MASTER PPROFESSIONAL SERVICE AGREEMENT

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Title: MASTER PPROFESSIONAL SERVICE AGREEMENT
Governing Law: California Date: 12/22/2006
Industry: Business Services Sector: Services

Exhibit 10.36

MASTER PPROFESSIONAL SERVICE AGREEMENT

Effective October 1, 2006

Execution Copy

TABLE OF CONTENTS


	Page
1. BACKGROUND AND OBJECTIVES		1
1.1 ITO Services		1
1.2 Goals and Objectives		1
1.3 Interpretation		2

2. DEFINITIONS AND DOCUMENTS		2
2.1 Definitions		2
2.2 Other Terms		17
2.3 Associated Contract Documents		17

3. TERM		18
3.1 Initial Term		18
3.2 Extension		18

4. SERVICES		18
4.1 Overview		18
4.2 Transition Services		19
4.3 Termination Assistance Services		21
4.4 Use of Third Parties		25
4.5 Companion Agreements		26

5. REQUIRED CONSENTS		27
5.1 Supplier Responsibility		27
5.2 Financial Responsibility		27
5.3 Contingent Arrangements		27
5.4 Failure to Obtain Required Consents		27

6. FACILITIES, SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES		27
6.1 Service Facilities		27
6.2 Use of Supplier Facilities		31
6.3 ABM Rules/Employee Safety		31
6.4 Software		32

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TABLE OF CONTENTS
(continued)


	Page
6.5 Equipment		33
6.6 Third Party Contracts		36
6.7 Assignment of Licenses, Leases and Related Agreements		37
6.8 License to ABM Third Party Software and Materials		38
6.9 License to Supplier Third Party Software and Materials		39
6.10 Managed Third Parties		40
6.11 Notice of Defaults		41
6.12 Environmental		41

7. SERVICE LEVELS		42
7.1 General		42
7.2 Service Level Credits and Deliverable Credits		43
7.3 Problem Analysis		43
7.4 Continuous Improvement Reviews		43
7.5 Measurement and Monitoring		44
7.6 Satisfaction Surveys		44
7.7 Notice of Adverse Impact		45

8. PROJECT PERSONNEL		45
8.1 Transitioned Personnel		45
8.2 Employee Benefit Plans		47
8.3 Other Employee Matters		49
8.4 Key Supplier Personnel		50
8.5 Supplier Account Executive		51
8.6 Supplier Personnel Are Not ABM Employees		51
8.7 Replacement, Qualifications, and Retention of Supplier Personnel		51
8.8 Training/Career Opportunities		52
8.9 Conduct of Supplier Personnel		52
8.10 Restrictions on Changes in Supplier Staffing/Facilities		53
8.11 Substance Abuse		53
8.12 Collective Bargaining Agreements and warn Act		53

9. SUPPLIER RESPONSIBILITIES		54

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TABLE OF CONTENTS
(continued)


	Page
9.1 Policy and Procedures Manual		54
9.2 Reports		55
9.3 Governance; Meetings		56
9.4 Quality Assurance and Internal Controls		56
9.5 Architecture, Standards and Information Technology Planning		57
9.6 Change Control		58
9.7 Software Currency		60
9.8 [RESERVED]		61
9.9 Access To Specialized Supplier Skills and Resources		61
9.10 Audit Rights		61
9.11 Agency and Disbursements		65
9.12 Subcontractors		66
9.13 Telecommunications Matters		66
9.14 FCC Actions		67
9.15 Retained Systems and Business Processes		68
9.16 Network Configuration Data		69

10. ABM RESPONSIBILITIES		69
10.1 Responsibilities		69
10.2 Savings Clause		70

11. CHARGES		70
11.1 General		70
11.2 Pass-Through Expenses		71
11.3 Incidental Expenses		72
11.4 Taxes		72
11.5 New Services		75
11.6 Extraordinary Events		76
11.7 Technology		77
11.8 Project Resources		78
11.9 Proration		79
11.10 Refundable Items		79

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TABLE OF CONTENTS
(continued)


	Page
11.11 ABM Benchmarking Reviews		79
11.12 Transport Rate Review		81
11.13 Procurement		81

12. INVOICING AND PAYMENT		82
12.1 Invoicing		82
12.2 Payment Due		83
12.3 Set Off		83
12.4 Disputed Charges		83

13. ABM DATA AND OTHER PROPRIETARY INFORMATION		85
13.1 ABM Ownership of ABM Data		85
13.2 Safeguarding ABM Data		85
13.3 Confidentiality		86
13.4 File Access		88

14. OWNERSHIP OF MATERIALS		89
14.1 ABM Owned Materials		89
14.2 Developed Materials		90
14.3 Supplier Owned Materials		91
14.4 Other Materials		92
14.5 General Rights		93
14.6 ABM Rights Upon Expiration or Termination of Agreement		93

15. REPRESENTATIONS AND WARRANTIES		96
15.1 Work Standards		96
15.2 Maintenance		96
15.3 Efficiency and Cost Effectiveness		97
15.4 Software		97
15.5 Non-Infringement		98
15.6 Authorization		98
15.7 Inducements		99
15.8 Malicious Code		99
15.9 Disabling Code		99

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TABLE OF CONTENTS
(continued)


	Page
15.10 Compliance with Laws		100
15.11 Interoperability		102
15.12 Disclaimer		102

16. INSURANCE AND RISK OF LOSS		102
16.1 Insurance		102
16.2 Risk of Loss		104

17. INDEMNITIES		104
17.1 Indemnity by Supplier		104
17.2 Indemnity by ABM		106
17.3 Additional Indemnities		107
17.4 Infringement		107
17.5 Indemnification Procedures		108
17.6 Indemnification Procedures — Governmental Claims		109
17.7 Subrogation		109

18. LIABILITY		109
18.1 General Intent		109
18.2 Force Majeure		109
18.3 Limitation of Liability		111

19. DISPUTE RESOLUTION		114
19.1 Informal Dispute Resolution		114
19.2 Mediation		115
19.3 Jurisdiction		115
19.4 Continued Performance		115
19.5 Governing Law		116

