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EXHIBIT 10.41
MASTER SERVICES AGREEMENT
BETWEEN
ALLTEL INFORMATION SERVICES, INC.
AND
XXXXXXX ENTERPRISES, INC.
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DATED AS OF: __________1997
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS....................................................................................................1
1.1 DEFINITIONS................................................................................................1
2. SERVICES.......................................................................................................2
2.1 SERVICES...................................................................................................2
2.2 ATTACHMENT.................................................................................................2
2.3 PROCESSING SCHEDULE........................................................................................3
3. FEES AND PAYMENT ARRANGEMENTS..................................................................................3
3.1 SERVICE FEES...............................................................................................3
3.2 PAYMENTS BY CLIENT.........................................................................................4
4. TERM...........................................................................................................4
4.1 TERM.......................................................................................................4
4.2 CLIENT RENEWAL OPTION......................................................................................5
5. EDUCATION......................................................................................................5
5.1 ALLTEL STANDARD CORPORATE TRAINING.........................................................................5
5.2 THIRD PARTY APPLICATION TRAINING...........................................................................5
6. DATA PROCESSING, PREMISES AND SECURITY.........................................................................5
6.1 DATA PROCESSING............................................................................................5
6.2 CLIENT PROCESSING PREMISES.................................................................................5
6.2.1 ALLTEL TECHNOLOGY CENTER.................................................................................6
6.2.2 ALLTEL TECHNOLOGY CENTER RELOCATION......................................................................6
6.3 SECURITY STANDARDS.........................................................................................6
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7. CLIENT RESOURCES...............................................................................................6
7.1 CLIENT RESOURCES...........................................................................................6
7.2 REQUIRED CONSENTS.........................................................................................6
8. EQUIPMENT......................................................................................................7
8.1 HARDWARE...................................................................................................7
8.2 TERMINALS/WORKSTATIONS/NETWORK EQUIPMENT...................................................................7
8.3 SUPPLIES AND FORMS.........................................................................................7
8.4 CONFIDENTIALITY OF CLIENT DATA.............................................................................7
8.5 DELIVERY...................................................................................................8
9. SOFTWARE.......................................................................................................8
9.1 CLIENT SOFTWARE............................................................................................8
9.2 THIRD PARTY SOFTWARE AND MAINTENANCE......................................................................8
9.3 INSTALLATION OF NEW RELEASES, UPDATES AND ENHANCEMENTS.....................................................9
10. PERSONNEL AND COMMITTEES......................................................................................9
10.1 ALLTEL ACCOUNT RELATIONSHIP EXECUTIVE.....................................................................9
10.2 LIAISON MANAGER..........................................................................................9
10.3 ALLTEL BASE STAFF........................................................................................10
10.4 TEMPORARY RESOURCE.......................................................................................10
10.5 MUTUAL PLANNING..........................................................................................10
11. FILES AND PROGRAMS, STORAGE, AND DISASTER RECOVERY...........................................................12
11.1 FILES AND PROGRAMS.......................................................................................12
11.2 STORAGE..................................................................................................12
11.3 DISASTER RECOVERY.......................................................................................12
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12. CHANGE ORDERS................................................................................................13
13. INTELLECTUAL PROPERTY RIGHTS.................................................................................13
13.1 MODIFICATIONS TO CLIENT SOFTWARE.........................................................................13
13.2 OWNERSHIP OF ALLTEL SOFTWARE.............................................................................14
13.3 MODIFICATIONS TO ALLTEL SOFTWARE.........................................................................14
14. AUDITS.......................................................................................................14
14.1 CLIENT'S REGULATORY AUDIT................................................................................14
14.2 EXCLUDED MATERIALS.......................................................................................15
15. DISPUTE RESOLUTION...........................................................................................15
15.1 DISPUTE RESOLUTION PROCEDURES............................................................................15
15.2 CLAIMS PROCEDURES........................................................................................15
15.3 ESCALATION PROCEDURES....................................................................................16
16. LIMITATION OF LIABILITY......................................................................................17
17. INDEMNIFICATION..............................................................................................17
17.1 PERSONAL INJURY AND PROPERTY DAMAGE......................................................................17
17.2 INFRINGEMENT OF ALLTEL SOFTWARE OR ALLTEL PROVIDED THIRD PARTY SOFTWARE.................................17
17.3 INFRINGEMENTS OF CLIENT SOFTWARE OR CLIENT PROVIDED THIRD PARTY SOFTWARE................................18
17.4 PREVIOUS LIABILITIES.....................................................................................19
17.5 DISPUTE RESOLUTION.......................................................................................19
