This Transition Services Agreement (“{_Transition_Services_Agreement}”) is made as of {EffectiveDate.YMD} by {Seller.X.US.N,E,A} (“{_Seller}”), and {Company.US.N,E,A} (the “{_Company}”). This is the Transition Services Agreement referred to in the {SPA.Doc.Ti} (the “{_Purchase_Agreement}”), dated {SPA.EffectiveDate.YMD}, between {_Seller} and {Buyer.US.N,E,A} (“{_Buyer}”). Capitalized terms used in this {_Transition_Services_Agreement} without definition have the respective meanings given to them in the {_Purchase_Agreement}.
Recitals
{_Seller} has this date sold to {_Buyer} all the {_Shares} of the {_Company}. {_Seller} has agreed to provide certain transition services to the {_Company} on the terms and conditions set forth in this {_Transition_Services_Agreement}.
The parties, intending to be legally bound, agree as follows:
Transitions Services {_Seller} shall provide the services described below (the “{_Transition_Services}”) to the {_Company} during the term of this {_Transition_Services_Agreement}:
Seller Services On the terms and subject to the conditions of this {_Transition_Services_Agreement}, {_Seller} shall provide the services to the {_Company} listed on Schedule A (“{_Seller_Services}”), in substantially the same scope, nature, and manner as was provided to the {_Company} immediately prior to the {_Closing_Date}, and for the compensation set forth opposite each of such {_Seller_Services} on Schedule A.
Third-Party Services On the terms and subject to the conditions of this {_Transition_Services_Agreement}, {_Seller} shall use commercially reasonable efforts to cause the services listed on Schedule B to be provided to the {_Company} (“{_Third-Party_Services}”), in substantially the same scope, nature, and manner as was provided to the {_Company} immediately prior to the {_Closing_Date} by the providers that provided such services to the {_Company} immediately prior to the {_Closing_Date}, and for the compensation set forth opposite each of such {_Third-Party_Services} on Schedule B. The {_Company} acknowledges that the provision of {_Third-Party_Services} may require the consent of the relevant providers. If {_Seller} is unable to obtain such consent with respect to a particular {_Third-Party_Service}, {_Seller} and the {_Company} will use commercially reasonable efforts to arrange for an alternative person or an alternative methodology to provide the {_Third-Party_Service}.
Other Services During the term of this {_Transition_Services_Agreement}, {_Seller} shall provide to the {_Company} any other transition services not referenced in subparagraph (a) or (b) above consistent with the types of services discussed herein and at levels consistent with the past operation of the {_Company} and reasonably requested by the {_Company} in writing with reasonably sufficient detail as to the services requested. Any fee to be charged by {_Seller} for any services provided pursuant to this Paragraph 2(c) shall be equal to {_Seller}’s actual cost to provide such {_Transition_Services}, including allocable overhead and {_Seller}’s reasonable out-of-pocket expenses consistent with past practice (“{_Seller’s_Costs}”). At the {_Company}’s request, {_Seller} shall furnish the {_Company} with reasonable supporting documentation evidencing {_Seller’s_Costs} hereunder.
Pricing The {_Company} shall pay the respective amounts listed on Schedule A, Schedule B, and {_Seller’s_Costs} for the {_Transition_Services}. {_Seller} shall invoice the {_Company} monthly for services rendered through the end of each month. The {_Company} shall pay all invoices in full within 30 days of receipt thereof.
Standard of Performance For {_Seller_Services}, {_Seller} will perform such {_Transition_Services} in a timely, competent, and workmanlike manner and in a nature and at levels consistent with the {_Company}’s past conduct of its business. For {_Third-Party_Services}, {_Seller} shall use commercial reasonably efforts to ensure that such services are provided by such third parties in a timely, competent, and workmanlike manner and in a nature and at levels consistent with the {_Company}’s past conduct of its business.
