EXHIBIT 10.40
Pages where confidential treatment has been requested
are stamped "Confidential Treatment Requested and
the Redacted Material has been separately filed with
the Commission," and places where information has
been redacted has been marked with (**).
AMENDED AND RESTATED
SERVICES AGREEMENT
BETWEEN
FIRST DATA TECHNOLOGIES, INC.
AND
CSG SYSTEMS, INC.,
FORMERLY KNOWN AS
CABLE SERVICES GROUP, INC.
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TABLE OF CONTENTS Page
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SECTION 1 DEFINITIONS........................................................ 1
SECTION 2 PROVISION OF THE FDT SERVICES...................................... 5
2.1 FDT Services............................................... 5
2.2 Platform................................................... 6
2.3 CSG-Vendor Software........................................ 7
2.4 Maintenance of Current Vendor Supported Software Releases.. 7
2.5 Use of Other Software...................................... 7
2.6 Information and Reports.................................... 8
2.7 Backup..................................................... 8
2.8 Security................................................... 8
2.9 Operations Procedures...................................... 8
2.10 CSG Batch Job Targets...................................... 9
2.11 Disaster Recovery.......................................... 9
2.12 Systems Software: Data Telecommunications.................. 9
2.13 Performance Criteria....................................... 10
2.14 Audit Rights............................................... 10
2.15 Additional Services........................................ 11
2.16 CSG Obligations and Responsibilities....................... 12
2.17 Relocation................................................. 12
2.18 Access to FDT Data Center.................................. 12
2.19 Cooperation and Good Faith................................. 12
2.20 Rights of Contemporaneous Negotiation...................... 13
SECTION 3 PAYMENTS FOR FDT SERVICES.......................................... 13
3.1 Fees and Charges........................................... 13
3.2 Taxes...................................................... 13
3.3 Invoice and Time of Payment................................ 13
3.4 Interest................................................... 14
SECTION 4 RELATIONSHIP BETWEEN THE PARTIES................................... 14
SECTION 5 INTELLECTUAL PROPERTY.............................................. 14
5.1 CSG Data................................................... 14
5.2 CSG Proprietary Software................................... 15
5.3 FDT Proprietary Software................................... 15
5.4 Development Software....................................... 15
5.5 Ownership of Information................................... 15
5.6 Team 35 Software........................................... 16
5.7 Injunctions................................................ 16
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SECTION 6 LIABILITY AND INDEMNIFICATION..................................... 16
6.1 FDT's Indemnification..................................... 16
6.2 CSG's Indemnification..................................... 17
6.3 Indemnification Procedures................................ 18
6.4 Dispute Resolution........................................ 19
6.5 Litigation................................................ 19
SECTION 7 LIMITATION OF LIABILITY........................................... 19
7.1 Limitation on Amount of Damages........................... 19
7.2 Provision of FDT Services................................. 20
7.3 Mitigation................................................ 20
7.4 Limitation of Assertions.................................. 20
7.5 Express Allocation of Risks............................... 20
SECTION 8 STANDARD OF CARE AND EXCLUSION OF WARRANTIES...................... 20
SECTION 9 EXCLUSION OF DAMAGES.............................................. 21
SECTION 10 CONFIDENTIALITY................................................... 21
10.1 Confidential Information.................................. 21
10.2 No License or Other Rights................................ 23
10.3 Publicity and Use of Certain Information.................. 23
10.4 Equitable Remedies........................................ 23
10.5 Privileged Data........................................... 23
SECTION 11 TERMINATION....................................................... 23
11.1 Termination for Cause..................................... 23
11.2 Termination for Failure to Meet Performance Criteria...... 24
11.3 Termination Due to Change of Control or Assignment........ 24
11.4 Termination for Convenience............................... 24
11.5 Termination Assistance.................................... 25
11.6 Expiration Assistance..................................... 25
11.7 Access upon Expiration or Termination..................... 26
11.8 Expiration or Termination License......................... 26
11.9 Rights Upon Expiration or Termination..................... 26
SECTION 12 MISCELLANEOUS..................................................... 26
12.1 Notice.................................................... 26
12.2 Entire Agreement.......................................... 27
12.3 Assignment: Transfer; Binding Agreement................... 27
12.4 Force Majeure............................................. 28
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12.5 Risk of Loss............................................. 28
12.6 No Third-Party Beneficiaries............................. 28
12.7 Severability............................................. 28
12.8 Certain Construction Rules............................... 29
12.9 Compliance With Laws..................................... 29
12.10 Counterparts............................................. 29
12.11 Headings................................................. 29
12.12 No Interpretation Against Drafter........................ 29
12.13 Waiver; Consent.......................................... 29
12.14 Governing Law............................................ 30
12.15 Limitation of Representations and Warranties;
Indemnification.......................................... 30
SCHEDULES
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Schedule 1.17 Development Software
Schedule 1.21 Existing CSG Proprietary Software
Schedule 1.27 FDT Services and FDT Current Service Charges
Schedule 1.43 Platform Description
Schedule 1.47 Systems Software
Schedule 2.3 CSG-Vendor Software
Schedule 2.9 Operations Procedures
Schedule 2.10 CSG Batch Job Targets
Schedule 2.11 Disaster Recovery Plan
Schedule 2.13 Performance Criteria
Schedule 2.14 Confidentiality Agreement
Schedule 2.16.1 Additional CSG Obligations
Schedule 5.3 Existing FDT Proprietary Software
Schedule 5.6 Team 35 Software License Agreement
Schedule 6.4 Dispute Resolution
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THIS AMENDED AND RESTATED SERVICES AGREEMENT (the "Services Agreement") is
entered into as of December 31, 1996, by and between First Data Technologies,
Inc., a Delaware corporation ("FDT"), and CSG Systems, Inc. (formerly known as
Cable Services Group, Inc.), a Delaware corporation ("CSG").
RECITALS
A. FDT is presently engaged in the business of providing data processing
services;
B. CSG and FDT previously entered into a services agreement dated as of
October 26, 1994, as amended by that certain First Amendment to Services
Agreement between FDT and CSG executed December 8, 1995, and as further amended
by that certain Second Amendment to Services Agreement between FDT and CSG
executed January 30, 1996, and as further amended by that Third Amendment to
Services Agreement between FDT and CSG executed November 25, 1996 (collectively,
the "Original Agreement");
C. CSG and FDT desire to amend and restate their obligations relating to
the terms and conditions governing the data processing services which FDT will
continue to provide to CSG.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
representations, warranties, conditions and agreements hereinafter expressed,
the Parties hereto agree as follows:
SECTION 1
DEFINITIONS
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When used herein, the following terms shall have the meaning set forth
below:
1.1 "Additional Services" has the meaning stated in Section 2.15.
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1.2 "Affiliate" means an Entity which, directly or indirectly, owns or
controls, is owned or is controlled by or is under common ownership or control
with another Entity. As used herein, "control" means the power to direct the
management or affairs of an Entity, and "ownership" means the beneficial
ownership of 50% or more of the voting equity securities or other equivalent
voting interests of the Entity.
1.3 "Applications Software" means the CSG-Vendor Software and the CSG
Proprietary Software.
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1.4 "Business" shall have the meaning set forth in that certain Stock
Purchase Agreement dated as of October 26, 1994 between CSG Holdings, Inc. and
First Data Resources, Inc.
1.5 "Claim" has the meaning specified in Section 6.3.1.
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1.6 "Confidential Information" has the meaning stated in Section 10.1.
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1.7 "CSG" means CSG Systems, Inc. (formerly known as Cable Services Group,
Inc.), a Delaware corporation, and its permitted successors and permitted
assigns.
1.8 "CSG Batch Job Targets" means the time periods identified on Schedule
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2.10 relating to CSG's batch cycles.
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1.9 "CSG Client" shall mean any current or future Entity for which CSG
provides data processing services through FDT in accordance with the terms and
conditions of the Services Agreement.
1.10 "CSG's Clients' Locations" means each of CSG's Clients' business
locations which are connected to the Platform to permit a CSG Client to receive
the benefit of the FDT Services in accordance with the terms and conditions of
this Services Agreement.
1.11 "CSG Data" has the meaning specified in Section 5.1.
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1.12 "CSG Proprietary Software" means New CSG Proprietary Software and
Existing CSG Proprietary Software.
1.13 "CSG-Vendor Software" means the Software licensed to CSG by third
party vendors (excluding FDT and its Affiliates) and to be used by FDT to
provide the FDT Services, together with all developments, improvements,
modifications, additions, expansions, new versions, new releases, rewrites,
enhancements, upgrades or other changes of any kind thereto. The CSG-Vendor
Software is set forth in Schedule 2.3, as it may be amended from time-to-time.
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1.14 "Damaged Party" has the meaning stated in Section 12.5.
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1.15 "Data Processing Materials" has the meaning stated in Section 5.5.
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1.16 "Declared Disaster" has the meaning stated in Schedule 2.11.
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1.17 "Development Software" means that portion of the Systems Software as
set forth in Schedule 1.17 that CSG may execute and use for development of CSG
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Proprietary Software.
1.18 "Dispute" means any and all disputes, controversies and claims between
the
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Parties arising from or in connection with this Services Agreement or the
relationship of the Parties under this Services Agreement whether based on
contract, tort, common law, equity, statute, regulation, order or otherwise.
1.19 "Effective Date" shall mean January 1, 1997.
1.20 "Entity" means an individual, corporation, limited liability company,
partnership, sole proprietorship, joint venture, or other form of organization
or governmental agency or authority.
1.21 "Existing CSG Proprietary Software" means the applications, job
control language and system and other Software owned by CSG and to be used by
FDT to provide the FDT Services, that is identified in Schedule 1.21 of this
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Services Agreement.
1.22 "Existing FDT Proprietary Software" means the Software owned,
developed by, or licensed by an Affiliate of FDT in connection with the
provision of FDT Services under this Services Agreement, as set forth in
Schedule 5.3 of this Services Agreement.
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1.23 "Failed Criteria" shall have the meaning stated in Section 11.2.
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1.24 "FDT" means First Data Technologies, Inc., a Delaware corporation, and
its permitted successors and permitted assigns.
1.25 "FDT Data Center" means the data center maintained by or on behalf of
FDT in Englewood, Colorado or any other data or information processing centers
maintained by or on behalf of FDT or any of its Affiliates and used to provide
the FDT Services.
1.26 "FDT Proprietary Software" means New FDT Proprietary Software and
Existing FDT Proprietary Software.
1.27 "FDT Service Charges" means the fees charged by FDT for the FDT
Services as set forth in Schedule 1.27.
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1.28 "FDT Services" means the data processing services and systems
currently provided by FDT to CSG which are set forth on Schedule 1.27 and those
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Additional Services that FDT agrees to provide.
1.29 "Indemnified Party" means a Party or Parties seeking or entitled to
indemnification pursuant to the provisions of Section 6.
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1.30 "Indemnifying Party" means the Party or Parties hereto responsible for
indemnifying an Indemnified Party pursuant to Section 6.
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1.31 "Infringement Claims" has the meaning stated in Section 6.1.1.
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1.32 "Losses and Expenses" has the meaning stated in Section 7.1.
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1.33 "New CSG Proprietary Software" means all developments, improvements,
modifications, additions, expansions, new versions, new releases, rewrites,
enhancements, upgrades or other changes of any kind to Existing CSG Proprietary
Software, or any new Software owned or developed by CSG following the date of
execution of this Services Agreement and provided to FDT for use in connection
with the provision of the FDT Services that is not identified in Schedule 1.21
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of this Services Agreement.
1.34 "New FDT Proprietary Software" means all developments, improvements,
modifications, additions, expansions, new versions, new releases, rewrites,
enhancements, upgrades or other changes of any kind to Existing FDT Proprietary
Software, or any new Software owned or developed by FDT following the date of
execution of this Services Agreement and used in connection with the provision
of FDT Services under this Services Agreement that is not identified in Schedule
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5.3 of this Services Agreement.
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1.35 "Operations Procedures" has the meaning stated in Section 2.9.
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1.36 "Original Agreement" has the meaning specified in the second recital
to this Services Agreement.
1.37 "Original CSG Proprietary Software" means that portion of the Existing
CSG Proprietary Software that existed as of the effective date of the Original
Agreement.
1.38 "Original Term" means the period of time commencing on the Effective
Date and ending on the fifth anniversary of the Effective Date.
1.39 "Other Party" has the meaning stated in Section 12.5.
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1.40 "Party" means a party to this Services Agreement and its permitted
successors and permitted assigns.
1.41 "Performance Criteria" has the meaning stated in Section 2.13.
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1.42 "Plan" has the meaning stated in Schedule 2.11.
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1.43 "Platform" means the hardware owned or operated by FDT and the network
provided by FDT for data telecommunications and data processing and retrieval
established between the FDT Data Center, CSG, and CSG's Clients' Locations, it
being understood that such Platform
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is provided by FDT on a non-exclusive basis. The Platform is further described
in Schedule 1.43.
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1.44 "Services Agreement" means this Amended and Restated Services
Agreement between CSG and FDT as it may be amended from time to time.
1.45 "Software" means (i) computer programs, including application
programs, operating programs, file programs and utility programs, and (ii)
tangible media upon which such programs and documentation are recorded,
including hard copy, tapes and disks.
1.46 "Stock Purchase Agreement" means that agreement entered into as of
October 26, 1994 between CSG Holdings, Inc. and First Data Resources Inc.
1.47 "Systems Software" means the Software licensed by FDT to be used to
provide FDT Services, but shall not include the FDT Proprietary Software or the
Applications Software. The current set of Systems Software is set forth in
Schedule 1.47. Such schedule may be amended from time to time.
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1.48 "Team 35 Software" has the meaning stated in Schedule 5.6.
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1.49 "Term" means the Original Term and any mutually agreed extension
thereto.
1.50 "Termination Assistance" has the meaning stated in Section 11.5.
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1.51 "Termination for Convenience Fee" shall mean a payment equaling twenty
percent (20%) of the sum of the FDT Service Charges owed and/or paid by CSG to
FDT for the twelve (12) month period prior to the date that CSG notified FDT of
CSG's intent to terminate this Services Agreement for its convenience pursuant
to Section 11.4.
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1.52 "Termination Licensed Materials" has the meaning stated in Schedule
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11.8
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1.53 "Third Party Provider" has the meaning stated in Section 2.12.
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SECTION 2
PROVISION OF THE FDT SERVICES
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2.1 FDT Services. FDT shall make available to and perform for CSG and CSG
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shall use the FDT Services during the Term. Notwithstanding the foregoing, if
CSG delivers notification to FDT pursuant to Sections 11.1, 11.2 or 11.4, that
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CSG is terminating this Services Agreement, then after such notification CSG may
arrange for CSG or a third party to provide the FDT Services for CSG after the
termination date and CSG may take all actions in preparation therefor as may be
reasonably necessary to enable CSG or such third party to provide such FDT
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"Confidential Treatment Requested and the
Redacted Material has been separately
filed with the Commission."
Services immediately after the termination date; provided however, the foregoing
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shall not be construed to prevent CSG from initiating preliminary discussions
with any such third party prior to giving written notice to FDT.
2.2 Platform; FDT Data Center Raised Floor.
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2.2.1 Platform. FDT will provide the Platform and shall have all
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rights in connection therewith including the right to change the
configuration of the Platform during the Term of this Services Agreement.
FDT shall provide CSG with at least thirty (30) days advance written notice
of any change in the Platform. Such changes shall not materially adversely
affect the operations of CSG or CSG Clients. Except for those components
(if any) identified on Schedule 1.43 as being owned by CSG, the Platform
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shall remain solely the property of FDT, its lessors or providers, if any,
and CSG shall have no ownership interests or other rights therein. CSG may
request changes to the Platform, and all such requests shall be deemed a
request for Additional Services and be subject to Section 2.15. Commencing
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January 1, 1998, no later than January 31 during each year of the Term, FDT
shall add to the Platform, four (4) additional tape drives (having a
transfer rate (as specified by the manufacturer) of 14 megabytes per
second), all of which shall not be an Additional Service. FDT shall
provide upgraded DASD relating to the Platform in accordance with the DASD
upgrade practices used by FDT from time to time.
2.2.2 FDT Data Center Raised Floor. CSG shall have the right,
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subject to security, space, environmental and other limitations, to
collocate computer, telecommunications and other equipment at the FDT Data
Center and to interconnect such equipment to the FDT Platform; provided
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that CSG will at no time during the Term of this Services Agreement (except
as set forth in Section 2.2.3), require more than 000 xxx-xxxxxxxxxx xxxxxx
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feet of raised floor space in the FDT Data Center for those purposes. FDT
shall provide for utilities, HVAC, back-up power generators, and security
with respect to such collocated equipment. CSG and third party support
personnel retained by CSG or the CSG Client shall have reasonable access to
the FDT Data Center on a 24 hour per day, 7 day a week basis to maintain
and service such collocated equipment.
2.2.3 Additional FDT Data Center Raised Floor. After July 1, 1997,
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and upon sixty (60) days prior written notice to FDT, CSG shall also have
the right, subject to security, space, environmental and other limitations,
to collocate additional computer, telecommunications and other equipment at
the FDT Data Center and to interconnect such equipment to the FDT Platform;
provided that CSG will at no time during the Term of this Services
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Agreement require more than an additional 000 xxx-xxxxxxxxxx xxxxxx feet of
raised floor space (for a total of 1800 square feet) in the FDT Data Center
for those purposes, it being understood that such additional non-contiguous
space will be provided by FDT to CSG for ($**) (annually) per square foot.
FDT shall provide for
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utilities, HVAC, back-up power generators, and security with respect to
such collocated equipment. CSG and third party support personnel retained
by CSG or the CSG Client shall have reasonable access to the FDT Data
Center on a 24 hour per day, 7 day a week basis to maintain and service
such collocated equipment.
2.3 CSG-Vendor Software. CSG will secure for FDT, at CSG's expense, the
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rights to access, operate (at or from any location where FDT will provide the
FDT Services), and modify the Vertex Software included within CSG-Vendor
Software to the extent required for FDT's pro vision of the FDT Services under
this Services Agreement. To the extent necessary, CSG will secure for FDT, at
CSG's expense, a license for the other Software included within the CSG-Vendor
Software. Such license shall provide for the rights set forth in the first
sentence of this Section 2.3, including upgrades to such Software and
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maintenance therefor.
2.4 Maintenance of Current Vendor Supported Software Releases. Within one
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(1) year following the Effective Date, CSG shall cause all CSG-Vendor Software
to be the most current release (or one generation behind the most current
release), unless the most current release (or one generation behind the most
current release) of any CSG-Vendor Software is incompatible with the Team 35
Software. Thereafter, CSG shall cause all CSG-Vendor Software to be the most
current release (or one generation behind the most current release) within one
(1) year of the commercial release of the next version of any CSG-Vendor
Software, unless the most current release (or one generation behind the most
current release) of any CSG-Vendor Software is incompatible with the Team 35
Software. Within one (1) year following the Effective Date, FDT shall cause all
Systems Software to be the most current release (or one generation behind the
most current release) unless the most current release (or one generation behind
the most current release) of any Systems Software is incompatible with the Team
35 Software. Thereafter, FDT shall cause all Systems Software to be the most
current release (or one generation behind the most current release) within one
(1) year following the commercial release of the next version of any Systems
Software, unless the most current release (or one generation behind the most
current release) of any Systems Software is incompatible with the Team 35
Software. CSG shall, at its sole cost and expense, upon the reasonable request
of FDT, cooperate with FDT in testing the implementation of all CSG-Vendor
Software and Systems Software. The Parties agree to use commercially
reasonable efforts to coordinate the timing and installation of new releases of
CSG-Vendor Software and Systems Software so as to not unreasonably disrupt or
materially adversely affect the provision of FDT Services.
2.5 Use of Other Software.
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2.5.1 FDT Affiliate Software. The Parties shall investigate from
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time to time the possibility of using Software developed by FDT Affiliates
(such as that Software commonly known as "Tape Access Method"), to augment
the CSG-Vendor Software. If such investigation results in the Parties
determining that the use of such Software is desirable, the Parties shall
negotiate the terms and conditions (including costs) associated with such
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use.
2.5.2 Third Party Software. If CSG requires FDT to acquire
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additional Software for use by FDT in the provision of FDT Services, FDT
shall use commercially reasonable efforts to identify other FDT clients
with whom CSG can share the costs associated with such Software, it being
understood that if no other FDT clients use such Software, the costs
associated with such Software shall be the sole responsibility of CSG.
2.6 Information and Reports. In accordance with the Performance Criteria,
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FDT will provide to CSG the output information or such other reports as the
Parties may mutually agree, provided, however, that FDT's obligations for output
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or reports are specifically conditioned upon receipt of timely input received
from CSG and CSG's Clients.
2.7 Backup. Pursuant to written instructions from CSG, FDT will back-up
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and maintain copies of the CSG Data, the Applications Software and Team 35
Software on magnetic or other media in accordance with FDT's standard
procedures. In connection with such backup, FDT, in accordance with the fees
set forth in Schedule 1.27, will arrange for off-site storage for CSG Data, as
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well as periodic pick-up and delivery to the off-site storage site. CSG will be
solely responsible for CSG Data that CSG recalls from the off-site storage site
to the FDT Data Center before it is scheduled to be returned from the off-site
storage site.
2.8 Security. FDT will implement and maintain reasonable security
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procedures relating to CSG's access to the FDT Proprietary Software, the
Development Software, and access to the corresponding data of CSG Clients,
including administering the procedures relating to the assignment and
administration of all log-on identification numbers, and CSG shall be
responsible for taking appropriate security measures relating to log-on
identification numbers, passwords and access. FDT has provided CSG with a
description of security procedures currently used by FDT, and FDT will provide
reasonable prior written notice of any material changes in such procedures.
From time to time, CSG will notify FDT which employees of CSG are to be granted
access to the FDT Proprietary Software, Development Software and CSG Data and
the authorized level of such access, all in accordance with FDT's standard
procedures.
2.9 Operations Procedures. CSG and FDT shall each use commercially
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reasonable efforts to comply with the Operations Procedures set forth on
Schedule 2.9 (the "Operations Procedures") in order for FDT to provide the FDT
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Services; provided, however, that if CSG is unable to give any notice specified
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on Schedule 2.9 within the required time frame, FDT will use commercially
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reasonable efforts to accommodate the time frame requested by CSG (provided FDT
shall be under no obligation to incur additional costs to accommodate such time
frame or be responsible for the adverse impact on the Performance Criteria).
