Exhibit 10.11
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
THIS AGREEMENT (the "Agreement") is hereby entered into on September 29, 1997
between ACE*COMM Corporation ("ACE*COMM") located at 000 Xxxxxx Xxxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000, and KMC Telecom Inc., KMC Telecom II, Inc. and KMC
Telecom of Virginia, Inc., collectively the "Customer", with offices at 0000
Xxxxx 000, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000.
RECITALS
Whereas ACE*COMM is a supplier of computer-based telephone billing products and
services and KMC is a competitive local exchange carrier and ACE*COMM intends to
sell and KMC intends to purchase certain telephone billing products and
services, ACE*COMM and KMC are entering into the following two agreements:
1. A CONTRACT FOR DELIVERY OF COMPUTER SYSTEM whereby ACE*COMM will provide
computer hardware, software, and documentation for KMC's Customer billing
requirements.
2. This DATA PROCESSING SERVICES AND SUPPORT AGREEMENT whereby ACE*COMM will
provide computer processing services and support regarding billing and
additional services.
Now, therefore, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. General Undertaking.
(a) Computer Processing Services. The ACE*COMM Data Center ("Data
Center") shall provide Customer with the computer processing services
described in the Schedule of Processing Services (the "Processing
Services") to process Customer's internal information (the "Data"),
which may include internal information of Customer's parent,
subsidiary or other affiliate controlled by any of the foregoing, in
accordance with Section 2(d) ("Performance Goals") and this Agreement.
The Data Center will provide the Processing Services from its data
processing Data Center located in Gaithersburg, Maryland (the
"Processing ACE*COMM Data Center"), at the prices set forth in
Section 4 ("Service Fees & Other Charges").
(b) Communications System. The Data Center shall deliver Processing
Services to a "Point of Connection" located within the communications
room at the Data Center. The Customer shall at its own expense
provide or arrange dedicated telecommunications circuits and
transmission services linking the Point of Connection with the
Customer's central and various remote locations (the
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Data Processing Services and Support Agreement
"Communications System"). The Data Center's ability to provide
Processing Services in accordance with this Agreement is expressly
conditioned on the adequacy and availability of the Communications
System supplied by Customer, provided that ACE*COMM does not interrupt
or interfere with the communications system by its acts or omission or
any of its subcontractors, agents, and representatives. In the event
of any such interruption or interference by ACE*COMM, they shall cause
it to be repaired as soon as possible at their expense.
(c) Remote Access Equipment. The parties shall provide the following
equipment during the Term of this Agreement:
(i) Supplied by the ACE*COMM Data Center. The Data Center shall
provide, install and maintain at the prices set forth in the
Contract for Delivery of Computer System the computer hardware
and telecommunications devices identified on Subpart A of the
attached Schedule of Remote Access Equipment, in Attachment A at
the locations specified therein (the "Data Center's Equipment").
(ii) Supplied by Customer. Except as specified in Section (c) (i)
General Undertaking above, the Customer shall provide, install
and maintain at its own expense all other remote computer
terminals, modems, printers and other hardware and
telecommunications services (including leased lines and
circuits) and devices required to obtain access to the Processing
Data Center and to make effective use of the Processing Services
at the level of activity and performance contemplated herein (the
"Customer Equipment"). ACE*COMM will assist in the implementation
and maintenance of Customer equipment located in Data Center.
(d) Software. The software used by the Data Center to provide the
Processing Services shall be supplied as follows:
(i) Operations Software. The Data Center shall, as specified in
Attachment A, provide a "Standard Library of Software" at no
additional charge and shall provide the "Software Subject to
Surcharge" at the surcharge rates set forth in Attachment A as
amended from time to time.
(ii) Processing Services. Unless specified in the Schedule of
Processing Services, the work contemplated hereunder does not
include software applications development, maintenance or
conversion of programs or data.
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Data Processing Services and Support Agreement
(e) Computer Hardware and Software Support
ACE*COMM agrees to provide Customer support services, hereinafter called
"Support", for items listed in Schedules A through F hereof.
Subject to Customer's fulfillment of its applicable obligations specified in
Section (viii) below, Support under this Agreement will include the following:
(i) Customer Telephone Support
The Customer Telephone Support Service is offered from 8:30 a.m.
to 10:00 p.m. Monday - Friday Eastern Time weekdays except
holidays (24-hour/7-day service is available as an option). The
current holidays are New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and the following Friday, and
Christmas Day.
(ii) Product support services for the NetPlus Pro*Vision Software as listed
in Schedule A which shall include the following:
1. Resolution of problems associated with generic and custom
application software provided by ACE*COMM.
2. Improvements made available through new releases of the
application software features that resolve problems or potential
problems inherent in the Customer's software set.
3. Installation of the new software release via remote dial-up
access.
4. Old version to new version conversion tools as necessary.
5. Documentation updates and improvements.
6. Coverage of the installed operating system. All sites listed
must be operating at the same revision level of the operating
system.
7. This coverage does not include Data Processing Services and
Support required for third party software products.
(iii) Operating System support, as listed in Schedule B, includes:
1. Problem identification and resolution.
2. Assistance with system start-up and shutdown procedures, disk
management procedures, such as disk defragmentation, and other
system administrative housekeeping procedures.
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Data Processing Services and Support Agreement
3. Site configuration setup and modification, as required, for
approved device software connections, such as printers, modems,
terminals, and switch interfaces.
4. Backup procedures, including standalone backups, incremental
backups, and application software backups, and with file
restoration.
5. This coverage does not include the cost of software modifications
to the Operating System, required as a result of equipment
modifications installed by parties other than ACE*COMM.
6. This coverage does not include Data Processing Services and
Support required for third party software products other than the
Operating System unless such product is provided by ACE*COMM.
(iv) Product support services for host computer equipment as listed in
Schedule C, which includes the following:
1. Data Processing Services and Support of the installed equipment .
2. Replacement of all defective applicable hardware parts (labor
included). Shipment will be made via next day air service within
24 hours of identification of defective parts.
3. Twenty-four (24) hour response. Upon notification of a hardware
or software failure by the Customer, ACE*COMM will provide
response within the next business day.
(v) Support Outside Scope
Support provided outside the Scope of this Agreement (such as
additional operator training, Hardware or Software not listed in
Schedules A to C, problems induced by malfunctions of systems not
covered under this Agreement, or data recovery) will be charged at
ACE*COMM's current time and expense rates as listed in Schedule E.
(vi) Problem Resolution
A problem is defined as the failure of any unaltered software or
unaltered hardware listed in Schedules A through C hereof to comply
with Customer-level documentation, when operating within the specified
or operational environment established at the Customer site, at the
time of initial installation. The supplied software or hardware
systems should not have been expanded nor otherwise altered, except by
ACE*COMM, since the time of installation.
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Data Processing Services and Support Agreement
Similarly, any host interfacing or associated systems, not supplied by
ACE*COMM, shall be unaltered and operating in accordance with the
manufacturer's specifications, at the time of installation.
Problem Resolution support shall include the following:
1. Assisting the Customer in isolating problems and preparing
problem documentation, if necessary.
2. Providing problem resolution by one or more of the following
methods:
a. Replacing appropriate hardware components or correcting
software as necessary.
b. Correcting documentation.
c. Publishing feature limitations with possible workarounds.
d. Cooperate with the Customer to propose other solutions that
may be outside the scope of this Agreement.
ACE*COMM shall have unlimited rights to further use or market all software
problem resolutions arising out of the Agreement.
ACE*COMM shall not be liable to perform any services hereunder (i) on any
equipment connected to the installed system without prior written approval
from ACE*COMM, which shall not be unreasonably withheld or delayed or (ii)
relating to damage or malfunction caused by such unapproved installation.
If ACE*COMM performs any work on any such equipment installed without its
approval then ACE*COMM will be paid by KMC for such services at its then
effective hourly rates unless otherwise mutually agreed.
(vii) Response Time
ACE*COMM shall respond to critical problems within two hours. A critical
problem shall be defined as a problem that prevents billing from completing
on time in accordance with the schedule outlined in the Customer Guide, or
one that prevents more then twenty-five percent of the users from
completing their normal tasks. ACE*COMM shall continually use its best
efforts during times of Customer Telephone Support to correct the critical
problem until it is corrected. In all other cases, ACE*COMM shall respond
to a call from the Customer for assistance within four support hours, where
support hours shall mean the hours of Customer Telephone Support and shall
use its best efforts to correct the problem on a mutually agreeable
schedule.
(viii) Customer Responsibilities
To receive the support outlined in Section (e) hereof, the Customer must
provide the following items:
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Data Processing Services and Support Agreement
1. A dial-up/dial-out communications line to/from Gaithersburg, Maryland
to Customer's site and communications hardware at the Customer's site
to allow ACE*COMM personnel to access the Customer's computer
hardware, software and database for problem analysis and resolution.
The Customer shall provide appropriate security procedures to control
access to this line and any sensitive data. Customer is responsible
for usage costs on this line.
2. All expendable items, i.e., printer ribbons, magnetic tapes, drums,
diskettes, batteries, etc.
3. Sufficient notification and applicable documentation on any problem to
allow duplication of the problem on ACE*COMM equipment and software
when necessary.
4. Appropriate magnetic data storage media for the transportation of
computer software between ACE*COMM and Customer's site.
5. Access to the hardware site if on-site Data Processing Services and
Support is required.
6. ACE*COMM will be responsible for implementing and following procedures
to conduct full backups of the system. In the event of database loss
or of a system failure that causes a database loss, ACE*COMM will
assist in restoring the database from the latest backup tape created
and archived by the Customer. ACE*COMM will be responsible for
re-entering any system updates not recovered from the latest backup
tape.
(ix) Price for Support
1. Customer shall pay ACE*COMM in the monthly amount(s) listed in
Schedule F of this Agreement for the Support specified herein.
2. Should travel be necessary, Customer will be charged for all travel
expenses incurred by ACE*COMM in addition to amount(s) listed in
Schedules A, B, C, D, and E except for travel necessary to maintain
host computer equipment.
