EXHIBIT 10.44
CALL CENTER SERVICES AGREEMENT
BETWEEN MCI WORLDCOM COMMUNICATIONS, INC.
AND RMH TELESERVICES INC.
This Agreement ("Agreement") is entered into as of March 16, 2001
("Effective Date") by and between MCI WORLDCOM Communications, Inc. ("MCI") and
RMH Teleservices, Inc. ("RMH")(referred together herein, as the "Parties" or
separately, as a "Party").
RECITALS
WHEREAS, MCI is a telecommunications company that offers its customers a
wide variety of telecommunications services and products;
WHEREAS, RMH is in the business of providing various sales, marketing and
customer service support services to its clients;
WHEREAS, MCI desires to retain RMH to perform independent contractor
services for MCI's telemarketing, customer service support and related
telemarketing and customer service call center functions and RMH agrees to
provide such services to MCI according to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, MCI and RMH hereby agree as follows:
1. DEFINITIONS. Defined terms shall have the meanings set forth in Schedule A
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(Definitions). Defined terms not appearing in Schedule A shall have the
meaning set forth elsewhere in the Agreement.
2. SERVICE.
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2.1 Services Description. The call center services to be provided
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by RMH under the terms of this Agreement shall consist of (i)
handling and resolving inbound MCI telecommunication-related
customer service inquiries, and "up selling" MCI
telecommunication-related services to MCI Customers ("Customer
Service Call(s) or "Call(s)") whose calls are received and
routed via MCI's network platform to a customer service call
center; (ii) placing outbound telemarketing calls
("Telemarketing Call(s)" or "Call(s)") to MCI residential
consumer leads; and (iii) any other services as mutually agreed
upon by the Parties. These functions will collectively be
referred to as the "Services". The Services shall be offered in
English and Spanish with other languages to be added subject to
the Parties' mutual agreement.
2.2 Performance Standards. The Services provided by RMH shall be in
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accordance with MCI's Policiesand Procedures and the
performance standards used in determining Top Center Ranking
(Schedule B). RMH agrees to comply with all Policies and
Procedures received by it. RMH acknowledges receipt of Policies
and Procedures by delivery to the appropriate RMH Authorized
Individual. Policies and Procedures and performance standards
shall be modified by MCI from time to time at MCI's discretion.
All modifications will be consistent with the Policies and
Procedures and performance standards utilized by MCI for its
Internal Centers.
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2.3 Changes to Services. MCI may request RMH to change the Services
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being performed by RMH under this Agreement through a written
change request ("Change Request"). RMH shall endeavor in good
faith to advise MCI as to the most cost-effective and efficient
means of implementing such Change Request. Upon MCI's approval
of the costs and ramp-up schedule associated with the Change
Request(s), RMH shall implement the Change Request(s) and MCI
shall pay the appropriate charges, if any, in accordance with
the Change Request agreement(s) of the Parties, as confirmed in
a written amendment to this Agreement.
3. RMH'S OBLIGATIONS.
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3.1 Implementation Date. RMH agrees to have all necessary
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preparation measures completed on or before March 26, 2001 or a
later date if agreed upon by the Parties (the "Implementation
Date"), including, but not limited to, its facilities, staffing
and training, necessary to implement the Services.
3.2 Staffing. RMH shall provide all live support necessary to
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perform the Services at the Handle Minute Forecast and Work
Hour Forecast. Upon MCI's reasonable notice to RMH, RMH's
customer service support shall be available to operate eighteen
(18) hours a day, three hundred and sixty-five (365) days a
year. Customer service operations may be expanded to twenty-
four (24) hours a day subject to the Parties' mutual agreement.
RMH shall be capable of providing telemarketing services to MCI
from 8:00 a.m. to 9:00 p.m. local time of Customer called
Monday through Friday and 9:00 a.m. to 5:00 p.m. local time of
Customer called Saturday and Sunday, except as otherwise
restricted by applicable law. RMH shall be solely responsible
for hiring, managing, and compensating all CSRs, TMRs,
Supervisors, HR/Recruiters, and Center Management and
Administrative Personnel necessary to perform the Services. RMH
shall determine, and be solely responsible for meeting the
appropriate level of TMRs and CSRs necessary to provide the
Services at the Handle Minute Forecast and Work Hour Forecast
and in accordance with the performance standards and Policies
and Procedures.
3.2.1 Account Manager. RMH shall assign a RMH employee to be a
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liaison between MCI and RMH, who will (i) submit material
and information requests to MCI; (ii) provide reasonable
access to RMH's staff to answer questions; and (iii)
provide schedules and plans to MCI for MCI's review
and/or approval.
3.2.2 RMH Operations Team. By the Implementation Date, RMH
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shall assign RMH personnel to a vendor operations team to
work with the MCI Operations Team on a regular basis (the
"RMH Operations Team"). Upon the departure of an RMH
Operations Team member for any reason during the term of
this Agreement, RMH shall be responsible for replacing
that individual with another qualified individual within
thirty (30) days of the departure date. The RMH
Operations Team is set out in Schedule F.
3.2.3 Compensation. RMH agrees to pay its employees performing
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the Services pursuant to the compensation grids set out
in Schedule G. If MCI, at its sole discretion, modifies
any of the Tables outlined in the compensation grids set
out in Schedule G, RMH shall have the right to modify
their telemarketing and customer service pricing
structure set out in Schedule C to cover those
modifications.
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3.3 Monitoring. Without prior notice to RMH, MCI shall have the right
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to monitor and record on-site at the RMH Centers and to monitor
and record remotely outside the RMH Centers, to the extent
permitted by law and at MCI's discretion, RMH's CSRs and TMRs
handling Calls and performing Services for MCI. MCI shall share
the results of its monitoring upon request by RMH. RMH agrees
that it will secure from all employees serving as CSRs or TMRs
under this Agreement written consent to be monitored by RMH and
MCI. In addition, RMH will, from time to time, or upon request by
MCI, notify MCI regarding RMH's current written policies
regarding monitoring of its CSRs and TMRs by its own personnel.
3.4 Facilities. RMH shall support the Services at its Houston, TX
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call center facility. RMH shall support additional MCI call
volume at mutually approved RMH call center locations (the "RMH
Centers"). RMH shall be responsible for all costs associated with
any decision RMH initiates to open a new call center or
consolidate or relocate any RMH Center with the exception that
MCI will be responsible for providing MCI Equipment and/or MCI
Software or MCI Proprietary Software. Any new, consolidated or
relocated RMH Center must be approved in advance by MCI.
3.4.1 MCI Facility Space. During the Term of this Agreement, RMH
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agrees to provide MCI offices and cubes adequate to ensure
that MCI can perform its obligations under this Agreement.
Each designated work space should at a minimum include
three working phone lines and five analog lines.
3.4.2 Access. Subject to compliance with RMH's site and security
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regulations, RMH shall provide MCI with unrestricted access
to that portion of the RMH Centers used to perform the
Services. This access shall (i) provide MCI with access to
adequate facilities at each of the RMH Centers to enable
MCI to do on-site monitoring; (ii) provide access to MCI
management; (iii) without prior notice to RMH, permit MCI
to conduct on-site inspections of RMH's Centers' training
sites and related areas if used by RMH to provide Services
for MCI; (iv) permit MCI to perform maintenance and related
work on MCI Equipment, MCI Software and MCI Proprietary
Software, as necessary in MCI's sole judgment, including
during off hours; and (v) upon reasonable advance written
notice to RMH, permit MCI to conduct tours of the RMH
Centers for other MCI personnel, Customers, and other MCI
approved individuals (excluding competitors of RMH).
3.5 Equipment. RMH shall provide, at its own expense, without
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limitation, all Center furnishings, voice/data wiring,
productive/training desktop computer hardware, and third party
applications consistent with MCI's requirements, as well as
workstations, facility security, T-1 connectivity to the RMH
network, and all other calling floor equipment and supplies and
other RMH equipment as set forth in Schedule D, necessary to
provide the Services, consistent with MCI technical standards of
which RMH has been notified, as they may change from time to
time. In the event RMH shall operate MCI Equipment, MCI Software
or MCI Proprietary Software, RMH shall do so only as directed by
MCI. RMH shall not upgrade, modify or otherwise alter MCI
Equipment, MCI Software or MCI Proprietary Software unless and
until MCI gives RMH such direction, with the exception of MCI
provided headsets, which RMH will be responsible for maintaining
and replacing as needed. RMH shall utilize MCI Equipment, MCI
Software and MCI Proprietary Software only for the performance of
Services for
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MCI. RMH agrees to make MCI whole for loss or damage to MCI
Equipment, MCI Software or MCI Proprietary Software provided by
MCI for use in the RMH Centers, to the extent such loss or damage
results from negligence or willful misconduct of an RMH
employee.
3.6 Telemarketing Data.
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3.6.1 Data Consumption. RMH shall be responsible for "Thoroughly
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Utilizing" the MCI Data and shall follow MCI's guidelines
with respect to MCI Data consumption. "Thoroughly
Utilizing" means that RMH's Call attempts (i.e., Calls
dialed) and Completes (leads dispositioned out of the
system by a TMR, i.e., not called again during a Call
Campaign) per Work Hour fall within plus or minus
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] of the
Call attempts and Call completes per Work Hour achieved by the
Internal Centers .
