EXHIBIT 10.30
VERIZON INFORMATION TECHNOLOGIES INC.
AND
TSI TELECOMMUNICATION SERVICES, INC.
DISTRIBUTED PROCESSING SERVICES AGREEMENT
This Distributed Processing Services Agreement ("Agreement") is made as of
February 14, 2002 ("Effective Date"), between VERIZON INFORMATION TECHNOLOGIES
INC. ("VITI"), with offices at One East Telecom Parkway, Post Office Xxx 000000,
Xxxxxx Xxxxxxx, Xxxxxxx 00000, and TSI TELECOMMUNICATION SERVICES, INC. ("TSI"
or "Customer"), with offices at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000.
In consideration of the terms and conditions and mutual obligations contained in
this Agreement, the parties agree as follows:
1. CONSTRUCTION
1.1 References to an "Article," "Section," or "Subsection" shall be
references to the articles, sections and subsections of the Agreement,
unless otherwise specifically stated.
1.2 The Article and Section headings in the Agreement are intended to be for
reference purposes only and shall in no way be construed to modify or
restrict any of the terms or provisions of the Agreement.
1.3 The word "include," "includes," and "including" shall mean "include,
without limitation," "includes, without limitation," and "including,
without limitation," respectively.
2. DEFINITIONS
2.1 "Affiliate" means, with respect to any entity, any other entity
controlling, controlled by or under common control with such entity. For
purposes of this definition, the term "control," including its
derivatives, means the possession directly or indirectly of the power to
direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting securities, by trust,
management agreement, contract or otherwise.
2.2 "Agreement" means this Agreement and the Exhibits and Attachments
attached to this Agreement, which Exhibits and Attachments are hereby
incorporated by this reference into this Agreement.
2.3 "Expenses" has the meaning set forth in Section 11.3.
2.4 "Fees" has the meaning set forth in Section 11.1.
2.5 "Force Majeure" shall mean terrorism; acts of God and the public enemy;
the elements; fire; accidents; vandalism; sabotage; external power
failure; failure, delay or disruption of
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transportation facilities; strikes, lockouts or any other industrial,
civil or public disturbances; any laws, orders, rules, regulations, acts
or restraints of any government or governmental body or authority, civil
or military, including the orders and judgments of courts; and any other
cause of any kind whatsoever not reasonably within the control of a party
hereto.
2.6 "Hardware" means the central processing unit and peripheral equipment
installed in a VITI facility and utilized by VITI to provide the
Services, including, the telecommunications equipment at the demarcation
point at VITI's facility. The term Hardware does not include terminals,
controllers, or telecommunications equipment at the TSI site(s), or the
actual circuits, required to enable TSI to utilize VITI's service bureau
services, which terminals, controllers, telecommunications equipment and
circuits are TSI's responsibility.
2.7 "Initial Distributed Processing Environment" consists of the Hardware
acquired on or before November 30, 2001 and set forth in Exhibit C.
2.8 "Intellectual Property Rights" means any and all intangible rights
existing from time to time under the law of any jurisdiction, including
patent law, copyright law, trade secret law, unfair competition law,
trademark law or other similar laws or principles.
2.9 "Maintenance Fees" has the meaning set forth in Exhibit B.
2.10 "Monthly Labor Fees" has the meaning set forth in Exhibit B.
2.11 "Services" has the meaning set forth in Section 3.1.
2.12 "Software" means any software used by VITI to provide Services.
2.13 "TSI Proprietary Data" means any and all technical and non-technical,
non-public information owned by TSI that is used in or required for use
in the business of TSI, including financial, marketing and business data,
information and reports, pricing and cost information, correspondence and
notes.
2.14 "TSI Software" means TSI-developed application software and TSI system
monitoring software.
2.15 "TSI Third Party Software" means TSI-provided third party software.
2.16 "Verizon Enterprise License" means the agreements between Verizon and/or
its affiliates and any third party to provide the VITI Third Party
Software to Verizon and/or its affiliates.
2.17 "VITI Software" means VITI-owned Software
2.18 "VITI Third Party Software" means VITI-provided third party Software.
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3. SERVICES
3.1 SERVICE BUREAU AND HELP DESK SERVICES. VITI shall provide the distributed
processing and help desk services as described in Exhibit A
(collectively, "Services"). TSI may order additional services by
executing a supplement to this Agreement that identifies the additional
services to be provided. There is no obligation to provide such
additional services or to make payment for additional services unless and
until a supplement has been duly executed by both parties in accordance
with this Agreement.
3.2 NTN CIRCUITS. For a period not to exceed sixty (60) days from the
Effective Date, VITI shall provide the six (6) circuits TSI is currently
receiving from NTN on a pass-through cost basis.
3.3 SAP, AP AND INTRANET APPLICATIONS ACCESS. For a period of sixty (60) days
from the Effective Date, VITI will continue to provide TSI with access to
the SAP, AP and Intranet applications. During that sixty (60) day period,
VITI will make commercially reasonable efforts to identify an alternative
solution to TSI. In the event VITI is unable to identify such an
alternative solution, or TSI rejects VITI's recommended alternative
solution, VITI will continue to provide access to TSI until June 1, 2002.
VITI shall provide such access to TSI on a pass-through cost basis. Any
costs associated with the implementation of an alternative solution will
be the responsibility of TSI.
3.4 SERVICE LEVELS. Service level measurements and objectives are set forth
in the Service Level Agreements (SLAs) between the parties, attached
hereto as Attachment 1 to Exhibit A. The parties shall negotiate any
revisions to the SLA(s) for added Hardware or Software within ninety (90)
days of implementation of such additional Hardware or Software.
4. NEW HARDWARE AND SOFTWARE
4.1 NEW HARDWARE AND SOFTWARE. To the extent that new Hardware purchased by
VITI has been added to the Initial Distributed Processing Environment
between the period November 30, 2001 to the Effective Date, or is added
to the Initial Distributed Processing Environment during the term of this
Agreement, VITI will charge TSI for such new Hardware and any required
fees associated with new VITI Software or VITI Third Party Software, and
any supplemental maintenance fees (on a pass-through basis) for such
Hardware and Software, together with VITI's labor charges for
implementation of such Hardware and Software into the Initial Distributed
Processing Environment and all such Hardware shall be subject to the
terms of Section 10.5.8. Hardware purchased or leased by TSI which has
been added to the processing environment between the period November 30,
2001, and the effective date of this Agreement, or is added to the
processing environment during the term of this Agreement, will be subject
to the terms of Section 10.5.8, and VITI will charge TSI for any required
associated software fees, and supplemental maintenance fees (on a
pass-through basis) for such Hardware and Software, together with VITI's
labor charges for implementation of the Hardware and/or Software into the
processing environment. TSI shall initiate all requests to VITI for
additional hardware, software and services using the change request
process set forth in Section 8.1 of Exhibit A, the Statement of Work
("SOW") hereto.
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5. USE OF SOFTWARE
5.1 TSI SOFTWARE AND TSI THIRD PARTY SOFTWARE. VITI may use the Hardware to
operate and run TSI Software and TSI Third Party Software; provided,
however, that TSI shall obtain all licenses and maintenance services
necessary for use of TSI Third Party Software by VITI and pay all costs
related to obtaining required consents needed by VITI to use TSI Third
Party Software for TSI's benefit. TSI shall be solely responsible for all
license, maintenance, and other fees due and payable for any TSI Third
Party Software. VITI shall make any TSI Software and TSI Third Party
Software available only to TSI.
5.2 VITI SOFTWARE AND VITI THIRD PARTY SOFTWARE. VITI may use the Hardware to
operate and run VITI Software and VITI Third Party Software; provided,
however, that VITI shall obtain all consents necessary for use of VITI
Third Party Software and TSI will pay all costs related to obtaining
required consents needed by VITI to use VITI Third Party Software for
TSI's benefit. In the event VITI cannot secure such consents to use the
VITI Third Party Software on behalf of TSI, VITI shall identify such VITI
Third Party Software and shall obtain on TSI's behalf a separate license,
and corresponding maintenance. However, TSI shall be solely responsible
for all license, maintenance and other fees due and payable for such VITI
Third Party Software.