3. For services required at a time other than those set forth in this
Agreement and for services required because of damages resulting from
accident, transportation, neglect, or misuse, operation of the
equipment outside of the manufacturer's environmental specifications,
failure of electrical power, air conditioning or humidity control,
said service charges shall be at the per call rate in effect at the
time service is rendered.
4. Remedial service calls wherein the problem is determined to be other
than as covered by this Data Processing Services and Support Agreement
shall be billed to the Customer at the per call rate in effect at the
time of call.
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Data Processing Services and Support Agreement
5. Charges not covered by this Data Processing Services and Support
Agreement are Customer's responsibility and the Customer shall pay for
sales, use and like taxes.
6. Other Billable Services. The Data Center shall be reasonably
available from time to time during the Term hereof to assist Customer
with "Other Billable Services" outside the scope of Schedule of
Processing Services. Such services could include assistance in the
design or procurement of additional or different telecommunications
circuits, implementation or consolidation of other Customer data
processing operations, software development or conversion services and
general troubleshooting of problems with Customer-supplied application
software or problems interfering with Processing Services not caused
by the ACE*COMM Data Center. Other Billable Services shall be subject
to a signed amendment hereto or separate agreement between the
parties.
2. Processing Data Center Operations.
(a) Initiating Processing at ACE*COMM Data Center. Within fifteen (l5)
days after execution of this Agreement, the parties shall each appoint
a Coordinator responsible for coordinating and facilitating the
implementation of Customer's data processing operations to the
Processing ACE*COMM Data Center. If higher authority is required, it
shall be resolved expeditiously. The Data Center shall plan, manage
and execute the implementation according to a plan and schedule
approved by the parties. Both parties shall develop the first draft
of the plan within thirty (30) days of contract signing and will
refine the plan throughout the term of this Agreement. Such plan
shall provide the Implementation Plan.
(b) Commencement of Processing Services. Upon completion of
implementation, the parties shall test the Processing Services to
determine whether the level of performance complies with the criteria
set forth in the Implementation Plan, as mutually created. The
"Commencement Date" of the Processing Services shall be the date of
Customer's verification that the Processing Services conform to the
criteria set forth in the Implementation Plan or, if earlier, the date
on which Customer begins to make substantial beneficial use of the
Processing Services, as shall be mutually agreed. Target date will be
between November 15,1997 and December 15 1997. Thereafter, each
anniversary of the Commencement Date shall be considered a separate
"Processing Year" for purposes of this Agreement.
(c) Operations Management.
(i) Customer Account Coordinator. The Data Center shall appoint a
Customer Account Coordinator to serve as Customer's key point of
contact with the Data Center for any questions, problems or
service issues during the Term hereof, as more fully explained in
the ACE*COMM Data Center's Customer Guide to be provided no later
than October 30,1997 in draft form and to be completed no later
than November 15,1997 with five (5) working days for each review
cycle (when so completed, the
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Data Processing Services and Support Agreement
"Customer Guide."). This Customer Guide is to be kept current by
both parties as to current practices and procedures.
(ii) Documentation. The Data Center shall, at its own expense,
provide Customer two (2) copies of the Customer Guide and related
documentation pertaining to ACE*COMM Data Center-supplied
software (collectively, the "Documentation"). The Customer may
copy the Documentation. Upon termination of this Agreement, the
Customer shall return to the Data Center all copies of
Documentation under its possession or control.
(iii) Data Center Contact/Interface Training. The Data Center
shall, provide Customer initial training and instructions at a
mutually convenient location as may reasonably be needed by
managers and technicians of general proficiency to make effective
use of the Processing Services provided by ACE*COMM. Training is
to be provided under and in accordance with the Contract for
Delivery of Computer Systems.
(iv) Operating Procedures. The Customer and ACE*COMM shall at all
times comply with each company's respective operational and
security procedures, as reflected in the Customer Guide, as from
time to time revised upon mutual agreement. Each Party reserves
the right in its sole discretion to upgrade or reconfigure its
own system components, hardware or software and otherwise to
arrange its location or method of operations and procedures as it
deems necessary or helpful in meeting the requirements of this
Agreement, provided that no configuration or upgrading interferes
with ACE*COMM's ability to perform in full its obligations
hereunder and further provide that no such reconfiguration or
upgrading has a cost impact on Customer without its prior written
approval.
(d) Performance Goals.
(i) Processing Services Performance Objectives. The Data Center
shall make its best efforts to meet the minimum performance
objectives (Performance Goals) for the Processing Services, as
follows:
a) Timeliness of Bills. The Data Center shall send out all
bills generated by Processing Services with the following
schedule. Where not otherwise specified by agreement
between ACE*COMM, Customer and the billed party, the Data
Center shall send out its standard subscriber bills for
Customer's accounts within nine (9) days after the end of
the billing cycle or nine (9) days after all correct
information has been provided by Customer, whichever occurs
later, wherein the billed charges were incurred. Bills must
be sent to the correct address, physical or electronic, for
each account as provided by Customer in order for ACE*COMM
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Data Processing Services and Support Agreement
to fulfill the requirement of timeliness set forth by this
Subsection (a).
ACE*COMM will meet the above schedule by completing cycle
processing for verification not later than six days after
the scheduled cycle date. Cycle verification will be the
responsibility of Customer. ACE*COMM will not release for
printing cycle statements until verification by Customer is
complete and ACE*COMM is notified by Customer to proceed.
This activity will be done via Facsimile or via E-mail as
defined in Data Center Customer Guide.
ACE*COMM will print, stuff and prepare for mailing all cycle
statements within two days after cycle verification by
Customer. ACE*COMM will mail statements in local markets by
the third day after the date Customer gives ACE*COMM cycle
verification.
b) Method of Delivery for Bills. The Data Center shall deliver
bills in accordance with the method specified by Customer
for the billing of each account. Where not otherwise
specified by Customer, the Data Center shall deliver bills
by first-class mail postage prepaid.
c) Accuracy of Bills. The Data Center shall xxxx parties for
the full and exact amount indicated as calculated by the
Data provided by Customer unless otherwise instructed in
writing by Customer.
(ii) Other Matters. The Performance Goals (and any specific
goals for particular system functions described in any attachment
hereto other than the Connectivity Goal) shall be considered
objectives only and not representations, warranties or guarantees
of performance, except as expressly set forth in iii.
(iii)Connectivity Goal. The ACE*COMM Data Center shall make its
best effort to meet the performance objective for Computer
System Availability (as defined below for on-line
communications) of 97.5%.
After the first month of operation, during any month that
Computer System Availability falls below 97.5%, then the monthly
processing fee shall be reduced by an amount equal to 1/2 percent
of the Monthly Minimum Processing Fee for each 1/2 percent below
the 97.5%. During any month that Computer System Availability is
greater than 97.5%, then the monthly processing fee shall be
increased by an amount equal to 1/2 percent of the Monthly
Minimum Processing Fee for each 1/2 percent above the 97.5%. Six
months from the date of this agreement, the parties shall
negotiate in good faith to weight the charges to account for
hours of operation that may be most critical to the Customer
(i.e. hours that are
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Data Processing Services and Support Agreement
more critical may have a fee adjustment that is greater than
hours that are less important; however, the total adjustment
shall not change.)
(iv) For these purposes, the "Computer System Availability" means the
processor complex and the operating system connectivity to
Customer's own communications equipment and leased lines.
ACE*COMM will work to coordinate scheduled outages via a
quarterly plan that is mutually worked with KMC. The percentage
of Computer System Availability shall be calculated as follows:
Potential Available Hours. The total actual hours per month of
Scheduled Maintenance Outages (as mutually determined on at least
five (5) days' notice) prior to the commencement of any outage
for the Computer System Connectivity are subtracted from the
total number of Calendar Hours per month (24 hours times the
actual number of days in a given month) to derive the Potential
Available Hours;
Actual Available Hours. The total Outage time for that month
expressed in fractions of hours ("Outage Hours"), as recorded in
the ACE*COMM Data Center's Problem Management System and other
system information logs, is subtracted from the Potential
Available Hours to derive the Actual Available Hours; and
Percentage of Computer System Availability. The Actual Available
Hours (x) is divided by the Potential Available Hours (y), less
recorded network outages (outside of the Data Center, which
includes the output port of Customer owned communications
equipment) to yield the percentage of Computer System
Availability.
Migration From ACE*COMM Data Center. If Customer terminates on
account of ACE*COMM's breach and such breach is confirmed either
by mutual agreement or otherwise, then ACE*COMM will upon
request, provide sample data and then, upon a second request,
provide all KMC data currently stored at ACE*COMM to KMC and
shall provide thirty two (32) hours of telephone consulting
services at no additional charge. If such services are requested
for an additional period, then they shall be offered at
ACE*COMM's rates that are then in effect. Upon termination of
this Agreement for any other reason after the term of this
Agreement, the Data Center shall provide support staff, services
and shall cooperate fully with Customer to plan and execute an
orderly migration of hardware, software and Processing Services
to the destination of Customer's choice according to a migration
plan and schedule supplied by Customer in mutually agreeable
form. Such assistance shall be provided as Other Billable
Services in accordance with Section 1(e) ("Other Billable
Services").
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Data Processing Services and Support Agreement
3. Term, Termination. This Agreement shall be effective from the date
indicated above and, unless terminated earlier under this Section 3 or
under Section 14 ("Default"), shall continue in full force and effect for a
period of four (4) years from the Commencement Date. The Term shall be
renewed for successive one (l) year periods unless either party notifies
the other party at least ninety (90) days prior to expiration of the then
current Term that the Agreement shall not be renewed. Notwithstanding the
foregoing, Customer may terminate this Agreement at any time for
convenience after completion of the third (3rd) Processing Year, upon
ninety (90) days' notice and payment of the "Termination Fee" described in
Attachment A. Such termination shall have no effect on Customer's
obligation to pay for all amounts due hereunder or the parties' rights and
obligations under Section 6 ("Proprietary Rights"), Section 7
("Confidential Information"), Section 8 ("Nonsolicitation"), Section 11
("Limitation of Remedies & Liabilities") or Section 21 ("Compliance with
Export Regulations"). Notwithstanding the foregoing, in the event the Data
Center fails during four (4) of any eight (8) consecutive months to meet
the Performance Goals described in Section 2(d) ("Performance Goals") and
such failure is not excused by Section 20 ("Force Majeure"), Customer shall
have an unrestricted right to terminate this agreement and shall thereafter
incur no obligations under the Agreement. Such termination shall have no
effect on the parties' rights and obligations under Section 6 ("Proprietary
Rights"), Section 7 ("Confidential Information"), Section 8
("Nonsolicitation"), Section 11 ("Limitation of Remedies & Liabilities") or
Section 21 ("Compliance with Export Regulations").