3.6.2 Data Integrity. Data is defined as any information
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relating to MCI Customers, including, but not limited to,
names, addresses, telephone numbers, and any accompanying
codes. Data is supplied for the specific purpose of
marketing MCI products and services and is not to be
copied without express written consent. Data elements are
not to be combined with or appended to any other data
source. Except as directed by MCI for purposes of this
Agreement, RMH may not record or retain the recording of
any Data, including but not limited to Data acquired from
Customers in the course of Calling (e.g., responses or
nonresponses re: contacts, disconnects or sales), nor may
RMH use the Data to derive any other information,
including, but not limited to, aggregate information above
the Customer level (e.g., by area code, exchange, zip code
or day of the week). Ownership of Data supplied and any
and all information derived from all activities associated
with the Data is solely MCI's. Upon termination or
expiration of this Agreement, RMH must obtain an MCI
authorized individual's certification of the destruction
and/or return of all Data files, including all
intermediate or derived files.
3.7 Sales Verification. MCI shall subcontract to a third party
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verification vendor to independently verify all Sales resulting
from the Services provided under this Agreement. MCI shall be
solely responsible for determining procedures necessary for
complying with applicable federal, state and local laws and
regulations governing sales of telecommunications services. RMH
shall be responsible for following the procedures established by
MCI to enable it to comply with such regulations.
3.8 Escalations. RMH will be responsible for responding to
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MCI's national escalations group ("NEC") regarding all Call
escalations originating from RMH Centers in the timeframe and
fashion outlined in the Policies and Procedures regarding
escalations. If the number of Agency Escalations directly caused
by Calls made by RMH CSRs or TMRs exceeds the MCI Internal Center
escalations rate by more than ten percent (10 %) in any two
months during the term of the Agreement, MCI has the right to
terminate the Agreement immediately for cause. In addition to the
indemnification obligations set forth in Section 13, RMH will be
financially liable for fifty percent (50%) of any fines or
penalties imposed by any Federal, state or local regulatory body
due to any negligent or intentional act or omission by RMH, or
breach of any provision of this Agreement, while providing
Services to MCI. RMH's liability under this Section 3.8 will be
limited to [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
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per occurrence, with a contract year limitation of liability of [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT].
3.9 Gainsharing. RMH shall use good faith efforts to work with MCI to
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increase the cost efficiency of the Services. Any savings
achieved through implementation of a Gainsharing concept
developed by MCI and/or RMH shall be shared evenly between MCI
and RMH. To qualify as a Gainsharing under this Agreement, RMH
shall forward a Gainsharing proposal to MCI outlining the
specific Service and Gainsharing methods RMH is proposing to
implement to achieve savings for RMH and MCI. MCI shall review
such Gainsharing proposal and, if acceptable to MCI, MCI shall
approve the Gainsharing proposal in writing. Prior to
implementation of a Gainsharing concept, MCI and RMH shall agree
on how to account for the savings achieved by the Gainsharing in
RMH's monthly billing. MCI and RMH shall work together to
implement and evaluate the Gainsharing method to achieve the
desired results of the Parties.
4 MCI OBLIGATIONS.
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4.1 Annual Volume Commitment.
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4.1.1 Annual Handle Minute Commitment. Provided RMH is meeting
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Schedule Adherence standards each month, MCI agrees to an
Annual Handle Minute Commitment of [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] Handle Minutes for the time
period from April 1, 2001 through December 31, 2001 and
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
Handle Minutes per calendar year from January 1, 2002
through December 31, 2005. For any given month, if RMH does
not meet Schedule Adherence standards, MCI's Annual Handle
Minute Commitment will be decreased by the difference
between Handle Minutes Forecast and actual Handle Minutes
for that month.
4.1.2 Annual Work Hour Commitment. Provided RMH is meeting Work
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Hour Forecasts each Cycle, MCI agrees to a Annual Work Hour
Commitment of [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] Work Hours for the time period from April 1,
2001 though December 31, 2001 and [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] Work Hours per calendar year
from January 1, 2002 through December 31, 2005. For any
given Cycle, if actual Work Hours are less than Work Hours
Forecast, MCI's Annual Work Hour Commitment will be
decreased by the difference between Work Hours Forecast and
actual Work Hours for that month.
4.2 Operational Coordination. MCI will be responsible for all aspects
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of routing Customer Service Calls to RMH's Centers. For customer
service, MCI will provide to RMH schedules for staffing
requirements by Work Hour, with the staffing requirements to be
modified as necessary by MCI. For telemarketing service, MCI will
provide staffing requirements on a Cycle basis, with the staffing
requirements to be modified as necessary by MCI.
4.3 Handle Minute Forecast. MCI shall provide RMH with monthly Handle
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Minute Forecasts. Handle Minute Forecast equals the number of
Calls Handled, as determined by MCI at its discretion, multiplied
by an Average Handle Time, determined by MCI at its discretion.
4.3.1 Monthly Forecast. MCI shall supply RMH with a rolling
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three-month Handle Minute Forecast, which MCI may revise at
any time prior to
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thirty (30) days before the first day of each month within
the three-month Handle Minute Forecast.
4.4 Work Hour Forecast. MCI shall provide RMH with a monthly Work
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Hour Forecast for a rolling four-Cycle period. MCI may revise the
Work Hour Forecast at any time prior to fifteen (15) days before
the first day of each Cycle. The monthly Work Hour Forecast can
increase by up to the greater of [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] or [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] Work Hours, or decrease by up to the
greater of [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
or [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] Work
Hours, based on the previous month's Work Hour Forecast, taking
into account work days and Seasonality.
4.5 Third Party Verification. MCI shall retain the third party
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verification vendor to independently verify sales under this
Agreement to identify Confirmed Line Sales.
4.6 Customer Communications. MCI shall provide RMH with MCI-approved
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telemarketing scripts, MCI product information, and MCI-approved
responses to specific consumer requests or objections.
4.7 Training. MCI shall be responsible for all aspects of training.
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The amount and type of training will be determined at MCI's
discretion based on Segment (customer service) or Call Campaign
(telemarketing), and will include both classroom training and
ABay training.
4.7.1 Initial Training. MCI shall pay for Initial Training for
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CSRs at a rate of [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] per Training Hour and for TMRs at
a rate of [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] per Training Hour for all new hires up to the
first [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
full-time equivalent ("FTE") productive CSRs and up to the
first [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
FTE productive TMRs. Thereafter, should MCI require the
addition of FTEs, the Parties will mutually agree upon the
amount of additional Initial Training MCI shall pay for.
Any additional Initial Training will be at the same rates,
and under no circumstances shall MCI be responsible for
training expenses attributable to Attrition.
4.7.2 Ongoing Training. MCI will provide training that consists
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of an average of[REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] hours per month per FTE CSR during a twelve
(12) month period. In the event MCI requires ongoing
customer service training to exceed [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] hours per FTE CSR in
any given calendar month, MCI shall compensate RMH
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per
Training Hour for each Training Hour exceeding the
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
hours per calendar month per FTE CSR. MCI will provide
training that consists of an average of [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] hours per month per
FTE TMR during a twelve (12) month period. In the event
MCI requires ongoing telemarketing training to exceed
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
hours per FTE TMR in any given calendar month, MCI shall
compensate RMH [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] per Training Hour for each Training Hour
exceeding the [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] hours per calendar month per FTE TMR.
4.7.3 Attrition. RMH shall not pass on any expenses to MCI for
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RMH's training of CSRs or TMRs to cover Attrition. To the
extent that Attrition directly results from involuntary
terminations or necessary transfers caused by an MCI
initiative that results in a variance of monthly Handle
Minutes or Work Hours by greater than [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT], any subsequent ramp-
up training needed as a result of such Attrition will be
at MCI's expense.
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4.8 Equipment and Software. MCI shall provide, maintain and operate
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at its own expense, hardware, software and connectivity needed to
ensure that the RMH Centers properly interface with MCI's
databases. MCI will provide the Houston, TX Center, at its own
expense, all proprietary enhanced software for the handling of
Calls (the "MCI Proprietary Software") and all other MCI Software
listed in Schedule D. MCI shall also be responsible for providing
MCI Equipment listed in Schedule D. MCI will provide, within the
NT environment, and to the extent possible on the OS2 platform,
appropriate conductivity to the RMH network through a firewall to
be installed and maintained by MCI. The firewall will allow
access to specific IP addresses designated by RMH and approved by
MCI. Upon termination of this Agreement RMH shall return all MCI
Equipment, MCI Proprietary Software and MCI Software to MCI upon
MCI's request at MCI's cost, which cost must be approved in
advance by MCI.
4.8.1 MCI shall install and maintain, with on-site MCI
personnel, the Equipment listed in Schedule D. MCI shall
also install, but not maintain, initial head sets.
4.9 MCI Personnel.
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4.9.1 MCI Operations Team. MCI shall assign an MCI Operations
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Team including technical support personnel at the Houston,
TX RMH Center to work with RMH during the Term of this
Agreement. MCI shall be responsible for the MCI Operations
Team and other MCI personnel, including oversight of MCI's
own quality assurance and monitoring efforts, operation of
MCI's Equipment, MCI's Proprietary Software and MCI's
Software and for costs associated with MCI's management
staff. MCI personnel when present in RMH's Centers shall
observe RMH's safety and security procedures. The MCI
Operations Team is set out in Schedule F.
4.10 Telecommunication. MCI shall provide, at its sole cost, T-1
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facilities required for 800 inbound telecommunication access and
wide area network connectivity necessary for RMH to perform the
Services, as well as all connectivity required to allow RMH to
perform outbound telemarketing for MCI. RMH shall provide, at its
sole cost, telecommunication facilities and connectivity
necessary to perform any services in an RMH Center for any entity
other than MCI.
5. Payment Provisions.
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5.1 Customer Service and Telemarketing Compensation. MCI shall
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compensate RMH monthly as set forth in Schedule C.
