DATA CENTER AND DISASTER RECOVERY SERVICES AGREEMENT
Service Level Agreement
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DATA CENTER AND DISASTER RECOVERY SERVICES AGREEMENT
Service Level Agreement
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DATA CENTER AND DISASTER RECOVERY SERVICES AGREEMENT , dated as of August 10, 2009 (this “ Agreement ”), between ALTISOURCE SOLUTIONS S.à r.l., a private limited liability company organized under the laws of the Grand Duchy of Luxembourg (together with its Affiliates “ Provider ” ) and OCWEN FINANCIAL CORPORATION, a Florida corporation (together with its Affiliates “ Customer ”).
WHEREAS , Customer and Altisource Portfolio Solutions S.A. (formerly known as Altisource Portfolio Solutions S.à r.l., formerly known as Ocwen Luxembourg S.à r.l.), the sole parent of Provider (“ ALTISOURCE Parent ”), are parties to a Separation Agreement dated as of August 10, 2009 (the “ Separation Agreement ”), pursuant to which Customer will (i) separate the ALTISOURCE Business (as defined in the Separation Agreement) and (ii) distribute (the “ Separation ”) to the holders of shares of Customer’s outstanding capital stock all of the outstanding capital stock of ALTISOURCE Parent;
WHEREAS , following the Separation, Provider will operate the ALTISOURCE Business, and Customer will operate the OCWEN Business (as defined in the Separation Agreement); and
WHEREAS , following the Separation, Customer desires to receive, and Provider is willing to provide, or cause to be provided, certain data center and disaster recovery services in connection with Customer’s Business, in each case subject to the terms and conditions of this Agreement.
NOW, THEREFORE , in consideration of the mutual agreements, provisions and covenants contained in this Agreement, the parties agree as follows:
“ Affiliate ” means with respect to any Person (a “Principal”) (a) any directly or indirectly wholly-owned subsidiary of such Principal, (b) any Person that directly or indirectly owns 100% of the voting stock of such Principal or (c) a Person that controls, is controlled by or is under common control with such Principal. As used herein, “control” of any entity means the possession, directly or indirectly, through one or more intermediaries, of the power to direct or cause the direction of the management or policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise. Furthermore, with respect to any Person that is partially owned by such Principal and does not otherwise constitute an Affiliate (a “Partially-Owned Person”), such Partially-Owned Person shall be considered an Affiliate of such Principal for purposes of this Agreement if such Principal can, after making a good faith effort to do so, legally bind such Partially-Owned Person to this Agreement.
2.1 Services . During the term of this Agreement, Provider shall provide to Customer the services set forth on Exhibit A (the “ Services ”) on the terms and conditions set forth in this Agreement.
2.2 Additional Services . Customer may request, and Provider may provide, additional services (“ Additional Services ”) upon terms and rates that shall be mutually agreed to in writing between the parties in an addendum (“ Addendum ”) to this Agreement. Each Addendum shall be appended to this Agreement and incorporated into this Agreement by this reference.
2.3 Right of First Opportunity .
2.4 Alternatively to the procedures set forth in Section 2.3 , Customer may solicit proposals or negotiate with third parties with respect to an Additional Service (such third parties, “ Third Party Additional Service Providers ”) during the Exclusive Tender Period so long as:
2.5 Status Report . Provider shall provide Customer with status reports as mutually agreed to by the parties which shall detail the status of the Services.
3. RESPONSIBILITIES OF CUSTOMER
Customer shall assist Provider by promptly providing such information and access to Customer’s facilities, computer networks and other systems as Provider may reasonably request to enable Provider to timely perform its obligations. Customer shall provide a sufficient number of its personnel to assist Provider in completing the Services in a timely manner to the extent Provider may reasonably request from time to time.
4.1 Fees . Customer shall pay Provider for the Services and Additional Services at the rates set forth in a separate fee letter to be delivered by Provider to Customer dated (i) as of the date hereof, with respect to the Services and (ii) as of the date of agreement to provide Additional Services, if any, with respect to Additional Services (collectively, the “ Data Center and Disaster Recover Services Fee Letter ”), as applicable (the “ Fees ”).