4. Service Fees & Other Charges. Beginning with the Commencement Date and in
consideration of the Processing Services and other technology or services
provided under Section 1 ("General Undertaking"), the Customer agrees to
pay the Data Center the following compensation in accordance with Section 5
("Invoices & Payment"):
(a) Monthly Service Fees.
Customer shall pay the greater of either:
(i) Minimum Monthly Service Fee. Data Center a Minimum Monthly
Service Fee in the amount of twelve thousand five hundred dollars
($12,500.00) for the Processing Services, prorated for the
initial partial month following the commencement date in
accordance with section 5.
(ii) Transaction Processing Fee. Data Center Transaction Processing
Fee as calculated in accordance with Attachment B.
(b) Certain Other Charges. If the data submitted by Customer is
incorrect, incomplete or not in the format specified by the
Customer Guide, Customer agrees to pay the ACE*COMM its then
current standard hourly rates as set forth in this agreement at
such time for additional work required to correct, complete or
otherwise prepare the data for processing. ACE*COMM shall be
required to provide to Customer itemized invoices with reasonable
detail as to all or any such charges.
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Data Processing Services and Support Agreement
Prior to cycle printing (cycle printing here means printing bills and
associated reports for the affected billing cycle), ACE*COMM shall
provide a file that KMC shall review for approval. Once KMC provides
approval for cycle printing (which consent shall not be withheld to
the extent that defects are immaterial - e.g. relating to formatting
or other cosmetic effects), (i) all costs for transaction processing,
and/or cycle printing will be the responsibility of Customer (this
includes restarts and reruns) and (ii) KMC shall have no claim against
ACE*COMM for any errors or omissions that were made available for KMC
to review. Any time required by KMC to review bills shall not be
considered as part of the days ACE*COMM has taken to print the bills
The price for Other Billable Services, if any, rendered by the Data
Center shall be the ACE*COMM Data Center's then current price from
time to time in effect or such price as the parties otherwise agree in
writing. Unless otherwise stated, the price for Other Billable
Services does not include and Customer shall reimburse the Data Center
for all associated, required and actually incurred, reasonable
out-of-pocket costs for travel (coach class if by air), long distance
telephone, shipping, supplies and other related costs, subject to
reasonable reporting and substantiation requirements and charge an
additional amount calculated at the same rates as those listed in
Attachment B.
If reruns and restarts are required because of Customer error, then
Data Center will provide rerun individual cycle activity at normal
cost to Customer (this includes the direct cost of printing and
output processing materials and supplies and services).
If reruns and restarts are required because of Data Center error, then
Data Center will rerun individual cycle activity at no additional cost
to Customer.
If reruns and restarts are required because of joint Customer and Data
Center error, then Data Center will perform a single cycle activity
rerun process at no additional cost to Customer (this does not include
the direct cost of printing and output processing materials and
supplies and services).
All rerun responsibilities for both Customer and ACE*COMM are outlined
in Data Center Customer Guide.
(c) Certain Taxes. The Customer shall be responsible for any state and
local sales or use tax based on the Customer's payment of fees and use
of Processing Services or other deliverables provided hereunder.
ACE*COMM shall be responsible for taxes based on ACE*COMM's net
income, gross income, receipts, capital or net worth as well as all
minimum taxes, doing business taxes, franchise taxes, and employment
related taxes.
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Data Processing Services and Support Agreement
5. Invoices & Payment.
(a) Minimum Monthly Service Fee. The Minimum Monthly Service Fee shall be
paid in arrears, without invoice or additional notice, on the first
day of each month beginning with the month following the month in
which the Commencement Date occurs. The Minimum Monthly Service Fee
shall be prorated during the first month of the first Processing Year
and the last month of the Term hereof based on the ratio of the actual
number of days of Processing Services utilization to the total number
of days in each such month.
(b) Additional Service Fee. The Data Center shall submit an invoice to
Customer for any additional service fees relating to reruns,
consulting services, etc. (Additional Service Fees) by the fifteenth
(15th) day of the month following the month in which such Additional
Service Fees are incurred by Customer. Such Additional Service Fees
shall be paid no later than thirty (30) days from date of invoice.
(c) Other Charges. Any amounts due for Other Billable Services,
reimbursable out-of-pocket costs or other charges due hereunder shall
be invoiced monthly and paid by Customer within thirty (30) days from
date of invoice.
(d) Late Charges. Except as otherwise specifically set forth in Data
Processing Services payment shall be made within thirty (30) days from
receipt of invoice. Customer may not withhold or "setoff" any amounts
due, unless amounts are in dispute, hereunder and ACE*COMM reserves
the right to suspend work without prejudice if amounts are not paid
within thirty (30) days after the date when due. Any late payment
shall be subject to any necessary costs of collection (including
reasonable legal fees) and shall bear interest at the prime rate
announced by Citibank plus 3% until paid.
(e) Audit Procedures. Customer from time to time will be able to perform
an audit of processes that are used by the Data Center for calculating
charges to Customer. This process shall be mutually agreed upon with
frequency, and terms are outlined in the Customer Guide.
6. Proprietary Rights.
(a) Rights in Data. The Data Center agrees that all Data received,
computed, developed, used or stored pursuant to this Agreement shall
remain the exclusive property of the Customer and that immediately
upon termination of this Agreement, all such Data shall be furnished
to Customer in machine readable form without additional charge, except
for reasonable processing, material and labor costs, provided Customer
is current in its payment of all amounts due hereunder. The Data
Center further agrees that the Data will be used only for the purposes
expressly contemplated by this agreement and for no other purpose.
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Data Processing Services and Support Agreement
(b) Rights in Software. All software of third party vendors (other than
ACE*COMM) supplied by the Data Center shall be governed by the terms
and conditions of the original vendor license agreement accompanying
such software or, if no such license agreement is included, by the
vendor's standard license terms generally applicable to the particular
product provided such terms are typical and ordinary and, in all
cases, do not impose any obligations upon the Customer in addition to
the Customer's obligations as set forth in this Agreement.
Upon payment of all fees associated thereto, which are included in the
price hereof at no extra cost or expense as part of the monthly fees
hereunder, the Customer is hereby granted the nonexclusive right and
license to use, execute and copy all software supplied by the Data
Center in object code form as an integral part of obtaining the
Processing Services and for no other purpose. Except as provided by
Section 19 ("Assignment, Transfer"), Customer may not assign, transfer
or sublicense this license without the Data Center's prior written
consent (which consent shall not be unreasonably withheld, or delayed)
and any attempt to the contrary shall be void. With respect to the
Customer-supplied software, the Data Center is hereby granted the
nonexclusive right and license to use such software in the same
form(s) provided by Customer for use in providing the Processing
Services and for no other purpose. The Data Center may not assign,
transfer or sublicense this license without the Customer's prior
written consent (which consent shall not be unreasonably withheld. or
delayed) and any attempt to the contrary shall be void. Unless
otherwise agreed in writing, any specially ordered software or
modifications developed by the Data Center at Customer's request shall
be owned exclusively by the Data Center and Customer; provided that to
the extent any custom software also contains third party software,
Customer shall receive a nonexclusive license conferring rights and
obligations equivalent to those provided for other ACE*COMM Data
Center-supplied software, as described in the second sentence of this
Subsection.
7. Confidential Information.
(a) Acknowledgment of Confidentiality. Each party hereby acknowledges
that it may be exposed to confidential information belonging to or
supplied by the other party or relating to its affairs including,
without limitation, the Data, software, business plans and procedures,
the terms of this Agreement, the Customer Guide, and other information
that may be marked as confidential ("Confidential Information").
Confidential Information does not include (i) information already
known or independently developed by the recipient outside the scope of
this project and without knowledge of this project (i.e. unaided
memory); (ii) information in the public domain through no wrongful act
of the recipient, or (iii) information received by the recipient from
a third party who was free to disclose it.
(b) Covenant Not to Disclose. With respect to the other party's
Confidential Information, and except as expressly authorized herein or
as required by a court of competent jurisdiction, or other
governmental agency, the recipient hereby agrees that during the Term
hereof and at all times thereafter it shall not use,
14
Data Processing Services and Support Agreement
commercialize or disclose such Confidential Information to any person
or entity, except to its own employees having a "need to know" or such
parties attorneys, accountants if required and in the cases of
Customer, to its lenders who it is understood shall be entitled to
under Customer's financing arrangements (and who are themselves bound
by similar nondisclosure restrictions) and to such other recipients as
the other party may approve in writing. In no event shall either party
attempt to decompile, disassemble or reverse engineer the other
party's confidential or proprietary information and any information
discovered in violation of this provision shall be treated as
Confidential Information belonging exclusively to the other party.
Each party shall use at least the same degree of care in safeguarding
the other party's Confidential Information as it uses in safeguarding
its own confidential information, but in no event shall less than due
diligence and care be exercised. The Data Center shall not make use
of any of the information received from the Customer for any purpose
not expressly contemplated by this Agreement. If requested by the
Customer, the ACE*COMM Data Center's Personnel who are assigned to
work on the Customer's projects shall execute a document satisfactory
to the Customer acknowledging and agreeing to be bound by the terms of
this Section 7 ("Confidential Information").
(c) Normal Use. Except as otherwise specifically set forth in Section 6,
nothing in this Section 7 shall be deemed to restrict the Customer
from using any of the Customer's Data or any deliverable in the
ordinary course of its business it being understood that many
employees, subcontractors and others will use the Confidential
Information in completing their duties for the Customer and that it
may become necessary for the Customer to interface Confidential
Information constituting software to other systems utilized by the
Customer, its customers, its suppliers, and its consultants.