6. MAINTENANCE.
6.1 RELEASE LEVELS AND UPDATES. Except as otherwise agreed by the parties,
any costs to upgrade the TSI Software or the TSI Third Party Software
shall be the responsibility of TSI. Any costs to upgrade the VITI
Software or the VITI Third Party Software shall be the responsibility of
VITI.
7. REQUIRED CONSENTS.
7.1 If a required consent is not obtained, then, unless and until such
required consent is obtained, VITI shall work with TSI to determine and
adopt such alternative approaches as are necessary and sufficient to
provide the Services without such required consents.
8. COMPUTING FACILITY AND RESOURCE UTILIZATION
8.1 USER LOGON IDENTIFICATION ASSIGNMENT. If necessary to provide the
Services under this Agreement, VITI will assign Logon Identification
names(s) ("IDs") in accordance with VITI's User Logon Identification
Assignment procedures then in effect. VITI shall provide TSI with a
description of any change to such procedures. TSI shall be responsible
for the security and control of such assigned IDs and shall restrict the
use of such assigned IDs to access of TSI's programs and data. TSI shall
be responsible for any and all usage charges incurred on the IDs assigned
to it that TSI is aware of or about which TSI should have reasonable
knowledge. VITI agrees not to disclose TSI's IDs to any third party
without the advance written consent of TSI. VITI shall have no liability
for TSI's disclosure of IDs assigned by it to third parties.
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8.2 TSI ACCESS TO VITI NETWORK OR FACILITY. Under no circumstances shall TSI
personnel access any VITI network or facility for the purpose of
accessing or attempting to access other internal or external networks,
facilities, computer systems, partitions, programs, or data that is not
specific to TSI. TSI further agrees that any capabilities for such access
shall not be published or made known via any medium (e.g., posting on
bulletin boards or via electronic mail). In addition, any such use or
publication, or access to backdoors, data capture routines, games,
viruses, worms, Trojan horse routines, will be a breach of contract and
VITI will provide notice thereof to TSI and VITI shall immediately cease
providing the Services until such breach is cured. TSI shall ensure that
all TSI personnel accessing VITI's systems are aware of their
responsibilities and restrictions pertaining to the use of the IDs
referenced in this Section 8.2.
8.3 FILE SECURITY. VITI will provide security and back-up and recovery
services as specified in Section 14 to protect TSI's data. VITI reserves
the right to issue and change security regulations and procedures as
needed. VITI shall not be required to reconstruct any files, data, or
programs that may, for any reason, have to be re-entered into the system,
unless reconstruction is required due to a negligent act or omission on
the part of VITI.
8.4 SERVICE USAGE CONDITIONS.
8.4.1 TSI. TSI represents and agrees that it will use the Services in
compliance with all applicable federal, state, and local laws and
regulations, and communications common carrier tariffs. VITI
reserves the right to take all actions, including termination of
the Services (in whole or in part), that it believes necessary to
comply with applicable laws, regulations, and tariffs if TSI
fails to discontinue any improper use of the Services promptly
after receipt of written notice from VITI as is reasonably
feasible under the circumstances.
8.4.2 VITI. VITI represents and agrees that it will provide the
Services in compliance with all applicable federal, state, and
local laws and regulations, and communications common carrier
tariffs. TSI reserves the right to take all actions, including
termination of the Services (in whole or in part), that it
believes necessary to comply with applicable laws, regulations,
and tariffs if VITI fails to discontinue any improper action with
respect to the Services promptly after receipt of written notice
from TSI as is reasonably feasible under the circumstances.
9. CONCEPT/PRODUCT OWNERSHIP
9.1 TSI. Except and to the extent otherwise expressly provided in the
Intellectual Property Agreement, TSI agrees that concepts, information,
and materials developed by VITI prior to commencement of and independent
of work under this Agreement, or owned by a third-party or supplier of
VITI and furnished to TSI by VITI to enable VITI to perform the Services,
shall remain the property of VITI or such third-party or supplier.
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9.2 VITI. Except and to the extent otherwise expressly provided in the
Intellectual Property Agreement, VITI agrees that concepts, information,
and materials developed by TSI prior to commencement of and independent
of work under this Agreement, or owned by a third-party or supplier of
TSI and furnished to VITI by TSI to enable VITI to perform the Services,
shall remain the property of TSI or such third-party or supplier.
9.3 Except for TSI Proprietary Data, all reports, recommendations, manuals,
findings, evaluations, forms, models, tools, computer programs, source
code listings, flow charts, programming documentation, reviews,
information, data, and written materials developed by VITI in connection
with the Services provided to TSI pursuant to this Agreement shall be the
exclusive property of VITI however upon request, VITI shall provide TSI a
printed copy of the reports recommendations, manuals, findings,
evaluations, forms, flow charts, information, and data specifically
related to TSI.
9.4 TSI PROPERTY RIGHTS. TSI retains exclusive ownership rights to all TSI
Software and information and data files provided to VITI under this
Agreement. All TSI Proprietary Data, including, records, data files,
input material reports, and other information received from TSI,
computed, used or stored pursuant to this Agreement is the exclusive
property of TSI. VITI shall not possess any interest, title, lien or
right to any TSI Proprietary Data. Nothing in this Agreement should be
construed as granting VITI any license to the TSI Proprietary Data or TSI
Software or conveying any interest or right in any TSI Proprietary Data
or TSI Software, except to the extent necessary for VITI to perform its
obligations and Services under this Agreement.
10. TERM AND TERMINATION
10.1 TERM. This Agreement shall commence on the Effective Date and shall have
an term of eighteen (18) months ("Term") or until terminated as
otherwise provided in this Agreement or by operation of law.
10.2 TERMINATION FOR DEFAULT. The occurrence of any of the following shall
constitute a default, giving the non-defaulting party the right to
terminate this Agreement for cause, subject to Section 10.5 below:
10.2.1 NONPAYMENT. In the event TSI shall fail to pay when due any
undisputed payment or other undisputed amount due hereunder and
such failure shall continue for a period of thirty (30) days
after such payment is due, VITI, at its sole option, shall have
the right to terminate this Agreement for default, provided that
such termination may be made only following the expiration of a
fifteen (15) day period during which TSI has failed to cure such
breach after having been given written notice of such breach. In
addition, VITI shall have the right, at its sole discretion, to
stop providing Services to TSI under this Agreement, and VITI
shall be relieved of any future obligations to perform Services
under this Agreement. VITI shall retain all amounts previously
paid
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by TSI, and TSI shall remain liable for all obligations upon
termination as provided under Section 10.4 below.
10.2.2 MATERIAL BREACH. Either party shall fail to perform or observe
any other material covenant, condition or agreement to be
performed or observed by it hereunder and such failure shall
continue for a period of thirty (30) days after receipt of
written notice.
10.2.3 BANKRUPTCY/INSOLVENCY. Either party shall commit an act of
bankruptcy within the meaning of the Federal Bankruptcy Act, or
bankruptcy, receivership, insolvency, reorganization,
dissolution, liquidation or other proceedings shall be instituted
by or against either party or all or any substantial part of its
property under any federal or state law and such proceeding shall
not be dismissed within ninety (90) days.
10.3 FORCE MAJEURE. In the event VITI is unable to perform the Services in any
material respect for more than ten (10) consecutive days, or for more
than thirty (30) days in any calendar quarter, as a result of a Force
Majeure, TSI may terminate this Agreement by giving VITI written notice
of such termination.
10.4 TERMINATION FOR CONVENIENCE BY TSI. In the event TSI wishes to terminate
this Agreement (or any Services relating to Hardware or Software that TSI
may want to remove from the processing environment), in whole or in part,
prior to expiration of the Initial Term, TSI may do so, in whole or in
part, upon three (3) months' prior written notice to VITI, subject to
Section 10.5.2 below. Appropriate adjustment to the fees will be made
with respect to any termination in part.
10.5 OBLIGATIONS UPON TERMINATION
10.5.1 TERMINATION FOR DEFAULT. In the event of a termination for
default on the part of TSI (under Section 10.2 above), TSI shall
remain obligated to pay VITI Fees and Expenses incurred by VITI,
through the date of termination, plus an additional three (3)
months' fees based on the average of the previous three months'
processing fees. In addition, TSI will reimburse VITI for any
non-refundable payment to a third party for Hardware and/or
Software maintenance.