The Operations Procedures may from time to time be changed by FDT so long as
the changes do not materially (a) increase the duties of CSG or its obligations
hereunder, or (b) adversely affect the business operations of CSG or CSG
Clients. To the extent practicable, FDT agrees to give CSG reasonable advance
written
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notice of such changes, except for changes which are implemented in
short time frames for which no such notice can be given, such as changes
necessary to correct situations in the FDT Data Center requiring immediate
attention. FDT further agrees to use commercially reasonable efforts to
minimize changes that will materially adversely affect CSG or CSG Clients, all
of which requires CSG's prior written consent, which consent shall not be
unreasonably withheld or delayed. THE OPERATING PROCEDURES ARE DEMARCATIONS OF
RESPONSIBILITIES AND PROCEDURES THAT CSG AND FDT WILL EACH USE COMMERCIALLY
REASONABLE EFFORTS TO ACHIEVE AND PERFORM, IT BEING UNDERSTOOD THAT
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS SERVICES AGREEMENT:
(a) THE OPERATING PROCEDURES MAY NOT BE ACHIEVED OR PERFORMED; AND (b) THE
FAILURE BY FDT OR CSG TO ACHIEVE OR PERFORM ANY OPERATIONS PROCEDURE SHALL NOT
BE DEEMED TO BE A BREACH OF THIS SERVICES AGREEMENT.
2.10 CSG Batch Job Targets. The CSG Batch Job Targets (and improvements
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resulting from the use of the Timberline Hardware) set forth in Schedule 2.10
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are targets and improvements that CSG and FDT will each use commercially
reasonable efforts to achieve, IT BEING UNDERSTOOD THAT NOTWITHSTANDING ANYTHING
TO THE CONTRARY SET FORTH IN THIS SERVICES AGREEMENT: (a) THE CSG BATCH JOB
TARGETS (AND IMPROVEMENTS (IF ANY) RESULTING FROM THE USE OF THE TIMBERLINE
HARDWARE) MAY NOT BE ACHIEVED; AND (b) THE FAILURE BY FDT OR CSG TO ACHIEVE THE
CSG BATCH JOB TARGETS (OR IMPROVEMENTS (IF ANY) RESULTING FROM THE USE OF THE
TIMBERLINE HARDWARE) SHALL NOT BE DEEMED TO BE A BREACH OF THIS SERVICES
AGREEMENT.
2.11 Disaster Recovery. In the event of a Declared Disaster affecting the
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CSG Data, FDT will use commercially reasonable efforts to recover the critical
components of the Systems Software, FDT Proprietary Software (excluding the Team
35 Software), and the FDT managed networks in accordance with the Plan. As
compensation for any services provided by FDT in maintaining and implementing
the Plan, CSG agrees to pay FDT the associated fees and charges for such FDT
Services set forth in Schedule 1.27 and Schedule 2.11, as applicable. It is
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CSG's sole responsibility to recover the Applications Software and the Team 35
Software, and to direct FDT in regard to the CSG Data in accordance with Section
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2.7.
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2.12 Systems Software: Data Telecommunications. FDT may procure from one
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or more qualified subcontractors or third party vendors (the "Third Party
Providers") the data tele communications services and Systems Software used to
provide FDT Services, except to the extent that CSG has previously contracted
for such services directly. FDT also will be responsible for obtaining from any
such Third Party Providers the appropriate maintenance for data
telecommunications and hardware equipment. CSG agrees to pay FDT the applicable
FDT Service Charge. Annually during the Term, the Parties will review the
quality of service and
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pricing offered by the Third Party Providers. Following the annual review, FDT
will take such action that the Parties mutually determine appropriate, which may
include renegotiation with current Third Party Providers or termination of
existing service or license agreements and negotiation with new Third Party
Providers. FDT shall keep CSG apprised of negotiations with Third Party
Providers. The Parties acknowledge that each of the Parties share certain
connections to a network commonly known as the Advantis network. Notwithstanding
anything to the contrary set forth in this Services Agreement, each Party shall
pay their respective usage fees however designated for their respective use of
the Advantis network.
2.13 Performance Criteria.
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2.13.1 Performance Criteria. FDT shall use commercially reasonable
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efforts to provide and to perform the FDT Services in all material respects in
accordance with each of the performance criteria set forth in Schedule 2.13
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(the "Performance Criteria"). Without limiting the foregoing, any request by
CSG for a new or additional Performance Criteria shall be deemed a request for
Additional Services in accordance with Section 2.15.
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2.13.2 Exclusions. There shall be excluded from the measurement of
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compliance with any Performance Criteria any failure to meet such Performance
Criteria if, during, and to the extent that such failure is related to (i) any
matter constituting force majeure, as provided in Section 12.4; (ii) any
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material failure by CSG to perform its obligations under this Services Agreement
(including those set forth in the Operations Procedures), or where CSG's
approval, acceptance, consent or similar action is required under this Services
Agreement, any unreasonable delay or any withholding of action; (iii) the
performance or nonperformance of any Applications Software or the Team 35
Software; (iv) the performance or nonperformance of any CSG vendor; (v) ad hoc
reporting jobs, special production jobs, testing procedures or other services
that are given priority at the request of CSG; (vi) any significant change in
the manner in which CSG conducts its business or operations adversely affecting
FDT's ability to meet any Performance Criteria; and (vii) any failure of CSG or
CSG Clients to provide CSG Data in the time deemed reasonably necessary by FDT
to meet an output delivery schedule.
2.14 Audit Rights.
------------
2.14.1 CSG Audits. Upon the request and reasonable advance written
----------
notice of CSG, FDT will provide to CSG, its auditors and regulators, if any, and
to CSG Clients in accordance with their agreements with CSG (as directed by CSG
and subject to the need for confidentiality obligations from them as set forth
below) access during regular business hours to the appropriate management per-
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sonnel of FDT, and to CSG Data and records of CSG directly relating to the FDT
Services. Such access shall be limited to performing audits of FDT and its
business, to verify the accuracy of the fees and charges for the FDT Services,
and FDT's compliance with the Performance Criteria. Such requests for access
shall not be made more frequently than once a year, with the exception of
requests to provide access to CSG's regulators. FDT will provide to such
auditors and regulators any assistance of a routine nature that they reasonably
require. To the extent that FDT's assistance in such audits exceeds more than
sixty (60) man hours of FDT time in any calendar year, CSG shall reimburse FDT
for such assistance in excess of sixty (60) hours at FDT's then current
commercial rates. CSG and the third party auditors and regulators must comply
with all reasonable security and confidentiality procedures (including the
execution of nondisclosure agreements), established by FDT at any facility to
which access is granted, and audits shall not unreasonably interfere with FDT's
normal business operations. CSG shall use commercially reasonable efforts to
cause non-CSG third party auditors and regulators to provide FDT in advance with
a draft copy of each written report or other output containing comments
concerning FDT or the FDT Services and an opportunity to reply to comments that
will be made in the final report.
2.14.2 FDT Audits. From time to time during the Term, FDT will allow a
----------
third party, selected by FDT, to perform an audit of the electronic data
processing environment maintained by FDT to provide the FDT Services
contemplated under this Services Agreement. Upon request, FDT shall provide CSG
with a copy of the results of the audit. CSG may provide a copy of the audit to
its clients who have specifically agreed to hold the audit confidential in
conformance with an agreement in the form of or conforming to Schedule 2.14.
-------------
2.15 Additional Services. If CSG requests FDT to provide any services that
-------------------
are different from, or in addition to, the FDT Services ("Additional Services"),
the Parties will cooperate with each other in good faith in discussing the scope
and nature of the request, the Additional Services so requested, the related
performance criteria, the impact (if any) on existing Performance Criteria, the
time period in which FDT would provide such Additional Services and the basis
upon which FDT would be compensated and reimbursed therefor, it being understood
that such compensation and reimbursement for Additional Services shall be
consistent with the pricing methodology used for the FDT Service Charges, but
only include costs associated with the FDT Data Center (as opposed to indirect
costs of FDT), and may include the payment of additional fees associated with
equipment obtained by FDT for the provision of Additional Services if CSG
terminates this Agreement for its convenience pursuant to Section 11.4. If the
------------
Parties agree upon the scope and nature of the Additional Services and FDT's
compensation therefor, including, the payment of additional fees (if any) set
forth in the previous sentence, the Parties shall amend this Services Agreement
accordingly and such Additional Services shall
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become a part of the FDT Services.
2.16 CSG Obligations and Responsibilities.
------------------------------------
2.16.1 CSG Obligations. CSG shall have and perform the obligations
---------------
including, those identified in Schedule 2.16.1.
---------------
2.16.2 Data Responsibility. CSG shall have responsibility for the
supervision, management and control of its use of the CSG Data, reports and the
like, including implementing sufficient procedures to satisfy its internal
security and accuracy requirements for information FDT furnishes.
2.17 Relocation.
----------
2.17.1 Movement of FDT Data Center. If FDT relocates the FDT Data
---------------------------
Center, FDT shall reimburse CSG for (a) any conversion cost incurred, directly
or indirectly, by CSG as a result of such relocation and (b) any increase in the
ongoing expenses of CSG as a result of such relocation during the Original Term.
2.17.2 Movement of CSG. If CSG relocates its principal place of
---------------
business from Omaha, Nebraska, CSG shall reimburse FDT for (a) any conversion
costs incurred, directly or indirectly, by FDT as a result of such relocation
and (b) any increase in the ongoing expenses of FDT as a result of such
relocation during the Original Term.
2.18 Access to FDT Data Center. During the Term, FDT will permit CSG and
-------------------------
CSG Clients, on reasonable written notice and subject to FDT's standard security
procedures, to have access to the FDT Data Center during normal business hours
for the purpose of giving tours of such FDT Data Center to CSG Clients and
prospective clients of CSG. Such tours shall be conducted by an employee or
representative of FDT and the extent of such tours shall be determined by FDT in
its sole discretion, provided that such tours provide such CSG Clients and
--------
prospective clients of CSG with a reasonable understanding of the FDT Data
Center standard practices and procedures. Employees and representatives of FDT
conducting such tours shall do so in a professional manner.
2.19 Cooperation and Good Faith. Each Party shall cooperate with the other
--------------------------
to establish priorities for the FDT Services and any Additional Services to be
provided to CSG. Each Party will also cooperate with the other by, among other
things, making available and not withholding or delaying, as reasonably
requested by the other, such management decisions and approvals as may be
necessary to fulfill each Party's respective obligations to the other under this
Services Agreement in a timely and efficient manner. All negotiations
including, negotiations for Additional Services, between the Parties shall be
conducted in good faith in accordance with reasonable commercial business
practices. FDT will provide reasonable assistance to CSG in
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CSG's efforts to develop new business, data conversion and deconversion
activities. Each Party shall designate a person to represent the Party and
coordinate its activities in connection with this Services Agreement.
2.20 Rights of Contemporaneous Negotiation. Contemporaneously with
-------------------------------------
soliciting (or responding to an offer by) a third party to perform any other
data processing or data telecommunications services similar to any of the FDT
Services or a replacement for any of the FDT Services, CSG shall offer FDT the
opportunity to provide such services on mutually acceptable terms. The Parties
each agree that they will act in good faith and without undue delay as they
participate in discussions on the terms pursuant to which FDT will provide such
services to CSG; provided however, nothing in this Services Agreement shall
-------- -------
obligate either Party necessarily to reach an agreement with the other with
respect to such services. It is expressly agreed that (notwithstanding this
Services Agreement, or any past or future discussions or other communications
between them) neither Party will have any liability or obligation whatsoever to
the other with respect to the provision of such services unless and until
negotiations between them are completed and they have in fact entered into
comprehensive, mutually-binding written agreement which covers all matters
agreed to and which is signed by each Party's authorized officers. It is agreed
that either Party may terminate such discussions on written notice to the other
Party, without incurring any liability therefor.
SECTION 3
PAYMENTS FOR FDT SERVICES
-------------------------
3.1 Fees and Charges. The FDT Service Charges are set forth in Schedule
---------------- --------
1.27. FDT's obligations and CSG's rights under this Services Agreement are
----
conditional upon CSG's payment of the fees and charges in accordance with the
terms and conditions of this Services Agreement.
3.2 Taxes. CSG shall be responsible for any sales, use, excise, value-
------
added and other taxes and duties payable by FDT or CSG on the FDT Services as a
whole or on a particular good or service received by CSG from FDT in connection
with the FDT Services where the tax is imposed on CSG's acquisition or use of
such FDT Services or such other goods or services from FDT, and not by FDT's
cost in acquiring the FDT Services or such other goods or services. FDT shall
be solely responsible for payment of the taxes, if any, on FDT's income from the
FDT Services, and FDT corporate occupation taxes, if any. The Parties will use
commercially reasonable efforts to cooperate with each other to enable each
other to determine accurately each Party's tax liability and to minimize such
liability to the extent legally permissible. Each Party shall provide and make
available to the other any resale certificates, information regarding out-of-
state or out-of-country sales or use of equipment, materials or services, and
other exemption certificates or information reasonably requested by either
Party.
3.3 Invoice and Time of Payment. FDT will invoice CSG on or before the
---------------------------
fifth (5th)
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business day of each month for any amount owed to FDT pursuant to this Services
Agreement for the immediately preceding month. Each such invoice will be due and
payable within thirty (30) days after receipt of the invoice. Notwithstanding
the foregoing, if CSG should dispute the accuracy of all or any portion of an
amount indicated on any invoice, CSG shall timely pay the undisputed portion of
such invoice and notify FDT's accounts receivable department in writing of the
nature of the disputed amount at the time of payment. The Parties shall attempt
in good faith to mutually resolve such dispute; provided however, if the dispute
-------- -------
is not resolved within forty-five (45) days from FDT's receipt of such written
notice, either Party shall have the right to have such dispute resolved pursuant
to the terms of Section 6.4.
-----------
3.4 Interest. If FDT does not receive, or is unable to obtain, payment of
--------
any amount due or payable to FDT under this Services Agreement at the time
provided for payment under this Services Agreement, such unpaid amount shall
bear interest at a rate equal to one percent (1%) over the prime rate as
published in the Wall Street Journal, from the date on which payment was due
-------------------
until the date on which FDT receives such payment.
SECTION 4
RELATIONSHIP BETWEEN THE PARTIES
--------------------------------
Nothing contained in this Services Agreement shall be deemed to constitute
a partnership or joint venture between the Parties. Neither Party shall hold
itself out as having any authority to enter into any contract or create any
obligation or liability on behalf of, in the name of, or binding upon the other
Party, nor shall anything contained in this Services Agreement be deemed to
create or imply a fiduciary relationship between the Parties.
SECTION 5
INTELLECTUAL PROPERTY
---------------------
5.1 CSG Data. Any data regarding the operations of CSG or any data
--------
regarding CSG's Clients provided by CSG to FDT pursuant to this Services
Agreement shall remain the property of CSG or CSG Clients (collectively, "CSG
Data"). CSG authorizes FDT to access and make use of the CSG Data for FDT's
performance of its obligations under this Services Agreement. Upon the
termination or expiration of this Services Agreement for any reason, FDT shall
promptly return CSG Data in the form such data is maintained by FDT in
connection with the performance of the FDT Services or, if CSG so elects in
writing, destroy it. FDT shall not use the CSG Data for any purpose except as
contemplated by this Services Agreement, nor shall any part of such data be
disclosed or sold by FDT to third parties or commercially exploited by FDT other
than CSG Data that may be disclosed in connection with the provision of FDT
Services. Notwithstanding the foregoing, FDT shall have the right without CSG's
approval, to compile and distribute aggregate and statistical analyses and
reports using CSG Data, information, and other sources, provided that such
--------
analyses and reports do not identify CSG, CSG Clients or CSG's industry, and
provided further that such analyses and reports are not sold
-------- -------
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to third parties.
5.2 CSG Proprietary Software. CSG hereby grants FDT a non-exclusive,
------------------------
royalty-free license for the Term of this Services Agreement to execute the CSG
Proprietary Software in connection with the performance of the FDT Services and
to access, modify and review the CSG Proprietary Software for problem resolution
and performance recommendations. Except as may be necessary for the
accomplishment of the activities authorized in the immediately preceding
sentence, FDT shall not modify, reverse engineer, decompile, disassemble, create
derivative works or otherwise discover any process or technique inherent in the
CSG Proprietary Software or any portion thereof. As between the Parties, the
CSG Proprietary Software will remain CSG's property. FDT will have no ownership
interests or other rights in the CSG Proprietary Software. CSG represents and
warrants to FDT that the CSG Proprietary Software excluding the Original CSG
Proprietary Software will not violate or infringe, any issued United States
patent as of the effective date of the Original Agreement or any copyright,
trade secret or other intellectual property rights as of the effective date of
the Original Agreement.
5.3 FDT Proprietary Software. FDT hereby grants CSG a non-exclusive,
------------------------
royalty-free license for the Term of this Services Agreement to use the FDT
Proprietary Software (excluding the Team 35 Software, it being understood that
CSG shall be licensed to use the Team 35 Soft xxxx only as authorized pursuant
to that certain license agreement attached hereto as Schedule 5.6). The
------------
foregoing license shall include access to the source code and documentation in
FDT Proprietary Software for the sole and limited purpose of enabling CSG to
modify Existing CSG Proprietary Software and to develop New CSG Proprietary
Software in response to CSG Client needs. Except as may be necessary for the
accomplishment of the activities authorized in the previous sentence, CSG shall
not modify, reverse engineer, decompile, disassemble, create derivative works,
or otherwise discover any process or technique inherent in the FDT Proprietary
Software or any portion thereof. As between the Parties, the FDT Proprietary
Software will remain FDT's property. CSG will have no ownership interests or
other rights in the FDT Proprietary Software. FDT represents and warrants to
CSG that the foregoing grant in the FDT Proprietary Software will not violate
or infringe, any issued United States patent as of the effective date of the
Original Agreement or any copyright, trade secret or other intellectual property
rights as of the effective date of the Original Agreement
5.4 Development Software. FDT has obtained or will obtain for CSG for the
--------------------
Term the right to execute and use the Development Software at CSG's principal
place of business for the purpose of developing, modifying, and enhancing the
CSG Proprietary Software. CSG shall comply with the terms of the licenses and
use restrictions for the Development Software. CSG shall not modify, reverse
engineer, reverse assemble or decompile the Development Software, nor shall CSG
permit any other person to do so.
5.5 Ownership of Information. All Software, Operating Procedures,
------------------------
manuals, and other documentation and similar data processing materials and
derivative works based thereon
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("Data Processing Materials") developed or owned by a Party are and, unless
specifically transferred to the other, shall remain the property of such Party
and shall be Confidential Information. Any Operating Procedures, manuals, or
other documentation included within Confidential Information that is required
for CSG Clients to utilize the services of CSG may be provided to CSG Clients,
provided appropriate confidentiality agreements are executed to protect such
Confidential Information.
5.6 Team 35 Software. Contemporaneously with the execution of this
----------------
Services Agreement, the Parties shall execute the agreement attached hereto as
Schedule 5.6 relating to CSG's use of the Team 35 Software.
------------
5.7 Injunctions. In the event any injunction is issued as to any portion
-----------
of a product, service or any Software which is used to provide the FDT Services,
the unavailability of which would materially adversely affect the business or
operations of CSG, due to the infringement of a third party's patent, copyright
or trade secret, FDT will use commercially reasonable effort to modify or
replace the product or service if the infringement arises out of or relates to
the Platform, the Systems Software or any portion thereof, and CSG will use
commercially reasonable efforts to modify or replace the Applications Software
or Team 35 Software or any portion thereof if the infringement concerns the
Applications Software or Team 35 Software, in either event in order to avoid the
infringement, and if FDT or CSG, as applicable, is unable to do so with
commercially reasonable efforts or at commercially reasonable prices, FDT shall
no longer be responsible for providing the affected portion of the FDT Services.
SECTION 6
LIABILITY AND INDEMNIFICATION
-----------------------------
6.1 FDT's Indemnification. FDT shall hold harmless and indemnify CSG and
---------------------
its directors, officers, employees, agents and Affiliates from and against
any and all claims, liabilities, losses or damages (including reasonable
attorneys fees, expert witness fees, expenses and costs of settlement)
resulting from or arising out of:
6.1.1 any infringement of any issued United States patent as of the
effective date of the Original Agreement or any copyright, trade secret or
other intellectual property rights as of the effective date of the
Original Agreement (collectively, "Infringement Claims") asserted by any
third party against CSG in connection with the use by CSG of any FDT
Proprietary Software (excluding the Team 35 Software) in accordance with
the terms and conditions of this Services Agreement;
6.1.2 the death or bodily injury of any agent, employee, customer,
client, business invitee or business visitor of FDT except to the extent,
if any, that such death or bodily injury shall have been caused by the
gross negligence or reckless
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or intentional conduct of CSG; provided, however, that for purposes of
-------- -------
this Section 6.1.2, the agents, employees, customers, CSG Clients, business
-------------
invitees and business visitors of CSG shall not, when on the premises of FDT,
be deemed FDT's business invitee or business visitor;
6.1.3 any payment obligations of FDT to a third party relating to the
Systems Software, FDT Proprietary Software or Platform; and
6.1.4 any misappropriation or misuse by FDT or its employees or agents
of Confidential Information of CSG or a CSG Client.
6.2 CSG's Indemnification. CSG shall hold harmless and indemnify FDT and
---------------------
its directors, officers, employees, agents and Affiliates from and against any
and all claims, liabilities, losses or damages (including reasonable attorney
fees, expert witness fees, expenses and costs of settlement) resulting from or
arising out of:
6.2.1 any Infringement Claim asserted by any third party against FDT
in connection with any CSG Proprietary Software; provided any such claim
arises out of new material or functionality added to such software that is
not present in the Original CSG Proprietary Software;
6.2.2 the death or bodily injury of any agent, employee, customer,
client, business invitee or business visitor of CSG except to the extent, if
any, that such death or bodily injury shall have been caused by the gross
negligence or reckless or intentional conduct of FDT; provided, however, that
-------- -------
for purposes of this Section 6.2.2, the agents, employees, customers,
-------------
clients, business invitees and business visitors of FDT shall not, when on
the premises of CSG, be deemed CSG's business invitee or business visitor;
6.2.3 any payment obligations of CSG to a third party relating to the
CSG Proprietary Software;
6.2.4 any Infringement Claim or other claim asserted by any third
party against FDT in connection with CSG Data or records provided by CSG or
CSG Clients to FDT in connection with the FDT Services;
6.2.5 any claims by third parties, including pursuant to any actions
brought derivatively on behalf of CSG or actions by CSG Clients, suppliers or
creditors of CSG, unless such claims arise from the sole gross negligence or
willful misconduct of FDT; and
6.2.6 any misappropriation or misuse by CSG or its employees or agents
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of Confidential Information of FDT.