5.2 Monthly Invoices. RMH will invoice MCI monthly for the prior
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month's Services within [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] business days after the close of the prior month. Upon
receipt of the monthly invoice, MCI will process any undisputed
invoice through electronic wire transfer to the RMH-designated bank
within [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] days. In
the event that MCI, in good faith, disputes all or any portion of the
charges reflected on the invoice, MCI shall pay the undisputed portion
of the invoice and notify RMH within [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] days as to the particulars of the dispute.
Both Parties shall make a good faith effort to resolve any disputes
within [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] days of
receipt of MCI's notice.
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5.3 Annual Volume Commitment Shortages/Invoicing. In the event MCI
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does not meet the Annual Volume Commitment during a twelve (12)
month period, RMH shall invoice MCI for any shortage, within
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] days after
the close of the last month in the twelve (12) month period. Upon
receipt of the Annual Volume Commitment invoice, MCI shall
process the undisputed portion of the invoice through electronic
wire transfer to the RMH-designated bank within [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] days. In the event that MCI,
in good faith, disputes all or any portion of the Annual Volume
Commitment invoice, MCI shall pay the undisputed portion of the
invoice and notify RMH within [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] days as to the particulars of the
dispute. Both Parties shall make a good faith effort to resolve
any disputes within [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] days of receipt of MCI's notice.
5.4 Taxes. MCI shall be responsible for the payment of sales, use or
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other taxes now or hereafter imposed on the Services by Federal,
state or local governments where such tax is either expressly
specified as a liability of a user or the custom is that the user
pays such tax.
5.5 Pricing Changes. The Parties agree that should minimum wage
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requirements directly impacting the CSRs and TMRs performing
Services under this Agreement increase more than [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] over minimum wage as of the
Implementation Date, the Parties will mutually agree to modify
RMH's telemarketing and customer service pricing structure set
out in Schedule C to cover that increase.
6. EXCLUSIVITY OF SERVICES.
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6.1 During the term of this Agreement, and with respect to the Houston,
TX Center only, RMH shall not house RMH personnel assigned to
perform Services pursuant to this Agreement in the same RMH Center
where RMH is providing services for an MCI Competitor or any other
entity, without MCI's written approval (which may be granted or
withheld at MCI's sole discretion).
6.2 During the term of this Agreement and for a period of three (3)
months following the earlier of either the expiration or
termination of this Agreement pursuant to Xxxxxxx 0, XXX shall not
assign any RMH personnel assigned to perform the Services to
perform services for an MCI Competitor, except with MCI's written
approval (which may be granted or withheld at MCI's sole
discretion) or, with respect to assigning RMH personnel to perform
work for an MCI Competitor (but not with respect to locating MCI
account workers on the same floor as those working for an MCI
Competitor), without MCI's approval if the conditions specified for
allowing such work for an MCI Competitor have been met as provided
for below.
6.2.1 CSRs and TMRs may be assigned to perform services for an MCI
Competitor if (i) they have not performed the Services for at
least thirty (30) days before being so assigned, or (ii) they
are being assigned due to an MCI initiative that results in a
variance of monthly Handle Minutes or Work Hours by greater
than ten percent (10%), in which case, CSRs and TMRs may be
reassigned in proportion to the decrease in the volume of MCI
activity.
6.2.2 Supervisors, Line Managers and other RMH personnel may be
assigned to perform services for an MCI Competitor if (i)
they have not been assigned to perform the Services for at
least ninety (90) days before
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being so assigned, or (ii) they are being assigned due to an
MCI initiative that results in a variance of monthly Handle
Minutes or Work Hours by greater than ten percent (10%), in
which case, Supervisors, Line Managers and other RMH
personnel may be reassigned in proportion to the decrease in
the volume of MCI activity.
6.2.3 No assignment limitations shall apply to those individuals in
RMH's management who are not primarily assigned to any
particular RMH client.
7. RELATIONSHIP OF THE PARTIES.
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7.1 Independent Contractor. The Parties' relationship to each other
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in the performance of this Agreement is that of independent
contractor. Nothing in this Agreement will place the Parties in
the relationship of partners, joint venturers, principal-agent,
employer-employee, or joint employer and neither Party will
have any right to obligate or bind the other in any manner
whatsoever nor represent to third parties that it has any right
to enter into any binding obligation on the other's behalf.
7.1.1 MCI agrees not to terminate, discipline,
evaluate or in any manner promise any employee,
independent contractor, agent or vendor of RMH
any term or condition of employment at the
Houston, TX RMH Center.
7.1.2 As to its own employees on-site at any RMH
Center, MCI agrees to comply with all employment
laws, including but not limited to Title VII,
FLSA, WARN, and state fair employment laws.
7.2 RMH Employees. RMH shall be responsible for all staffing and
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selection, hiring, firing, disciplinary procedures, and other
employee relations matters associated with personnel hired by
RMH to perform Services under this Agreement. RMH shall be
responsible for all wages, salaries, benefits, workers
compensation, unemployment compensation and other amounts due
RMH employees, management staff and any other personnel, as
well as the withholding of taxes, FICA, and FUTA. MCI shall not
have any responsibility for any employee-related tax items and
shall be indemnified and held harmless by RMH from any
liability, cost or expenses, including any interest, penalties
and attorney's fees that may be assessed against or incurred by
MCI in connection with RMH's failure to make any such payment.
RMH is responsible for all taxes, licenses, permits and other
requirements that may be imposed by federal, state or local law
on its business.
7.3 Employee Indemnification. RMH agrees to indemnify MCI against,
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and hold it harmless from and against, any claim, action or
suit brought for the recovery of damages, losses or payments of
any kind whatsoever (including attorneys' fees) arising from,
or related to, RMH's failure to make employee-related tax or
withholding payments, or related to any matter arising from the
employment or discharge from employment of individuals retained
by RMH for the purpose of performing RMH's obligations pursuant
to this Agreement.
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8. TERM AND TERMINATION.
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8.1 Term. The initial term of this Agreement will commence upon
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the Effective Date and will continue until January 14, 2006
unless terminated earlier pursuant to the provisions of this
Agreement. Thereafter, this Agreement will be renewed for an
additional [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] term unless one Party gives the other Party at
least one hundred eighty (180) days written notice of
intention to terminate prior to the end of the initial term.
8.2 Termination for Cause. If either Party defaults in the
---------------------
performance of any material duty or obligation under this
Agreement and does not substantially cure such default within
thirty (30) days after being given written notice specifying
the default, then the Party not in default may terminate the
Agreement. MCI may also terminate this Agreement, in whole or
part for cause, pursuant to the provisions of Section 3.8.
MCI may also terminate this Agreement, in whole or in part
for cause, should RMH be in the bottom three (3) centers in
Top Center Ranking pursuant to Schedule G for either
telemarketing centers or customer service centers for three
(3) consecutive months or for any five (5) months within any
rolling twelve (12) month period.
8.3 Bankruptcy. If either Party hereto becomes or is declared
----------
insolvent or bankrupt, is the subject of any proceedings
relating to its liquidation, insolvency or for the
appointment of a receiver or similar officer for it, makes an
assignment for the benefit of all or substantially all of its
creditors, or enters into an agreement for the composition,
extension or readjustment of all or substantially all of its
obligations, then the other Party may, by giving written
notice of such default to such Party, terminate this
Agreement as of the date specified in such notice of
termination
8.4 Termination for Convenience. Either Party may terminate this
---------------------------
Agreement for convenience upon one hundred eighty (180) days
written notice to the other Party.
8.5 Termination for Legal/Regulatory Developments. Either Party
---------------------------------------------
shall have the right to terminate this Agreement, without
liability to the other, in the event of judicial, regulatory
or legislative change rendering performance of this Agreement
impossible, illegal or impractical. Such Party shall provide
the other with written notice of such termination as promptly
as possible, but in no event less than ninety (90) days prior
to the termination date.
8.6 Termination For RMH Change of Control. In the event there is
-------------------------------------
a change of control of RMH, MCI may at its election,
terminate this Agreement by giving RMH written notice of its
decision to terminate this Agreement within fifteen (15) days
after MCI's receipt of RMH's notice of its change of control.
For purposes of this Paragraph 8.6 "change of control" means
(i) any merger or consolidation of RMH with an MCI Competitor
or another company with materially adverse interests to MCI
("Other Party"), whether RMH or the MCI Competitor or the
Other Party is the surviving entity, or (ii) any acquisition
of beneficial ownership of RMH, as defined by Securities and
Exchange Commission trading rules, by an MCI Competitor, or
(iii) such other transaction whereby the Other Party acquires
more than fifty percent (50%) of any class of RMH's voting
stock accompanied by the right to elect directors. The
termination shall be effective on such date as MCI designates
in its notice.
10
8.7 Orderly Transition. Upon the termination or expiration of
------------------
this Agreement for any reason, RMH and MCI agree to exercise
their best efforts to perform an orderly and efficient
transition to a successor provider of Services.
8.8 MCI's Liabilities upon Termination. Should MCI terminate this
----------------------------------
Agreement pursuant to Sections 8.4, 8.5, 8.6 or 18.2, MCI
shall make payment to RMH as set out in Payment Schedule 1 of
Schedule E. Should MCI terminate this Agreement pursuant to
Section 8.2 or 8.3, MCI shall make payment to RMH as set out
in Payment Schedule 2 of Schedule E. Should RMH terminate
this Agreement pursuant to Section 8.2 or 8.3, MCI shall make
payment to RMH as set out in Payment Schedule 1 of Schedule
E. Should RMH terminate this Agreement pursuant to Section
8.5, MCI shall make payment to RMH pursuant to Payment
Schedule 2 of Schedule E; however, payment shall not be made
in a lump sum but shall be prorated through the remaining
months of the term of this Agreement. Should RMH terminate
this Agreement pursuant to Section 8.4, MCI shall make no
payments to RMH. Nothing herein shall constitute a waiver by
RMH of any other rights it may have at law or equity.