20. TERMINATION		116
20.1 Termination for Cause		116
20.2 Termination for Convenience		117
20.3 Termination Upon Supplier Change of Control		117
20.4 Termination Upon ABM Mergers and Acquisitions		117
20.5 Termination for Insolvency		117

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TABLE OF CONTENTS
(continued)


	Page
20.6 ABM Rights Upon Supplier’s Bankruptcy		118

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

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Exhibit 10.36

MASTER PROFESSIONAL SERVICES AGREEMENT

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

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

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

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

1.		BACKGROUND AND OBJECTIVES

1.1		ITO Services .

		ABM desires that certain application management, telecommunication, IT infrastructure, help desk, and other information technology services presently performed and managed by or for ABM and the Eligible Recipients and certain additional information technology services, as each is described in this Agreement (collectively “ ITO Services ”) be performed and managed by Supplier. Supplier has carefully reviewed ABM’s requirements, has performed all due diligence it deems necessary, and desires to perform and manage such ITO Services for ABM and the Eligible Recipients.

1.2		Goals and Objectives .

		The Parties acknowledge and agree that the specific goals and objectives of the Parties in entering into this Agreement are to:

(a)

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

	(i)		providing Services and solutions in full alignment with business unit requirements and exploiting the technologies and associated services for competitive advantage;

	(ii)		maintaining and continuously improving quality of the Services, improving availability and responsiveness of the Services and meeting deliverables on time and on budget;

	(iii)		reducing overall expenses and efficiently deploying capital associated with the Services; and

	(iv)		measuring and improving overall customer satisfaction, proactively anticipating customer needs and maintaining clear accountability with respect to the Services; and

(b)

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

(i)

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

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(ii)

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

1.3		Interpretation .

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

2.		DEFINITIONS AND DOCUMENTS

2.1		Definitions .

		As used in this Agreement:

	(1)		“ ABM Data ” shall mean any data or information of ABM or any Eligible Recipient that is provided to or obtained by Supplier in connection with the negotiation and execution of this Agreement or the performance of its obligations under this Agreement, including data and information with respect to the businesses, customer, operations, facilities, products, rates, regulatory compliance, competitors, consumer markets, assets, expenditures, mergers, acquisitions, divestitures, billings, collections, revenues and finances of ABM or any Eligible Recipient. ABM Data also shall mean any data or information of ABM or an Eligible Recipient (i) created, generated, collected or processed by Supplier in the performance of its obligations under this Agreement, including data processing input and output, asset information, Reports, third party service and product agreements of ABM or an Eligible Recipient, retained expenses and Pass-Through Expenses or (ii) that resides in or is accessed through Software, Equipment or Systems provided, operated, supported, or used by Supplier in connection with the Services, as well as information derived from this data and information. ABM Data shall not include any Supplier Proprietary Information.

	(2)		“ ABM Facilities ” means the facilities listed in Schedule O.1 provided by ABM or the Eligible Recipient for the use of Supplier to the extent necessary to provide the Services.

	(3)		“ ABM Owned Materials ” shall have the meaning given in Section 14.1(a) .

	(4)		“ ABM Owned Software ” means Software owned by ABM or an ABM Affiliate or an Eligible Recipient and used, operated, maintained or supported by Supplier or a Subcontractor under or in connection with this Agreement.

	(5)		“ ABM Personal Data ” shall mean that portion of ABM Data that is subject to any Privacy Laws.

	(6)		“ ABM Contract Manager ” shall have the meaning given in Section 10.1 .

	(7)		“ ABM Personnel ” shall mean the employees, agents, contractors or representatives of ABM employed by ABM or its Affiliates or Eligible Recipients as of the Effective Date who performed, in the ordinary course of business, any of the services to be provided by Supplier during the twelve (12) months preceding the Commencement Date.

	(8)		“ ABM Sites ” or “ Sites ” shall mean the offices or other facilities listed on Schedule O.5 at or to which Supplier is to provide the Services.

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	(9)		“ ABM Third Party Contractors ” shall have the meaning given in Section 4.4(a) .

	(10)		“ Acceptance ” shall mean the determination, in ABM’s reasonable discretion, and in accordance with the Policy and Procedures Manual or other criteria agreed to by the Parties, following implementation, installation, testing and execution in the production environment for an agreed upon number of business cycles that Software, Equipment, Systems and/or other contract deliverables are in Compliance in all material respects with the Specifications.

	(11)		“ Additional Resource Charge ” or “ ARC ” is the charge per Resource Unit that is applicable whenever the actual consumption of a Resource Unit by the Eligible Recipients exceeds the Resource Baseline set forth in Schedule J . The total additional charges will be calculated by multiplying the Additional Resource Charge by the number of Resource Units in excess of the Resource Baseline actually consumed by the Eligible Recipients.

	(12)		“ Affected Employees ” means the individuals identified in Schedule M .

	(13)		“ Affiliate ” shall mean, generally, with respect to any Entity, any other Entity Controlling, Controlled by or under common Control with such Entity.

	(14)		“ Agreement ” shall have the meaning given in the Preamble.

	(15)		“ Allocation of Pool Percentage ” means for a particular Critical Performance Indicator, the portion of At Risk Amount allocated to such Critical Performance Indicator and used to calculate the Service Level Credit payable to ABM in the event of a Service Level Default in such Critical Performance Indicator. In no event shall the sum of all Allocations of Pool Percentage exceed one hundred percent (100%).

