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Exhibit 10.2
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement"), dated as of July 20, 1998,
is by and between Cincinnati Xxxx Inc., an Ohio corporation ("CBI"), and
CONVERGYS Corporation, an Ohio corporation ("CONVERGYS").
RECITALS
WHEREAS, the Board of Directors of CBI has determined that it is in the
best interests of CBI and its shareholders to separate CBI's existing businesses
into two independent businesses by transferring all of the outstanding shares of
Cincinnati Xxxx Information Systems Inc. ("CBIS") and of MATRIXX Marketing Inc.
("MATRIXX") to CONVERGYS;
WHEREAS, CBI and CONVERGYS recognize that it is advisable for CBI to
continue providing certain administrative and other services to CONVERGYS until
the Distribution Date (as defined herein) and thereafter for CONVERGYS to
provide certain administrative and other services to CBI as provided herein
(individually a "Service" and, collectively, the "Services"); and
WHEREAS, this Agreement is entered into pursuant to the Plan of
Reorganization and Distribution Agreement, dated as of the date hereof, between
CBI and CONVERGYS (the "Plan of Reorganization and Distribution Agreement").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Plan of Reorganization and
Distribution Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valid consideration, the receipt and adequacy of which are hereby acknowledged,
the parties, intending to be legally bound, agree as follows:
ARTICLE 1
SERVICES
1.1 SERVICES. Beginning on the Closing Date (the "Effective Date") and
continuing through the Distribution Date, CBI, through its corporate staff, will
provide or otherwise make available to CONVERGYS, upon the reasonable request of
CONVERGYS, certain general corporate services, including, but not limited to,
finance, treasury and accounting, tax, human resource services, food services,
transportation services and arrange for administration of insurance and risk
management and employee benefit programs. Beginning the next day after the
Distribution Date through the date that is six months after the Distribution
Date (the "Expiration Date"), CONVERGYS, through its corporate staff, will
provide or otherwise make available to CBI, upon the reasonable request of CBI,
certain general corporate services, including, but not limited to accounting and
audit, finance and treasury, tax, human resource services, food services,
transportation services and arrange for administration of insurance and
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risk management and employee benefit programs. For purposes of this Agreement,
the party receiving the Services is sometimes referred to as the "Receiving
Party," and the party providing the Services is sometimes referred to as the
"Providing Party." The Services may include the following:
(a) FINANCE, TREASURY AND ACCOUNTING RELATED SERVICES.
Provision of general financial advice and services including, without
limitation, assistance with respect to matters such as raising of additional
capital, cash management and financial controls, inter-company lending, and
accounting and internal audit.
(b) TAX RELATED SERVICES. Preparation of Federal tax returns,
preparation of state and local tax returns (including income tax returns), tax
research and planning and assistance on tax audits (Federal, state and local) in
accordance with the terms of the Tax Separation and Allocation Agreement.
(c) HUMAN RESOURCES. Provision of general advice regarding the
coordination of employment policies and executive compensation matters.
(d) FOOD SERVICES. Provision of general food services as
provided by CBI on the date of this Agreement.
(e) TRANSPORTATION SERVICES. Provision of general
transportation services as provided by CBI on the date of this Agreement.
(f) INSURANCE AND EMPLOYEE BENEFIT RELATED SERVICES. Provision
of liability, property, casualty, and other normal business insurance coverage
and assistance, if required, with respect to arrangement of such insurance
coverage. Assistance, if required, with respect to support for product, worker
safety and environmental programs. (The Receiving Party acknowledges that
principal responsibility for compliance rests with the Receiving Party.)
Administration of the Receiving Party's employee participation in employee
benefit plans and insurance programs sponsored by the Providing Party in
accordance with the Employee Benefits Agreement. Filing of all required reports
under ERISA for employee benefit plans sponsored by CONVERGYS.
(g) ADDITIONAL SERVICES. Services in addition to those
enumerated in subsections 1.1(a) through 1.1(g), above, as may be agreed upon by
CBI and CONVERGYS from time to time ("Additional Services").