8.9 Additional Termination Obligations.
----------------------------------
8.9.1 Should either Party terminate this Agreement
for any reason (other than RMH's termination
pursuant to Section 8.4), MCI shall make the
payments set out in Section 8.8 to RMH and RMH
shall assign and MCI shall assume the Houston
Center Lease.
8.9.2 Should RMH terminate this Agreement pursuant
to Section 8.4, MCI shall have the option to
assume the Houston Center Lease, which option
must be exercised within thirty (30) days
after written notice from RMH of such
termination, absent which the option shall be
deemed null and void. Any termination pursuant
to Section 8.4 by RMH shall not be effective
unless either (i) such termination is
accompanied by Wal-Mart's written consent; or
(ii) the Wal-Mart TI Payment, as defined in
the Houston Center Lease, as increased by any
subsequent amendment thereto, has been paid in
full.
8.9.3 In the event the Houston Center Lease is
transferred to MCI pursuant to the terms of
this Section, each of RMH and MCI will execute
any documents and take any other actions
necessary to ensure that the obligations under
the Houston Center Lease are transferred to
MCI. In addition, RMH and MCI shall execute an
assignment and assumption of the Houston
Center Lease, which document shall be in a
form and content acceptable to Wal-Mart. RMH
shall also ensure that all service agreements
in effect as to the Houston TX RMH Center are
either assignable to MCI or terminable upon
the assignment and assumption of the Houston
Center Lease.
8.9.4 Upon MCI making payment to RMH pursuant to
Section 8.8, RMH shall transfer to MCI all
rights, title and ownership to the RMH
Equipment listed in Schedule D and all
furnishings in the Houston TX Center.
11
9. MCI PROPERTY/OWNERSHIP OF WORK.
------------------------------
9.1 Unless the Parties otherwise agree in writing, any property
including, but not limited to, documentation, reports, data,
training materials or other proprietary information, furnished to
RMH by MCI is, and shall remain, the property of MCI.
9.2 RMH agrees that the entire right, title, and interest (including
without limitation the exclusive right to use, reproduce,
distribute, translate, and make derivative works) in any written,
photographic, audio and/or video, software or other materials
(including, but not limited to, documentation, reports, data,
training materials or other proprietary information) furnished to
RMH by MCI or developed by RMH for MCI in performance of this
Agreement (collectively, "Materials") shall remain in MCI and
shall be MCI's exclusive property. To the extent permitted under
the United States Copyright Act (17 U.S.C. 101), Materials shall
be deemed "works made for hire", with MCI being entitled to assign
freely any copyrights therein. MCI shall have the right, at its
own expense, to obtain and to hold in its own name copyrights,
registrations or such other protection as may be appropriate to
said Materials, and to any extensions or renewals thereof. RMH
shall give MCI or any person designated by MCI, without additional
charge, all such information and shall execute all such additional
documents as may be reasonably required to perfect the rights
referred to herein. In the event any Materials shall not qualify
as "works made for hire" within the meaning of the Copyright Act,
RMH agrees to assign and hereby does assign its copyrights related
to these Materials to MCI and at MCI's request, will give MCI such
information and execute any documents required to vest all such
copyrights in MCI. MCI and its assigns shall have the full, sole
and continuing right (without any payments or liabilities to any
person) to use, publish, perform, reproduce and distribute
throughout the world any or all portions of the Materials, either
as a complete unit or in segments, any way MCI sees fit and for
any purpose whatsoever.
9.3 MCI Proprietary Software. MCI will provide RMH access to MCI
------------------------
proprietary operating system software and applications software
loaded on the Equipment to provide Services, and all associated
documentation which MCI deems necessary to the provision of
Services and will periodically update the same. Ownership of any
such software and/or documentation (including, but not limited to
all modifications, derivatives, and/or enhancements thereto)
provided by MCI to RMH hereunder shall remain the property of MCI
(including any copyrights, trade secrets or other intellectual
property rights therein.)
9.3.1 Software Modifications. Notwithstanding the foregoing, in
----------------------
the event MCI requests RMH to provide and RMH agrees to
provide any modifications or enhancements to the MCI
Proprietary Software loaded on Equipment located at the RMH
Centers, RMH will provide to MCI, at no additional charge,
one object code copy of any such software modifications or
enhancements and all associated documentation, within ten
(10) days of completing any such modifications or
enhancements. RMH agrees to test such software
modifications with MCI and to provide all necessary
consultation to MCI in connection therewith.
9.3.2 Ownership of MCI Proprietary Software Modifications. In the
---------------------------------------------------
event that RMH makes software modifications or enhancements
to MCI Proprietary Software at the RMH Centers at MCI's
request pursuant to Section 9.3.1, RMH agrees to and hereby
does assign to MCI all copyrights, trade secrets
12
and other intellectual property rights in such software
modifications or enhancements to the MCI Proprietary
Software made by RMH.
9.3.3 MCI License Grant. For the term of this Agreement, MCI
-----------------
grants RMH a non-transferable, royalty-free, fully paid-up
and non-exclusive license to use the MCI Proprietary
Software at the RMH Center; provided that any use by RMH of
the MCI Proprietary Software shall be solely for the
purpose of performing the Services. This license will
terminate upon the termination of this Agreement. In the
event the Parties agree to extend the Agreement, the term
of the license for the MCI Proprietary Software shall be
extended accordingly.
9.4 RMH License Grant. With respect to software specifically developed
-----------------
by RMH at its cost solely to provide the Services ("Services
Software"), RMH hereby grants MCI, for the term of this Agreement
and any renewals hereof, a non-transferable, royalty-free, non-
exclusive license to use such Services Software and associated
documentation only in conjunction with the Services provided by
RMH under this Agreement and for no other purposes whatsoever. At
the end of the license term, if MCI desires, the Parties shall
negotiate in good faith to conclude a license agreement allowing
MCI to continue to use the Services Software upon terms and for a
license fee to be mutually agreed upon by the Parties.
9.5 Third Party Changes. Subject to the provisions of this Section
-------------------
9.5, in the event MCI desires to make or to have a third party
make software changes to the RMH Equipment, RMH LAN and/or RMH
file server, RMH agrees to allow MCI, under RMH's supervision, to
install or to have installed at the RMH Centers all such software
changes, provided such changes do not invalidate any warranties on
the RMH Equipment. MCI's right to such changes is subject to RMH's
consent, which shall not be unreasonably withheld. If approval of
the provider of RMH Equipment is required, RMH shall use
reasonable efforts to obtain approval and shall provide MCI with a
written copy of any approval or disapproval. MCI will be
responsible for maintaining any such software changes and RMH
shall not be responsible for any failure to meet its obligations
under the Agreement in the event that such failure is caused by
the MCI-initiated software changes. RMH shall have no legal
obligations with respect to the MCI-initiated changes except as
set forth in this Section 9.5, and, notwithstanding any
limitations or exclusions of liability under this Agreement, MCI
shall indemnify, defend and hold harmless RMH from and against all
claims, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) arising in any way out of such MCI-
initiated changes or the installations thereof. MCI hereby grants
RMH, or shall cause the third party to grant to RMH, for the term
of this Agreement and any renewals hereof, a non-transferable,
royalty-free, non-exclusive license to use such software at its
RMH Centers only and only in conjunction with the provision of
Services. All such MCI-initiated software changes (except those
made to MCI Proprietary Software) shall be the exclusive property
of RMH or its licensors, and MCI hereby assigns, and shall cause
any third parties contemplated by this Section 9.5 to assign, all
right, title and interest in and to such software changes to RMH
or its licensors, as applicable.
9.6 MCI Modifications. If MCI develops software modifications or
-----------------
enhancements to either MCI or RMH Equipment, LAN and/or file
servers, MCI shall grant RMH a non-transferable, royalty-free,
non-exclusive license to use such software modifications or
enhancements at its RMH Centers only and only in conjunction with
the provision of Services.
13
9.7 Return of MCI Property. All copies of any software,
----------------------
databases or documentation owned exclusively by MCI, or
containing MCI Confidential Information, shall be returned to
MCI immediately upon the termination of this Agreement, it
being acknowledged that RMH may retain any software,
databases or documentation exclusively owned by RMH, or
licensed to RMH by an entity other than MCI, if all MCI
Confidential Information is removed from the applicable
software, databases and/or documentation.
10. AUDITS. RMH will permit MCI, at MCI's expense, to audit any of
------
RMH's systems, documents, processes, data, or reports related to
the performance of this Agreement or payments due under this
Agreement. Such audits: (i) may not be held more frequently than
twice per calendar year; (ii) shall require prior written notice
to RMH; and (iii) shall be held at a time and place to be mutually
agreed upon during normal business hours. Any information obtained
by MCI pursuant to an audit shall be subject to MCI's obligation
to keep such information confidential as more fully set forth in
Section 12 hereto.
11. WARRANTIES AND REPRESENTATIONS.
------------------------------
11.1 RMH warrants to MCI that the Services shall be performed in
a workmanlike manner and generally in accordance with the
specifications and descriptions of such Services as set
forth in this Agreement.