	(16)		“ Antivirus Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to monitor for, filter and detect the presence of Malicious Code and repair or remediate the effects of Malicious Code to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Antivirus Software shall include all such programs or programming in use as of the Effective Date (i) that are set forth in Schedule A , or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Antivirus Software also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(17)		“ Applications Software ” or “ Applications ” shall mean those software application programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) used to support day-to-day business operations and accomplish specific business objectives to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Applications Software shall include all such programs or programming in use as of the Effective Date (i) that are set forth in Schedule A , or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Applications Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(18)		“ Asset Management Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to record, track and report information required to manage asset inventories to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Asset Management Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to

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			which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Asset Management Software also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(19)		“ At Risk Amount ” means, for any month during the Term, an amount, expressed as a percentage of the Monthly Charges, which is the maximum amount that the Supplier will have at risk for Service Level Credits. The At Risk Amount shall be 10% of the Monthly Charges.

	(20)		“ Authorized User ” means (i) all Eligible Recipients and their respective employees, contractors, subcontractors, customers, agents and representatives (other than Supplier and its Subcontractors), and (ii) other persons or Entities designated by ABM to receive or use the Systems or Services provided by Supplier.

	(21)		“ Baseline FTE Project Hours ” and “ Baseline FTE Project Dollars ” shall have the meaning given in Section 11.8(a) .

	(22)		“ Benchmark Standard ” has the meaning given in Section 11.11(d) .

	(23)		“ Benchmarker ” has the meaning given in Section 11.11(a) .

	(24)		“ Benchmarking ” has the meaning given in Section 11.11(a) .

	(25)		Reserved.

	(26)		“ Change Management ” means the processes and procedures relating to managing, planning and performing all System Changes pertaining to the Services, including System Changes to individual components, and the coordination of such changes across all components as set forth in Schedule E and the Policy and Procedures Manual. Change Management will support and include checkpoints to ensure that System Changes may be implemented in accordance with the Change Control Procedures.

	(27)		“ Charges ” means the amounts set forth in this Agreement, including in Article 11 and Schedule J , as charges for the Services, excluding Pass-Through Expenses, Service Taxes and ABM retained expenses.

	(28)		“ Commencement Date ” shall mean October 1, 2006, or such other date as the Parties may agree upon in writing as the date on which Supplier will assume full responsibility for the Services.

	(29)		“ Compiler ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to compile source code to executable code (e.g., C++, ADA, Cobol, JAVA, Fortran) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Compiler shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Compiler also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(30)		“ Compliance ” and “ Comply ” shall mean, with respect to Software, Equipment, Systems or other contract deliverables to be implemented, designed, developed, delivered, integrated, installed and/or tested by Supplier, compliance in all material respects with the Specifications.

	(31)		“ Contract Year ” means, for the first Contract Year, a period commencing on the Commencement Date and ending on October 31, 2006, and, for each ensuing Contract Year, a twelve (12) month

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			period commencing on November 1 and ending on October 31 (or, if earlier, on the last day of the Term). If any Contract Year is less than twelve (12) months, the rights and obligations under this Agreement that are calculated on a Contract Year basis will be proportionately adjusted for such shorter period.

	(32)		“ Control ” and its derivatives shall mean: (a) the legal, beneficial, or equitable ownership, directly or indirectly, of (i) at least 50% of the aggregate of all voting equity interests in an Entity or (ii) equity interests having the right to at least 50% of the profits of an Entity or, in the event of dissolution, to at least 50% of the assets of an Entity; (b) the right to appoint, directly or indirectly, a majority of the board of directors; (c) the right to control, directly or indirectly, the management or direction of the Entity by contract or corporate governance document; or (d) in the case of a partnership, the holding by an Entity (or one of its Affiliates) of the position of sole general partner.

	(33)		“ Critical Deliverable ” shall have the meaning given in Schedule G .

	(34)		“ Critical Performance Indicator(s )” or “ CPI ” shall have the meaning given in Schedule G .

	(35)		“Database Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to deliver database services to the enterprise to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Database Software includes database engines such as Sybase, Oracle, DB2. SQL Server and associated modules (e.g., form builders, report generators, and backup software) and the tools used to manage and monitor performance of the database. Database Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Database Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(36)		“ Deliverable ” means a Developed Material that is identified as a deliverable in the Agreement, or in a statement of work, project plan, or other writing by or between the Parties.

	(37)		“ Deliverable Credits ” means the monetary amount(s) that Supplier shall pay to ABM (or apply against monthly Charges) if Supplier fails to meet its obligations with respect to a Critical Deliverable, as further described in Section 7.2(b) and Schedules G and H .

	(38)		“ Derivative Work ” means a work based on one or more preexisting works, including a condensation, transformation, translation, modification, expansion, or adaptation, that, if prepared without authorization of the owner of the copyright of such preexisting work, would constitute a copyright infringement under applicable Law, but excluding the preexisting work.

	(39)		“ Developed Materials ” shall mean any Materials (including Software), or any modifications, enhancements or Derivative Works thereof, developed by or on behalf of Supplier for ABM or the Eligible Recipients in connection with or as part of the Services.

	(40)		“ Development Tool ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used in the development, testing, deployment and maintenance of Applications to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Development Tools shall include all such products in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Development Tools also shall include all such products selected and/or

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			developed on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(41)		“ Direct Supplier Competitors” shall mean the Entities identified in Schedule P.2 , as such list of Entities may be modified by Supplier from time to time, provided, however, that such list shall at no time exceed twenty (20) Entities unless otherwise agreed by the Parties.

	(42)		“ Direct ABM Competitors ” shall mean the Entities identified in Schedule P.1 , as well as their Affiliates, successors and assigns, as such list of Entities may reasonably be modified by ABM from time to time.

	(43)		“ Effective Date ” shall have the meaning given in the preamble to this Agreement.