8. Nonsolicitation. During the Term and for a period of one (1) year
thereafter, each party agrees not knowingly to solicit, nor attempt to
solicit, the services of anyone who has been an employee within the
previous six months of the other party, unless such employee was terminated
or laid off by such party, without the prior written consent of the other
party. If this provision is violated, the violating party shall pay
liquidated damages equal to one hundred fifty (150) percent of the
solicited person's annual compensation; provided that upon making such
payment, the violating party shall not be in breach of this Agreement.
9. Injunctive Relief. The parties acknowledge that violation by one party of
the provisions of Section 6 ("Proprietary Rights"), Section 7
("Confidential Information") or Section 8 ("Nonsolicitation") would cause
irreparable harm to the other party not adequately compensable by monetary
damages. In addition to other relief, it is agreed that temporary and
permanent injunctive relief would be an appropriate remedy to prevent any
actual or threatened violation of such provisions or to enforce such
provisions according to their terms. Any party substantially prevailing in
an action for injunctive relief under this Section 9 shall be entitled to
recover its costs of enforcement, including reasonable attorneys' fees.
15
Data Processing Services and Support Agreement
10. Warranties; Indemnity.
(a) Noninfringement Warranty. ACE*COMM (the "Indemnitor") represents and
warrants that the Data and any software supplied by it in accordance
with Section l(d) ("Software"), when properly used as contemplated
herein, will not infringe or misappropriate any United States
copyright, trademark, patent, or the trade secrets of any third
persons and will defend, indemnify and hold harmless the Customer, its
affiliates and their respective agents, representatives, directors,
officers and employees (the "Indemnitees") from all damages, costs and
expenses (including reasonable attorneys' fees) incurred as a result
of any third party claim to the contrary. Upon being notified of such
a claim, the Indemnitor shall (i) defend through litigation or obtain
through negotiation the right of Indemnitee to continue using the Data
or software; (ii) purge the Data of tainted material or rework the
software so as to make it noninfringing while preserving the original
functionality; or (iii) replace the software with functionally
equivalent software. If the Indemnitee reasonably determines that
none of the foregoing alternatives provide an adequate remedy, the
Indemnitee may, in addition to other relief, terminate all or any part
of this Agreement.
(b) Limited Performance Warranty. The Data Center represents and warrants
that it shall make its best efforts to ensure that the Processing
Services are compatible with industry standards and practices, and
that all software is free from material malfunctions, errors or loss
of Data, however, the Data Center does not represent or warrant that
the Software will be entirely free from error or defect, or that it
will actually achieve the Performance Goals. The foregoing warranty
shall not apply if: (i) Customer fails to follow all operational
instructions contained in the most current Customer Guide;
(ii) Customer fails to notify the Data Center of errors or defects
within a reasonable time after the appearance thereof; (iii) Customer
fails to (to the extent Customer bears responsibility under another
provision of this Agreement) provide and maintain adequate Remote
Access Equipment, software, the Communications System and
environmental conditions in accordance with applicable specifications
and industry standards; (iv) Customer has introduced other equipment,
software or unusually heavy workloads creating a materially adverse
impact on the Processing Services or the ACE*COMM Data Center's
ability to achieve the Performance Goals. Customer is solely
responsible for the adequacy and accuracy of all Data it submits.
(c) Warranty Response. Upon being notified by the Customer or otherwise
obtaining knowledge of a malfunction, error, or defect of the Software
the Data Center shall respond within a reasonable time as set forth in
the Customer Guide, by telephone support or through the issuance of
periodic updates to acknowledge the malfunction, error, or defect and,
with the cooperation of the Customer, shall promptly commence
diagnosis and error correction efforts and shall use all reasonable
efforts to correct such problem before the subsequent billing cycle
commences.
16
Data Processing Services and Support Agreement
(d) Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
SECTION 10 ("WARRANTIES") THE DATA CENTER HEREBY DISCLAIMS WITH
RESPECT TO ALL PROCESSING OR OTHER SERVICES, EQUIPMENT, SOFTWARE, OR
DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, IT BEING
UNDERSTOOD THAT THE PROCESSING SERVICES SHALL BE FIT FOR CUSTOMER'S
INTENDED PURPOSE.
11. Remedies & Limitation of Liability. The parties acknowledge that the
following provisions have been negotiated by them and reflect a fair
allocation of risk:
(a) Warranty Remedies. Customer's remedy for Data Center's breach of
warranty hereunder shall be to obtain repair, replacement or
correction of the defective services, software, equipment or
deliverable to the extent warranted under Section 10 ("Warranties")
which, in the case of Processing Services, means the Data Center shall
at its own expense reinput the Data or rerun the programs containing
the error, provided that Customer shall have the right to bring action
to enforce such warranty. If such remedy is not economically or
technically feasible or effective, then Customer may obtain an
equitable partial or full credit or refund of amounts paid with
respect to the defective services or deliverable, subject to the
limitation set forth in Subsection (b) below.
(b) Make-Whole Amounts. Subject to the provisions of Section 20 of this
Agreement, if for any billing period ACE*COMM has timely received the
billing data from Customer, but delays in issuing such bills for a
period in excess of fifteen (15) days past the mutually Scheduled Date
as established in the Customer Guide, then ACE*COMM shall pay Customer
an amount equal to the daily interest on the aggregate principal
amount of such delayed bills, commencing on the 16th day of delay and
continuing for each day the bills are not issued until the 45th day of
delay, at a rate that is equal to prime interest rate plus 12% per
annum or the then current cost of money to KMC ("Interest Make-Whole
Amount"). Subject to the provisions of Section 20 of this Agreement,
if ACE*COMM continues to delay in issuing bills after such 45 day
period, then ACE*COMM shall pay to Customer, in addition to the
Interest Make-Whole Amount, an amount equal to 15% of the aggregate
principal amount of all such unissued bills ("Principal Make-Whole
Amount"). Upon review and approval by ACE*COMM, all amounts payable
to Customer by ACE*COMM under this Section 11(b) shall be paid within
twenty (20) days of receiving Customer's invoice requesting such
amounts. Sixty days following the date of issuance of bills subject
to Principal Make-Whole Amounts, Customer shall prepare a
reconciliation and promptly refund to ACE*COMM the portion, if any, of
the Principal Make-Whole Amount equal to (1) the excess over 85% of
the aggregate billed amount actually collected and (2) allowance for
bad debt which as of the date hereof is equal to Customers preceding
twelve (12) months bad debt experience as a percent of revenue.
Customer will perform a final reconciliation sixty (60) days after the
initial reconciliation, and shall refund to ACE*COMM
17
Data Processing Services and Support Agreement
any additional amount over 85% of the principal collected during such
period and the reasonable allowance for bad debt. Make-Whole
calculations and the basis for such calculations shall be subject to
ACE*COMM review and approval. Any actual delay caused by any changes
to the software made at the request of KMC and in the time frame
mutually agreed to by Customer and ACE*COMM shall not be considered
delays for purposes of this section and the grace period shall be
extended on a day-for-day basis.
(c) Liabilities. EXCEPT FOR (i) WARRANTY CORRECTION OBLIGATIONS UNDER
SECTION 10 (A), (ii) DAMAGES ARISING FROM INJURY TO PERSON OR PROPERTY
COVERED UNDER SECTION 17, (iii) DAMAGES ARISING OUT OF AN INFRINGEMENT
OF INTELLECTUAL PROPERTY RIGHTS OR DISCLOSURE OF CONFIDENTIAL
INFORMATION, (iv) ANY INJUNCTIVE RELIEF AUTHORIZED PURSUANT TO THIS
AGREEMENT, or Make-Whole Amounts under Section 11(b), and without
limiting the parties' respective indemnity obligations under Section
17:
(i) ACE*COMM's aggregate liability for contract damages shall not
exceed a maximum amount of $1,000,000.00; and
(ii) Customer's liability hereunder shall consist solely of (i) its
obligations to make payments for services rendered hereunder as
and when due; (ii) late fees assessed in connection therewith;
(iii) payments in connection with its insurance/indemnity
obligations under Section 17 and; (iv) any applicable termination
fee.
(d) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY,
WHETHER IN CONTRACT, TORT (INCLUDING CONTRACT NEGLIGENCE, BUT
EXCLUDING PERSONAL INJURY TORT LIABILITY) OR OTHERWISE, FOR ANY
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFIT
OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH
POSSIBILITY) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF
THIS AGREEMENT.
18
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
12. Notices. Notices sent to either party shall be effective when delivered in
person or transmitted by telecopier ("fax") machine answerback confirmation
received, one (1) day after being sent by nationally reputable private
overnight courier when received, or two (2) days after being sent by
first-class mail postage prepaid to the addresses set forth below, or to
such other address as the parties may from time to time give notice:
KMC Telecom Address: ACE*COMM Address
Xx. Xxxxxxx Xxxxxxxx Mr. S. Xxxxxx Xxxx
Chief Financial Officer Vice President, NET*COMM
KMC Telecom Inc. ACE*COMM Corporation
0000 Xxxxx 000 000 Xxxxxx Xxxxxxx Xxxx
Xxxxx 000 Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Tel (000) 000-0000 Tel (000) 000-0000
Fax (000) 000-0000 Fax (000) 000-0000
13. Fax Counterparts. A facsimile of this Agreement and notices generated in
good form by a fax machine (as well as a photocopy thereof) shall be
treated as "original" documents admissible into evidence unless a
document's authenticity is genuinely placed in question.
14. Default. Either party shall be in default of this Agreement if: (i) it
breaches any material provision hereof and fails within thirty (30) days
after receipt of notice of default to correct such default or to commence
corrective action reasonably acceptable to the aggrieved party and proceed
with due diligence to completion; provided that Customer shall not be in
breach for purposes of giving a notice of breach on account of late payment
until payments are at least thirty (30) days past due and the Customer
shall have ten (10) days to correct such default;or (ii) it becomes
insolvent, makes an assignment for the benefit of its creditors, a receiver
is appointed or a petition in Bankruptcy is filed with respect to the party
and is not dismissed within thirty (30) days.