10.5.2 PAYMENT UPON TERMINATION FOR CONVENIENCE. If TSI
terminates this Agreement for convenience in accordance with
Section 10.4 TSI will pay for Services rendered by VITI through
the date of termination. In addition, TSI will reimburse VITI for
any non-refundable payment to a third party for Hardware and/or
Software maintenance used by VITI to provides the Services to
TSI.
10.5.3 RETURN OF MATERIALS. Upon termination of this Agreement,
each party shall promptly return to the other party, or at the
option of the owner, certify
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the destruction of, all data, programs and materials of the other
held in connection with the performance of this Agreement. VITI
shall not be responsible for the retention of TSI Software, VITI
Third Party Software or TSI Proprietary Data for a period in
excess of sixty (60) days following the date of such termination.
Within such period TSI must make arrangements with VITI for the
transmission of such TSI Software and TSI Proprietary Data to
TSI's designated data center. TSI will pay for all necessary
media, processing, and shipping costs. TSI understands and agrees
that at any time after delivery of the media, or after the
sixty-first (61st) day following termination, VITI's file purge
procedures will ultimately erase all storage media, including
back-up storage media, which contain TSI Software or TSI
Proprietary Data, and TSI expressly releases VITI from any and
all liabilities in connection with the erasure or destruction of
the same that TSI has stored on VITI's computers in excess of
sixty (60) days following termination. TSI is solely responsible
for maintaining a procedure for the reconstruction of lost data,
programs and procedures for purposes of re-entry and back-up of
TSI's data, except that VITI shall remain liable beyond the
stated period for information remaining in storage at VITI for
which TSI has specifically contracted with VITI to store beyond
termination.
10.5.4 TRANSFER OF VITI THIRD PARTY SOFTWARE. Upon expiration or
termination of this Agreement, VITI shall, upon TSI's request, as
part of the Termination Assistance as set forth in Section 10.5.5
transfer to TSI any VITI Third Party Software licenses used
specifically for TSI and not under the Verizon Enterprise
License, provided that TSI has paid all consent, license and
maintenance fees. To the extent TSI has not paid such fees, TSI
will pay VITI such fees prior to the transfer, provided further
that VITI has the right to make such transfer. With respect to
such software, VITI will deliver to TSI a copy in the form used
by VITI in connection with the Services as of the effective date
of such expiration or termination. Each of VITI and TSI shall
make commercially reasonable efforts to obtain a license for TSI
to use or the consents necessary to transfer such software to TSI
pursuant to this Section 10.5.4.
10.5.5 TERMINATION ASSISTANCE. Provided that TSI has not been
terminated for default, and upon written request of TSI,
commencing upon any written notice of termination of this
Agreement and continuing through the effective date of
termination of this Agreement and a reasonable amount of time
following such effective date of termination, VITI shall provide
reasonable termination assistance to TSI or to TSI's designees at
TSI's request to allow TSI to obtain services from a third party
without interruption or adverse effect, and to facilitate the
orderly transition of the Services to TSI or TSI's designee
("Termination Assistance"). The Termination Assistance shall be
provided at VITI's professional services hourly rate of $ 125.00
per hour and includes the transfer of TSI data files (archived
and current), files, and documentation to TSI or its designee.
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10.5.6 If TSI is not in default, VITI acknowledges and agrees
that it shall have an obligation to provide TSI with the
Termination Assistance in a workmanlike manner.
10.5.7 Except as expressly stated in this Agreement, TSI
acknowledges that VITI will provide no Termination Assistance
except as specifically requested in writing by TSI and agreed to
in writing by VITI and TSI.
10.5.8 OPTION TO PURCHASE HARDWARE. Upon expiration or
termination of this Agreement, TSI shall have the option to
purchase the Hardware from the Initial Distributed Processing
Environment as set forth in Exhibit C hereto, in an "as is"
condition at that time, for the amount of One Dollar ($1.00).
Upon contract expiration or termination, TSI shall have the
option to purchase any Hardware added to the Initial Distributed
Processing environment on or after November 30, 2001 and during
the term of this Agreement, in an "as is" condition at that time
for the then book value of such Hardware.
With respect to Hardware that is purchased by TSI during the term
of this Agreement, and intended for the processing environment,
TSI will sell such Hardware to VITI in an "as is" condition for
One Dollar ($1.00) and, thereafter, upon expiration or
termination of this Agreement, VITI shall sell such Hardware back
to TSI for One Dollar ($1.00).
With respect to Hardware that is leased to TSI during the term of
this Agreement and intended for the processing environment, TSI
will obtain the right for VITI to use such Hardware for the term
of the Agreement and VITI shall return such Hardware to TSI upon
termination or expiration of this Agreement. To the extent that
TSI incurs any charges from its vendors for re-certification of
any of the Hardware purchased from VITI as described in this
Section 10.8.7, TSI shall be responsible for payment of such
charges.
11. FEES AND PAYMENTS
11.1 FEES. TSI shall pay VITI the fees for the Services as described in
Exhibit B ("Fees").
11.2 TAXES. In addition to the Fees TSI shall pay to VITI an amount equal to
any excise, use, privilege, gross revenue, or sales tax, or any other tax
(except income and franchise taxes), assessments, or duties, imposed by
or under authority of any federal, state, provincial, or local law, and
to be paid or assessed by VITI with respect to the Services or any
portion or modification hereof or addendum. Taxes, assessments and duties
will be separately identified on the invoices to which they apply.
11.3 EXPENSES. In addition to the Fees, TSI shall reimburse VITI for the
reasonable, verifiable, travel out-of-pocket expenses, incurred by VITI
that are attributable to VITI's employees providing Services at TSI's
downtown Tampa location ("Expenses"). VITI shall not provide
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Services at any location other than the TSI downtown Tampa office.
Expenses shall be identified separately in VITI invoices for Services.
11.4 INVOICES/PAYMENT: All Fees and Expenses shall be invoiced monthly for
Services rendered during the previous month and are due thirty (30)
calendar days after date of invoice. Late payment charges may be imposed
by VITI at the rate of 1 1/2 % per month (18 % per year). Interest shall
not be payable by TSI for amounts on invoices that it has disputed in
good faith provided that the dispute is resolved in TSI's favor and TSI
pays within thirty (30) calendar days of the resolution of the dispute.
With respect to disputed invoices, undisputed amounts must be paid within
thirty (30) calendar days from the date of the invoice. VITI must be
advised in writing of any amounts disputed by TSI and the basis of the
dispute within fifteen (15) calendar days from the date of the invoice or
the entire invoice must be paid. Interest shall be payable from the
original due date until the payment date for disputed invoices that are
resolved in VITI's favor.
12. AUDIT RIGHTS
12.1 AUDIT. Upon at least two weeks' written notice to VITI and during VITI's
normal business hours, TSI shall have the right to audit and verify
VITI's operating environment and other areas of service to ensure that
VITI is maintaining adequate controls and security measures, that VITI's
usage data in support of the xxxxxxxx to TSI are correct, and that
reports relating to VITI's performance are accurate. Such audit and
inspection shall be limited to information that relates to the Services,
and may include: (i) VITI's practices and procedures; (ii) VITI's
computer systems; (iii) VITI's controls and security measures and
procedures; (iv) VITI's disaster recovery and back-up procedures; (v) any
matter necessary to enable TSI to meet applicable legal or regulatory
requirements; (vi) VITI's compliance with service levels. TSI may conduct
such audit and a verification review itself or with the assistance of a
third party organization (provided that such organization has executed a
Non-Disclosure Agreement with VITI) at TSI's expense. Such audit shall
occur only once during the term of this Agreement, unless a regulatory
agency requires additional audits, during the term of this Agreement.
VITI will cooperate in this review and will furnish to TSI or TSI's
designated representatives requested information on a timely basis
provided that TSI reimburses VITI at the professional services rate of
$125 per hour for all time expended by VITI.
12.1.1 ACCESS. In accordance with Section 12.1, VITI shall provide to
TSI and its Affiliates, their respective auditors (including
internal audit staff), inspectors, regulators, consultants and
other representatives as TSI may from time to time designate in
writing, reasonable access to: (i) VITI's facilities where the
Services are being performed; (ii) VITI's personnel providing any
of the Services; and (iii) data and records in the possession of
VITI relating to any of the Services as set forth above. All such
persons shall adhere to VITI's customary security and safety
policies.