11.2 RMH warrants and represents that it is not currently bound
by any other agreements, restrictions or obligations, nor
will RMH assume any such obligations or restrictions which
do or would in any way interfere or be inconsistent with the
Services to be furnished by RMH to MCI. RMH warrants and
represents that the signatory to this Agreement is
authorized to enter into this Agreement with MCI in all
respects.
11.3 MCI warrants and represents that it is not currently bound
by any other agreements, restrictions or obligations, nor
will MCI assume any such obligations or restrictions which
do or would in any way interfere or be inconsistent with
MCI's obligations to RMH under this Agreement. MCI warrants
and represents that the signatory to this Agreement is
authorized to enter into this Agreement with RMH in all
respects. MCI warrants and represents that the MCI Software
and MCI Proprietary Software or other intangibles provided
by MCI to RMH to utilize in performing the Services will not
infringe upon the proprietary rights of any third party.
12. CONFIDENTIALITY/PROPRIETARY INFORMATION.
---------------------------------------
12.1 Prior to performing Services on behalf of MCI, RMH and each
RMH employee assigned to perform work under this Agreement
shall read, understand, adhere to, and sign a
Confidentiality and Nondisclosure Agreement (NDA) in the
form reviewed and approved by MCI.
12.2 The Parties agree that any and all confidential information
and/or proprietary information relating to past, present and
future activities, products, services, business plans,
business practices designated as confidential, or
information that by its nature is presumed to be
confidential ("Confidential Information") (including MCI
Customer lists, MCI card numbers, MCI Customer names,
addresses and billing data, call detail and/or financial
information, information relating to MCI
14
Customers or MCI Customer account information, and/or
databases, as well as other material specifically designated
by MCI in writing as confidential or proprietary) ("MCI
Confidential Information")) furnished or disclosed in the
course of this Agreement, or disclosed during the effective
period(s) of other Nondisclosure Agreement(s) in effect
between the Parties, shall be and remain MCI or RMH
property, as the case may be. During the term of this
Agreement and for seven (7) years thereafter, both Parties
agree not to reveal, disclose, divulge, sell, license,
exchange, lease or in any other way transfer the other
Party's Confidential Information to any third party. Neither
Party shall use the other Party's Confidential Information
for any purposes other than the Services to be performed
hereunder without prior express written permission of the
other Party and shall limit its copying of such Confidential
Information to such purposes and shall not disclose any such
Confidential Information to anyone except its personnel to
whom such disclosure is necessary to carry out the purposes
of this Agreement. All such personnel shall be appropriately
notified that any such disclosure to them is made in
confidence and shall be held in confidence. In the event any
such Confidential Information must be disclosed by a Party
to a third person for the purpose of allowing the Party to
provide the Services hereunder, the Party shall, prior to
disclosure, obtain the other Party's written permission and
if permission is granted, shall obtain from the third person
a written agreement regarding the confidentiality and
specific use of the Confidential Information, the terms of
which shall be substantially identical to those contained
herein. Either Party shall forward a copy of such third
person's nondisclosure agreement to the other Party upon
written request.
12.3 The provisions of Paragraph 12.2 above shall not apply to
information that was previously known to the other Party,
free of any obligation to keep it confidential as evidenced
by written records, or information that is or has been
disclosed in the public domain, through no fault of the
other Party, by third persons who are under no obligation of
confidence to either MCI or RMH, or information
independently developed by the other Party or obtained by a
third party. Any combination of Confidential Information
disclosed from MCI to RMH or RMH to MCI, shall not be deemed
to be within the foregoing exceptions merely because
individual portions of such combinations are disclosed or
separately known in the public domain or known by the other
Party. Either Party may disclose Confidential Information if
obligated by Court order or governmental process after
providing the other Party with prior notice that
Confidential Information is being sought by legal process.
12.4 Both Parties acknowledge that the Confidential Information
under this Agreement constitutes unique, valuable and
special trade secret and business information of the
respective Parties, and that disclosure of such Confidential
Information may cause irreparable injury to MCI or RMH as
the case may be. Accordingly, the Parties acknowledge and
agree that the remedy at law for any breach of the covenants
contained in Paragraph 12.2 of this Agreement may be
inadequate, and in recognition, agree that the other Party
shall, in addition, be entitled to seek injunctive relief
and reasonable attorneys' fees and other court costs and
expenses, in the event of a breach or threatened breach of
any of the provisions of this Section 12 of this Agreement,
which relief shall be in addition to and not in derogation
of any other remedies which may be available to the other
Party as a result of such breach.
12.5 Either Party may file copies of this Agreement with a court
or public agency, to the extent necessary to comply with
applicable law or regulation, including, without limitation,
to comply with mandatory filing under the rules and
regulations of the
15
Securities and Exchange Commission and to the extent
necessary in connection with review by lending institutions,
subject to appropriate confidentiality restrictions and
subject to Section 16. The filing Party shall promptly
notify the other Party of such requirement
13. INDEMNIFICATION/LIMITATION OF LIABILITY.
---------------------------------------
13.1 RMH agrees to indemnify, defend and hold harmless MCI, its
parent company, subsidiaries, affiliates, employees, agents
and assigns from and against all claims, complaints, causes
of action, liabilities, judgments, losses, penalties, costs
and expenses (including allocable costs of in-house counsel
and other reasonable attorneys' fees) brought by third
parties that arise out of or in connection with (i) its
breach of or default of any covenant or provision of this
Agreement, (ii) the acts, errors, representations,
misrepresentations, or negligence of RMH, or its officers,
employees, affiliates, or agents, except insofar as such
acts, omissions or performance are specifically required by
any Policies or Procedures established by MCI, or (iii)
violation by RMH of a third party's trade secrets,
proprietary information, trademarks, copyright or patent
rights in connection with the performance of the Services.
13.2 MCI agrees to indemnify, defend and hold harmless RMH, its
parent company, subsidiaries, affiliates, employees, agents
and assigns from and against all claims, complaints, causes
of action, liabilities, judgments, losses, penalties, costs
and expenses (including allocable costs of in-house counsel
and other reasonable attorneys' fees) brought by third
parties that arise out of or in connection with (i) its
breach of or default of any covenant or provision of this
Agreement, (ii) the acts, errors, representations,
misrepresentations or negligence of MCI or its officers,
employees, affiliates or agents, (iii) RMH's compliance with
any Policies or Procedures specifically established by MCI,
(iv) MCI's failure to provide products or services to its
Customers or any defect or deficiency in any products or
services provided by MCI to its Customers, or (v) violation
by MCI of a third party's trade secrets, proprietary
information, trademarks, copyright or patent rights in
connection with the performance of its obligations under
this Agreement.
13.3 Except with respect to their obligations under the preceding
provisions of this Section 13 regarding indemnification for
third party claims under this Agreement; neither Party shall
have liability to the other with respect to its obligations
under this Agreement for consequential, exemplary, special,
incidental or punitive damages even if such Party has been
advised of the possibility of such damages. None of the
payments, fines or penalties set out in Section 3.8, above,
shall be considered subject to this Section.
14. INSURANCE. RMH shall maintain during the Term of this Agreement all
---------
insurance and/or bonds required by law and as set forth herein,
including but not limited to: (i) Workmen's Compensation Insurance
as prescribed by the law of the state in which the Services are
performed; (ii) Employer's Liability Insurance with limits of at
least [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] for each
occurrence; (iii) Comprehensive General Liability Insurance and, if
the use of automobiles is required, comprehensive automobile
liability insurance for owned, hired and non-owned automobiles,
with limits of at least [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] combined single limit for bodily injury, death, and
property damage; (iv) Professional Liability and Errors and
Omissions Insurance covering RMH and MCI against damages caused by
RMH of at least [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] per occurrence; and (v) Fidelity bond coverage, covering
acts of employee dishonesty of at least [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] per incident; (vi) such other
"umbrella" and
16
"excess" policy coverage which RMH or its parent corporation may
have in effect from time to time to cover the actions of RMH, its
employees and agents. MCI is to be named additional insured for the
purposes of this Agreement as its interests may appear. RMH shall,
prior to the start of work, furnish certificates or adequate proof
of the foregoing insurance. Further, RMH will ensure that each such
certificate shall state that the insurance will not be canceled or
modified unless MCI is given thirty (30) days prior notice of such
modification or cancellation.
15. INTELLECTUAL PROPERTY.
---------------------
15.1 Except as expressly provided in this Agreement, nothing in
this Agreement shall be deemed to grant a Party any license,
sublicense, copyright interest, proprietary right or other
claim against or interest in the other Party's copyrights,
patents, or other intellectual property.
15.2 Neither Party will use, or permit their respective employees,
agents and subcontractors to use, the trademarks, service
marks, logos, trade names or other proprietary designations
of the other Party, or the other Party's affiliates, whether
registered or unregistered, except in performance of the
Services and obligations under this Agreement, and with such
other Party's prior written consent.
16. PUBLICITY AND USE OF RMH's AND/OR MCI's NAME. The Parties agree
--------------------------------------------
that they will not make, and they will prevent any of their
subcontractors from making, without the prior written consent of
the other Party, any news release or public announcements which
would confirm or deny the existence or the terms and conditions of
all or any part of this Agreement or any discussions or
negotiations culminating herein, or the fact or nature of their
participation hereunder, or any phase of any Services provided or
activity conducted hereunder including, but not limited to, such
information as the location of RMH Centers, number of CSRs, TMRs
and related Center Management and Administrative Personnel or any
other information, whether or not Confidential Information, which
would relate to or reflect on the nature or quality of the Services
or obligations provided pursuant to this Agreement. RMH represents
that it will not make a public filing mentioning this Agreement
unless such filing is mandatory under the Securities and Exchange
Commission Rules and Regulations. In the event RMH is required
under Securities and Exchange Commission Rules and Regulations to
make a mandatory public filing which will mention MCI or this
Agreement, RMH shall immediately notify MCI and RMH shall seek
confidential treatment from the Securities and Exchange Commission
for any attachment to such mandatory filing. Violation of this
Paragraph shall be considered a material breach and cause for
termination under Section 8.
