compliance with the competitive bidding requirements. A New Services proposal shall include, among other things, (i) a reasonably detailed project plan and a price estimate for the New Service; (ii) a reasonably detailed breakdown of such price or estimate, (iii) a reasonably detailed description of the service levels to be associated with such New Service; (iv) a schedule for commencing and completing the New Service; (v) a description of the new hardware or software to be provided by Supplier in connection with the New Service; (vi) a description of the software, hardware and other resources, including Resource Unit utilization, necessary to provide the New Service; and (vii) additional facilities, hardware, software or labor resources to be provided by Gap in connection with the proposed New Services. If Gap accepts Supplier's proposal, the Parties will negotiate a mutually agreed to Statement of Work. Upon execution of the applicable Statement of Work, the scope of the Services included in the Charges will be expanded and this Agreement will be modified to include such New Services. Notwithstanding any provision to the contrary, the

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

pricing proposed by Supplier shall be reasonable and shall be no less favorable to Gap than the pricing and labor rates set forth herein for the same or substantially similar resources in the same country and shall take into account the existing and future volume of business between Gap and Supplier. All New Services must be Approved by Gap's Chief Information Officer in accordance with Section 6.1 (Gap Approval).

B. Competing Bids

Gap may elect to solicit and receive bids from third parties to perform any New Services; provided, however, that Gap shall not disclose any Confidential and Proprietary Information provided by Supplier to Gap in any proposal for New Services. If Gap elects to use third parties to perform New Services, (i) such New Services shall not be deemed "Services" under the provisions of this Agreement and (ii) Supplier shall cooperate with such third parties as provided in Section 9 (Strategic Relationship Management).

C. New Sourcing Lines

In the event Gap elects to utilize Supplier to provide a new line of sourcing services (e.g., logistics and supply chain management, supply chain applications, and human resources support) (individually and collectively referred to as "New Sourcing Line(s)"), such services will be treated as New Services under this Agreement, provided that each New Sourcing Line will include in the proposal a unique Exhibit C (Fees and Resource Baselines); Statement(s) of Work; Service Level Agreement attachments, and as applicable, supporting exhibits. To the extent any provisions of this Agreement are deemed by the Parties to be inapplicable to such New Sourcing Line(s) or it is agreed that new provisions are required, such modifications will be addressed through an amendment to this Agreement, unless the Parties otherwise agree that a stand alone agreement that leverages the terms agreed to herein as applicable will facilitate the provision or management of the services.

Single Relationship Agreement

All Services provided by Supplier shall be governed by this Agreement, and to the extent separate Implementation Agreements are approved in writing by Gap, such Implementation Agreements shall not change, alter, or modify any term of this Agreement, except as required by the law of the country in which Services are to be provided under such Implementation Agreement or as set forth in Section 5.3 (Terms and Conditions).

Implementation Agreements

5.1

Execution

In each country in which Services shall be provided, Supplier Affiliate shall, before commencement of the Services, sign an Implementation Agreement. In the event Supplier Affiliate refuses to execute an Implementation Agreement, Supplier shall be responsible for (a) contracting with a third party as a Subcontractor under this Agreement to provide the

Gap Confidential and Proprietary Information

Services required under such Implementation Agreement, and (b) all costs (i) related to obtaining the services from such Subcontractor in excess of those costs that would have been charged by Supplier Affiliate and (ii) related to integrating such Subcontractor services into the Services.

5.2

Order of Precedence

Except for those country-specific terms and conditions set forth in Section 5.3 (Terms and Conditions) below, all the terms and conditions of this Agreement shall be incorporated in full and remain in full force and effect in all Implementation Agreements. Except for those country specific terms and conditions set forth in Section 5.3 (Terms and Conditions) below, in the event of any conflict or inconsistency between the terms and conditions of this Agreement, and the terms and conditions of an Implementation Agreement, the terms and conditions of this Agreement shall prevail.

5.3

Terms and Conditions

Each Implementation Agreement shall contain only the following country specific terms and conditions. There shall be no additional terms and conditions included in any Implementation Agreement except as set forth in this Section 5.3 (Terms and Conditions).

A. Any requirements specifically mandated by the laws, rules, regulations, directives, and/or statutes of the country of Supplier Affiliate and Gap Affiliate, including: (i) any country specific human resource requirements in relation to the Transitioned Employees, and (ii) any data protection requirements.

B. Those provisions necessary to allow both parties to operate within their respective tax structures and implement their respective internal payment processes. In the event the two structures are in conflict, Gap's tax structure and payment processes shall take precedence, provided, however, in the event Supplier demonstrates that compliance with the above precedence requirement will create a material adverse impact as to Supplier, the Parties shall work cooperatively to reach a commercially reasonable and mutually beneficial resolution. Notwithstanding the foregoing, nothing in this paragraph B is intended to alter the agreement of the Parties as to the allocation of taxes set forth in Section 26.5 (Taxes).

C. Any provision necessary to establish jurisdiction and venue as to Supplier Affiliate as provided in Section 46.3 (Venue and Jurisdiction).

D. To the extent there are additional provisions not addressed above which are proposed to be included in an Implementation Agreement, such proposed provisions must be approved by Gap Corporate Counsel and Supplier Corporate Counsel. In the event the Parties are unable to agree upon such proposed additional provisions, such proposed additional provisions shall not be incorporated into the Implementation Agreement.

Gap Confidential and Proprietary Information

5.4

Parental Guarantee

Each Party shall provide a parental guarantee simultaneously with the execution of an Implementation Agreement. Each Party's provision of a parental guarantee for any Affiliate executing an Implementation Agreement under this Agreement shall be made in the same or substantially similar form as that of Exhibit N.1 (Supplier Guarantee) and Exhibit N.2 (Gap Guarantee), as applicable.

Unapproved Work

6.1

Gap Approval

A. When Gap's consent, authorization, amendment, and/or other approval is expressly required under this Agreement, such consent, authorization, amendment, and/or other approval must be obtained by Supplier in writing from Gap's Chief Information Officer or Gap's Infrastructure Partnership Executive. Notwithstanding the foregoing, any consent, authorization, amendment, and/or other approval requiring the authorization of payment, or imposing an obligation on Gap for any fees, cost, or other expenses, must be obtained by Supplier in writing from Gap's Chief Information Officer subject to the following exceptions:

(1) any consent, authorization, amendment, and/or other approval in an amount less than * per entire Statement of Work or authorized activity) can be approved by Gap's Infrastructure Partnership Executive; and

(2) any consent, authorization, amendment, and/or other approval in an amount less than * per entire Statement of Work or authorized activity) can be approved by a Gap Program Manager.

B. After Supplier has obtained the consent, authorization, amendment, and/or other approval as set forth in this Section, Supplier is not required to obtain a consent, authorization, amendment, and/or other approval for the tasks related to the day to day execution of the applicable matter, unless additional consents, authorizations, amendments, and/or other approvals are specifically provided for in the Agreement.

C. For purposes of this Agreement, the writings constituting any consent, authorization, amendment, and/or other approval shall be (i) as to New Services, a signed and numbered Service Request, Change Request, or Statement of Work, as applicable; and (ii) as to Non-Recurring Initiatives, a signed and numbered Statement of Work. Supplier's monthly invoices shall detail separately Charges for New Services, with reference to the specific numbered Service Request, Change Request, or Statement of Work constituting the consent, authorization, amendment, and/or other approval. Each calendar month, Gap's Infrastructure

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Gap Confidential and Proprietary Information

Partnership Executive (or his or her designee) and Supplier's Outsourcing Relationship Executive shall meet to review the Services invoiced to Gap in the previous calendar month, including the status of issues, if any, relating to Charges for New Services. Gap will make a good faith attempt to raise any disputes relating to any consent, authorization, amendment, and/or other approval of the Services performed promptly upon discovery of such dispute; provided that in no event shall Gap be permitted to dispute such consent, authorization, amendment, and/or other approval of the Services performed (and invoiced as provided in this Section) more than * (*) days after the date of the original invoice for such Service(s) and, thereafter, any such Charges shall be deemed to have Gap's consent, authorization, amendment, and/or other approval.

6.2

Right to Reject

Gap reserves the right to reject any Services not Approved by Gap pursuant to Section 6.3 (Failure to Obtain Approval) or other provisions of this Agreement. Gap Approval is not required for those Services, other than Non-Recurring Initiatives, included in the Charges, including any ARCs or RRCs as to such Services.

6.3

Failure to Obtain Approval

A. Unless otherwise specified in Section 6.1 (Gap Approval) or otherwise specifically set forth in this Agreement, any consents, authorizations, amendments, or other approvals required under this Agreement must be obtained from Gap's Chief Information Officer or Gap's Infrastructure Partnership Executive.

B. If Supplier provides Services (or services other than those specified in this Agreement) to Gap without obtaining Gap Approvals in writing, as set forth in this Section, such Services (or other services) shall be deemed to be a gratuitous effort on the part of Supplier and Supplier shall have no claim whatsoever against Gap therefor (it being understood by the Parties that Supplier shall have no obligation to continue to provide such gratuitous Services (or other services) unless Approved by Gap in which case Gap shall compensate Supplier in accordance with this Agreement). Any services other than those specified under this Agreement that are Approved by Gap under the preceding sentence shall become a part of the Services and shall be subject to the terms and conditions of this Agreement.

C. If Supplier provides Services (or services other than those specified in this Agreement) that are deemed to be a gratuitous effort pursuant to subparagraph B above, constituting Equipment, Supplier Proprietary Software or commercially available off-the-shelf Supplier Third Party Software (e.g., Microsoft NT, Sun Solaris, HP Open View) and unless otherwise Approved, Gap shall permit Supplier to remove such Equipment, Supplier Proprietary Software or commercially available off-the-shelf Supplier Third Party Software at Supplier's sole cost and expense and at Gap's reasonable convenience.

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Gap Confidential and Proprietary Information

D. If Supplier provides Services (or services other than those specified in this Agreement) that are deemed to be a gratuitous effort pursuant to subparagraph B. above, constituting Gap Custom Software, Gap shall be entitled to retain and use such Gap Custom Software free of Charge, except that such Gap Custom Software shall not be deemed to be part of the Services subject to this Agreement and shall be provided to Gap by Supplier on an "AS IS" basis.

E. Gap shall provide Supplier with notice of any such gratuitous effort to the extent such gratuitous effort is known by Gap's Governance Team as detailed in Section 19.1 (Governance).

Service Levels

7.1

Service Level Agreements

Supplier shall provide all Services in accordance with the Service Levels.

7.2

Reports

Supplier shall collect all data and maintain all records and documentation required by this Agreement, the Statements of Work and to comply with the Service Levels. Supplier shall provide regular performance reports to Gap in accordance with Section 3.16 (Reporting Services) and Section 19.1 (Governance).

7.3

Root-Cause Analysis and Resolution

Within ten (10) days (or as otherwise agreed to by the Parties in writing) of receipt of a notice from Gap of Supplier's failure to provide the Services in accordance with the Service Levels, Supplier shall (a) provide such services necessary to identify the cause of such failure, (b) provide Gap with a written report detailing the cause of, and procedures for correcting, such failure, and (c) provide Gap with reasonable evidence that applicable corrective steps have been taken. The foregoing does not limit other remedies available to Gap under this Agreement for such Service Level failures.

7.4

Cost and Efficiency Reviews

Supplier shall perform, on an annual basis, cost and efficiency reviews of the Services it provides and make recommendations to Gap for reducing the cost to Gap of the Services. Supplier's recommendations shall include methods to efficiently utilize resources chargeable to Gap under the Agreement, including, but not limited to:

(1) Tuning or optimizing the Gap IT Environment used to perform the Services;

Gap Confidential and Proprietary Information

(2) Use and analysis of the results of predictive modeling, trend analysis, and monitoring tools;

(3) Analysis and isolation of Application and infrastructure design, configuration, and implementation flaws;

(4) Recommendations for aligning technology processes, tools, skills and organizational changes with Gap's business requirements; and

(5) Employing new technologies in general use by Supplier to replace existing technologies used by Supplier to provide the Services, even if the use of such new technologies will result in a reduction in monthly revenues to Supplier under the Agreement. For example, in a circumstance in which manual tape mounts were a Resource Unit, it is required that Supplier would recommend use of automated tape mounts, if appropriate, even if implementation of such solution would result in a RRC under the Agreement.

In the event Supplier fails to include in its annual recommendations employment of new technologies (made Generally Available by Supplier to other customers for at least six (6) months) to replace existing technologies used by Supplier to provide the Services, and (1) Gap demonstrates through the Internal Dispute Resolution process that employment of such new technologies would result in a reduction to Gap of the Charges of the Services, and (2) if Gap elects to implement a subject new technology in accordance with this Agreement, it shall receive a $50,000.00 credit off of any Charge associated with the implementation of any such new technology by Supplier.

Benchmarking

8.1

Benchmarking Process

A. After the * anniversaries of the Reference Date, Gap may initiate a benchmark analysis of (1) *, (2) *, (3) *, and/or (4) * (individually each, and collectively all, referred to as "Aggregated Service(s)"). For purposes of this Section 8 (Benchmarking), *. Supplier will provide, as reasonably requested by Gap in order to facilitate a meaningful and effective benchmark analysis, a detailed charge(s) breakdown of the Aggregated Services subject to the benchmark

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

analysis into the elements of *. Additionally, as may be required to normalize the benchmark analysis, the fixed price component of the Annual Services Charge set forth in Table C-1 (Annual Services Charge) shall be allocated on a prorated basis to each of the Aggregated Service(s). Such allocation will be accomplished by dividing the then current Contract Year Charges for the applicable Aggregated Service(s) subject to the benchmark analysis by the total Annual Services Charge for the then current Contract Year to obtain the percentage of the fixed price Annual Services Charge to add to the Aggregated Service(s) in order to establish the then current total price for the Aggregated Service(s) subject to the benchmark analysis. Gap agrees not to duplicate a benchmarking for Aggregated Services within any * period. Gap will select and contract with an independent third party that routinely provides benchmarking as identified on Exhibit D.21 (Approved Benchmarkers) or as otherwise mutually agreed to in writing by the Parties (the "Benchmarker") to objectively perform such benchmarking.

B. Each Party shall have the right to review the benchmarking procedures to be utilized by the Benchmarker. If and to the extent Gap and Supplier agree on specific directions, processes or methodologies to be provided to or applied by the Benchmarker, the Benchmarker shall be provided such directions and instructed to apply such processes or methodologies. Otherwise, the Benchmarker shall be instructed to use its professional judgment as to the appropriate processes and methodologies to be applied.

C. The Benchmarker shall execute an appropriately protective confidentiality agreement consistent with the terms of this Agreement that contains standard non-disclosure agreement protections, provided that Supplier shall have no obligation hereunder to (i) provide the Benchmarker any proprietary information or data relating to Supplier's agreements with other customers or (ii) disclose to the Benchmarker Supplier's cost of delivering the Services under this Agreement.

D. The Benchmarker shall have no financial incentive in the outcome of its analysis. The Benchmarker shall compare (using data from a representative sampling of contracts) the quality, resource utilization, and charges of the Aggregated Service(s) against the quality, resource utilization and charges of information technology service providers performing similar services to ensure that Gap is obtaining pricing and levels of service that are competitive with market prices and service levels, given the nature, volume, performance standards and type of Aggregated Service(s) provided by Supplier hereunder ("Benchmarking"). The prices established as a result of the Benchmarking shall be the "Benchmark". In making this comparison, the Benchmarker shall insure its comparison accounts for vendor financing and other factors including: (i) whether vendor transition-in charges are paid by the customer as incurred or amortized over the term of the agreement; (ii) the extent to which vendor pricing includes the purchase of customer's existing assets and on what basis; and (iii) the extent to which vendor pricing includes the cost of acquiring future assets. The Benchmarker shall identify such factors considered and the methodology used to account for such factors in its comparison.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

8.2

Benchmark Adjustments

A. The Benchmarker shall issue a preliminary written report reflecting its findings. The Parties will review the preliminary benchmark analysis report and provide any comments in writing to the Benchmarker and the other Party within fifteen (15) days of receipt of the analysis. The Benchmarker will be instructed to consider any such comments received within such fifteen (15) day period and, after such consideration and making any appropriate adjustments, to issue a final written report. The Benchmarker may accept or reject the comments of either Party in its sole discretion.

B. In the event that the Parties agree to the Benchmark result and Supplier's prices for the Aggregated Service(s) is priced higher than the Benchmark, then Supplier shall either:

(1) in the event Supplier's prices for the Aggregated Service(s) exceed the Benchmark by * or less, then Supplier shall reduce its prices for the Aggregated Service(s) down to the * in the next billing cycle. "*" shall mean the amount equal to * over Supplier's prices for the Aggregated Service(s). For example, if the Benchmark for the Aggregated Services exceeds the then current Supplier Charges for the Aggregated Services by *, then Supplier shall reduce its prices for the Aggregated Services down by *; or

(2) in the event Supplier's prices for the Aggregated Service(s) exceed the Benchmark by more than *, Supplier shall reduce its prices for the Aggregated Service(s) (i) down by * in the next billing cycle (ii) *. Within * of receiving the Benchmarking with a Benchmark triggering the pricing discussion requirement, Supplier shall provide Gap with a written proposal on *. The proposal shall *. Supplier's proposal must be accompanied with sufficient detail to demonstrate to Gap what specific pricing metrics will be affected and how and may include discussion of technology architecture issues. The Parties shall structure and support the pricing discussions to proceed rapidly with the objective of completing such discussions within * of the date of receiving the Benchmarking. Failure of the Parties to agree on all pricing adjustments to be implemented within * of the date of receiving the Benchmarking, shall be deemed a rejection of Supplier's proposal to reduce prices by Gap, unless the Parties otherwise agree in writing.

C. Should the Parties agree to adjust pricing as provided herein, such adjustments shall be *.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

D. If (1) Supplier fails to adjust its pricing as required under subpart B above, or (2) Gap (in its sole discretion) does not accept Supplier's proposal to reduce its prices to the Benchmark as set forth in subpart B(2) above, Gap may terminate this Agreement in accordance with Section 33.5 (Termination for Failure to Implement Benchmark Adjustments).

E. All third party costs of the benchmarking shall be shared equally by the Parties.

Strategic Relationship Management

9.1

Definitions

For purposes of this Section 9 (Strategic Relationship Management), the term "Managed Strategic Supplier" shall mean those Third Party Vendors identified by Gap as having responsibility under a separate agreement with Gap for the delivery of a critical service segment that must integrate with the Services. As of the Reference Date, Exhibit D.12 (Managed Strategic Suppliers) lists the Managed Strategic Suppliers. The listing of Managed Strategic Suppliers contained in Exhibit D.12 (Managed Strategic Suppliers) shall be updated from time to time by the written agreement of the Parties either through the Change Control Procedures or by a signed amendment to the Agreement.

9.2

Managed Strategic Supplier Services

A. Supplier's obligations with regard to Managed Strategic Suppliers shall be as set forth in the applicable Statements of Work and include the following:

(1) work with Gap to plan the scope, requirements and specifications as to all Managed Strategic Suppliers for any particular project or engagement; provided, however, Gap will provide Supplier with a copy of the applicable agreements with its Managed Strategic Suppliers as needed to identify Supplier's obligations under this Section;

(2) assume primary responsibility for properly fulfilling Gap's operational, management, and administrative obligations under any agreement with a Managed Strategic Supplier; provided, however, nothing under this subpart obligates Supplier to accept financial or other liability as between it and the Managed Strategic Supplier;

(3) working with Gap to identify its business needs and assuming primary responsibility for incorporating those business needs in the design and development of specifications for the Managed Strategic Supplier's services;

(4) act as Gap's limited agent and coordinate the implementation of all projects and performance;

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

(5) assume responsibility for managing the relationship and monitoring the Managed Strategic Supplier's continuing performance under the terms of the agreement with the Managed Strategic Supplier and bring all performance issues under the applicable service levels to resolution in accordance with the terms of the agreement with the Managed Strategic Supplier, including but not limited to managing the Managed Strategic Supplier's development and implementation of corrective action plans;

(6) monitor the Managed Strategic Supplier's continuing timeliness under the terms of the agreement with the Managed Strategic Supplier, including, but not limited to managing the Managed Strategic Supplier's development and implementation of corrective action plans;

(7) monitor and assess the Managed Strategic Supplier's ability to efficiently and effectively deliver the agreed services under the terms of the agreement with the Managed Strategic Supplier; and

(8) review and verify the accuracy and compliance with the terms of the agreement with the Managed Strategic Supplier, including applicable statements of work and project agreements, of all invoices received by Gap from Managed Strategic Supplier and pursue all credits to which Gap may be entitled.

B. In the event of any failure of a Managed Strategic Supplier to achieve the service levels under the applicable service level agreement, Supplier shall promptly advise Gap's Infrastructure Partnership Executive and the appropriate Program Manager of any performance or other issues. In addition to providing the Services set forth in Section 9.2A.(5), within ten (10) days of receipt of a corrective action plan and/or a root cause analysis of a service level failure from the Managed Strategic Supplier, Supplier shall provide Gap with a written analysis of the Managed Strategic Supplier's corrective action plan and root cause analysis and an identification of mitigation measures that are determined by Supplier to minimize the likelihood of a recurrence of the failure. If further investigation into the root cause of the failure is required, then Supplier shall, as applicable, manage the Managed Strategic Supplier's efforts with regard to such further investigation and/or perform such investigation. Supplier shall provide a report to Gap of relevant information discovered in the further investigation and such other information regarding the failure as Gap may reasonably request. Upon becoming aware of acts or omissions of a Managed Strategic Supplier that Supplier reasonably believes are likely to cause a failure to achieve a service level under the applicable Service Levels, Supplier will provide Gap with prompt written notice of such acts or omissions.

C. Gap shall be responsible for the payment of all invoices issued by the Managed Strategic Supplier for services rendered.

D. Supplier has to the right to approve any changes to any agreement with a Managed Strategic Supplier which would materially change or increase the level of Services provided by Supplier under this Section 9 (Strategic Relationship Management).

Gap Confidential and Proprietary Information

9.3

Appointment as Limited Agent

Gap hereby appoints Supplier as Gap's limited agent for managing any agreements covering services or systems provided to Gap by a Managed Strategic Supplier. Gap agrees promptly to notify all appropriate third parties in writing of the nature and scope of such appointment of Supplier. Supplier's appointment as Gap's limited agent shall not include the authority to obligate Gap to pay any fees, costs or other expenses without obtaining in advance a Gap Approval. Supplier's appointment as Gap's limited agent as to a Managed Strategic Supplier or as to a specific applicable agreement between Gap and a Managed Strategic Supplier may be terminated by Gap. Any change by Gap to an existing Managed Strategic Supplier relationship or termination of Supplier's status as limited agent as to such Managed Strategic Supplier shall be subject to an appropriate modification to Supplier's rights and obligations under this Agreement. Gap agrees to cooperate with Supplier in its role as Gap's limited agent with respect to a Managed Strategic Supplier. As of the Reference Date, Gap is not aware of any material breach under any Managed Strategic Supplier agreement nor are there any disputes pending in dispute resolution.

9.4

Lease Management

A. Definitions

For purposes of this Section 9.4 (Lease Management), the term "Gap Selected Lease Supplier" shall mean those third parties selected and identified by Gap as having responsibility under a separate agreement with Gap for the leasing of certain Gap Equipment. As of the Reference Date, Exhibit D.11 (Gap Selected Lease Agreements) lists the Gap Selected Lease Suppliers and the applicable agreements. The listing of Gap Selected Lease Agreements contained in Exhibit D.11 (Gap Selected Lease Agreements) shall be updated from time to time by the written agreement of the Parties either through the Change Control Procedures or by a signed amendment to the Agreement.

B. Lease Management Supplier Services

(1) Supplier's obligations with regard to a Gap Selected Lease Supplier shall be as set forth below:

(a) work with Gap to plan the scope, requirements and specifications as to all Gap Equipment; provided, however, Gap will provide Supplier with a copy of the applicable agreements with its Gap Selected Lease Suppliers as needed to identify Supplier's obligations under this Section;

(b) assume primary responsibility for properly fulfilling Gap's operational, management, and administrative obligations under any agreement with a Gap Selected Lease Supplier; provided, however,

Gap Confidential and Proprietary Information

nothing under this subpart obligates Supplier to accept financial or other liability as between it and the Gap Selected Lease Supplier;

(c) working with Gap to identify its business needs and assuming primary responsibility for incorporating those business needs in the design and development of specifications for the Gap Equipment;

(d) act as Gap's limited agent and coordinate the implementation of all Gap Equipment;

(e) assume responsibility for managing the relationship and monitoring the Gap Selected Lease Supplier's performance under the terms of the agreement with the Gap Selected Lease Supplier; and

(f) review and verify the accuracy and compliance of all invoices received by Gap from a Gap Selected Lease Supplier with the terms of the agreement with the Gap Selected Lease Supplier, and pursue all credits to which Gap may be entitled.

C. Upon becoming aware of acts or omissions of a Gap Selected Lease Supplier that Supplier reasonably believes are likely to cause a failure to achieve a service level under the applicable Service Levels, Supplier will provide Gap with prompt written notice of such acts or omissions.

D. Gap shall be responsible for the payment of all invoices issued by the Gap Selected Lease Supplier for services rendered.

10.