12.1.2 VITI COOPERATION. VITI shall assist TSI's auditors, inspectors,
regulators and representatives as is reasonably required. VITI
shall cooperate with TSI or its
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designees in connection with audit functions and with regard to
examinations by regulatory authorities.
12.1.3 ADJUSTMENTS. If any audit pursuant to this Article 12 indicates
the need for adjustments in TSI's payments for the Services, the
audit results and recommendations will be used as the basis for
the negotiation of equitable adjustments. Any adjustments will be
paid by or credited to the appropriate party within sixty (60)
days after the parties' agreement as to the adjustments.
12.2 TSI PROPRIETARY DATA AVAILABILITY. Notwithstanding any other provision of
this Agreement, VITI will make all TSI Proprietary Data (complete and
unaltered) available to TSI and its authorized agents. Furthermore,
during the term of this Agreement, VITI will not destroy any TSI
Proprietary Data (unless otherwise permitted under this Agreement),
without the prior express written consent of TSI. However, TSI
understands and agrees that at any time after delivery of the storage
media, of after the sixty-first (61st) day following termination, VITI's
file purge procedures will ultimately erase all storage media, including
back-up storage media, which contain TSI Software or TSI Proprietary
Data.
12.3 SAFEGUARDING TSI PROPRIETARY DATA. VITI will establish and maintain
safeguards against the destruction, loss, or alteration of TSI
Proprietary Data in the possession of VITI that are no less rigorous than
those maintained by VITI with respect to its own similar data. TSI will,
at its own expense, have the right to establish backup security for TSI
Proprietary Data and to keep backup data and data files at a non-Verizon
location.
13. GENERAL ADMINISTRATION
13.1 VITI may, upon reasonable notice to TSI and at VITI's expense, designate
and make changes in rules of operation, teleprocessing protocols,
accessibility periods, TSI identification procedures, type of terminal
equipment, type and location of system and service equipment, system
programming languages, and designation of the particular VITI data center
serving TSI at any particular address; provided, however, that any such
proposed change will not substantially impair TSI's ability to obtain
Services or TSI's cost of receipt of the Services.
14. BACKUP AND ARCHIVING; DISASTER RECOVERY
14.1 BACKUP AND ARCHIVING. As part of the Services, VITI shall perform: (i)
periodic backup and archiving; (ii) purging and archiving of data; and
(iii) general recovery.
14.2 DISASTER RECOVERY. VITI shall provide disaster recovery in accordance
with the applicable provisions of Exhibit A.
15. TELECOMMUNICATIONS
15.1 MONITORING AND NETWORK. VITI shall be responsible for monitoring the
TSI-provided telecommunications network between TSI's location and VITI's
location, as well as for the purchase and maintenance of the network
hardware/software at VITI's demarcation point.
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TSI shall be responsible for the purchase and maintenance of any network
hardware/software necessary to allow TSI to connect to the network at the
mutually agreed upon TSI demarcation point.
16. CONFIDENTIAL AND PROPRIETARY INFORMATION
16.1 DISCLOSURE. Both VITI and TSI acknowledge that certain information that
each may receive from the other, non-public information concerning the
business or finances of either party, and any other information the
disclosure of which might harm or destroy a competitive advantage of the
disclosing party, may be proprietary to the disclosing party. Neither
receiving party shall, directly or indirectly, use or disclose any
information concerning the disclosing party's business methods, customers
or finances, or any other information that is disclosed to it by the
other party, whether or not in writing and whether or not designated as
proprietary, without the prior written permission of the disclosing
party, unless such use or disclosure is specifically required in the
course of the performance by the receiving party of its obligations
hereunder. The parties acknowledge that this Agreement contains
commercially confidential information that may be considered proprietary
by either or both parties, and agree to limit distribution of this
Agreement to those individuals in their respective corporations with a
need to know the contents of this Agreement. The foregoing
notwithstanding, nothing contained herein shall prevent either party from
complying with applicable law, regulation or court order, provided that
timely written notice is provided to the other party to permit the other
party to seek to limit any required disclosure or to seek a protective
order. The obligations of VITI and TSI under this Article 16 shall not
extend to any information that: (i) becomes publicly available other than
through the action of the receiving party; (ii) is subsequently
rightfully furnished to the receiving party by a third party without
restriction on disclosure; (iii) is furnished by the disclosing party to
a third party without restriction on disclosure; or (iv) is rightfully
known by the receiving party at the time of receiving such information;
provided, however, that nothing herein shall preclude either party from
disclosing information that is required to be disclosed by valid order of
a court or other governmental body or otherwise required by law, to the
extent that such disclosure is so required provided the receiving party
gives prompt written notice to the disclosing party in order for the
disclosing party to obtain a protective order or similar relief.
16.2 BREACH. VITI and TSI both acknowledge that any breach by them of their
respective obligations under this Article 16 will cause irreparable harm
to the other party for which its remedies at law will be inadequate and
that in the event of any such breach the harmed party shall be entitled
to equitable relief (including without limitation injunctive relief and
specific performance) in addition to other remedies provided hereunder or
available at law.
17. REPRESENTATIONS AND WARRANTIES
17.1 VITI
17.1.1 AUTHORIZATION. VITI represents and warrants to TSI: (i) that this
Agreement has been validly executed and delivered by VITI and
that the provisions set forth in this Agreement constitute legal,
valid, and binding obligations of VITI
12
enforceable against VITI in accordance with their terms, subject
to bankruptcy, insolvency, reorganization and other laws
affecting creditor's rights generally, and with regard to
equitable remedies, to the discretion of the court before which
proceedings to obtain such remedies may be pending; (ii) that
VITI has all requisite corporate power and authority to enter
into this Agreement, and to carry out the transactions
contemplated by this Agreement, and that the execution, delivery,
and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly
authorized by all requisite corporate action on the part of VITI;
and (iii) that VITI's execution and delivery of this Agreement
and VITI's performance or compliance with the terms of this
Agreement will not conflict with, result in a breach of,
constitute a default under, or require the consent of any third
party under any license, sublicense, lease, contract, agreement
or instrument to which VITI is bound or by which its properties
are subject.
17.1.2 NON-INFRINGEMENT. VITI represents and warrants to TSI that the
Hardware, the VITI Software, and the VITI materials provided
under Section 9.1 do not infringe, or constitute an infringement
or misappropriation of, any Intellectual Property Rights of any
third party.
17.1.3 COMPLIANCE WITH LAWS. VITI represents and warrants to TSI that
VITI shall perform the Services in a manner that complies with
all laws applicable to VITI. TSI will coordinate with and provide
information to VITI as may be reasonably requested by VITI to
enable VITI to comply with all applicable laws. If VITI is
charged with a violation of or non-compliance with any such laws,
VITI shall promptly notify TSI of such charges in writing and
will use VITI's reasonable commercial efforts to cure such
violation or non-compliance as soon as practicable.
17.1.4 PERFORMANCE OF SERVICES. VITI covenants and agrees, and
represents and warrants to TSI, that VITI shall provide the
Services in a professional, workmanlike manner, in accordance
with the requirements of this Agreement.
17.1.5 NO VIRUSES. VITI represents and warrants to TSI that VITI shall
use all commercially reasonable efforts to ensure that there are
no viruses or similar items ("Viruses") in any VITI Software
and/or VITI Third Party Software provided or used by VITI as part
of the Services. VITI agrees that, in the event a Virus is found
to have been introduced into such software from any source, VITI
shall use all commercially reasonable efforts to eliminate the
Virus, to reduce the effects of the Virus and, if the Virus
causes a loss of operational efficiency or loss of data, to
mitigate and restore such losses.
17.1.6 NO SUITS OR ACTIONS. VITI represents and warrants to TSI that
there are no pending or threatened lawsuits, actions, or any
other legal or administrative proceeding against VITI which, if
adversely determined against VITI, will
13
have a material adverse affect on VITI's ability to perform its
obligations under this Agreement.
17.1.7 CONTINUING WARRANTIES. VITI hereby agrees and covenants to
ensure, throughout the term, that each of the representations and
warranties set forth in this Section 17.1, and each other
representation and warranty of VITI in this Agreement, remains
true and correct during the term of this Agreement. To the extent
that any such representation or warranty becomes untrue in any
material respects during the term of this Agreement, VITI shall
notify TSI of the facts and circumstances surrounding such
situation.