	(44)		“ Eligible Recipients ” means, collectively, the following:

	(a)		ABM;

	(b)		any Entity that is an Affiliate of ABM on the Commencement Date, or thereafter becomes an Affiliate of ABM;

	(c)		any Entity that purchases after the Commencement Date from ABM or any Affiliate of ABM, all or substantially all of the assets of ABM or such Affiliate, or of any division, marketing unit or business unit thereof, provided that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;

	(d)		any Entity that after the Effective Date is created using assets of ABM or any Affiliate of ABM, provided that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;

	(e)		any Entity into which ABM or any Affiliate of ABM merges or consolidates, provided that such Entity has assumed ABM’s obligations under this Agreement, and provided further that such Entity agrees in writing to be bound by the terms and conditions of this Agreement;

	(f)		any Entity which merges into or consolidates with ABM or any Affiliate of ABM;

	(g)		any Entity, including any corporation, joint venture, partnership or manufacturing or retail facility, in which on or after the Commencement Date, ABM or any Affiliate of ABM has an ownership interest and as to which ABM or such Affiliate has management or operational responsibility;

	(h)		subject to Section 11.1(e)(iii) , any person or Entity engaged in the provision of products or services to ABM or an Eligible Recipient identified in clauses (a) through (g) (e.g., contract personnel working at an ABM Site), but only in connection with the provision of such products or services to ABM or such Eligible Recipient;

	(i)		subject to Section 11.1(e)(iii) , any customer of an Eligible Recipient identified in clauses (a) through (g) above, or an Entity to which such an Eligible Recipient is a subcontractor, but only in connection with the provision of products or services (other than the Services provided hereunder) by such Eligible Recipient to such customer; and

	(j)		other entities to which the Parties agree.

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			Except as used in Sections 17.1, 17.3, and 17.4 , Eligible Recipients shall include the employees, contractors, subcontractors, agents and representatives of the Entities identified as Eligible Recipients above.

			As used in the following Sections, the term “Eligible Recipient(s)” shall not include the Eligible Recipient categories described in Sections 2.1(44)(h) and (i) :

	•		Section 4.2(f);

	•		Section 4.3(b) (except Section 4.3(b)(8) );

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

	•		Section 6.1(c) ; and

	•		Section 9.4(a) .

	(45)		“ Employment Effective Date ” means, with respect to each Transitioned Employee, the date that such Transitioned Employee begins employment with Supplier, in accordance with applicable Laws.

	(46)		“ Engineering Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to provide a specific engineering function or service to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Engineering Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Engineering Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(47)		“ Entity ” means a corporation, partnership, joint venture, trust, limited liability company, association or other organization or entity.

	(48)		“ Equipment ” shall mean all computing, networking and communications equipment procured, provided, operated, supported, or used by ABM, Supplier or Authorized Users in connection with the Services, including (i) mainframe, midrange, server and distributed computing equipment and associated attachments, features, accessories, peripheral devices, and cabling, (ii) personal computers, laptop computers, terminals, workstations and personal data devices and associated attachments, features, accessories, printers, multi-functional printers, peripheral or network devices, and cabling, and (iii) voice, data, video and wireless telecommunications and network and monitoring equipment and associated attachments, features, accessories, peripheral devices, and cabling.

	(49)		“ Equipment Leases ” means all leasing arrangements whereby ABM, an Eligible Recipient or an ABM Third Party Contractor leases Equipment as of the Commencement Date which will be used by Supplier to perform the Services after such Commencement Date. Equipment Leases include those leases identified on Schedule F.2 , and all other leases as to which Supplier received notice and/or access prior to the Effective Date.

	(50)		“ Event of Loss ” shall have the meaning set forth in Section 16.2 .

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	(51)		“ Extraordinary Event ” shall have the meaning given in Section 11.6(a).

	(52)		“ Full Time Equivalent ” or “ FTE ” is a level of effort (whether by one person or more than one person), excluding vacation, holidays, training, administration and other non-productive time (but including a reasonable amount of additional work outside normal business hours), equivalent to that which would be provided by one person working full time for one year. Unless otherwise agreed, one dedicated FTE is assumed to be at least 1,880 productive hours per Contract Year, and each non-dedicated FTE shall be deemed to be a fraction of an FTE equal to the number of productive hours worked by such non-dedicated FTE in a Contract Year divided by 1,880. Without ABM’s prior written approval, one (1) dedicated individual’s total work effort cannot amount to more than one FTE.

	(53)		“ Functional Service Area ” means each of the areas defined in Schedule E in which Supplier will provide Services, (i.e., ).

	(54)		“ Hazardous Materials ” means an element, compound, chemical mixture, contaminant, pollutant, waste or other substance which is defined as hazardous or toxic under any applicable Law or the release of which is prohibited or restricted under any applicable Law.

	(55)		“ Include ” and its derivatives shall mean “including without limitation.” This term is as defined, whether or not capitalized in this Agreement.

	(56)		“ Increased Impact Service Level ” shall have the meaning given in Schedule G.

	(57)		“ Increased Impact Service Level Default ” means the Supplier’s level of performance for a particular Service Level fails to meet the applicable Increased Impact Service Level at any time during the measurement period.

	(58)		“ Income Tax ” means any tax on or measured by the net income of a Party (including taxes on capital or net worth that are imposed as an alternative to a tax based on net or gross income), or taxes which are of the nature of excess profits tax, minimum tax on tax preferences, alternative minimum tax, accumulated earnings tax, personal holding company tax, capital gains tax or franchise tax for the privilege of doing business.

	(59)		“ Initial Term ” shall have the meaning set forth in Section 3.1 .

	(60)		“ ITS Systems Life Cycle” means the comprehensive IT/IS documentation maintained by ABM, including operating manuals, user guides, specifications, methodologies, policies/procedures and disaster recovery plans.

	(61)		“ Key Performance Indicator(s )” or “K PI ” shall have the meaning given in Schedule G .

	(62)		“ Key Supplier Personnel ” shall mean the Supplier Personnel filling the positions designated in Schedule C as Key Supplier Personnel.

	(63)		“ LAN Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to operate, manage or monitor a LAN or maintain active status on a LAN port to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . LAN Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. LAN Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

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	(64)		“ Laws ” shall mean all federal, state and local laws, statutes, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other official releases of or by any government, or any authority, department or agency thereof or self regulatory organization (“ SRO ”), in any jurisdiction in which the Services are provided or received, including the United States Securities and Exchange Commission and the Public Company Accounting Oversight Board and the Laws relating to data privacy, trans-border data flow or data protection (“ Privacy Laws ”). Subject to Section 15.10 , Laws shall include generally accepted accounting principles (“ GAAP ”), applied in accordance with SAS-69, as such principles may be modified during the Term by the Public Company Accounting Oversight Board or other applicable authorities.

