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