6.3 Indemnification Procedures.
--------------------------
6.3.1 If any civil, criminal, administrative or investigative action
or proceeding (any of the foregoing, a "Claim") is threatened or commenced
against any person or Party that a Party is obligated to defend or indemnify
under Section 6.1 or 6.2 (such person and such Party, collectively, an
----------- ---
"Indemnified Party"), then written notice thereof shall be given to the Party
that is obligated to provide indemnification under such Sections (the
"Indemnifying Party") as promptly as practicable; provided, however, that any
-------- -------
delay by the Indemnified Party in giving such written notice shall not
constitute a breach of this Services Agreement and shall not excuse the
Indemnifying Party's obligation under this Section 6 except to the extent, if
any, that the Indemnifying Party is prejudiced by such delay. After such
notice, the Indemnifying Party shall be entitled, if it so elects in writing
with in ten (10) days after receipt of such notice, to take control of the
defense and investigation of such claim and to employ and engage attorneys of
its choice reasonably acceptable to the Indemnified Party to handle and
defend the same, at the Indemnifying Party's sole cost and expense. The
Indemnified Party shall cooperate in all reasonable respects with the
Indemnifying Party and its attorneys in the investigation, trial and defense
of such claim and any appeal arising therefrom; provided however, that
-------- -------
the Indemnified Party may, at its own cost and expense, participate
through its attorneys or otherwise, in such investigation, trial and defense
of such claim and any appeal arising therefrom. No settlement of a claim that
involves a remedy other than the payment of money by the Indemnifying Party
shall be entered into by the Indemnifying Party without the prior consent of
the Indemnified Party, which consent will not be unreasonably withheld or
delayed.
6.3.2 After written notice by the Indemnifying Party to the
Indemnified Party of its election to assume full control of the defense of
any such claim pursuant to Section 6.3.1, the Indemnifying Party shall not
-------------
be liable to the Indemnified Party for any legal expenses incurred
thereafter by such Indemnified Party in connection with the defense of that
claim and any appeal arising therefrom. If the Indemnifying Party does not
assume full control over the defense of a claim pursuant to Section 6.3.1,
-------------
then the Indemnifying Party may participate in such defense, at its sole cost
and expense, and the Indemnified Party shall have the right to defend the
claim in such manner as it may deem appropriate, at the cost and expense of
the Indemnifying Party.
6.3.3 The remedy of indemnification described in this Section 6 shall
---------
be the sole and exclusive remedy of the Indemnified Party for the Infringement
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Claims and other claims described in Section 6.1 and Section 6.2, except as
----------- -----------
otherwise provided herein for injunctive relief and the recovery of
consequential damages relating to the breach of confidentiality obligations
or misappropriation of Confidential Information.
6.4 Dispute Resolution. Subject to Section 6.5, any and all Disputes
------------------ -----------
shall be resolved as provided in Schedule 6.4 hereto.
------------
6.5 Litigation.
----------
6.5.1 Notwithstanding anything to the contrary set forth herein,
neither Party shall be required to submit any dispute or disagreement
regarding the interpretation of any provision of this Services Agreement,
the performance by either Party of such Party's obligations under this
Services Agreement or a default hereunder to the mechanisms set forth in
Section 6.4, if such submission would be seeking equitable relief from
-----------
irreparable harm.
6.5.2 THE PARTIES CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE STATE OF NEBRASKA AND OF ANY NEBRASKA
STATE COURT SITTING IN OMAHA, NEBRASKA FOR ALL LITIGATION WHICH MAY BE
BROUGHT WITH RESPECT TO THE TERMS OF, AND THE TRANSACTIONS AND RELATIONSHIPS
CONTEMPLATED BY, THIS SERVICES AGREEMENT. THE PARTIES FURTHER CONSENT TO THE
JURISDICTION OF ANY STATE COURT LOCATED WITHIN A DISTRICT WHICH ENCOMPASSES
ASSETS OF A PARTY AGAINST WHICH A JUDGMENT HAS BEEN RENDERED, EITHER THROUGH
ARBITRATION OR THROUGH LITIGATION, FOR THE ENFORCEMENT OF SUCH JUDGMENT
AGAINST THE ASSETS OF SUCH PARTY.
SECTION 7
LIMITATION OF LIABILITY
-----------------------
7.1 Limitation on Amount of Damages. It is understood and agreed that a
-------------------------------
Party's liability to the other Party or any other person for damages, injuries,
losses, costs or expenses of any kind, however caused, based on or arising from
or in connection with this Services Agreement, any termination hereof, the
subject matter hereof, the performance (or non-performance) of any of the FDT
Services or other service or obligation hereunder, whether arising in contract
or tort (including as a result of negligence or strict liability), and whether
or not such Party shall have been informed, or might have anticipated the
possibility of any such damage, loss, cost or expense (collectively, "Losses and
Expenses"), shall be limited with respect to each consecutive twelve (12) month
period during the Term commencing with the Effective Date, to the direct
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damages actually incurred by such Party or person, or consequential damages
incurred by either Party as a result of the misappropriation or misuse of
Confidential Information, and shall be recoverable if, and only to the extent
such Losses and Expenses exceed two hundred fifty thousand dollars ($250,000);
and provided further, that the aggregate amount required to be paid by a Party
-------- -------
to the Party or any other person for all such Losses and Expenses shall not
exceed during the first year following the Effective Date, thirteen million
dollars ($13,000,000), and for every year thereafter, the lesser of fifteen
million dollars ($15,000,000) or FDT's revenues under this Services Agreement
for the twelve (12) month period immediately preceding the date of the event
giving rise to the claim. The foregoing limitations shall not apply to amounts
for charges including the fees and charges in Schedule 1.27, otherwise due and
-------------
payable under this Services Agreement.
7.2 Provision of FDT Services. CSG acknowledges that the FDT Services
-------------------------
provided by FDT are to assist CSG in its business activities and are not
intended to replace its professional skill and judgment. CSG shall be solely
responsible for: (i) its own actions or omissions, and the actions or omissions
of its agents, employees and clients with respect to CSG Data used as input for
the FDT Services and (ii) any use of any FDT Services and any use made by CSG,
its agents, employees and clients of CSG Data, reports or other products
produced through any of the FDT Services.
7.3 Mitigation. Each Party shall use commercially reasonable efforts to
----------
mitigate damages for which the other Party is responsible.
7.4 Limitation of Assertions. Neither Party may assert any cause of
------------------------
action against the other Party under this Services Agreement that accrued more
than one (1) year prior to: (i) the filing of a suit; or (ii) the commencement
of arbitration proceedings alleging such cause of action.
7.5 Express Allocation of Risks. The Parties expressly acknowledge that
---------------------------
the limitations contained in this Section 7 and Sections 6, 8 and 9 represent
--------- -------- - - -
the express agreement of the Parties with respect to the allocation of risks
between the Parties, including the level of risk to be associated with the
provision of the FDT Services as related to the FDT Service Charges, and each
Party fully understands and irrevocably accepts such limitations. The Parties
acknowledge that but for the limitations contained in this Section 7 and
---------
Sections 6, 8 and 9, the Parties would not have entered into this Services
-------- - - -
Agreement.
SECTION 8
STANDARD OF CARE AND EXCLUSION OF WARRANTIES
--------------------------------------------
FDT will use reasonable commercial efforts to meet the Performance
Criteria, and FDT will use reasonable care in providing the FDT Services
pursuant to this Services Agreement. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS SERVICES AGREEMENT,
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FDT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO CSG OR TO ANY
OTHER PERSON, INCLUDING ANY WARRANTIES REGARDING THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM
OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE OF ANY SOFTWARE, FOR
SERVICES, HARDWARE OR OTHER SERVICES, PRODUCTS OR MATERIALS PROVIDED UNDER THIS
SERVICES AGREEMENT.
SECTION 9
EXCLUSION OF DAMAGES
--------------------
NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY SET FORTH IN THIS
SERVICES AGREEMENT, IN NO EVENT SHALL EITHER PARTY, ANY OF THEIR AFFILIATES OR
ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE
UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR ANY LOST PROFITS, LOSS OF DATA, EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED
BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT EITHER PARTY OR ANY
OTHER SUCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED
THE FOREGOING EXCLUSION SHALL NOT APPLY TO CONSEQUENTIAL DAMAGES INCURRED BY
EITHER PARTY AS A RESULT OF THE MISAPPROPRIATION OR MISUSE OF CONFIDENTIAL
INFORMATION.
SECTION 10
CONFIDENTIALITY
---------------
10.1 Confidential Information. Information exchanged between the Parties
------------------------
or otherwise made available by one Party for the other in connection with this
Services Agreement before or after the date hereof shall be considered a trade
secret or confidential or proprietary information ("Confidential Information")
if it has been designated as such in this Services Agreement or on the
information itself when delivered or made available, or if delivered orally, if
a written notification of the confidential nature of the information is sent
within a reasonable time after the information is transmitted. Among other
things, Confidential Information shall include confidential or proprietary
information of third parties in the possession of one of the Parties to this
Services Agreement and needed to perform obligations hereunder. FDT Pro-
prietary Software and CSG Proprietary Software shall in any event be considered
Confidential Information of the Parties, respectively. Confidential Information
not requiring a marking shall include FDT Proprietary Software, CSG Proprietary
Software, all specifications and documentation therefor, financial information
of either Party, all CSG Data processed in the FDT Data
CONFIDENTIAL - DO NOT DISCLOSE
21
Center, or other confidential business plans of either Party.
10.1.1 Except as expressly authorized by prior written consent of the dis-
closing Party, the receiving Party shall:
(i) limit access to any Confidential Information received by it to
its employees, agents, representatives, and consultants who have a need-to-
know in connection with this Services Agreement and the obligations of the
Parties hereunder;
(ii) advise its employees, agents and consultants having access to
the Confidential Information of the proprietary nature thereof and of the
obligations set forth in this Services Agreement;
(iii) safeguard all Confidential Information received by it using a
reasonable degree of care, but not less than that degree of care used by
the receiving Party in safeguarding its own similar information or
material;
(iv) not disclose any Confidential Information received by it to
third parties; and
(v) use the Confidential Information of the other Party only for
the purposes and in connection with the performance of such Party's
obligations under this Services Agreement; and
(vi) upon the disclosing Party's request after expiration or termi-
nation of this Services Agreement, return promptly to the disclosing Party
all Confidential Information of the disclosing Party in the receiving
Party's possession, and certify in writing to the disclosing Party its
compliance with this subsection (vi).
10.1.2 Exceptions to Confidentiality. Notwithstanding the foregoing
-----------------------------
Section 10.1, the Parties' obligations respecting confidentiality under
------------
Section 10.1.1 shall not apply to any particular information of a Party
--------------
that the other Party can demonstrate (i) was, at the time of disclosure to
it, in the public domain; (ii) after disclosure to it, is published or
otherwise becomes part of the public domain through no fault of the
receiving Party; (iii) was in the possession of the receiving Party at the
time of disclosure to it without being subject to another confidentiality
agreement; (iv) was received after disclosure to it from a third party who
had a lawful right to disclose such information to it; (v) was inde-
pendently developed by the receiving Party without reference to
Confidential Information of the furnishing Party; (vi) was required to be
disclosed to any regulatory body having jurisdiction over FDT or CSG or any
of their respective clients; or (vii) that disclosure is necessary by
reason of legal, accounting or regulatory requirements beyond the
CONFIDENTIAL - DO NOT DISCLOSE
22
reasonable control of the receiving Party. In the case of any disclosure
pursuant to clauses (vi) and (vii) above, to the extent practical, the
disclosing Party shall give prior written notice to the other Party of the
required disclosure and shall use commercially reasonable efforts to obtain
a protective order covering such disclosure. If such a protective order is
obtained, such information shall continue to be deemed to be Confidential
Information.
10.2 No License or Other Rights. Except as specifically granted herein or
--------------------------
in the Stock Purchase Agreement, this Services Agreement does not confer any
right, license, interest or title in, to or under the Confidential Information
to the receiving Party and no license is hereby granted to the receiving Party,
by estoppel or otherwise under any patent, trademark, copyright, trade secret or
other proprietary right of the disclosing Party. Title to the Confidential
Information shall remain solely in the disclosing Party.
10.3 Publicity and Use of Certain Information. Neither Party will,
----------------------------------------
without the other Party's prior written consent, use the name, service marks or
trademarks of the other Party or any of its Affiliates; provided, however, that
-------- -------
FDT may use CSG as a reference and may indicate to others that CSG purchases the
FDT Services under this Services Agreement. Either Party may disclose to other
persons and Entities the existence and general nature of the Services Agreement
but not the terms and conditions hereof.
10.4 Equitable Remedies. Each Party acknowledges that if it breaches (or
------------------
attempts to breach) its obligations under this Section 10, the other Party will
----------
suffer immediate and irreparable harm, it being acknowledged that legal remedies
are inadequate. Accordingly, if a court of competent jurisdiction should find
that a Party has breached (or attempted to breach) any such obligations, such
Party will not oppose the entry of an appropriate order compelling performance
by such Party and restraining it from any further breaches (or attempted
breaches).
10.5 Privileged Data. CSG accepts full responsibility for complying with
---------------
federal, state and local laws, rules and regulations concerning use of
privileged or confidential third party information derived from input into or
output from the FDT Services provided by FDT under this Services Agreement.
SECTION 11
TERMINATION
-----------
11.1 Termination for Cause. Except as provided in Section 11.2, if either
--------------------- ------------
Party breaches any of its material obligations under this Services Agreement,
which breach is not substantially cured within forty-five (45) days (ten (10)
days for payment defaults) after written notice specifying the breach is given
by the non-breaching Party to the breaching Party, then the other Party may, by
giving notice to the defaulting Party terminate this Services Agreement (or any
service provided by or received by the non-defaulting Party hereunder) for cause
as of a
CONFIDENTIAL - DO NOT DISCLOSE
23
future date specified in the notice of termination; provided however,
-------- -------
such termination notice shall not: (i) if delivered by CSG to FDT, specify a
future termination date more than twelve (12) months from the date of the
notice; (ii) if delivered by FDT to CSG, specify a future termination date less
than nine (9) months from the date of the notice; and (iii) in any case,
otherwise extend the Term of this Services Agreement beyond the date for
termination specified in any previous termination notice delivered by either
Party pursuant to the terms of this Services Agreement. Notwithstanding
anything herein to the contrary, in no event shall the operation of this Section
-------
11.1 extend the Term of this Services Agreement.
----
11.2 Termination for Failure to Meet Performance Criteria. FDT's
----------------------------------------------------
performance during any month shall be evaluated against the Performance Criteria
set forth in Schedule 2.13. If FDT fails to perform a specified Performance
-------------
Criteria in accordance with Section 2.13 and Schedule 2.13 during any two (2)
------------ -------------
consecutive months, CSG may notify FDT in writing of its desire to have FDT
correct such failure (hereinafter referred to as "Failed Criteria"). During the
next thirty (30) days after receipt of such notice or such shorter period if FDT
shall request less than thirty (30) days (hereinafter referred to as "First Cure
Period"), FDT shall correct such Failed Criteria and immediately notify CSG of
its correction. If FDT fails to correct such Failed Criteria within the First
Cure Period, CSG shall have a right to terminate this Services Agreement;
provided, that this termination option is exercised within thirty (30) days
--------
after the end of the First Cure Period. Such termination shall become effective
on a date specified by CSG, which date shall be not later than twelve (12)
months after CSG's delivery to FDT of a written notice of its intention to so
terminate. If FDT cures the Failed Criteria within the First Cure Period, but
thereafter within the next sixty (60) days again fails to satisfy such Failed
Criteria, CSG, at its election, may terminate this Services Agreement; provided,
--------
that this termination option is exercised within thirty (30) days after CSG
receives notice of FDT's repeated failure to perform (as set forth above), and
provided that such termination shall become effective on a date specified by
CSG, which date shall be not later than twelve (12) months after CSG's delivery
to FDT of a written notice of its intention to so terminate this Services
Agreement. Notwithstanding anything herein to the contrary, in no event shall
the operation of this Section 11.2 extend the Term of this Services Agreement.
------------
11.3 Termination Due to Change of Control or Assignment. CSG shall
--------------------------------------------------
notify FDT within ten (10) business days of any public announcement relating to:
(a) the sale in one transaction or a series of related transactions of a
majority of the voting equity securities of CSG other than pursuant to an
underwritten public offering; or (b) any other matter specified in Section
-------
12.3. FDT may, within thirty (30) days of receipt of any such notice, notify
CSG of its intent to terminate this Services Agreement, effective no earlier
than twelve (12) months from the date of CSG's notice to FDT. FDT shall provide
CSG or its designee with Termination Assistance as requested by CSG commencing
upon CSG's receipt of FDT's notice pursuant to the limitations and procedures
set forth in Section 11.5.
------------
11.4 Termination for Convenience. CSG may terminate this Services
---------------------------
Agreement in its
CONFIDENTIAL - DO NOT DISCLOSE
24
entirety effective anytime between the thirty-six (36) and sixty (60)
month anniversary of the Effective Date, provided that: (a) CSG
--------
provides FDT with six (6) months advance written notice of the effective date of
any such termination; (b) CSG pays to FDT fifty percent (50%) of the Termination
for Convenience Fee within thirty (30) days of FDT's receipt of the written
notice specifying the termination of this Services Agreement pursuant to this
Section 11.4; and (c) CSG pays to FDT upon the effective date of termination, in
------------
addition to all fees due FDT pursuant to this Services Agreement, the remaining
fifty percent (50%) of the Termination for Convenience Fee. CSG may not
terminate this Services Agreement for its convenience at any other time. Not
withstanding anything herein to the contrary, in no event shall the operation of
this Section 11.4 extend the Term of this Services Agreement.
------------
11.5 Termination Assistance. Commencing upon the giving of notice of any
----------------------
termination of this Services Agreement by either Party pursuant to Section 11,
----------
and ending upon the earlier of: (a) the effective date of any such termination
identified in any such notice, or (b) the expiration of the Term, FDT will
provide to CSG reasonable termination assistance requested by CSG to facilitate
the orderly transfer of the systems management operations from FDT to CSG or its
designee (the "Termination Assistance"). All CSG Data or data of CSG Clients
shall be supplied on electronic media in a format selected by FDT. In addition,
FDT shall: (i) provide to CSG appropriate file structure information; (ii)
identify the parameters selected for the Systems Software; (iii) identify
applicable procedures and processes relating to job streams; and (iv) use
reasonable commercial efforts to obtain for CSG licenses to the Software of
Third Party Providers that is used by FDT exclusively to provide FDT Services
hereunder, it being under stood that FDT may be unable to obtain such licenses.
To the extent that any Termination Assistance is provided hereunder, CSG shall
pay FDT for such Termination Assistance on a time and materials basis at FDT's
then current rates in effect under this Services Agreement, unless CSG shall
terminate the Services Agreement under Section 11.1 or Section 11.2, which in
------------ ------------
each such case, CSG shall not be liable for the payment of Termination
Assistance, but CSG shall continue to pay all other fees and charges due under
this Services Agreement. If this Services Agreement is terminated by FDT
pursuant to Section 11.1, then CSG shall prepay FDT, on the first day of each
------------
month in which Termination Assistance will be provided and as a condition to
FDT's obligation to provide Termination Assistance to CSG or its designee, an
amount equal to FDT's reasonable estimate of the total amount payable to FDT for
such Termination Assistance for such month. In addition, CSG shall pay, or
reimburse FDT for, all lease, license or other contract termination, transfer,
assignment, access, upgrade, maintenance or related fees and expenses associated
with the provision of the Termination Assistance to CSG or its designee. Prior
to providing any of such Termination Assistance to a CSG designee, FDT shall be
entitled to receive from such designee, in form and substance, reasonably
satisfactory to FDT, written assurances that (A) such designee shall maintain at
all times the confidentiality of any FDT Confidential Information, Software or
materials disclosed or provided to, or learned by, such designee in connection
therewith, and (B) such designee shall use such Confidential Information,
Software or materials exclusively for purposes for which CSG is authorized to
use such items pursuant to this Services Agreement. Except as set forth in
Section 11.8, FDT shall have no obli-
------- ----
CONFIDENTIAL - DO NOT DISCLOSE
25
gation to provide any Software to CSG as part of the Termination Assistance
other than the return of the Application Software as required by this Services
Agreement.
11.6 Expiration Assistance. FDT shall provide CSG or its designee with
---------------------
Termination Assistance as requested by CSG commencing no earlier than twelve
(12) months prior to the expiration of this Services Agreement pursuant to the
limitations and procedures set forth in Section 11.5.
------------
11.7 Access upon Expiration or Termination. Upon the effective date of any
-------------------------------------
expiration or termination of this Services Agreement, FDT shall have no further
obligation to provide CSG with access to or use of the Platform, FDT
telecommunications networks or any Systems Software.
11.8 Expiration or Termination License. Upon expiration or termination of
---------------------------------
this Services Agreement, FDT will grant CSG a perpetual, non-transferable, non-
exclusive, royalty-free license to use, only on a computer system owned or
operated by CSG, or any third party providing service bureau data processing for
CSG and acceptable to FDT, and only for the data processing requirements of CSG
or on behalf of CSG Clients relating to the Business (it being understood that
Xxxxxx Xxxxxxxx LLP, EDS and IBM shall be acceptable to FDT), the application
software programs (including any existing source code or user documentation
relating thereto) comprising the Existing FDT Proprietary Software set forth on
Schedule 5.3 (excluding the Team 35 Software), and any New FDT Proprietary
------------
Software (excluding the Team 35 Software) (the "Termination Licensed
Materials"). FDT's obligations under this Section 11.8 are subject to CSG and
------------
FDT executing and delivering a license agreement, in form and substance
reasonably satisfactory to FDT, containing such terms and conditions as are
appropriate to (a) limit CSG's use of such Termination Licensed Materials as set
forth above, (b) protect the value and confidentiality of the Termination
Licensed Materials, (c) exclude all express and implied warranties with respect
to the Termination Licensed Materials and provide the Termination Licensed
Materials on an "AS-IS" basis, (d) exclude all continuing obligations of FDT to
update, maintain, and support the Termination Licensed Materials, and (e)
exclude all liability of FDT with respect to the Termination Licensed Materials.