	(65)		“ Local Area Networks ” or “ LANs ” shall mean the local, high-speed networks, consisting of Equipment, Software, Systems, telecommunications facilities, lines, interconnect devices and cabling, that are used to create, connect and transmit data, voice and video signals to, within or among ABM’s local area network segments. Local Area Networks interconnect Authorized User workstations, local servers, and printers and may connect with WANs. Local Area Networks shall include all LANs in use as of the Commencement Date, all LANs created by or for ABM, the Eligible Recipients or Supplier following the Commencement Date and all additions, modifications, substitutions, upgrades or enhancements to existing and future LANs.

	(66)		“ Losses ” shall mean all losses, liabilities, damages, fines, penalties, settlements, judgments, and interest (including taxes) arising out of a third party claim against a Party or indemnitee, in each case that a court finally awards to a third party or which are included in the amount of any settlement paid to a third party and agreed to by the Party financially responsible for such settlement, and all related costs and expenses (including reasonable legal fees, disbursements and costs of investigation and litigation) as incurred.

	(67)		“ Major Release ” means a new version of Software that includes changes to the architecture and/or adds new features and functionality in addition to the original functional characteristics of the preceding software release. These releases are usually identified by full integer changes in the numbering, such as from “7.0” to “8.0,” but may be identified by the industry as a major release without the accompanying integer change.

	(68)		“ Malicious Code ” shall mean (i) any code, program, or sub-program whose knowing or intended purpose is to damage or maliciously interfere with the operation of the computer system containing the code, program or sub-program, or to halt, disable or maliciously interfere with the operation of the Software, code, program, or sub-program, itself, or (ii) any device, method, or token that permits any person to circumvent the normal security of the Software or the system containing the code.

	(69)		“ MAN Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to operate, manage or monitor Metropolitan Area Networks (including campus area networks) or provide or maintain connectivity throughout a Metropolitan Area Network (or campus area network) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . MAN Software shall include all such programs or programming in use or required to be used as of the Effective Date, including those set forth in Schedule A , and those as to which Supplier received reasonable notice and/or access prior to the Effective Date. MAN Software also includes all such programs or programming developed and/or introduced by or for ABM on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(70)		“ Managed Third Parties ” shall mean the ABM Third Party Contractors listed on Schedule K and any substitute or replacement third party contractors reasonably designated by ABM, and shall include Fully Managed Third Parties and General Managed Third Parties, as defined in Section

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			6.11 . The Parties acknowledge and agree that, to the extent ABM has Software license and/or maintenance contracts with International Business Machines Corporation and such contracts are listed on Schedule K , International Business Machines Corporation shall be treated as a Managed Third Party for purposes of such contracts.

	(71)		“ Management Tools ” means all software products and tools (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used by Supplier to deliver and manage the Services. Management Tools shall include all such products or tools in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. Management Tools also shall include all such software products and tools selected and/or developed on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(72)		“ Materials ” shall mean, collectively, Software, literary works, other works of authorship, documented specifications, designs, analyses, processes, methodologies, programs, program listings, programming tools, documentation, reports, drawings, databases, spreadsheets, financial models and work product.

	(73)		“ Metropolitan Area Networks ” or “ MANs ” means the regional or campus, high-speed networks, consisting of Equipment, Software, Systems, telecommunications facilities, lines, interconnect devices and cabling, that are used to create, bundle, connect and transmit data, voice and video signals to, between or among 1) ABM’s or Eligible Recipients’ office buildings located within a campus or single metropolitan area, 2) LANs, and 3) WANs. Metropolitan Area Networks include all MANs in use or required to be used as of the Effective Date, all MANs created by or for ABM, the Eligible Recipients or Supplier following the Effective Date and all additions, modifications, substitutions, upgrades or enhancements to existing or future MANs.

	(74)		“ Minimum Service Level ” shall have the meaning given in Schedule G.

	(75)		“ Minimum Service Level Default ” means the Supplier’s level of performance for a particular Service Level fails to meet the applicable Minimum Service Level at any time during the measurement period.

	(76)		“ Minor Release ” means a scheduled release containing small functionality updates and/or accumulated resolutions to defects or non-conformances made available since the immediately preceding release (whether Major Release or Minor Release). Minor Releases shall include “Maintenance Releases” which are supplemental to and made available between Major Releases and other Minor Releases, issued and provided under specific vendor service level or maintenance obligations and contain only accumulated resolutions or mandated changes. These releases are usually identified by a change in the decimal numbering of a release, such as “ 7.12 ” to “ 7.13 .”

	(77)		“ Monitoring Software ” shall mean all software programs and programming (and all modifications, replacements, upgrades, enhancements, documentation, materials and media related thereto) that are used to monitor and report on IT assets (e.g., software, computers, systems, networks, network devices or elements, circuits) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Monitoring Software shall include all such software programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Monitoring Software also shall include all programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

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	(78)		“ Monthly Base Charge ” means the total Supplier price set forth in Schedule J associated with the performance of the Services in a given month in accordance with the Resource Baselines, Service Levels and Supplier responsibilities under this Agreement (excluding ARCs and RRCs).

	(79)		“ Network Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to deliver and manage Services over networks to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Network Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Network Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(80)		“ New Advances ” shall have the meaning given in Section 11.7(c) .

	(81)		“ New Services ” means services provided by Supplier to ABM that impose materially different obligations on Supplier and that require materially different levels of effort, resources or expense from Supplier and for which there is no current Resource Baseline or charging methodology.

	(82)		“ Noncompliance ” shall mean, with respect to Software, Equipment, Systems or other contract deliverables to be implemented, designed, developed, delivered, integrated, installed and/or tested by Supplier, any failure to comply in all material respects with the Specifications.