Term and Termination
The term of this {_Transition_Services_Agreement} shall commence on the date of this {_Transition_Services_Agreement} and continue until all {_Transition_Services} are completed, unless earlier terminated in accordance with this Paragraph 4.
{_Seller} shall provide or cause to be provided the {_Transition_Services} for the duration specified on Schedules A or B, as the case may be, except that the {_Company} may direct {_Seller} to discontinue any one or more {_Transition_Services} at any time without cause upon 10 days’ written notice, whereupon {_Seller} shall discontinue or cause to be discontinued the {_Transition_Services} for which such notice is given. Such discontinuance shall not extinguish the {_Company}’s obligation for payment of {_Transition_Services} actually rendered under this {_Transition_Services_Agreement} and, subject to Paragraph 4(a), this {_Transition_Services_Agreement} shall continue in full force and effect with respect to any {_Transition_Services} not discontinued.
If either party hereto becomes bankrupt or insolvent, or makes an assignment for the benefit of creditors, or if a receiver is appointed to take charge of its property and such proceeding is not vacated or terminated within 30 days after its commencement or institution, the other may immediately terminate this {_Transition_Services_Agreement} by written notice. Any such termination shall be without prejudice to accrued rights of the terminating party, and to other rights and remedies for default.
Miscellaneous
Force Majeure Neither party shall be liable in any manner for failure or delay of performance of all or part of this {_Transition_Services_Agreement} (other than the payment of money), directly or indirectly, owing to acts of God, applicable orders or restrictions by a governmental authority, strikes or other labor disturbances, riots, embargoes, power failures, telecommunication line failures, revolutions, wars, fires, floods, or any other causes or circumstances beyond the reasonable control of either party, whether similar or dissimilar to those listed above. The affected party, however, in the case of such delay or failure, shall give prompt notice to the other party and shall exert commercially reasonable efforts to remove the causes or circumstances of nonperformance with reasonable dispatch.
Sales Taxes Any sales, use, transaction, excise, or similar tax imposed on or measured by the rendering of the {_Transition_Services} shall be the responsibility of the {_Company}. All other taxes arising from {_Transition_Services} shall be paid by {_Seller}.
Relationship of Parties {_Seller} shall perform the {_Transition_Services} under this {_Transition_Services_Agreement} as an independent contractor and as such shall have and maintain exclusive control over all its own employees, agents, subcontractors, and operations. Neither party shall be, act as, purport to act as, or be deemed to be the other’s agent, representative, employee, or servant. Nothing in this {_Transition_Services_Agreement} shall be construed or interpreted as creating an agency, partnership, co-partnership, or joint venture relationship between the parties.
Expenses Except as otherwise expressly provided for herein, each party will pay its own expenses (including brokers’, finders’, attorneys’, and accountants’ fees) in connection with the negotiation of this {_Transition_Services_Agreement}, the performance of its respective obligations hereunder, and of the services contemplated by this {_Transition_Services_Agreement}.
Entire Agreement This {_Transition_Services_Agreement} (including the schedules hereto) supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter.
Modification This {_Transition_Services_Agreement} may only be amended, supplemented, or otherwise modified by a writing executed by the parties.
Assignments and Successors Neither party may assign any of its rights or delegate any of its obligations under this {_Transition_Services_Agreement} without the prior consent of the other party. Any purported assignment of rights or delegation of obligations in violation of this Paragraph 4(g) will be void. Subject to the foregoing, this {_Transition_Services_Agreement} will apply to, be binding in all respects upon, and inure to the benefit of the heirs, executors, administrators, legal representatives, successors, and permitted assigns of the parties.
Third-Party Benefit Other than the parties, no {_Person} will have any legal or equitable right, remedy, or claim under or with respect to this {_Transition_Services_Agreement}.
Governing Law All matters relating to or arising out of this {_Transition_Services_Agreement} and the rights of the parties (whether sounding in contract, tort, or otherwise) will be governed by and construed and interpreted under the laws of {Law.State.the}, without regard to conflicts of laws principles that would require the application of any other law.