Service Locations

10.1

Service Locations

The Services shall be provided from (1) the Gap Sites, (2) Supplier Service Locations, and (3) any other data center or location designated by Gap or Supplier; provided, however, that any such other data center or location must be Approved by Gap in writing and in advance ((1), (2), and (3) collectively, the "Service Locations").

10.2

Shared Environment

Prior to migrating or relocating any of the Services to a Supplier Shared Service Center (other than those contemplated as of the Reference Date), Supplier shall provide to Gap, for Gap's Approval, a proposal for the migration or relocation of such Services, including benefits, savings, or risks to Gap during the Term and upon the expiration or termination of this Agreement. Gap agrees to evaluate such migration or relocation proposals in good faith, acknowledging the potential that such relocation, while achieved at no additional cost

Gap Confidential and Proprietary Information

or savings to Gap, may enable Supplier to optimize its financial and delivery commitments under this Agreement.

10.3

Safety Procedures

A. Supplier shall maintain and enforce at Supplier Service Locations safety procedures that are at least (1) equal to industry standards for such Supplier Service Locations and (2) as rigorous as those procedures in effect at Supplier Service Locations as of the Reference Date.

B. At all Gap Service Locations, Supplier shall comply with Gap's safety procedures provided in writing to Supplier or generally posted at a Gap Service Location. Supplier shall observe and comply with all Gap rules (disclosed to Supplier or Supplier Personnel in writing or by other means generally used by Gap to disseminate such information to employees or contractors) with respect to safety, health, facility security, and the environment and shall take all action necessary to avoid injury, property damage, spills or emissions of hazardous substances, materials or waste, and other dangers to persons, property or the environment. To the extent required by Gap, Supplier Personnel shall receive prescribed training from Gap without charge prior to entering certain Gap Sites or Gap Service Locations.

10.4

Security Procedures

As more specifically required pursuant to Section 2 (Security) of Exhibit A.2 (Cross Functional Services), Supplier shall adopt security measures for itself and its employees which shall include, but not be limited to:

A. Prohibition of the disclosure of Proprietary or Confidential Information within Supplier's organization except to individuals requiring access to such information to perform Supplier's obligations or exercise its rights under this Agreement;

B. Precluding access to Proprietary and Confidential Information by any Supplier employee, representative, agent or Subcontractor until such individual has been trained with regard to the handling of the Proprietary or Confidential Information, use of security measures identified herein, and (1) with respect to Supplier's employees, has completed Supplier's applicable * (or its successors) (provided, however, for purposes of this Agreement and with respect to Supplier's employees providing Services under this Agreement, * (or its successors) shall be deemed to apply to and include all of the Gap Systems), and (2) with respect to Supplier's representatives, agents, or Subcontractors, Supplier has included provisions comparable to *;

C. Requiring all (1) new employees to complete Supplier's applicable *

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

* (or its successors) (provided, however, for purposes of this Agreement and with respect to Supplier's employees providing Services under this Agreement, * (or its successors) shall be deemed to apply to and include all of the Gap Systems), and (2) representatives, agents, or Subcontractors, to execute Subcontractor, agent, or other agreements with provisions comparable to *;

D. Providing each individual authorized to electronically access Proprietary or Confidential Information with a unique access code and notifying such individual that disclosure of any password, access code, or security device shall result in disciplinary action, including termination;

E. Promptly canceling any password or security access code when an individual is terminated, transferred, or on a leave of absence and providing prompt notice of such event to Gap as agreed in the Gap Policies and Procedures and consistent with Gap System security requirements;

F. In the event employment is terminated involuntarily, ensuring that the individual's access to Proprietary or Confidential Information is blocked prior to notifying the individual of the involuntary termination;

G. Requiring that Gap procedures (provided in writing to Supplier or generally posted at the Gap Service Locations) are followed by Supplier Personnel to physically safeguard all telecommunication switches, computer rooms, and tape libraries, as well as restricting access to such sites to authorized personnel through card access system ("CAS") badges where such systems are utilized;

H. Requiring that audit trails are established and maintained with regard to Trusted Identifications created by Supplier and provide such audit trails to Gap upon Gap's request. Without limitation, *; and

I. Requiring, to the extent consistent with Gap Polices and Procedures (Exhibit D.1), that the Equipment and the Gap IT Environment have the firewalls, segmentation, encryption, or other safeguards designed to (1) protect the transmission of Gap Data and Proprietary or Confidential Information, (2) properly authenticate users, and (3) prohibit the unauthorized access to Gap Data or Confidential or Proprietary Information or the

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

Gap IT Environment, all as set forth in Section 2 (Security) of Exhibit A.2 (Cross Functional Services).

10.5

Access To Gap Sites

Gap shall provide Supplier with access to and use of the Gap Sites (or equivalent space) as necessary for Supplier to comply with the terms of this Agreement. All Gap owned or leased assets provided for the use of Supplier under this Agreement shall remain in Gap Sites unless Gap otherwise agrees in writing. Supplier shall have no tenancy, or any other property or other rights, in Gap Sites. In addition, all leasehold improvements made by or for Supplier during the Term shall be and remain part of the Gap Site. All such improvements shall be made: (i) only with Gap's prior written Approval; and (ii) at Supplier's sole cost and expense. Supplier acknowledges and agrees that, as of the Reference Date, the Gap Sites are sufficient, together with Supplier Service Locations, to enable Supplier to provide the Services as required by this Agreement. All Gap Sites are provided hereunder on an "as is, where is" basis.

10.6

Furniture, Fixtures and Equipment

The facilities provided by Gap for the use of Supplier will be generally comparable to the standard space then occupied by similarly-situated Gap employees. Gap shall provide, for the use of Supplier Personnel occupying space at Gap Sites, office furniture and fixtures generally comparable to the furniture and fixtures provided to similarly-situated Gap employees. Supplier Personnel using the facilities provided by Gap will be accorded reasonable access to the communications wiring in such facilities (including fiber, copper, and wall jacks) and the use of, certain shared office equipment and services such as photocopiers, local and long distance telephone service for Gap-related calls, mail service, office support service (e.g., janitorial), heat, light, and air conditioning. Supplier shall be responsible for providing all other office, data processing and computing equipment, and services needed by Supplier or Supplier Personnel to provide the Services, and for upgrades, improvements, replacements, and additions to such equipment or services provided that those affected Gap employees may continue to utilize their current workstations until such time that the workstation is scheduled for refresh or otherwise requires replacement. At that time, Supplier shall replace such workstation with Supplier Equipment.

10.7

Gap's Responsibilities Regarding Utilities

Gap shall provide, or shall cause Supplier to be provided with, site maintenance, site management, site administration and similar services for Gap Sites used by Supplier or Supplier Personnel to provide the Services and maintain at historical levels the building and property electrical systems; water, sewer, lights, heating, ventilation, and air conditioning ("HVAC") systems; physical security services; general custodial/landscape services, including monitoring and maintaining the uninterruptible power supply ("UPS") system; and air handlers and water chillers; and shall pay for electrical power, water, natural gas

Gap Confidential and Proprietary Information

used or consumed by Supplier or Supplier Personnel at such Gap Sites. Gap shall maintain the account relationship with power utility, the water utility, and the natural gas utility companies.

10.8

Supplier's Responsibilities Regarding Facilities

Except as provided in Sections 10.5 (Access to Gap Sites), 10.6 (Furniture Fixtures and Equipment), and 10.7 (Gap's Responsibilities Regarding Utilities), Supplier shall be responsible for providing all furniture, fixtures, equipment, space, tools, vehicles and other facilities required to perform the Services and all upgrades, improvements, replacements and additions to such furniture, fixtures, equipment, space, tools, and facilities. Without limiting the foregoing, Supplier shall: (i) provide all site maintenance, site management, site administration and similar services at Supplier Service Locations, other than Gap Sites; and (ii) provide all necessary emergency power supply and uninterrupted power supply services at Supplier Service Locations, other than Gap Sites; and (iii) provide such other services as required pursuant to Gap's Policies and Procedures. To the extent Supplier identifies methods of optimizing use of Gap facilities with regard to Supplier's use of such facilities for delivering the Services (e.g., more efficient use of floor space, more efficient usage of power and air conditioning) it will advise Gap of such recommendations.

10.9

Physical Security

Gap is responsible for the physical security of the Gap Sites; provided, that Supplier will be responsible for access and control of the areas that Supplier is using in performance of this Agreement and as more specifically required pursuant to the Gap Policies and Procedures. Supplier shall not authorize any person to have access to, or control of, any such area unless such access or control is permitted in accordance with control procedures Approved by Gap.

10.10

Employee Services

Subject to applicable security requirements that are provided in writing to Supplier or posted at a Gap Site, Gap will permit Supplier Personnel to use all employee facilities (e.g., parking, cafeteria, and common facilities) at the Gap Sites that are generally made available to the employees of Gap or Gap Authorized Users. Supplier Personnel will not be permitted to use such employee facilities designated by Gap for the exclusive use of certain Gap or Gap Authorized User employees.

10.11

Use of Gap Sites

Unless Supplier obtains Gap's prior written agreement, which may be withheld by Gap in its sole discretion, Supplier shall use the Gap Sites, and the Gap Equipment and Software located therein, only to provide the Services to Gap and the Authorized Users. Gap reserves the right in its sole discretion to relocate a Gap Site (or the space within a Gap Site) from which the Services are then being provided by Supplier to another location; provided that, in such event, Gap will provide Supplier with ninety (90) days advance written notice and with

Gap Confidential and Proprietary Information

comparable space in the new location. In advance of a Material Move, Supplier and Gap shall identify one-time or recurring additional or reduced costs or expense associated with such relocation, and agree upon methods of mitigating and equitable allocation of such cost and/or expenses. The Parties agree that a "Material Move" for purposes of this Section 10.11 (Use of Gap Sites) is one that creates an additional commute for Supplier Personnel of * or more miles. When the Gap Sites are no longer required for the performance of the Services, Supplier shall return such Gap Sites to Gap in substantially the same conditions as when Supplier began use of the Gap Sites, subject to reasonable wear and tear. Nothing in this Section 10.11 (Use of Gap Sites) is intended to pre-determine whether Supplier services relating to a Material Move constitute a Non-Recurring Initiative or are included within the Services.

Gap also reserves the right to direct Supplier to cease using all or part of the space in a Gap Site from which the Services are then being provided by Supplier and to thereafter use such space for its own purposes. In such event, Gap shall reimburse Supplier for any reasonable incremental costs incurred by Supplier as a result of such direction; provided that such direction is not expressly contemplated in this Agreement and that Supplier notifies Gap of such additional incremental costs and uses commercially reasonable efforts to minimize such costs.

10.12

Damage to Gap Facilities, Buildings, or Grounds

Supplier shall repair, or cause to be repaired, at its own cost, any and all damage to Gap Sites caused by Supplier or Supplier Personnel. Such repairs shall be made immediately after Supplier has become aware of such damage, but in no event later than thirty (30) days after the occurrence. If Supplier fails to make timely repairs, Gap may make any necessary repairs. All costs incurred by Gap, as determined by Gap, for such repairs shall be repaid by Supplier by cash payment upon demand, or without limitation of all Gap's other rights and remedies provided by law or under this Agreement, Gap may deduct such costs from any amounts due to Supplier from Gap under this Agreement.

10.13

Use of Supplier Service Locations

During the Term, Supplier will provide to Gap at no charge (i) temporary access to and reasonable use of Supplier Service Locations, and (ii) temporary access to reasonable work/conference space at Supplier Service Locations for Gap to exercise its rights under this Agreement, subject to Gap's compliance with Supplier's posted security policies and procedures while at such facilities. The facilities provided by Supplier for the use of Gap will be generally comparable to the standard space then occupied by similarly-situated Supplier employees.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

11.

Data Backup and Disaster Plan

11.1

Data Backup

Supplier shall back-up all Gap Data as provided in the applicable Functional Service Area Statements of Work.

11.2

Disaster Plan

Supplier shall maintain and implement disaster avoidance procedures as required pursuant to Section 3 (Disaster Recovery Services) of Exhibit A.2 (Cross Functional Services). The Disaster and Recovery Plan for Supplier Service Locations shall be reviewed and updated during the Term to conform with ISO 9000 standards. Supplier shall notify Gap of the completion of the ISO 9000 annual compliance certification or audit, and make such certification or audit available to Gap or its designee for review. Recommendations of new technology by Supplier's or Gap's communications, equipment, and uninterruptible power supply vendors shall also be reviewed on a regular basis and be included in Supplier's planning process as appropriate.

11.3

Disaster Avoidance

As to those Supplier Service Locations (other than Gap Sites), Supplier shall maintain disaster avoidance procedures designed to safeguard the Gap Data and the availability of the Services, throughout the Term. Such disaster avoidance procedures include, but are not limited to, the following:

A. Physical Security

Access to Supplier Service Locations shall be strictly controlled by Supplier. An electronic badge system or other appropriate systems will be maintained and utilized by Supplier to control access to Supplier Service Locations. *. In addition, Supplier shall, on a twenty-four (24) hours a day, seven (7) days a week basis, monitor Supplier Service Locations access. Supplier shall also (to the extent such acts do not violate any union agreement) maintain, to the extent Supplier deems necessary, operational video cameras to monitor the main entrance, parking facilities, and critical areas within Supplier Service Locations twenty-four (24) hours a day, seven (7) days a week.

B. Fire Protection

As to Supplier Data Center(s), fire detection, containment, and fire suppression systems and processes shall meet Supplier, Industrial Risk Insurers (IRI), and National Fire Protection Association (NFPA) requirements and shall be regularly reviewed and updated.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

C. Power Supply

As to Supplier Data Center(s), Supplier shall maintain two levels of power backup designed to provide uninterrupted operation of Supplier Data Center(s) and equipment located in such Supplier Data Center(s) in the event of a loss of power. Supplier Data Center(s) will also have EPS generation as a second source of backup power.

D. Equipment/Air Conditioning

As to Supplier Data Center(s), Supplier shall maintain two (2) levels of protection against loss of cooling, including a primary backup system and a secondary backup system that shall be capable of providing continuous cooling during a power outage.

E. Hardware and Software Changes

Supplier shall strictly comply with the Change Management procedures as set forth in Section 5 (Change Management) of Exhibit A.2 (Cross Functional Services), and shall ensure that Supplier Personnel are familiar with such procedures and that such procedures are used for both hardware and software Changes.

As to the Gap Data Centers occupied by Supplier, Supplier shall be vigilant of the Disaster avoidance services and systems provided by Gap or third party suppliers on behalf of Gap; and report in writing to Gap issues known by Supplier to create a physical risk to the Data Center of the personnel working therein.

11.4

Disaster Recovery

Supplier shall maintain disaster recovery plans to be used in the event of any unplanned interruption of the operations of, or accessibility to, the Gap IT Environment throughout the Term in accordance with Section 3 (Disaster Recovery Services) of Exhibit A.2 (Cross Functional Services).

11.5

Public Telecommunications Facilities

Except as to the obligations of Supplier contained in this Agreement, Supplier shall not be responsible for corruption, damage, loss or mistransmission of data during transmission via a network transport carrier, nor shall it be responsible for the security of data during transmissions via a network transport carrier.

12.

Communications Systems and Access to Information

Supplier understands that Supplier may receive access to Gap's computers and electronic communications systems, including voicemail, email, customer databases, and internet and intranet systems (for purposes of this paragraph, "systems"). Such systems are intended for legitimate business use related to Gap's business. Supplier acknowledges that Supplier does not

Gap Confidential and Proprietary Information

have any expectation of privacy as between Supplier and Gap in the use of or access to Gap's systems and that all communications made with such systems by or on behalf of Supplier are subject to Gap's scrutiny, use and disclosure (subject to the protections of Proprietary or Confidential Information herein), in Gap's sole discretion. Gap reserves the right, for business purposes, to monitor, review, audit, interpret, access, archive and/or disclose (subject to the protections of Proprietary or Confidential Information herein) materials sent over, received by or from, or stored in any of its systems. This includes, without limitation, email communications sent by users across the internet and intranet from and to any and all domain names maintained by Gap. Gap reserves the right to override any security passwords to obtain access to Gap's Systems. Subject to the Policy and Procedures Manual provisions regarding coordination of investigations set forth in Exhibit D.1 (Gap Policies and Procedures), Supplier also acknowledges that Gap reserves the right, for legitimate business purposes related to investigations of wrongful use of Gap's systems, to search all work areas at Gap Sites (for example, offices, cubicles, desks, drawers, cabinets, computers, computer disks and files), or in cooperation with Supplier and subject to Supplier's consent, at Supplier's sites, and all personal items brought onto Gap property.

13.

Non-Exclusive Relationship

13.1

Non-Exclusivity

Notwithstanding anything else to the contrary, this Agreement shall be non-exclusive in nature, and Gap shall at all times have the right to perform any of the Services itself or to contract with a third party to perform any service included in the Services or other obligations of Supplier in this Agreement ("Migrated Service(s)"). In the event Gap contracts with a third party to perform any Migrated Service or performs such Migrated Service itself, Supplier shall reasonably cooperate with Gap and any such third party, including providing: (1) the necessary information related to the Migrated Services that Gap reasonably requests to enable Gap to draft a request for proposal(s) relating to the Migrated Services and to provide existing information to support due diligence for recipients of such request for proposal; (2) access to Supplier Service Locations being used by Supplier to provide the Services as necessary for Gap or a third party to survey the current environment being used to deliver the Migrated Service(s); (3) existing written requirements, standards, and policies for systems operations so that any developments of such third party may be operated by Supplier; (4) assistance and support services to Gap or such third party to the extent related to the Services; (5) to the extent permitted by the applicable third party agreements, access to the Gap IT Environment in connection with such Migrated Service; and (6) such information regarding the operating environment, system constraints and other operating parameters related to the Services as a person with reasonable commercial skills and expertise would find reasonably necessary for Gap or a third party to perform the Migrated Service. Gap shall require any such third party to comply with Supplier's reasonable requirements regarding operations, confidentiality, and security and Supplier shall not be required to disclose any confidential information other than as necessary to comply with the obligations of this Section, but in no event shall Supplier be

Gap Confidential and Proprietary Information

required to disclose information of a Supplier customer (other than Gap) or any Supplier cost data.

13.2

Multi-Vendor Environment

Supplier acknowledges that it will be delivering the Services in a multi-vendor environment, with Gap and the Gap Third Party Vendor(s) providing services relating to the Gap IT Environment. Effective operation of such an environment requires not only the cooperation among all service providers, including Supplier, but also collaboration in addressing service-related issues that may cross over from one service area or provider to another and related to the Services ("Cross-Over Issues"). As part of the Services, Supplier will actively provide and support tasks associated with operating and maintaining a collaborative approach to Cross-Over Issues in the same manner as if the Supplier Service relevant to the Cross-Over Issue was being provided in-house by Gap rather than by Supplier.

Supplier shall use commercially reasonable efforts to identify all work efforts and deliverables of which Supplier has knowledge, whether performed by Supplier, Subcontractors, Supplier Third Party Vendors, Gap, or the Gap Third Party Vendor(s) that may impact the delivery of the Services (the "Service Interdependency").

14.

Human Resources

As to the United States and Canada, the terms and conditions relating to human resources and transitioned employees are as set forth in Exhibit H (Human Resources). For all other countries, the terms and conditions relating to human resources and transitioned employees shall be as set forth in that country's Implementation Agreement.

15.

Statements of Work

Supplier and Gap shall execute a Statement of Work containing, at a minimum, the information set forth on Exhibit I (Form of Project Statement of Work) for any Project.

16.

Gap Authorized User Satisfaction

16.1

Baseline Gap Authorized User Satisfaction Survey

In the time frames set forth in Exhibit B.2 (Critical Deliverables), an independent third party selected by Gap shall conduct a baseline Gap Authorized User satisfaction survey for affected users at each Gap Service Location and/or Gap Site Approved by Gap measuring their satisfaction with their receipt of the Services. This Gap Authorized User Satisfaction Survey shall be mutually agreed upon by the Parties, and shall be administered as determined by the selected organization and shall be the initial baseline for measurement of user satisfaction improvement described in Section 16.2 (Gap Authorized User Satisfaction Survey).

Gap Confidential and Proprietary Information

16.2

Gap Authorized User Satisfaction Survey

Every six (6) months during the first four (4) years of the Term and annually thereafter (unless otherwise agreed in writing by the Parties), an independent third party selected by Gap shall conduct a Gap Authorized User Satisfaction Survey for each Gap Service Location and/or Gap Site. The survey shall, at a minimum, cover at least the following classes of users: (1) sample of end users of the Services and (2) all senior management of Gap. The content, scope, and method of the survey shall be consistent with the baseline Gap Authorized User Satisfaction Survey conducted pursuant to Section 16.1 (Baseline Gap Authorized User Satisfaction Survey) and the timing of the above surveys are subject to Gap's Approval. It is the goal of Supplier to increase Gap Authorized User satisfaction for each class of Gap Authorized Users. The baseline for determining the initial gap shall be the results of the surveys conducted pursuant to Section 16.1 (Baseline Gap Authorized User Satisfaction Survey). The baseline for determining subsequent gaps will be the results of the Gap Authorized User Satisfaction Survey compared to the immediately prior Gap Authorized User Satisfaction Survey. Supplier agrees that increasing measured Gap Authorized User satisfaction shall be a key performance incentive for compensation for key executives assigned to Gap's account. The costs for all Gap Authorized User Satisfaction Surveys shall be borne solely by Gap. Notwithstanding the foregoing, in the event that any Gap Authorized User Satisfaction Survey fails to meet the applicable Service Level, the cost of all surveys following such failure shall be borne solely by Supplier until the Service Level failure has been remedied by Supplier (after a survey Service Level failure is remedied Gap again shall bear the costs of the subsequent survey); provided, however, that the first Gap Authorized User Satisfaction Survey immediately following any Service Level failure shall be conducted no earlier than six (6) months, and no later than seven (7) months, after such failure.

17.

Gap Responsibilities

17.1

Obligations

During the Term, Gap shall on a timely basis and at no charge to Supplier:

A. Maintain the Gap Infrastructure Partnership Executive in accordance with Section 19.5 (Gap Infrastructure Partnership Executive).

B. Cooperate with Supplier to the extent reasonably necessary in the performance by Supplier of Supplier's obligations to offer employment to and hire the Transitioned Employees.

17.2

Interfering Acts

Supplier shall be excused from its responsibility to perform a specific obligation under this Agreement if and only to the extent such non-performance of the specific obligation is caused by Gap's breach of its performance obligation(s) under the Agreement; provided that upon the occurrence of acts or omissions by Gap in breach of Gap's performance

Gap Confidential and Proprietary Information

obligation(s) under the Agreement which have been determined by Supplier to be likely to adversely impact its ability to deliver or meet such specific obligation, Supplier shall advise Gap's Infrastructure Partnership Executive of such occurrence in writing promptly and identify the reason for Supplier's inability to perform its obligation as a result of Gap's failure to perform its obligation(s) under this Agreement. Nothing in the forgoing shall (1) relieve Supplier of any portion of liability Finally Determined by a court to be Supplier's arising from a breach of contract claim as to such failure to perform (2) preclude Gap from asserting such failure by Supplier to perform an obligation under this Agreement as a basis for Gap to terminate the Agreement for cause if subsequently discovered facts demonstrate the failure was not caused by Gap's failure to perform its obligations under this Agreement; or (3) preclude Gap from asserting such failure by Supplier to perform an obligation under this Agreement as a basis for Gap to terminate the Agreement for cause if Supplier conduct, not caused by Gap's failure to perform its obligation(s) under this Agreement, contributing to the failure is determined to be one of numerous breaches of its duties or obligations under the Agreement which in the aggregate are material as provided in Section 33.2(iii) (Termination For Cause By Gap).

17.3

Strategic Control

Gap shall retain strategic control of all aspects of the services, products and processes used in Gap's business, including decisions concerning the Services, Gap IT Environment, architecture, and technical standards. In connection with implementing such strategic control, Gap shall: (i) establish processes and designate decision-makers to exercise strategic control over the Services; and (ii) establish procedures to consult with Supplier and other suppliers when and to the extent Gap determines it to be appropriate. As part of the Services, Supplier shall provide business intelligence and analysis to Gap in connection with strategy development, assessment, and implementation strategy. All final decisions on matters relating to strategic control over the Services shall be made by Gap.

18.