	(83)		“ Office Image ” means all office automation programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) installed on Authorized User workstations, including office productivity, word processing, spreadsheet, presentation, messaging, calendaring, middleware and menu systems, and associated Systems Software. The Office Image shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. The Office Image also shall include all such programs or programming selected on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(84)		“ Operating System Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to deliver and manage Services on a particular hardware platform including operating systems (e.g., UNIX, Windows 2000, VM and MVS) and network operating systems (e.g., NT Server, Windows 2000 and Novell) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Operating System Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. Operating System Software also shall include all such programs or programming developed and/or introduced after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(85)		“ Out-of-Pocket Expenses ” shall mean reasonable and actual out-of-pocket expenses incurred by Supplier that are approved in advance by ABM and for which Supplier is entitled to be reimbursed by ABM under this Agreement. Out-of-Pocket Expenses shall not include Supplier’s overhead costs (or allocations thereof), general and/or administrative expenses or other mark-ups and shall be net of all rebates and allowances.

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	(86)		“ Pass-Through Expenses ” shall mean the expenses listed in Schedule J for which ABM has agreed in advance to be financially responsible, in accordance with Article 11 of this Agreement, following processing and review of the third party invoice by Supplier for accuracy. All Services to be performed by Supplier with respect to Pass-Through Expenses are included in the Monthly Base Charges. Supplier shall not charge any handling or administrative charge in connection with its processing or review of such invoices without ABM’s consent.

	(87)		“ Policy and Procedures Manual ” shall have the meaning given in Section 9.1(a) .

	(88)		“ Prior Agreement ” shall mean the agreement between ABM Industries and International Business Machines Corporation, dated December 20, 2004, for telecommunication, network and VOIP services.

	(89)		“ Problem Management ” means the processes and procedures of tracking and managing all problems arising in ABM’s information technology (IT) or telecommunication environment or otherwise in connection with the Services, and resolving those problems arising from or related to the Services. Such process includes the provision of information to ABM to allow ABM to resolve problems that are not related to the Services.

	(90)		“ Problem Management Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to track and manage problems to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Problem Management Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Problem Management Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(91)		“ Project ” shall have the meaning given in Section 11.8(a) .

	(92)		“ Proprietary Information ” shall have the meaning given in Section 13.3(a) .

	(93)		“ Quality Assurance ” means the actions, planned and performed, to provide confidence that all business processes, Systems, Equipment, Software and components that influence the quality of the Services are working as expected, both individually and collectively.

	(94)		“ Reduced Resource Credit ” or “ RRC ” is the credit per Resource Unit that is applicable whenever the actual consumption of a defined Resource Unit by the Eligible Recipients falls below the Resource Baseline set forth in Schedule J . The total credit will be calculated by multiplying the Reduced Resource Credit by the number of Resource Units below the Resource Baseline actually consumed by the Eligible Recipients.

	(95)		“ Remote Management Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to control the operations of and manage from remote sites IT assets (e.g., software, computers, systems, networks, network devices or elements, circuits) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Remote Management Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received reasonable notice and/or reasonable access prior to the Effective Date. Remote Management Software also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

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	(96)		“ Renewal Term ” shall have the meaning set forth in Section 3.2 .

	(97)		“ Reports ” shall have the meaning set forth in Section 9.2(a) .

	(98)		“ Required Consents ” shall mean the consents (if any) required to be obtained: (i) to assign or transfer to Supplier, or obtain for Supplier the right to use and/or access, any ABM licensed Third Party Software, Third Party Contracts or Equipment Leases or Acquired Assets; (ii) to grant Supplier the right to use and/or access the ABM licensed Third Party Software in connection with providing the Services; (iii) to grant ABM and the Eligible Recipients the right during the Term and any Termination Assistance Services period to use and/or access the Supplier Owned Software, Third Party Software and Equipment acquired, operated, supported or used by Supplier in connection with providing the Services; (iv) subject to Sections 6.4(c) , 6.5(d) , and 6.6(c) , to assign or transfer to ABM or its designee Supplier Owned Software, Third Party Software, Third Party Contracts, Equipment leases or other rights following the Term to the extent provided in this Agreement; and (v) all other consents required from third parties in connection with Supplier’s provision of the Services or performance of its obligations hereunder.

	(99)		“ Resource Baselines ” shall mean the estimated number of Resource Units to be required and/or consumed by ABM and the Eligible Recipients during a defined period of time and included in the Monthly Base Charges. The Resource Baselines as of the Effective Date are set forth in Schedule J . The Resource Baselines will be revised from time to time by agreement of the Parties based on the business requirements of ABM and the Eligible Recipients and the Monthly Base Charges will be adjusted accordingly.

	(100)		“ Resource Unit ” (“ RU ”) means a particular unit of resource, as described in Schedule J , which is measured to determine ABM’s actual utilization of such resource compared to the applicable Resource Baseline for purposes of calculating “ Additional Resource Charges ” (“ ARCs ”) and “ Reduced Resource Credits ” (“ RRCs ”) as described in Schedule J .

	(101)		“ Retained Systems and Business Processes ” means those Systems and business processes of ABM or an Eligible Recipient for which Supplier has not assumed responsibility under this Agreement (including those provided, managed, operated, supported and/or used on their behalf by ABM Third Party Contractors). Retained Systems and Business Processes include equipment and software associated with such systems and business processes.

	(102)		“ Root Cause Analysis ” is the formal process, specified in the Policy and Procedures Manual, to be used by Supplier to diagnose problems at the lowest reasonable level so that corrective action can be taken that will eliminate, to the extent reasonably possible, repeat failures. Supplier shall implement a Root Cause Analysis as specified in Section 7.3 or as reasonably requested by ABM.

	(103)		“ Service Level Credits” shall have the meaning given in Section 7.2 and Schedule G .

	(104)		“ Service Level Default ” means a Minimum Service Level Default or an Increased Impact Service Level Default.

	(105)		“ Service Levels ” shall mean, individually and collectively, the performance standards for the Services set forth in Schedule G .