15. Dispute Escalation: Arbitration, Choice of Law. Except for certain
injunctive relief, a party may seek at law or in accordance with section
10(a) which may be sought at any time, any dispute between the parties
arising out of or relating to this Agreement or a breach hereof which
dispute is not resolved within 10 days after receipt of notice by the
allegedly breaching party, such dispute shall immediately be referred for
resolution jointly by senior executives of the parties who are authorized
to negotiate a resolution to such dispute. If such individuals are unable
to agree upon a resolution within 20 days after referral of such dispute to
them (such 20 day period together with the preceding 10 day period being
referred to as the Resolution Period; provided, however that the Resolution
period shall in no event be less than 30 days), then either party may, upon
notice to the other party pursuant to Section 12, refer the dispute for
final, binding arbitration to the American Arbitration Association ("AAA")
or its successor organization for arbitration before a panel of three
arbitrators (with each party choosing one arbitrator and the third
arbitrator being chosen by the first two arbitrators) in
19
Washington, D.C. Such arbitration shall be conducted under the
administrative rules of the AAA; provided, however, that in the event of
any conflict between such administrative rules and this Section 15, the
provisions of this Section 15 shall govern. Each party shall bear its own
costs and attorneys' fees with respect to such arbitration. The award of
the arbitrators shall include a written explanation of their decision. The
parties hereby agree that arbitration before the AAA pursuant to this
Section 15 shall be the parties' exclusive remedy and that the arbitration
decision and award, if any, shall be final, binding upon, and enforceable
against, the parties, and may be confirmed by the judgment of a court of
competent jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF the state of New York without
reference to principles of conflicts of laws.
16. Independent Contractor Status. Each, party and its people are independent
contractors in relation to the other party with respect to all matters
arising under this Agreement. Nothing herein shall be deemed to establish
a partnership, joint venture, association or employment relationship
between the parties. Each party shall remain responsible, and shall
indemnify and hold harmless the other party, for the withholding and
payment of all Federal, state and local personal income, wage, earnings,
occupation, social security, worker's compensation, unemployment, sickness,
and disability insurance taxes, payroll levies or employee benefit
requirement (under ERISA, state law or otherwise) now existing or hereafter
enacted and attributable to themselves and their respective people.
17. Security, No Conflicts. Each party agrees to inform the other of any
information made available to the other party that is classified or
restricted data, agrees to comply with the security requirements imposed by
any state or local government, or by the United States Government, and
shall return all such material upon request. Each party warrants that its
participation in this Agreement does not conflict with any contractual or
other obligation of the party or create any conflict of interest prohibited
by the U.S. Government or any other government and shall promptly notify
the other party if any such conflict arises during the Term.
18. Insurance, Indemnity. Each party shall maintain adequate Insurance
protection covering its respective activities hereunder, including in the
case of ACE*COMM the following: (a) commercial general liability insurance
written on an occurrence basis with a limit of not less than $1,000,000,
including, but not limited to, premises/operations, contractual liability,
independent contractors, products/completed operations, property damage and
personal injury liability; (b) workers' compensation insurance in
accordance with statutory provisions covering employees of ACE*COMM while
at work or in the scope of employment and employer's liability insurance in
an amount not less than $1,000,000; (c) automobile liability insurance
covering owned, non-owned, leased, hired or borrowed vehicles with a limit
of not less than $1,000,000; (d) excess or umbrella liability insurance in
an amount not less than $5,000,000 written on an occurrence basis providing
coverage limits in excess of the insurance limits required under clauses
(a), (b) (employer's liability only), and (c). ACE*COMM shall cause all
such insurance policies to be endorsed as follows: Customer shall be named
as an additional insured, and the insurers shall waive all rights of
subrogation against Customer and its subsidiaries and
20
affiliates and such insurance shall be primary and without right of
contribution of any other insurance carried by or on behalf of Customer and
its subsidiaries and affiliates.
(a) ACE*COMM Indemnity. Without duplication of ACE*COMM's indemnity
obligations under the Contract for Delivery of Computer System,
ACE*COMM agrees to indemnify, defend and hold harmless Customer and
any of its affiliates and all of their respective directors, officers,
employees, agents, representatives, successor and assigns, from and
against all causes of action liabilities, judgments, penalties,
damages and expenses (including settlements) relating to, or arising
from the following:
(i) actual or asserted failure by ACE*COMM or any of its affiliates
to comply with any law, statute, code, ordinance, regulation,
rule or order of any governmental or quasi-governmental body, in
the performance of ACE*COMM's responsibility under this
Agreement; or
(ii) intellectual property related claims in accordance with the
provisions of Section 11(a); or
(iii) claims on account of (a) injury to or death of persons or
(b) damages to or loss of real or tangible personal property
arising directly or indirectly out of ACE*COMM's
responsibilities under this Agreement; or
(iv) any claims of third parties brought against Customer which arise
as a direct result of breach or fault by ACE*COMM under this
Agreement.
(b) Customer Indemnity. Without duplication of ACE*COMM's indemnification
obligations under subsection (a) above, Customer agrees to indemnify,
defend and hold harmless ACE*COMM and any of its affiliates and all of
their respective directors, officers, employees, agents,
representatives, successors and assigns, from and against all causes
of action and claims of any kind and all liabilities, judgments,
penalties, damages and expenses relating in any way whatsoever to, or
arising from the following:
(i) actual or asserted failure by Customer or any of its affiliates
to comply with any law, statute, code, ordinance, regulation,
rule or order of any governmental or quasi-governmental body, in
the performance of Customer's responsibility under this
Agreement; or
(ii) claims on account of (A) injury to or death of persons or (B)
damages to or loss of real or tangible personal property arising
directly or indirectly out of Customer's responsibilities under
this Agreement.
(c) If either party (in such case the "Indemnitee") intends to seek
indemnification under this Article form the other party (the
"Indemnifying Party") with respect to any claim, the Indemnitee shall
give the Indemnifying Party notice of such claim as soon as
practicable after learning of the commencement of the action or
proceeding or
21
filing of a claim that may give rise to the right to indemnification
hereunder. The Indemnifying Party shall have the right to assume the
defense of any such claim with counsel designated by the Indemnifying
Party and reasonably satisfactory to the Indemnitee. The Indemnitee
shall cooperate with and assist the Indemnifying Party as may be
reasonably required, at the Indemnifying Party's expense, in
connection with the disposition of such claim or costs being
indemnified against. After the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in such
action, from and after such time at its own expense. Should the
Indemnifying Party fail or refuse to assume the defense of such claim
or action, the Indemnitee may contest or settle such claim with
counsel of its choice at the sole expense of the Indemnifying Party.
(d) In the event of joint liability, the parties shall bear their
respective share of fault. Any party seeking indemnity under this
provision shall promptly notify the other party within the time
required to allow the indemnifying party to prepare and timely file
court papers in connection with the claim.
(e) Survival. The indemnification obligations of the parties under this
Section shall survive the termination of the Agreement respecting all
claims that arise, or events that occur giving rise to a claim, under
any legal theory, prior to the termination of this Agreement; provided
that any party seeking to limit its indemnification obligations under
this Section shall be required to establish in each case that the
claim or event giving rise to the claim arose after the termination of
such obligation.
19. Binding Nature of Agreement; Assignment. - This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no party may assign or transfer its
rights or obligations under this Agreement without the prior written
consent of the other party hereto, which shall not be unreasonably
withheld. Customer may assign this Agreement either (i) to a direct
affiliate which is the Project company pursuing one or more cities,
provided such assignee is under common ownership and control with Customer
and establishes it is creditworthy to the reasonable satisfaction of
ACE*COMM, or (ii) to its lenders for purposes of meeting lenders'
collateral security requirements. Consent of assignment shall not require
additional payment except to the extent that ACE*COMM's costs increase.
20. Force Majeure. Excluding any of the Customer's payment obligations under
this agreement, neither party shall be liable for delays or failure to
perform as a direct result of causes beyond its reasonable control (except
for strikes affecting the party alleging force xxxxxx), including Acts of
God (fire, storm, floods, earthquakes), civil disturbances or disruption of
telecommunications, or other essential services.
21. Compliance with Export Regulations. Customer shall obtain in a timely
manner all necessary or appropriate licenses, permits or other governmental
authorizations or approvals and shall comply with all foreign or domestic
laws, regulations or requirements pertaining to the importation,
exportation, or use of the Processing Services, software, equipment,
technology or Data to be provided herein. Absent such governmental
22
authorization, the Customer shall not directly or indirectly export or
re-export any such Processing Services, software, equipment, technology or
Data to Afghanistan, the People's Republic of China or any Group Q.S.W.Y or
Z country specified in Supplement 1 to Part 770 of the U.S. Export
Administration Regulations. This provision and the assurances made herein
shall survive termination of this Agreement.
22. Miscellaneous. This document and the accompanying Schedules, which are
hereby incorporated by reference in its entirety, constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all other communications, whether written or oral. This
Agreement may be modified or amended only by a writing signed by the party
against whom enforcement is sought. Any provision hereof found by a
tribunal of competent jurisdiction to be illegal or unenforceable shall be
automatically conformed to the minimum requirements of law and all other
provisions shall remain in full force and effect. Waiver of any provision
hereof in one instance shall not preclude enforcement thereof on future
occasions. Headings are for reference purposes only and have no
substantive effect.
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have
caused this Agreement to be executed by their duly authorized representatives.
KMC TELECOM INC. ACE*COMM CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ S. Xxxxxx Xxxx
-------------------------- --------------------------
Name: Xxxxxxx Xxxxxxxxx Name: S. Xxxxxx Xxxx
Title: President Title: Vice President
KMC TELECOM II, INC. KMC TELECOM OF VIRGINIA, INC.
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ [ILLEGIBLE]
-------------------------- --------------------------
Name: Xxxxxxx Xxxxxxxxx Name: ILLEGIBLE
Title: President Title: Chariman
23
ATTACHMENT A
Schedule of Remote Access Equipment
Subpart A. Supplied by the ACE*COMM Data Center
None.