(1) The parties shall create an Exhibit for each Additional
Service setting forth a description of the Service, the time period during which
the Service will be provided, the charge, if any, for the Service and any other
terms applicable thereto. Except as set forth in the paragraph immediately
below, the parties may, but shall not be required to, agree on Additional
Services during the term of this Agreement.
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(2) Except as set forth in the next sentence, CBI shall be
obligated to perform, at charges established pursuant hereto, any Additional
Service that: (A) was provided by CBI immediately prior to the Effective Date
and that CONVERGYS reasonably believes was inadvertently or unintentionally
omitted from the list of Initial Services or (B) is essential to effectuate an
orderly transition under the Plan of Reorganization and Distribution Agreement
unless such performance would significantly disrupt CBI's operations or
materially increase the scope of its responsibility under this Agreement. If CBI
reasonably believes the performance of Additional Services required under
subparagraphs (A) or (B) would significantly disrupt its operations or
materially increase the scope of its responsibility under this Agreement, CBI
and CONVERGYS shall negotiate in good faith to establish terms under which CBI
can provide such Additional Services, but CBI shall not be obligated to provide
such Additional Services if, following good faith negotiation, it is unable to
reach agreement on such terms.
(h) SERVICES PERFORMED BY OTHERS. At its option, Providing
Party may cause any Service it is required to provide hereunder to be provided
by any other Person that is providing, or may from time to time provide, the
same or similar services for Providing Party. Providing Party shall remain
responsible, in accordance with the terms of this Agreement, for performance of
any Service it causes to be so provided.
1.2 TERM. The initial term of this Agreement shall begin on the
Effective Date of this Agreement and continue until the Expiration Date unless
terminated earlier as provided herein:
(a) Receiving Party may terminate any or all of the Services,
in whole or in part, upon 30 days written notice to Providing Party.
(b) This Agreement may be terminated at any time upon the
mutual consent of the parties.
(c) The non-defaulting party may terminate this Agreement if
the other party is in material default under this Agreement and fails to correct
such default within 30 days after receiving written notice of such default.
1.3 CHARGES AND PAYMENT.
(a) GENERAL. For performing general services of the types
described above in Section 1, Providing Party will charge Receiving Party the
costs actually incurred or such other charges as the parties may agree. To the
extent such direct costs cannot be separately measured, Providing Party shall
charge Receiving Party for a portion of the total cost determined according to a
method reasonably selected by Providing Party and approved by Receiving Party.
The charges for services above will be determined and
payable no less frequently than on a monthly basis. The charges will be due when
billed and shall be paid no later than thirty 30 days from the date of billing.
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(b) CHARGES FOR THIRD-PARTY SERVICES. When services of the
type described above in Section 1 are provided, upon the mutual agreement of
Providing Party and Receiving Party, by outside providers or, in connection with
the provision of such Services out-of-pocket costs are incurred, such as travel,
the cost thereof will be paid by Receiving Party. To the extent that Receiving
Party is billed by the provider directly, Receiving Party shall pay the xxxx
directly. If Providing Party is billed for such Services, Providing Party may
pay the xxxx and charge Receiving Party the amount of the xxxx or forward the
xxxx to Receiving Party for payment by Receiving Party.
(c) TAXES. Receiving Party shall pay any sales, use or similar
tax, excluding any income tax or taxes levied with respect to gross receipts,
payable by Providing Party or Receiving Party with respect to amounts payable
under this Agreement.
1.4 GENERAL OBLIGATIONS; STANDARD OF CARE.
(a) TRANSITIONAL NATURE OF SERVICES; CHANGES. The parties
acknowledge the transitional nature of the Services and that Providing Party may
make changes from time to time in the manner of performing the Services if
Providing Party is making similar changes in performing similar services for
itself and its Affiliates and if Providing Party furnishes to Receiving Party
substantially the same notice that Providing Party shall provide its Affiliates
respecting such changes. Notwithstanding the foregoing, between the date hereof
and the Expiration Date, Providing Party will not make any material change to
Services affecting Receiving Party without first providing thirty (30) days
prior written notice and obtaining Receiving Party's prior written consent,
which consent shall not be unreasonably withheld or delayed. For purposes of
this Agreement, the term "Affiliates" means, with respect to any person, any
other person, corporation, partnership, or other entity, directly or indirectly
controlling, controlled by or under common control with such person.