Services Team

18.1

Supplier Outsourcing Relationship Executive

Supplier shall (1) present three (3) candidates from which Gap will select an individual who (from the Reference Date) shall be in charge of implementing the Services on a Full-Time basis and (2) replace this individual when required or permitted pursuant to this Section 18.1 (Supplier Outsourcing Relationship Executive) or Section 18.3 (Conduct of Supplier Personnel). Supplier's appointment of any Supplier Outsourcing Relationship Executive shall be subject to Gap's written consent. The initial Supplier Outsourcing Relationship Executive shall be *. Unless otherwise agreed by the Parties, Supplier Outsourcing Relationship Executive shall be located at 850 Cherry Avenue, San Bruno, CA 96066. Supplier shall not reassign or replace any Supplier Outsourcing Relationship Executive or Supplier Key Employees, during the * of his or her assignment unless, but in no event sooner than * from the Reference Date: (1) Supplier obtains Gap's consent in writing (with respect to Supplier Key Employees which such consent shall not be unreasonably

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

withheld) to such reassignment or replacement; or (2) the individual (a) voluntarily resigns from Supplier, or (b) is dismissed by Supplier for (i) misconduct (e.g., fraud, drug abuse, theft) or (ii) unsatisfactory performance in respect of his or her duties and responsibilities to Gap or Supplier, or (c) is removed from Supplier Personnel pursuant to Section 18.3 (Conduct of Supplier Personnel), or (d) is unable to work due to his or her death or disability, or (e) as to Supplier Key Employees (excluding Supplier Outsourcing Relationship Executive) the individual requests reassignment under compassionate circumstances (e.g. relocation of a spouse) (subparts (1) and (2) are collectively referred to as "Approved Reassignments"); provided, however, that even for Approved Reassignments, Supplier shall not reassign or replace any Supplier Technology executive or Supplier Key Employee if such reassignment or replacement would materially disrupt Gap's operation, until the completion or Gap Approved transition of any Projects to which Supplier Outsourcing Relationship Executive or Supplier Key Employee is assigned. No Approved reassignment shall occur without at least thirty (30) days (or reasonably practical under the circumstances) prior written notice to Gap.

18.2

Supplier Key Employees

As of the Initiation Date and from time to time as Gap and Supplier may agree during the Term, but no less frequently than annually, Gap and Supplier shall designate certain employees of Supplier as key employees (collectively, the "Supplier Key Employees," and individually, each a "Supplier Key Employee"). Supplier Key Employees shall be dedicated to the Gap account Full-Time. The initial Supplier Key Employees are those individuals listed in Exhibit H.2 (Critical Support Personnel) and Exhibit M (Key Employees). Except for a replacement or reassignment of Supplier Key Employees due to the occurrence of an Approved Reassignment, Supplier shall not reassign or replace any Supplier Key Employee, if such reassignment or replacement would materially disrupt Gap's operations, until the completion of any Projects to which Supplier Key Employee is assigned. No Approved Reassignment of a Supplier Key Employee shall occur without at least thirty (30) days (or as reasonably practical under the circumstances) prior written notice to Gap. *.

18.3

Conduct of Supplier Personnel

While at the Gap Service Locations, Supplier Personnel shall (1) comply with reasonable requests, standard rules, and regulations of Gap communicated to Supplier regarding personal and professional conduct (including the wearing of a particular uniform or identification badge and adhering to Gap regulations and general safety practices or procedures) generally applicable to such Gap Service Locations, and (2) otherwise conduct themselves in a businesslike manner.

Gap's Chief Information Officer or the Gap Infrastructure Partnership Executive shall have the right to Approve or request the removal of any member of Supplier�s

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

Personnel at a Gap Service Location (including, but not limited to, Supplier Outsourcing Relationship Executive, Supplier HR Representative, Supplier Key Employees, and Project Staff) assigned to perform under this Agreement. Should Gap, in its sole discretion, be dissatisfied with the performance, competence, responsiveness, capabilities, cooperativeness, or fitness for a particular task of any person assigned by Supplier to perform Services at a Gap Service Location under this Agreement (including, but not limited to, Supplier Outsourcing Relationship Executive, Supplier HR Representative, Supplier Key Employees, and Project Staff) Gap may request the replacement of that person; provided, however, before Supplier shall be required to remove such individual, Supplier shall have a reasonable opportunity to remedy such situation with Gap's Chief Information Officer or the Gap Infrastructure Partnership Executive. Supplier shall make reasonable efforts to furnish a qualified replacement within fifteen (15) business days. In the event Supplier should ever need to remove any member of Supplier's Personnel from performing services under this Agreement at a Gap Service Location, Supplier shall provide Gap with adequate notice, except in circumstances in which such notice is not possible, and shall work with Gap on a mutually agreeable transition plan so as to provide an acceptable replacement and ensure project continuity.

Supplier agrees that all Supplier Personnel assigned to performing this Agreement must have experience or suitable training and skills in the areas in which they are responsible for performing the tasks to which they will be assigned under this Agreement. In the event that the actions or inactions of Supplier Personnel create additional work in connection with the performance of the Services that would have otherwise been unnecessary in the absence of such action or inaction, Supplier shall perform all such additional work at no additional charge to Gap, unless such action or inaction is demonstrated by Supplier to be at the direction of Gap. In addition, Supplier agrees that it will take all commercially reasonable steps to assure continuity over time of the membership of the group constituting Supplier Personnel. Supplier shall promptly fill any vacancy on a Non-Recurring Initiative for which Gap is paying on a time and materials basis with personnel having qualifications comparable in the area of the Non-Recurring Initiative to those of Supplier Personnel being replaced.

18.4

Substance Abuse

Supplier agrees to immediately remove any Supplier Personnel who engage in substance abuse while on Gap Service Locations, in a Gap vehicle, or while performing Services. Substance abuse includes the sale, attempted sale, possession or use of illegal drugs, drug paraphernalia, or alcohol, or the misuse of prescription or non-prescription drugs. Supplier shall adhere strictly to its own substance abuse policy in the event of any suspected substance abuse by any Supplier Personnel. Supplier represents and warrants that Supplier and Supplier Affiliates have and will maintain a substance abuse policy and that such policy will be applicable to all Supplier or Supplier Affiliate Personnel performing Services under this Agreement. Supplier also represents and warrants that each of its Subcontractors has and will maintain a substance abuse policy and that such policy will be applicable to all employees of such Subcontractor performing Services under this Agreement.

Gap Confidential and Proprietary Information

18.5

Union Agreements and WARN Act

Supplier shall provide Gap not less than ninety (90) days written notice of the expiration of any collective bargaining agreement with unionized Supplier Personnel if the expiration of such agreement or any resulting labor dispute could potentially interfere with or disrupt the business or operations of Gap or an Authorized User or impact Supplier's ability to timely perform its duties and obligations under this Agreement, and shall meet with Gap on a weekly basis (or such other timeframe as designated by Gap) thereafter to jointly develop an appropriate contingency/risk mitigation plan.

Supplier shall not, for a period of * after the Initiation Date, cause any of the Transitioned Employees to suffer "*" as that term is construed pursuant to the WARN Act, if * could create any liability for Gap or the Gap Authorized Users, unless Supplier delivers notices under the WARN Act in a manner and at a time such that Gap or the Gap Authorized Users bear no liability with respect thereto.

* shall be responsible for any liability, cost, claim, expense, obligation or sanction attributable to any breach by * of this Section that results in * being in violation of the WARN Act or the regulations promulgated thereunder.

19.

Management And Control

19.1

Governance

Supplier shall comply with Gap's governance model as set forth on Exhibit D.2 (Governance).

19.2

Meetings

Weekly Operational Meeting

Every week, Gap's Infrastructure Partnership Executive and Supplier's Outsourcing Relationship Executive shall meet to discuss ongoing operational issues, including, any Service Level issues.

Monthly Performance Reviews

Every month, Gap and Supplier shall meet to discuss the status of the Agreement (the "Monthly Performance Reviews"). All Monthly Performance Reviews shall, at a minimum, address the issues set forth in the Monthly Performance Review Agenda attached hereto as Exhibit L (Monthly Performance Review - Standing Agenda). Gap and Supplier shall be entitled to designate specific members of its staff to attend the Monthly Performance Reviews; provided, however, the Gap Infrastructure Partnership Executive and Supplier's Outsourcing Relationship Executive shall be required to attend all Monthly Performance Reviews in person at the Gap Site designated by Gap prior to such meeting. Supplier shall

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

prepare a written report addressing the standing agenda issues and be prepared to discuss the reports and the variances, if any, from the Gap view of the same issues.

Quarterly Executive Meetings

One (1) time every calendar quarter, Gap's Chief Information Officer, Infrastructure Partnership Executive and invited executives and subject matter experts and Supplier's Industry Vice President, Outsourcing Relationship Executive, and invited executives and subject matter executives shall meet at a time and place designated by Gap (the "Quarterly Executive Meetings"). The agenda for all Quarterly Executive Meetings shall include, at a minimum, the following information: (1) a summary report of the Monthly Performance Reviews occurring since the last Quarterly Executive Meeting, (2) key items for discussion and major issues for resolution, and (3) relationship "next steps" (i.e., specific items relating to relationship management and proposed methods to derive new and/or additional value out of Supplier's and Gap's relationship).

Meetings Cumulative

The meetings set forth in this Section 19.2 (Meetings) are in addition to, and cumulative with, all other meetings set forth in a Statement of Work or otherwise requested by Gap from time to time.

19.3

Gap Policies and Procedures

Supplier shall provide all Services under this Agreement in accordance with Gap's Policies and Procedures, and to the extent it is not inconsistent with Gap's Policies and Procedures, Supplier's best practices.

19.4

Change Control Procedures

Within ninety (90) days after the Reference Date, Supplier shall deliver to Gap, for Gap's Approval, a written description of the change control procedures required pursuant to Section 5 (Change Management) of Exhibit A.2 (Cross Functional Services) (the "Change Control Procedures").

All Changes to the Gap IT Environment that would materially alter the functionality or technical environment of the Gap IT Environment shall be made pursuant to the Change Control Procedures. No Change shall be implemented without Gap's Approval except as may be necessary on a temporary basis to maintain the continuity of the Services. Supplier shall (1) schedule all Non-Recurring Initiatives and Changes so as not to unreasonably interrupt Gap's business operations, (2) prepare and deliver to Gap each month a rolling schedule for ongoing and planned Changes for the next three (3) month period, (3) monitor the status of Changes against the applicable schedule, and (4) document and provide to Gap notification (which may be given orally provided that such oral notice is confirmed in writing to Gap within

Gap Confidential and Proprietary Information

two (2) business days) of all Changes performed on a temporary basis to maintain the continuity of the Services no later than the next business day after the Change is made.

In the event information contained in any Documentation developed by Supplier under this Agreement is no longer accurate or current due to the implementation of a Change, Supplier shall, within one (1) month of the Change, revise the impacted Documentation and provide revised Documentation to Gap. The Change Control Procedures shall be included in the Procedures Manual.

19.5

Gap Infrastructure Partnership Executive

A. Gap's Infrastructure Partnership Executive for this Agreement shall be as set forth below (or his or her designee):

B. Gap shall notify Supplier in writing of any change in the name or address of Gap's Infrastructure Partnership Executive.

C. Gap's Infrastructure Partnership Executive shall be responsible for Gap's performance of its tasks under the Statements of Work.

D. Gap's Infrastructure Partnership Executive shall meet or confer with Supplier Outsourcing Relationship Executive on a regular basis.

E. Gap Infrastructure Partnership Executive shall have the right to inspect any and all Services provided by or on behalf of Supplier.

19.6

Gap Personnel

Unless otherwise stated in this Agreement, all Gap personnel assigned to this Agreement shall be under the exclusive supervision of Gap. Except as otherwise provided in this Agreement, Supplier understands and agrees that all such Gap personnel are assigned only for the convenience of Gap. Supplier hereby represents that its price and performance hereunder are based solely on the work of Supplier's personnel, except as otherwise expressly provided by this Agreement; provided, however, that nothing in this Section 19.6 (Gap Personnel) shall relieve Supplier of its obligations under this Agreement.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

20.

Data and Reports

20.1

Provision of Data

Gap shall supply to Supplier, in connection with the Services required, data in the form and on such time schedules as may be agreed upon by Gap and Supplier from time to time in order to permit Supplier to perform the Services in accordance with the Service Levels and perform all critical services.

20.2

Ownership of Gap Data

As between Gap and Supplier, all of the Gap Data is and shall remain the property of Gap and Gap shall retain exclusive rights and ownership of the Gap Data. In addition to any other rights and obligations set forth in Section 36 (Confidentiality), the Gap Data or any part of such data shall not be (1) used by Supplier for any purpose other than as required under this Agreement in connection with providing the Services, (2) disclosed, sold, assigned, leased or otherwise provided to third parties by Supplier, or (3) commercially exploited or otherwise used by or on behalf of Supplier, its officers, directors, employees, or agents, other than in accordance with this Agreement. In the event that Supplier becomes legally compelled to disclose any of the Gap Data to a court, administrative agency, or other governmental body, Supplier shall provide Gap with written notice thereof within five (5) calendar days of such event so that Gap may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, Supplier agrees to furnish only that portion of the Gap Data which is legally required to be furnished, and to exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such data.

20.3

Correction of Errors

Supplier shall (1) promptly correct any errors or inaccuracies in the Gap Data and the Reports caused by Supplier, its agents or subcontractors and (2) identify Service Level issues caused by any errors or inaccuracies in the Gap Data.

20.4

Return of Data

Upon request by Gap, Supplier shall, as identified by Gap, (1) promptly return to Gap, in the format and on the media as reasonably requested by Gap, Gap Data and (2) erase or destroy Gap Data in Supplier's possession. Any archival tapes containing Gap Data shall be used solely for back-up purposes or as otherwise required to provide the Services.

20.5

Reports

Supplier shall provide to Gap those management and production reports described in Exhibit D.13 (Management Reports) as may be modified in writing by Supplier and Gap from time to time.

Gap Confidential and Proprietary Information

20.6

Safeguarding Client Data

Supplier shall develop security policies and procedures as provided in Sections 10.3 (Safety Procedures), 10.4 (Security Procedures), and 0 (Data Backup and Disaster Plan) and as required pursuant to Section 2 (Security) of Exhibit A.2 (Cross Functional Services) designed to protect Gap against the destruction, loss, or alteration of Gap Data which shall be no less rigorous than those maintained by Supplier for its own data and shall incorporate Gap's existing policies. Notwithstanding anything in this Agreement to the contrary, provided Supplier has performed its back-up responsibilities for Gap Data as described in Section 11.1 (Data Backup), Supplier's sole obligation shall be to restore such data or information to the most recently available electronic back-up copy.

20.7

Data Retention

Supplier shall adhere to all established Gap Data retention policies provided to Supplier by Gap. The Gap Data retention policies applicable as of the Reference Date are attached as Exhibit D.5 (Gap Record Retention Policy). Supplier shall not destroy any Gap Data in violation of a Gap Record Retention Policy without Gap's prior written authorization.

21.

Consents

21.1

Obtaining Consents

Supplier shall obtain all consents, assignments, amendments, modifications, and/or approvals necessary (1) to effectuate the proper use and/or transfer of the Intellectual Property, Equipment, Services, or any other documents, technology assets, or instruments contemplated under this Agreement by Supplier or Gap (as appropriate) and (2) to ensure the transactions contemplated by this Agreement shall not result in any default with respect to any law, rule, regulation, order, decree, license, agreement, contract, commitment or instrument to which Gap or Supplier is a party or by which Gap or Supplier is bound ((1) and (2) collectively the "Consents"). Gap will use commercially reasonable efforts to cooperate with Supplier in obtaining required Consents. Supplier shall perform all administrative activities associated with obtaining such Consents as part of the Services. Supplier shall pay the first $* of all transfer, licensing, termination, and/or other fees or expenses associated with obtaining any Consents, or terminating any licenses or agreements from Third Party Vendors as to which Supplier is unable to obtain such Consents, and Supplier and Gap shall share equally any such fees and expenses in excess of $*. Nothing in this Section 21.1 (Consents) is intended to alter the indemnity obligations of the Parties under Sections 23.3 (Supplier's Proprietary Rights Indemnity) or 23.4 (Gap's Proprietary Rights Indemnity).

21.2

Consent Remedy

If, despite documented commercially reasonable efforts, either Party is unable to obtain a Consent, then, unless and until such Consent is obtained, Supplier shall use

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

commercially reasonable efforts to identify and implement, subject to Gap Approval, such alternative approaches as are necessary and sufficient to provide the Services without such Consent. If such alternative approaches are required for a period longer than ninety (90) days following the Reference Date, the Parties will reduce the charges (1) by any additional expenses incurred by Gap to a third party in connection with Consent issues arising from such failure and (2) to reflect any Services not being received by Gap or the impact of such Service being provided by Supplier in an alternative fashion. In addition, for that Software for which Supplier is responsible as set forth in Exhibit C.7 (Financial Responsibility Matrix), if Supplier fails to obtain a Consent within ninety (90) days of the Reference Date and such failure has a material adverse impact on the Services, whether as a whole or as to any part thereof, by Gap or the Authorized Users, Gap may terminate the Agreement or any affected portion thereof without any cost or other penalty subject to the payment of Stranded Costs. Except as otherwise expressly provided herein, failure to obtain any Consent shall not relieve Supplier of its obligations under this Agreement.

21.3

Assignment of Existing Agreements

Agreements identified in Exhibit D.8 (Existing Agreements) shall be assigned to Supplier. Supplier and Gap shall enter into an Assignment and Assumption Agreement in the form attached hereto as Exhibit D.10 (Form of Assignment and Assumption Agreement) evidencing Gap's assignment and Supplier's assumption of such agreements.

22.

Software, Documentation and Intellectual Property

22.1

Gap Licenses to Supplier

A. Subject to Section 36 (Confidentiality), Gap hereby grants to Supplier, solely to provide the Services, a * of (1) the *, (2) the *, and (3) the * (the "Gap Licensed Property"). The Gap Licensed Property shall be and will remain the exclusive property of Gap (or the applicable Third Party Vendor) as appropriate.

B. Supplier shall be entitled to grant to Supplier Affiliates and Subcontractors and their respective agents, solely to assist Supplier in the provision of, or to provide, the Services, a *.

C. Upon the later of: (a) expiration of this Agreement or termination of this Agreement for any reason or (b) the completion of all Termination Assistance Services as described in Section 34 (Termination/Expiration Assistance Services), (i) the license rights granted to Supplier, Supplier Affiliates, Subcontractors and their respective agents in this Section

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

shall immediately terminate, and (ii) Supplier shall (a) deliver to Gap, at no cost to Gap, a current copy of all of the Gap Licensed Property in the form in use as of the date of such termination and (b) destroy or erase all other copies of the Gap Licensed Property in Supplier's or its Affiliates' or Subcontractors' or their respective agents' possession, provided that Supplier may retain one (1) archival copy solely as a record of its services or for use as evidence in the event of a dispute between the Parties.

22.2

Gap Owned Intellectual Capital

A. The Gap Owned Intellectual Capital shall be and will remain the exclusive property of Gap (or the applicable Third Party Vendor) as appropriate and subject to Section 22.3 (Joint Patent and Patent License Rights) below. In consideration of the payments made pursuant to Section 27 (Invoices and Payments) and in addition to Gap's rights under Section 22.10 (Works Made for Hire), Supplier hereby assigns and agrees to assign, and Gap accepts and agrees to accept, all *. Notwithstanding the two proceeding sentences or any other provision(s) in this Agreement, Gap acknowledges and agrees that the Gap Owned Intellectual Capital may include *, all of the preceding which will be or remain the exclusive property of Supplier, and the sole rights of Gap to such items will be the applicable licenses from Supplier to Gap set forth in Section 22.4 (Supplier Embedded Items and Supplier Modified Items) below.

B. At Gap's expense, Supplier further agrees to provide, and agrees to cause its employees, Affiliates, Subcontractors and agents to provide, to Gap, assistance to enable Gap to perfect, for the benefit of Gap, * that is granted in the second sentence of this Section 22.2 and in Section 22.10 (Works Made for Hire). Such assistance shall include, but not be limited to:

(1) signing patent and copyright applications, oaths or declarations, grants, assignments, and acknowledgments, in favor of Gap, as well as such ancillary and confirmatory documents as may be required or appropriate, to enable title in the Gap Owned Intellectual Capital to be clearly and, subject to Supplier's ownership rights in Supplier Embedded Items, exclusively vested in Gap, within the United States and any and all foreign countries; provided, however, Gap is responsible for preparing such documentation, and

(2) upon the request of Gap, furnishing all relevant information and documentation in the possession of Supplier and not otherwise reasonably available to Gap, including information and documentation

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

required by Gap for submission to the United States Patent and Trademark Office and/or to the United States Copyright Office.

C. Upon adequate notice by Gap and at Gap's expense, Supplier also shall make commercially reasonable efforts to make available to Gap at reasonable times and places for interviewing purposes, necessary employees or agents of Supplier, in order that Gap might obtain information relating to the application for and prosecution of such right, title and interest in Gap Owned Intellectual Capital. Supplier also agrees to secure from each of its employees, Affiliates, Subcontractors or agents, to the extent necessary and upon the request of Gap, the assignment of the above-mentioned right, title and interests in Gap Owned Intellectual Capital, as well as the execution of all papers submitted relating to the application for and prosecution of such rights.

D. During the Term, Gap hereby grants to Supplier, solely to perform the Services (and * in Deliverables, Gap Intellectual Property, Gap Software, and/or Gap Documentation), a *. Supplier shall be entitled to grant to Supplier Affiliates and Subcontractors and their respective agents, solely to assist Supplier in the provision of, or to provide, the Services, a *. Unless a separate agreement relating to Supplier's use of the Gap Owned Intellectual Capital is entered into between the Parties, upon expiration of this Agreement or termination of this Agreement for any reason, the rights granted to Supplier in this Section 22.2 (Gap Owned Intellectual Capital) shall terminate, subject to Section 34 (Termination/Expiration Assistance Services) and subject to Supplier's rights in Gap Customer Intellectual Property, Gap Customer Documentation, and Gap Customer Software, and Supplier shall (i) deliver to Gap, at no cost to Gap, a current copy of all such Gap Owned Intellectual Capital in the form in use by Supplier in connection with the performance of the Services as of the date of such expiration or termination and (ii) destroy or erase all other copies of the Gap Owned Intellectual Capital which is and will remain the exclusive property of Gap and any related documentation in Supplier's possession; provided that Supplier may retain one (1) archival copy solely as a record of its services or for use as evidence in the event of a dispute between the Parties. Supplier's obligations herein shall survive termination or expiration of this Agreement for any reason.

Gap hereby grants to Supplier for its internal use only, a *.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

E. In the event any rights, title or interests of Gap to Gap Owned Intellectual Capital granted by Supplier to Gap pursuant to this Section 22.2 (Gap Owned Intellectual Capital) are Finally Determined to be invalid, Supplier grants to Gap, during the Term and upon termination or expiration of this Agreement for any reason, a *, provided, however, nothing in this Section requires Supplier to grant a license to Gap to which it does not have the underlying rights to grant such license.

22.3

Joint Patent and Patent License Rights

A. Any inventions and patents in such inventions developed pursuant to the * will be jointly owned by the Parties without the need for accounting and without any Excluded Field (defined below) restriction. For purposes of this Agreement, "invention" (whether or not capitalized) shall mean any idea, design, concept, technique or improvement that constitutes patentable subject matter and is first conceived and reduced to practice in the course of performance under this Agreement.

B. Except as to the Excluded Field (defined below), as to * in which Supplier has a *, Gap and Supplier shall jointly own such *.

C. As to the Excluded Field, unless otherwise agreed by the Parties in a separate written agreement, Supplier is * as to any inventions and patents in such inventions under this Section, but will * provided herein. "Excluded Field" shall mean *.

D. As to * (i) in which Supplier has a *, and (2) for which the *, Gap grants Supplier, subject to Supplier's compliance with the terms of this license:

(1) for its internal use only, a nonexclusive, nontransferable, worldwide, perpetual, irrevocable, paid-up, license to use, have used, make, have made, import, export, and to practice and have practiced methods on all such * and the right to grant sublicenses of the same scope to Supplier Affiliates;

(2) the license granted in subsection D(1) above shall be modified by eliminating the "internal use only" restriction with respect to Suppliers right to use a separate function of such * for which the * of

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

that separate function is *, and the right to grant sublicenses of the same scope to Supplier Affiliates.

E. The Parties agree that in the event * becomes strategic to Gap, each will, in good faith, discuss the prospective expansion of the Excluded Field to include the *.

F. As to any jointly owned patents, separate exploitation of such jointly owned patents by either Party shall be subject to each parties indemnity obligations as set forth in Sections 23.3 (Supplier's Proprietary Rights Indemnity) and 23.4 (Gap's Proprietary Rights Indemnity).

G. Nothing in this Section requires Gap to grant a license to Supplier to which it does not have the underlying rights to grant such license.

H. The Parties acknowledge and agree that, subject to (i) all applicable patents, copyrights, trademarks, or service marks and (ii) the intellectual property rights of the Parties as expressly provided in this Agreement, any idea, design, concept, technique, discovery or improvement developed in the course of performance under this Agreement may be freely used by either Party. For the avoidance of doubt, nothing in this Section 22.3(H) waives, limits, or otherwise modifies the Parties respective rights and obligations under Section 36 (Confidentiality) of this Agreement.