Subpart B. Supplied at this time.
None identified at this time.
Schedule of Employees
Company Position Name
ACE*COMM Program Manager Xxxxxx Xxxxxxxxxxxxxxx
Operations Project
Manager Xxx Xxxxxx
KMC Telecom Point of Contact Xxx Xxxxx
Schedule of Prices
Per N97-0684 (Attachment B)
Standard Library of Software All currently supported software (In Use)
used in Data Center for normal duties to support daily operations in
support of this agreement. These are deemed non-chargeable to Customer.
Software Subject to Surcharge
24
All software required supporting this agreement that was purchased on
behalf of Customer to support this agreement with prior approval of
Customer. Cost may be a one-time charge or computed in the normal monthly
charge as agreed.
Transportation Charges
As required at cost plus 10% (Coach air fare, if required.)
Other Charges
ACE*COMM Supplied Equipment as required plus 30%
KMC Telecom Supplied Equipment Plus 10%
Software and integration cost plus 30%
Termination Fee
Total remaining Minimum Monthly Service Fees at $12,500 per month.
Migration Fee
Labor Category Hourly Rate
Data Processing Personnel
Operations Project Manager $100.00
Operations Staff $ 60.00
Systems Personnel
Project Manager $150.00
Engineering Staff $120.00
25
SCHEDULE OF PROCESSING SERVICES
The following represents the Processing Services referred to in Section 1(a)
("Computer Processing Services"):
1. Operations Support.
(a) Production. The Data Center shall monitor, schedule, or
otherwise initiate batch jobs on behalf of the Customer as shown
in the following Billing Data Processing Responsibility Matrix.
Summary Reports and logs will be reviewed and the Customer will
be notified of any problems.
(b) Production Batch. Unless otherwise agreed in writing, the
Customer's schedule for batch jobs will be the same schedule in
existence prior to implementation of Data Center processing or a
mutually agreed per service level. Where input is required from
the Customer for job scheduling functions, such input from
Customer will be forwarded to the Data Center in hard copy form
or via facsimile. The Data Center reserves the right to automate
the manual initiation of batch jobs where possible. The Data
Center operators will notify the Customer of abnormal job
termination and perform job reruns and restarts under established
guidelines directed and approved by Customer.
The Customer will review end-of-cycle reports and status and
authorize close of each billing cycle in writing. Such
authorization will be forwarded to the Data Center via facsimile
or E-mail.
Data Processing requirements for Carrier Access Billing have not
yet been defined. Data Center services rendered to support this
function will be priced separately.
The attached Billing Data Processing Responsibility Matrix
provides the specific run time activities.
(c) Customer Server System Administration. Per Data Processing
Services and Support Agreement, the Data Center shall provide the
following system administrator functions for the Customer NetPlus
Pro*Vision server:
(I) Maintain Network Configuration Files
(II) Maintain NetPlus Pro*Vision Configuration File
(III) Server Maintenance to include coordinating shutting
down and booting the server.
26
(IV) User Maintenance
(V) Maintain Access Control of Server Applications
(VI) Maintain Background Jobs
(VII) Monitor System Logs
(VIII) Maintain NetPlus Pro*Vision Environment Variables
(IX) Database Management to include Starting and Stopping ORACLE,
mounting, dismounting the ORACLE database, monitoring
real-time use and performance of the ORACLE database, and
performing backup and recovery of database logs and data.
(X) Disk Management to include allocation and reallocation of
permanent, temporary, and work data sets, data
compression, data purging, and other required tasks.
Customer retains responsibility for network administration and
client workstation administration.
(d) Subscriber Invoices. The Data Center shall perform printing,
packaging, and mailing of the Customer invoices. Subscriber
invoices will be printed two-sided on pre-printed 8 1/2" by 11"
paper stock. The first page of each invoice shall be perforated
with a logo banner pre-printed at the top of the page. The first
page of each invoice section shall have a logo banner and a
colored box for insert of the section title pre-printed at the
top of the page. The continuation pages of each section shall
have only a logo banner pre-printed at the top of the page.
Subscriber invoices shall be packaged unbound. KMC shall provide
pre-printed paper stock that meets the standards identified in
the Customer Guide. ACE*COMM reserves the right to outsource the
printing, packaging, and mailing, provided that any outsourcing
contractor agrees to be bound by the confidentiality obligations
of this agreement and provided further that ACE*COMM shall remain
liable for all acts or omissions of such contractor. Any
Customer requirements outside of this standard will be priced
separately.
(e) Outgoing Tape Generation. The Data Center shall perform all
outgoing tape and other external media processing functions,
including mounts and dismounts, and logging the tape generation
and tape shipment to third parties.
(f) External Media Management. The Data Center shall perform all
tape and other external media processing functions, including
logging receipt and shipment, mounts, dismounts, on-site storage
and off-site vaulting of tapes and other external media received
from third parties for Customer processing. All such tapes and
external media will be stored in a physically secured environment
at the ACE*COMM Data Center. Processed tapes and external media
will be archived to off-site vaulting on a
27
weekly basis. The Customer will provide the Data Center with
written instructions for retention of tapes in off-site vaulting.
(g) Customer Server System Backup and Restore. The Data Center
shall perform an incremental daily backup of the Customer NetPlus
Pro*Vision server database and data files to magnetic tape and a
full backup of the NetPlus Pro*Vision server weekly. The Data
Center shall provide for off site vault archiving of backup tapes
All backup tape receipts and distributions will be logged. All
backup and recovery operations will be coordinated with Customer.
Customer retains responsibility for client workstation backup and
restore.
(h) Customer Disaster Recovery. The Data Center shall provide
disaster recovery support for the Customer in the event of a
catastrophe. ACE*COMM will make available resources, including
space, operations staff, and operations equipment at a cost to be
determined when and if such support is required.
(i) Data Center Environment. ACE*COMM shall provide a secure
processing environment for data center facilities. ACE*COMM
shall provide secured access to operations equipment. Systems
used for Customer processing shall be provided with an UPS system
for system operation for not less than one hour for all data
center equipment used in support of service level agreements.
(j) Data Center Process Control. The Data Center shall provide for
logging of all processing tasks performed with reports each month
to the Customer. This activity will provide the basis for
billing/invoicing the Customer for services rendered under this
contract. ACE*COMM and the Customer will establish logging and
monthly report criteria prior to the commencement of operations
for the Customer.
(k) Customer Server Startup/Shutdown. The Data Center will control
the startup and shutdown of all NetPlus Pro*Vision server
processing functions at the direction of Customer. The Data
Center will notify Customer's users of any unscheduled startup or
shutdown of server processing.
(l) Customer System and Subsystem Monitoring and Management. The
Data Center will be responsible for installing, maintaining, and
administering all system or subsystem level monitoring and
management software.
(m) Customer System Upgrades. Customer hardware and software
upgrades shall be coordinated with the Data Center to ensure
compatibility of operations between the Customer Site and the
Data Center.
(n) Priorities. Customer will determine the task priorities for both
batch and online processing services. The Data Center will
administer services provided according to Customer priorities.
(o) Help Desk. The Data Center will provide the following Help Desk
services:
28
(i) Customer will initiate trouble reports through its designated
representative(s) by contacting the Help Desk at the telephone
number listed in the Customer Guide;
(ii) The Data Center will log and classify all reported problems. The
Data Center will address all reported problems regarding network
and system availability, response time, terminal and printer
resets and any other such problem reasonably classified by the
Data Center as system related. The Data Center will enlist
Customer's information services staff when necessary to assist in
the resolution of these problems. For both online and batch
application problems, the Data Center will contact the designated
Customer personnel for resolution of such application related
problems. If the designated Customer personnel are not
available, the parties shall follow the "escalation procedures"
set forth in the Customer Guide;
(iii) Terminal and printer hardware problems and any problems
related to Customer's applications will be forwarded to
Customer's operations or applications staff. If the Data
Center cannot contact the appropriate Customer personnel,
the parties shall follow the "escalation procedures" set
forth in the Customer Guide.
(p) Additional Services.
(i) Professional Services. Any professional services specifically
requested and approved in writing by the Customer will be billed
at the ACE*COMM Data Center's then current published rates for
such services. The Data Center will xxxx the Customer for its
reasonable out-of-pocket expenses incurred in connection with
providing professional services to the Customer.
(ii) Other Services. Additional hardware, software,
telecommunications, travel or other services or deliverables
beyond the scope of activities contemplated in this Schedule and
which have been requested and approved by the Customer, will be
billed separately by the ACE*COMM Data Center.