17. FRAUD PROCEDURES. RMH shall use reasonable efforts to take the
----------------
following measures to help minimize fraud:
17.1 Destroy all CSR or TMR notes used at the RMH Centers
periodically as directed by MCI;
17.2 Give MCI reasonable and appropriate assistance in the
investigation of fraud by an RMH employee, it being
understood and agreed that each Party shall bear its own
costs, both internal and external, of such investigations;
17.3 Make reasonable efforts to establish and implement a standard
operating procedure for maintaining a paperless environment
absent exigent circumstances;
17
17.4 Establish and implement a standard operating procedure to
control the recordation of customer authorization codes in
any media except as jointly agreed upon by MCI and RMH to
support the delivery of Services and absent exigent
circumstances; and
17.5 Allow MCI to make periodic reviews of RMH's fraud procedures,
as such procedures relate to fraud control hereunder.
18. FORCE MAJEURE.
-------------
18.1 Force Majeure. Neither Party shall be liable for a failure or
-------------
delay in performance of its obligations hereunder by reason
of any circumstance which is caused by an act of God, or
other factors beyond its reasonable control, including labor
disputes, where such delay or failure could not have been
prevented by reasonable precautions and cannot reasonably be
circumvented by the Party through the use of alternate
sources, work-around plans, or other means. During a force
majeure occurrence, the non-performing Party shall be excused
from any further performance or observance of the
obligation(s) so affected for as long as such circumstances
prevail and such Party continues to use its best efforts to
recommence performance or observance whenever and to whatever
extent possible without delay. The failure or a delay of an
equipment vendor shall not be considered beyond the control
of a Party. If either Party becomes aware of any such factor
that would cause a delay or failure in performance, it shall
immediately notify the other Party of the existence of such
factor and probable length of continuation thereof, and no
Party's failure or delay in performance will be excused under
this Section before such notice is provided.
18.2 If a force majeure occurrence prevents RMH from rendering
Services pursuant to this Agreement and RMH with the
cooperation and assistance of MCI (but without any obligation
on MCI to incur costs), is unable to resume Services for
fourteen (14) or more consecutive days, MCI's obligations to
continue making payments to RMH and to be responsible for its
obligations under the Annual Volume Commitment provided
herein shall be suspended until Services are resumed.
Immediately following the aforementioned fourteen (14) day
period MCI shall have the right, but not the obligation, to
immediately terminate this Agreement as to the RMH Centers so
affected. If MCI does not exercise its right to terminate
this Agreement under this Section, MCI may elect upon notice
to RMH to extend the Term for a period equal to the period
during which RMH's rendition of Services was prevented due to
a force majeure occurrence. For the purposes of this Section
18.2, a resumption of performance will be deemed to have
occurred if RMH is able to implement work-around plans
acceptable to MCI, and at RMH's cost, that result in Calls
being handled by RMH either at the affected RMH Center or
other RMH Centers. In the event RMH implements a work-around
plan, MCI shall use reasonable efforts, at RMH's cost, to
support RMH, including without limitation, arranging for and
installing MCI Equipment and MCI Software at RMH's other
Center(s) then being used to resume performance, and
assigning MCI personnel to such Center(s) to perform the same
functions they were performing at the affected RMH Centers.
If a work-around plan is implemented, RMH shall use
reasonable efforts to restore or replace the affected Center
as soon as possible after the force majeure occurrence.
18.3 Within sixty (60) days of execution of this Agreement, RMH
agrees to develop a mutually acceptable disaster recovery
plan, which, upon execution by both Parties, will supersede
the terms of Section 18.2. The Parties acknowledge and agree
that
18
such plan will outline RMH's responsibilities in the case of
a force majeure occurrence.
19. DISPUTE RESOLUTION PROCEDURES. In the event of a dispute under
-----------------------------
this Agreement, other than a dispute related to the release of
Confidential Information, the Parties agree to take the following
steps to resolve the dispute:
19.1 RMH's Operation Team and MCI's Operation Team will make good
faith efforts to resolve the matter before forwarding the
matter to the next level;
19.2 The matter will then be referred to the respective Authorized
Individuals named in Schedule H; and
19.3 If the most senior Authorized Individuals for MCI and RMH
cannot resolve the matter within fourteen (14) days and do
not agree to extend the time for them to reach a resolution
then the matter will be referred to arbitration.
20. ARBITRATION. Any dispute arising out of or related to this
-----------
Agreement, which cannot be resolved by negotiation between MCI and
RMH, shall be settled by binding arbitration in accordance with the
J.A.M.S/ENDISPUTE Arbitration Rules and Procedures, as amended by
this Agreement. Arbitrator selection shall be by mutual agreement,
and the Parties shall make reasonable efforts to select three (3)
arbitrators, at least one of whom has relevant telecommunications
and/or call center industry experience. If the Parties have not
agreed upon three (3) arbitrators within thirty (30) days of the
matter being submitted to arbitration, the next day each Party will
select one arbitrator and within the next five (5) days, the two
arbitrators will select the third arbitrator. The costs of
arbitration, including the fees and expenses of the arbitrators,
shall be shared equally by the Parties unless the arbitration award
provides otherwise. Each Party shall bear the cost of preparing and
presenting its case. All arbitration proceedings shall be held at
the location designated by the Party seeking the arbitration. The
Parties agree that this provision and the arbitrators' authority to
grant relief shall be subject to the United States Arbitration Act,
9 U.S.C. 1-16 et seq. ("USAA"), the provisions of this Agreement,
and the ABA-AAA Code of Ethics for Arbitrators in Commercial
Disputes. The Parties agree that the arbitrators shall have no
power or authority to make awards or issue orders of any kind
except as expressly permitted by this Agreement, and in no event
shall the arbitrators have the authority to make any award that
provides for punitive or exemplary damages. The arbitrators'
decision shall follow the plain meaning of the relevant documents,
and shall be final and binding. The award may be confirmed and
enforced in any court of competent jurisdiction. All post-award
proceedings shall be governed by the USAA. This provision should
not be construed so as to prohibit either Party from seeking
preliminary or permanent injunctive relief in any court of
competent jurisdiction.
21. ATTORNEYS' FEES. In the event that either Party is required to
---------------
enforce or preserve any of its rights hereunder, the non-prevailing
Party shall pay all of the prevailing Party's reasonable attorneys'
fees and costs, including allocable costs of in-house counsel,
incurred in connection with any such action.
22. GOVERNING LAW. This Agreement shall be interpreted, construed and
-------------
governed by the laws of the State of New York, without regard to
its conflict of law provisions.
23. IMMIGRATION LAWS COMPLIANCE.
---------------------------
23.1 RMH warrants, represents, covenants and agrees that it will
not knowingly assign to perform Services under this Agreement
any individual who is an unauthorized
19
alien under the Immigration Reform and Control Act of 1986 or its
implementing regulations.
23.2 In the event any RMH personnel performing Services under this
Agreement, or other individual(s) providing Services to MCI on behalf
of RMH under this Agreement, are discovered to be unauthorized aliens,
RMH will immediately remove such individuals from performing Services
and replace such individuals with individuals who are, to RMH's
knowledge, not unauthorized aliens.
24. NO ASSIGNMENT. This Agreement may not be assigned by any Party by operation
-------------
of law, or otherwise, except with the prior written consent of the other
Party. Neither Party shall voluntarily or by operation of law assign,
sublicense, transfer, encumber or otherwise dispose of all or any part of
its interest in this Agreement without the prior written consent of the
non-assigning Party. Any attempted assignment, sub-license, transfer,
encumbrance or other disposal without such consent shall be void and shall
constitute a material default and breach of this Agreement. A change in the
controlling interest of a Party shall not be deemed an assignment for
purposes of this section except if the holder of such controlling interest
is a competitor of MCI, its parent subsidiaries or affiliates.
Notwithstanding the foregoing, either Party may assign or transfer its
rights and obligations hereunder to an adequately capitalized affiliate or
subsidiary to which its relevant operations and assets are transferred and
which is not a competitor of MCI, its parent, subsidiaries or affiliates;
provided, however, that MCI must approve such an assignment by RMH, such
approval not to be unreasonably withheld, nor shall such approval be
conditioned upon receiving any monetary consideration from RMH or the
assignee or obtaining any additional terms for MCI's betterment in this
Agreement.
25. NOTICES. Any notice, consent, approval, election or other communication
-------
provided for in this Agreement shall be in writing and shall be either (i)
personally delivered, (ii) sent by reputable overnight courier service
(charges prepaid), or (iii) sent via facsimile (with confirmation of
transmission) to the addresses listed below. The Parties agree that this
Section does not apply to regular operational communications:
If to MCI:
MCI WORLDCOM Communications, Inc.
000 Xxxxx 00/xx/ Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
with copies to:
MCI WORLDCOM Communications, Inc.
000 Xxxxx 00/xx/ Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Law & Public Policy
Facsimile: (000) 000-0000
20
If to RMH:
RMH Teleservices, Inc.
00 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
with copies to:
RMH Teleservices, Incorporated
Wolf, Block Xxxxxx & Xxxxx-Xxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Any Party may change the address, person or facsimile number to which its
communications are sent by giving notice as provided for herein.