22.4

Supplier Embedded Items and Supplier Modified Items

As to (1) Embedded Supplier Proprietary Software, Embedded Supplier Third Party Software, Embedded Supplier Proprietary Documentation, Embedded Supplier Third Party Documentation, Embedded Supplier Third Party Intellectual Property, and/or Embedded Supplier Proprietary Intellectual Property (individually each, and collectively all, the "Supplier Embedded Items"), or (2) Supplier Modified Software, Supplier Modified Documentation, and/or Supplier Modified Intellectual Property (individually each, and collectively all, the "Supplier Modified Items"), Supplier hereby grants to Gap, during the Term and upon termination or expiration of this Agreement for any reason, a *, provided Supplier Embedded Items and/or Supplier Modified Items are not * and (1) as to Supplier Modified Items, the use of and right to such items shall (i) be consistent with the * (ii) be used to the extent necessary to perform of have performed on its behalf, *, and (iii) to the extent such Supplier Modified Items are used by a third party to provide the services comparable to the Services, the right to use such Supplier Modified Items shall expire, as to such third party's use, * following conclusion of the Termination Assistance Services, and (2) as to Supplier Embedded Items, such items *

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

*. Except as provided for in this Section, Supplier grants no other license rights to Supplier Embedded Items and/or Supplier Modified Items. In addition, with regard to any derivative works of the Gap Owned Intellectual Capital, any Deliverable, Gap Intellectual Property, Gap Software, and/or Gap Documentation created by Gap, or with regard to any functional module thereof, Gap's rights with regard to Supplier Embedded Items and/or Supplier Modified Items shall be limited to the license grant in this Section 22.4 (Supplier Embedded Items and Supplier Modified Items). Supplier Embedded Items and/or Supplier Modified Items shall remain the sole and exclusive property of Supplier or its Subcontractors.

22.5

Supplier Proprietary Software and Supplier Third Party Software

Supplier Proprietary Software shall be and shall remain the exclusive property of Supplier, and Supplier Third Party Software shall be and remain the exclusive property of licensors to Supplier. Supplier hereby grants to Gap during the Term and for a period of * after the transition period set as forth in Section 34.3 (Termination Transition Period), solely to receive and use the Services, a * to Supplier Proprietary Software and Supplier Third Party Software used in connection with the Services. Notwithstanding the foregoing, Supplier shall transfer the Generally Available Supplier Proprietary Software (and related Documentation) then being used at the end of the Term, and Generally Available Supplier Third Party Software (and related Documentation) then being used at the end of the Term, to Gap subject to the standard license terms and conditions associated with such Generally Available Supplier Proprietary Software and Generally Available Supplier Third Party Software (as applicable) and at no additional cost (including any transfer, assignment or license fees); provided, however, Gap will be required to pay the ongoing license fees associated with licenses that are not one-time charge or perpetual licenses and, with respect to any Gap-requested ongoing maintenance and support, will also pay all fees in accordance with the standard licensing terms. Gap agrees to use commercially reasonable efforts to complete its transition from Supplier Proprietary Software during the Termination Transition Period.

22.6

Supplier Proprietary Documentation and Supplier Third Party Documentation

Supplier Proprietary Documentation shall be and shall remain the exclusive property of Supplier, and Supplier Third Party Documentation shall be and remain, the exclusive property of licensors to Supplier. Supplier hereby grants to Gap during the Term and for a period of * after the transition period set as forth in Section 34.3 (Termination Transition Period), solely to receive and use the Services, a * to Supplier Proprietary Documentation and Supplier Third Party Documentation used in connection with the Services. Gap agrees to use commercially

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

reasonable efforts to complete its transition from Supplier Proprietary Documentation during the Termination Transition Period.

22.7

Supplier Proprietary Intellectual Property and Supplier Third Party Intellectual Property

Supplier Proprietary Intellectual Property shall be and shall remain the exclusive property of Supplier, and Supplier Third Party Intellectual Property shall be and remain the exclusive property of licensors to Supplier. Supplier hereby grants to Gap during the Term and for a period of * after the transition period set as forth in Section 34.3 (Termination Transition Period), solely to receive and use the Services, a * to Supplier Proprietary Intellectual Property and Supplier Third Party Intellectual Property. Gap agrees to use commercially reasonable efforts to complete its transition from Supplier Proprietary Intellectual Property during the Termination Transition Period.

22.8

Supplier Reference Intellectual Property

Supplier Reference Intellectual Property shall be and shall remain the exclusive property of Supplier. Supplier hereby grants to Gap during the Term, solely to receive and use the Services, a * to Supplier Reference Intellectual Property.

22.9

License Restriction

The licenses granted by Supplier to Gap pursuant to each of Sections 22.5 (Supplier Proprietary Software and Supplier Third Party Software), 22.6 (Supplier Proprietary Documentation and Supplier Third Party Documentation), and 22.7 (Supplier Proprietary Intellectual Property and Supplier Third Party Intellectual Property) with respect to Supplier Software, Supplier Documentation and Supplier Intellectual Property (collectively, "Supplier Tools") do not include the right of Gap to modify, alter or create derivative works thereof. Supplier does not grant to Gap any license or other rights in any "*" other than the licenses or other rights granted in this Section 21.3 (Software, Documentation and Intellectual Property).

22.10

Works Made For Hire

In addition to rights granted by Supplier to Gap elsewhere in this Agreement, and subject to the license rights granted to Supplier herein, the following interests in copyright shall vest in Gap with respect to the Gap Owned Intellectual Capital:

A. All Gap Owned Intellectual Capital that is first created and prepared by Supplier under this Agreement that are covered by the definition of a �work made

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

for hire� under 17 U.S.C. � 101 of the U.S. Copyright Act of 1976 will be considered a "work made for hire," and Gap will be deemed the sole author and owner of all copyrights in any such works.

B. With respect to all Gap Owned Intellectual Capital that is first created and prepared by Supplier under this Agreement that are not covered by the definition of a "work made for hire" under 17 U.S.C. � 101 of the U.S. Copyright Act of 1976, such that Supplier would be regarded as the copyright author and owner, Supplier hereby assigns and agrees to assign to Gap, and Gap accepts and agrees to accept, Supplier's entire right, title, and interest in and to such works, including all copyrights therein.

C. Supplier further agrees to execute, or cause to be executed by its employees, Affiliates, Subcontractors or agents, whatever assignments of copyright and ancillary and confirmatory documents that may be prepared by Gap and required or appropriate so that title to any Gap Owned Intellectual Capital under subparagraphs (A) and (B) above and to the copyright therein will be clearly and exclusively held by Gap or any nominee thereof.

23.

Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity

23.1

Authority to License and Non-Infringement

A. Each Party warrants that it has full power and authority to grant the rights granted by this Agreement to the other Party, and that no consent of any other person or entity is required by either Party to grant such rights (other than consents that have been or will be timely obtained and are valid and in effect).

B. Each Party further warrants that neither its performance of this Agreement, nor its grant of a license to, or the use by, the other Party of (i) in the case of Supplier and except as expressly provided in subpart B of this Section 23.1 (Authority to License and Non-Infringement), the Services, Supplier Equipment, Supplier Software, Supplier Documentation, Supplier Intellectual Property, Supplier Modified Documentation, Supplier Modified Software, Supplier Modified Intellectual Property, and the Gap Owned Intellectual Capital, and (ii) in the case of Gap, the Gap Software, the Gap Equipment, the Gap Documentation, and the Gap Intellectual Property, will in any way violate any non-disclosure and/or non-use agreement, nor constitute an infringement or other violation of any copyright, trade secret, trademark, service mark, patent, invention, proprietary information, or other rights of any third party; provided, however, the warranty obligations set forth in this subpart B of this Section 23.1 (Authority to License and Non-Infringement) shall: (1) as to Supplier, be subject to Supplier Infringement Exclusions set forth in Section 23.3D (Supplier Infringement Exclusions) and, (2) as to Gap, be subject to the Gap Infringement Exclusions set forth in Section 23.4D (Gap Infringement Exclusions).

C. Neither Party's warranty obligations set forth in subpart B of this Section 23.1 (Authority to License and Non-Infringement) nor its infringement indemnity

Gap Confidential and Proprietary Information

obligations set forth in Sections 23.3 (Supplier's Proprietary Rights Indemnity) and 23.4 (Gap's Proprietary Rights Indemnity) shall apply to Generally Available Software (and accompanying Documentation) purchased from a third party and subject to a separate license agreement (e.g., Microsoft NT, Sun Solaris, HP Open View) or Generally Available Equipment purchased from a third party pursuant to a separate purchase agreement, but only to the extent a similar non-infringement warranty or, if such a warranty cannot be obtained through commercially reasonable efforts on the part of Supplier, a warranty that is standard in the industry for the same or similar software or equipment, is made in such license or purchase agreement and such warranty can be applied and/or assigned to Gap or Supplier (as applicable).

23.2

Quiet Enjoyment

Supplier represents and warrants that this Agreement is neither subject nor subordinate to any right or claim of any third party, including, without limitation, Supplier's creditors. Further, Supplier represents and warrants that during the Term (including in connection with any assignment permitted under Section 39.1 (Assignment)), it will not subordinate this Agreement or any rights hereunder to any third party without the prior written consent of Gap, and without providing in such subordination instrument for non-disturbance of Gap's use of the Services, Supplier Equipment, and Supplier Software in accordance with this Agreement.

23.3

Supplier's Proprietary Rights Indemnity

Indemnification

(1) At Supplier's expense and as described herein, Supplier agrees to defend and indemnify (as set forth in (2) below) Gap, its Affiliates, and its subcontractors (and their respective directors, officers, agents, and employees) from and against any third party claims, actions, or proceedings and liability, damages, costs, or expenses, arising under such third party claims, actions, or proceedings, that the (i) Services, (ii) Supplier Software (subject to Section 23.1C above, (iii) Supplier Documentation (subject to Section 23.1C above), (iv) Supplier Intellectual Property (including jointly owned patents under this Agreement to the extent any such third party claims, actions, or proceedings and liability, damages, costs, or expenses arising from the separate exploitation by Supplier), (v) Supplier Modified Intellectual Property, (vi) Supplier Modified Documentation, (vii) Supplier Modified Software, (viii) Supplier Equipment (subject to Section 23.1C above), (ix) Gap Owned Intellectual Capital, or (x) the modifications made by Supplier to the Applications (to the extent such modifications caused such infringement) (individually each, and collectively all, of the items listed in (i) through (x) above are referred to in this Section as the, or a, "Supplier Infringement Trigger"): (i) infringes upon or otherwise violates any copyright, trademark, service mark, patent or misappropriates the trade secrets of any third party; or (ii) that Gap's use (as permitted by this Agreement) of Supplier Infringement Trigger otherwise violates or misappropriates any copyright, trade secret, trademark, service mark, or patent of any third party (collectively referred to for purposes of this

Gap Confidential and Proprietary Information

Section 23 (Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity) as "Supplier Infringement Claim(s)").

(2) Supplier shall pay all amounts that a court finally awards to such third party, or that Supplier, as provided in Section 23.5 (Conditions to Indemnity Obligations), agrees to in settlement with such third party of any such Supplier Infringement Claim(s), as well as any and all reasonable attorneys' fees and costs of investigation arising from such Supplier Infringement Claim(s) incurred by Gap or any other party indemnified under this Section 23.3 (Supplier's Proprietary Rights Indemnity) associated with such Supplier Infringement Claim and incurred prior to Supplier's assumption of the defense against any Supplier Infringement Claim. After Supplier assumes the defense against any Supplier Infringement Claim in accordance with this Section, Supplier shall not be responsible for the payment of expenses or charges incurred by Gap in connection with such Supplier Infringement Claim, except

(a) to the extent Supplier pre-approves any such charge or expense after Supplier assumes control of the defense of such Supplier Infringement Claim, provided such approval by Supplier is not to be unreasonably withheld; or

(b) charges or expenses incurred by Gap in connection with the cooperation by any Gap employee with Supplier's defense to the extent such cooperation materially disrupts or interferes with the performance of such employee's job, in which case Supplier shall reimburse Gap for the employee's actual expenses and time at a rate to be agreed to by the Parties in advance.

Continued Right to Use

Gap also agrees that, if its use of Supplier Infringement Trigger, or any part thereof becomes, or in Supplier's opinion is likely to become, the subject of a Supplier Infringement Claim(s), Gap will permit Supplier, at Supplier's option and expense for all associated costs, either to timely procure the right for Gap to continue to use Supplier Infringement Trigger, or part thereof, or to timely replace or modify Supplier Infringement Trigger with another item of comparable quality and performance capabilities to become non-infringing, provided such replacement or modification allows Supplier to provide the Services in accordance with this Agreement, including the Service Levels. If such replacement causes an increase in Gap's expenditure of time or resources in connection with the Services, the Charges will be equitably adjusted. If Supplier is unable, after exercising diligent efforts, to procure the above referenced rights, or modify or replace the Infringement Trigger, Supplier may discontinue use of the Infringement Trigger but shall not be excused from any of its obligations under this Agreement.

Gap Confidential and Proprietary Information

Remedial Acts

In the event (i) Gap's ongoing use of Supplier Infringement Trigger, or any part thereof, is the subject of any action by a third party arising from a Supplier Infringement Claim that would preclude or impair Gap's use of Supplier Infringement Trigger as provided for under this Agreement, or any part thereof, (e.g., an injunction prohibiting or limiting use), or (ii) if Gap's continued use of Supplier Infringement Trigger as provided for under this Agreement, or any part thereof, may subject it to damages or statutory penalties, Gap shall give prompt written notice to Supplier of such fact(s). Upon notice of such facts, Supplier shall use commercially reasonable efforts to: (i) procure the right for Gap to continue to use Supplier Infringement Trigger, or part thereof, or (ii) replace or modify Supplier Infringement Trigger, with another system or components of comparable quality and performance capabilities to become non-infringing. If Supplier fails to complete the remedial acts set forth above within sixty (60) days of the date of the written notice from Gap and Gap's ongoing use of Supplier Infringement Trigger remains impaired, Gap shall have the right to take such remedial acts that are commercially reasonable to mitigate any impairment of its use of Supplier Infringement Trigger (hereafter referred to as "Gap's Remedial Acts"). Supplier shall credit Gap for all documented commercially reasonable amounts paid by Gap to implement Gap's Remedial Acts. All such amounts shall be credited to Gap on the monthly invoice immediately following Gap's demand for such credit. Failure by Supplier to credit such amounts as set forth above shall, in addition to, and cumulative to all other remedies available to Gap under this Agreement, entitle Gap to immediately withhold payments due to Supplier under this Agreement up to the amount to be credited under this Section. In the case where there will be no further invoices, Supplier will pay the amount of the credits to Gap within forty-five (45) days after (1) the end of the last month of the Term or (2) the effective date of termination or expiration of this Agreement for any reason.

Supplier Infringement Exclusions

Supplier shall have no obligation under this Section 23 (Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity) with respect to any Supplier Infringement Claim to the extent such Supplier Infringement Claim is Finally Determined to be caused by: (i) modifications to Supplier Infringement Trigger, or any part thereof, made by Gap, its Affiliates, or their respective agents (except as directed, authorized, or approved by Supplier); (ii) combination or use of Supplier Infringement Trigger, or any part thereof, with products, data, equipment or software not provided by Supplier; (iii) Supplier's compliance with Specifications or written direction provided by Gap, including Gap's business processes that Supplier utilizes in connection with the performance of the Services; (iv) use by Gap of Supplier Infringement Trigger, or any part thereof, after Supplier has provided modifications to Gap (at no cost to Gap) that would have avoided the allegedly infringing activity, or (v) the Gap Owned Intellectual Capital, Gap Software, Gap Documentation, or Gap Intellectual Property in which the basis of Supplier Infringement Claim(s) existed prior to the Reference Date ((i), (ii), (iii), (iv) and (v) above are collectively referred to herein as the "Supplier Infringement Exclusions").

Gap Confidential and Proprietary Information

23.4

Gap's Proprietary Rights Indemnity

Indemnification

(1) At Gap's expense and as described herein, Gap agrees to defend and indemnify (as set forth in (2) below) Supplier, its Affiliates, and its Subcontractors (and their respective directors, officers, agents, and employees) from and against any third party claims, actions, or proceedings and liability, damages, costs, or expenses, arising under such third party claims, actions, or proceedings, that the (i) Gap Software (subject to Section 23.1C above), (ii) Gap Documentation (subject to Section 23.1C above), (iii) Gap Intellectual Property (including jointly owned patents under this Agreement to the extent any such third party claims, actions, or proceedings and liability, damages, costs, or expenses arising from the separate exploitation by Gap), or (iv) Gap Equipment (subject to Section 23.1C above) (individually each, and collectively all, of the items listed in (i) through (iv) above are referred to in this Section as the, or a, "Gap Infringement Trigger"): (i) infringes upon or otherwise violates any copyright, trademark, service mark, patent or misappropriates the trade secrets of any third party; or (ii) that Supplier's use (as permitted by this Agreement) of the Gap Infringement Trigger otherwise violates or misappropriates any copyright, trade secret, trademark, service mark, or patent of any third party (collectively referred to for purposes of this Section 23 (Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity) as "Gap Infringement Claim(s)").

(2) Gap shall pay all amounts that a court finally awards to such third party or that Gap, or as provided herein Supplier, agrees to in settlement with such third party of any such Gap Infringement Claim(s), as well as any and all reasonable attorneys' fees and costs of investigation arising from such Gap Infringement Claim(s) incurred by Supplier or any other party indemnified under this Section 23.4 (Gap's Proprietary Rights Indemnity) associated with such Gap Infringement Claim and incurred prior to Gap's assumption of the defense against any Gap Infringement Claim. After Gap assumes the defense against any Gap Infringement Claim in accordance with this Section, Gap shall not be responsible for the payment of expenses or charges incurred by Supplier in connection with such Gap Infringement Claim, except

(a) to the extent Gap pre-approves any such charge or expense after Gap assumes control of the defense of such Gap Infringement Claim, provided such approval by Gap is not to be unreasonably withheld; or

(b) charges or expenses incurred by Supplier in connection with the cooperation by any Supplier employee with Gap's defense to the extent such cooperation materially disrupts or interferes with the performance of such employee's job, in which case Gap shall reimburse Supplier for the employee's actual expenses and time at a rate to be agreed to by the Parties in advance.

Gap Confidential and Proprietary Information

Continued Right to Use

Supplier also agrees that, if its use of the Gap Infringement Trigger, or any part thereof becomes, or in Gap's opinion is likely to become, the subject of an Gap Infringement Claim(s), Supplier will permit Gap, at Gap's option and expense for all associated costs, either to timely procure the right for Supplier to continue to use the Gap Infringement Trigger, or part thereof, or to timely replace or modify the Gap Infringement Trigger with another item of comparable quality and performance capabilities to become non-infringing, provided such replacement or modification allows Gap to continue meeting its obligations under this Agreement. If such replacement causes an increase in Supplier's expenditure of time or resources to deliver the Services, the Charges will be equitably adjusted. If Gap is unable, after exercising diligent efforts, to procure the above referenced rights, or modify or replace the Infringement Trigger, Gap may discontinue use of the Infringement Trigger but shall not be excused from any of its obligations under this Agreement.

Remedial Acts

In the event (i) Supplier's ongoing use of the Gap Infringement Trigger, or any part thereof, is the subject of any action by a third party arising from a Gap Infringement Claim that would preclude or impair Supplier's use of the Gap Infringement Trigger as provided for under this Agreement, or any part thereof, (e.g., an injunction prohibiting or limiting use), or (ii) if Supplier's continued use of the Gap Infringement Trigger as provided for under this Agreement, or any part thereof, may subject it to damages or statutory penalties, Supplier shall give prompt written notice to Gap of such fact(s). Upon notice of such facts, Gap shall use commercially reasonable efforts to: (i) procure the right for Supplier to continue to use the Gap Infringement Trigger, or part thereof, or (ii) replace or modify the Gap Infringement Trigger, with another system or components of comparable quality and performance capabilities to become non-infringing. If Gap fails to complete the remedial acts set forth above within sixty (60) days of the date of the written notice from Supplier, and Supplier's ongoing use of the Gap Infringement Trigger remains impaired, Supplier shall have the right to take such remedial acts that are commercially reasonable to mitigate any impairment of its use of the Gap Infringement Trigger (hereafter referred to as "Supplier's Remedial Acts"). Gap shall pay Supplier for all documented commercially reasonable amounts paid by Supplier to implement Supplier's Remedial Acts. Failure by Gap to pay such amounts within forty-five (45) days of invoice by Supplier shall, in addition to, and cumulative to all other remedies available to Supplier under this Agreement, entitle Supplier to exercise the payment escalation rights under Section 27.1 (Invoices and Payments � General).

Gap Infringement Exclusions

Gap shall have no obligation under this Section 23 (Authority to License, Quiet Enjoyment, Proprietary Rights and Indemnity) with respect to any Gap Infringement Claim to the extent such Gap Infringement Claim is Finally Determined to be caused by: (i) modifications to the Gap Infringement Trigger, or any part thereof, made by Supplier, its

Gap Confidential and Proprietary Information

Affiliates, or their respective agents (except as directed, authorized, or approved by Gap); (ii) combination or use of the Gap Infringement Trigger, or any part thereof, with products, data, equipment or software not provided by Gap; (iii) Gap's compliance with Specifications or written direction provided by Supplier, including Supplier's business processes; or (iv) use by Supplier of the Gap Infringement Trigger, or any part thereof, after Gap has provided modifications to Supplier (at no cost to Supplier) that would have avoided the allegedly infringing activity ((i), (ii), (iii), and (iv) above are collectively referred to herein as the "Gap Infringement Exclusions").

23.5

Conditions to Indemnity Obligations

The indemnitor's obligation to defend and indemnify the indemnitee, as applicable, pursuant to this Agreement shall be subject to indemnitee having given the indemnitor prompt written notice of the claim or of the commencement of the related action, as the case may be, and information and reasonable assistance, at the indemnitor expense, for the defense or settlement thereof. The indemnitor shall have sole control of the defense and settlement of such claim or related action, provided that the indemnitor shall not settle such claim or related action in a manner which imposes any obligation on the indemnitee without the prior written consent of the indemnitee. The indemnitee shall be entitled to engage counsel at its sole expense to consult with the indemnitor with respect to the defense of the claim and related action.

23.6

Supplier has obtained a license authorizing its use of the * (defined below) as of the Reference Date in support of its delivery of the Services following completion of transition as set forth in Exhibit D.15 (Transition-In Plan). In the event the manner of the delivery of the Services is modified after the Reference Date the foregoing representation may not apply. Notwithstanding anything in the Agreement to the contrary, * and its * shall not be liable to * or its * or be required to indemnify *, its Affiliates, and their respective officers, directors, employees, agents, successors, and assigns for any claims of * or by his or its successors or assigns (collectively, the "*"); provided, that the foregoing shall not apply to Services provided by Supplier which meet the following three criteria: (i) *; (ii) such Services must be provided solely from facilities *; and (iii) with respect to *. Neither * nor * shall be responsible in any manner, including financially responsible, for: (i) determining whether * require a *; (ii) obtaining any such *; or (iii) paying any fees relating to any such *.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

24.

Documentation

Supplier will have access to all existing Gap Documentation on the Gap Systems, all of which shall be deemed to be Proprietary or Confidential Information of Gap. On an ongoing basis, as of the Reference Date, Supplier must document the Services it provides consistent with its best practices in sufficient detail that a qualified third party could understand the nature and scope of the Services. Subject to the licenses set forth in Section 21.3 (Software, Documentation and Intellectual Property), as requested by Gap from time to time, and at no additional charge to Gap, Supplier shall provide Gap with at least three (3) copies of all Documentation developed for Gap under this Agreement or required to enable Gap to fully utilize as permitted under this Agreement, the Services, Equipment, Supplier Intellectual Property, Gap Custom Intellectual Property, and Supplier Third Party Intellectual Property at least one (1) copy of which shall be in a Gap standard electronic form. Gap's standard electronic form shall utilize generally available commercial software products. Supplier shall update and maintain all Documentation on a regular basis as appropriate to the item of Documentation. When such Documentation is revised or supplemented, Supplier shall deliver a copy of such revised or supplemental Documentation to Gap within ten (10) days of its general availability, at no cost to Gap. Gap may, at any time, reproduce copies of all Documentation provided by Supplier under this Section, distribute such copies to the Authorized Users (subject to the confidentiality and non-use provisions contained herein), and incorporate such copies into its own technical manuals and subject to Section 21.3 (Intellectual Property) and Section 36 (Confidentiality), provided that such reproduction, use and incorporation relates solely to Gap's use of the Services or the Gap IT Environment, and copyright notices of Supplier and its licensors, if any, are reproduced thereon. Gap will be responsible for the failure of any Authorized User to comply with the confidentiality and non-use provisions contained herein with respect to any such Documentation.

25.

Installation and Acceptance Tests

25.1

General

For purposes of this Section 25 (Installation and Acceptance Tests) the reference to Statements of Work shall apply only to the Deliverables pursuant to Projects.

As to Projects and Non-Recurring Initiatives, unless otherwise agreed pursuant to a Statement of Work, Supplier shall comply with the following installation and acceptance test criteria for all Statements of Work in order to confirm that the Statement of Work components satisfy the specifications set forth in a Statement of Work in all material respects. Each component of the installation and acceptance tests may not apply in all circumstances.

25.2

Installation Tests

Supplier will confirm that the installation tests have been completed.

Gap Confidential and Proprietary Information

25.3

Additional Testing

After Supplier delivers a notice of completion of the installation test to Gap, (1) Gap shall, with Supplier's assistance, perform those acceptance tests as set forth in a Statement of Work or (2) if no such tests are set forth in a Statement of Work, then Gap shall, with Supplier's assistance, perform such test as are reasonable, timely, and appropriate, including, as applicable, the following tests (individually, an "Acceptance Test" and collectively, the "Acceptance Tests"):

A. "Initial Component Testing" to determine whether the Statement of Work components have been properly installed and are operating in accordance with applicable Specifications;

B. "Integrated Test" to determine whether the Statement of Work components interface and integrate with the Gap IT Environment, and whether each such Statement of Work components operate in the approved operating configuration and in accordance with applicable specifications; and

C. "Final Test" to test the same functionality as the Integrated Test using actual data from Gap's day-to-day operations.