29
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
BILLING DATA PROCESSING RESPONSIBILITY MATRIX
PROCESSING
TASK RESPONSIBLE LOCATION FREQUENCY QUANTITY
------------- ---------------- --------------- -------------- --------------
MAINTAIN ACCOUNT CLASSES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN GENERAL LEDGER CODES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN TRANSACTION TYPE CODES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN ACCOUNTS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
CHANGE/MERGE ACCOUNTS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
DEFINE BILLING HIERARCHY CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
DISPLAY ACCOUNT BALANCES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE ACCOUNT REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE ACCOUNT ROLL-UP REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE ACCOUNT EQUIPMENT SUMMARY REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN TAX SCHEMES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
ASSOCIATE TAX SCHEMES WITH ACCOUNTS, ITEM
CODES, OR TRANSACTION TYPES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN PAYMENTS/CREDITS AND SUPPLEMENTAL
CHARGE TRANSACTIONS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
DISPLAY ACCOUNT TRANSACTIONS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE ACCOUNT ACTIVITY REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE TRANSACTION SUMMARY REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE TRANSACTION DETAIL REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN THE FLAT RATE TABLE CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
30
PROCESSING
TASK RESPONSIBLE LOCATION FREQUENCY QUANTITY
------------- ---------------- --------------- -------------- --------------
MAINTAIN DIALING PLANS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
LOAD RATE TABLES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN TIME PERIOD TABLES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN CURRENCY CONVERSION RATES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN FROM-TELEPHONE NUMBER TRANSLATIONS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN COUNTRY RATES CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN POLLING CONTROL PARAMETERS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN POLLING JOBS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
SHOW POLLING JOB STATUS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
START POLLING JOBS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
STOP POLLING JOBS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
VIEW/PRINT THE POLLING LOG ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
DISPLAY THE POLLING ACTIVITY LOG ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
DELETE THE POLLING ACTIVITY LOG ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
DISPLAY/PRINT THE RATING LOG FOR POLLING
ACTIVITY ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
MAINTAIN CALL DETAIL RECORDS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
CORRECT REJECTED CALL RECORDS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE THE REJECTED CALL RECORD REPORTS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
RECYCLE REJECTED CALLS ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
GENERATE STATION MESSAGE DETAIL REPORTS CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
31
PROCESSING
TASK RESPONSIBLE LOCATION FREQUENCY QUANTITY
------------- ---------------- --------------- -------------- --------------
RATE CALLS INTERACTIVELY CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
TASK RESPONSIBLE LOCATION FREQUENCY QUANTITY
---- ---------------- --------------- -------------- --------------
MAINTAIN ELECTRONIC MEDIA JOBS ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
LOAD INTERNET USAGE MEDIA AND RATE ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE INTERNET USAGE MEDIA LOG ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR INTERNET USAGE ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
LOAD IXC CT TAPE AND RATE ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE IXC CT TAPE LOG ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR IXC CT ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
LOAD ILEC EMR TAPE AND RATE ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE ILEC EMR TAPE LOG ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR ILEC EMR ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
LOAD ILEC AMA TAPE AND RATE ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE ILEC AMA TAPE LOG ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR ILEC AMA ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
LOAD ILEC TAPE AND RATE ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE ILEC TAPE LOG ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR ILEC ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
LOAD DS1 USAGE MEDIA AND RATE ACE*COMM DATA CENTER AS REQUIRED AS REQUIRED
32
TASK RESPONSIBLE LOCATION FREQUENCY QUANTITY
------------------- ---------------- --------------- -------------- --------------
VIEW/PRINT THE DS1 USAGE MEDIA LOG ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR DS1 ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
LOAD OCTEL MEDIA AND RATE ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE OCTEL MEDIA LOG ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR OCTEL ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
LOAD DEBIT CARD USAGE MEDIA AND RATE ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE DEBIT CARD USAGE MEDIA LOG ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR DEBIT CARD USAGE ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
LOAD GTE EMR TAPE AND RATE ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE GTE EMR TAPE LOG ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
VIEW/PRINT THE RATING LOG FOR GTE EMR ACE*COMM DATACENTER AS REQUIRED AS REQUIRED
GENERATE CMDS II TAPE ACE*COMM DATA CENTER MONTHLY 1 TAPE
GENERATE OUTCOLLECT TAPES ACE*COMM DATA CENTER MONTHLY 1 TAPE
GENERATE CABS TAPES ACE*COMM DATA CENTER MONTHLY 1 TAPE
GENERATE INVOICES FOR CARRIERS MONTHLY AS REQUIRED
LOAD RATE TAPES ACE*COMM DATA CENTER, MONTHLY 1 TAPE
CUSTOMER
UPDATE THE BILLING CYCLE ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
CUSTOMIZE THE BILLING STATEMENT TEXT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
TRIAL BILLING CYCLE CLOSE CUSTOMER,
ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
CLOSE THE TOLL CYCLE CUSTOMER,
ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
SHOW THE PROGRESS OF END-OF CYCLE PROCESS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
33
TASK RESPONSIBLE LOCATION FREQUENCY QUANTITY
---------------- --------------- -------------- --------------
PROCESS
TERMINATE THE END-OF-CYCLE PROCESS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
DISPLAY/PRINT/REVIEW THE TOLL CLOSE REPORT CUSTOMER, CUSTOMER AS REQUIRED AS REQUIRED
ACE*COMM
CLOSE THE BILLING CYCLE CUSTOMER, CUSTOMER AS REQUIRED AS REQUIRED
ACE*COMM
SHOW THE PROGRESS OF CLOSE BILLING CYCLE PROCESS ACE*COMM CUSTOMER AS REQUIRED AS REQUIRED
REVIEW THE CLOSE BILLING CYCLE REPORT CUSTOMER, DATACENTER, WEEKLY ONCE
ACE*COMM CUSTOMER
SHOW ON-LINE BILLING HISTORY DATA CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE PRINTED SUBSCRIBER BILLS ACE*COMM DATACENTER MTHY/CYCLE AS REQUIRED
GENERATE SUBSCRIBER BILLS TO ELECTRONIC MEDIA ACE*COMM DATACENTER MTHY/CYCLE AS REQUIRED
GENERATE THE AGED ACCOUNT REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
GENERATE THE EXPENSE RECOVERY ANALYSIS REPORT CUSTOMER CUSTOMER AS REQUIRED AS REQUIRED
FILE TRANSFER USAGE DETAIL FROM DATA CENTER TO
CUSTOMER SITE ACE*COMM DATACENTER DAILY ONCE
CUSTOMER
FILE TRANSFER BAF DATA FROM CUSTOMER SITE TO DATACENTER
DATA CENTER ACE*COMM CUSTOMER DAILY ONCE
TRANSFER END OF CYCLE DATA FROM CUSTOMER SITE DATACENTER
TO DATA CENTER ACE*COMM CUSTOMER WEEKLY ONCE
TRANSFER INVOICE IMAGE TO CUSTOMER SITE FOR
INVOICE INQUIRY ACE*COMM DATACENTER WEEKLY ONCE
34
Data Processing Services and Support Agreement
Functional Rollout
A consolidated View of Planned
Enhancements Over Baseline Pro*Vision
1.0.1
Xxxxx 0 - Xxxxxxx 00, Xxxxx 0 - December 31,
1997 Phase 3 - March 31, 1998 Planned
-----------------------------------------------------------------------------
Pro*Vision WFM/Enhancement Capability Roll-out
-----------------------------------------------------------------------------
General Billing Capabilities
KMC Item Code Capability
- Item Code Grouping (Master/Child)................... Phase 1
- Multiple hierarchy ................................. Phase 1
- Plain English description .......................... Phase 1
Invoice Billing
- A/R Tracking to invoice number ..................... Phase 3
- Product specific Invoice Billing ................... Xxxxx 0
Update Customer account information
(Acct receivables).................................... Phase 1
Xxxx minimums based on agreements....................... Xxxxx 0
Payment history on invoice.............................. Phase 1
Consolidate multiple accounts (Parent/Child)............ Phase 1
Customer Service call crediting......................... Phase 1
Ability to suppress or customize xxxx................... Phase 1
On-line account status.................................. Phase 1
15 day ability to change rates, add promo's, etc........ Phase 1
Vendor provider billing capability
- Billing for wholesale services...................... Phase1
- Xxxx on behalf of other service provider............ Phase 1
Provide Electronic distribution of Xxxx (EMAIL)......... Phase 3
Ability to do Xxxx re-runs.............................. Phase 1
RATING & BILLING PROCESSING
5ESS AMA processing(1).................................. Phase 1
Rating Calls (Local / IntraLata /InterLata ) (1)........ Xxxxx 0
XXX XX Records processing (1)........................... Phase 1
EMI Processing (operator, third party & CMDS) (1)....... Phase 1
Reconciliation between 5ESS & 1 Primary PIC tapes....... Phase 2
Boston Technology record processing (2)................. Phase 2
Partial cent rating by product or Customer.............. Phase 1
Billing Adjustments..................................... Phase 1
*Post billing only
Multiple billing cycles ................................ Phase 2
Flexible billing periods................................ Xxxxx 0
Sort by Billing periods................................. Phase 2
- Track 30/60/90 overdue.............................. Phase 1
- close-cycle logic to select designated billables.... Phase 3
(1) Formats must be provided to ACE*COMM by Customer thirty (30) business days
before delivery of processing capability.
(2) Formats must be provided to ACE*COMM by Customer thirty (30) business days
before delivery of processing capability.