(b) GOOD FAITH COOPERATION; CONSENTS. The parties will use
good faith efforts to cooperate with each other in all matters relating to the
provision and receipt of Services. Such cooperation shall include exchanging
information, providing electronic access to systems used in connection with
Services, performing true-ups and adjustments and obtaining all consents,
licenses, sublicenses or approvals necessary to permit each party to perform its
obligations hereunder. The costs of obtaining such consents, licenses,
sublicenses or approvals shall be allocated in accordance with Section 1.3(a).
The parties will maintain documentation supporting the information contained in
the Exhibits and cooperate with each other in making such information available
as needed in the event of a tax audit, whether in the United States or any other
country.
(c) ALTERNATIVES. If Providing Party reasonably believes it is
unable to provide any Service because of a failure to obtain necessary consents,
licenses, sublicenses or approvals pursuant to subsection 1.4(b) or because of
Impracticability, the parties shall cooperate to determine the best alternative
approach. Until such alternative approach is found or the problem otherwise
resolved to the satisfaction of the parties, Providing Party shall use
reasonable efforts, subject to Section 1.4(g) and Section 1.5(d), to continue
providing the Service or, in the
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case of systems, to support the function to which the system relates or permit
Receiving Party to have access to the system so Receiving Party can support the
function itself. To the extent an agreed upon alternative approach requires
payment above and beyond that which is included in Providing Party's charge for
the Service in question, the parties shall share equally in making any such
payment unless they otherwise agree in writing.
(d) IMPRACTICABILITY. Providing Party shall not be required to
provide any Service to the extent that the performance of such Service becomes
"Impracticable" as a result of a cause or causes outside the reasonable control
of Providing Party including unfeasible technological requirements, or to the
extent the performance of such Services would require Providing Party to violate
any applicable laws, rules or regulations or would result in the breach of any
software license or other applicable contract.
(e) RECEIVING PARTY'S DIRECTORS AND OFFICERS. Nothing
contained herein will be construed to relieve the directors or officers of
Receiving Party from the performance of their respective duties or to limit the
exercise of their powers in accordance with the Receiving Party's Articles of
Incorporation or Regulations or in accordance with any applicable statute or
regulation.
(f) LIABILITIES. In furnishing Receiving Party with management
advice and other services as herein provided, neither Providing Party nor any of
its officers, directors, employees or agents shall be liable to Receiving Party,
its officers, directors, employees or agents, for errors of judgment or for
anything except willful malfeasance, bad faith or gross negligence in the
performance of their duties or reckless disregard of their obligations and
duties under the terms of this Agreement. The provisions of this Agreement are
for the sole benefit of Providing Party and Receiving Party and will not, except
to the extent otherwise expressly stated herein, inure to the benefits of any
third party.