To the extent set forth in a Statement of Work, Supplier shall assist Gap in the performance of acceptance testing.

25.4

Failed Acceptance Testing

As to an individual Statement of Work, if Gap makes a good faith determination that a tested component and/or module has not successfully completed an Acceptance Test, Gap shall promptly notify Supplier in writing of such failure (hereinafter "Notice of Failure"), specifying with as much detail as possible the manner in which the component and/or module failed to pass an applicable Acceptance Test. Supplier shall immediately commence all reasonable efforts to complete, as quickly as possible, such necessary corrections, repairs and modifications to the applicable component and/or module as will permit the component and/or module to be ready for retesting. Supplier shall notify Gap when such corrections have been completed, and the Acceptance Tests shall begin again. If, after applicable Acceptance Tests are completed for a third time, Gap makes a good faith determination that the tested component and/or module again fails to pass the applicable Acceptance Test, Gap shall promptly notify Supplier in writing specifying in the Notice of Failure its election either to: (1) afford Supplier the opportunity to repeat the correction and modification process as set forth above, or (2) depending on the nature and extent of the failure, and the parts of the Statement of Work impacted by such failure, in Gap's sole judgment, (a) terminate that portion of the tested component and/or module associated with the Statement of Work in accordance with Section 33.2 (Termination for Cause by Gap) as a non-curable default, or (b) if the failure to pass the applicable Acceptance Test materially impacts the function to Gap of the Statement of Work as a

Gap Confidential and Proprietary Information

whole, terminate the entire Statement of Work. The foregoing correct and modify procedure shall be repeated until Supplier, based on Gap's good faith determination, passes the applicable Acceptance Test, Gap elects to terminate the tested component and/or module or Statement of Work as set forth above, or the Parties agree otherwise. In the event of a termination under this Section 25.4 (Failed Acceptance Testing), Supplier shall credit to Gap, within * of written notice of termination, *. In the event Gap retains any portion of a tested component and/or module associated with the Statement of Work, Gap shall pay Supplier for such retained tested component and/or module. In the event Gap exercises its remedies under this Section 25.4 (Failed Acceptance Tests), such remedy shall be Gap's sole and exclusive remedy for termination and damages for the failure to meet the Acceptance Tests as to such terminated tested component and/or module and/or Statement of Work (as applicable).

26.

Pricing

26.1

General

During the Term of this Agreement, Gap shall pay Supplier the fees and charges as set forth in Exhibit C (Fees and Resource Baselines) for the Services.

26.2

Non-Recurring Initiative Pricing

All Non-Recurring Initiatives require Gap Approval in accordance with Section 6 (Unapproved Work). As part of its Charges, Supplier shall perform all Non-Recurring Initiatives scoped in a Statement of Work that require * or less of billable Supplier resources as calculated on a Non-Recurring Initiative by Non-Recurring Initiative basis (provided, however, the aggregate total of all such individual Non-Recurring Initiatives shall not exceed * of billable Supplier resources during any calendar year). For individual Non-Recurring Initiatives scoped in a Statement of Work that require more than * of billable Supplier resources (or in the event the aggregate total of all such individual Non-Recurring Initiatives exceeds * of billable Supplier resources during any calendar year), Gap shall pay Supplier the Gap Approved amounts set forth in the Statement of Work at the rates specified in Exhibit C (Fees and Resource Baselines). All costs and fees related to Projects that are not Non-Recurring Initiatives are included in the Charges.

26.3

Cost of Living Adjustment

Cost of living adjustments ("COLA") shall be as provided in Exhibit C (Fees and Resource Baseline).

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

26.4

All Fees Stated

Except as provided in this Section 26 (Pricing) and Exhibit C (Fees and Resource Baselines) or as otherwise Approved in advance by Gap, there are no other rates or charges applicable to the Services provided under this Agreement.

26.5

Taxes

Definitions

(1) "Income Tax" means any (i) tax on or measured by the net income of a Party (including, without limitation, franchise taxes, gross receipts taxes, taxes on capital or net worth that are imposed as an alternative to a tax based on net or gross income and the Michigan Single Business Tax), or (ii) taxes which are of the nature of excess profits tax, minimum tax on tax preferences, alternative minimum tax, accumulated earnings tax, personal holding company tax, capital gains tax, withholding tax or franchise tax for the privilege of doing business, to the extent such taxes as set forth in (i) and/or (ii) above are imposed on such Party by any federal, state, or local government of or in the United States, any taxing authority of any possession of the United States, or any government of a foreign country, including subdivisions thereof.

(2) "Service Taxes" means all sales, lease, service, value-added, use, personal property, excise, consumption, goods and services, provincial sales, retail sales and other taxes or duties that are assessed on the provision of the Services to Gap as a whole, or on any particular Service received by Gap from Supplier; excluding, however, state and local business and occupation tax, Income Tax and other similar taxes.

Taxes

The Parties' respective responsibilities for taxes arising under or in connection with this Agreement shall be as follows:

(1) Income Tax.

(a) Each Party shall be responsible for its Income Taxes.

(b) As between Supplier and Gap under this Agreement, (i) Gap shall be responsible for the employment tax withholding, employer payroll taxes, and related reporting responsibilities with respect to its employees and Gap Affiliate employees, and (ii) Supplier shall be responsible for the employment tax withholding, employer payroll taxes, and related reporting responsibilities with respect to its employees, Supplier Affiliate employees, and Supplier Subcontractors.

Gap Confidential and Proprietary Information

(2)

Service Taxes.

(a) Except as set forth in Sections 26.5B(2)(b) and 26.5B(2)(d) below, Gap shall be responsible for the payment of all Service Taxes and new Service Taxes. In the event there is a new Service Tax that is not clearly allocated to Gap or Supplier under this Section 26.5B(2), Gap and Supplier shall work together, in good faith, to reach agreement regarding the responsibility for such new Service Tax. If Gap and Supplier are unable to reach agreement with respect to such new Service Tax, Supplier shall be responsible for and pay the amount of such tax. Supplier shall correctly invoice all applicable taxes at the time of purchase and if necessary, shall reissue any invoice, along with the appropriate tax, if it is determined, subsequent to the actual purchase date, that tax should have applied. Except as provided in Section 26.5B(2)(c)(vi), Supplier shall not provide tax-only invoices.

(b) Supplier shall be responsible for any Service Taxes and new Service Taxes on (i) Equipment or Software, or (ii) real property and/or other tangible or intangible property, in each case as to (i) and (ii), (a) it owns (or leases or rents from a third party) or (b) for which it is financially responsible under the Financial Responsibility Matrix attached as Exhibit C.7 (Financial Responsibility Matrix).

(c) Prior to agreeing to any Service Tax assessment, Supplier shall work with the Gap Tax Department in order to ensure that the proposed tax assessment is fairly and accurately determined. Supplier shall also ensure that all taxable and nontaxable components are separately stated at the time of purchase, with an adequate description for tax purposes as to the taxable nature of the items purchased. In the event that a Service Tax is assessed on the receipt of any of the Services, the Parties shall work together to segregate the payments under this Agreement into five (5) payment streams on the invoice:

those for taxable Services;

ii)

those for other nontaxable Services;

iii)

those for exempt Services;

iv)

in respect of goods, Services, or supplies where Service Tax has already been paid by Gap or Supplier;

those for which Supplier functions merely as a payment agent for Gap in receiving goods, supplies, or services (including leasing and licensing arrangements); or

Gap Confidential and Proprietary Information

vi)

To the extent that the number of taxable transactions subject to a Service Tax assessment exceeds three transactions, Supplier will provide Gap with a detailed electronic summary of any related tax-only invoices based on Gap Tax Department specifications. Such electronic summary shall be in the format set forth in Exhibit C.8.5 (Tax-Only Invoice).

(d) Supplier shall be responsible for all current and any new Service Taxes payable by Supplier on any goods or third party services acquired, used, or consumed by Supplier in providing the Services where such tax is imposed on Supplier's acquisition or use of such goods or services.

(e) Supplier shall make purchases of goods and services that are delivered or provisioned to Gap on a sale for resale basis, when applicable, so that double taxation of goods and services does not occur.

(f) Except for Federal Universal Service Fund ("USF") charges, which are included in the Charges, Gap shall be responsible for telecommunication surcharges or user fees imposed by government authorities and mandated by law or regulation that are applicable to end users; provided that in no event shall the cumulative total of such taxes (excepting USF) exceed, in any Contract Year, the following amounts:

i) as to long distance minutes, * of the Charges invoiced for long distance minutes, net of all taxes for such Services; and

ii) as to data circuits, * of the Charges invoiced for data circuits, net of all taxes for such Services.

In addition, in the event any such fee or surcharge for which Gap is responsible is or may be subsequently reduced or vacated by the appropriate government authority or court of competent jurisdiction, Supplier shall use commercially reasonable efforts to obtain on behalf of Gap a refund of any overpayment of such fee or surcharge by Gap.

Cooperation; Invoices

The Parties agree to reasonably cooperate with each other to enable each to more accurately determine its own tax liability and to minimize such liability to the

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

extent legally permissible. Supplier invoices shall separately state the amounts of any taxes (by taxing jurisdiction) Supplier is properly collecting from Gap pursuant to the terms hereof. Each Party will make available to the other Party any resale certificates, information regarding out-of-state or out-of-country sales or use of equipment, materials, or services, and other exemption certificates or information reasonably requested by the other Party. Specifically, Gap requires the following:

The total amount invoiced for Services will include any and all freight, duty, and taxes, with the exception of the following items, which, if applicable, must be identified and listed separately on Supplier invoice (i) any U.S. state or local sales or use tax imposed on the transaction; and (ii) any value-added taxes, whether based on gross receipts, income, or consumption and regardless of what such value-added taxes might be called, imposed by taxing authorities outside the United States of America ("VAT Taxes"). In the event that VAT Taxes are imposed, Supplier shall reasonably cooperate with Gap to minimize any adverse effect of such VAT Taxes, including separating the Charges into taxable and non-taxable components. For purposes of VAT invoices, Supplier shall invoice the appropriate Gap entity (such as Gap (Canada) Inc. for Canadian purposes), and shall also include the appropriate vendor registration number on each invoice as required by law.

26.6

Payment Does Not Imply Approval

The making of any payment or payments by Gap, or the receipt thereof by Supplier, shall not imply Approval by Gap of any Services or the waiver of any warranties or requirements of this Agreement.

26.7

Withhold Remedy

A. In addition to, and cumulative of all other remedies in law, at equity and provided under this Agreement or this Section 26.7 (Withhold Remedy), in the event Supplier is in default of a material duty or obligation under this Agreement and it fails to cure the default within fifteen (15) days after receipt of written notice of default from Gap setting forth with specificity the nature of the default of a material duty or obligation and the requested remedy or cure, Gap may, without waiving any other rights under this Agreement, elect to withhold from the payments due to Supplier under this Agreement during the period beginning with the 16th day after Supplier's receipt of notice of default, and ending on the date that the default has been cured to the reasonable satisfaction of Gap, but in no event shall the amount of such withhold be greater than the Charges associated with the specific Services which Gap alleged are in default or the Services that Supplier is not providing. Upon curing of the default by Supplier, Gap will cause the withheld payments to be paid to Supplier, without interest. Notwithstanding the forgoing, the amount Gap may withhold at any one time shall not in the aggregate for all disputes exceed an amount equal to Supplier's fees and charges for the * immediately preceding such withhold (the "Aggregate Withhold Amount"). Gap shall pay to Supplier any disputed fees and charges in excess of the Aggregate Withhold Amount,

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

provided that Gap shall retain any and all rights to contest its obligation to pay to Supplier such fee or charge.

B. If a dispute regarding billing is not resolved in accordance with Section 27.4 (Billing Disputes And Reports) within thirty (30) calendar days and Gap has elected not to pay the disputed amount in accordance with this Section 26.7 (Withhold Remedy), no late payment charges will apply to the disputed amount pending resolution of the claim through the procedures set forth in Section 31 (Internal Dispute Resolution). Upon resolution of the claim, Supplier shall issue to Gap any applicable credit or reinstitute the disputed amount as an amount due within thirty (30) days from the final resolution of the dispute.

26.8

Technology Changes

If a Technology Change (defined below) occurs, Gap and Supplier will identify the efficiencies, economies, and net savings resulting from such Technology Change and will, in good faith, * as to the affected Service(s). "Technology Change" shall mean a * resulting from * of (1) *; (2) *; or (3) *. For purposes of this Section 26.8 (Technology Changes), an increase in Supplier Personnel providing Services off shore or near shore by * or more shall be deemed a * change. The Parties agree that delivery by Supplier of the technology solutions detailed in *, including * shall not be deemed a Technology Change under this Section.

27.

Invoices and Payments

27.1

General

A. Supplier shall invoice Gap monthly in two separate invoices, one for the baseline Services and the second for the appropriate variable adjustments for the Services that have been provided by Supplier pursuant to the terms of this Agreement. Supplier shall not invoice Gap, and Gap shall not be obligated to pay, any charges or other invoiced amounts (including pass through expenses) that are not properly invoiced within * after the end of the period in which such charges were incurred (or, in the case of amounts charged by any Transport Services Provider, after the date of Supplier's receipt of the invoice from the Transport Services Provider), unless a request for an extension is approved in writing by the Gap Infrastructure Partnership Executive within the * window. Invoices shall be due upon receipt and payable by electronic funds transfer within forty-five (45) days of receipt by Gap. Supplier shall be permitted to invoice Gap for the baseline Services forty-five (45) days in

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

advance of the payment date for such invoice. In no event shall Supplier invoicing result in baseline Service amounts being payable prior to the end of the month Services are actually delivered. Supplier shall invoice for the variable charges in the billing period following the billing period in which the actual charges are incurred. If any undisputed amount due Supplier under this Agreement remains unpaid for more than * after the date Gap receives the invoice, then within * of written notice by Supplier, Supplier's Technical Executive and Gap's Infrastructure Partnership Executive shall meet regarding the payment of such undisputed amount; if the undisputed amount is not paid within * of Supplier's initial notice; then Supplier's Industry Vice President shall meet with Gap's Chief Information Officer regarding the payment of such undisputed amount within * of Supplier's initial notice; if the undisputed amount is not paid within * of Supplier's initial notice; then *. Gap will have the right to set off against amounts owed by Gap under the Agreement any amount Supplier is obligated to pay or credit Gap under the Agreement (included but not limited to Service Level Credits).

B. Unless otherwise stated in an Implementation Agreement, all invoices under this Agreement shall be submitted to the following address:

27.2

Invoice Summary

Supplier shall render, by means of an electronic file, a single consolidated invoice for all charges incurred each month. If Gap Affiliates are the recipients of the Services, Supplier shall first send an informational invoice to Gap world headquarters for Gap Approval. After such Gap Approval, a separate invoice shall be sent to each Affiliate directly for payment. Such informational invoice shall be conspicuously marked "Information Invoice-Do Not Pay." For purposes of calculating the payment due date, the forty five (45) day period shall commence upon receipt of the Information Invoice. Except as otherwise directed by Gap in writing, each invoice submitted by Supplier shall be substantially similar to the invoice attached hereto as Exhibit C.8 (Monthly Invoice and Invoice Sample), and shall include a summary section that includes, at minimum, the following information:

(1)

Period of time covered by the invoice;

(2)

Total invoice amount for Gap and Gap department according to Service type;

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

(3)

Current month payments;

(4)

Balance due;

(5)

Calculations utilized to establish the charges;

(6)

Identification of all pass-through expenses for the month to which the invoice corresponds;

(7)

Global activity summary, including a country-by-country breakdown that enables Gap to Approve the Charges in each individual country for the Services, including, a breakdown of chargeable units for Services, taxes, and VAT (where applicable);

(8)

Individual country invoices that enable each Gap Affiliate to pay for the Services on an country-by-county basis, including a breakdown of chargeable units for Services, taxes, and VAT (where applicable);

(9)

Identification of the amounts of any taxes Supplier is collecting from Gap in accordance with Section 26.5 (Taxes); and

(10)

Such other details and billing information as is necessary to satisfy Gap's internal accounting or as specified by Gap to meet its Sarbanes-Oxley requirements, including as necessary to allow Gap to accurately allocate charges by legal entity, business unit, department, Gap Site, Statement of Work, and/or any client.

27.3

Billing Adjustments

Supplier shall provide Gap's Infrastructure Partnership Executive with a monthly summary of credit and debit billing adjustments. The summary shall include, but not be limited to, the number and types of billing adjustments identified, the number of billing adjustments resolved, and the number and types of billing adjustments that are outstanding. Supplier shall insure that all billing debits and credits, including associated taxes, are distributed on the billing reports and the invoice and are shown at the proper hierarchy level. If a billing adjustment is found to exceed *, then Supplier shall notify Gap's Infrastructure Partnership Executive before processing the billing adjustment to the billing report and the invoice. Supplier shall process all billing adjustments on the reports and invoice. In no event shall a billing adjustment result in a net increase to any Charge invoiced more than * days after the original invoice date for that Charge.

27.4

Billing Disputes And Reports

Supplier and Gap shall exercise good faith efforts to resolve all billing disputes to their mutual satisfaction within thirty (30) calendar days; provided, however, that in the event the billing dispute relates to Services provided to Supplier by a Subcontractor and the obligation to pay for such Service is passed through by Supplier directly to Gap, the

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

aforementioned thirty (30) day period shall commence on the date Gap receives the invoice at issue from Supplier. Gap shall be entitled to withhold amounts in dispute under this Section 27.4 (Billing Disputes and Reports) in accordance with Section 26.7 (Withhold Remedy) without Supplier claiming a default of a material duty or obligation by Gap. A "billing dispute number" will be assigned by Supplier to all billing disputes. The billing dispute number will be used by Supplier and Gap on all correspondence and reports to identify the dispute. Supplier shall provide Gap's Infrastructure Partnership Executive and agency department(s) with a monthly report of the status of pending billing disputes.

28.

Limitations of Liability and Damages

28.1

Damage Recovery Exclusion

IN NO EVENT SHALL EITHER PARTY (OR A PARTY's AFFILIATES, SUBCONTRACTORS, EMPLOYEES, OFFICERS OR DIRECTORS) BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, COLLATERAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

28.2

Limitation of Liability Amount

Supplier's and Gap's (and their respective Affiliates, subcontractors, employees, officers or directors) aggregate liability for all direct damages whatsoever, arising out of this Agreement including all costs of cover, regardless of the form of the action or the theory of recovery whether in contract or tort (including breach of warranty, negligence and strict liability in tort) shall be limited, for all claims under this Agreement, to an aggregate amount equal to the total Charges paid to Supplier pursuant to this Agreement for *; provided that if the event giving rise to liability occurs during the *, liability shall be limited to an amount equal to the * (the "Damage Limit").

28.3

Exclusions

The limitations of liability and exclusions of certain damages set forth in this Section 28 (Limitations of Liability and Damages) shall not apply to claims or liability arising from:

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

*; and

28.4

Egregious Acts

For purposes of this Agreement, "Egregious Acts" shall mean *, or other similar *. As to Egregious Acts, the limitation of liability amount set forth in Section 28.2 (Limitation of Liability Amount) shall be modified as follows: Supplier's and Gap's (and their respective Affiliates, subcontractors, employees, officers or directors) aggregate liability for all direct damages whatsoever, arising out of this Agreement including all costs of cover, regardless of the form of the action or the theory of recovery whether in contract or tort (including breach of warranty, negligence and strict liability in tort) shall be limited, for all claims under this Agreement, to an aggregate amount equal to the total Charges paid to Supplier pursuant to this Agreement for the * prior to the month in which the first Primary Event giving rise to liability occurred; provided that if the event giving rise to liability occurs during the first * after the Reference Date of this Agreement, liability shall be limited to an amount equal to the total Charges to be paid to Supplier in * pursuant to this Agreement (the "Egregious Act Damage Limit"). For purposes of clarity, the Egregious Act Damage Limit is inclusive of the

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

Damage Limit set forth in Section 28.2 (Limitation of Liability Amount) above (as opposed to in addition to such Damage Limit).

In the event that at any time during the Term, the Egregious Act Damage Limit has been depleted such that the remaining Egregious Act Damage Limit as to a Party falls below an amount that is * or less of the Egregious Act Damage Limit then either (1) that Party shall agree, upon request by the other Party, by Amendment to this Agreement to reset the Egregious Act Damage Limit to an amount equal to the total Charges paid to Supplier pursuant to this Agreement for the * prior to the month in which the first Primary Event giving rise to liability occurred; or (2) in the event the Party does not agree to reset the Egregious Act Damage Limit, the other Party shall have the option to terminate this Agreement without termination fees and (i) as to Gap, the payment to Supplier of Stranded Costs and (ii) as to Supplier, the payment to Gap of an amount that would be equal to the Stranded Cost amount Supplier would receive from Gap, if Gap was terminating the Agreement for convenience as of that date.

28.5

Direct Damages

The Parties agree that the following costs and damages, if incurred by either Party, shall be deemed direct damages and neither Party shall assert, and each is estopped from asserting, that they are special, indirect, incidental, consequential or exemplary damages, lost profits or other damages for which recovery is limited or excluded:

Costs of reloading data from last available back-up;

Costs of performing work-arounds regarding a service failure;

Costs of replacing lost, stolen or damaged goods or materials for which a Party is liable;

Costs payable to an alternate source to procure replacement services from that alternate source as a result of a failure to perform, to the extent in excess of the applicable charges; and

Overtime, straight time and related expenses and allocated overhead (including travel, lodging and wages) as a result of a failure to perform or provide all or a portion of the Services incurred in connection with (A) through (D) above.

The Parties acknowledge that by defining the foregoing as direct damages, they are not precluding the recovery of other damages that may be determined by a court to be direct.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

Representations, Warranties, and Covenants

29.1

General

A. Each Party represents and warrants to the other Party that the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Party.

B. Each Party represents and warrants to the other Party that the execution, delivery, and performance of this Agreement by it will not constitute (i) a violation of any of its respective Regulatory Requirements; (ii) a violation of any judgment, order, or decree; (iii) a material default under any material contract by which it or any of its material assets are bound; or (iv) an event that would, with notice or lapse of time, or both, constitute such a default.

29.2

Performance Warranty

Supplier represents, warrants and agrees that during the Term of this Agreement, Supplier will provide the Services in accordance with the Service Levels and the Specifications.

29.3

Service

Supplier represents, warrants and agrees that all Services to be provided under this Agreement shall be performed in a professional, competent, and timely manner by appropriately qualified Supplier Personnel in accordance with this Agreement and consistent with Supplier's best practices.

29.4

Litigation Warranty

Supplier represents, warrants and agrees that as of the Reference Date there are no existing or threatened legal proceedings against Supplier that would have a material adverse effect upon its ability to perform its obligations under this Agreement or its financial condition or operations. Gap represents, warrants and agrees that as of the Reference Date there are no existing or threatened legal proceedings against Gap that would have a material adverse effect upon its ability to perform its obligations under this Agreement or its financial condition or operations.

29.5

Licensed Users and Rights to Use Software

Supplier represents and warrants that it shall acquire, maintain, and continuously update (as applicable) the type and number of license(s) required to grant Gap and the Gap Authorized Users the right to use the Software provided by Supplier in order to utilize the Services, and otherwise comply with the terms of this Agreement. All third party license fees

Gap Confidential and Proprietary Information

for such Software provided by Supplier shall be at no additional cost to Gap, provided following the Termination Transition Period, Gap will be required to pay the third party licensor maintenance and support fees to the same extent Supplier would be bound to do so under Supplier's license with such third party licensor. To the extent that a third party license imposes a limit or restriction on Gap's right to use the Software provided by Supplier as permitted in this Agreement and such limit or restriction has not been identified in this Agreement, Supplier shall take commercially reasonable actions and pay the license fees required to provide Gap with all the rights to use and modify the Software provided by Supplier afforded by this Agreement to the extent permitted.

29.6

Support Not to be Withheld

Subject to Section 26.7 (Withhold Remedy), each Party agrees to continue performing its obligations under this Agreement while any dispute between the Parties is being resolved except only to the extent the issue in dispute directly precludes such performance (dispute over payment shall not be deemed to preclude performance) unless and until such obligations are terminated by the termination or expiration of this Agreement.

29.7

Assignment of Warranties

Supplier represents, warrants and agrees that it shall assign and deliver, and agrees to assign and deliver, to Gap all representations and warranties received by Supplier from Third Party Vendors, to the extent such warranties are assignable and relate to the Services, including rights to recovery. Supplier shall, upon Gap's request and at Gap's cost, enforce such warranties that are not assignable, and track and notify Gap of each warranty, and deliver to Gap any documentation issued by a warrantor evidencing such warranty. Nothing in this Section 29.7 (Assignment of Warranties) shall require Supplier to initiate litigation against any such Third Party Vendors.