17.2 TSI
17.2.1 AUTHORIZATION. TSI represents and warrants to VITI: (i) that this
Agreement has been validly executed and delivered by TSI and that
the provisions set forth herein constitute legal, valid and
binding obligations of TSI enforceable against TSI in accordance
with their terms, subject to bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights
generally, and with regard to equitable remedies, to the
discretion of the court before which proceedings to obtain such
remedies may be pending; (ii) that TSI has all requisite
corporate power and authority to enter into this Agreement and to
carry out the transactions contemplated by this Agreement, and
that the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this
Agreement have been duly authorized by all requisite corporate
action on the part of TSI; and (iii) that TSI's execution and
delivery of this Agreement and TSI's performance or compliance
with the terms of this Agreement will not conflict with, result
in a breach of, constitute a default under, or require the
consent of any third party under any license, sublicense, lease,
contract, agreement or instrument to which TSI is bound or by
which TSI's properties are subject.
17.2.2 NON-INFRINGEMENT. TSI represents and warrants to VITI that the
TSI Software does not infringe, or constitute an infringement or
misappropriation of, any Intellectual Property Rights of any
third party.
17.2.3 COMPLIANCE WITH LAWS. TSI represents and warrants to VITI that
TSI will perform its obligations under this Agreement in a manner
that complies with all applicable laws. If TSI is charged with a
violation of or non-compliance with any such laws, TSI will
promptly notify VITI of such charges in writing and will use
TSI's reasonable commercial efforts to cure such violation or
non-compliance as soon as practicable.
17.2.4 NO VIRUSES. TSI represents and warrants to VITI that TSI will use
all commercially reasonable efforts to ensure that there are no
viruses or similar items ("Viruses") in any TSI Software or TSI
Third Party Software provided to VITI. TSI agrees that, in the
event a Virus is found to have been introduced into such software
from any source, TSI will use all commercially reasonable
14
efforts to eliminate the Virus, to reduce the effects of the
Virus and VITI shall have the right to stop processing until this
is accomplished or VITI can process without compromising the
security of its data center.
17.2.5 NO SUITS OR ACTIONS. TSI represents and warrants to VITI that
there are no pending or threatened lawsuits, actions, or any
other legal or administrative proceeding against TSI which, if
adversely determined against TSI, will have a material adverse
affect on TSI's ability to perform its obligations under this
Agreement.
17.2.6 CONTINUING WARRANTIES. TSI hereby agrees and covenants to ensure,
throughout the term, that each of the representations and
warranties set forth in this Section 17.2, and each other
representation and warranty of TSI in this Agreement, remains
true and correct during the term of this Agreement. To the extent
that any such representation or warranty becomes untrue in any
material respects during the term of this Agreement, TSI will
notify VITI of the facts and circumstances surrounding such
situation.
18. INDEMNIFICATION
18.1 INDEMNIFICATION BY VITI. VITI shall indemnify, defend and hold harmless,
in accordance with the procedures described in Section 18.3, TSI and its
Affiliates and its and their respective officers, directors, members,
employees, agents, successors, and assigns, from and against any and all
losses, claims, damages, liabilities, obligations, penalties, judgments,
awards, costs, expenses, and disbursements finally awarded and caused by,
relating to, based upon, arising out of or in connection with (a) any
breach by VITI of the representations and warranties made by it under
this Agreement; (b) gross negligence, recklessness or willful misconduct
on the part of VITI or its officers, directors employees, agents,
successors and assigns; (c) any claim that the Hardware, VITI Software,
or any VITI materials provided under Section 9.1 infringes or
misappropriates any Intellectual Property Rights of any third party; and
(d) bodily injury or death or damage to tangible personal property to the
extent the same was caused by the negligence or willful misconduct by
VITI or its Affiliates or their respective directors, officers,
employees, agents, successors or assigns.
18.2 INDEMNIFICATION BY TSI. TSI will indemnify, defend and hold harmless, in
accordance with the procedures described in Section 18.3, VITI and its
Affiliates and its and their respective officers, directors, members,
employees, agents, successors, and assigns, from any and all losses,
claims, damages, liabilities, obligations, penalties, judgments, awards,
costs, expenses, and disbursements finally awarded and caused by,
relating to, based upon, arising out of or in connection with (a) any
breach by TSI of the representations and warranties made by it under this
Agreement; (b) gross negligence, recklessness or willful misconduct on
the part of TSI or its officers, directors employees, agents, successors
and assigns; (c) any claim that the use of TSI Software infringes or
misappropriates any Intellectual Property Rights of any third party; and
(d) bodily injury or death or damage to tangible personal property to the
extent the same was caused by the negligence or willful misconduct by TSI
or its Affiliates or their respective directors, officers, employees,
agents, successors or assigns.
15
18.3 INDEMNIFICATION PROCEDURE. The party obliged to indemnify ("Indemnifying
Party") shall defend with counsel of its choosing any claim, demand, or
suit or other action (each, a "Claim") brought against each person
seeking to be reimbursed, indemnified, defended, and/or held harmless
(each an "Indemnified Party"). The Indemnified Party shall notify the
Indemnifying Party promptly in writing of any Claims for which the
Indemnified Party alleges that the Indemnifying Party is responsible
under this Article 18, which notice shall include a reasonable
identification of the alleged facts giving rise to such Claim. The
Indemnifying Party shall be relieved of liability hereunder to the extent
it is prejudiced by the Indemnified Party's failure to give prompt
notice. The Indemnifying Party shall also be relieved of liability
hereunder for settlement by the Indemnified Party of any Claim unless the
Indemnifying Party has approved the settlement in advance (such approval
not to be unreasonably withheld) or unless the defense of the Claim has
been tendered to the Indemnifying Party in writing and the Indemnifying
Party has failed promptly to undertake the defense. The Indemnified Party
shall reasonably cooperate with the Indemnifying Party and its agents in
defense of any Claim for which such Indemnified Party seeks to be
reimbursed, indemnified defended, or held harmless. Each Indemnified
Party shall have the right to participate in the defense of any such
Claim, by using attorneys of such Indemnified Party's choice, at such
Indemnified Party's expense.
19. LIMITATION OF LIABILITY
19.1 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER WHATSOEVER
FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR REVENUE OR
OTHER ECONOMIC LOSS IN CONNECTION WITH OR ENSUING FROM THE SERVICES TO BE
FURNISHED PURSUANT TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19.2 CAP ON DAMAGES. In no event shall TSI be entitled to any monetary damages
against VITI in excess of the payments for Monthly Labor (Processing)
Fees made by TSI to VITI for the prior six (6) months [or if six (6)
months have not yet elapsed since the Effective Date, then six (6) times
the average monthly payments made by TSI to VITI for Services since the
Effective Date].
19.3 EXCLUSION. Sections 19.1 and 19.2 shall not apply to claims involving
death, bodily injury or property damage or the provisions of Article 9
(Concept/Product Ownership), Article 16 (Confidential and Proprietary
Information), and Article 18 (Indemnification), nor shall Sections 19.1
and 19.2 apply to any loss that results from gross negligence or willful
misconduct on the part of either party.
19.4 EXPIRATION OF CLAIMS. No action, regardless of form, arising out of the
transactions contemplated by this Agreement may be brought by either
party more than two (2) years after the cause of action has accrued,
except that an action for non-payment may be brought within two (2) years
after the date of last payment.
16
20. ADDITIONAL SERVICES
20.1 CONVERSION, INTERFACING, RETROFITTING. Any conversion, interfacing, and
retrofitting services requested by TSI are outside the scope of this
Agreement. VITI, upon receipt of a statement of work from TSI, will
prepare and submit its proposal to TSI. Upon acceptance by TSI, the new
services will be set forth in a mutually agreed upon definitive agreement
between the parties.
20.2 SPECIAL SERVICES. TSI shall notify VITI in writing of its request for
VITI to provide consulting services or provide other professional
services that may be offered by VITI from time to time. VITI shall
develop a proposal for TSI for the additional effort. TSI shall pay for
any additional professional services, including any preliminary
specifications or study requirements, on a time and materials basis at
VITI's then-current hourly rate according to the professional services
requested by TSI. Any professional services provided under this Section
20.2 will be set forth in a mutually agreed upon definitive agreement
between VITI and TSI.