11.9 Rights Upon Expiration or Termination. Upon expiration or termination
-------------------------------------
of this Services Agreement for any reason, CSG shall pay FDT for all amounts
payable to FDT pursuant to the terms of this Services Agreement including all
reimbursable expenses incurred by FDT through the effective date of such
expiration or termination. The provisions of Sections 3, 4, 5, 6, 7, 8, 9, 10,
-------- - - - - - - - --
11.5, 11.8, 11.9, 12.1, 12.5, 12.8, 12.12, 12.13, 12.14 and 12.15 shall survive
---- ---- ---- ---- ---- ---- ----- ----- ----- -----
the expiration or termination of this Services Agreement for any reason.
SECTION 12
MISCELLANEOUS
-------------
CONFIDENTIAL - DO NOT DISCLOSE
26
12.1 Notice. All notices, requests, demands and other communications
------
required or permitted under this Services Agreement shall be deemed to have been
duly given and made if in writing upon being served either by personal delivery
or by telecopier to the Party for whom it is intended or two (2) business days
after being deposited, postage prepaid, certified or registered mail, return
receipt requested (or such form of mail as may be substituted therefor by postal
authorities), in the United States mail, bearing the address shown in this
Section 12.1 for, or such other address as may be designated in writing
------------
hereafter by such Party:
If to CSG: CSG Systems, Inc.
0000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President
Telecopy: 000-000-0000
With a copy to : CSG Systems, Inc.
0000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
If to FDT: First Data Technologies, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, President
Telecopy: 000-000-0000
With a copy to : First Data Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, General Counsel
Telecopy: 000-000-0000
12.2 Entire Agreement. This Services Agreement and the Schedules hereto
----------------
embody the entire agreement and understanding of the Parties hereto with respect
to the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings relative to said subject matter.
12.3 Assignment: Transfer; Binding Agreement. Either Party may assign this
---------------------------------------
Services Agreement to any Affiliate of such Party upon notice to the other
Party. Either Party may: (i) transfer this Services Agreement in connection
with any merger or consolidation of such Party with another corporation,
provided that such Party furnishes the other Party with notice of such transfer
within ten (10) business days of the public announcement of the same; or (ii) in
con-
CONFIDENTIAL - DO NOT DISCLOSE
27
nection with the sale of substantially all of the Party's assets (including
the rights of a Party under this Services Agreement), provided that (a) the
assignee thereof shall assume all of such Party's obligations hereunder, and (b)
the Party furnishes the other Party with notice of the public announcement of
such assignment and assumption within ten (10) business days of the same. Sub-
ject to the foregoing, all provisions contained in this Services Agreement shall
extend to and be binding upon the Parties hereto and their respective permitted
successors and permitted assigns.
12.4 Force Majeure. No Party shall be liable for any default or delay in
-------------
the performance of its obligations (other than payment obligations) under this
Services Agreement if and to the extent such default or delay is caused,
directly or indirectly, by (i) fire, flood, elements of nature or other acts of
God; (ii) any outbreak or escalation of hostilities, war, riots or civil
disorders in any country; (iii) any act, failure to act or omission of the other
Party or any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the Party's power to satisfy); or
(v) nonperformance by a third party (including third party vendors) or any other
similar cause beyond the reasonable control of such Party, including failures or
fluctuations in electrical or telecommunications equipment or lines or other
equipment. In any such event, the non-performing Party will be excused from any
further performance or observance of the obligation so affected only for as long
as such circumstances prevail and such Party continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
12.5 Risk of Loss. Except as otherwise provided in this Section 12.5, each
------------ ------------
party shall be responsible for risk of loss of, and damage to, any equipment,
software or other materials in its possession or under its control, subject to
Section 12.4. Notwithstanding anything in this Services Agreement to the
------------
contrary, each Party to this Services Agreement (the "Damaged Party") hereby
waives any and all rights of recovery, claims, actions or causes of action,
against the other Party (the "Other Party"), its Affiliates, and any of its or
their directors, officers, employees, agents and subcontractors for any loss or
damage that may occur to the Damaged Party's facilities, any improvements
thereto, or any building or project of which the Damaged Party's facilities are
a part, or any improvements thereon, or any personal property of any Entity
therein, by reason of fire, the elements or any other cause that could be
insured against under the terms of standard fire and extended coverage insurance
policies, regardless of cause or origin, including negligence of the Other
Party, its Affiliates, or such Other Party's or its Affiliates' directors,
officers, employees, agents or subcontractors, and both the Parties covenant
that no insurer of one Party will hold any right of subrogation against the
other. For purposes of this Section 12.5, the FDT Data Center shall be deemed
------------
to be under the control of FDT at all times.
12.6 No Third-Party Beneficiaries. Except as set forth in Section 6 with
---------------------------- ---------
respect to the indemnification of certain directors, officers, employees, agents
and Affiliates of the Parties, nothing contained in this Services Agreement is
intended to confer upon any Entity (other than the Parties hereto) any rights,
benefits or remedies of any kind or character whatsoever, and no Entity shall be
deemed a third-party beneficiary under or by reason of this Services Agreement.
CONFIDENTIAL - DO NOT DISCLOSE
28
12.7 Severability. If any provision of this Services Agreement or the
------------
application of any such provision to any Entity, or circumstance, shall be
declared judicially or by the Arbitration Panel (as defined in Schedule 6.4) to
------------
be invalid, unenforceable or void, such decision shall not have the effect of
invalidating or voiding the remainder of this Services Agreement, it being the
intent and agreement of the Parties that this Services Agreement shall be deemed
amended by modifying such provision to the extent necessary to render it valid,
legal and enforceable while preserving its intent or, if such modification is
not possible, by substituting therefor another provision that is valid, legal
and enforceable so as to materially effectuate the Parties' intent.
12.8 Certain Construction Rules. The description of any FDT Services
--------------------------
contained in the Schedules is qualified in its entirety by reference to the
information set forth in the provisions of this Services Agreement. To the
extent that the provisions of this Services Agreement and of the Schedules are
in any respect inconsistent, the provisions of this Services Agreement shall
govern and control. In addition, as used in this Services Agreement, unless
otherwise provided to the contrary, any reference to a "Section" or "Schedule"
shall be deemed to refer to a Section of this Services Agreement or Schedule
attached to this Services Agreement.
12.9 Compliance With Laws. CSG and its employees and agents and FDT and its
--------------------
employees and agents shall comply, except where noncompliance would not have a
material adverse effect on the Parties hereto, with all applicable laws,
ordinances, regulations and codes relating to this Services Agreement, other
than those relating solely to performance of the FDT Services, which shall be
the responsibility of FDT.
12.10 Counterparts. This Services Agreement may be executed
------------
simultaneously in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
12.11 Headings. The article and section headings and the table of
--------
contents contained in this Services Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of the Services
Agreement. The recitals set forth on the first page of this Services Agreement
are incorporated into the body of the Services Agreement. Unless the context
clearly indicates, words used in the singular include the plural, words in the
plural include the singular and the word "including" means "including but not
limited to."
12.12 No Interpretation Against Drafter. Both Parties have participated
---------------------------------
substantially in the negotiation and drafting of this Services Agreement and
each Party hereby disclaims any defense or assertion in any litigation or
arbitration that any ambiguity herein should be construed against the draftsman.
12.13 Waiver; Consent.
---------------
CONFIDENTIAL - DO NOT DISCLOSE
29
12.13.1 Waiver. Except as expressly provided herein, this Services
------
Agreement may not be changed, amended, terminated, augmented, rescinded or
discharged (other than in accordance with its terms), in whole or in part,
except by a writing executed by the Parties hereto. No waiver of any of the
provisions or conditions of this Services Agreement or any of the rights of
a Party hereto shall be effective or binding unless such waiver shall be in
writing and signed by the Party claimed to have given or consented thereto.
Except to the extent that a Party hereto may have otherwise agreed in
writing, no waiver by that Party of any term, condition or other provision
of this Services Agreement, or any breath thereof by any other Party shall
be deemed to be a waiver of any other term, condition or pro vision or any
breach thereof, or any subsequent breach of the same term, condition or
provision by the other Party, nor shall any forbearance by the first Party
or Parties to seek a remedy for any noncompliance or breach by the other
Party be deemed to be a waiver by the first party of its, his, her or their
rights and remedies with respect to such noncompliance or breach.
12.13.2 Consent. If either Party requires the consent or approval of
-------
the other Party for the taking of, or omitting to take, any action under
this Services Agreement, such consent or approval shall not be unreasonably
withheld or delayed.
12.14 Governing Law. This Services Agreement shall in all respects be
-------------
construed in accordance with and governed by the laws of the State of New York,
without regard to its conflict of law provisions.
12.15 Limitation of Representations and Warranties; Indemnification.
-------------------------------------------------------------
Notwithstanding anything to the contrary contained herein: (i) no
representation or warranty is made in this Services Agreement as to any matter
which is the subject of a representation or warranty in the Stock Purchase
Agreement; and (ii) no provision of this Services Agreement shall otherwise
expand or limit either Party's indemnity obligations set forth in the Stock
Purchase Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
CONFIDENTIAL - DO NOT DISCLOSE
30
IN WITNESS WHEREOF, each of the Parties hereto has caused this Services
Agreement to be executed as of the date first above written.
CSG SYSTEMS, INC., formerly known as CABLE SERVICES
GROUP, INC. ("CSG")
Signed By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
Executive Vice President
FIRST DATA TECHNOLOGIES, INC. ("FDT")
Signed By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxx X. Xxxx
Print Name: Xxxxxxx X. Xxxx
------------------------------
Title: Executive Vice President
-----------------------------------
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31
SCHEDULE 1.17
DEVELOPMENT SOFTWARE
--------------------
ABEND-AID CICS GDDM/PGF
ABEND-AID NVS GDDM/MVS
ASSEMBLER H INTERTEST
BATCH PIPES ISPF
BOOKHANGER READ JES2
BUNDL
CA-JCLCHECK NETSPY
CA-LIBRARIAN NETVIEW
CA-OPTIMIZER OS/VS COBOL
CA-OPTIMIZER II PHOENIX
CA-ROSCOE PSF
CA-TOP SECRET QMF/MVS
CA-VMAN RADAR
CA-1 RMF
CA-7 XXXX:DISK (DMS)
CICS/ESA SAS
CICS/MVS SDSF
CMA/SPOOL STROBE/CICS
SYNCSORT
COMPAREX/MVS SYSD-32
CUSTOM STATEMENT FORMATTER TMON/CICS
DATA-XPERT TMON/DB2
DB2 TMON/MVS
DYL-280 II VERSION MERGER
EDA/SQL
ENDEVOR
EPILOG VPS
FAST LOAD VPS/CICS
FDR VS COBOL II
FDR/COMPACTOR XPEDITER/ROSCOE
FILE/AID/MVS XPEDITER/TSO
SCHEDULE 1.17 -- PAGE 1
SCHEDULE 1.27
FDT SERVICES AND FDT CURRENT SERVICE CHARGES
--------------------------------------------
I. FDT SERVICES:
------------
ACCOUNT MANAGEMENT:
The FDT account management team is the primary point of contact between CSG and
FDT providing coordination, direction and assistance for problem management
related to all FDT Data Center activities regarding problems and changes that
impact CSG's system performance. Account management participates in ongoing
discussion and project management efforts to ensure that all FDT activities are
in accordance with CSG's business objectives.
AUTOMATION ANALYST:
Automation analysts review manual computer operation procedures for possible
automation using operator automation tools, primarily Computer Associate's
Automate software. Automated procedures are developed to improve operator
manual errors, batch cycle and transmission completion times to meet all agreed
Performance Criteria. This group is the primary point of contact for problem
determination and resolution regarding automated procedures.
CAPACITY PLANNING:
FDT's capacity planning department monitors current system resource capacity
used based on projections provided by CSG for forecasting system resource
utilization. The forecasts are presented to CSG as recommendations in capacity
plans for CPU, DASD, TAPE indicating trends and possible estimates of how system
resources and their use may change.
TECHNICAL SERVICES:
Technical Services supports the System Software, CICS and OEM software
(excluding the Team 35 Software) required by CSG to run its applications.
DASD:
The DASD group for FDT continually monitors DASD file placement and availability
and provides first level support for all DASD related problems. This group also
reviews system storage growth estimates for overall growth and special projects
provided by FDT customer business units and the FDT Capacity group.
DATABASE MANAGEMENT:
SCHEDULE 1.27-PAGE 1
Database management at FDT includes installation, maintenance and problem
resolution of all mainframe database related products in use by CSG. Database
management creates new DBMS (Database Management System ) subsystems as
requested including associated interfaces to allow customer access.
CSG DB2 DATABASE MANAGEMENT:
Database management at FDT is responsible for defining and maintaining all
components and related user interfaces in support of IBM's DB2 DBMS. This area
grants system level and storage group access to DB2 and monitors DB2 performance
to help ensure proper tuning of subsystem components.
DATA NETWORK SERVICES:
Data Network Services encompasses all components related to the physical
equipment used for telecommunications, including, telephone company circuit
orders, dial backup testing, performance of circuit outage, dial backup and
telephone company escalation for telecommunica tions related problems and
installation and design of new telecommunications equipment and network
configurations. Data Network Services provides 24x7 second level support for all
net work problems and works continually with the Network software group to
obtain the optimal level of circuit loading and network capacity for the FDT
Data Center.
DISASTER RECOVERY:
Disaster Recovery develops and maintains plans for FDT Data Center recovery.
The plans which identify all procedures and resources necessary for recovery are
tested with the coordination and cooperation of CSG.
HARDWARE AND FACILITIES:
The FDT hardware area coordinates installation, upgrades and maintenance for all
physical hardware and related critical environmental support facilities (power,
water coolers, air handlers, etc.) used by FDT. This area plans and coordinates
all vendor required upgrades and preventative maintenance to help ensure that
equipment functions in accordance with current Performance Criteria.
HELP DESK:
The Help Desk (commonly known as the "CSC" -- Customer Support Center) at FDT
provides the first point of contact for FDT internal, CSG and CSG customer calls
for all system and network related problems. The CSC performs first level
problem determination notifying additional technical support as needed.
SCHEDULE 1.27-PAGE 2
Effective April 1, 1997, CSG shall assume responsibility for all of its customer
calls. The CSC will provide 24x7 coverage for calls relating to the FDT Data
Center and receive those related calls from CSG's internal support center. This
service shall be provided as an Additional Service, provided that the parties
--------
reach agreement regarding the provision of the same.
Prior to April 1, 1997, FDT, at no additional cost to CSG, shall make available
to CSG 80 hours of conversion assistance (including training), as well as
associated documentation. Thereafter, such assistance shall be provided at an
hourly rate, as an Additional Service, provided that the parties reach agreement
--------
regarding the provision of the same.
Subject to the following, CSG may offer employment to FDT CSG dedicated control
center analysts. CSG shall credit each dedicated control center analyst who
becomes employed by CSG ("Transferred Employee") with all of his or her service
with FDT and its Affiliates for the purpose of eligibility, vesting, seniority
and the computation of any benefits, under all of CSG's employee benefit plans,
policies or programs maintained, sponsored by or contributed by CSG on behalf of
its employees, including, pension and retirement plans, deferred compensation
plans, severance plans or policies.
Transferred Employees shall be immediately eligible upon employment by CSG to
participate in any and all medical plans maintained, sponsored by or contributed
to by CSG ("Medical Plans"). All pre-existing conditions, restrictions or
limitations contained in any Medical Plan shall be waived with respect to
Transferred Employees; provided, that if the Medical Plans do not permit the
--------
waiver of any pre-existing condition, limitation or restriction, CSG shall
reimburse each Transferred Employee who elects to continue to be covered under
FDT's medical benefit plans under its "COBRA option" for the cost of the
premiums for such coverage until such time as the employee can participate in
FDT's medical plans without any pre-existing condition, limitation or
restriction. CSG shall be responsible for paying the severance pay and benefits
of any Transferred Employee required to be paid under FDT's severance policy as
a result of his or her termination as an FDT employee pursuant to this Services
Agreement.
CSG shall pay each Transferred Employee an annual base salary no less than his
or her salary on the date of termination by FDT and shall not reduce the annual
base salary for any Transferred Employee during the first year of his or her
employment with CSG. If CSG terminates any Transferred Employee within his or
her first year of employment, CSG shall pay such employee severance pay at a
rate no less than the severance pay that individual would have been entitled to
based on FDT's severance policy. CSG shall credit all Transferred Employees
with FDT accrued and unused vacation, and shall provide all Transferred
Employees with the remaining balance, if any, of their FDT 1997 unused personal
days. (FDT employees accrue six (6) personal days on the last day of January.)
The termination of FDT providing to CSG the CSC services as of April 1, 1997
shall not result in the reduction of any FDT Service Charges.
SCHEDULE 1.27-PAGE 3
DATA SECURITY:
FDT Data Security team maintains access rules for files, system resource and
user id's. In addition, Data Security performs the above functions for other
related OEM software requiring inter nal product security administration.
STANDARDS:
FDT Data Center standards are supported by the FDT Quality Services area and
include revisions to established standards and the preparation of proposals
relating to those standards for periodic review by the FDT Standards Committee,
which committee includes CSG personnel. The approved standards are then
published by Quality Services for online viewing.
CHANGE MANAGEMENT:
Change Management is supported by the Quality Services area and includes a
review of all changes for the FDT Data Center. This review is performed to
identify conflicts with other changes, missing required information needed for
changes, and scheduling/approvals for those changes. Reports listing changes by
day and week are published by the Change Management group and are reviewed
during regular meetings internally and with CSG to ensure that system changes
meet both FDT's and CSG's business needs.
INFOMAN STANDARD SUPPORT PROCESSES:
FDT Quality Services supports administrative Infoman functions relating to the
FDT standard problem and change screens and reports.
MAINFRAME CONSOLE OPERATIONS:
Operations is responsible for monitoring all Systems Software and the Platform
to help ensure continued service to CSG. Operations tracks CSG batch cycle and
online processes and reports any Performance Criteria or key indicator impact
to appropriate FDT and CSG management personnel. Operations also assists in
coordinating the implementation of all approved system changes.
MEDIA SERVICES:
FDT Media Services processes, distributes and mails all output generated by
CSG's applications to CSG, CSG customers and associated vendors. Media forms
currently produced are microfiche, magnetic tapes and personal computer
diskettes.
FDT shall provide CSG with a proposal relating to the use of CD-ROM rather than
microfiche in the provision of FDT Services. Such proposal shall include,
without limitation, pricing, conver-
SCHEDULE 1.27-PAGE 4
sion costs, timing of conversion and Performance Criteria, and the changes (if
any) to the FDT Service Charges identified herein. CSG shall give FDT's proposal
due consideration and shall notify FDT no later than 60 days after the receipt
of such proposal, of whether such proposal meets with CSG's approval. If such
proposal meets with CSG's approval, and if CSG and FDT agree on the terms and
conditions relating to the use of CD-ROM rather than microfiche in the provision
of FDT Services, the parties shall use commercially reasonable efforts to
execute an amendment to this Services Agreement memorializing such agreement.
NETWORK SOFTWARE:
The Network Software (VTAM) group installs, maintains and monitors all network
software components necessary to support host mainframe data communications as
well as specialized hardware components. This group provides support to CSG and
its customers for data file transfer, including RJE, NDM, PC download, and IP
data transfer methods.
PERFORMANCE:
FDT Performance monitors and identifies trends, changes and bottlenecks in
system workload. The performance area recommends and implements system tuning
changes based on identified variances in system performance and workload.
PROBLEM MANAGEMENT:
Problem management provides resolution and follow-up assistance relating to FDT
related problems. Daily and monthly reporting is provided by problem
management for tracking by the Parties.
TAPE OPERATIONS:
Tape operations mounts and re-files tapes for all external tape drives and re-
files tapes ejected from tape silos. Tape operations also performs physical
maintenance related to tape media, including new tape initialization, tape
cleaning, replacement of broken or damaged tapes. Tape operations also resolves
tape drive and silo problems.
II. FDT SERVICE CHARGES:
-------------------
1. Monthly Service Fees. The fees for FDT Services shall be determined
--------------------
on a usage basis as set forth below.
2. Pass-Through Expenses. If the Parties agree that a particular expense
---------------------
is to be paid directly by CSG, FDT will promptly provide CSG with a copy of the
third party invoice for such expense. Otherwise, FDT shall act as a payment
agent for CSG, and FDT shall pay any third party charges comprising such
expense, subject to Section 3 of this Schedule 1.27.
--------- -------------
SCHEDULE 1.27-PAGE 5
3. Reimbursable Expenses. In addition to any other payments specified in
---------------------
this Services Agreement and to the extent not provided for in this Schedule
--------
1.27, CSG will pay, or reimburse FDT for, all reasonable out-of-pocket costs and
expenses incurred by FDT in connection with: (a) travel specifically requested
by CSG; (b) any CSG-requested document production; (c) specially CSG-requested
courier deliveries; (d) CSG-required preprinted and stock forms; (e) general
supplies; (f) third party charges for programming, training, seminars and
similar consulting; (g) overtime, additional personnel, products and services
required as a result of (i) any federal, state or local regulatory or
administrative authority, (ii) third party audit, or (iii) CSG's internal or
external auditors; or (h) any pass-through expenses paid on CSG's behalf
pursuant to Section II.2 of this Schedule 1.27, including costs arising out of
------------ -------------
all CSG Vendor Software license and maintenance fees, as well as Software
requested by CSG and not originally included in this Services Agreement.
4. Billing. FDT shall xxxx CSG monthly with a single invoice for all of
-------
CSG's monthly fees and charges. The invoice shall reflect in reasonable detail
the total fees and charges of CSG by FDT Service component, and shall be
supported by appropriate documentation. FDT shall designate a contact person to
answer questions from CSG regarding the monthly invoice.
SCHEDULE 1.27-PAGE 6
"Confidential Treatment
Requested and the Redacted
Material has been separately
filed with the Commission."