29.8

Viruses

Supplier represents, warrants and agrees that it shall use its best practices to ensure that no forms of harmful or surreptitious code, including, Malware (as defined in the Glossary to the Statement of Work), Trojan horses, system monitors/keyloggers, dialers, adware, and adware cookies (collectively, "Virus(es)") are introduced into the Gap IT Environment. If a Virus is found to have been introduced into the Gap IT Environment by Supplier, Supplier shall promptly notify Gap in writing in accordance with Gap's security incident response procedures and, at no additional charge to Gap, shall provide commercially reasonable assistance to Gap in reducing the effects of, and mitigating the losses and restoring any Deficiencies resulting from, the Virus. Notwithstanding the foregoing, if a Virus is found to have been introduced into the Gap IT Environment, whether or not by Supplier, Supplier shall upon learning of any such Virus promptly notify Gap in writing in accordance with Gap's security incident response procedures and shall provide commercially reasonable assistance to Gap in reducing the effects of, and mitigating the losses from, the Virus to the extent it can do so with its resources then currently

Gap Confidential and Proprietary Information

dedicated to the delivery of the Services and without impacting its ability to deliver the Services in accordance with this Agreement.

29.9

Disabling Devices

Supplier represents, warrants and agrees that it shall not knowingly cause any unplanned interruption of the operations of, or accessibility to the Gap IT Environment through any device, method or means including, the use of any "virus," "lockup," "time bomb," "key lock" device program, or disabling code, for which a purpose is to: (1) cause any unplanned interruption of the operations of (other than devices that are necessary to safeguard the device or the Gap IT Environment) or prevent the accessibility of the Gap IT Environment to Gap or any Authorized User, (2) alter, destroy, or inhibit the use of the Gap IT Environment, or (3) block access to, or prevent the use/accessibility of, the Gap IT Environment by Gap or Authorized Users (collectively referred to for purposes of this Section as "Disabling Device(s)"). Supplier agrees that it has not, and will not, place any Disabling Device in the Gap IT Environment (other than licensing limitation controls (e.g., keys) that are incorporated into commercially available Software), nor shall it invoke any Disabling Devices contained on the Gap IT Environment at any time (including upon expiration or termination of this Agreement for any reason). In the event of a breach of this Section (Disabling Devices) by Supplier, Supplier shall remove the Disabling Device and restore such data or information to the most recently available electronic back-up copy and supporting transaction logs at no cost to Gap.

29.10

Insurance Premiums

Supplier represents, warrants and agrees that it will pay all premiums, deductible amounts, and other costs required to maintain all insurance policies in accordance with Section 35 (Insurance and Indemnity) herein.

29.11

Compliance with Laws

Supplier represents, warrants and agrees that it shall comply, and shall require its Subcontractors to comply, as applicable, with all foreign and U.S., national, provincial, state, and local laws, rules, directives, and regulations relating to Supplier's capacity as an information technology service provider and/or data processor, including, OSHA regulations, environmental laws, HIPAA, those directives such as the European Union Data Protection Directive and regulations/directives relating to EU Works Councils (collectively "Supplier Regulatory Requirements"). Supplier shall identify, obtain and pay for permits, certificates, approvals, and inspections required under such Supplier Regulatory Requirements. Supplier agrees to provide the information regarding the Services, and the Charges relating to the Services, that Gap identifies as necessary for Gap to comply with the Sarbanes-Oxley Corporate Reform Act. For the avoidance of doubt, unless specifically otherwise mandated by the Sarbanes-Oxley Corporate Reform Act, the above does not include Supplier's cost data or confidential or proprietary information of any of Supplier's other customers. Gap shall comply, and shall require its subcontractors to comply, as applicable, with all foreign and U.S., national,

Gap Confidential and Proprietary Information

provincial, state, and local laws, rules, directives, and regulations relating to Gap business, including, OSHA regulations, environmental laws, HIPAA, those directives such as the European Union Data Protection Directive and regulations/directives relating to EU Works Councils (collectively "Gap Regulatory Requirements").

29.12

Changes in Law and Regulations

Supplier represents, warrants and agrees that it shall identify the impact of changes in Supplier Regulatory Requirements on its ability to deliver the Services and perform its obligations under the Agreement. Supplier shall notify Gap of such Supplier Regulatory Requirements within ten (10) days after it learns of the enactment of any such Supplier Regulatory Requirements and shall work with Gap to identify the impact of such changes on how Gap uses the Services or on how Supplier delivers the Services. Gap and Supplier shall promptly make any resulting modifications to the Services as reasonably necessary as a result of changes in such Supplier Regulatory Requirements. Supplier shall comply with changes to all Supplier Regulatory Requirements and shall implement any necessary modifications to the Services prior to the deadline imposed, or extensions authorized by, the regulatory or other governmental body having jurisdiction for such Supplier Regulatory Requirements. All costs associated with identification and compliance with Supplier Regulatory Requirements shall be borne by Supplier. Upon Approval by Gap of an applicable change request pursuant to the Change Control Procedures, Supplier shall (i) implement Gap Regulatory Requirements, and (ii) shall implement any necessary modifications to the Services, in accordance with Gap's Policies and Procedures and/or an applicable Statement of Work, as applicable. Except as provided in this Section, Supplier shall have no obligation to identify regulatory changes.

29.13

Inducements

Supplier represents, warrants and agrees that it has not and will not violate foreign and U.S., national, provincial, state, and local laws, rules, directives, and regulations, or any Gap policies of which Supplier has been given advance notice, regarding the offering or receiving of unlawful inducements in connection with the Agreement.

29.14

Technical Architecture and Product Standards

Supplier represents, warrants and agrees that it shall (1) comply with Gap's Policies and Procedures and (2) obtain Gap's written approval for any material deviation from Gap's Policies and Procedures.

29.15

Open Source Warranty

Supplier represents, warrants, and agrees that it will not introduce any Open Source Software into the Gap Systems without Gap's prior written consent. In the event of a breach of this Section 29.15 (Open Source Warranty), Supplier shall provide a replacement to such Open Source Software product at no extra cost and expense to Gap, and fully install and

Gap Confidential and Proprietary Information

implement such replacement Software product into the Gap Systems without interference to Gap's information technology environment and operations.

29.16

Representations and Warranties Throughout Agreement

It is understood and agreed by the Parties that Supplier's representations and warranties are set forth throughout this Agreement and are not confined to this Section 0 (Representations, Warranties, and Covenants).

29.17

Warranty Disclaimer

THE WARRANTIES SET FORTH IN THIS AGREEMENT (AND IN ANY IMPLEMENTATION DOCUMENTS ISSUED HEREUNDER) ARE MADE TO, AND FOR THE BENEFIT OF, GAP AND SUPPLIER EXCLUSIVELY AND ARE IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SUPPLIER MAKES AND GAP RECEIVES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Unless otherwise expressly agreed to in a writing executed by the Parties after the Reference Date, Supplier does not warrant uninterrupted or error-free operations of a Service or that Supplier will find or correct all defects. For the avoidance of doubt, the Parties acknowledge that nothing in the foregoing sentence is intended to waive or restrict Supplier's express representations, warranties or obligations set forth in this Agreement.

30.

Remedy Waiver

This Agreement utilizes a number of "interim remedies" (including service level remedies, dispute resolution processes, payment withholds, and credit assessment mechanisms) to assist the Parties in effectively addressing performance issues that may arise during the Term. Gap deems the various remedies as essential tools to its management of this Agreement. Nevertheless, Supplier's effective ongoing performance is the critical behavior such remedies are designed to achieve.

Consequently, recognizing that circumstances may arise in which the imposition of the interim remedies as structured may not fairly reflect corrective and other efforts made by Supplier, subject to Section 43 (Waiver), Gap's Chief Information Officer, may, in such individual's sole discretion waive, in an individual occurrence, Gap's right to use, or collect a credit resulting from, such interim remedies. Factors that will be considered by Gap's Chief Information Officer in assessing whether to waive an interim remedy include: (1) Supplier's proactive involvement in identifying a problem before operational impacts are manifested; (2) the timing, quality, and accuracy of communications from Supplier relating to a problem; (3) the speed with which corrective actions are taken and the problem is fixed; (4) the quality of Supplier's root cause analysis and the likelihood that appropriate steps have been taken to prevent a reoccurrence of the problem; (5) the quality of Supplier's overall performance at the

Gap Confidential and Proprietary Information

time the remedy right accrues and during the Term; and (6) the impact of other causal factors, including Gap's actions or inaction relating to the problem.

Any waiver under this Section must be in writing, expressly state that it is a waiver under this Section, and be signed by Gap's Chief Information Officer and the Gap Infrastructure Partnership Executive.

31.

Internal Dispute Resolution

31.1

Intent

The Parties shall resolve their disputes informally to the maximum extent possible. The Parties shall negotiate all matters of joint concern in good faith, with the intention of resolving issues between them in a mutually satisfactory manner. Only disputes within the scope of this Agreement are subject to this Section. However, nothing in this Section shall preclude the Parties from exercising their termination rights pursuant to Section 33 (Termination) following the period specified in Section 31.2 (Informal Resolution). Each Party shall bear its own attorney's fees and costs in connection with the internal dispute resolution process; except, to the extent the Parties otherwise agree in writing to incur certain costs to support the internal dispute resolution process, such costs shall be shared equally by the Parties. The Parties agree all statements made in connection with internal dispute resolution efforts shall not be considered admissions or statements against interest by either Party. The Parties further agree that they will not attempt to introduce such statements at any later trial, arbitration, or mediation between the Parties.

31.2

Informal Resolution

If a dispute arises under this Agreement, then within seven (7) Business Days after a written request by either Party, Gap's Infrastructure Partnership Executive and Supplier Outsourcing Relationship Executive shall promptly confer to resolve the dispute. If these representatives cannot resolve the dispute or either of them determines they are not making progress toward the resolution of the dispute within seven (7) Business Days after their initial conference, then the dispute shall be submitted to the Gap Chief Information Officer and Supplier Industry Vice President, who shall promptly confer to resolve the dispute.

31.3

Fact Finding Report

The Gap Outsourcing Relationship Executive and Supplier Outsourcing Relationship Executive shall provide the Gap Chief Information Officer and Supplier Industry Vice President with a written description of the dispute, including the particular issues on which the Parties seek recommendations.

Fact Finding

Gap Confidential and Proprietary Information

The Gap Chief Information Officer and Supplier Industry Vice President shall engage in fact finding as required by the dispute and recommend how best to resolve the dispute. The Gap Chief Information Officer and Supplier Industry Vice President may submit written questions to the Parties, may request oral statements, and may review relevant documents.

Report

Within thirty (30) days after the Gap Chief Information Officer and Supplier Industry Vice President have convened to resolve the dispute, the Gap Chief Information Officer and Supplier Industry Vice President shall cause a joint written report to be prepared, including their findings of fact and recommendations for resolution. Upon conclusion of the dispute resolution process by the Gap Chief Information Officer and Supplier Industry Vice President, any documentation created by a Party for such dispute resolution process shall be returned to the Party submitting such documentation and copies shall either be returned or destroyed.

31.4

Dispute Resolution Mandatory

The dispute resolution process provided in this Section 31 (Internal Dispute Resolution) is a prerequisite to the exercise of any judicial remedies available to the Parties (including, any claim for breach of contract pursuant to Section 33.2 (Termination for Cause by Gap) or Section 33.3 (Termination for Cause by Supplier)), except in cases where a Party is seeking injunctive or other equitable relief.

31.5

Applicability To Disputes With Suppliers Other than Supplier

At no Charge to Gap, Supplier agrees that on Gap's written request, it will reasonably participate in dispute resolution in accordance with this Section 31 (Internal Dispute Resolution) with Gap and Gap's Third Party Vendors to resolve any disputes between and/or among such vendors, including Supplier and Gap, as to responsibility by any particular vendor for issues arising from warranty and other information system performance obligations to the extent related to the Services. Neither Party shall be required to submit Proprietary or Confidential Information to such Third Party Vendor(s) unless the Third Party Vendor(s) has executed an appropriate confidentiality or non-disclosure agreement as to the information that will be disclosed to it in connection with the dispute resolution process.

32.

[Reserved]

33.

Termination

33.1

Change of Control

Gap may terminate this Agreement on one hundred eighty (180) days written notice in the event of the acquisition of all or substantially all of Supplier's assets, or any

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merger by or with Supplier in which Supplier is not the surviving entity or in which Supplier's principals do not remain in control of the surviving entity; provided, however, that Gap must deliver any notice of termination pursuant to this Section 33.1 (Change of Control) within twelve (12) months of the effective date of any such transaction. Notwithstanding the foregoing, Gap shall be responsible for the Termination Charges for Change of Control as detailed in Exhibit C.6 (Termination for Convenience Fees), and in the event the surviving entity is a Gap Competitor, Gap shall be responsible for Stranded Costs only.

33.2

Termination for Cause by Gap

Gap may terminate this Agreement, in whole or in part, if Supplier: (i) breaches a (1) material obligation, or (2) warranty or representation under this Agreement; and fails to cure such breach within thirty (30) days after written notice from Gap, (ii) breaches a (1) material obligation, or (2) warranty or representation under the Agreement which is not capable of being cured within thirty (30) days and for which an acceptable plan of correction has not been submitted within that time; or (iii) commits numerous breaches of its duties or obligations under the Agreement which in the aggregate are material and fails to cure such numerous breaches within thirty (30) days after written notice. Gap notice shall specify the acts, omissions or events alleged to constitute such material breach and shall state that the notice is being provided in accordance with this Section 33.2 (Termination for Cause by Gap). In the event of Supplier's failure to cure such breach, or, as applicable, submit an acceptable plan of correction, within the applicable cure period, Gap may terminate this Agreement as of the date set forth in such written notice, which date of termination shall in no event be less than thirty (30) days from the date of the notice of termination.

33.3

Termination for Cause by Supplier

In the event of a material breach by Gap of its obligations under this Agreement, Supplier shall promptly provide Gap with written notice specifying in detail the acts, omissions or events alleged to constitute such material breach and Gap shall have thirty (30) days within which to cure such breach or propose a reasonable plan to cure such breach. In the event of Gap's failure within such thirty (30) day period as the case may be to cure such breach or to propose a reasonable plan for the cure thereof, Supplier may terminate this Agreement upon written notice to Gap.

33.4

Termination for Insolvency

In addition to Gap's rights under Section 38 (Bankruptcy and Liquidation), in the event Supplier becomes or is declared insolvent, becomes subject to a voluntary or involuntary bankruptcy or similar proceeding, or makes an assignment for the benefit of all or substantially of all of its creditors, then in such event Gap may terminate this Agreement on ten (10) days written notice to Supplier.

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33.5

Termination for Failure to Implement Benchmark Adjustments

If (1) Supplier fails to adjust its pricing as required under Section 0B (Benchmark Adjustments), or (2) Gap (in its sole discretion) does not accept Supplier's proposal to reduce its prices to the Benchmark as set forth in Section 0B(2) (Benchmark Adjustments), Gap may, upon sixty (60) days notice to Supplier, (a) terminate this Agreement, at no fee to Gap, as to the Aggregated Service or Aggregated Services that were not reduced to the Benchmark, or (b) at Gap's option, the Agreement as a whole. Notwithstanding the preceding sentence, Gap shall be responsible for Stranded Costs. Gap's election to terminate under this Section shall be made within one hundred and eighty (180) days of either (1) Supplier fails to adjust its pricing as required under Section 0B (Benchmark Adjustments), or (2) Gap (in its sole discretion) does not accept Supplier's proposal to reduce its prices to the Benchmark as set forth in Section 0B(2) (Benchmark Adjustments).

33.6

Termination for Convenience

Gap may at any time, elect to terminate this Agreement or a Statement of Work as to New Services at its convenience provided it shall, at the time of such election, provide Supplier with one-hundred eighty (180) days notice. In the event of termination of this Agreement and/or a Statement of Work as to New Services, other than payments for non-cancelable leases and service contracts, Gap shall pay the termination for convenience charges specified in Exhibit C.6 (Termination for Convenience Fees).

Gap may terminate any Non-Recurring Initiative for convenience upon providing Supplier with three (3) business days prior written notice. Upon any such termination, Gap shall only be liable for any Charges incurred though the effective date of termination and applicable Stranded Contracts and Stranded Assets.

33.7

Termination Assistance

After the effective date of any termination pursuant to this Section 33 (Termination), Supplier shall continue to provide Services in accordance with Section 34 (Termination/Expiration Assistance Services) for which it shall be compensated by Gap as provided in Section 34.2 (Performance of Services).

33.8

Payment of Fees

In the event of termination under this Section 33 (Termination), Gap agrees to pay to Supplier the Charges for the Services satisfactorily performed by Supplier under this Agreement through the date of actual termination, but shall not pay other charges or fees related to such termination, unless specifically described in this Section 33 (Termination).

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33.9

Cumulative Remedies

The Parties understand and agree that the rights and remedies available to either Party at law, in equity and/or under this Agreement shall be cumulative and nonexclusive in nature.

34.

Termination/Expiration Assistance Services

34.1

Termination/Expiration Transition Plan

Supplier understands and agrees that Gap's business operations are dependent on the Services, and that Gap's inability to receive the Services would result in irreparable damages to Gap. Therefore, upon the expiration of this Agreement or its termination by either Party for any reason, including the breach of this Agreement by the other Party, Termination Assistance Services shall be provided as set forth in this Section 34 (Termination/Expiration Assistance Services). If no Termination Transition Plan has yet been agreed to at the time of termination, the rights of Gap upon any expiration or termination of this Agreement shall be as set forth in this Section 34 (Termination/Expiration Assistance Services). If a Termination Transition Plan has been agreed to, then the rights of Gap upon any expiration or termination of this Agreement shall be as set forth in the most recent approved Termination Transition Plan, and also as set forth in this Section 34 (Termination/Expiration Assistance Services). In the event of any inconsistency between this Section 34 (Termination/Expiration Assistance Services) and the applicable Termination Transition Plan, this Section shall govern. If no Termination Transition Plan has been agreed to by the Parties at the time of any termination of this Agreement, then Supplier shall provide the professional services staff necessary to provide (1) the Services (as requested by Gap in accordance with Section 34.3 (Termination Transition Period) at performance standards and Service Levels in effect at the time of termination or expiration, and (2) the Termination Assistance Services.

34.2

Performance of Services

Supplier and Gap acknowledge and agree that their mutual cooperation is important to an effective transition of technology services provided by Supplier to Gap or its designated provider(s). As requested by Gap in accordance with Section 34.3 (Termination Transition Period), Supplier shall provide Gap with all of the Services, including all of the Termination Assistance Services set forth in this Section 34 (Termination/Expiration Assistance Services) and in the then most recent version of the Termination Transition Plan. Supplier shall have no right to withhold or limit any of the Services (including the Termination Assistance Services) on the basis of any alleged breach of this Agreement by Gap, other than a failure by Gap to timely pay the amounts due for the Services (including Termination Assistance Services) rendered during the Termination Transition Period (as set forth in Section 34.3 (Termination Transition Period). Gap shall have the right to seek specific performance of this Section 34 (Termination/Expiration Assistance Services). In addition to the Services as set forth in this Agreement, the Termination Assistance Services shall include, at a minimum, (i) converting

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data; (ii) providing parallel services until transition to a new system, (iii) providing on-site technical support, (iv) cooperating with Gap or its designated vendor in developing required interfaces, (v) meeting with Gap as soon as practicable after a notice of termination or notice of a decision to not extend this Agreement has been given, to discuss any potential modifications to the then most current Termination Transition Plan; (vi) using all commercially reasonable efforts to assist Gap in effecting a transition of the Services, in accordance with best practices, to Gap or another vendor chosen by Gap; (vii) providing the number and types of resources necessary to complete the transition in accordance with the Termination Transition Plan; and (viii) such other services as shall be necessary or appropriate to facilitate, without interruption to the Services, the orderly transition of the Services to Gap or its new provider of services in accordance with best practices. If Supplier is providing any Services hereunder at the time of such transition utilizing any software license from a Third Party Vendor, the responsibility for obtaining and paying for the transfer of such licenses shall be in accordance with Section 21 (Consents). Notwithstanding anything in this Agreement to the contrary, Gap shall be entitled to increase and/or decrease the scope of the Services and Termination Assistance Services in its sole discretion during any Termination Transition Period. Supplier shall be compensated on a time and material basis or fixed fee basis (as agreed by the Parties) for all Termination Assistance Services by payment by Gap, with respect to time and materials charges, in accordance with the rates set forth in this Agreement or, if applicable rates for time and materials charges are not contained in this Agreement, and for all fixed fee charges, at commercially reasonable rates, it being understood that the charges for the Termination Assistance Services are not included in the Charges.

34.3

Termination Transition Period

Unless otherwise directed by Gap, commencing: (i) six (6) months prior to the expiration of the Agreement; (ii) upon any notice of termination or non-renewal of the Agreement; or (iii) six (6) months prior to any other ceasing of Service under the Agreement, and continuing for a period defined in the Termination Transition Plan but in no event less than twelve (12) months following the expiration or termination of this Agreement (unless a shorter time period is requested by Gap), Supplier will continue to provide the Services (including the Termination Assistance Services) as requested by Gap. After such twelve (12) month period (or such shorter time period as requested by Gap), unless otherwise directed by Gap, Supplier shall provide extensions of the Services (including the Termination Assistance Services) as requested by Gap in serial thirty (30) day extension terms for up to an additional six (6) months (such period, the "Termination Transition Period"). The total Termination Transition Period shall not exceed eighteen (18) months.

In addition to the Services as set forth in this Agreement, the Termination Assistance Services shall include, at a minimum, converting data, providing parallel services until transition to a new system, providing on-site technical support, cooperating with Gap or its designated vendor in developing required interfaces, and such other services as shall be necessary or appropriate to facilitate, without material or extended interruption to the Services, the orderly transition of the Services to Gap or its new provider of services in accordance with Supplier's best practices. Gap shall have the same rights to Software and such other intellectual

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property rights as provided in Section 21.3 (Software, Documentation, and Intellectual Property) during the transition period as it does during the Term.

34.4

Transition Services

Supplier will provide the following Termination Assistance Services at Gap's request:

A. Supplier shall (i) assist Gap in developing a written transition plan for the transition of the Services to Gap or Gap's designee, which plan shall include capacity planning, facilities planning, human resources planning, and data transport/telecommunications planning necessary to effect the transition, (ii) perform programming and consulting services as requested to assist in implementing the transition plan, (iii) train personnel designated by Gap in the use of any Equipment, Software, materials or processes to be transferred, (iv) catalog all Software, Gap Data and Equipment used to provide the Services, provide machine readable and printed listings of source code for Software in accordance with Section 21.3 (Software, Documentation and Intellectual Property) to the extent such source code is generally made available for such Software and assist in its reconfiguration, (v) analyze and report on the space required for the Gap Data and the Software needed to provide the Services, (vi) assist in the execution of a parallel operation, data migration and testing process until the transition to Gap or Gap's designee has been successfully completed, (vii) create and provide copies of the Gap Data in the format and on the media reasonably requested by Gap and, when directed by Gap to do so, delete (and certify in writing such deletion) all Gap Data in Supplier's possession or control from any tapes or other data storage media, including written records, in Supplier's possession or control except archival records as necessary for documentation of Supplier's engagement with Gap, (viii) provide a complete and up-to-date, electronic copy of the Policy and Procedures Manual, in the format and on the media reasonably requested by Gap, (ix) identify, and assist Gap in Provisioning, a suitable functionally equivalent replacement for any shared hardware or software then used by Supplier to provide the Services, and (x) provide other technical assistance as requested by Gap.

B. Gap or Gap's designee shall be permitted to undertake, without interference from Supplier or Supplier Affiliates (including counter-offers), to hire, effective after the later of the termination of the Term or completion of any Termination Assistance Services, any employees of Supplier or Supplier Affiliates primarily assigned to the performance of Services within the twelve (12) month period prior to the expiration or termination date by providing Supplier with written notice of its intent to hire any such employees no later than the latter of (i) forty-five (45) days prior to the expiration of the Term or (ii) forty-five (45) days prior to the completion of any Termination Assistance Period. Supplier shall waive, and shall cause its Affiliates to waive, their rights, if any, under contracts with such personnel restricting the ability of such personnel to be recruited or hired by Gap or its designee. Gap or its designee shall have reasonable access to such employees of Supplier or Supplier Affiliates for interviews, evaluations and recruitment. Gap shall conduct the above-described hiring activity in a manner

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that is not unnecessarily disruptive of the performance by Supplier of its obligations under this Agreement or any of the Implementation Agreements.

C. To the extent Gap or its designee is entitled under Section 21.3 (Software, Documentation and Intellectual Property) to a license, sublicense or other right to use any Software or other Intellectual Property utilized in performing the Services, Supplier shall provide Gap or its designee with such license, sublicense or other right, including, Source Materials (where Gap has the right to such Source Materials), Object Code and Documentation related to Software (where Gap has the right to such Documentation), in Supplier's possession or control in a form reasonably requested by Gap. Notwithstanding anything in this Agreement to the contrary, Supplier shall have no obligation to provide Gap any Software that is Source Materials other than where the Source Material is Gap Custom Software and/or Gap Modified Software.