4.2 Provider shall submit statements of account to the Customer on a monthly basis with respect to all amounts payable by the Provider to the Customer hereunder (the “ Invoiced Amount ”), setting out the Services provided, and the amount billed to the Customer as a result of providing such Services (together with, in arrears, any other invoices for Services provided by third parties, in each case setting out the Services provided by the applicable third parties). The Customer shall pay the Invoiced Amount to the Provider by wire transfer of immediately available funds to an account or accounts specified by the Provider, or in such other manner as specified by the Provider in writing, or otherwise reasonably agreed to by the Parties, within 30 days of the date of delivery to the Customer of the applicable statement of account; provided , that, in the event of any dispute as to an Invoiced Amount, the Customer shall pay the undisputed portion, if any, of such Invoiced Amount in accordance with the foregoing, and shall pay the remaining amount, if any, promptly upon resolution of such dispute.
4.3 Taxes . Customer shall be responsible for and shall pay or reimburse Provider for any sales, use, import, excise, value added or other taxes or levies (other than Provider’s income taxes) associated with this Agreement.
5. TERM AND TERMINATION
5.1 Term .
5.2 Termination by Either Party .
5.3 Consequences of Termination . Customer shall be liable for all Fees incurred prior to the date of termination and shall not be entitled to a refund of any Fees paid prior to the date of termination. Furthermore, in the event either party terminates this Agreement in accordance with Section 5.2 and, prior to such termination, Provider has entered into one or more leases or third party contracts for purposes of providing the Services to Customer (such leases and contracts, the “ Designated Contracts ”), Customer shall also be liable for (a) unamortized lease costs associated with the Designated Contracts and (b) the Customer’s pro rata share (as of the date of termination) of the present value (calculated by reference to the prime rate charged by JPMorgan Chase Bank, N.A. (or its successor)) of the remaining contractual payments due under such Designated Contracts. Provider shall have a duty to mitigate the costs referred to in clauses (a) and (b) above by making a good faith effort to sublease the Customer’s allocated portion of the space leased pursuant to any Designated Contracts following any such termination and to otherwise mitigate any other third party contractual costs. In addition, in the event of termination, each party shall return or destroy all of the other party’s Information (as defined below) in accordance with Section 6.2 .
6. CONFIDENTIAL INFORMATION
6.1 Subject to Section 6.2 , each of Provider and Customer, on behalf of itself and each of its subsidiaries, agrees to hold, and to cause its directors, officers, employees, agents, accountants, counsel and other advisors and representatives to hold, in strict confidence, with at least the same degree of care that applies to confidential and proprietary information of Customer pursuant to policies in effect as of the Distribution Date (as defined in the Separation Agreement), all information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, algorithms, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data (“ Information ”) concerning the other party and its subsidiaries that is either in its possession (including Information in its possession prior to the Distribution Date) or furnished by the other party and its subsidiaries and affiliates or its directors, officers, employees, agents, accountants, counsel and other advisors and representatives at any time pursuant to this Agreement, and shall not use any such Information other than for such purposes as shall be expressly permitted hereunder, except to the extent that such Information has been (i) in the public domain through no fault of such party or any of its subsidiaries or any of their respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives, (ii) later lawfully acquired from other sources by such party (or any of its subsidiaries), which sources are not known by such party to be themselves bound by a confidentiality obligation, or (iii) independently generated without reference to any proprietary or confidential Information of the other party or any of its subsidiaries.
6.2 Each party agrees not to release or disclose, or permit to be released or disclosed, any such Information (excluding Information described in clauses (i), (ii) and (iii) of Section 6.1 ) to any other individual, a general or limited partnership, a corporation, a trust, a joint venture, an unincorporated organization, a limited liability entity, any other entity and any Governmental Authority (as defined below) (each, a “ Person ”), except its directors, officers, employees, agents, accountants, counsel and other advisors and representatives who need to know such Information (who shall be advised of their obligations hereunder with respect to such Information), except in compliance with Section 6.3 . Without limiting the foregoing, when any Information is no longer needed for the purposes contemplated by this Agreement, each party will promptly, after request of the other party, either return the Information to the other party in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or certify to the other party that any Information not returned in a tangible form (including any such Information that exists in an electronic form) has been dest