------------------------------------------------------------------------------------------------------------------------------------
FDT Services Unit 1997 1998 1999 2000 2001 Comments
------------------------------------------------------------------------------------------------------------------------------------
Assigned CPU MIPS MIP/month $(**) $(**) $(**) $(**) $(**) Notes 1, 2
------------------------------------------------------------------------------------------------------------------------------------
CPU Incremental MIPS MIP/month $(**) $(**) $(**) $(**) $(**) Notes 1, 2
------------------------------------------------------------------------------------------------------------------------------------
DASD gbyte/month $(**) $(**) $(**) $(**) $(**) Notes 1, 4, 10
------------------------------------------------------------------------------------------------------------------------------------
Tape mount $(**) $(**) $(**) $(**) $(**) Notes 1
------------------------------------------------------------------------------------------------------------------------------------
Tape Upgrade monthly $(**) $(**) $(**) $(**) $(**) Notes 1, 4
------------------------------------------------------------------------------------------------------------------------------------
Help Desk inbound call $(**) $(**) $(**) $(**) $(**) Notes 1, 4
------------------------------------------------------------------------------------------------------------------------------------
Network port connections Notes 1, 3, 9
unit/month
0 - 9.6K $(**) $(**) $(**) $(**) $(**)
14.4K - 56K $(**) $(**) $(**) $(**) $(**)
64K - 256K $(**) $(**) $(**) $(**) $(**)
T1 $(**) $(**) $(**) $(**) $(**)
Token Ring $(**) $(**) $(**) $(**) $(**)
------------------------------------------------------------------------------------------------------------------------------------
Modems (3 types) unit/month Notes 1, 5
Analog $(**) $(**) $(**) $(**) $(**)
Dialup $(**) $(**) $(**) $(**) $(**)
DSU $(**) $(**) $(**) $(**) $(**)
Controllers $(**) $(**) $(**) $(**) $(**)
------------------------------------------------------------------------------------------------------------------------------------
Fiche Masters item $(**) $(**) $(**) $(**) $(**) Notes 1, 11
------------------------------------------------------------------------------------------------------------------------------------
Fiche Duplicators item $(**) $(**) $(**) $(**) $(**) Notes 1, 11
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 1.27 -- PAGE 7
"Confidential Treatment Requested
and the Redacted Material has been
separately filed with the Commission."
------------------------------------------------------------------------------------------------------------------------------------
FDT Services Unit 1997 1998 1999 2000 2001 Comments
------------------------------------------------------------------------------------------------------------------------------------
One Way Tapes item $(**) $(**) $(**) $(**) $(**) Notes 1, 4
------------------------------------------------------------------------------------------------------------------------------------
Unshared Software N/A (***) (***) (***) (***) (***) Note 8
------------------------------------------------------------------------------------------------------------------------------------
Disaster Recovery N/A (***)+(***) (***)+(***) (***)+(***) (***)+(***) (***)+(***) Note 6
------------------------------------------------------------------------------------------------------------------------------------
Data Lines N/A (***) (***) (***) (***) (***) Notes 1, 4
------------------------------------------------------------------------------------------------------------------------------------
Postage N/A (***)+(**)% (***)+(**)% (***)+(**)% (***)+(**)% (***)+(**)% Note 7
------------------------------------------------------------------------------------------------------------------------------------
Special Projects N/A (***) (***) (***) (***) (***)
------------------------------------------------------------------------------------------------------------------------------------
SEE NOTES BELOW WHICH ARE AN INTEGRAL PART OF THIS SCHEDULE.
1. ASSUMPTIONS. All pricing assumes the volumes, numbers, dollar amounts and
-----------
levels (as applicable) of each of the FDT Services and Performance Criteria
as of the Effective Date, with the following exceptions, each of which
shall be deemed to be as follows:
Assigned CPU MIPS as of January 1, 1997: (**)
Network as of January 1, 1997: $(**) annually; $(**) monthly
Modems and Controllers as of January 1, 1997: $(**) annually; $(**) monthly
2. CPU MIPS.
--------
A. Increases.
---------
(1) During each calendar year during the Term, CSG may increase the
number of Assigned CPU MIPS by no more than (****) percent
((**)%), based on the number of Assigned CPU MIPS as of January 1
of such calendar year. CSG shall notify FDT of any such increases
at least one hundred twenty (120) days prior to the date upon
which CSG desires such increases to be effective, it being
understood that such increases shall be effective on the first
day of the month following the expiration of
SCHEDULE 1.27 -- PAGE 8
"Confidential Treatment Requested and the
Redacated Material has been separately
filed with the Commission."
such notice period. Prices relating to such increases are set
forth in the CPU Incremental MIPS section of this table.
Example:
-------
a. As of January 1, 1998, the number of Assigned CPU MIPS
equals (**). On August 15, 1998, CSG notifies FDT to
increase its assignment of Assigned CPU MIPS to (**). FDT
shall implement such increase on January 1, 1999.
(2) During any calendar year during the Term, requests by CSG to
increase its assignment of Assigned CPU MIPS in excess of
(******) percent ((**)%), based on the number of Assigned CPU
MIPS as of January 1 of such calendar year, shall be addressed as
an Additional Service. CSG shall notify FDT of any such
increases at least one hundred twenty (120) days prior to the
date upon which CSG desires such increases to be effective, it
being understood that such increases shall be effective on the
first day of the month following the expiration of such notice
period, provided the Parties can reach agreement pursuant to the
procedures set forth in Section 2.15.
------------
Example:
-------
a. As of January 1, 1998, the number of Assigned CPU Base MIPS
equals (**). On August 15, 1998, CSG notifies FDT that it
desires to increase its assignment of Assigned CPU Base MIPS
by (**) MIPS. The Parties shall proceed under Section 2.15
------------
to determine whether FDT would assign CSG an additional (**)
MIPS.
B. Decreases.
---------
(1) Except as specified in Notes 2(B)(2), 2(B)(3) and 2(B)(4) of this
Schedule 1.27, during each calendar year during the Term, CSG may
-------------
decrease its assignment of Assigned CPU MIPS by no more than
(****) percent ((**)%), based on the number of Assigned CPU MIPS
as of January 1 of such calendar year. CSG shall notify FDT of
any such decreases at least one hundred twenty (120) days prior
to the date upon which CSG desires such decreases to be
effective, it being understood that such decreases shall be
effective on the first day of the month following the expiration
of such notice period.
Example:
-------
SCHEDULE 1.27-PAGE 9
"Confidential Treatment Requested and the
Redacated Material has been separately
filed with the Commission."
a. As of January 1, 2000, the number of Assigned CPU MIPS
equals (**). On January 15, 2000, CSG notifies FDT to
decrease its assignment of Assigned CPU MIPS to (**). FDT
shall implement such decrease on June 1, 2000.
b. As of January 1, 1999, the number of Assigned CPU MIPS
equals (**). on August 12, 1999, CSG notifies FDT to
decrease its assignment of Assigned CPU MIPS to (**). The
operation of Note 2(B)(1) of this Schedule 1.27 is inappli-
-------------
cable; the Parties should proceed to address this decrease
pursuant to Notes 2(B)(3) or 2(B)(4) of this Schedule 1.27.
-------------
(2) Notwithstanding Note 2(B)(1) of this Schedule 1.27, and except as
-------------
set forth in Notes 2(B)(3) and 2(B)(4) of this Schedule 1.27,
-------------
during any calendar year during the Term, CSG may decrease the
number of Assigned CPU MIPS by no more than (**) percent ((**)%),
based on the number of Assigned CPU MIPS as of January 1 of such
calendar year, provided that CSG shall pay to FDT, in addition to
--------
the fees associated with the actual Assigned CPU MIPS, the
following additional payment:
(((**) x 12 x number of Assigned CPU MIPS as of January 1 of the
calendar year) - (12 x number of Assigned CPU MIPS at the start
of the next calendar year)) x ((Assigned CPU MIPS Charge) x
((**)))
FDT shall invoice CSG on or before the tenth (10th) day of
January of the following calendar year for any amount owed for
the foregoing additional payment. Each such invoice shall be due
and payable within fourteen (14) days following receipt.
CSG shall notify FDT of any such decreases at least one hundred
twenty (120) days prior to the date upon which CSG desires such
decreases to be effective, it being understood that such
decreases shall be effective on the first day of the month
following the expiration of such notice period.
Example:
-------
a. As of January 1, 2000, the number of Assigned CPU MIPS
equals (**). On January 15, 2000, CSG notifies FDT to
decrease its assignment of Assigned CPU MIPS to (**). FDT
shall implement such request on June 1, 2000. CSG shall pay
to FDT, in addition to the fees associated with the actual
Assigned CPU MIPS, the following additional payment:
SCHEDULE 1.27-PAGE 10
"Confidential Treatment Requested and the
Redacated Material has been separately
filed with the Commission."
(((**) x 12 x (**)) - (12 x (**))) x $(**) x (**)
((**) - (**)) x (**)
(**) x (**) = $(**)
b. As of January 1, 1998, the number of Assigned CPU MIPS
equals (**). On August 12, 1998, CSG notifies FDT that it
desires to decrease its assignment of Assigned CPU MIPS to
(**). FDT shall implement such request on January 1, 1999.
CSG shall pay to FDT, in addition to the fees associated
with the actual Assigned CPU MIPS, the following additional
payment:
(((**) x 12 x (**)) - (12 x (**))) x $(**) x (**)
((**) - (**)) x (**)
(**) x (**) = $(**)
(3) Notwithstanding Notes 2(B)(1) and 2(B)(2) of this Schedule 1.27,
-------------
and except as set forth in Note 2(B)(4) of this Schedule 1.27,
-------------
upon twelve (12) months prior written notice, CSG may decrease
its assignment of CPU Base MIPS by more than (***) percent
((**)%), based on the number of Assigned CPU MIPS as of January 1
in the year in which CSG delivers such notice to FDT, provided
--------
that the Parties determine the fee that CSG shall pay to FDT to
implement such decrease, it being understood that in no event
shall such fee be less than $(**). If the Parties cannot reach
agreement on a fee within thirty (30) days of CSG's notice, the
Parties shall proceed under the procedures set forth in Section
-------
6.4. Once the Parties agree on a fee, for purposes of computing
---
further increases and decreases in the assignment of Assigned CPU
MIPS, CSG shall be deemed to have been assigned such reduced
number of MIPS as of January 1 of the year in which such
reduction is to be effective.
CSG shall pay FDT such payment prior to the effective date of
FDT's implementation of such decreased assignment of MIPS.
(4) Notwithstanding Notes 2(B)(1), 2(B)(2) and 2(B)(3) of this
Schedule 1.27, during any calendar year during the Term, CSG may
-------------
decrease the number of CPU Base MIPS assigned to it by more than
(***) percent ((**)%), based on the Assigned CPU MIPS as of
January 1 of such calendar year, provided that CSG shall pay to
--------
FDT, in addition to the fees associated with the actual Assigned
CPU MIPS, the following additional payment:
SCHEDULE 1.27-PAGE 11
"Confidential Treatment Requested and the
Redacated Material has been separately
filed with the Commission."
(**) x 12 x number of Assigned CPU MIPS as of January 1 of the
calendar year x Assigned CPU MIPS Charge
FDT shall invoice CSG on or before the tenth (10th) day of
January of the following calendar year for any amount owed for
the foregoing additional payment. Each such invoice shall be due
and payable within fourteen (14) days following receipt.
CSG shall notify FDT of any such decreases at least one hundred
twenty (120) days prior to the date upon which CSG desires such
decreases to be effective, it being understood that such
decreases shall be effective on the first day of the month
following the expiration of such notice period.
Example:
-------
a. As of January 1, 1997, the number of Assigned CPU MIPS
equals (**). On December 12, 1997, CSG notifies FDT to
decrease its assignment of Assigned CPU MIPS to (**),
effective July 1, 1998. CSG shall pay to FDT, in addition
to the fees associated with the actual Assigned CPU MIPS,
the following additional payment:
(**) x 12 x (**) x $(**) = $(**)
(5) If CSG notifies FDT to decrease the number of Assigned CPU MIPS,
and CSG subsequently fails to be in a position whereby FDT could
implement such decrease (either in whole or in part) without
disrupting CSG's business, in addition to any of the charges set
forth in this Schedule 1.27, CSG shall pay to FDT, as applicable:
-------------
(a) if FDT has MIPS capacity available, the costs (as set forth
herein) associated with CSG's assignment of Assigned CPU MIPS in
excess of the Assigned CPU MIPS level that CSG instructed FDT to
decrease CSG's assignment to, and (b) FDT's costs of maintaining
or implementing CSG's assignment of Assigned CPU MIPS in excess
of the level of Assigned CPU MIPS that CSG instructed FDT to
decrease CSG's assignment to.
(6) If CSG requests dedicated engines in any LPAR, any MIP
fluctuation must be in whole engine increments for the Platform.
Such limitation may result in higher or lower Assigned CPU MIPS
incremental adjustments, all of which shall be calculated in
accordance with the foregoing.
SCHEDULE 1.27-PAGE 12
"Confidential Treatment Requested and the
Redacted Material has been separately
filed with the Commission."
3. NETWORK
-------
A. Increases.
---------
(1) During each calendar year during the Term, CSG may increase its
use of the Network FDT Services by no more than (***) percent
((**)%), based on the Network fees incurred by CSG during
December of the prior calendar year, it being understood that for
calendar year 1997, CSG shall be deemed to have incurred fees of
$(**) in December, 1996. CSG shall notify FDT of any such
increases in any component of the Network FDT Services at least
sixty (60) days prior to the date upon which CSG desires such
increases to be effective, it being understood that such
increases shall be effective on the first day of the month
following the expiration of such notice period. The fees
attributable for such increases in any component of the Network
FDT Services shall be those identified in this Schedule 1.27,
-------------
provided that CSG shall only be charged for (*******) percent
--------
((**)%) of the fees attributable to the Network FDT Services that
exceed $(**) in any given month.
Example:
-------
a. In December, 1997, CSG incurred $(**) of Network FDT
Services. On April 12, 1998, CSG notifies FDT to add one
(1) T1 and two (2) 64K-256K port connections. On July 1,
1998, FDT shall implement such additional port connections.
During July, 1998, CSG would incur the following fees for
Network FDT Services:
$(**) + (((**)) x (($(**) + 2($(**))))
(2) During any calendar year during the Term, requests by CSG to
increase its use of the Network FDT Services by more than (****)
percent ((**)%) shall be addressed as an Additional Service. CSG
shall notify FDT of any such increases in any component of the
Network FDT Services at least sixty (60) days prior to the date
upon which CSG desires such increases to be effective, it being
understood that such increases shall be effective on the first
day of the month following such notice period, provided the
Parties can reach agreement pursuant to the procedures set forth
in Section 2.15.
------------
Example:
-------
SCHEDULE 1.27-PAGE 13
"Confidential Treatment Requested and the
Redacted Material has been separately
filed with the Commission."
a. In December, 1997, CSG incurred $(**) of Network FDT
Services. On April 12, 1998, CSG notifies FDT that it
desires to add $(**) of additional Network FDT Services. The
Parties shall proceed under Section 2.15 to determine
------------
whether FDT would provide CSG such additional Network FDT
Services.
B. Decreases.
---------
(1) Except as specified in Notes 3(B)(2), 3(B)(3) and 3(B)(4) of this
Schedule 1.27, during each calendar year during the Term, CSG may
-------------
decrease its use of the Network FDT Services in a given month
during a calendar year by no more than (*****) percent ((**)%),
based on the value of the Network FDT Services incurred by CSG
during December of the prior calendar year, it being understood
that during December, 1996, CSG shall be deemed to have incurred
$(**) of Network FDT Services. CSG shall notify FDT of any such
decreases in any component of the Network FDT Services at least
sixty (60) days prior to the date upon which CSG desires such
decreases to be effective, it being understood that such
decreases shall be effective on the first day of the month
following the expiration of such notice period.
Example:
-------
a. In December, 1999, CSG incurred $(**) of Network FDT
Services. On February 4, 2000, CSG notifies FDT to de-
crease its use of Network FDT Services to $(**). FDT shall
implement such decrease on May 1, 2000.
b. In December, 1998, CSG incurred $(**) of Network FDT
Services. On August 12, 1999, CSG notifies FDT to decrease
its use of Network FDT Services to $(**). This operation of
this Note 3(B)(1) of this Schedule 1.27 is inapplicable;
-------------
the Parties shall proceed to address this decrease pursuant
to Notes 3(B)(3) and 3(B)(4) of this Schedule 1.27.
-------------
SCHEDULE 1.27-PAGE 14
"Confidential Treatment Requested and the
Redacated Material has been separately
filed with the Commission."
(2) Notwithstanding Note 3(B)(1) of this Schedule 1.27, and except as
-------------
set forth in Notes 3(B(3) and 3(B)(4) of this Schedule 1.27,
-------------
during any calendar year during the Term, CSG may decrease its
use of Network FDT Services in a given month during a calendar
year by no more than (***) percent ((**)%), based on the Network
FDT Services incurred by CSG during December of the previous
calendar year, provided that CSG shall pay to FDT, in addition to
--------
the fees associated with CSG's actual use of Network FDT
Services, the following additional payment:
(((**) x 12 x the fees incurred by CSG for Network FDT Services
in December of the prior calendar year) - (12 x the fees incurred
by CSG for Network FDT Services in December of the then current
calendar year)) x (**)
FDT shall invoice CSG on or before the tenth (10th) day of
January of the following calendar year for any amount owed for
the foregoing additional payment. Each such invoice shall be due
and payable within fourteen (14) days following receipt.
CSG shall notify FDT of any such decreases in any component of
the Network FDT Services at least sixty (60) days prior to the
date upon which CSG desires such decreases to be effective, it
being understood that such decreases shall be effective on the
first day of the month following the expiration of such notice
period.
Example:
-------
a. In December, 1998, CSG incurred Network FDT Services fees of
$(**). On August 12, 1999, CSG notifies FDT that it desires
to decrease its use of Network FDT Services to $(**). FDT
shall implement such request effective November 1, 1999.
CSG shall pay to FDT, in addition to the fees associated
with CSG's actual use of Network FDT Services, the following
additional payment:
(((**) x 12 x $(**)) - (12 x $(**))) x (**)
($(**) - $(**)) x (**) = $(**)
(3) Notwithstanding Notes 3(B)(1) and 3(B)(2) of this Schedule 1.27,
-------------
and except as set forth in Note 3(B)(4) of this Schedule 1.27,
-------------
upon twelve months prior written notice, CSG may decrease its use
of the Network FDT Services in a given month during a calendar
year by more than (***) percent ((**)%), based on the Network FDT
Services incurred by CSG during December of
SCHEDULE 1.27-PAGE 15
"Confidential Treatment Requested and the
Redacted Material has been separately
filed with the Commission."
the previous calendar year, provided that the Parties determine
--------
the fee that CSG shall pay to FDT to implement such decrease, it
being understood that in no event shall such fee be less than
$(**). If the Parties cannot reach agreement on a fee within
thirty (30) days of CSG's notice, the Parties shall proceed under
the procedures set forth in Section 6.4. Once the Parties agree
-----------
on a fee, for purposes of computing further increases and
decreases of Network FDT Services, CSG shall be deemed to have
incurred the fees incurred by CSG in the first month following
the effective date of any such decrease in December of the prior
calendar year.
CSG shall pay FDT such payment prior to the effective date of
FDT's implementation of such decreased use of Network FDT
Services.
(4) Notwithstanding Notes 2(B)(1), 2(B)(2) and 2(B)(3) of this
Schedule 1.27, during any calendar year during the Term, CSG may
-------------
decrease its use of the Network FDT Services in a given month
during a calendar year by more than (***) percent ((**)%), based
on the Network FDT Services incurred by CSG during December of
the previous calendar year, provided that CSG shall pay to FDT,
--------
in addition to the fees associated with CSG's actual use of
Network FDT Services, the following additional payment:
(**) x 12 x the fees incurred by CSG for Network FDT Services in
December of the prior calendar year
CSG shall notify FDT of any such decreases in any component of
the Network FDT Services at least sixty (60) days prior to the
date upon which CSG desires such decreases to be effective, it
being understood that such decreases shall be effective on the
first day of the month following the expiration of such notice
period.
Example:
-------
a. In December, 1997, CSG incurred Network FDT Services fees of
$(**). On December 12, 1997, CSG notifies FDT to decrease
its use of Network FDT Services to $(**) on April 1, 1998.
CSG shall pay to FDT, in addition to the fees associated
with the CSG's actual use of Network FDT Services, the
following additional payment:
(**) x 12 x $(**) = $(**)
SCHEDULE 1.27-PAGE 16
"Confidential Treatment Requested and the
Redacted Material has been separately
filed with the Commission."
(5) If CSG notifies FDT to decrease its use of Network FDT Services,
and CSG subsequently fails to be in a position whereby FDT could
implement such decrease (either in whole or in part) without
disrupting CSG's business, in addition to any of the charges set
forth in this Schedule 1.27, CSG shall pay to FDT, as applicable:
-------------
(a) if FDT has Network FDT Services capacity available, the costs
(as set forth herein) associated with CSG's use of Network FDT
Services in excess of the Network FDT Services that CSG
instructed FDT to decrease to, and (b) FDT's costs of maintaining
or implementing CSG's Network FDT Services in excess of the level
of Network FDT Services that CSG instructed FDT to decrease to.
4. FDT SERVICES OTHER THAN CPU BASE MIPS, TAPE MOUNTS, NETWORK, MODEMS AND
-----------------------------------------------------------------------
CONTROLLERS, FICHE AND UNSHARED SOFTWARE (THE "OTHER FDT SERVICES").
-------------------------------------------------------------------
Increases and decreases in each of the Other FDT Services shall be
calculated in the same manner that CPU Base MIPS were calculated herein,
provided that the notice period for increases and decreases shall only be
--------
sixty (60) days rather than one hundred twenty (120) days.
5. MODEMS AND CONTROLLERS. Increases and decreases in modems and controllers
----------------------
shall be calculated in the same manner that Network FDT Services were
calculated herein.
6. Management fee covers in-house staff, currently $(**) per month, which
shall increase (**) percent ((**)%) during each calendar year during the
Term.
7. (***) percent ((**)%) fee covers in-house staff.
8. CSG shall pay FDT for all Unshared Software licensed by FDT for use by CSG,
including associated maintenance fees, regardless of whether CSG ceases use
of any of such Unshared Software. Upon the written request of CSG, FDT
shall use commercially reasonable efforts to termi nate any license and
associated maintenance for specified Unshared Software, it being understood
that FDT may not be successful in such efforts.
9. In years 1999, 2000 and 2001, Network FDT Services fees shall reflect a
$(**) monthly / $(**) annual credit.
10. If CSG requests FDT to provide CSG with additional DASD without providing
FDT with the sixty (60) day notice required herein, to the extent that FDT
can accommodate such a request, it will use reasonable commercial efforts
to do so, it being understood that FDT may not be able to accommodate
CSG's request.