D. Gap or its designee shall have the right (but not the obligation, except as set forth in Sections 3.10B (Failure to Comply with the Transition-In Plan), 33.1 (Change of Control), 33.4 (Termination for Insolvency), 33.6 (Termination for Convenience), or 33.5 (Termination for Failure to Implement Benchmark Adjustments) upon reasonable notice to purchase any Equipment owned by Supplier and which, on the date of expiration or termination of this Agreement, Supplier is using on a dedicated basis to perform the Services. In addition, at Gap's request, Supplier shall use commercially reasonable efforts to provide Gap with the right to either (i) lease directly from the applicable third party lessor (other than a Supplier Affiliate) any leased Equipment that on the date of expiration or termination of this Agreement Supplier is using on a dedicated basis to perform the Services, or (ii) assume Supplier's lease for any such Equipment (other than as to Equipment provided by a Supplier Affiliate); provided that Supplier shall use commercially reasonable efforts to minimize any costs associated with the exercise of any such right by Gap and any transfer, assumption or termination fees or expenses associated with the exercise of any such right shall be the responsibility of, and paid for by, Gap. Gap shall assume such lease obligations (or pay for the applicable lease buy-out) if obligated to do so in accordance with Exhibit C.7 (Financial Responsibility Matrix). Gap shall execute such documents as necessary for Supplier to be relieved of Supplier's obligations under such assumed leases after the transfer date. In the case of leases entered into specifically to provide the Services, Supplier shall use commercially reasonable efforts to obtain such rights in advance and shall not enter into any such lease not offering such rights without Gap's prior written consent, which shall not be unreasonably withheld or delayed (provided that the withholding of consent shall not preclude Supplier from then using a lease not entered into specifically for this engagement to acquire such Equipment). In all cases, such owned or leased Equipment shall be transferred in good working condition, reasonable wear and tear excepted, as of the expiration or termination date or the completion of any Services associated with such Equipment requested by Gap under this Agreement, whichever is later. In the case of Supplier-owned equipment, Supplier shall grant to Gap a warranty of title and a warranty that such Equipment is free and clear of all liens and encumbrances. Such conveyance by Supplier to Gap shall be at net book value (not to exceed fair market value at the time placed in service) calculated in accordance with generally accepted accounting principles using the depreciation schedule customarily used

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by Supplier for the applicable type of equipment (including equipment dedicated to Supplier internal use, used at shared Supplier service facilities and dedicated to specific Supplier customers). In the case of leased Equipment, Supplier shall represent and warrant that the lease is not in default and that all payments thereunder have been made through the date of transfer.

E. Supplier shall return to Gap, if not previously returned, all Gap Equipment, in condition at least as good as the condition thereof on the Reference Date, ordinary wear and tear excepted. Such Equipment shall be returned at the expiration or termination date or the completion of any Services or Termination Assistance Services associated with such Equipment requested by Gap under this Agreement, whichever is later.

F. Supplier shall inform Gap of Subcontracts or Third Party Vendor contracts primarily dedicated by Supplier, Supplier Subcontractors or Supplier Affiliates to perform the Services. Gap shall retain the right to contract directly with any such Subcontractor or Third Party Vendor. In addition, Supplier shall use commercially reasonable efforts to provide Gap with the right to contract directly with any Subcontractor or Third Party Vendor previously utilized by Supplier to perform any Services or to assume Supplier's contract with such Subcontractor or Third Party Vendor.

G. In the event that Supplier is able to obtain the right for Gap to assume such Subcontracts and Third Party Vendor contracts in accordance with the Subsection (F) above, Supplier shall assign the designated Subcontracts and Third Party Vendor contracts to Gap or its designee as of the expiration or termination date or the completion of any Services associated with such Subcontracts or Third Party Vendor contracts, whichever is later. There shall be no charge or fee imposed by Supplier on Gap related to such assignment and Supplier shall use commercially reasonable efforts to minimize or eliminate any such charges or fees imposed by any Subcontractors or Third Party Vendor. To the extent charges or fees are imposed by any Subcontractors or Third Party Vendor, such costs shall be paid by Gap. Supplier shall (i) represent and warrant that it is not in default of such Subcontracts and Third Party Vendor contracts; (ii) represent and warrant that all payments have been made thereunder through the date of assignment; and (iii) notify Gap of any defaults by Subcontractors or Third Party Vendor contractors with respect to such Subcontracts and Third Party Vendor contracts of which Supplier is then aware. Subject to Supplier's compliance with the requirements of this subsection, Gap shall represent and warrant to Supplier that, from the date of assumption, it will assume all contractual responsibilities and liability associated with such Subcontracts and Third Party Vendor contract assigned to Gap hereunder.

35.

Insurance and Indemnity

35.1

Required Insurance Coverage

Supplier shall obtain, pay for, and maintain in full force and effect during the term of this Agreement insurance as follows:

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A. Workers' compensation and employers' liability insurance with limits as required by law or * for each accident, including occupational disease coverage, with a limit of * per person subject to an aggregate limit of * per annum. These policies will contain waivers of the insurer's subrogation rights against Gap where permitted by law;

B. Commercial general liability insurance, and excess liability insurance coverage, with limits of * combined single limit for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage;

C. Commercial automobile liability insurance with limits of not less than * for each occurrence combined single limit of liability for bodily injury, death, and property damage, including owned and non-owned and hired automobile coverages, as applicable;

D. Professional Liability Insurance (Errors and Omissions) with limits of * annual aggregate for all claims each policy year for technology errors and omissions. This coverage should not exclude Virus Liability, Intellectual Property Liability, Denial of Electronic Access Liability, Electronic Information Damage Liability, liabilities assumed under contract, and direct damages;

E. All Risk Property Liability Insurance with limits not less than the full replacement cost value of Supplier's Equipment situated at a Gap Site during the Term of the Agreement; and

F. Employee Dishonesty and Computer Fraud Insurance with limits not less than * per occurrence.

35.2

Claims Made Coverages

To the extent any insurance coverage required under this Section 35 (Insurance and Indemnity) is purchased on a "claims-made" basis, such insurance shall cover all prior acts of Supplier during the Term of this Agreement and for at least two (2) years after the Term of the Agreement.

35.3

Certificates Of Insurance

Certificates of insurance evidencing all coverages described in this Section 35 (Insurance and Indemnity) shall be furnished to the Gap within two (2) weeks of the Reference Date with the following endorsements:

A. In the name of The Gap, Inc., its officers, directors and employees, and its Affiliates as additional insureds limited to coverage B (Commercial General Liability

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

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Insurance) and C (Commercial Automobile Liability Insurance) in Section 35.1 (Required Insurance Coverage) above where allowable by country law;

B. To provide that each of the policies is primary insurance, not contributing, with respect to any other insurance available to Gap as to any claim for which coverage is afforded under the policy, except for coverage D (Professional Liability Insurance) and F (Employee Dishonesty and Computer Fraud Insurance) in Section 35.1 (Required Insurance Coverage) above and will be limited in other areas of coverage to the acts omissions of Supplier in the performance of this agreement;

C. To provide that the policy shall apply separately to each insured against whom a claim is made or suit is brought (required for Comprehensive General Liability, and Automobile Liability only where allowable by country law); and

D. The Gap, Inc., its officers, directors, employees, or its Affiliates shall be named as a "Loss Payee" under All Risk Property Insurance, as respects their interest in the property insured.

None of the requirements contained herein as to types, limits and approval of insurance coverage to be maintained by Supplier are intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Supplier under this Agreement. Receipt of any certificate showing less coverage than requested is not a waiver of Supplier's obligation to fulfill its requirements. Supplier may utilize reasonable deductibles given its size and financial stability. Supplier will be responsible to pay any loss amount that lie within its deductible, up to the maximum amount of the deductible.

35.4

Subcontractors To Be Insured

Supplier shall require all of its Subcontractors to carry insurance coverages and limits as agreed to and approved in writing by Gap, and shall require all such insurance policies to name Gap, its officers and employees as additional insureds limited to coverage B and C in Section 35.1 (Required Insurance Coverage) above where allowable by country law.

35.5

Cancellation Or Lapse Of Insurance

Supplier shall give thirty (30) days prior written notice to Gap of cancellation, non-renewal, or material change in coverage, scope, or amount of any policy, except it shall provide timely written notice of cancellation, non-renewal, or material change in coverage, scope, or amount of any policy for Professional Liability and Crime insurance policies referenced above.

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35.6

Other Insurance Requirements

Whenever commercially reasonable or possible, insurance policies required hereunder shall be issued by insurance companies: (i) authorized to do business in the State of California; and (ii) with a financial rating of at least an A10 status as rated in the most recent edition of Best's Insurance Reports except for "All-Risk" property insurance above which supplier can self insure; provided that Gap shall be afforded protection in the same manner and to the same extent it would have been covered had Supplier obtained such coverage through a third party insurer. Should Supplier decide to purchase coverage that is at the time self insured by Supplier, it is agreed that this Agreement shall be considered an insured contract under such policy.

35.7

General Indemnity

Supplier's Indemnity

(1) At Supplier's expense and as described herein, Supplier agrees to defend and indemnify (as set forth in (2) below) Gap, its Affiliates, and its subcontractors (and their respective directors, officers, agents, and employees) from and against any third party claims, actions, or proceedings (and liability, damages, costs, or expenses arising under such third party claims, actions, or proceedings) arising out of, or in connection with, any alleged act or failure to act by Supplier or its directors, officers, agents, or employees which has caused, or which is alleged to have caused (including, without limitation, negligent or willful misconduct): (i) any injury to any person or persons or damage or loss to tangible property, (ii) a breach the provisions of Sections 36.3 (Non-Disclosure and Non-Use), 0 (Treatment of Gap Data), 36.6 (Return of Proprietary or Confidential Information), 36.7 (Solicitation of Gap Customers) and 36.9 (Residual Knowledge) relating to Supplier's use of confidential information owned or controlled by Gap, or (iii) Supplier's breach of a Supplier Regulatory Requirement set forth in Section 29.11 (Compliance with Laws) ((i), (ii), and (iii) above are individually each, and collectively all, referred to for purposes of this Section 35.7A (Supplier's Indemnity) as "Supplier Third Party Claim(s)"). For avoidance of doubt, if a Gap employee suffers personal injury because of Supplier and brings a claim in his or her individual capacity, then such claims shall be deemed a third party claim.

(2) Supplier shall pay all amounts that a court finally awards to a third party or that Supplier agrees to in settlement with a third party of any such Supplier Third Party Claim(s), as well as any and all reasonable attorneys' fees and costs of investigation arising from such Supplier Third Party Claim(s) incurred by Gap or any other party indemnified under this Section 35.7A (Supplier's Indemnity) associated with such Supplier Third Party Claim and incurred prior to Supplier's assumption of the defense against any Supplier Third Party Claim. After Supplier assumes the defense against any Supplier Third Party Claim in accordance with this Section, Supplier shall not be responsible for the payment of expenses or charges incurred by Gap in connection with such Supplier Third Party Claim, except:

(a) to the extent Supplier pre-approves any such charge or expense after Supplier assumes control of the defense of such Supplier Third Party Claim, provided such approval by Supplier is not to be unreasonably withheld; or

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(3) Supplier's obligation to defend and indemnify Gap, as applicable, pursuant to this Agreement shall be subject to Gap having given Supplier prompt written notice of the claim or of the commencement of the related action, as the case may be, and information and reasonable assistance, at Supplier's expense, for the defense or settlement thereof. Supplier shall have sole control of the defense and settlement of such claim or related action, provided that Supplier shall not settle such claim or related action in a manner which imposes any obligation on Gap without the prior written consent of Gap. Gap shall be entitled to engage counsel at its sole expense to consult with Supplier with respect to the defense of the claim and related action.

Gap's Indemnity

(1) At Gap's expense and as described herein, Gap agrees to defend and indemnify (as set forth in (2) below) Supplier, its Affiliates, and its Subcontractors (and their respective directors, officers, agents, and employees) from and against any third party claims, actions, or proceedings (and liability, damages, costs, or expenses arising under such third party claims, actions, or proceedings) arising out of, or in connection with, any alleged act or failure to act by Gap or its directors, officers, agents, or employees which has caused, or which is alleged to have caused (including, without limitation, negligent or willful misconduct): (i) any injury to any person or persons or damage or loss to tangible property, (ii) a breach the provisions of Sections 36.3 (Non-Disclosure and Non-Use), 36.6 (Return of Proprietary or Confidential Information), and 36.9 (Residual Knowledge) relating to Gap's use of confidential information owned or controlled by Supplier, or (iii) Gap's breach of a Gap Regulatory Requirement set forth in Section 29.11 (Compliance with Laws) ((i), (ii), and (iii) above are individually each, and collectively all, referred to for purposes of this Section 35.7B (Gap's Indemnity) as "Gap Third Party Claim(s)"). For avoidance of doubt, if a Supplier employee suffers personal injury because of Gap and brings a claim in his or her individual capacity, then such claims shall be deemed a third party claim.

(2) Gap shall pay all amounts that a court finally awards to a third party or that Gap agrees to in settlement with a third party of any such Gap Third Party Claim(s), as well as any and all reasonable attorneys' fees and costs of investigation arising from

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such Gap Third Party Claim(s) incurred by Supplier or any other party indemnified under this Section 35.7B (Gap's Indemnity) associated with such Gap Third Party Claim and incurred prior to Gap's assumption of the defense against any Gap Third Party Claim. After Gap assumes the defense against any Gap Third Party Claim in accordance with this Section, Gap shall not be responsible for the payment of expenses or charges incurred by Supplier in connection with such Gap Third Party Claim, except:

(a) to the extent Gap pre-approves any such charge or expense after Gap assumes control of the defense of such Gap Third Party Claim, provided such approval by Gap is not to be unreasonably withheld; or

(3) Gap's obligation to defend and indemnify Supplier, as applicable, pursuant to this Agreement shall be subject to Supplier having given Gap prompt written notice of the claim or of the commencement of the related action, as the case may be, and information and reasonable assistance, at Gap's expense, for the defense or settlement thereof. Gap shall have sole control of the defense and settlement of such claim or related action, provided that Gap shall not settle such claim or related action in a manner which imposes any obligation on Supplier without the prior written consent of Supplier. Supplier shall be entitled to engage counsel at its sole expense to consult with Gap with respect to the defense of the claim and related action.

35.8

Damage to Gap Facilities, Buildings, or Grounds

Supplier shall repair, or cause to be repaired, at its own cost, any and all damage to Gap's facilities, buildings or grounds caused by Supplier or employees or agents of Supplier. Such repairs shall be made immediately after Supplier has become aware of such damage, but in no event later than thirty (30) days after the occurrence. If Supplier fails to make timely repairs, Gap may make any necessary repairs. All reasonable costs incurred by Gap, as determined by Gap, for such repairs shall be repaid by Supplier by cash payment upon demand, or without limitation of all Gap's other rights and remedies provided by law or under this Agreement, Gap may deduct such costs from any amounts due to Supplier from Gap under this Agreement.

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35.9

Indemnities Throughout Agreement

It is understood and agreed by the Parties that Supplier's indemnification obligations are set forth throughout this Agreement and are not confined to this Section 35 (Insurance and Indemnity). Furthermore, Gap shall approve in writing any attorney Supplier selects to represent Supplier for any indemnification claim under this Agreement.

36.

Confidentiality

36.1

Definition of Proprietary or Confidential Information

"Proprietary or Confidential Information" shall mean, with respect to a Party hereto, all information or material that: (i) is either (a) marked "Confidential," "Restricted," "Proprietary," or with some other, similar, marking, (b) known by the Parties to be considered confidential and proprietary, or (c) from all the relevant circumstances should reasonably be assumed (1) to be confidential and proprietary; (2) to give the Disclosing Party a competitive business advantage, or (3) to be detrimental to the interest of the Disclosing Party if disclosed; and (ii) any unpublished information concerning research activities and plans, customers, marketing, business plans, or sales plans, product development or time to market, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins will be deemed proprietary and confidential to the Disclosing Party, regardless of whether such information under this subpart (ii) of this Section was disclosed intentionally or unintentionally or marked as "confidential" or "proprietary". Provided, however, that Proprietary or Confidential Information may also be used as otherwise expressly permitted by license or otherwise in this Agreement.

36.2

Exclusions

Proprietary or Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Proprietary or Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof:

(a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement;

(b) was already rightfully known to the Party receiving such information (the "Receiving Party") prior to being disclosed by or obtained from the Party (or its agents or affiliates) disclosing such information (the "Disclosing Party") as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party;

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(c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or

(d) as been independently developed by the Receiving Party without access to Proprietary or Confidential Information of the Disclosing Party.

It will be presumed that any Proprietary or Confidential Information in a Receiving Party's possession is not within exceptions (b), (c) or (d) above, and the burden will be upon the Receiving Party to prove otherwise by records and documentation.

36.3

Non-Disclosure and Non-Use

The Parties agree, both during the Term of this Agreement and for a period of * after termination of this Agreement, to hold each other's Proprietary or Confidential Information in strict confidence; provided, however, that as to any portion of the Disclosing Party's Confidential Information that constitutes a trade secret under applicable law, the obligations of this Section will continue for as long as the information continues to constitute a trade secret under applicable law. Each Party recognizes the importance of the other's Proprietary or Confidential Information. In particular, each Party recognizes and agrees that the Proprietary or Confidential Information of the other is critical to their respective businesses and that neither Party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section 36 (Confidentiality) and elsewhere in this Agreement. Accordingly, each Party agrees as follows:

(a) The Receiving Party will hold any and all Proprietary or Confidential Information it obtains in accordance with the standards it employs with respect to its own confidential information (but in no event less than a reasonable standard) and will use and permit use of Proprietary or Confidential Information solely for the purposes of this Agreement; and

(b) The Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Proprietary or Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder.

The Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect all proprietary rights in and ownership of its Proprietary or Confidential Information.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

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36.4

Treatment of Gap Data

The Gap Data is and shall remain the property of Gap and Gap shall retain exclusive rights and ownership of the Gap Data. Without limiting any other warranty or obligation specified in this Agreement, and in particular the confidentiality provisions of this Section 36 (Confidentiality), during the Term (and with respect to PHI, as defined below, and personally identifiable employee information, thereafter in perpetuity), Supplier will not gather, store, log, archive, use or otherwise retain (with the exception of Service Level Agreement information and as otherwise required to meet the audit obligations of this Agreement) any Gap Data or protected health information (as such term is defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA")) ("PHI") in any manner and will not disclose, distribute, sell, share, rent or otherwise transfer any Gap Data to any third party, except as expressly provided in this Agreement or as Supplier may be expressly directed in advance in writing by Gap. Supplier represents, covenants, and warrants that Supplier will use Gap Data and PHI only in compliance with (i) this Agreement, (ii) Gap's then current privacy policies and (iii) all applicable laws (including but not limited to applicable policies and laws related to spamming, privacy (including HIPAA and the laws implementing the EU Privacy Directive), and consumer protection).

36.5

Compelled Disclosures

To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Proprietary or Confidential Information, including Gap Data, in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order or requirement and prior to disclosing Proprietary or Confidential Information, including Gap Data, pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) Business Days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Proprietary or Confidential Information, including Gap Data, pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Proprietary or Confidential Information, including Gap Data, that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party's obligations hereunder with respect to Proprietary or Confidential Information, including Gap Data, so disclosed. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge that confidentiality requirements herein do not preclude disclosures with regard to tax treatment or tax structure of transactions under this Agreement.

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36.6

Return of Proprietary or Confidential Information

On either Party's written request or upon expiration or termination of this Agreement for any reason, the Receiving Party will promptly:

(a)

return or destroy, at requester's option, all originals and copies of all documents and materials it has received containing requester's Proprietary or Confidential Information, including Gap or Supplier Data as applicable; and

(b)

deliver or destroy, at requester's option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by Supplier, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (a), and provide a notarized written statement to requester certifying that all documents and materials referred to in subparagraphs (a) and (b) have been delivered to requester or destroyed, as requested by requester.

36.7

Solicitation of Gap Customers

During the Term and thereafter in perpetuity, Supplier agrees not to use the Gap Data, whether directly or indirectly, to target or solicit Gap customers and business partners, as such, on behalf of itself or any third party, including, on behalf of entities in direct competition with Gap or commit any other act or assist others to commit any other act which might injure the business of Gap. Supplier agrees that it will not use or sell to others lists containing information obtained in connection with this Agreement about any Gap customers. Nothing contained herein shall preclude Supplier from providing services to any Gap customers or business partners who independently contact Supplier, who are responding to a general solicitation of Supplier, or are contacted by Supplier based on information independently derived by Supplier.

36.8

Nonexclusive Equitable Remedy

Each Party acknowledges and agrees that due to the unique nature of Proprietary or Confidential Information, including Gap Data, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may result in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to seek appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of posting any undertaking or bond. Any breach of the confidentiality obligations under this Section 36 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement

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in the exclusive discretion of the non-breaching Party; such termination to be effective upon written notice to the other Party.

36.9

Residual Knowledge

Provided * the patent rights, copyrights, trademarks or service marks of the Disclosing Party or third parties who have licensed or provided materials to the Disclosing Party, * relating to the Services (collectively, "Residual Knowledge") retained by an individual without reference, within * of the use of such Residual Knowledge, to any writing, whether written or electronic, and which either Party, individually or jointly, develops or discloses under this Agreement. Proprietary and Confidential Information that the Recipient Party's personnel deliberately commit to memory *. This Section shall not apply to personally identifiable employment information. Other than as set forth herein, nothing contained in this Section gives * the: (i) * of the Residual Knowledge, (ii) the Disclosing Party's *, or (iii) the Disclosing Party's *.

37.

Audit, Inspection, and Examination of Records

37.1

Maintenance of Books and Records

Supplier shall maintain accurate and complete financial records of its activities and operations relating to this Agreement in accordance with generally accepted accounting principles. Supplier shall also maintain accurate and complete corporate documents, contractual agreements, employment agreements, and all other documents, agreements, and records relating to this Agreement. Supplier shall promptly make available to Gap a summary of the results of any reviews or audits conducted by Supplier, its Affiliates, Subcontractors or their agents or representatives (including internal and external auditors), relating to Supplier's operating practices and procedures to the extent relevant to the Services or Gap.

37.2

Audits Authorized by Gap

Supplier agrees that Gap, (i) Gap's governmental regulators, (ii) Gap's internal auditors, or (iii) Gap's external auditors which are not direct competitors of Supplier in the IT outsourcing business and have been retained on a non-contingent basis (which such direct competitors shall not be deemed to include the accounting division of accounting firms) (collectively, the "Permitted Auditors") shall have access to any Supplier Service Locations and Supplier's Subcontractors' locations, and any of Supplier's or Supplier's Subcontractor's agents, employees or representatives, and the right to examine and audit such Supplier Service Locations and Supplier's Subcontractors' locations, and to examine and audit any and all pertinent documents, records, agreements, transaction, activity, or records relating to the provision of Services under this Agreement for the purpose of: (a) verifying the accuracy of Charges and

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invoices; (b)cooperating with audits and examinations by Gap's regulatory authorities; (c) validating performance by Supplier of its obligations as required by this Agreement; (d) the conduct of Supplier operations and procedures; (e) validating compliance with Section 29.11 (Compliance with Laws); (f) validating compliance with Gap's Policies and Procedures; (g) validating Suppliers compliance with Gap's Sarbanes-Oxley Reporting Requirements and Process (h) assisting Gap with its compliance with the Sarbanes-Oxley Corporate Reform Act; (i) the functionality of the Gap IT Environment; and (j) validating Supplier's compliance with Supplier's security obligations under this Agreement. Supplier shall provide to such auditors and agents any assistance they may reasonably require in connection with such audits and inspections. All such material, including, all documents, agreements, financial records, time cards and other employment records shall be kept and maintained by Supplier and Supplier's contractors and shall be made available to Gap during the Term and for a period of five (5) years thereafter unless Gap's written permission is given to dispose of any such material prior to such time. Such audit shall take place two times per year or more frequently in the event Gap finds a material discrepancy on any audit. The Permitted Auditors shall execute a confidentiality agreement with Gap with provisions which allow Gap to comply with its obligations to Supplier hereunder prior to commencing any audit or examination, and shall comply with Supplier's reasonable security requirements. Except as set forth in Section 37.3 (Audit Settlements) below, Gap shall pay any costs and expenses which are payable to the Permitted Auditors. As necessary to conduct the audit, the Permitted Auditors shall have the right to excerpt, copy, or transcribe any and all pertinent documents, agreements, transaction activity, or records relating to the provision of the Services under this Agreement.

In Supplier's provision of access for the foregoing purposes, Supplier shall not be obilgated to provide such access rights to the extent such access would constitute an unlawful invasion of the privacy rights of any Supplier�s, Supplier's Affiliates�, or Supplier's Subcontractors' employees and would, in the reasonable opinion of Supplier, subject Supplier, Supplier's Affiliates, or Supplier's Subcontractors to legal liability arising solely as a result of providing such access. Supplier shall provide to Gap, or individuals or entities authorized by Gap, reasonable office facilities at Supplier�s, Supplier's Affiliate�s, or Supplier's Subcontractor's locations adequate for Gap to exercise its rights under this Section. Neither Gap nor its Permitted Auditors shall have access to Supplier's costs data or to confidential or proprietary information of any of Supplier's other customers.

Audits will be conducted (1) expeditiously, efficiently, and at reasonable business hours; and (2) upon reasonable prior written notice, excepting physical security audits, which may be conducted without notice.