(g) STANDARD OF CARE. Providing Party will use (and will cause
its subsidiaries to use) reasonable efforts in providing the scheduled Services
to Receiving Party and will perform such Services with the same degree of care,
skill and prudence customarily exercised for its own operations; provided,
however, that Providing Party shall not be required to devote full time and
attention to the performance of its duties under this Agreement, but shall
devote only so much of its time and attention as it deems reasonable or
necessary to perform the Services required hereunder. To the extent possible,
such Services will be substantially identical in nature and quality to the
services currently provided or otherwise made available by Providing Party to
its wholly owned subsidiaries and their respective operating divisions. Except
as provided in an Exhibit for a specific Service, in providing the Services,
Providing Party shall not be obligated to: (i) hire any additional employees;
(ii) maintain the employment of any specific employee; (iii) purchase, lease or
license any additional equipment or software; or (iv) pay any costs related to
the transfer or conversion of Receiving Party's data to Providing Party or any
alternate supplier of Services. Providing Party has the right to reasonably
supplement, modify, substitute or otherwise alter such services from time to
time in a manner consistent with supplements, modifications, substitutions or
alterations made with respect to similar services provided or otherwise made
available by Providing Party to its wholly owned subsidiaries and
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their respective operating divisions. In providing such services, Providing
Party will not be responsible for the accuracy, completeness or timeliness of
any advice or service or any return, report, filing or other document which it
provides, prepares or assists in preparing, except to the extent that any
inaccuracy, incompleteness or untimeliness arises from Providing Party's willful
malfeasance, bad faith or gross negligence. Providing Party and Receiving Party
will cooperate in planning the scope and timing of services provided by
Providing Party under this Agreement in order to minimize or eliminate
interference with the conduct of Providing Party's business activities. If such
interference is unavoidable, Providing Party will apportion, in its sole
discretion, the available services in a fair and reasonable manner.
Notwithstanding anything set forth in this Section 1.4(g), neither Providing
Party nor any of its officers, directors, employees or agents shall have any
liability under this Agreement except to the extent provided in Section 1.4(f).
(h) NON-EXCLUSIVITY. Nothing in this Agreement precludes
Receiving Party from obtaining the scheduled Services, in whole or in part, from
its own employees or from providers other than Providing Party.
1.5 CERTAIN LIMITATIONS: NO SALE, TRANSFER, ASSIGNMENT. Receiving
Party may not sell, transfer, assign or otherwise use the Services provided
hereunder, in whole or in part, for the benefit of any person other than the
Receiving Party Affiliates.
1.6 CONFIDENTIALITY. Providing Party agrees to hold, and to use
its best efforts to cause its employees and representatives to hold, in
confidence all Confidential Information concerning Receiving Party, furnished to
or obtained by Providing Party after the Effective Date in the course of
providing the scheduled Services, in a manner consistent with Providing Party's
standard policies with respect to the preservation and disclosure of
Confidential Information concerning Providing Party and its subsidiaries and
operating units. Providing Party's systems used to perform the Services provided
hereunder are confidential and proprietary to Providing Party or third parties.
Receiving Party shall treat these systems and all related procedures and
documentation as confidential and proprietary to Providing Party or its third
party vendors.
1.7 DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND
INDEMNIFICATION.
(a) DISCLAIMER OF WARRANTIES. PROVIDING PARTY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE SERVICES. PROVIDING PARTY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO
THE QUALITY, SUITABILITY OR ADEQUACY OF THE SERVICES FOR ANY PURPOSE OR USE.
(b) LIMITATION OF LIABILITY; INDEMNIFICATION OF RECEIVING PARTY.
Providing Party shall have no Liability to Receiving Party with respect to its
furnishing any of the Services hereunder except for Liabilities arising out of
the willful malfeasance, bad faith or gross negligence of Providing Party or any
Affiliates of Providing Party. Providing Party will
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indemnify, defend and hold harmless Receiving Party and its officers, directors,
employees and agents in respect of all Liabilities related to, arising from,
asserted against or associated with such willful misconduct, malfeasance, bad
faith or gross negligence. Such indemnification obligation shall be a liability
of Providing Party for purposes of the Plan of Reorganization and Distribution
Agreement and the provisions with respect to indemnification shall govern with
respect thereto. In no event shall Providing Party or any Providing Party
Affiliate have any Liability for any incidental, indirect, special or
consequential damages, whether or not caused by or resulting from negligence or
breach of obligations hereunder and whether or not informed of the possibility
of the existence of such damages. For purposes of this Agreement, the term
"Liabilities" means any and all losses, claims, charges, debts, demands,
actions, causes of actions, suits, damages, costs and expenses, and similar
obligations, including those arising under any law, rule, regulation, action,
suit, proceeding (including reasonable attorneys' fees) and any and all costs
and expenses related thereto.