SCHEDULE 1.27-PAGE 17
"Confidential Treatment Requested and the
Redacted Material has been separately
filed with the Commission."
extent that FDT can accommodate such a request, it will use reasonable
commerical efforts to do so, it being understood that FDT may not be able to
accommodate CSG's request.
11. FICHE.
-----
A. Increases.
---------
(1) During each calendar year during the Term, CSG may increase its
volume of Fiche FDT Services by no more than (****) percent
((**)%), based on the volume of Fiche FDT Services of CSG as of
January 1 of such calendar year. CSG shall notify FDT of any such
increases at least sixty (60) days prior to the date upon which
CSG desires such increases to be effective, it being understood
that such increases shall be effective on the first day of the
month following the expiration of such notice period.
(2) During any calendar year during the Term, requests by CSG to
increase its volume of Fiche FDT Services in excess of (****)
percent ((**)%), based on the volume of Fiche FDT Services of CSG
as of January 1 of such calendar year, shall be addressed as an
Additional Service. CSG shall notify FDT of any such increases
at least sixty (60) days prior to the date upon which CSG desires
such increases to be effective, it being understood that such
increases shall be effective on the first day of the month
following the expiration of such notice period, provided the
Parties can reach agreement pursuant to the procedures set forth
in Section 2.15.
------------
B. Decreases.
---------
(1) Except as specified in Note 11(B)(2) of this Schedule 1.27,
-------------
during each calendar year during the Term, CSG may decrease the
volume of Fiche FDT Services by no more than (*******) percent
((**)%), based on the volume of Fiche FDT Services of CSG as of
January 1 of such calendar year. CSG shall notify FDT of any
such decreases at least sixty (60) days prior to the date upon
which CSG desires such decreases to be effective, it being
understood that such decreases shall be effective on the first
day of the month following the expiration of such notice period.
(2) Notwithstanding Note 11(B)(1) of this Schedule 1.27, during any
-------------
calendar year during the Term, CSG may decrease the
SCHEDULE 1.27-PAGE 18
"Confidential Treatment Requested and the
Redacted Material has been separately
filed with the Commission."
volume of Fiche FDT Services by more than (*******) percent
((**)%), based on the volume of Fiche FDT Services of CSG as of
January 1 of such calendar year, provided that CSG shall pay to
--------
FDT, in addition to the fees associated with the actual Fiche FDT
Services, the following additional payment:
(((**) x volume of Fiche FDT Services as of January 1 of the
calendar year) - (actual volume of Fiche FDT Services during such
calendar year)) x (Applicable Fiche FDT Services Charges x (**))
FDT shall invoice CSG on or before the tenth (10th) day of
January of the following calendar year for any amount owed for
the foregoing additional payment. Each such invoice shall be due
and payable within fourteen (14) days following receipt.
CSG shall notify FDT of any such decreases at least sixty (60)
days prior to the date upon which CSG desires such decreases to
be effective, it being understood that such decreases shall be
effective on the first day of the month following the expiration
of such notice period.
(3) If CSG notifies FDT to decrease the volume of Fiche FDT Services,
and CSG subsequently fails to be in a position whereby FDT could
implement such decrease (either in whole or in part) without
disrupting CSG's business, in addition to any of the charges set
forth in this Schedule 1.27, CSG shall pay to FDT, as applicable:
-------------
(a) if FDT has Fiche FDT Services capacity avai lable, the costs
(as set forth herein) associated with CSG's use of Fiche FDT
Services in excess of the Fiche FDT Services level that CSG
instructed FDT to decrease CSG's volume to, and (b) FDT's costs
of maintaining or implementing CSG's volume of Fiche FDT Services
in excess of the level of Fiche FDT Services that CSG instructed
FDT to decrease CSG's volume to.
SCHEDULE 1.27-PAGE 19
SCHEDULE 1.43
PLATFORM
--------
HARDWARE CONFIGURATION (AS OF JANUARY 1, 1997)
----------------------------------------------
Processor
IBM 9021 -982
340 MIPS (including System Software)
528 MB Central Storage
720 MB Expanded Storage
13 Copper Channels
117 ESCON Channels
-----------------------------------------------
--------------------------------------------------------------------------------
Tape 1/97 * Tapes * F.E.P.
Address Address Units
5 STK Silo's 5 STK Silo's 1 IBM 3745/170
(56 Addresses) (56 Addresses) 1 IBM 3745-61A
32 Timberline** 56 4490
24 4490 4 STK 4480
4 STK 4480 8 STK 4490
8 STK 4490 w/autoloaders
w/autoloaders 8 STK 4670
8 STK 4670
--------------------------------------------------------------------------------
--------------------------------------------------------------------------
DASD *
Controllers DASD *
Strings
Units
2 IBM 3390/3
1 IBM 3990/6 4 IBM 3390/3
256 mb/cache 1 IBM 3390/9
1 IBM 3990/3 2 HDS 7693
128 mb/cache 1 IBM 3380/K
1 IBM 3990/3 1 IBM 3380/D
64 mb/cache 1 STK 8380/E
2 IBM 3990/6 512mb/cache 2 EMC 5500-9M22
2 HDS/7690 1.5 EMC gb/cache
256 mb/cache 1 HDS 7700 3 gb/cache
1 IBM 3880 Total = 1,959gb
1 STK 8880
--------------------------------------------------------------------------
* Shared with other Business Units
** Dedicated to CSG
SCHEDULE 1.43-PAGE 1
SCHEDULE 2.3
CSG VENDOR SOFTWARE
-------------------
VERTEX -- is a software package that calculates sales tax at the State, City,
Municipality, etc. level. CSG has the right to use the Vertex software under a
license granted to Time Warner Satellite Services (a/k/a Time Warner Publishing
Co.). CSG may access and use the Vertex software for Time Warner's business
purposes only.
GROUP 1 Software, including CODE1, Mail-Stream Plus, Desktop MailStream Plus,
ArcList, Online/Time Sharing -- used to perform various addressing and sorting
functions for mailing statements to subscribers of CSG Clients.
CLARITIS Software, including PRIZM, PRIZM+4, and Census Block Group Level
Demographics -- Market Segmentation systems that classify residential
neighborhoods and communities in the U.S. into distinct types or "clusters"
according to factors derived from the U.S. Census; used with VIP Software.
SCHEDULE 2.3-PAGE 1
SCHEDULE 2.9
OPERATIONS PROCEDURES
---------------------
See attached listing.
SCHEDULE 2.9 -- PAGE 1
ACCOUNT MANAGEMENT
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FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Act as primary client contact between CSG and FDT. Coordinate FDT Data Center activity through account manager.
Provide quality control on Performance Criteria and key Ensure FDT is aware of all data processing
indicators. /telecommunications implemented by
Participate in ongoing negotiation of Performance Criteria CSG affecting production batch, onlines and network.
and key indicators. Adhere to established change control methodologies for
Provide status and statistical reporting to help ensure application changes.
Services Agreement compliance (INFOMAN/Development calendar)
Conduct regular quality of service review meetings. Provide representation for change control and planning meetings.
Take part in senior-level discussions to help ensure technology Communicate changes to business that may require alteration of
concerns are closely linked to business decisions. Performance
Identify open issues and future plans through ongoing Criteria and key indicators.
discussions with client management personnel.
Coordinate project management efforts with technical personnel
and client management to determine that the proper balance between
client priorities and FDT resources are adequately utilized.
Ensure coordination and consistency of FDT Data Center policies and
performance.
Participate and represent client in change control planning and meetings.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 2
OPERATIONS AUTOMATION
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Investigate the possible elimination of all manual computer operations Create change record in INFOMAN to request specific
intervention. automation changes or enhancements.
Coordinate implementation of new operator automation procedures between all
affected departments.
Maintain operation automation software in a dynamic environment.
Work issues pertaining to Performance Criteria using operator automation
tools where applicable.
Develop automatic controls around the transmission environment that would
escalate lateness or problem situations.
Propose the appropriate course of action for research, development,
implementation and problem resolution of operator automation issues.
Review and resolve any problems with automated procedures.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 3
CAPACITY PLANNING
------------------------------------------------------------------------------------------------------------------------------------
FDT BUSINESS UNIT
------------------------------------------------------------------------------------------------------------------------------------
CAPACITY Application capacity planner must provide information one month before
Provide quarterly capacity plan end of each quarter to include information in capacity plan.
Gather resource usage for existing applications from Gather and document areas affected by changed resource usage for
SMF, RMF,EPILOG, NETVIEW. existing jobs, jobsteps, programs, network, online systems and
Identify how resources may grow. applications.
Apply resource usage and estimate CPU, DASD, Tape, Document dates of unit testing, beta test, parallels and production.
Network or other resources from business unit assumptions. Document all assumptions which include how resource utilization will
Estimate total resources required (CPU, DASD, Tape and grow for identified areas.
Network). Provide monthly business units growth.
Estimate effects on customer cost for estimates. Approve FDT Data Center capacity plan.
Monitor and provide reports for trends in workloads.
Recommend trending for workloads that do not have a specific
estimate.
Summarize capacity plan by customer and seek approval from
customer's management.
Present consolidated customer plans to FDT management.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 4
CICS ON LINE SOFTWARE
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
CICS installation, customization, tuning, application of Applications (or Q/A) is responsible for its loadlibs:
PTFs, table maintenance. cleanup old versions, sizing, compression, backups.
Support CICS disaster recovery. Each application group is responsible for completing the
Build new CICS regions as requested. correct paperwork for normal table maintenance along with the
Design and implement CICS direction/workload analysis. correct parameters for the usage of the table entry (i.e.,
Monitor all production CICS regions and note exceptions. CICS region/notification of entries that will have abnormally
Provide debugging and problem resolution assistance for high usage).
application programming staff when requested. Each application group is responsible for identifying correctly the
Tech Services will research all regions abends. requirements for new CICS regions when requesting the same,
Tech Services will assist with all test, QA and acceptance including region size, table entries, customization, etc.
test storage violations upon request. CSG should contact Applications as the first point of contact for
Tech Services will research all production storage violations. transaction ASRA (s) and Abends.
Tech Services will assist with transaction abends upon request. CSG should contact Applications immediately for storage violations
Tech Services will research all exceptions to Performance along with FDT Tech Services and both groups will investigate
Criteria. the dumps.
Participate in department education practices and provide Interest Protsym maintenance, if any.
workshops on materials and information obtained. (In-house, Use supplied monitoring tools to report on and analyze applications
IBM external and vendor supplied). All TEAM 35 Software.
Evaluate new products. Recovery/synchronization of all on-line application data sets at DR
Apply maintenance to all vendor products as per software Advantis: assignment of valid LU names that follow auto-install
support list(exceptions/additions to all support are listed). standards.
Run traces for troubleshooting application problems. Adhere to established change control methodologies for applications
Data set contents (dumps) cleanup/copy. changes (INFO/MAN and Develop Calendar).
Create and maintain documentation within the CICS team.
Create documentation to educate the technical services staff.
Create documentation within INFO management for problem
understanding and future tracking.
Maintain accurate software inventory listing.
Maintain software at vendor's supported releases.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 5
DASD
--------------------------------------------------------------------------------------
FDT CSG
--------------------------------------------------------------------------------------
DASD Capacity Planning DASD Capacity Planning:
------------------------ -----------------------
1. Review the forecast provided by CSG and 1. Project quarterly DASD
determine hardware requirements. requirement forecasts
a. Analyze current DASD availability. with changes and refinements
b. If necessary, outline increased DASD noted.
to be purchased. a. Develop requirements for new
c. Develop a proposal and distribute to CSG and existing projects and special
and conduct a formal review. projects.
2 Execute the approved proposal. 2. Distribute forecast to FDT and
a. Order and install DASD. conduct formal review.
b. Initialize and configure DASD. 3. Review the proposal provided by
FDT and obtain the appropriate approvals.
---------------------------------------------------------------------------------------------
File Monitoring/Maintenance: File Monitoring/Maintenance:
---------------------------- -----------------------------
1. Monitor GDG bases and sequential
1. Provide reporting to assist CSG files for allocation, sizing, and
with file maintenance and attributes to enhance performance and
monitoring. Review and discuss with prevent problems. Initiate review
CSG changes necessary to enhance with FDT to discuss recommended
performance or alleviate problems changes and determine implementation
and implement decided plan for plan.
change. 2. Provide change control or form to
2. Allocate production VSAM ,BDAM FDT with necessary specifications for
files as requested by CSG, determine production VSAM and BDAM files.
sizing and placement from attributes 3. Allocate and size production gdg
in request. bases and sequential files.
3. Implement and maintain software 4. Implement and maintain daily
that manages DASD at the dataset and cleanup jobs on work and GDG
pool level. Review with CSG changes volumes.
necessary for problem resolution,
enhancements or growth and implement
decided plan for change.
4. Monitor all critical production
batch and online files for extents
daily and make changes to alleviate
any space problems .
--------------------------------------------------------------------------------------
Monitor DASD Usage: Monitor DASD Usage:
------------------- -------------------
1. Review suggestions with FDT to
1. Review DASD pools for performance determine final resolution to
and sizing, discuss suggested necessary changes.
changes with CSG and implement 2. Review and Monitor BDAM files.
decided plan for change.
2. Research and recommend software
packages
to assist in monitoring and
reporting
--------------------------------------------------------------------------------------
Production Support: Production Support:
------------------- -------------------
1. Provide first level support for
1. Provide first level oncall applications issues.
support for DASD and storage 2. Review suggestions with FDT to
software issues. determine final resolution to
2. Perform weekly library necessary changes.
compression and defrag routines, 3. CMA spool, BUNDL(RMS)
determining the applicable administration.
candidates.
3. Provide support on restore/recall
problems
--------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 6
DATABASE MANAGEMENT
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Install database software and all related products. Responsible for application software implementation.
Resolve database system software problems. Provide input for system problem resolution.
Maintain database system software and related products. Develop and maintain application data backup and recovery
Develop and maintain system backup and recovery procedures. procedures.
Assist as needed with application recovery. Perform application recovery.
Perform database system environment recovery. Application level performance and tuning.
Database system level performance and tuning. Provide projections of application growth.
Database capacity planning. Prepare and maintain production control documentation and
Prepare and maintain operations procedures. procedures.
Create new DBMS subsystems as required. Develop and maintain application software migration policies
Develop and implement System Software migration policies and procedures.
and procedures. Develop and maintain application naming standards.
Develop and maintain system level naming standards. Assist in software evaluations and testing.
Evaluate and test database related software. Assist in design and implementation of security.
Design and implement database security. Provide support for application specific compile, execute
Provide consultation services for any applications issues and utility procedures in conjunction with Quality Services.
as needed. Adhere to established change control methodologies for applications
Provide support for all database platforms and their changes (INFO/MAN and Develop Calendar).
interfaces.
Provide support for standard compile, execute and utility
procedures.
Maintain accurate software inventory listing.
Maintain software at vendor's supported releases.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 7
CSG DB2 DATABASE MANAGEMENT
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Migrate DB2 subsystem and objects to new release. Project DBA grants appropriate authority to applications
Support standard attach facility and other subsystem programmers.
interfaces. Assumes all logical data modeling efforts.
Define storage groups to subsystems. Provide notice of any implementation that may impact DASD
Grant authority to access storage groups and buffer subsystem.
pools. Monitor DB2 application DASD and take appropriate action to
Grant system level security for appropriate databases. ensure data integrity and performance optimization.
Define physical design review requirements. Adhere to established change control methodologies for
Monitor and adjust buffer pools and EDM pool and other applications changes (INFO/MAN and Develop Calendar).
subsystem components.
Monitor and maintain DB2's log and bootstrap datasets.
Perform performance and audit tracing when necessary.
Monitor DB2 System DASD and take appropriate action to
help ensure data and performance optimization.
Maintain QMF userids.
Maintain all OEM database objects.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 8
DATA NETWORK SERVICES
------------------------------------------------------------------------------------------------------------------------------------
FDT DENVER CSG
------------------------------------------------------------------------------------------------------------------------------------
Place orders with telephone companies for data circuits Submit telecommunications service requests for all new
as required. installations, changes, deletions or information regarding
Maintain network availability for all client data data network services and price quotes.
connections. Place orders with telephone companies for data circuits
Provide monthly dial back up line testing for all as required.
circuits having these features. Provide internal local security and access to installed
Perform monthly data line billing review and audits. data communications equipment in specified secured areas.
Approval of all data line invoices. Install dial back up analog lines at remote customer
Order, test and install all data communications hardware locations when required.
associated with client orders. Purchase hardware such as modems and csu/dsu's when
Administration and monitoring of all network management not provided by FDT.
systems for clients. This includes Racal NMS400 system Physically replace failed modems and communications
used in the network control center. equipment at remote sites which are CSG owned
Provide 24X7 NCC second level support for all clients. Provide third level support for all clients.
Maintain complete inventory tracking and record keeping Assist FDT personnel as needed in the local troubleshooting
for all network hardware and systems. CSG provided communications equipment. i.e. modems,
Perform all required disaster recovery testing for each sharing devices.
client as directed. Arrange for any internal wiring or connectivity as
Enter appropriate change control records. required from telecommunications demarc to DTE equipment
Review/approve change control records. at client sites.
Develop and distribute all problem report and network Enter appropriate change control records.
performance information used to produce client Third level support for protocol converter troubles and
Performance Criteria statistics. configurations as required.
Joint responsibility with network software group for Support new client installations and/or upgrades to
circuit loading and network capacity planning. existing configurations.
Represent Telecommunications in all scheduled and required Manage Racal (VSAT) and Advantis account relationships
client performance/status meetings. and review monthly Performance Criteria.
Vendor management of data network service providers which
terminate at Millennium.
Telephone company service escalation's at all levels.
Provide client quotes for pricing of new data lines
and/or other network services.
Create back up diskettes for CSG sub-client 3174/3274
controllers when requested.
Second level support for protocol converter troubles and
configurations as required.
------------------------------------------------------------------------------------------------------------------------------------
EXAMPLE OF DATA NETWORK SERVICES ADDITIONAL SERVICES
Service provided by NCC staff or Telecomm Analyst II which requires dispatch to
customer locations.
This includes working open problem tickets and\or supporting new installations.
SCHEDULE 2.9 -- PAGE 9
DISASTER RECOVERY
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Develop and maintain DR plans for initial response Supply hotsite testing requirements in the form of
and recovery of the Data Center including, Disaster goals and objectives
Recovery Management Team, Hotsite Recovery Team, Document and maintain the application recovery plan
Telecom Team, Client Services Team, Quality Services for the product
Team, Administration Team Participate in the hotsite recovery testing by
Maintain Hotsite contract and administer costs to supporting the applications and their clients
business unit To backup and send offsite, CSG Application Data
Ensure all business units have appropriate hardware Recover application data for testing and in the event
to receive their application or if such hardware is of a disaster (which includes the forward recovery of
not required, have such business units acknowledge CICS and DB2)
such non-requirements. If there is any additional data that CSG wants FDT to
Coordinate and plan hotsite DR tests for CSG. be responsible for backing up and recovering for disaster
Document the hotsite test plans, post mortem and track recovery, CSG shall submit these requirements in writing
problem/resolution to FDT, and FDT must agree in writing to the additional
Assist business units where possible with their requirements.
planning efforts Develop, maintain and test its business recovery plans
Assist if requested, in business units' business
recovery planning efforts
Ensure offsite storage audits are performed quarterly
Assist business units in their implementation of the data
set tracking tool "Sunrise"
Recover CSG's production environment including the
database data but not the production application data for
hotsite testing
Develop and maintain technical recovery plans: Technical
support (MVS), Data Base Support (CICS, DB2), Software
Telecommunications, Hardware Telecommunications, Operations
support, Quality Services
To recover the system, the following areas shall have the
following responsibilities:
MVS: recover the operating system with the appropriate
software
DASD: provide full volume backups of System, and CSG
Applications Software volumes for CSG. Also maintain the
VSAM allocation process. At time of disaster or testing,
restore the system volumes, CSG Application Software
volumes and execute the VSAM allocation process
x CICS: recover the CICS software
x DB2: recover the DB2 subsystem and QMF system software
x Software/Hardware Telecom: recover the subscribed to
telecom network
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SCHEDULE 2.9 -- PAGE 10
HARDWARE AND FACILITIES
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Coordinate the installation and/or upgrade of the Determine hardware requirements and submit a formal
requested FDT Data Center hardware with the vendor request to FDT quarterly.
and all business units serviced by the FDT Data All requests for hardware and/or facility changes
Center. require 60 days prior written notice to FDT.
Coordinate the installation and/or upgrade of the
FDT Data Center hardware microcode, to current and
supported levels.
Evaluate vendor hardware related to the operations
of the FDT Data Center and the business unit needs.
Maintain a current floor plan of the FDT Data Center.
Maintain configuration documentation related to the
hardware installed in the FDT Data Center.
Manage and maintain the power plant which support the
FDT Data Center and will provide a configuration to
support the continuous 24x7x365 operation of the FDT
Data Center businesses.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 11
HELP DESK*UNTIL 4/1/97*
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
- Main point of contact for CSG internal and external - Main point of contact for all CSG external customer
customer calls regarding online software, system calls and questions regarding application data entry
software and network related issues for CSC, SMS, TVRO, problems between the hours of 7:00 am - 9:00 pm, Mondays
VIP and ACSR products. through Fridays and 7:00 am - 2:00 pm, Saturdays.
- Responsible for resolving first level data - Responsible for coordinating and resolving new
communications, hardware and software related issues. installation issues.
- Responsible for performing hardware dispatch and follow-up. - Responsible for providing to FDT up date client
- Responsible for coordinating FDT Data Center resources hardware configuration and client location/contact
to resolve second level and higher online software, system information.
software and network related issues. - Responsible for providing to FDT an up to date listing
- Responsible for notifying CSG resources and assisting as of sensitive accounts.
required/requested to resolve second level application - Responsible for coordinating and resolving second level
software, Addressability, ACSR and new customer and higher application software, addressability, and new
installation related issues. customer installation related issues.
- Responsible for providing critical situation
notifications to CSG management. Notifications to be
performed on a 7x24 basis.
- Responsible for providing 30 minutes status notifications
throughout the life of all critical situations (life of
problem means the time the CSC is aware of a critical
problem until the impact to client has ceased). This
notification is performed on a 7x24 basis.
- Responsible for providing sensitive account problem
notifications to CSG management.