	(106)		“ Service Taxes ” shall mean all sales, use, excise, and other similar taxes that are assessed against either Party on the provision of the Services as a whole, or on any particular Service received by ABM or the Eligible Recipients from Supplier, excluding Income Taxes.

	(107)		“ Services ” means, collectively: (i) the services, functions and responsibilities described in this Agreement as they may be supplemented, enhanced, modified or replaced during the Term in

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			accordance with this Agreement; (ii) the Transition Services; (iii) the Termination Assistance Services; and (iv) any New Services and Projects.

	(108)		“ Software ” shall mean all software programs and programming for which a Party is financially or operationally responsible under Schedule J.1 (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto), including Applications, Antivirus Software, Compilers, Database Software, Development Tools, MAN Software, Management Tools, Monitoring Software, Network Software, Operating System Software, Office Images, Problem Management Software, Remote Management Software, Systems Software, Third Party Software and Utilities, unless a more specific reference is required by the context.

	(109)		“ Specialized Services ” shall have the meaning given in Section 9.9 .

	(110)		“ Specifications ” shall mean, with respect to Software, Equipment, Systems or other contract deliverables to be designed, developed, maintained, modified, enhanced, delivered, integrated, installed and/or tested by Supplier, the technical, design and/or functional specifications set forth in Schedules E or H , in third party vendor standard documentation, in a New Services or Project description requested and/or approved by ABM or otherwise agreed upon in writing by the Parties.

	(111)		“ Strategic Plan ” means the plans periodically developed by ABM that set forth ABM’s key business objectives and requirements and outline its strategies for achieving such objectives and requirements. ABM may revise the Strategic Plan from time to time. The Strategic Plan is likely to include both annual and multi-year strategies, objectives and requirements.

	(112)		“ Subcontractors ” shall mean subcontractors (of any tier) of Supplier, including Shared Subcontractors (as defined in Section 9.12(b) ). The initial list of Subcontractors approved by ABM is set forth on Schedule D . Schedule D may be amended during the Term in accordance with Section 9.12 .

	(113)		“ Supplier Account Executive ” shall have the meaning given in Section 8.5 and shall describe the Supplier representative responsible for both the day to day relationship with ABM as well as the delivery of all Services to ABM.

	(114)		“ Supplier Facilities ” means, individually and collectively, the facilities owned, leased or used by Supplier or its Affiliates or Subcontractors from which any Services are provided or performed (other than Eligible Recipient Facilities). Supplier Facilities are listed on Schedule O.2 .

	(115)		“ Supplier Owned Materials ” shall have the meaning given in Section 14.3(a) .

	(116)		“ Supplier Owned Software ” means any Software owned by Supplier or its Affiliates and used to provide the Services.

	(117)		“ Supplier Personnel ” shall mean those employees, representatives, contractors, subcontractors and agents of Supplier, Subcontractors and Supplier Affiliates who perform any Services under this Agreement. Supplier Personnel shall include Transitioned Employees.

	(118)		“ System ” shall mean an interconnected grouping of manual or electronic processes, including Equipment, Software and associated attachments, features, accessories, peripherals and cabling, and all additions, modifications, substitutions, Upgrades or enhancements to such System, to the extent a Party has financial or operational responsibility for such System or System components under Schedule E or Schedule J.1 . System shall include all Systems in use as of the Effective Date, all additions, modifications, substitutions, Upgrades or enhancements to such Systems and all Systems installed or developed by or for ABM or Supplier following the Effective Date.

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	(119)		“ System Change ” means any change to the standards, processes, controls, Software, Equipment, Systems or operating environment.

	(120)		“ Systems Software ” shall mean all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that perform tasks basic to the functioning of the Equipment and are required to operate the Applications Software or otherwise support the provision of Services by Supplier, including operating systems, systems utilities, data security software, compilers, performance monitoring and testing tools and database managers to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Systems Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth on Schedule A , or (ii) as to which Supplier otherwise received notice and/or access prior to the Effective Date. Systems Software also shall include all such programs or programming developed and/or introduced after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(121)		“ Term ” shall have the meaning given in Section 3.2 .

	(122)		“ Termination Assistance Services ” means the termination/expiration assistance requested by ABM to allow the Services to continue without unnecessary interruption or adverse effect and to facilitate the orderly transfer of the Services to ABM or its designee, as such assistance is further described in Section 4.3 and Schedule I .

	(123)		“ Termination Charge ” shall mean the termination charges payable by ABM upon certain termination events, as set forth in Schedule N . Termination Charges may include Wind Down Costs and/or a Termination Fee.

	(124)		“Termination Fee” shall have the meaning given in Section 2(c) of Schedule N .

	(125)		“ Third Party Contracts ” shall mean all agreements between third parties and ABM or an Eligible Recipient or between third parties and Supplier or its Subcontractors or Affiliates that have been or will be used to provide the Services, including those listed on Schedule F.3 as to which Supplier will assume financial and operational responsibility as of the Commencement Date.

	(126)		“ Third Party Materials ” shall mean intellectual property or other Materials that are owned by third parties and provided under license to Supplier (or Supplier Affiliates or Subcontractors) or ABM (or Eligible Recipients) and that have been or will be used or required to be used to provide or receive the Services. Third Party Materials include Materials owned by Subcontractors and used in the performance of the Services.

	(127)		“ Third Party Software ” shall mean all Software products (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are provided under license or lease to Supplier or ABM or an Eligible Recipient to the extent a Party has financial or operational responsibility for such Software products under Schedule J.1 . Third Party Software shall include all such programs or programming in use as of the Effective Date, (i) that are identified as such on Schedule A and F.4 , or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Third Party Software also shall include all such programs or programming licensed and/or leased after the Effective Date.

	(128)		“ Transition Milestone ” means each date identified on the Transition Plan as a milestone by which Supplier shall have completed a certain task or set of tasks in the Transition Plan in accordance with the Transition Plan.

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	(129)		“ Transition Period ” shall mean the period that commences on the Effective Date and expires 12:00:01 a.m., Pacific Time, on the date specified for the completion of the Transition Services as specified in the Transition Plan, unless expressly extended in writing by ABM.