(c) LIMITATION OF LIABILITY; INDEMNIFICATION OF PROVIDING PARTY.
Receiving Party shall indemnify and hold harmless Providing Party and its
officers, directors, employees and agents in respect of all Liabilities related
to, arising from, asserted against or associated with Providing Party's
furnishing or failing to furnish the Services provided for in this Agreement,
other than Liabilities arising out of the willful malfeasance, bad faith or
gross negligence of Providing Party or any Providing Party Affiliate. The
provisions of this indemnity shall apply only to losses which relate directly to
the provision of Services. Such indemnification obligation shall be a liability
of the Receiving Party for purposes of the Plan of Reorganization and
Distribution Agreement and the provisions with respect to indemnification shall
govern with respect thereto. In no event shall Receiving Party or any Receiving
Party Affiliate have any Liability for any incidental, indirect, special or
consequential damages, whether or not caused by or resulting from negligence or
breach of obligations hereunder and whether or not informed of the possibility
of the existence of such damages.
(d) SUBROGATION OF RIGHTS VIS-A-VIS THIRD PARTY CONTRACTORS. In
the event any Liability arises from the performance of Services hereunder by a
third party contractor, Receiving Party shall be subrogated to such rights, if
any, as Providing Party may have against such third party contractor with
respect to the Services provided by such third party contractor to or on behalf
of Receiving Party.
ARTICLE 2
INSURANCE AND FOUNDATION MATTERS
2.1 CONVERGYS agrees that it will reimburse CBI for its
proportionate share of premiums paid or accrued, from the Effective Date until
the Distribution Date or such other date to which the parties agree, in respect
of insurance policies under which CONVERGYS and its Affiliates will continue to
have coverage following the Effective Date hereof. CBI and CONVERGYS agree to
cooperate in good faith to provide for an orderly transition of insurance
coverage from the Effective Date through the Distribution Date and for the
treatment of any insurance policies that will remain in effect following the
Effective Date on a mutually agreeable
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basis. Such efforts shall include, without limitation, cooperation with the
insurance companies with respect to the determination and allocation of
premiums, fees, assessments and other associated costs, including, but not
limited to, the potential attainment of any aggregate maximum liability for
policies in place prior to the Distribution Date. To the extent that insurance
carriers are able to and agree to separately invoice each party for its
proportionate allocation of all premiums, fees, assessments and other associated
costs, each party shall fully cooperate with such arrangements. CBI shall fully
cooperate with CONVERGYS with respect to disclosing the existence of, and
providing certified original copies of, any applicable insurance and claims
agreements upon request.
2.2 Each party shall cooperate fully with the other with respect
to the administration and reporting of CONVERGYS claims, the payment of
CONVERGYS claims determined to be payable, and the transfer to CONVERGYS of the
administration and files pertaining to any CONVERGYS claims or obligations.
Nothing contained herein limits or in any way precludes CONVERGYS, by or for
itself, CBIS and/or MATRIXX from asserting its rights to coverage under any CBI
procured insurance policy that provided coverage to or for CONVERGYS, CBIS
and/or MATRIXX and/or any such entities' directors, officers, employees or
agents as insured parties prior to the Distribution Date. After the Effective
Date, neither CBI nor CONVERGYS shall, without the consent of the other, provide
any such insurance carrier with a release, or amend, modify or waive any rights
under any such policy or agreement, if such release, amendment, modification or
waiver would adversely affect any rights or potential rights of the other
hereunder; provided, however, that the foregoing shall not (i) preclude either
from presenting any claim or from exhausting any policy limit, (ii) require
either to pay any premium or other amount or to incur any liability, or (iii)
require either to renew, extend or continue any policy in force. Each of
CONVERGYS and CBI will share such information as is reasonably necessary in
order to permit the other to manage and conduct its insurance matters in an
orderly fashion.