- Responsible for providing monthly ACD statistical reports
showing daily calls offered, calls answered and average
speed of answer.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 12
MEDIA SERVICES
-----------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Responsible for the creation of microfiche and Responsible for providing update/current distribution
distributing the same to the customer. list for all microfiche and special tape mailings 14
Responsible for mailing out all customer CAD440 days prior to implementation
selects. (Tape, diskettes and cartridges) Main point of contact for all CSG external customer
Responsible for all media conversion (Tape to calls and questions regarding inquiries/problems with
diskette) distributed microfiche, conversion, and tapes.
Responsible for processing/distributing special tape Responsible for coordinating and implementing all
requests. customer conversions.
Responsible for labeling and entering into Roscoe
all conversion tapes received from the customer.
Responsible for providing monthly Customer Media
statistical reports showing volumes processed,
distributed and accuracy.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 13
MVS SYSTEMS SOFTWARE
-----------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Install, maintain, customize and support all Request product trials.
mainframe operating systems and associated program Assist in testing of new releases and upgrades of all
products. software.
Perform diagnostic and consulting services to the Support administration of third party software as agreed.
business units. Adhere to established change control methodologies for
Provide product documentation for the FDT Data Center applications changes (INFO/MAN and Develop Calendar).
on operational aspects of installed products.
Investigate and recommend new system software.
Maintain accurate software inventory listing.
Maintain software at vendor's supported releases.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 14
NETWORK SOFTWARE
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Maintain high network availability/stability. Determine Network software requirements and submit formal
Perform Network customization, monitoring and tuning. requests to FDT staff.
Install, customize and maintain network and network Test and evaluate software and network installations to
related software products. insure requirements are satisfied.
Problem determination and resolution of network and Participate with FDT staff in monitoring network resources.
network related software product issues. Use supplied monitoring tools to report on and analyze
Install, customize and maintain transmission software network resources.
products. Provide feedback to assist in customization and tuning
Problem determination and resolution of transmission efforts.
software product issues. Interface with and provide first level troubleshooting for
Assist client with client and sub-client transmission sub clients.
software/hardware installation and support issues. Assist sub clients with transmission software selection,
Assist in installation and support of network hardware installation and support.
components (including 3172, SPC and Netlink solutions). Primary interface with Advantis on network definitions,
Maintain accurate software inventory listing. problem determination and resolution.
Perform Network disaster recovery planning and support. Primary support for client connections to SP2.
Design and implement network direction/workload analysis. Adhere to established INFO management procedures for
Provide consulting services for software product problem notification and tracking of network, transmission
acquisition and evaluation. and related issues.
Provide consulting services for network planning and Adhere to established INFO management change control
design. procedures in addition to the development calendar for
Participate in the monitoring, tuning, capacity planning network, transmission and related change implementations.
and problem determination/resolution issues with external
connected networks and VAN providers.
Provide debugging and problem resolution assistance for
client representatives when requested.
Assist with network connectivity and access issues.
Run traces to assist in troubleshooting network and
application issues.
Research exceptions to Performance Criteria.
Create and maintain network documentation to assist the
technical services and support staffs in troubleshooting
and providing client service.
Participate in interdepartmental education and provide
seminars on monitoring and first level debugging procedures.
Provide available network performance and availability
reports as requested.
Participate in INFO management procedures to assist in
problem tracking and documentation.
Participate in INFO management procedures to assist in
change control tracking and documentation.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 15
STANDARDS
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Standards Standards
Co-maintain data processing standards by: Co-maintain data processing standards by:
Submitting additions, changes and deletes through Submitting additions, changes and deletes through
established FDT procedures. established FDT procedures.
Preparing and distributing an agenda for the monthly Attend monthly Standards meetings support any proposals
Standards Committee meeting, consisting of all submitted to the committee
proposals received by Quality Services by the monthly
cutoff date.
Chair the Standards Committee meeting.
Quality Services will publish, either in hardcopy
format or online format, using the BookManager product,
updates approved by the Standards Committee.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 16
CHANGE MANAGEMENT
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Provide Standard INFOMAN Support. Submit all request for services through INFOMAN for
Provide Standard Reports to support scheduled meetings. all FDT Data Center Activities, including:
All changes are opened on FDT's INFOMAN System. System Software
Hardware
Network Request
Operations Requests
Security
Storage Management
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 17
INFOMAN STANDARD SUPPORT PROCESSES
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Administrative Functions
Set up userid by specific privilege classes within
business unit controls.
Store employee data for interested party access.
Problem Tracking
Collection of production identified job abend data.
Log problems regarding end users that appear to be
caused by FDT support groups:
Systems area
Security
Operations
INFOMAN
DASD management
Capacity management
performance management
Change Tracking
Allow logging of request for service from each business
unit to support areas of FDT:
Systems area
CICS
Security
Operations
INFOMAN
DASD management
Capacity management
Performance management
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 18
MAINFRAME CONSOLE OPERATIONS
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Monitor system tasks Maintain list of unique business unit system tasks to
Monitor system performance be monitored
Monitor and adjust cycle progress based upon key Maintain list of key indicator jobs and latest completion
indicator jobs defined by CSG time without impacting Performance Criteria
Notify FDT management and primary business unit Maintain list of contacts and phone numbers
contact of problems impacting Performance Criteria and Maintain Performance Criteria and key indicator expectations
key indicator jobs via account manager
Monitor system hardware Maintain escalation and notification procedures
Monitor computer room environmentals Maintain job restart documentation and procedures
Track and act upon approved changes assigned to Provide operations with cycle run instructions
operations including IPL's Perform all CA7 scheduling functions for application related
Process approved special requests jobs
Perform system level control functions as required
Process batch cycle as defined in CA-7 and notify cycle
support of discrepancies/problems identified in the
process
Provide 24x7 console coverage
Monitor CAD1 transmissions during off hours
Perform off hour job restarts based on CSG provided
documentation or verbal instructions from cycle support
groups
Perform CA7 scheduling for non-application related jobs
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 19
PERFORMANCE
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
PERFORMANCE
Provide standard reports that identify changes in Complete application design and maintenance.
workloads. Identify application tuning opportunities.
Monitor reports to ensure Performance Criteria and Implement application tuning changes.
key indicators are met, and recognize workload variances. Identify business elements for Performance Criteria
Identify application/systems tuning opportunities. and key indicators
Provide manpower for systems tuning when Performance Provide manpower for application tuning when Performance
Criteria and key indicators are not being met. Criteria and key indicators are not being met.
Adhere to established change control methodologies for
applications changes (INFO/MAN and Develop Calendar).
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 20
PROBLEM MANAGEMENT
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
All problems are opened on FDT's Infoman system by All problems are opened on FDT's Infoman system by FDT
FDT or CSG personnel. or CSG personnel.
------------------------------------------------------------------------------------------------------------------------------------
FDT will respond to, update and resolve any records CSG will respond to, update and resolve any records
assigned to FDT Data Center departments. assigned to CSG departments.
------------------------------------------------------------------------------------------------------------------------------------
Performance Criteria exceptions: FDT will compile CSG will ensure that any Performance Criteria records
exception information for Performance Criteria records. assigned to them will contain accurate resolution and
FDT and CSG will negotiate accountability if necessary. duration information.
------------------------------------------------------------------------------------------------------------------------------------
FDT will provide scheduled and adhoc reporting from CSG will have access to the FDT Infoman database for
data on the FDT Infoman database. data retrieval, reporting, etc.
------------------------------------------------------------------------------------------------------------------------------------
FDT Problem Management Department will provide the CSG will provide problem summary information whenever the
account manager with problem detail information from recipient is a CSG client.
the Infoman database. The account manager will provide
CSG with any requested summaries, memos, post-mortems, etc.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 21
PRODUCTION SCHEDULING
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Maintain and follow problem flow via INFOMAN and Add, delete and update jobs in CA-7 scheduler.
escalate per problem escalation procedures. Add, delete and update all scheduling parameters with the
Schedule and implement production change, including exception of the security macro.
new business acquisitions. Create change record in INFOMAN to request adds/deletes
Support operations in maintaining and verifying to security macro
production processing. Provide restart services for Cable processing.
Support operations/tape library in maintaining TMS
batch processing.
Document departmental procedures
Maintain CA-7 automated scheduler jobs and parameters
for system level and operations processing.
Provide abend restart functions where requested.
Document and escalate processing problems according to
escalation procedures.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 22
DATA SECURITY
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Upgrade or install fixes to the TOP SECRET software. (*) Maintain internal security of other products:
Maintain TOP SECRET databases. RMS/ESF (BUNDLE).
Install/maintain external security interfaces between TOP SECRET for RMS/ESF (clients only): create, modify,
TOP SECRET and other software. delete.
Maintain internal security for other software, such as: Respond to audits with respect CSG responsibilities.
CA7 (*) Reset passwords and/or resume userids for CSG clients
NETVIEW (*) and personnel on TOP SECRET.
DB2 (*) Administer all Team 35 Software security
INFOMAN (*)
ROSCOE
QMF (*)
VMANCSG
NETSPY
NDM
TSO.
Reset passwords, suspend or resume userids for FDT
personnel.
Maintain TOP SECRET userids: create, modify, delete.
Reset passwords and/or resume userids for CSG clients
and personnel on TOP SECRET
Maintain CSG client and personnel on TOP SECRET.
Maintain DSN/RESOURCE access rules under TOP SECRET
Delete datasets/aliases when user id are deleted.
SDSF system access
Interface with CSG data security administrator.
Respond to audits with respect to FDT responsibilities.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 23
TAPE OPERATIONS
------------------------------------------------------------------------------------------------------------------------------------
FDT CSG
------------------------------------------------------------------------------------------------------------------------------------
Monitor all external tape drives for mount activity. Maintain master document of what application files are
Setup, maintain and support tape vault patterns offsite sent offsite.
disaster recovery activities. Provide written documentation when requesting offsite
Pull all offsite backup tapes from offsite storage disaster recovery tape vaulting.
Refile all returning backup tapes from offsite storage. Maintain a master list of retention periods for all
Refile tapes manually loaded (round reel and cartridge). tapes created using RDS (Retention DataSet).
Refile all tapes ejected from the tape silo's throughout Provide written documentation when requesting changes to
the day. RDS file.
Enter scratch tapes, cleaning cartridges and requested input Use tape file stacking whenever possible.
tapes into the tape silo's Minimize tape drive allocation during job processing.
Initialize new tapes both round reel and cartridge (inhouse Migrate small datasets to disk whenever possible.
and oneway tapes).
Clean and/or replace broken or damaged tapes with I/O errors
for inhouse and microfiche.
Retrieve and deliver all microfiche and Media Support tape
requests for CSG.
Publish monthly reports for tape utilization both automated
and manual.
Monitor, clean and resolve tape drive and silo problems.
Provide 24 x 7 tape coverage for CSG.
Analyze daily tape operations for possible improvements.
Perform updates to TMS (ie. extend and/or expire tapes).
Resolve problem tickets involving tape library and tape
operations.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.9 -- PAGE 24
SCHEDULE 2.10
CSG BATCH JOB TARGETS
---------------------
See attached listing. All times listed are Mountain Time.
SCHEDULE 2.10-PAGE 1
With the installation of the proposed Timberline hardware, CSG critical path
processing should be completed an average of two (2) hours earlier than the
completion time as of the Effective Date, provided that (a) at least thirty two
--------
(32) Timberline transports and eight (8) ESCON channels are available for CSG
processing so as to avoid allocation delays, (b) the job mix and job scheduling
parameters as of the Effective Date are not significantly altered (e.g., no
changes in CPU resources, etc.), and (c) transaction workload levels do not
increase more than ten percent (10%) above activity levels as of the Effective
Date. Critical path completion time means the end time of CAD0350, which as of
the Effective Date, completes at approximately 05:00.
--------------------------------------------------------------------------------
DEFINITION TARGET
--------------------------------------------------------------------------------
1. Online System Updated: CAD0139 Completed by 04:30.
CCS
--------------------------------------------------------------------------------
2. Online System Updated: TVD0139 Completed by 04:30.
TVRO
--------------------------------------------------------------------------------
3. Online System Updated: VID0139 Completed by 04:30.
SMS
--------------------------------------------------------------------------------
4. File Availability: CCS This covers the CCS files available 23
availability of hours a day, from 04:30
production files for CCS. to 03:30, 98.2% of the
total month ly hours.
File availability is
measured at the
completion of CAD0139
and will encompass
downtime of CICS and
the operating system.
--------------------------------------------------------------------------------
5. Daily Reports Sequence (CADSEQ11), In the print que by
house and work order 04:30.
(CADHWRK1) and converter
(CADCPMD1) reports
available for prin ting
at customer's location.
--------------------------------------------------------------------------------
6. Workorders CAEWPT2 Completed by 02.00.
--------------------------------------------------------------------------------
7. WPT Transactions CAEWPT1B & CAEWPTIC Completed by 1 1/4
hours after scheduled
beginning time.
Scheduled beginning
time is 05:30, 09:00,
12:00, 14:00, and 17:00
--------------------------------------------------------------------------------
SCHEDULE 2.10-PAGE 2
--------------------------------------------------------------------------------
DEFINITION TARGET
--------------------------------------------------------------------------------
8. Weekly Reports CAW7000 CAW7000 completed by
17:30 on Sunday.
--------------------------------------------------------------------------------
9. Monthly Financial A. CAM7031 A. Completed by 18:00
Reports on the 23rd of the
B. Financial Tapes month.
B. Tapes mailed within
48 hours after tape
creation, 99.9% of the
time.
--------------------------------------------------------------------------------
10. Monthly Statistics Completes the following CAM7062 completed by
Reports statistics reports: 19:00 on the 24th of
CPMM0004, CPRM0006, the month.
CPMM308 and CAM7062.
--------------------------------------------------------------------------------
11. Online Statements -- CAD320 Completed by 05:30.
Information Available
--------------------------------------------------------------------------------
12. Statements Available CAD0330 Completed by 09:00.
to the CSG Production
Facility
--------------------------------------------------------------------------------
13. Daily Vantage Cycle CAEx99 Started by 06:00.
--------------------------------------------------------------------------------
14. weekly Vantage Cycle CAW6443 Completed by 06:00 on
Monday, unless the 21st
is a Friday.
--------------------------------------------------------------------------------
15. Mid-month Vantage CAM7596 Started by 06:00 on
Cycle Monday, following the
first Friday of the
Month.
--------------------------------------------------------------------------------
16. Monthly Vantage Cycle CAM7496 Started by 24:00 on the
CAM7596 24th of the month.
--------------------------------------------------------------------------------
17. Vantage Static Tables CAM7450 Completed by 06:00 on
the 23rd of the
--------------------------------------------------------------------------------
SCHEDULE 2.10-PAGE 3
-------------------------------------------------------------------------------
DEFINITION TARGET
-------------------------------------------------------------------------------
month.
--------------------------------------------------------------------------------
SCHEDULE 2.10-PAGE 4
SCHEDULE 2.13
PERFORMANCE CRITERIA
--------------------
See attached list. All times listed are Mountain Time.
SCHEDULE 2.13 -- PAGE 1
"Confidential Treatment Requested and the
Redacated Material has been separately
filed with the Commission."
FDT has no control or responsibility of how Application Software and Team 35
Software uses the environment. Application Software, Team 35 Software, hardware
at client sites, client provided networks, use of DB2, CICS transactions and
batch scheduling is the responsibility of CSG.
------------------------------------------------------------------------------------------------------------------------------------
PERFORMANCE REPORTED
CATEGORY DEFINITION CRITERIA BY MEASUREMENT
------------------------------------------------------------------------------------------------------------------------------------
1. OPERATING SYSTEM This covers the host The operating system will be Data Center Report daily and
AVAILABILITY computer hardware and available 24 hours a day, (Operations) detail exceptions
systems software. (**)% of the time, excluding monthly.
scheduled downtime.
----------------------------
- MAINTENANCE WINDOW EVERY
WEEKEND (02:30-04:00).
- 2 FDT INITIATED IPL'S PER
MONTH (HARDWARE/SOFTWARE).
- QUARTERLY EXTENDED OUTAGE
(03:00-07:00) 30 DAY NOTIFICATION.
- IPL'S REQUIRED FOR CSG
APPLICATION WILL BE ADDITIONAL.
------------------------------------------------------------------------------------------------------------------------------------
2. CICS AVAILABILITY This covers The online regions will be Data Center Report daily and
availability to all available 24 hours per day, (Operations) detail exceptions
production online (**)% of the time, excluding monthly.
regions. scheduled downtime.
-------------------------------
- CICS REGIONS ARE CYCLED
NIGHTLY WITH BATCH JOB CAD0127.
- A MINIMUM OF 15 MINUTES
WILL BE ASSESSED UPON
ANY UNSCHEDULED REGION CYCLE.
*CSG MUST IDENTIFY
UNSCHEDULED CICS RECYCLE
TIMELINE.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.13 -- PAGE 2
"Confidential Treatment Requested and the Redacated
Material has been separately filed with the Commission."
------------------------------------------------------------------------------------------------------------------------------------
PERFORMANCE REPORTED
CATEGORY DEFINITION CRITERIA BY MEASUREMENT
------------------------------------------------------------------------------------------------------------------------------------
3. HOST RESPONSE Processing time for Average (**) seconds during each Data Center Report and detail
TIME task by the CPU. 15 minute interval (an "Interval") (Capacity exceptions
Measure the host from 06:00 to 18:00 Monday through Planning) monthly.
response time for Saturday, iT being understood that FDT
production CICS shall be permitted (**) Intervals per
regions. Excluding calendar month to exceed this Performance
DB2. Criteria, calculated as follows:
-(**) or more Intervals exceeding an
average of(**) seconds shall be deemed to
be 1 violation of this Performance Criteria,
provided that each such Interval violation
exceeding an average of (**) seconds relates to
the same issue.
- if an issue arises that causes an Interval
to exceed an average of (**) seconds, and FDT
creates a remedy for such issue, CSG and FDT
shall confer promptly regar-ding the
implementation of such remedy. If CSG does
not permit FDT to implement the remedy, any
subsequent Interval that exceeds an average of
(**) seconds as a result of FDT not being
permitted to implement such remedy shall not be
deemed to be a violation of this Performance
Criteria.
- If one or more Intervals fails to meet this
Perfor xxxxx Criteria due to the way in
which CSG conducts its business, such failures
shall not be deemed to be a violatiON of this
Performance Criteria.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.13 -- PAGE 3
"Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission."
------------------------------------------------------------------------------------------------------------------------------------
PERFORMANCE REPORTED
CATEGORY DEFINITION CRITERIA BY MEASUREMENT
------------------------------------------------------------------------------------------------------------------------------------
4. USER RESPONSE Measure the user (**) seconds for 95th percentile. Data Center Report and detail
TIME FOR DIRECT CONNECT response time (host + (Capacity exceptions monthly.
CLIENTS network) for clients Planning)
directly attached to
the FDT host.
------------------------------------------------------------------------------------------------------------------------------------
5. NETWORK UPTIME Measure the network (**)% availability, excluding Data Center Report and detail
BY CONTROLLER FOR DIRECT availability which scheduled downtime. (Network) exceptions monthly.
CONNECT includes front end
CLIENTS processors, modems
and data circuits
for all controllers
directly connected
to the FDT host.
------------------------------------------------------------------------------------------------------------------------------------
6. CALL The percentage number The average call abandonment Data Center Report and detail
ABANDONMENT of calls that are rate not to exceed (**)%. Based (CSC) exceptions monthly.
RATE abandoned before they are on (**) calls offered per month.
*Until 4/01/97* answered by the Customer
Support Center.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.13 -- PAGE 4
------------------------------------------------------------------------------------------------------------------------------------
PERFORMANCE REPORTED
CATEGORY DEFINITION CRITERIA BY MEASUREMENT
------------------------------------------------------------------------------------------------------------------------------------
7. MEDIA SERVICES Measure the turnaround (**)% of tapes and diskettes Data Center Report and detail
TAPE/DISKETTE TURNAROUND percentage of magnetic will be shipped to client (Media Services) exceptions monthly.
A. SELECTS AND media items that are within 48 hours of receipt by
SPECIALS received by Media Media Services. (**)% of
B. CONVERSIONS Services. conversions will be entered
into the system within 48
hours of receipt by Media
Services. Exception situations
will be handled using
commercially reasonable efforts.
------------------------------------------------------------------------------------------------------------------------------------
8. MEDIA SERVICES Measure the percentage a. Daily Data Center Report and detail
MICROFICHE TURNAROUND of microfiche items (**)% of daily microfiche mailed (Media Services) exceptions monthly.
A. DAILY shipped to clients within 48 hours of tape receipt
B. WEEKLY by Media Services.
C. MONTHLY b. Weekly
(**)% of weekly microfiche mailed
within 72 hours of tape receipt
by Media Services.
c. Monthly
(**)% of monthly microfiche mailed
within 14 days of tape receipt
by Media Services.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.13 -- PAGE 5
SCHEDULE 2.16.1
ADDITIONAL CSG OBLIGATIONS
--------------------------
1. Applications Software; Team 35 Software. CSG will have
---------------------------------------
responsibility for the integrity and performance of the Applications Software
and the Team 35 Software and will cause the same to be maintained in accordance
with the provisions of the Services Agreement, including any special provisions
in the Operations Procedures.
2. Trained Personnel. CSG will provide appropriate training
-----------------
for all new CSG employees on Software then in use by or on behalf of CSG. CSG
will notify FDT promptly of any changes in authorized users of the Software to
be operated by FDT.
3. Compatible Operating Environment. If CSG obtains any
--------------------------------
services from a third party relating to the FDT Services, any Software provided
by such third party that will be operated by FDT must conform to, and be
compatible with, the then current operating environ ment in the FDT Data Center
and must meet any applicable operating standards relating to the FDT Services.
In addition, CSG shall ensure that any third party-provided services or Software
will not interfere with FDT's ability to provide the FDT Services hereunder or
increase FDT's costs associated therewith.
4. Resource Requirements. It will be CSG's responsibility to
---------------------
track its pro duction and resource requirements and to request any Additional
Services required beyond the existing FDT Services, allowing a reasonable time
under the circumstances for FDT to provide such Additional Services in
accordance with the Operations Procedures.
SCHEDULE 2.16.1 -- PAGE 1
SCHEDULE 5.6
TEAM 35 SOFTWARE LICENSE AGREEMENT
----------------------------------
See attached.
SCHEDULE 5.6--PAGE 1
A G R E E M E N T
-----------------
THIS AGREEMENT (the "License Agreement") is entered into as of
December 31, 1996, by and between First Data Technologies, Inc., a Delaware
corporation ("FDT"), and CSG Systems, Inc. (formerly known as Cable Services
Group, Inc.), a Delaware corporation ("CSG").