36
Data Processing Services and Support Agreement
Sort by Billing media..................................... Xxxxx 0
Volume Discounting........................................ Phase 3
Discounting per service with start & end dates............ Phase 1
KMC Tax requirements...................................... Phase 1
Prorating taxes........................................... Phase 3
Billing by bandwidth, packets, frame counts............... Phase 3
Rate Schedule system - Record exchange for
carrier settlements..................................... Phase 1
INVOICE PROCESSING & PRODUCTION FUNCTIONAL CAPABILITY
Mandatory Sections/page to print
(Remit/TOC/SOA/CS).................................... Phase 1
Print ONLY sections which apply to specific customer.... Phase 1
Alpha Suffix after invoice number to indicate
exceptions............................................ Phase 2
Customer Flexibility (Parameter table).................. Phase 1
- Customer ability to Suppress /customize
elements of xxxx.................................... Phase 1
- Ability to choose sections.......................... Phase 1
- Ability for customer to modify each billing
cycle (before deadline)............................. Phase 1
- Ability to provide Customer two levels of
sorting capability.................................. Phase 2
- Sort detail such as Tel Number, location,
dept, acct code..................................... Phase 1
38
- Sort actual call record details chronological,
sequential numeric.................................. Phase 1
- Ability to define TOTALS, by telephone number,
location............................................ Phase 1
Charges Summary - Trending capability.................. Phase 2
- Only Show current month............................ Phase 1
- Last month charges (if product is still being
subscribed to)...................................... Phase 2
- This month last year (if applicable)................ Phase 2
- year to date ....................................... Phase 1
Provide Graphics capability ............................ Phase 2
- Charge summary...................................... Phase 2
- Trending............................................ Phase 2
- Automatic scaling of graph.......................... Phase 2
Custom Marketing messages .............................. Phase 2
INVOICE SECTIONS CAPABILITY
Table of Contents....................................... Phase 1
Payment History......................................... Phase 1
Account Balance Reconciliation.......................... Phase 1
Charges Summary......................................... Phase 1
Voice Services.......................................... Phase 1
Misc. Charges, Taxes and Surcharges..................... Phase 1
Account Inventory....................................... Phase 1
Service Summary Reports................................. Phase 1
39
Exception Reports....................................... Phase 1
KMC PRODUCT INVOICE CAPABILITY
Dedicated Services (see T1, DS1,3 below)............... Xxxxx 0
Data Services (see below)............................... Phase 1
Video Services (see below).............................. Phase 1
Leased Equipment........................................ Phase 1
Systems Integration..................................... Phase 1
Process Improvement..................................... Phase 1
Voice Mail.............................................. Phase 1 Recurring Charge Only
Voice Conf Bridge....................................... Phase 1 Recurring Charge Only
Bus. Quality Video...................................... Phase 1 Recurring charge only
High Res. Video ........................................ Phase 1 Recurring charge only
T1/DS1/DS3 ............................................. Xxxxx 0 Recurring charge only
Gateway, Packet Switching............................... Phase 1 Recurring charge only
Virtual LAN Services.................................... Phase 1 Recurring charge only
HS Internet............................................. Phase 1 *recurring charge only
I'net Access Port Utilization Overcharge................ Phase 1 RC Only, No Threshold
overcharge
40
Frame Relay............................................. Phase 1 Recurring charge only
SERVICE NEGOTIATION
Provide user interface for service order input.......... Phase 1
Automatic query for open TT/WO & xxxx status............ Phase 2
Service Order Input..................................... Phase 1
Service Negotiation Screen.............................. Phase 2
Automatic Process Flow/indicator lights................. Phase 3
Service Order Subtotaling............................... Phase 1
Provide appropriate pop up screen & menus............... Xxxxx 0
All appropriate data fields with real time data input... Phase 1
Online help and user lead-through....................... Phase 1
Provide access to product database...................... Phase 1 application launch/no interface
INFRASTRUCTURE DB
- provide lookup for CLE/POP inventory
(Shelf/Lincards/slots/ports).......................... Phase 1
- status against inventory (pending/avail/in-
use/rsvr'd/vacant).................................... Phase 2
- reserve inventory against crt ID or Tel number........ Phase 1
- provide association with S.O #/Due Date /service ID... Phase 3
- Provide association with EWO.......................... Phase 1
- Service negotiation capable of linking Due date
to inventory results.................................. Phase 3
41
- Svc negotiation capable of associating Svc to
line card type........................................ Phase 3
- Cancel SO removes reservation information
from all inventory.................................... Phase 1
- Provide threshold levels & notification upon
threshold crossings................................... Phase 1
- Auto-posting of due date upon completion.............. Phase 2
Provide Tel. No mgmt ................................... Phase 1
Vanity Number Sort capability........................... Phase 3
Customer profile database...............................
- corp address fields................................... Phase 1
- Customer billing/pricing plan......................... Phase 1
- Email address......................................... Phase 1
- billing cycle field................................... Phase 1
- direct billing media.................................. Phase 1
- cust. contract and tariff info........................ Phase 1
- payment history....................................... Phase 1
- cust service location addresses....................... Phase 1
- ability for cust to modify billing cycles ............ Phase 2
- Customer contact log.................................. Phase 1
- Auto purging of contact entries....................... Phase 1
Provide screen to support listings creation............... Phase 1
Create DNCF order to LEC..................................
- Mod to Work order processor to provide interface
to Rboc (real-time interface)......................... Phase 3
- modify 411 listings to conform to Rboc ............... Phase 3
42
- Sync with existing transaction logging................ Phase 3
Directory listing and E911 interface to LEC.............
- Interface to Rboc..................................... Phase 3
- Modify length of personnel listings to conform
to Rboc............................................... Phase 1
- Sync existing transaction logging with new layout..... Phase 3
- Sync existing auto-updates between Tel. &
Directory tables...................................... Phase 3
Order status reporting by category and aging
to/from carriers ..................................... Phase 1
Electronic interface to LEC ordering system............. Phase 3
Provide ASR form from service order data................ Phase 1
- JetForm integration .................................. Phase 1
- Auto Population into Form............................. Phase 3
Yellow pages............................................ TBD KMC to define process
AUTO-SWITCH PROVISIONING
- Batch mode capability................................. Xxxxx 0
- Xxxxxxx 00/00 XXXXXXX features........................ Phase 1
- Table validity checking / Sync database ............... Phase 1
- En-mass user definable execution times................. Phase 1
- Batching of up to 100 lines/customer................... Phase 2
- ISDN Provisioning (BRI)................................ Phase 1
- ISDN Provisioning (PRI)................................ TBD
43
Real-time connection to 5ESS -11 - auto Phase 1
populate required translations
Automatically activate switch services Phase 1
Send reject information in real-time to Phase 1
exception mgr
Provide two fields for Customer Lata PIC & Phase 1
Interlata PIC selection
Automatic PIC Notification to Carrier (XXX, Xxxxx 0
XXX, XXX)
Multiple line / TN assignment Phase 2
Provide user with Real-time QDN/QOE query Phase 2
capability
SERVICE REQUESTS
- Types of work orders (Quote, New Site Phase 1
service, SO, EWO)
- SO status - pending, planning, complete Phase 1
- SO action field - disconnect, add, change, Phase 1
cancel
- modify all TSR terminology to conform to Phase 1
KMC terminology
Distribute order to appropriate field techs Phase 1
Provide a completion mechanism following the Phase 1
turn-up of service
Provide customer screening capability Phase 1
define customers as new, additional, service Phase 1
trouble report
Maintain up to date cust. service profile Phase 1
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
Provide customer details
- line and feature inventory Phase 1
- Account profile Phase 1
- Total telecom usage by service Phase 1
- number of lines Phase 1
- contract terms and rate agreements Phase 1
- product and service agreements Phase 1
- status, completion, aging reports for all Phase 1
order types
Ability to reconcile switch and billing Phase 1
databases
Ability to correct PIC or other billing Phase 2
discrepancies
TROUBLE REPORTING
Create customer trouble record Phase 1
Provide customer screening Phase 1
Provide from TR screen access to all customer Phase 1
info & 5ESS info
Provide trouble report history Phase 1
Distribute work orders to Techs Phase 1
Provide image of customer last 6 months bills Phase 1
Provide access to all customer billing info Phase 1
Provide access to up to the minute CDR info Phase 1 Based on
Switch
AMA
availability
Carrier reporting and tracking interface Phase 1
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
Provide progress of pending TR's to Phase 1
appropriate personnel
Trouble ticket source summary table Phase 1
XXXX LAYOUT CAPABILITIES
81/2 X 11 format - 2-sided / 66 lines per page Phase 1
margins: 11/2 top, 1/2 left, right, bottom Phase 1
Paper type Phase 1
- Section title format - includes color logo Phase 1
- remittance Phase 1
- Section - color logo band at top, front, and Phase 1
back
Suppression of empty lines Phase 1
Variable length Information exchange section Phase 1
Suppression of leading xxxxx Xxxxx 0
line numbers on left side - 50%-60% screened Phase 1
Provide "continuation" detail on top of page Phase 1
Number field formats as per "Invoice Xxxxxx" Xxxxx 0
Rich Format Text as per "Invoice Xxxxxx" Xxxxx 0
ACCOUNTS RECEIVABLE
Provide user definable credit rating rules Phase 3
- External credit checking (Manual) Phase 1
- Provide view to data and method to manually Phase 1
enter data
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
- External credit checking -provide scoring Phase 3
logic
- internal credit checking Phase 2
- User definable credit checking criteria Phase 3
- Provide external credit checking access Phase 1
Manage pre-pay deposits Phase 1
Track Payment record Phase 1
Declare overdue accounts Phase 1
Resubmit overdue accounts to billing database Phase 1
Declare Delinquent Accounts Phase 1
Declare and refer bad debt Phase 1
Delinquent account management Phase 1
Report delinquent account Phase 1
Payment collection Phase 1
Historical Activity file Phase 1
Collect and update payments Phase 1
Update accounting journals and ledger Phase 3
Billing Payment media (Input mechanism) Phase 2
- Lock Box capability Phase 1
- Electronic Fund transfer Phase 3
- Preauthorized payment (debit) Phase 1
Separations and Settlements
Manage KMC toll charges Phase 1
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
Receive and sort toll charges from toll service Phase 1
providers
Provide local & Long Distance originating and Phase 1
terminating access data to CDG (EMR format)
Fraud - monitor usage Phase 1
Fraud - set xxxx thresholds Phase 3
Management Report and Tracking
Create history records Phase 1
Provide service order tracking Phase 1
- user definable milestone dates Phase 3
- track progress of SO (request, complete, etc) Phase 1
- provide progress of pending TR's Phase 1
Provide jeopardy escalation if one of the due Phase 3
dates missed
Provide tracking of all service orders, EWO, TR Phase 1
Provide daily, weekly, monthly summary reports Phase 1
Service level measurement reports Phase 1
Tracking cost/volume by salesperson Phase 3
Support or delivery account management system Phase 2
Conform to CLLI naming convention Phase 1
System Admin / Security Phase 1
Interface Summary
Telephone number administration Phase 1
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
E911 Fax & data file Phase 2
E911 Electronic Interface Phase 3
Product/Marketing Interface Phase 1
5ESS usage DB Phase 1
5ESS interactive line translations Phase 1
ATM Network Mgr Phase 3
Network resource at specific address DB Phase 1
Remote access capability Phase 1
Billing printing and mailing Phase 1
Electronic xxxx distribution Phase 1
Accounts receivable Phase 1
Trouble repair DB Phase 1
SO and Provisioning DB Phase 1
Communications DB Phase 1
Prospect DB Phase 1
Directory Listings fax and data file Phase 2
Directory listings Electronic Interface Phase 3
Outbound Carrier ASR fax and data file Phase 2
Outbound Carrier ASR electronic interface Phase 3
Outbound Carrier PIC fax and data file Phase 2
Outbound Carrier PIC electronic interface Phase 3
CDG CABS Interface (EMR) Phase 1
Billing for Xxxxxxx Xxxxx 0
DATA PROCESSING SERVICES AND SUPPORT AGREEMENT
Service Bureau interface Phase 1