26. NO WAIVER. The failure of either Party in any one or more instances to
---------
insist upon strict performance of any of the terms and provisions of this
Agreement, or to exercise any option herein conferred shall not be
construed as a waiver or relinquishment, to any extent, of the right to
assert or rely upon any such terms, provisions or options on any future
occasion.
27. HEADINGS. The Section headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any manner the meaning or
interpretation of this Agreement. The use of the words "shall" and "will"
are intended by the Parties to have the same meaning throughout this
Agreement.
28. SEVERABILITY. If any of the provisions of this Agreement shall be invalid
------------
or unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement, but rather the entire
Agreement shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations of
the Parties shall be construed and enforced accordingly.
29. ENTIRE AGREEMENT, AMENDMENTS, MODIFICATIONS, THIRD PARTY BENEFICIARIES AND
---------------------------------------------------------------------------
SURVIVAL.
--------
29.1 Entire Agreement. This Agreement shall become binding when executed by
----------------
both Parties. This Agreement constitutes the entire Agreement between
MCI and RMH with respect to the subject matter hereof and supercedes
any previous agreements or understandings with respect to that subject
matter.
29.2 Modification. This Agreement shall not be amended or modified in any
------------
manner, except by an instrument in writing signed by duly authorized
representatives of each of the Parties hereto.
29.3 No Third Party Beneficiaries. Except as specifically provided herein,
----------------------------
no person not a Party hereto shall have any interest herein or be
deemed a third party beneficiary hereof. This Agreement shall not
provide any person or entity not a Party to this Agreement with any
remedy, claim, liability, reimbursement, cause of action or other
right in addition to those existing without reference to this
Agreement.
21
29.4 Survival. Those provisions of this Agreement that require performance
--------
or impose obligations that extend beyond the terms of this Agreement
shall survive any termination or expiration of the Agreement.
30. ORDER OF PRECEDENCE. In the event of an inconsistency between or among the
-------------------
textual provisions of the Agreement and/or the Schedules, the inconsistency
shall be resolved by giving precedence in the following order:
(a) Text of Agreement
(b) Schedules to the Agreement
31. COMPLIANCE WITH LAW.
-------------------
31.1 At all times during the term of this Agreement, RMH shall fully
comply, and be and remain in compliance, with all applicable laws,
rules and regulations, and the terms of this Agreement relating to
or affecting the performance of its obligations hereunder,
including, but not limited to, the federal Telephone Consumer
Protection Act and all state equivalent laws, along with laws
related to employment of labor, hours of labor, working conditions,
payment of wages, and payment of taxes, such as unemployment, social
security and other payroll taxes, and shall secure and maintain in
full force and effect all licenses, permits and authorizations
necessary for the performance of its obligations hereunder.
Additionally, RMH will fully comply with any requirements imposed
upon MCI by any regulatory body or court, whether by Order,
Judgment, Settlement or Consent Decree, as regards the sales of
telecommunications services.
31.2 At all times during the term of this Agreement, MCI shall fully
comply, and be and remain in compliance with all applicable laws,
rules and regulations, and the terms of this Agreement relating to
or affecting the performance of its obligations hereunder, and shall
secure and maintain in full force and effect all licenses, permits
and authorizations necessary for the performance of its obligations
hereunder.
31.3 Each Party shall immediately notify the other Party in writing of
the commencement or threatened commencement of any action, suit or
proceeding, and the issuance or threatened issuance of any order,
writ, injunction or decree, involving its activities under this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement through their
authorized representatives.
RMH TELESERVICES, INC. MCI WORLDCOM
COMMUNICATIONS, INC.
/s/ Xxxx Xxxxxxx /s/ Xxxxxxxx Xxxxxx
---------------------------- -------------------------------
Signature Signature
Xxxx Xxxxxxx Xxxxxxxx Xxxxxx
---------------------------- -------------------------------
Name Name
CEO CFO
---------------------------- -------------------------------
Title Title
22
List of Schedules
Schedule A - Definitions
Schedule B - Top Center Ranking
Schedule C - Pricing
Schedule C1 - Operating Cost Components
Schedule D - Equipment/Software
Schedule E - Termination Payments
Schedule F - Operation Teams
Schedule G - Compensation Structure
Schedule H - Authorized Individuals
23
Schedule A
DEFINITIONS
-----------
Terms appearing in initial capital letters shall have the meaning set forth in
this Schedule and/or as elsewhere set forth in the Agreement.
"Abandoned Call" shall mean a Call that has been seized by the ACD but was not
answered by a CSR prior to disconnect, as measured by the ACD.
"ABay" shall mean a type of training that is split between "classroom" work and
time the CSR or TMR is plugged into the ACD making or handling calls.
"ACD" shall mean automatic call distribution equipment.
"Agency Escalation" shall mean any complaint received by MCI from the FCC, FTC,
BBB, or any state commission or agency regarding Services performed by RMH CSRs
or TMRs.
"Agreement" means this Agreement for provision of Call Center Services between
MCI WORLDCOM Communications, Inc. and RMH Teleservices, Inc., including the
principal agreement and all Schedules.
"Attrition" shall mean the loss of CSRs and TMRs that results from normal
business events such as voluntary terminations, involuntary terminations,
internal promotions, internal demotions and retirements.
"Average Handle Time ("AHT") shall equal Handle Time divided by Calls Handled.
"Authorized Individuals" shall be those individuals identified in Schedule H.
"Calls Handled" shall mean Calls Offered less Abandoned Calls, as measured by
the ACD.
"Calls Offered" shall mean the Calls routed from MCI's network to a RMH Center,
as measured by the ACD.
"Call Campaign" shall mean an identifiable body of MCI Data delivered to RMH for
use in making Telemarketing Calls.
"Center Management and Administrative Personnel" shall mean RMH personnel
responsible for directing the activities of RMH Centers.
"Confirmed Line Sale" shall mean a sale of an MCI product or service by an RMH
TMR that the TPV vendor confirms to be a sale through the use of specific TPV
standards which demonstrate that the Customer has authorized a switch of his or
her long distance, local toll, or local telephone service for a particular ANI
from his or her previous carrier to MCI.
"Customer " or "MCI Customer" shall mean a current or potential customer of MCI.
"Customer Service Call(s)" or "Call(s)" shall mean inbound telecommunications -
related customer service inquiries handled and resolved by CSRs, and include the
upselling of MCI products and services. These calls begin with a Customer or
other outside seizure that reaches the ACD.
24
"Cycle" shall mean the division of a month for telemarketing purposes. Each
month is divided into two Cycles (1st-15th and 16th-month end).
"Handle Minutes" shall equal Calls Handled times AHT.
"Handle Time" shall equal Talk Time plus Work Time plus Unavailable Time.
"Houston Center Lease" shall mean that certain Sublease Agreement dated October
28, 2000 between RMH and Wal-Mart Real Estate Business Trust, as amended by
First Amendment to Sublease dated January 17, 2001.
"Internal Centers" shall mean MCI's own customer service and telemarketing call
centers.
"LAN" shall mean local area network.
"MCI Competitor" shall be any entity providing long distance telephone service,
local telephone service, internet access or service, cellular or PCS service,
wireless or fixed wireless service, paging service and cable service.
"MCI Data" shall mean MCI's list of consumer leads made available by MCI to RMH
to be Called and offered MCI services and/or products.
"Parties" shall mean MCI WORLDCOM Communications, Inc. and RMH Teleservices,
Inc.
"Policies and Procedures" means the MCI Policies and Procedures for performing
telemarketing and customer service.
"RMH Center(s)" shall mean the RMH call center service facilities.
"Schedule Adherence" shall mean a comparison of actual CSRs versus planned CSRs
at each 1/2 hour time period.
"Seasonality" shall mean those periods where Services decrease due to the
holiday season, resulting in a reduced number of working days during the holiday
season months.
"Segment" shall mean a specified type of Customer Service Call (e.g., local,
partner, unbranded).
"Talk Time" shall mean the time involved in handling a call, starting when a
Call is seized by a CSR and ending when the Call is released by a CSR or is
otherwise disconnected as measured by the ACD.
"Telemarketing Representative" or "TMR" shall mean an employee, agent or
independent contractor of RMH who has responsibility for providing the
telemarketing Services at the RMH Centers in accordance with the terms of this
Agreement.
"Telemarketing Call" or "Call" shall mean an outbound residential or small
business telemarketing call that is automatically dialed through the RMH
Center's automatic dialer to a lead contained in the MCI Data and then routed,
via MCI's system and the SMART/Call desktop application, to a TMR to handle the
Services as measured by the ACD.
"Training Hour" shall mean the time a CSR or TMR is in MCI- specific training.
The term "Training Hour" does not include time spent by a CSR/TMR in Initial
Training, logged onto the system, scheduled breaks, means, on sick leave,
disability leave, family leave, vacation, jury duty or military service.
25
"Unavailable Time" shall mean the total time, in seconds, a CSR was logged in to
the ACD but unavailable to take Calls.
"Work Hour or System Hour" shall mean each hour that a CSR/TMR is logged onto
the system making a Call or waiting to make a Call as measured by the ACD. The
term "Work Hour" does not include time spent by a CSR/TMR in ongoing training,
meetings, pre-shift meetings, scheduled breaks, unscheduled breaks, Unavailable
Time, meals, on sick leave, disability leave, family leave, vacation, jury duty
or military service.
"Work Time" shall mean time spent by a CSR performing follow-up work on a Call
(account notation, etc.), as measured by the ACD. During Work Time, a CSR is
signed onto the ACD in the Work Time state and is not available to answer a
Call. The average of Work Time per Call Handled shall be known as "Average Work
Time" ("AWT') and shall be calculated by dividing total Work Time by total Calls
Handled.