21. DISPUTE RESOLUTION:
21.1 ALTERNATIVE DISPUTE RESOLUTION. The parties desire to resolve disputes
arising out of this Agreement without litigation. Accordingly, except for
an action seeking a temporary restraining order or injunction related to
the purposes of this Agreement, or suit to compel compliance with this
dispute resolution process, the parties agree to use the following
alternative dispute resolution procedure as their sole remedy with
respect to any controversy or claim arising out of or relating to this
Agreement or its breach.
The parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for an action seeking a temporary
restraining order or injunction related to the purposes of this
Agreement, or suit to compel compliance with this dispute resolution
process, the parties agree to use the following alternative dispute
resolution procedure as their sole remedy with respect to any controversy
or claim arising out of or relating to this Agreement or its breach.
21.2 PROCEDURE. At the written request of a party, each party will appoint a
knowledgeable, responsible representative to meet and negotiate in good
faith to resolve any dispute arising under this Agreement. The parties
intend that these negotiations be conducted by non-lawyer, business
representatives. The location, format, frequency, duration and conclusion
of these discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives may utilize other
alternative dispute resolution procedures such as mediation to assist in
the negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be treated as
confidential information developed for purposes of settlement, exempt
from discovery and production, which shall not be admissible in the
arbitration described below or in any lawsuit without the concurrence of
all parties. Documents identified in or provided with such
communications, which are not prepared for
17
purposes of the negotiations, are not so exempted and may, if otherwise
admissible, be admitted in evidence in the arbitration or lawsuit.
21.3 BINDING ARBITRATION/DISCOVERY. If the negotiations do not resolve the
dispute within sixty (60) days of the initial written request, the
dispute shall be submitted to binding arbitration by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. A party may demand such arbitration in accordance with the
procedures set out in those rules. Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set out in this Section
20.3. Each party may submit in writing to a party, and that party shall
so respond, to a maximum of any combination of thirty-five (35) (none of
which may have subparts) of the following:
(1) interrogatories,
(2) demands to produce documents, and
(3) requests for admission
21.4 DEPOSITIONS/ARBITRATION HEARING. Each party is also entitled to take the
oral deposition of one individual of another party. Additional discovery
may be permitted upon mutual agreement of the parties. The arbitration
hearing shall be commenced within sixty (60) days of the demand for
arbitration. The arbitration shall be held in Tampa, Florida. The
arbitrator shall control the scheduling so as to process the matter
expeditiously. The parties may submit written briefs. The arbitrator
shall rule on the dispute by issuing a written opinion within thirty (30)
days after the close of hearings. The times specified in this Section
20.4 may be extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction. The
arbitrator shall have no authority to award punitive or exemplary damages
or any other damages not measured by the prevailing party's actual
damages and may not, in any event, make any ruling, finding or award that
does not conform to the terms and conditions of this Agreement.
21.5 COSTS. Each party shall bear its own costs of these procedures. A party
seeking discovery shall reimburse the responding party the costs of
production of documents (to include search time and reproduction costs).
The parties shall equally split the fees of the arbitration cost, the
court reporter's transcript, and the arbitrator.
22 NOTICES
22.1 NOTICES. All notices required to be given hereunder shall be given to the
respective parties by facsimile transmission or by such other method as
will result in a written acknowledgment of receipt. Notices shall be
deemed delivered on the Business Day (Monday through Friday, excluding
TSI and VITI holidays) following the date shown on the facsimile
transmission or on the date shown on the signed receipt.
To VITI : Verizon Information Technologies Inc.
One East Telecom Parkway
P.O. Box 290152
00
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Vice President-Commercial Services
Facsimile: (000) 000-0000
Copies to: Legal Department
Verizon Information Technologies Inc.
Xxx Xxxx Xxxxxxx Xxxxxxx, XX X0X
Xxxx Xxxxxx Xxx 000000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
To TSI: TSI Telecommunication Services, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
22.2 Either party may change its contact person, address and facsimile number
for notice purposes by giving the other party written notice of the new
address and the date upon which it will become effective in accordance
with this section.
23 MISCELLANEOUS
23.1 EQUAL EMPLOYMENT OPPORTUNITY The Equal Employment Opportunity Clause in
Section 202, Paragraphs 1 through 7, of Executive Order 11246, as
amended, relative to Equal Employment Opportunity, and the implementing
Rules and Regulations of the Office of Federal Contract Compliance, are
incorporated herein by specific reference.
23.2 ASSIGNMENT; SUCCESSORS. Neither party may assign the rights or
obligations of this Agreement without the express written consent of the
other, which consent shall not be unreasonably delayed or withheld;
provided, however, that each party may, upon written notice to the other
party, assign its rights and obligations under this Agreement: (a) to an
Affiliate; (b) to an entity that acquires all or substantially all of the
assets of the assigning party; or (c) to any successor in a merger or
acquisition of the assigning party. In case of assignment, the provisions
of this Agreement shall be binding on all successors and assigns.
23.3 SEVERABILITY. In the event that any portion of this Agreement is
terminated or deemed to be void or unenforceable, that portion of the
Agreement shall be severed and the balance of the provisions shall
continue and be effective and enforceable.
23.4 WAIVER. No delay or omission by either party to exercise any right or
power hereunder shall preclude the exercise of such right or power in
subsequent instances or be construed to be a waiver. A waiver by either
party of any of the covenants to be performed by the other party shall
not be construed to be a waiver of any covenant herein contained, and the
waiver of any breach of covenant shall not be construed to be a waiver of
any succeeding breach. All
19
remedies provided for in this Agreement shall be cumulative and in
addition to and not in lieu of any other remedies available to either
party at law, in equity, or otherwise.
23.5 FORCE MAJEURE. Neither party shall be liable by reason of any failure in
performance of this Agreement for reason of Force Majeure.
23.6 GOVERNING LAW. This Agreement shall be governed by, interpreted and
construed in accordance with the laws of the State of Florida, without
giving effect to any provision of such law relating to conflict of laws.
23.7 PUBLICITY. Except for intracompany bulletins and communications, neither
VITI nor TSI shall make or authorize any media release, advertisement, or
other disclosure pertaining to this Agreement without the prior written
consent of the other party. Notwithstanding the foregoing, VITI may list
TSI as a customer through media releases, and/or other promotional and
marketing media and describe in general terms the Services.
23.8 INDEPENDENT CONTRACTOR. It is expressly understood that VITI and TSI are
independent contractors of one another, and that neither has the
authority to bind the other to any third person or otherwise to act in
any way as the representative of the other, unless otherwise expressly
agreed to in writing by both parties.
23.9 ACTION REQUIRING CONSENT. Wherever agreement, approval, acceptance,
consent or similar action by either party is required by any provision of
this Agreement, such action shall be not unreasonably delayed or
withheld.
23.10 ACCOUNT SUPPORT - ORGANIZATION AND ADMINISTRATION. Routine account
activities will be managed and administered jointly by designated
participants of TSI and VITI.
23.11 SOLICITATION OF EMPLOYEES. During the term of this Agreement and for a
period of one (1) year from the date VITI stops providing Services,
neither party shall solicit for employment nor employ, directly, any
employee of the other party without the other party's prior written
consent, PROVIDED, however, that nothing shall prohibit TSI or VITI and
their respective Affiliates from employing any employee or former
employee of TSI or VITI or any of its Affiliates who responds to a
general solicitation for employees not specifically focused at employees
of TSI or VITI and its Affiliates through the use of media,
advertisement, electronic job boards or other general, public
solicitations.
23.12 ORDER OF PRECEDENCE. To the extent any of the terms and conditions set
forth in the Exhibits or Attachments hereto conflict with any of the
terms and conditions of this Agreement, the terms and conditions of the
Exhibits and the Attachment shall control.
23.13 ENTIRE AGREEMENT; SURVIVAL. This Agreement and its Exhibits and
Attachments constitute the entire agreement between the parties with
respect to the subject matter hereof and there are no written or oral
representations, understandings or agreements which are not fully
expressed herein. This Agreement and its executed Exhibits and
Attachments are intended to be the exclusive statement of the agreement
between the parties with respect to the subject
20
matter hereof and any other terms or conditions included in quotes,
acknowledgments, bills of lading, or other forms utilized or exchanged by
the parties shall not be incorporated herein or be binding unless
expressly agreed to in writing by both parties. No change, waiver, or
discharge hereof shall be valid unless in writing and signed by
authorized representatives of both parties. The respective obligations of
the parties under this Agreement that by their nature would continue
beyond the termination, cancellation or expiration, shall survive
termination, cancellation, or expiration.