	(130)		“ Transition Plan ” means the plan set forth in Schedule H and developed pursuant to Section 4.2 hereof, which identifies all material transition tasks and deliverables to be undertaken by Supplier in connection with the transition of all Services to Supplier, the completion of all Transition Period enhancement projects to be completed during the Transition Period, and the dates by which each will be completed by Supplier.

	(131)		“ Transition Services ” shall mean the services, functions and responsibilities described in Section 4.2 to be performed by Supplier during the Transition Period.

	(132)		“ Transitioned Employees ” means the employees of ABM who accept Supplier’s offer of employment and become employed by Supplier pursuant to Article 8 . Upon being employed by Supplier, such Transitioned Employees shall be deemed to be Supplier Personnel.

	(133)		“ Upgrade ” and its derivatives shall mean updates, renovations, enhancements, additions and/or new versions or releases of Software or Equipment by Supplier. Unless otherwise agreed, financial responsibility for the costs, fees and expenses associated with an Upgrade of Software or Equipment shall be allocated between the Parties in accordance with Sections 6.4 and 6.5 and Schedule J.1 .

	(134)		“ Utilities ” shall mean all software programs or programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) which, when used in association with the Operating System Software, allow a Party to manage, secure access, or make available access to the production environment (e.g., tools for storage management, security, virus protection, backup and restoration, software distribution and license management) to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . Utilities shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received notice and/or access prior to the Effective Date. Utilities also shall include all such programs or programming developed and/or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(135)		“ WAN Software ” means all software programs and programming (and all modifications, replacements, Upgrades, enhancements, documentation, materials and media related thereto) that are used to operate, manage or monitor the WAN or provide or maintain connectivity throughout the WAN to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 . WAN Software shall include all such programs or programming in use as of the Effective Date, (i) that are set forth in Schedule A , or (ii) as to which Supplier received notice and/or access prior to the Effective Date. WAN Software also shall include all such programs or programming developed or introduced on or after the Effective Date to the extent a Party has financial or operational responsibility for such programs or programming under Schedule J.1 .

	(136)		“ Wide Area Networks ” or “ WANs ” means long haul, high speed backbone transmission Networks, consisting of Equipment, Software, Systems, telecommunications facilities, lines, interconnect devices, cabling, sonet rings, ATM, frame relay, leased lines and other services as they become available, that are used to create, connect and transmit data, voice and video signals to within, between or among LANs and/or non-ABM locations that do business with ABM and for which ABM is responsible for providing connectivity. The WAN shall include all voice, data and video (image) traffic to be routed over the WANs. Wide Area Networks shall include all WANs in use as of the Commencement Date, all WANs created by or for ABM or Supplier following the

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			Commencement Date and all additions, modifications, substitutions, upgrades or enhancements to existing or future WANs.

	(137)		“ Wind Down Costs ” shall mean the amounts described in Section 2(a) and (b) of Schedule N .

2.2		Other Terms .

		The terms defined in this Article include the plural as well as the singular and the derivatives of such terms. Unless otherwise expressly stated, the words “ herein ,” “ hereof ,” and “ hereunder ” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection or other subdivision. Article, Section, Subsection and Attachment references refer to articles, sections and subsections of, and attachments to, this Agreement. The words “ include ” and “ including ” shall not be construed as terms of limitation. The words “ day ,” “ month ,” and “ year ” mean, respectively, calendar day, calendar month and calendar year. As stated in Section 21.3 , the word “ notice ” and “ notification ” and their derivatives shall mean notice or notification in writing. Other terms used in this Agreement are defined in the context in which they are used and shall have the meanings there indicated.

2.3		Associated Contract Documents .

		This Agreement includes each of the following schedules and their attached exhibits, all of which are attached to this Agreement and incorporated into this Agreement by this reference. Unless otherwise expressly stated, references to specific Schedules include all numbered subsidiary Schedules (e.g., references to Schedule E include not only Schedule E , but also Schedules E.1, E.2, E.3, E.4 and E.5 ).


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

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

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

3.		TERM

3.1		Initial Term .

		The initial Term of this Agreement shall commence as of 12:00:01 a.m., Pacific Time on the Effective Date and continue until 11:59:59 p.m., Pacific Time, on December 31, 2013, unless this Agreement is terminated as provided herein or extended as provided in Section 3.2 or 4.3(a)(2) , in which case the Term shall end at 11:59:59 p.m., Pacific Time, on the effective date of such termination or the date to which this Agreement is extended (the “ Initial Term ”).

3.2		Extension .

		By giving notice to Supplier no less than ninety (90) days prior to the expiration date of the Initial Term or any extension, ABM shall have the right to extend the Term for up to two (2) extension periods to be specified by ABM of up to one (1) year (each, a “ Renewal Term ” and together with the Initial Term, the “ Term ”), each on the terms and conditions set forth in this Agreement. Notwithstanding the foregoing, the time period between the provision of ABM’s non-renewal notice to Supplier and Supplier’s cessation of Termination Assistance Services shall not be shorter than 180 days. No Termination Charges shall be applicable to any termination on or after the expiration of the Initial Term.

4.		SERVICES

4.1		Overview .

(a)

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

	(i)		The services, functions and responsibilities described in this Agreement including its Schedules;

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

(b)

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

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			Services, such subtasks shall be deemed to be included within the scope of the Services to be delivered for the Charges, as if such subtasks were specifically described in this Agreement.

	(c)		Required Resources . Except as otherwise expressly provided in this Agreement, Supplier shall be responsible for providing the facilities, personnel, Equipment, Software, technical knowledge, expertise and other resources necessary to provide the Services.

	(d)		Supplier Responsibility . Supplier shall be responsible for the provision of the Services in accordance with this Agreement even if, by agreement of the Parties, such Services are performed or dependent upon services performed by (i) Subcontractors, (ii) Managed Third Parties to the extent provided in Section 6.11 an