2.3 In the event that any of the insurance policies that CBI
maintains expire before the Distribution Date, CBI shall use its reasonable best
efforts to renew such policy and to cause the issuing insurance company to issue
a separate policy to CONVERGYS. If CBI is not able to cause such insurance
company to issue such separate insurance policy, CONVERGYS shall use its
reasonable best efforts to procure a separate policy from another insurance
company, and CBI shall use its reasonable best efforts to continue to cover
CONVERGYS under its renewed policy until the date on which a separate insurance
policy is procured. CONVERGYS shall compensate CBI for all costs incurred by CBI
to continue such coverage. CBI shall use its reasonable best efforts to maintain
the premium rates for all insurance policies for both CBI and CONVERGYS in
effect for periods through the Distribution Date. Any premiums due under the
separate insurance policies issued to CONVERGYS shall be payable by CONVERGYS.
In no event shall CBI or any CBI Indemnitee have any liability or obligation
whatsoever to CONVERGYS in the event that any insurance policy or other contract
or policy of insurance shall be terminated or otherwise cease to be in effect
for any reason, shall be unavailable or inadequate to cover any liability of
CONVERGYS for any reason whatsoever or shall not be renewed or extended beyond
the current expiration date.
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2.4 This Agreement shall not be considered as an attempted
assignment of any policy of insurance or as a contract of insurance and shall
not be construed to waive any right or remedy of either CBI or CONVERGYS in
respect of any insurance policy or any other contract or policy of insurance.
2.5 CONVERGYS does hereby, for itself and its Affiliates, agree
that CBI or any CBI Indemnitee shall not have any liability whatsoever as a
result of the insurance policies and practices of CBI and its Affiliates as in
effect at any time prior to the Effective Date, including as a result of the
level or scope of any such insurance, the creditworthiness of any insurance
carrier, the terms and conditions of any policy, the adequacy or timeliness of
any notice to any insurance carrier with respect to any claim or potential claim
or otherwise.
2.6 Notwithstanding the foregoing, CBI agrees that, to the extent
that CBI is providing indemnification (through insurance or otherwise) to any
Covered Individual at any time prior to the Distribution Date for such
individual's acts and omissions in any capacity, CBI shall continue to provide
such indemnification, for any acts or omissions occurring prior to the
Distribution Date, through the last day of the five-year period commencing on
the Distribution Date. To the extent that such indemnification is being provided
through insurance, any premiums for such insurance payable after the
Distribution Date shall be shared equally by CBI and CONVERGYS. For purposes of
this Section 2.6, "Covered Individual" means an officer, director or employee of
CBI or a CBI Affiliate (and, where appropriate, their spouses, estates, heirs,
legal representatives and assigns) (a) who is insured, in any capacity, under
CBI's Directors and Officers and Company Reimbursement Policy at any time prior
to the Distribution Date and (b) who is an officer, director or employee of
CONVERGYS or a CONVERGYS Affiliate on the day immediately following the
Distribution Date. The provisions of this Section 2.6 shall survive the
termination of this Agreement.
2.7 To the extent that at the Distribution Date the Cincinnati
Xxxx Foundation has assets in excess of its commitments, the parties shall cause
the Foundation's trustees to contribute half of such excess to a foundation
established by CONVERGYS which qualifies as a charitable entity under Section
501(c)(3) of the Internal Revenue Code.
ARTICLE 3
MISCELLANEOUS
3.1 LAWS AND GOVERNMENTAL REGULATIONS. Receiving Party shall be
responsible for (i) compliance with all laws and governmental regulations
affecting its business and (ii) any use Receiving Party may make of the Services
to assist it in complying with such laws and governmental regulations. While
Providing Party shall not have any responsibility for Receiving Party's
compliance with the laws and regulations referred to above, Providing Party
agrees to use reasonable efforts, subject to subsection 1.5, to cause the
Services to be designed in such manner that such Services shall be able to
assist Receiving Party in complying with applicable legal and regulatory
responsibilities. Providing Party's charge, if any, for such Service
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may reflect its efforts under this Section 3.1. In no event, however, shall
Receiving Party rely solely on its use of the Services in complying with any
laws and governmental regulations.