WHEREAS, FDT and CSG are parties to a certain Amended and Restated
Services Agreement dated as of December 31, 1996 (the "Services Agreement"),
pursuant to which FDT provides, inter alia, data processing services to CSG; and
----- ----
WHEREAS, pursuant to the Services Agreement, the Parties (as hereafter
defined) agreed to enter into this License Agreement relating to the use by CSG
of the Team 35 Software (as hereafter defined).
NOW THEREFORE, in consideration of the premises and mutual covenants,
representations, conditions and agreements hereafter expressed, the Parties (as
hereafter defined) hereto agree as follows:
1. Definitions. As used in this License Agreement, the
-----------
following terms shall have the meanings set forth herein, and shall be equally
applicable to the singular and plural forms. Any agreement referred to herein
shall mean such agreement as amended, supplemented and modified from time to
time to the extent permitted by the applicable provisions thereof.
"Affiliate" means an Entity which, directly or indirectly, owns or
controls, is owned or is controlled by or is under common ownership or control
with another Entity. As used herein, "control" means the power to direct the
management affairs of an Entity, and "ownership" means the beneficial ownership
of the voting equity securities or other equivalent voting interests of the
Entity.
"License Agreement" shall have the meaning set forth in the first
paragraph hereof.
"Business" shall have the meaning set forth in that certain Stock
Purchase Agree ment dated as of October 26, 1994 between CSG Holdings, Inc. and
First Data Resources, Inc.
"Confidential Information" shall have the meaning set forth in
Section 5(a).
------------
"CSG" shall have the meaning set forth in the first paragraph of
this License Agreement.
"Dispute" shall mean any and all disputes, controversies and claims
between the
SCHEDULE 5.6--PAGE 2
Parties arising from or in connection with this License Agreement or
the relationship of the Parties under this License Agreement whether based on
contract, tort, common law, equity, statute, regulation, order or otherwise.
"Effective Date" shall mean January 1, 1997.
"Entity" shall mean any individual, corporation, limited liability
company, partnership, joint venture, or other form of organization or
governmental agency or authority.
"FDT" shall have the meaning set forth in the first paragraph of
this License Agreement.
"FDR" shall mean First Data Resources, Inc.
"Party" shall mean a party to this License Agreement and its
permitted successors and assigns.
"Services Agreement" shall have the meaning set forth in the
first recital to this License Agreement.
"Team 35 Software" shall mean the software commonly known as "Team
35," together with any documentation (if any) relating thereto as described on
Exhibit A attached hereto and incorporated herein, together with all updates,
---------
modifications or enhancements thereto created or developed by FDR in its
ordinary course of business during the term of the Services Agreement, it being
understood that FDR may not create or develop any updates, modifications or
enhancements, and therefore, FDT may be unable to provide the same to CSG.
2. License Grant.
-------------
(a) FDT hereby grants to CSG a perpetual, nontransferable,
nonexclusive, royalty-free license to:
(i) access the Team 35 Software pursuant to the on-line facility
used by CSG pursuant to the Services Agreement and modify the same for use
solely in connection with the Business; and
(ii) sublicense the Team 35 Software to any Entity providing service
bureau data processing services on behalf of CSG solely for the data
processing requirements of CSG relating to that portion of the Business of
CSG located outside of the United States, provided that (A) such Entity
--------
performs such services using computer systems located outside of the United
States, (B) such computer systems are owned or operated by such Entity, (C)
such Entity is reasonably acceptable to FDT, it being understood that
Xxxxxx Xxxxxxxx LLP, EDS and IBM shall be acceptable to FDT, and (D) such
Entity and CSG execute a written sublicense agreement reasonably
satisfactory to FDT
SCHEDULE 5.6--PAGE 3
relating to such Entity's limited use and nondisclosure of the Team 35
Software.
(b) Upon the expiration or termination of the Services Agreement for
any reason, the Parties shall execute an amendment to this License
Agreement pursuant to which the license granted in Section 2(a)(i) shall be
---------------
amended to read in its entirety as follows: "copy, modify and use the Team
35 Software solely in connection with the Busi ness, provided that such
copying, modification and use occurs only on computer systems that are
owned or operated by CSG, or on computer systems that are owned or operated
by an Entity providing data processing services to CSG, so long as (A) such
Entity per forms such services using computer systems located in the United
States, (B) such Entity is reasonably acceptable to FDT, it being
understood that Xxxxxx Xxxxxxxx LLP, EDS and IBM shall be acceptable to
FDT, and (C) such Entity and CSG execute a written sublicense agreement
reasonably satisfactory to FDT relating to such Entity's limited use and
nondisclosure of the Team 35 Software".
(c) All right, title and interest in and to the Team 35 Software,
other than those rights expressly granted herein, shall remain in FDT. In
no event may CSG use the Team 35 Software (or any modifications thereto)
other than in connection with the Business.
3. Delivery of Team 35 Software. The Parties shall cooperate to
----------------------------
specify the form, format, timing and cost of any delivery of the Team 35
Software to CSG or to any Entity identi fied in Section 2(a)(ii), if the same is
----------------
required pursuant to this License Agreement, it being understood that FDT shall
provide any updates, modifications or enhancements provided by FDR to FDT within
ninety (90) days of FDR's implementation of the same into production. FDT's
delivery obligations set forth in this Section 3 shall terminate upon the
---------
expiration or termination of the Services Agreement.
4. Ownership (and Distribution) of Modifications Developed by CSG.
--------------------------------------------------------------
As between CSG and FDT, the parties acknowledge and agree that FDT shall own all
right, title and interest in and to the Team 35 Software. Subject to FDT's
ownership rights in the Team 35 Software, as between FDT and CSG, CSG shall own
all right, title and interest in and to all modifications it creates to the Team
35 Software. CSG covenants and agrees that it shall use such modifications
solely in connection with the Team 35 Software and only in connection with the
Business. CSG covenants and agrees that CSG shall maintain the confidentiality
of such modifications in the same manner as it treats the Team 35 Software.
5. Confidentiality.
---------------
(a) Information exchanged between FDT and CSG or otherwise made
available by one Party to the other in connection with this License
Agreement before or after the date hereof shall be considered a trade
secret or confidential or proprietary information ("Confidential
Information") if it has been designated as such in this License Agreement
or on the information itself when delivered or made available, or if
SCHEDULE 5.6--PAGE 4
delivered orally, if a written notification of the confidential nature of
the information is sent within a reasonable time after the information is
transmitted. Among other things, Confidential Information shall include
confidential or proprietary information of third parties in the possession
of one of the Parties to this License Agreement and needed to perform
obligations hereunder. Team 35 Software shall in any event be considered
Confidential Information of FDT. Confidential Information not requiring a
marking shall include Team 35 Software and all specifications and
documentation therefor.
(b) Except as expressly authorized by prior written consent of the
disclosing Party, the receiving Party shall:
(i) limit access to any Confidential Information received by it to
its employees, agents, representatives, and consultants who have a
need-to-know in connection with this License Agreement and the
obligations of the Parties hereunder;
(ii) advise its employees, agents and consultants having access to
the Confidential Information of the proprietary nature thereof and of
the obligations set forth in this License Agreement;
(iii) safeguard all Confidential Information received by it using a
reasonable degree of care, but not less than that degree of care used
by the receiving Party in safeguarding its own similar information or
material;
(iv) not disclose any Confidential Information received by it to
third parties; and
(v) use the Confidential Information of the other Party only for
the purposes and in connection with the license granted herein; and
(vi) upon the disclosing Party's request after expiration or
termination of this License Agreement, return promptly to the
disclosing Party all Confidential Information of the disclosing Party
in the receiving Party's possession, and certify in writing to the
disclosing Party its compliance with this subsection (vi).
(c) Exceptions to Confidentiality. Notwithstanding the foregoing
-----------------------------
Section 5(a), the Parties' obligations respecting confidentiality under
------------
Section 5(b) shall not apply to any particular information of a Party that
------------
the other Party can demonstrate (i) was, at the time of disclosure to it,
in the public domain; (ii) after disclosure to it, is published or
otherwise becomes part of the public domain through no fault of the
receiving Party; (iii) was in the possession of the receiving Party at the
time of disclosure to it without being subject to another confidentiality
agreement; (iv) was received after disclosure to it from a third party who
had a lawful right to disclose such information to it; (v) was
independently developed by the receiving Party without
SCHEDULE 5.6--PAGE 5
reference to Confidential Information of the furnishing Party; (vi) was
required to be disclosed to any regulatory body having jurisdiction over
FDT or CSG or any of their respective clients; or (vii) that disclosure is
necessary by reason of legal, accounting or regulatory requirements beyond
the reasonable control of the receiving Party. In the case of any
disclosure pursuant to clauses (vi) and (vii) above, to the extent
practical, the disclosing Party shall give prior notice to the other Party
of the required disclosure and shall use commercially reasonable efforts to
obtain a protective order covering such disclosure. If such a protective
order is obtained, such information shall continue to be deemed to be
Confidential Information.
(d) Except as specifically granted herein, this License Agreement
does not confer any right, license, interest or title in, to or under the
Confidential Information to the receiving Party and no license is hereby
granted to the receiving Party, by estoppel or otherwise under any patent,
trademark, copyright, trade secret or other proprietary right of the
disclosing Party. Title to the Confidential Information shall remain
solely in the disclosing Party.
(e) Each Party acknowledges that if it breaches (or attempts to
breach) its obligations under this Section 5, the other Party will suffer
---------
immediate and irreparable harm, it being acknowledged that legal remedies
are inadequate. Accordingly, if a court of competent jurisdiction should
find that a Party has breached (or attempted to breach) any such
obligations, such Party will not oppose the entry of an appropriate order
compelling performance by such Party and restraining it from any further
breaches (or attempted breaches).
(f) CSG accepts full responsibility for complying with federal, state
and local laws, rules and regulations concerning use of privileged or
confidential third party infor mation derived from input into or output
from the Team 35 Software.
6. Disclaimer of Warranties. THE TEAM 35 SOFTWARE AND THE
------------------------
SERVICES PROVIDED TO CSG HEREUNDER ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT ANY
REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER. CSG ACKNOWLEDGES AND AGREES
THAT NEITHER FDT NOR ANY OF ITS AFFILIATES HAVE MADE ANY EXPRESS WARRANTIES
RELATING TO THE TEAM 35 SOFTWARE OR THE SERVICES PROVIDED TO CSG HEREUNDER. FDT
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO CSG OR ANY OTHER
ENTITY, INCLUDING ANY WARRANTIES REGARDING THE XXXXXXX TABILITY, SUITABILITY,
NONINFRINGEMENT, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM
OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE OF THE TEAM 35
SOFTWARE OR THE SERVICES PROVIDED HEREUNDER.
7. Update, Maintenance and Support of Team 35 Software. FDT
---------------------------------------------------
shall have
SCHEDULE 5.6--PAGE 6
no responsibility to update, maintain or support the Team 35 Software. The
foregoing shall not be deemed to negate the obligations of FDT set forth in
Section 4.
---------
8. Disclaimer of Liability. NOTWITHSTANDING ANY OTHER PROVI-
-----------------------
SION TO THE CONTRARY SET FORTH IN THIS LICENSE AGREEMENT, IN NO EVENT SHALL FDT,
ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR ANY LOST PROFITS, LOSS OF
DATA, EXEMPLARY, PUNITIVE, SPECIAL INCIDEN TAL, DIRECT, INDIRECT OR
CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE
PARTIES REGARDLESS OF WHETHER OR NOT EITHER PARTY OR ANY OTHER SUCH ENTITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THE FOREGOING
--------
EXCLUSION SHALL NOT APPLY TO CONSEQUENTIAL DAMAGES INCURRED BY CSG AS A RESULT
OF THE MISAPPROPRIATION OR MISUSE OF CONFIDENTIAL INFORMATION OF CSG. THE
FOREGOING REPRESENTS AN EXPRESS ALLOCATION OF RISK BETWEEN THE PARTIES.
9. Dispute Resolution.
------------------
(a) Subject to Section 9(b), any and all Disputes shall be resolved
------------
in accordance with Exhibit 9(a) attached hereto and incorporated herein.
------------
(b) Notwithstanding anything to the contrary set forth herein,
neither Party shall be required to submit any dispute or disagreement
regarding the interpretation of any provision of this License Agreement,
the performance by either Party of such Party's obli gations under this
License Agreement or a default hereunder to the mechanisms set forth in
Section 9(a), if such submission would be seeking equitable relief from
------------
irreparable harm.
(c) THE PARTIES CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE STATE OF NEBRASKA AND OF ANY NEBRASKA
STATE COURT SITTING IN OMAHA, NEBRASKA FOR ALL ACTIONS WHICH MAY BE BROUGHT
WITH RESPECT TO THE TERMS OF, AND THE TRANSACTIONS AND RELATIONSHIPS
CONTEMPLATED BY, THIS LICENSE AGREEMENT. THE PARTIES FURTHER CONSENT TO
THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN A DISTRICT WHICH
ENCOMPASSES THE ASSETS OF A PARTY AGAINST WHICH A JUDGMENT HAS BEEN
RENDERED, EITHER THROUGH ARBITRATION OR THROUGH LITIGATION, FOR THE
ENFORCEMENT OF SUCH JUDGMENT AGAINST THE ASSETS OF SUCH PARTY.
SCHEDULE 5.6--PAGE 7
10. Term and Termination.
--------------------
(a) This License Agreement shall be effective as of the Effective
Date. Notwithstanding anything to the contrary set forth herein, this
License Agreement (and the licenses granted herein) shall continue unless
terminated pursuant to Section 10(b).
-------------
(b) This License Agreement (and the licenses granted herein) shall
terminate if CSG breaches any of its material obligations under this
License Agreement which breach is not substantially cured within forty-five
(45) days (ten (10) days for payment defaults) after written notice
specifying the breach is given by FDT to CSG.
(c) Upon termination of this License Agreement for any reason: (i)
the licenses granted to CSG shall immediately terminate and CSG shall cease
use of the Team 35 Software; (ii) CSG shall immediately terminate all
sublicenses (if any) of the Team 35 Software; (iii) CSG shall promptly
comply with the provisions of Section 5(b)(vi) upon the receipt of the
----------------
materials identified in Section 10(c)(iv) and shall also provide FDT with
-----------------
the certifications received from each sublicensee (if any) of the Team 35
Software; (iv) CSG shall promptly require any sublicensees of the Team 35
Software to return all Confidential Information of FDT (and all
modifications (if any) relating to the Team 35 Software) and certify in
writing to CSG of such sublicensee's compliance with this subsection; and
(v) all fees (if any) due FDT hereunder shall be immediately due and
payable.
11. Miscellaneous.
-------------
(a) Notice. All notices, requests, demands and other communications
------
required or permitted under this License Agreement shall be deemed to have
been duly given and made if in writing upon being served either by personal
delivery or by telecopier to the Party for whom it is intended or two
business days after being deposited, postage prepaid, certified or
registered mail, return receipt requested (or such form of mail as may be
substituted therefor by postal authorities), in the United States mail,
bearing the address shown in this Section 12(a) for, or such other address
-------------
as may be designated in writing hereafter by such Party:
If to CSG: CSG Systems, Inc.
0000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
With a copy to: CSG Systems, Inc.
0000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
SCHEDULE 5.6--PAGE 8
If to FDT: First Data Technologies, Inc.
0000 X. Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
Telecopy: (000) 000-0000
With a copy to: First Data Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(b) Entire Agreement. This License Agreement and the Exhibits embody
----------------
the entire agreement and understanding of the Parties hereto with respect
to the subject matter hereof, and supersede all prior and contemporaneous
agreements and understandings relative to said subject matter.
(c) Assignment: Binding Agreement. Either Party may assign this
------------------------------
License Agreement to any Affiliate of such Party upon notice to the other
Party. Either Party may: (i) transfer this License Agreement in
connection with any merger or consolidation of such Party with another
corporation, provided that such Party furnishes the other Party with notice
of such transfer within ten (10) business days of the public announcement
of the same; or (ii) in connection with the sale of substantially all of
the Party's assets (inclu ding the rights of a Party under this License
Agreement), provided that (a) the assignee thereof shall assume all of such
Party's obligations hereunder, and (b) the Party furnishes the other Party
with notice of the public announcement of such assignment and assump tion
within ten (10) business days of the same. Subject to the foregoing, all
provisions contained in this License Agreement shall extend to and be
binding upon the Parties here to and their respective permitted successors
and permitted assigns.
(d) Force Majeure. No Party shall be liable for any default or delay
-------------
in the performance of its obligations (other than payment obligations, if
any) under this License Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i) fire, flood, elements of
nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country; (iii) any act or
omission of the other Party or any governmental authority; (iv) any labor
disputes (whether or not the em ployees' demands are reasonable or within
the Party's power to satisfy); or (v) nonperfor xxxxx by a third party
(including third party vendors) or any other similar cause beyond the
reasonable control of such Party, including failures or fluctuations in
electrical or tele communications equipment or lines or other equipment.
In any such event, the non-per forming Party will be excused from any
further performance or observance of the obliga tion so affected only for
as long as such circumstances prevail and such Party continues to use
commercially reasonable efforts
SCHEDULE 5.6--PAGE 9
to recommence performance or observance as soon as practicable.
(e) Risk of Loss. Except as otherwise provided in this Section
------------ -------
11(e), each Party shall be responsible for risk of loss of, and damage to,
any equipment, software or other materials in its possession or under its
control, subject to Section 11(d). Notwith standing anything in this
-------------
License Agreement to the contrary, each Party to this License Agreement
(the "Damaged Party") hereby waives any and all rights of recovery, claims,
actions or causes of action, against the other Party (the "Other Party"),
its Affiliates, and any of its or their directors, officers, employees,
agents and subcontractors for any loss or damage that may occur to the
Damaged Party's facilities, any improvements thereto, or any building or
project of which the Damaged Party's facilities are a part, or any
improvements thereon, or any personal property of any individual or Entity
therein, by reason of fire, the elements or any other cause that could be
insured against under the terms of standard fire and extended coverage
insurance policies, regardless of cause or origin, including negligence of
the Other Party, its Affiliates, or such Other Party's or its Affiliates'
directors, officers, employees, agents or subcontractors, and both FDT and
CSG covenant that no insurer of one Party will hold any right of
subrogation against the other.
(f) No Third-Party Beneficiaries. Nothing contained in this License
----------------------------
Agreement is intended to confer upon any individual or Entity (other than
the Parties hereto) any rights, benefits or remedies of any kind or
character whatsoever, and no individual or Entity shall be deemed a third-
party beneficiary under or by reason of this License Agreement.
(g) Severability. If any provision of this License Agreement or the
------------
application of any such provision to any individual or Entity, or
circumstance, shall be declared judicially or by the Arbitration Panel (as
defined in Exhibit 9(a)) to be invalid, unenforceable or void, such
------------
decision shall not have the effect of invalidating or voiding the remainder
of this License Agreement, it being the intent and agreement of the Parties
that this License Agreement shall be deemed amended by modifying such
provision to the extent necessary to render it valid, legal and enforceable
while preserving its intent or, if such modification is not possible, by
substituting therefor another provision that is valid, legal and
enforceable so as to materially effectuate the Parties' intent.
(h) Certain Construction Rules. The section headings contained in
--------------------------
this License Agreement are for convenience of reference only and shall in
no way define, limit, extend or describe the scope or intent of any
provisions of this License Agreement. In addition, as used in this License
Agreement, unless otherwise provided to the contrary, any reference to a
"Section" or "Exhibit" shall be deemed to refer to a Section of this
License Agreement or Exhibit attached to this License Agreement. The
recitals set forth on the first page of this License Agreement are
incorporated into the body of the License Agreement. Unless the context
clearly indicates, words used in the
SCHEDULE 5.6--PAGE 10
singular include the plural, words in the plural include the singular and
the word "including" means "including but not limited to".
(i) Counterparts. This License Agreement may be executed
------------
simultaneously in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
(j) No Interpretation Against Drafter. Both Parties have
---------------------------------
participated substan tially in the negotiation and drafting of this License
Agreement and each Party hereby dis claims any defense or assertion in any
litigation or arbitration that any ambiguity herein should be construed
against the draftsman.
(k) Waiver Consent. (i) Except as expressly provided herein, this
--------------
License Agreement may not be changed, amended, terminated, augmented,
rescinded or discharged (other than in accordance with its terms), in whole
or in part, except by a writing executed by the Parties hereto. No waiver
of any of the provisions or conditions of this License Agreement or any of
the rights of a Party hereto shall be effective or binding unless such
waiver shall be in writing and signed by the Party claimed to have given or
consented thereto. Except to the extent that a Party hereto may have
otherwise agreed in writing, no waiver by that Party of any term, condition
or other provision of this License Agreement, or any breach thereof by any
other Party shall be deemed to be a waiver of any other term, condition or
provision or any breach thereof, or any subsequent breach of the same term,
condition or provision by the other Party, nor shall any forbearance by the
first Party or Parties to seek a remedy for any noncompliance or breach by
the other Party be deemed to be a waiver by the first Party of its, his,
her or their rights and remedies with respect to such noncompliance or
breach.
(ii) If either Party requires the consent or approval of the other
Party for the taking of, or omitting to take, any action under this License
Agreement, such consent or approval shall not be unreasonably withheld or
delayed.
(l) Governing Law. This License Agreement shall in all respects be
-------------
construed in accordance with and governed by the laws of the State of New
York, without regard to its conflict of law provisions.
(m) Survival. The provisions of Sections 4, 5, 6, 8, 9, 10 and 11
-------- -------- - - - - - -- --
shall survive the termination of this License Agreement for any reason.
IN WITNESS WHEREOF, each of the Parties hereto has caused this License
Agreement to be executed as of the date first above written.
CSG SYSTEMS, INC. (formerly known as CABLE SER VICES
GROUP, INC.) ("CSG")
SCHEDULE 5.6--PAGE 11
Signed By: /s/ Xxxx X. Xxxxx
-------------------
Xxxx X. Xxxxx
Executive Vice President
FIRST DATA TECHNOLOGIES, INC. ("FDT")
Signed By: /s/ Xxxxxxx X. Xxxx
--------------------
Xxxxxxx X. Xxxx
Print Name: Xxxxxxx X. Xxxx
-------------------
Title: Executive Vice President
------------------------
SCHEDULE 5.6--PAGE 12