26
SCHEDULE B
TOP CENTER RANKING
------------------
1. Top Center Ranking.
------------------
1.1. Top Center Ranking is an MCI measurement of key elements that
allows MCI to focus on the critical areas of call center
operation. Every Center is measured and stack ranked on the same
elements.
1.2. Customer Service Centers and Telemarketing Centers are measured
on different key elements. MCI has the right, in its sole
discretion, to vary the elements contained in each Top Center
Ranking, the performance standards contained in each element, and
the weight each element is given. All modifications will be
consistent with those utilized by MCI for its Internal Centers.
1.3. RMH agrees to meet the performance standards for each key element
as set out in MCI's Policies and Procedure.
1.4. MCI will publish daily reporting on the Top Center Rankings. MCI
will publish monthly rankings. All penalties and incentives are
paid based on monthly rankings, as set out in Schedule C.
2. Top Telemarketing Center Ranking.
--------------------------------
2.1. Key elements may include, but are not limited to the following:
2.1.1. Sales
2.1.2. Attrition
2.1.3. Budget Management
2.1.4. Paid Efficiency
2.1.5. Standard Operating Procedures
3. Top Customer Service Center Ranking.
-----------------------------------
3.1. Key elements may include, but are not limited to the following:
3.1.1. Sales
3.1.2. Quality (QCI)
3.1.3. Staffing (Schedule Adherence)
3.1.4. Call Handing (AHT)
27
SCHEDULE C
Pricing
-------
1. RMH PRICING.
1.1 Monthly Customer Service Compensation:
1.1.1 RMH shall be compensated on a monthly basis as follows:
1.1.1.1 If actual Handle Minutes (actual Calls Handled x
monthly AHT goal) is greater than [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] of the monthly
Handle Minute Forecast, then compensation is based
on actual Handle Minutes.
1.1.1.2 If actual Handle Minutes are below [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT] of the
monthly Handle Minute Forecast and RMH has met the
minimum Schedule Adherence Standards, then MCI
will compensate RMH for [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] of the monthly Handle
Minute Forecast.
1.1.1.3 If RMH has not met the minimum Schedule Adherence
Standards, then compensation is based on the
actual Handle Minutes.
1.1.2 RMH will document actual AHT and Calls Handled per invoice
via the ACD reports. MCI reserves the right to review the
ACD, ancillary reports, and any back-up documentation as
necessary, notwithstanding any limits on number of audits
set forth in Section 10 of the Agreement.
1.1.3 Handle Minute Pricing Schedule:
1.1.3.1 For all Calls Handled by CSRs being paid Language
Diff
Customer Services: Spanish 2001 2002-2005
-------------------------- ---- ---------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
1.1.3.2 For all Calls Handled by CSRs not being paid
Language Diff
Customer Services: English 2001 2002-2005
-------------------------- ---- ---------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
1.1.3.3 Pricing Example:
MCI shall compensate RMH for Handle Minutes on a System
Hour basis if volumes do not exceed [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] Handle Minutes per
month. Where Handle Minutes exceed [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] per month, MCI shall compensate
RMH on a per Handle Minute basis. The first [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT] Handle Minutes per
month will be paid at the rates set forth above. All
incremental Handle Minutes above [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] will be paid at the rates set
forth above.
28
1.2 Monthly Telemarketing Compensation
1.2.1 RMH shall be compensated on all actual Work Hours, as
qualified by Section 1.2.1.1.
1.2.1.1 If RMH believes actual Work Hours will be +/- 5% of
the monthly Work Hour Forecast, then RMH must
provide written notice outlining the reasons for the
overage/shortfall. This notice must be provided
three (3) days prior to the end of the month. If
this notice is not provided and hours are greater
than 100% to Work Hour Forecast, MCI reserves the
right to limit the compensation payment for that
month to 100% of the Work Hour Forecast.
1.2.2 Hourly Pricing Schedule:
1.2.2.1 For all Work Hours by TMRs being paid Language Diff
TeleMarketing: Spanish 2001 2002-2005
---------------------- ---- ---------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
1.2.2.2 For all Work Hours by TMRs not being paid Language
Diff
TeleMarketing: English 2001 2002-2005
---------------------- ---- ---------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
1.2.2.3 Pricing Example:
The first [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] Work Hours per month will be paid at [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per Work Hour.
All incremental Work Hours above [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] and up to [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] will be paid at
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per
Work Hour. All incremental Work Hours above [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT] will be paid at
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per
Work Hour.
2. PENALTIES/INCENTIVES
2.1. RMH will be eligible to receive penalties and incentives for the
performance of both customer service and telemarketing Services.
Penalties and incentives are based on Top Center Rankings as set
out in Schedule B.
2.1.1 RMH will not be eligible for penalties or incentives until
September 2001.
29
2.1.2 Customer Service and Telemarketing Top Center Rankings will
both be measured. Any penalties or incentives will be
separately applied to customer service and telemarketing
compensation.
2.1.3 The Penalty/Incentive Pay Schedule will be applied to the
actual Handle Minutes paid for customer service, and the
actual Work Hours paid for telemarketing.
2.1.4. Penalties/incentives will be invoiced on the first invoice
following MCI's monthly determination of Top Center
Rankings.
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
2.2 Penalty/Incentive Pay Schedule.
2.2.1 Top Center incentive is based on meeting all qualifications
for Top Center and being ranked number 1.
2.2.2 All other Penalty/Incentive categories are based on the
stack ranking of all Centers.
3. Seat Utilization Fee
3.1. MCI agrees to pay RMH a monthly fee, per seat, for the use of 432
seats in the Houston RMH Center. The Seat Utilization Fee includes
Operating Cost Components set out in Schedule C1. The Seat
Utilization Fee is premised on MCI having dedicated use of all
productive seats for Services. In the event that MCI agrees to
allow RMH to use any of the seats for other purposes, this fee will
be renegotiated. The Operating Cost Components for services
included in Schedule C1 shall not exceed [REDACTED DUE TO REQUEST
FOR CONFIDENTIAL TREATMENT] per month through the first month after
the Implementation Date. The Parties agree to true-up the Operating
Costs Components to actual costs on a six-month basis and shall
settle that cost variance through the invoice process. Any changes
to any aspects the Operating Costs Components of Schedule C1on a
going-forward basis (e.g., new vendor, variant staffing, new
pricing) must be mutually agreed upon by the Parties.
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
30
4. Pre-Pay: No later than March 30, 2001, MCI will pay RMH [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT].
4.1. [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] to cover the
last 2 months anticipated invoices under this Agreement.
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
4.2. [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] associated with
startup cost using a dedicated facility. The "Misc. Start-up Costs"
figure is an estimate, which will be trued-up to actual costs at the
end of April, 2001.
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
31
SCHEDULE C1
Operating Cost Components
-------------------------
Maintenance & Repairs
. Trash Removal
. Exterminating Service
. HVAC Repairs
. Fire Suppression Repairs
. Plumbing Repairs
. Electrical Repairs
. Sound System Maintenance and Repairs
. Workstation Maintenance and Repairs
. PC, Printer, and Monitor Maintenance and Repairs
. Janitorial
. Generator Fuel and Maintenance
Utilities
. Electric and Gas
. Water and Sewer
Insurance
. General Liability
. Personal Property
. Plate Glass
. Workers Compensation
Professional Fees
. Legal
. Accounting and Audit
Headcount
. Facility Manager
. Porters (2)
Security
. Guard Service
. Security System Maintenance and Monitoring
Exterior Maintenance and Landscaping
. Landscaping
. Plant Service
. Parking Lot Maintenance
Miscellaneous
. Cleaning and Maintenance Supplies
. Musak
. Office Supplies
32
SCHEDULE D
EQUIPMENT/SOFTWARE
------------------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT].
33
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
34
SCHEDULE E:
TERMINATION PAYMENTS
--------------------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
35
SCHEDULE F
OPERATIONS TEAMS
----------------
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
36
SCHEDULE G
Customer Service/Telemarketing Rep/Sup/Manager Compensation Grids
-----------------------------------------------------------------
TABLE 1: Telemarketing Rep/Supervisor/Manager Budgeted Salary, Incentives, and
Variable Costs
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
TABLE 2: Telemarketing Variable Costs (per Headcount per Month)
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
TABLE 3: Customer Service Rep/Supervisor/Manager Budgeted Salary, Incentives,
and Variable Costs
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
TABLE 4: Customer Service Variable Costs (per Headcount per Month)
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
EXECUTION COPY
37
SCHEDULE H
AUTHORIZED INDIVIDUALS
1. RMH Operations Team 1. MCI Operations Team
------------------- -------------------
Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx
Vice President - Operations Director
2. Dispute Escalation 2. Dispute Escalation
------------------ ------------------
Xxx XxXxxxx Xxx Xxxx
Sr. Vice President - Operations Vice President
Xxx Xxxxxx
Director
3. Executive Escalation 3. Executive Escalation
-------------------- --------------------
Xxxx Xxxxxxx Xxxx Xxxxxx
CEO Senior Vice President - Sales & Service
4. Signing Agreements 4. Signing Agreements
------------------ ------------------
Xxxx Xxxxxx Xxxxxxxx Xxxxxx
CFO Senior Vice President - Finance
5. Receipt of Policies & Procedures
--------------------------------
Xxxxxx Xxxxxxxxx
Vice President - Operations
Authorized Individuals may be changed by a Party at any time pursuant to the
Notice Provisions in Section 25.
38