3.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be
deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained herein, and
no act of the parties, shall be deemed to create any relationship between the
parties other than the relationship of independent contractor nor be deemed to
vest any rights, interest or claims in any third parties.
3.3 INDEPENDENCE. All employees and representatives of Providing
Party providing the Services to Receiving Party will be deemed for purposes of
all compensation and employee benefits to be employees or representatives of
Providing Party and not employees or representatives of Receiving Party. In
performing such services, such employees and representatives will be under the
direction, control and supervision of Providing Party (and not of Receiving
Party), and Providing Party will have the sole right to exercise all authority
with respect to the employment (including termination of employment), assignment
and compensation of such employees and representatives.
3.4 AMENDMENTS; WAIVERS. This Agreement may be amended or modified
only in writing executed on behalf of CBI and CONVERGYS. No waiver shall operate
to waive any further or future act and no failure to object or forbearance shall
operate as a waiver.
3.5 INCONSISTENCY. In the event of any inconsistency between the
terms of this Agreement and any of the Exhibits hereto, the terms of this
Agreement, other than charges, shall control.
3.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns, provided that this Agreement and the rights and
obligations contained herein or in any exhibit or schedule hereto shall not be
assignable, in whole or in part, without the prior written consent of the
parties hereto and any attempt to effect any such assignment without such
consent shall be void.
3.7 ARBITRATION. Any dispute, controversy or claim arising out of
or in connection with this Agreement (including any questions of fraud or
questions concerning the validity and enforceability of this Agreement or any of
the rights herein), shall be determined and settled in accordance with Article
11 of the Plan of Reorganization and Distribution Agreement.
3.8 NOTICES. All notices required or permitted to be given under
this Agreement shall be in writing and shall be sent by facsimile transmission
or mailed by registered or certified mail addressed to the party to whom such
notice is required or permitted to be given. All notices shall be deemed to have
been given when transmitted if given by facsimile and confirmation of receipt is
received or, if mailed, 48 hours after mailed as evidenced by the postmark at
the point of mailing.
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All notices to CBI shall be addressed as follows:
CINCINNATI XXXX INC.
000 X. Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Fax No. 000-000-0000
Attention: President
All notices to CONVERGYS shall be addressed as follows:
CONVERGYS CORPORATION
000 X. Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Fax No. 000-000-0000
Attention: President
Either party may, by written notice to the other, as provided herein designate a
new address to which notices to the party giving the notice shall thereafter be
mailed.
3.9 FORCE MAJEURE. Providing Party shall not be liable for any
delay or failure of performance to the extent such delay or failure is caused by
circumstances beyond its reasonable control and that by the exercise of due
diligence it is unable to prevent, provided that the party claiming excuse use
its best efforts to overcome the same.
3.10 ENTIRETY OF AGREEMENT. This Agreement, the Plan of
Reorganization and Distribution Agreement and the Ancillary Agreements set forth
the entire agreement and understanding of the parties relating to the subject
matter contained herein and merges all prior discussions between them, and
neither party shall be bound by any representation other than as expressly
stated in this Agreement or by a written amendment to this Agreement, the Plan
of Reorganization and Distribution agreement and the Ancillary Agreements signed
by authorized representatives of both parties.
3.11 SEVERABILITY. In the event any term of this Agreement is or
becomes or is declared to be invalid or void by any court of competent
jurisdiction, such term or terms shall be null and void and shall be deemed
deleted from this Agreement, and all the remaining terms of the Agreement shall
remain in full force and effect.
3.12 GOVERNING LAW. The validity, performance and construction of
this Agreement shall be governed by the laws of Ohio.
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IN WITNESS WHEREOF, the parties have executed this Services Agreement
as of the date first above written.
CINCINNATI XXXX INC.
By: /s/ XXXX X. XXXXXXXXX
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Xxxx X. XxXxxxxxx, President
and Chief Executive Officer
CONVERGYS CORPORATION
By: /s/ XXXXX X. XXX
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Xxxxx X. Xxx, President
and Chief Executive Officer