23.14 AMENDMENT. This Agreement shall not be modified, amended or in any way
altered except by an instrument in writing signed by both parties.
23.15 COVENANT OF GOOD FAITH. Each party, in its respective dealings with the
other party under or in connection with the Agreement, shall act in good
faith.
23.16 AUTHORITY. Each party hereby represents and warrants that the individuals
below who have executed this Agreement have the express authority to do
so on behalf of their respective parties.
The parties have caused this Agreement to be signed by their duly authorized
representatives on the Effective Date.
TSI TELECOMMUNICATION SERVICES, INC.
/s/ Xxxxxx Xxxxxx, Jr.
-----------------------------------------------
BY - SIGNATURE
XXXXXX XXXXXX, JR.
-----------------------------------------------
PRINTED NAME
ASSOCIATE GENERAL COUNSEL/ASSISTANT SECRETARY
-----------------------------------------------
TITLE
VERIZON INFORMATION TECHNOLOGIES INC.
/s/ Del Xxxxxxx
-----------------------------------------------
BY - SIGNATURE
DEL XXXXXXX
-----------------------------------------------
PRINTED NAME
VICE PRESIDENT, IT SERVICES
-----------------------------------------------
TITLE
21
EXHIBIT A
STATEMENT OF WORK
TO DISTRIBUTED PROCESSING SERVICES AGREEMENT
BETWEEN
VERIZON INFORMATION TECHNOLOGIES INC.
AND
TSI TELECOMMUNICATION SERVICES, INC.
DATED FEBRUARY 14, 2002
This Statement of Work ("SOW") outlines the tasks required for VERIZON
INFORMATION TECHNOLOGIES INC. ("VITI") to support TSI TELECOMMUNICATION
SERVICES, INC. ("TSI") distributed systems processing at VITI's data center
facility. VITI shall perform its services in accordance with the Distributed
Processing Services Agreement between VITI and TSI dated February 14, 2002
("Agreement") and upon execution by both parties hereto, this SOW shall become a
part of the Agreement. All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Agreement.
1.0 SERVICES
1.1 DESCRIPTION OF SERVICES: VITI shall provide data center infrastructure
and technical support services in support of TSI's distributed systems
processing ("Services"). The Services include a data center network
infrastructure.
2.0 FACILITIES
Services will be provided by VITI from its data centers as VITI deems
appropriate. VITI's data center facilities provide a secure operating
environment with enhanced physical protection of hardware resources.
Specific physical features include state-of-the-art systems for security,
fire protection, and power management as well as consistent temperature
and humidity control.
3.0 SYSTEMS SUPPORT
VITI shall maintain and operate the Hardware and Software located in
VITI's data center. Support personnel in the VITI data center will
monitor the system as required using industry standard monitoring tools.
VITI data center personnel will be responsible for operating system
software, system performance, and hardware monitoring on all existing and
any new hardware added to TSI Initial Distributed Processing Environment.
Except as provided in this SOW, VITI is not responsible for system
support of any remote TSI equipment at TSI's or any of TSI's customer
sites, desktop, or peripheral devices.
22
VITI's Systems Support Responsibilities:
- Operate Hardware and Software specified in this SOW
- Monitor server Hardware 24 hours a day, 7 days a week
- Maintain an up-to-date inventory of operating system Hardware and
Software
- Prepare, install, and certify operating system software releases,
update and upgrades
- Administer system level security
- Provide technical support 24 hours a day, 7 days a week
- Perform problem analysis and resolution for all VITI-owned and/or
leased hardware and licensed software
- Provide vendor interface for all VITI-owned and/or leased hardware and
licensed software
- Perform tape backup and storage as follows:
System Name OS Backup Backup Retention Time Retention Retention Time Time of the
type Drive Daily Time Weekly Monthly Day
--------------------------------------------------------------------------------------------------------------------------------
tman_primeco IRIX Full-Daily DLT 14 days 30 days 365 days 6:00 PM
6.5.2
clone_primeco IRIX Full-Daily 4mm Dat 14 days 30 days 365 days 8:00 PM
6.5.2
Informix-cloneP IRIX Full-Daily Rotation DLT Pending Pending
6.5.2
tman Solaris Full- 8mm 7 days 30 days 1 Year 8:00 PM
2.5 Daily
Irec Solaris Full-Daily 8mm 7 days 30 days 365 days 8:00 PM
2.6
Informix-IREC Solaris Full-Daily 8mm 14 days 30 days 365 days 8:00 PM
2.6
clone_bureau IRIX 6.2 Full-Daily 4mm DAT 7 days 30 days 365 days 8:00 PM
fraudx IRIX Full-Daily 4mm DAT 14 days 30 days 365 days 8:00 PM
6.5.2
Informix-fraudx IRIX Full-Daily Rotation DLT Pending Pending
6.5.2
23
tman-svb Solaris Full-Daily 8mm 14 days 30 days 365 days 8:00 PM
2.6
expressway Solaris Full-Daily 8mm 14 days 30 days 365 days 8:00 PM
2.6
crossroads Solaris Full-Daily 8mm 14 days 30 days 365 days 9:00 PM
2.6
crossroads-dir Solaris Full-Daily 8mm 14 days 30 days 365 days 8:00 PM
2.6
Sun 10K Solaris No production backups being run. Full operating system backup
2.6 run by MSSUN as needed
Pandora NT 4.0 Full-Daily DLT 7 days 60 days 10:00 PM
NGSS NT 4.0 Full-Daily 4mm 7 days Mon- Perm Fri 1 Year Sun 2:30 PM
Thur,Sat
TPISCP1 Guardian Full-Daily DLT 30 days 90 days 365 days midnight
x00
XXXXXX Guardian Full-Daily DLT 30 days 365 days 365 days midnight
d45
Database 3490 30 days
KMC 3490 30 days 60 days 365 days midnight
TPITST5 Guardian Full-Daily DLT 30 days 90 days 365 days midnight
6.04
DRSYS1 Guardian Database DLT 90 days midnight
d45
CAIOLS Gurdian Full-Daily 3490 30 days 90 days 365 days midnight
Tranlog 3490 2 yrs midnight
- Perform backup and retention schedule for the ARMS system files as set
forth in Attachment 2 to this SOW
TSI Application Support Responsibilities:
- Application development, implementation, and maintenance support
- Analysis and resolution of application software problems
- Vendor interface for software products not provided by VITI
- On-call technical support 24 hours a day, 7 days a week
- Analysis and resolution of problems
- Database software support and maintenance
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- Provide application database backups procedures
4.0 MAINTENANCE
The Hardware and Software maintenance contracts required for the
Services provided under this SOW will include remote online vendor
access, vendor hot-line support, on-site hardware support, and internal
support escalation response time parameters as prescribed by VITI. Except
as provided in this SOW, VITI is not responsible for support of hardware
support at any remote TSI or TSI customer site including, processors,
network, desktop, or peripheral devices.
5.0 SYSTEMS SECURITY
Physical system security administration for the servers located in the
data center will be performed by VITI. TSI will be responsible for
developing user profiles for the granting of access and designating
levels of authority to TSI-designated individuals for the system;
provided, however, that VITI has the right to prior notice of, and
consent to, access and levels of authority for TSI's users, third party
contractors, consultants, agents and/or other suppliers, which consent
shall not be unreasonably withheld, conditioned or delayed. VITI shall be
responsible for managing the TSI-provided user profiles for access and
authority levels. VITI shall retain root authority. VITI shall have the
ability to add the support personnel it deems necessary to access TSI
systems. TSI shall not inhibit the addition or removal of VITI operating
system support accounts needed by VITI level one and level two support
staff. In addition, TSI will be responsible for developing appropriate
user profiles in order for VITI to perform the Services under this SOW,
including appropriate access and authority levels for VITI's third-party
suppliers required for maintenance and support of the system.
6.0 NATIONAL SUPPORT CENTER HELP DESK SERVICES/PROBLEM MANAGEMENT
VITI's National Support Center ("NSC") will use established industry
standard procedures for the management and resolution of all
VITI-provided Hardware and network problems in the VITI service bureau
environment. The VITI help desk will provide TSI:
- 24-hour-a-day, 7-day-a-week help desk support
- Standardized problem reporting, logging, and tracking procedure
- Streamlined communications
- Problem resolution
- Consistent, high-quality service
When contacted by TSI, the VITI help desk consultant will open a problem
record (with a comprehensive description of the problem) while the
contact from TSI is on the telephone.