37.3

Audit Settlements

If any audit reveals that Supplier is not in compliance with any generally accepted accounting principle or other requirement of this Agreement, Supplier and Gap shall promptly meet to review the audit report, and shall mutually agree upon an appropriate and effective manner in which to respond to identified deficiencies, and implement changes

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suggested by the audit at Supplier's cost and expense. If corrective action is suggested by an auditor or regulatory authority, and mutually agreed to by the Parties in accordance with the preceding sentence as a Supplier responsibility, Supplier shall implement such corrective action (at its cost and expense) within the period of time specified by such auditor or regulatory authority. If, at any time during or after the Term, a Permitted Auditor conducts an audit of Supplier regarding the work performed under this Agreement, and if the results of such audit find that Gap's dollar liability for any such work is less than payments made by Gap to Supplier for the work that is the subject of the audit then the difference plus the net present value of the difference as incurred calculated using an interest rate equal to * at the time of audit finding ("Cost of Funds"), which amounts shall be either repaid by Supplier to Gap by cash payment upon demand or, at the sole option of Gap, deducted from any amounts due to Supplier from Gap, whether under this Agreement or otherwise. If the results of such audit find that Gap's dollar liability for any such work is less than payments made by Gap to Supplier for the work that is the subject of the audit by * or more, then Supplier shall also pay Gap's reasonable costs of audit associated with discovering such difference as provided above. Notwithstanding the foregoing, (1) Supplier shall be required to pay for the audit up to the amount of the difference, and (2) all amounts of the audit in excess of the difference shall be split equally among the Parties. Supplier shall not be responsible to pay the Cost of Funds as to audits conducted thirty (30) months or more after an overcharge occurred.

37.4

Internal Audits

In addition to the audits authorized by Gap as set forth above, to the extent Supplier performs any assessment or an internally conducted audit of its business and operations to evaluate its compliance with Gap's Policies and Procedures and/or Supplier's Service delivery or account management, Supplier shall provide Gap with a written report outlining the results of the audit or assessment.

At Supplier's sole cost and expense, Supplier shall cooperate with Gap on SAS 70 Type II audits and on Sarbanes-Oxley related documentation and/or testing activities at the Gap Sites. At Supplier's sole cost and expense, Supplier shall provide a multi-client SAS 70 Type II covering the common processes performed by Supplier in delivering, controlling and governing client accounts from an independent third party auditor. Supplier shall perform the SAS 70 Type II audit either (i) on a quarterly basis, or (ii) on an annual basis with quarterly updates throughout the year. Supplier shall provide Gap with an electronic and written copy of the SAS 70 Type II audit opinion within sixty (60) days after the completion of (i) the annual or quarterly SAS 70 Type II audit, and (ii) all updates thereto (if annual audit option is elected by Supplier). Supplier shall retain, in its sole discretion, either PricewaterhouseCoopers, Ernst & Young, Deloitte & Touche or KPMG for purposes of performing the SAS 70 Type II audit under this Section 37.4 (Internal Audits), unless otherwise agreed by the Parties in writing.

If a SAS 70 Type II audit reveals a significant deficiency in Supplier's implementation of a control specified in Exhibit O (Sarbanes Oxley Reporting Requirements and

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Process), Supplier shall notify Gap promptly upon being advised of such significant deficiency, provide the audit report to Gap within the time provided above, and within fifteen (15) days of receipt by Supplier of the audit, initiate such corrective action (at its cost and expense) as necessary to remediate the subject control(s) and have the control(s) re-audited and validated by the auditor as functioning effectively. In the event Supplier has not delivered to Gap a supplemental audit report reflecting that the significant deficiency have been corrected on or before September 30 of the applicable Contract Year, then Supplier shall reimburse Gap *.

38.

Bankruptcy and Liquidation

In the event Supplier shall: (1) make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver, or trustee for all or a substantial part of its assets; (2) commence any case, proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction whether now or hereafter in effect; (3) have had any such petition or application filed or any such case or proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made, and which is not dismissed for a period of sixty (60) days or more; (4) take any corporate action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian, receiver, or trustee for all or substantial part of its assets; or (5) permit any such custodianship, receivership, or trusteeship to continue undischarged for a period of sixty (60) days or more causing Supplier or any third party, including, a trustee in bankruptcy, to be empowered under state or federal law to reject this Agreement or any agreement supplementary hereto, Gap shall have the following rights:

A. In the event of a rejection of this Agreement or any agreement supplementary hereto, Gap shall be permitted to retain and use any back-up or archival copies of the Intellectual Property under this Agreement for the purpose of enabling it to mitigate damages caused to Gap because of the rejection of this Agreement. Gap shall exert reasonable efforts to mitigate such damages by use of such back-up or archival copies.

B. In the event of a rejection of this Agreement or any agreement supplementary hereto, Gap may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the Bankruptcy Code. Upon written request of Gap to, as applicable, Supplier or the bankruptcy trustee or receiver, Supplier or such bankruptcy trustee or receiver shall not interfere with the rights of Gap as provided in this Agreement or in any agreement supplementary hereto to obtain the Source Material(s) from the bankruptcy trustee or from a third-party escrow agent and shall, if requested, cause a copy of such Source Material(s) to be available to Gap.

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C. Supplier acknowledges and agrees that in the event of Supplier's bankruptcy:

(1) any and all property belonging to Gap of any nature whatsoever, including Gap Intellectual Property, Custom Intellectual Property, Gap Data, and Gap Proprietary or Confidential Information, in Supplier's possession or under Supplier's control shall not constitute part of Supplier's estate in bankruptcy under Section 541 of the Bankruptcy Code; and

(2) in addition to any other rights and remedies of Gap as stated herein, to the maximum extent permitted by law, Gap will have the immediate right to retain and take possession for safekeeping any and all property belonging to Gap of any nature whatsoever, including Gap Intellectual Property, Custom Intellectual Property, Gap Data and Gap Proprietary or Confidential Information, in Supplier's possession or under Supplier's control until such time as the trustee or receiver in bankruptcy can provide Gap with adequate assurances and evidence to Gap that all of Gap's property will be protected from sale, release, inspection, publication or inclusion in any publicly accessible record, document, material or filing. Supplier and Gap agree that without this material provision, Gap would not have entered into this Agreement.

39.

Assignment and Merger

39.1

Assignment

Neither Party may assign this Agreement without the prior written consent of the other, except that Gap may assign its rights and obligations under the Agreement without the approval of Supplier (i) to an entity which acquires all or substantially all of the assets of Gap; or (ii) to any subsidiary or Affiliate provided, however, with respect to this subsection (ii), Gap remains fully liable for and is not relieved from the full performance of its obligations hereunder (including the obligations accruing after such assignment); or (iii) to any successor in a divestiture, merger, or acquisition of all or substantially all of the shares of Gap. Any assignment by Gap as permitted herein must: (1) be in writing; and (2) contain a written acknowledgement of the assignee that it is accepting all obligations of Gap under this Agreement, and agrees to be bound by and discharge each of the Agreement's terms, conditions, and obligations as if it were the original Party hereto.

39.2

Separation

In connection with the sale, transfer, or other disposition of any of Gap's Affiliates, lines of business, or business units for which Supplier was providing Services at the time of sale, transfer, or other disposition, such successor entity shall be entitled to continue to receive Services under the terms of this Agreement for a period of up to twenty-four (24) months after the closing date of such transaction. Gap will remain liable for all its obligations under the Agreement including, payment of all Charges relating to such entity's use of the Services and unique one-time charges (such as obtaining additional consents or licenses) resulting from the sale, transfer or other disposition to a third party, which Charges are not otherwise included in Exhibit C (Fees and Resource Baselines). Gap shall be entitled to terminate any or all such

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Services upon thirty (30) days written notice to Supplier. There shall be no termination fee or penalty to Gap or a successor entity arising from the exercise of Gap's rights hereunder. Notwithstanding the foregoing, in the event Gap terminates one or more Services provided by Supplier under this Agreement, but not the entire Agreement, Gap shall pay redeployment costs that may be incurred as a result of such termination provided that Supplier provides Gap in advance with a reasonable written identification and estimate of such costs. In addition to the Services set forth in Section 34 (Termination/Expiration Assistance Services), as part of such separation, Supplier shall provide Gap with separation support including assessments, transition planning, and migration support.

39.3

Acquisitions and Mergers by Gap

If Gap acquires, or merges with, an entity contracting for services from Supplier, Supplier and the several entities will negotiate in good faith in an attempt to integrate the service being provided by Supplier to the several entities in order to reach a mutually beneficial agreement for Supplier and the several entities, including, reducing redundancies, increasing efficiencies, and migrating the entities to a unified platform. In the event the Parties reach an agreement, there shall be no early termination or other penalty under the several entities' existing agreement(s). In the event of an acquisition or merger in accordance with this Section 39.3 (Acquisitions and Mergers by Gap), Supplier shall provide the Services required pursuant to Section 15 (Ongoing Business Divestitures and Acquisitions) of Exhibit A.2 (Cross Functional Services).

40.

Extraordinary Events

40.1

Defined

As used in this Agreement, an "Extraordinary Event" shall mean a circumstance in which an event or discrete set of events has occurred or is planned with respect to the business of Gap that results or will result in a change in the scope, nature or volume of the Services that Gap will require from Supplier, and which is expected to increase or decrease Gap's utilization of any billable Resource Unit by * or more, and such changes persist or are expected to continue for * or more months.

Examples of the kinds of events that might cause such substantial increases or decreases include:

A. changes in locations where Gap operates, including plant closures;

B. changes in products of, or in markets served by, Gap;

C. mergers, acquisitions or divestitures by Gap;

D. changes in the method of service delivery;

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

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E. changes in market priorities or market conditions; or

F. changes in the number of business units being serviced by Supplier that were not anticipated as of the Reference Date.

40.2

Extraordinary Event Pricing

If an Extraordinary Event occurs, *. Supplier and Gap shall determine the efficiencies, economies, and savings resulting from such Extraordinary Event and Supplier shall implement such efficiencies, economies or savings in accordance with a mutually agreed to Statement of Work. Charge adjustments shall be based on * (including *) and related *, and shall be phased in accordance with the Statement of Work as required to pass through to Gap the full benefit of the efficiencies, economies, and savings. An Extraordinary Event shall not result in Charges to Gap being * than such Charges would have been if the * had been applied, unless and to the extent such Extraordinary Event results in New Services (e.g., Gap requires that Supplier create a new infrastructure to support an acquired entity). Gap may, at its sole option, elect at any time to forego its rights under this Section 40 (Extraordinary Events) and instead, apply the *.

41.

Use of Reduced Resource Credits

41.1

Business Impacts

41.2

Third Source and Insource Limits on RRCs

Gap's use of RRCs arising from its decision to perform Services that are provided by Supplier and included in the Charges, either by itself ("insource") or through the engagement of a third party ("third source"), shall not exceed in any Contract Year * of the first Contract Year's total Charges, provided that the RRCs as to voice and data transport Charges shall not exceed in any Contract Year * of the Base Charge for voice and data transport Charges scheduled for that Contract Year in Exhibit C (Fees and Resource Baselines). To the extent RRCs in a single Functional Service Area exceed * of the first Contract Year's total Charges for that Functional Service Area, Gap will pay for Stranded Assets to the extent the RRCs cause such assets to be unnecessary for Supplier to

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deliver the Services. RRCs resulting from a business impact as provided in Section 41.1 (Business Impacts) shall be included in the determination of the total RRCs available to Gap in any Contract Year arising from its decision to third source or insource.

41.3

RRCs To Include IT Tower Pricing

Section 8 (Adjustments to Resource Unit IT Configurations) of Exhibit C (Fees and Resource Baselines) sets forth the methodology for implementing RRCs for purposes of this Section 41 (Use of Reduced Resource Credits) and Section 40.2 (Extraordinary Event Pricing).

42.

Amendment of Agreement

No alteration, amendment, or modification of the terms of this Agreement shall be valid or effective unless in writing and signed by Supplier and Gap.

43.

Waiver

All waivers under this Agreement shall be in writing in order to be effective. No waiver by a Party of any breach of this Agreement or waiver of any warranty, representation, or other provision hereunder shall be deemed to be a waiver of any other breach, warranty, representation, or provision (whether preceding or succeeding, and whether or not of the same or similar nature), and no acceptance of performance by a Party after any breach by the other Party shall be deemed to be a waiver of any breach of this Agreement or of any representation, warranty, or other provision, whether or not the Party accepting performance knows of such breach at the time of acceptance. No failure or delay by a Party to exercise any right it may have by reason of the default of the other Party shall operate as a waiver of default or modification of this Agreement or shall prevent the exercise of any right of the non-defaulting Party under this Agreement.

44.

Independent Contractor

Supplier acknowledges that it is at all times acting as an independent contractor under this Agreement and except as specifically provided herein, not as an agent, employee, or partner of Gap. Each Party agrees to be solely responsible for all matters relating to compensation of its employees, including, compliance with local, state, federal, and foreign laws governing its personnel, including, workers' compensation, Social Security, withholding and payment of any and all federal, state and local personal income taxes, disability insurance, unemployment, and any other taxes for such persons, including any related employer assessment or contributions required by law, and all other regulations governing such matters, and the payment of all salary, vacation and other employee benefits. At each Party's expense as described herein, such Party agrees to defend, indemnify, and hold harmless the other Party, its officers, agents, employees, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, attorneys' fees as provided herein paid to a third party arising out of such Party's alleged failure to pay, when due, all such taxes and obligations (collectively referred to for purposes of this Section 44 as �Employment

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Claim(s)�). The indemnifying Party shall pay to the other Party any and all amounts that a court finally awards to a third party or that Supplier agrees to in settlement with a third party of any such Employment Claim as provided in Section 35.7 (General Indemnity).

45.

Subcontractors

45.1

Approval Required

Gap has relied, in entering into this Agreement, on the reputation of, and on obtaining the personal performance of, Supplier itself and Supplier Approved Subcontractors listed in Exhibit D.23 (Subcontractors). Consequently, no performance of this Agreement, or any additional portion thereof, shall be subcontracted by Supplier without the prior written consent of Gap. Any attempt by Supplier to subcontract any performance, obligation, or responsibility under this Agreement, without the prior written consent of Gap, shall be null and void and shall constitute a material breach of this Agreement.

Notwithstanding the above, Supplier may, in the ordinary course of business, subcontract (i) for third party services or products that are not a material portion of the Services, that are not exclusively dedicated to Gap and that do not include regular direct contact with Gap or Gap Affiliate personnel or the performance of Services at Gap sites, or (ii) with temporary personnel firms for the provision of temporary contract labor (collectively, "Shared Subcontractors"); provided, that such Shared Subcontractors possess the training and experience, competence and skill to perform the work in a skilled and professional manner. Gap shall have no approval right with respect to such Shared Subcontractors. If, however, Gap expresses dissatisfaction with the services of a Shared Subcontractor, Supplier shall work in good faith to resolve Gap's concerns on a mutually acceptable basis and, at Gap request, replace such Shared Subcontractor at no additional cost to Gap.

45.2

Request for Approval

If Supplier desires to subcontract any portion of its performance, obligations, or responsibilities under this Agreement, Supplier shall make a written request to Gap for written Approval to enter into the particular subcontract. Supplier's request to Gap shall include:

(a) The reason(s) for the particular subcontract;

(b) A detailed description of the work to be performed by the proposed Subcontractor;

(c) Identification of the proposed Subcontractor and an explanation of why and how the proposed Subcontractor was selected; and

(d) Any other information reasonably requested by Gap.

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45.3

Review of Request

Gap will review Supplier's request to subcontract and determine, in its sole and absolute discretion, whether or not to consent to such request on a case-by-case basis.

45.4

Supplier Obligations Remain Unchanged

Supplier shall remain responsible to Gap for any and all performance required under this Agreement by Supplier or its approved Subcontractors, including, the obligation to properly supervise, coordinate, and perform all work required under the Services, and no subcontract shall bind or purport to bind Gap or excuse Supplier of performance. Supplier shall be solely liable and responsible for any and all payments and other compensation to, and the performance of, all Subcontractors and their officers, employees, agents, and independent contractors. All agreements between Supplier and any Subcontractors shall include provisions at least as favorable to Gap as those contained in this Agreement.

45.5

Approval of Subcontractor Personnel/Termination

In the event Gap consents to any subcontracting, such consent shall be subject to Gap's right to give prior and continuing approval of any and all Subcontractor personnel providing services under such subcontract. Supplier shall assure that any Subcontractor personnel, excluding Shared Subcontractors, not reasonably approved in writing by Gap shall be immediately removed from the provision of any services under the particular subcontract or that other action is taken as requested by Gap.

Further, in the event that Gap consents to any subcontracting, such consent shall be subject to Gap's right to require the removal of a Subcontractor, in whole or in part, at any time upon written notice to Supplier upon the occurrence of a material breach of this Agreement, provided such breach is not cured within thirty (30) days of such notice. Gap shall not be liable or responsible in any way to Supplier, to any Subcontractor, or to any officers, employees, or agents of Supplier or any Subcontractor, for any claims, demands, damages, liabilities, losses, costs, or expenses, including, defense costs and legal, accounting and other expert, consulting or professional fees, in any way arising from or related to Gap's exercise of such rights.

46.

Interpretation of Agreement

46.1

Conflict Between Agreement and Exhibits

Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, and O are attached to, incorporated herein by reference, and form a part of this Agreement. Exhibits A through O are referred to individually and collectively below as the "Exhibits." The Schedules attached to the Exhibits are also incorporated herein by reference, and form a part of this Agreement.

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In the event of any conflict or inconsistency in the definition or interpretation of any word, responsibility, schedule, or the contents or description of any task, subtask, deliverable, goods, service, or other work, or otherwise, between the body of this Agreement, the Exhibits, and/or Schedules, between Exhibits, or between Schedules such conflict or inconsistency shall be resolved by giving precedence first to the body of this Agreement, and then to the Exhibits and Schedules according to the following priority:

(1) Exhibit A.2 (Cross Functional Services Statement of Work), Exhibit A.3 (Store Services Statement of Work), Exhibit A.6 (Server Services Statement of Work), Exhibit A.5 (Managed Network Services Statement of Work), and Exhibit A.4 (End User Support Services Statement of Work);

(2) Exhibit A.1 (Glossary to the Functional Service Area Statements of Work);

(3) Exhibit B (Service Level Agreement);

(4) Exhibit C (Fees and Resource Baselines);

(5) Exhibit C.7 (Financial Responsibility Matrix);

(6) Exhibit E (Innovation Proposals), Exhibit F (Form of Implementation Agreement), Exhibit G (Service Recipients), Exhibit H (Human Resources), Exhibit I (Form of Project SOW), Exhibit J (Gap Competitors), Exhibit L (Monthly Performance Review � Standing Agenda), Exhibit M (Key Employees), Exhibit N.1 (Supplier Guarantee) and Exhibit N.2 (Gap Guarantee), and Exhibit O (Sarbanes-Oxley Reporting Requirements and Process); and

(7) Exhibit D (Additional Exhibits).

46.2

Choice of Law

This Agreement and performance under it shall be governed by and construed in accordance with the laws of the State of California, without the application of its conflict of laws provisions.

46.3

Venue and Jurisdiction

The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal (if permitted by law and a Party elects to file an action in federal court) courts located in San Francisco, California. This choice of venue is intended by the Parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the Parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section 46.3 (Venue and Jurisdiction). Each Party waives any right it may have to assert the doctrine of forum non

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conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section 46.3 (Venue and Jurisdiction). Notwithstanding the foregoing, if any action or proceeding outside of the state or federal courts in San Francisco, California, is necessary to collect or enforce any order, injunction, award or judgment of the United States court, there shall be no contractual restriction on the jurisdiction or venue for such action or proceeding.

46.4

Agreement Drafted by All Parties

This Agreement is the result of arm's length negotiations between the Parties and shall be construed to have been drafted by all parties such that any ambiguities in this Agreement shall not be construed against either Party.

46.5

Terminology

All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words "herein," "hereof," and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section, subsection or other subpart. The words "include" and "including" shall not be construed as terms of limitation.

46.6

Section Headings

The section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement.

46.7

Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the Parties as of the Reference Date at such time as all the signatories hereto have signed a counterpart of this Agreement.

46.8

Appointment of Agent for Service of Process

During the Term of this Agreement and for a period of two (2) years thereafter, Supplier shall maintain, for each Affiliate rendering Services under this Agreement and any Implementing Agreements, registered agents authorized to receive service of process within the State of California, and shall provide the name and street address of such registered agents to Gap within thirty (30) days of the Reference Date and any change during the Term.

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47.

Notices

Any notices required or permitted to be given hereunder by either Party to the other shall be given in writing: (1) by personal delivery; (2) by electronic facsimile with confirmation sent by United States first class registered or certified mail, postage prepaid, return receipt requested; (3) by bonded courier or by a nationally recognized overnight delivery company; or (4) by United States first class registered or certified mail, postage prepaid, return receipt requested, in each case, addressed to the Parties as follows (or to such other addresses as the Parties may request in writing by notice given pursuant to this Section):

All Notices:


		To Company:
				*

		Fax:		*

		With copies to:		*



		Fax:		*

		And		*

				And

		To: Supplier		*

		Fax:		*

		With copy to:		*

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

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Notices shall be deemed received on the earliest of personal delivery, upon delivery by electronic facsimile with confirmation from the transmitting machine that the transmission was completed, twenty-four (24) hours following deposit with a bonded courier or overnight delivery company; or seventy-two (72) hours following deposit in the U.S. Mail as required herein.

48.

Entire Agreement

This Agreement contains the entire agreement between Supplier and Gap with respect to the subject matter of this Agreement, and it supersedes all other prior and contemporary agreements, understandings, and commitments between Supplier and Gap with respect to the subject matter of this Agreement.

49.

Severability

If any provision of this Agreement is found to be invalid or unenforceable by any court, such provision shall be ineffective only to the extent that it is in contravention of applicable laws without invalidating the remaining provisions hereof.

50.

Electronic Transfer of Intellectual Property

Whenever practical, Supplier agrees to deliver Software deliverable under this Agreement including any updates or patches, via download, File Transfer Protocol (FTP), or through the use of Supplier's copy of the tangible software media. Notwithstanding anything to the contrary in Section 3.3 (Documentation), upon completion of such delivery, Supplier shall remove the tangible software media and not provide any of the tangible software media to Gap.

51.

Force Majeure

Neither Party shall be liable for any delay or failure to perform (i) if and to the extent such delay or failure arises from an act of God or of the public enemy, act of civil disobedience, epidemic, war, or insurrection; and (ii) provided the non-performing Party is without fault and the delay or failure could not have been prevented by reasonable precautions. In such event, the non-performing Party is excused from further performance for as long as such circumstances prevail and the Party continues to use its best efforts to recommence performance and mitigate the impact of its non-performance. Any Party so delayed shall promptly notify the other Party and describe the circumstances causing the delay. If an event substantially prevents

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or delays performance of the Services necessary for the performance of critical Gap functions for more than *, Gap, at its sole discretion, may procure Services from an alternate source, and Supplier shall be liable for payment for such Services. If Supplier is unable to perform the Services within *, Gap, at its sole discretion, may (i) terminate any portion of the Agreement affected by the nonperformance and the charges shall be equitably adjusted; or (ii) terminate the Agreement as of the date specified by Gap in a written notice to Supplier without payment of Termination Charges as set forth in Exhibit C.6 (Termination for Convenience Fees). Gap shall be responsible for the Stranded Costs arising from the termination. Supplier shall not have the right to any additional payments from Gap as a result of any force majeure occurrence. The existence of a force majeure event shall not relieve Supplier of its obligation to use its best efforts to execute Gap's business continuity plan and disaster and recovery plan for Gap, or to pursue its best practice processes, including, as to stores, Severity 1 response obligations to restore Gap operations, except to the extent that execution of the business continuity plan, disaster and recovery plan, or operation restoration activity is itself prevented by the force majeure event.

52.

Liens

Supplier agrees to keep Gap, all of the real and personal property of Gap, and the Services free and clear of all liens or lien claims. Should any lien or lien claim be asserted for any reason, Gap may, at its sole discretion (i) pay the amount of such lien or lien claim; (ii) deduct such amounts from payments due to Supplier; and/or (iii) require Supplier to obtain a properly executed release of lien satisfactory to Gap.

53.

Demonstrations and Promotions

53.1

Promotions Referring to Gap

Supplier agrees that Gap shall be entitled to review and Approve any and all promotional materials that contain a reference to Gap as contemplated herein before publication or distribution of same. No public disclosures by Supplier relating to this Agreement, except for internal announcements or disclosures required to meet legal or regulatory requirements, shall be made without the prior written approval of authorized representatives of the other Party.

53.2

Demonstration and Promotions Not Warranties

In no event shall any demonstration or any promotional materials pursuant to this Section constitute an endorsement, representation or warranty, express or implied, by Gap. In the event of a dispute between Gap and Supplier, Gap's agreement to participate in promotions and demonstrations under this Section and all statements made by Gap in connection with such activities shall not be deemed an admission or declaration against interest of Gap in any trial or dispute resolution proceeding between the Parties.

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

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53.3

[Signature Page Follows]

*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Gap Confidential and Proprietary Information

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IN WITNESS WHEREOF, the Parties have executed this Agreement to become effective as of the Reference Date.


THE GAP, INC.		INTERNATIONAL BUSINESS MACHINES CORPORATION

By:		By:
Name:	Michael B. Tasooji	Name:	Mark S. Brewer
Title:	Executive Vice President and Chief Information Officer	Title:	Vice President Global Strategic Relations IBM Global Services

Gap Confidential and Proprietary Information

133