Jurisdiction and Venue Except as otherwise provided in this {_Transition_Services_Agreement}, any {_Proceeding} arising out of or relating to this {_Transition_Services_Agreement} shall be brought in {Tribunal.State.cl}, or, if it has or can acquire jurisdiction, in {Tribunal.USDC.cl}, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such {_Proceeding}, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of such {_Proceeding} shall be heard and determined only in any such court, and agrees not to bring any {_Proceeding} arising out of or relating to this {_Transition_Services_Agreement} in any other court. Each party acknowledges and agrees that this Paragraph 4(j) constitutes a voluntary and bargained- for agreement between the parties. Process in any {_Proceeding} referred to in the first sentence of this Paragraph 4(j) may be served on any party anywhere in the world. Any party may make service on any other party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Paragraph 4(n). Nothing in this Paragraph 4(j) will affect the right of any party to serve legal process in any other manner permitted by law or at equity.
Waiver of Jury Trial EACH PARTY, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY, WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CONTEMPLATED TRANSACTION, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE.
Enforcement of Agreement {_Seller} acknowledges and agrees that the {_Company} would be irreparably harmed if any of the provisions of this {_Transition_Services_Agreement} are not performed in accordance with their specific terms and that any {_Breach} of this {_Transition_Services_Agreement} by {_Seller} could not be adequately compensated in all cases by monetary damages alone. Accordingly, {_Seller} agrees that, in addition to any other right or remedy to which the {_Company} may be entitled at law or in equity, the {_Company} shall be entitled to enforce any provision of this {_Transition_Services_Agreement} by a decree of specific performance and to obtain temporary, preliminary, and permanent injunctive relief to prevent {_Breaches} or threatened {_Breaches} of this {_Transition_Services_Agreement}, without posting any bond or giving any other undertaking.
No Waiver Neither any failure nor any delay by any party in exercising any right, power, or privilege under this {_Transition_Services_Agreement} will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable {_Legal_Requirements}, (i) no claim or right arising out of this {_Transition_Services_Agreement} can be waived by a party, in whole or in part, unless made in a writing signed by such party; (ii) a waiver given by a party will only be applicable to the specific instance for which it is given; and (iii) no notice to or demand on a party will (A) waive or otherwise affect any obligation of that party or (B) affect the right of the party giving such notice or demand to take further action without notice or demand as provided in this {_Transition_Services_Agreement}.
Notices All notices and other communications required or permitted by this {_Transition_Services_Agreement} will be in writing and will be effective, and any applicable time period shall commence when (i) delivered to the following address by hand or by a nationally recognized overnight courier service (costs prepaid) addressed to the following address or (ii) transmitted electronically to the following facsimile numbers or e-mail addresses, in each case marked to the attention of the {_Person} (by name or title) designated below (or to such other address, facsimile number, e-mail address, or {_Person} as a party may designate by notice to the other parties):
{Seller.X.US.Notice.Block}
{Company.US.Notice.Block}
Severability If any provision of this {_Transition_Services_Agreement} is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this {_Transition_Services_Agreement} will remain in full force and effect. Any provision of this {_Transition_Services_Agreement} held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
Time of Essence With regard to all dates and time periods set forth or referred to in this {_Transition_Services_Agreement}, time is of the essence.
Counterparts/Electronic Signatures This {_Transition_Services_Agreement} may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same Agreement, and will be effective when counterparts have been signed by each of the parties and delivered to the other parties. A manual signature on this {_Transition_Services_Agreement}, which image shall have been transmitted electronically, will constitute an original signature for all purposes. The delivery of copies of this {_Transition_Services_Agreement}, including executed signature pages where required, by electronic transmission will constitute effective delivery of this {_Transition_Services_Agreement} for all purposes.
{PageBreak}IN WITNESS WHEREOF, the parties have executed and delivered this {_Transition_Services_Agreement} as of the date first written above.