After problem investigation and resolution, the problem record is updated
as required and closed. VITI shall not consider a problem record closed
until TSI verifies resolution.
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7.0 CHANGE MANAGEMENT PROCESS
7.1 CHANGE MANAGEMENT PROCEDURES: There are many critical components
including network hardware, CPU, disk storage, and tape devices that must
be maintained in order to provide high performance and service delivery.
Preventive maintenance is a vital part of a successful data processing
operation. The change management schedule will be mutually agreed on by
TSI and VITI through VITI's Customer Advocate. The schedule provides the
following:
- Complete documentation (e.g., reason for change, duration of change)
- Approval of affected parties (VITI and TSI)
- Back-out plan
VITI uses a set of established change management tools to communicate,
coordinate, schedule, monitor, and implement changes in an effective
manner. The VITI Customer Advocate supplies TSI's representative with a
change record, clarifying the maintenance and an assessment of the risk
involved. The VITI Customer Advocate then initiates the change after
receiving written approval from TSI's representative.
7.2 CHANGE INITIATION: VITI shall notify TSI in advance of any scheduled
maintenance. The parties will mutually establish the date and time for
any change. An INFOMAN record, clarifying the maintenance and risk
assessment, will be supplied. TSI's approval will be required for the
change record prior to the change being executed. VITI shall set forth
the price at which TSI will be charged for any service done before TSI
approves or provides a notice to disregard a change request.
7.3 CHANGE IMPLEMENTATION: Changes will be scheduled for dates and times as
mutually agreed upon in writing by VITI and TSI.
7.4 TSI INITIATED CHANGES: Changes initiated by TSI that affect the
production environment such as changes to the Hardware and changes to the
application or database engine will be communicated in advance to VITI.
Internal TSI initiated changes will be forwarded to the VITI Customer
Advocate at least 72 hours in advance for any non-emergency change to
ensure proper coordination within VITI support organizations. Certain TSI
changes may also require a separate VITI change record to be issued
within VITI. TSI changes that would require VITI notification include,
but are not limited to:
- Changes that would trigger events in VITI automated monitoring
- Changes to the Hardware or system software environment
- Changes that have a risk to the production environment
- Changes that would affect network monitoring
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8.0 MODIFICATION PROCEDURES
8.1 Changes to this SOW ("Modifications") may be requested at any time by
either TSI or VITI. All such requested changes will be in writing through
a change request form ("Change Request"). The Change Request will be
jointly reviewed by designated representatives of TSI and VITI to
determine whether the Modifications will materially affect the price,
schedule or terms of the Agreement. The VITI Account Manager, as defined
herein, is responsible for coordination of modification process on behalf
of VITI. Based upon the joint review of the Change Request, the following
procedures will apply:
- If, as a result of the joint review, it is determined that the
Modifications do not materially affect the price, schedule or terms of
the Agreement, then the designated representative for the party
receiving the Change Request will initiate a written acceptance or
rejection of the request within fifteen (15) working days after
receipt of the Change Request.
- If, as a result of the joint review, it is determined that the
Modifications do materially affect the price, schedule or terms of the
Agreement, then VITI shall submit to TSI an amending work order ("Work
Order") which shall include a description of the Modifications and the
time and charges required to provide the requested Modifications.
Neither party shall be under any obligation to proceed with any
requested Modifications prior to receipt of a fully-executed amending
Work Order.
Upon receipt of an amending Work Order, TSI shall have a period of ten
(10) days in which to (i) provide VITI with written authorization to
implement the requested change, or (ii) provide VITI with written
notice to disregard such Change Request. If TSI provides VITI with a
notice to disregard the Change Request after VITI has prepared an
amending Work Order in response to an TSI-initiated Change Request,
then VITI reserves the right to charge TSI for its services associated
with the effort, including any preliminary specifications or study
requirements.
8.2 The issuance of information, advice, approvals or instructions by either
VITI's or TSI's technical personnel or other representatives shall be
deemed expressions of personal opinion only and shall not affect VITI's
and TSI's rights and obligations hereunder unless the same is in writing,
signed by authorized representatives of both parties, and expressly
states that it constitutes a change.
9.0 VITI CUSTOMER LIAISONS
ACCOUNT MANAGER
Name: Xxxxx Xxxxx
Telephone: 000-000-0000
Address: 0 Xxxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Xxxxxxx 00000
27
CUSTOMER ADVOCATE
Name: TBD
Telephone:
Address: 0 Xxxx Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Following are the accountabilities and responsibilities of the ACCOUNT
MANAGER:
- Overall relationship management between TSI and VITI
- Understand the general business strategy and direction of TSI to
ensure VITI continually provides required performance and service
levels for TSI
- Communicate with the Customer Advocate to assure compliance with all
contractual obligations
- Conduct quarterly account review meetings at a mutually agreed to
location
Following are the accountabilities and responsibilities of the CUSTOMER
ADVOCATE:
- Direct responsibility to interface with VITI's internal organizations,
including all of VITI's operations services national organizations,
and ensure that all service levels are being met
- Coordinate weekly status meetings
- Serve as first level of escalation for all related issues or concerns
- Serve as primary contact for other VITI groups in support of TSI
- Review with VITI management progress on the attainment of service
level objectives:
- Create Report Card for TSI monthly
- Document Outage Information
- Document SLA percentages monthly
10.0 BUSINESS CONTINUITY AND DISASTER RECOVERY
VITI shall continue to perform disaster recovery for TSI's production
environment under VITI's current disaster recovery plan. System backups
will be used to recover from a disaster type situation, but VITI makes no
commitment to recovery schedules for disaster situations. In the event
VITI closes a data center in which TSI's backup system is housed, VITI
shall relocate TSI's backup system, at VITI's expense, to a data center
which is not housing TSI's primary system.
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TSI and VITI have each caused this Agreement to be signed and delivered by their
duly authorized representatives, all as of the date set forth on page 1 hereof.
TSI TELECOMMUNICATION SERVICES, INC.
/s/ Xxxxxx X. Xxxxxx, Xx.
BY - SIGNATURE
Xxxxxx X. Xxxxxx, Xx.
PRINTED NAME
Assoc. General Counsel/
Assistant Secretary
TITLE
VERIZON INFORMATION TECHNOLOGIES INC.
/s/ Del Xxxxxxx
BY _ SIGNATURE
DEL XXXXXXX
-----------------------------------------------
PRINTED NAME
VICE PRESIDENT, IT SERVICES
-----------------------------------------------
TITLE
29
EXHIBIT B
SERVICE BUREAU (DISTRIBUTED PROCESSING)
FEES
Fees for the Services are capped for the Term as set forth below. There
are no cost of living adjustments.
PROCESSING FOR THE DISTRIBUTED
PROCESSING ENVIRONMENT (as it
existed on 11/30/01): $240,666.67 per month
SOFTWARE LICENSES AND
HARDWARE AND SOFTWARE MAINTENANCE
(Under the Verizon Enterprise
License for the Distributed
Processing Environment as
it existed on 11/30/01): Not to Exceed $300,000 per month*
NTN CIRCUITS(6) $16,998 per month*
SAP, AP AND INTRANET APPLICATIONS
ACCESS $17,660 per month*
* Pass Through Charge
- To the extent TSI requests any software, hardware or maintenance that
is in addition to that provided in the Initial Distributed Processing
Environment as it existed on November 30, 2001, or to the extent
service levels are increased: (1) TSI shall be responsible for all
corresponding fees; and (2) VITI shall charge TSI for such new
software, hardware, maintenance and/or increased service levels at
rates that are consistent with those set forth in this Agreement,
including for maintenance fees which shall continue to be charged on a
pass-through basis, as described above.
- To the extent TSI wishes VITI to transfer any VITI Third Party
software licenses used specifically for TSI and not under the Verizon
Enterprise License, VITI will do so provided that TSI has paid all
consent, license and maintenance fees. To the extent TSI has not paid
such fees, TSI will pay VITI such fees prior to the transfer, provided
further that VITI has the right to make such transfer.
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