18. FORCE MAJEURE, TIME OF PERFORMANCE AND INCREASED COSTS AND ERROR CORRECTION..................................19
18.1 FORCE MAJEURE............................................................................................19
18.2 TIME OF PERFORMANCE AND INCREASED COSTS..................................................................21
18.3 ERROR CORRECTION.........................................................................................21
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19. NOTICES......................................................................................................21
19.1 NOTICES..................................................................................................21
19.2 CHANGE OF ADDRESS........................................................................................22
20. TERMINATION..................................................................................................22
20.1 TERMINATION..............................................................................................22
20.2 TERMINATION UPON ALLTEL'S MATERIAL BREACH................................................................23
20.3 TERMINATION UPON CLIENT'S MATERIAL BREACH................................................................24
20.4 OPERATIONS DURING THE TERMINATION PERIOD.................................................................25
20.5 TRANSITIONAL COOPERATION.................................................................................26
20.6 SURVIVAL UPON EXPIRATION OR TERMINATION..................................................................26
20.7 TERMINATION FOR CONVENIENCE..............................................................................26
21. CONFIDENTIALITY..............................................................................................27
21.1 CONFIDENTIALITY OBLIGATION...............................................................................27
21.2 NON-DISCLOSURE COVENANT..................................................................................27
21.3 EXCEPTIONS...............................................................................................27
21.4 CONFIDENTIALITY OF THIS AGREEMENT; PROTECTIVE ARRANGEMENTS...............................................28
22. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS..............................................................28
22.1 LICENSES AND PERMITS AND COMPLIANCE WITH LAWS............................................................28
22.2 NO INTERFERENCE WITH CONTRACTUAL RELATIONSHIP............................................................29
22.3 COVENANT OF GOOD FAITH...................................................................................29
22.4 NO INFRINGEMENT..........................................................................................29
22.5 AUTHORIZATION AND EFFECT.................................................................................30
22.6 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES..............................................................30
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23. MISCELLANEOUS................................................................................................31
23.1 INDEPENDENT CONTRACTOR...................................................................................31
23.2 OMNIBUS RECONCILIATION ACT COMPLIANCE....................................................................31
23.3 ASSIGNMENT...............................................................................................32
23.4 SEVERABILITY.............................................................................................32
23.5 THIRD PARTY BENEFICIARIES................................................................................32
23.6 GOVERNING LAW............................................................................................32
23.7 EXECUTED IN COUNTERPARTS.................................................................................32
23.8 CONSTRUCTION.............................................................................................33
23.9 ENTIRE AGREEMENT........................................................................................33
23.10 AMENDMENTS AND WAIVERS..................................................................................33
23.11 REMEDIES CUMULATIVE.....................................................................................33
23.12 PRESS RELEASES..........................................................................................33
23.13 TAXES...................................................................................................34
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EXHIBITS
Exhibit A Service Schedules
Exhibit B Processing Schedule
Exhibit C Software Lists
Exhibit D Equipment
Exhibit E Pricing
Exhibit F Staff Roles and Responsibilities
Exhibit G (Intentionally left blank)
Exhibit H Disaster Recovery
Exhibit I * Standard Operating Procedures
Exhibit J Client's Information Technology Environment
* From time to time, procedures in Exhibit I will be modified and mutually
agreed upon except for Exhibit I Attachment 2, Exhibit I Attachment 3, and
Exhibit I Attachment 6, which are proprietary to ALLTEL. Furthermore, it
is recognized that all exhibits may be more fully developed, or amended,
from time to time.
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MASTER SERVICES AGREEMENT
This is an Agreement (the "Agreement"), dated as of the ____day of _______1997
("Effective Date"), by and between ALLTEL INFORMATION SERVICES, INC., a Delaware
corporation, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000-0000
("ALLTEL") and XXXXXXX ENTERPRISES, INC. located at 0000 Xxxxx Xxxxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxxx 00000-0000 (the "Client").
NOW, THEREFORE, the parties agree as follows.
1. DEFINITIONS
1.1 DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "Affiliate" shall mean any wholly-owned direct or indirect
subsidiary of ALLTEL Corporation, and with respect to Client
shall mean any wholly owned direct or indirect subsidiary of
Client.
(b) "ALLTEL Software" shall mean any program as described in
Exhibit C, or part of such program as described in Exhibit C,
which is owned or developed by ALLTEL or any ALLTEL Affiliate
and all modifications, upgrades or enhancements to any such
program provided under this Agreement.
(c) "Client Resources" shall mean those assets, services, and
rights, if any, leased, contracted for, licensed, or owned by
Client, including Client Software and Client provided Third
Party Software to be made available to ALLTEL by Client to
facilitate ALLTEL in providing the Services.
(d) "Client Software" shall mean any program or part of a program,
(or any modifications, updates or enhancements to such Client
Software developed in accordance with the terms of this
Agreement) which is owned or developed by Client which is made
available by Client to ALLTEL and which is necessary for
ALLTEL to provide the Services. Under no circumstances shall
the ALLTEL Software and ALLTEL Work constitute Client Software
for purposes of the Agreement.
(e) "Expiration Date" shall mean the earliest of (i) the later to
occur of the five (5) year anniversary of the Start Date or
the date to which this Agreement is extended in accordance
with Section 4, or (ii) the date this Agreement is terminated
in accordance with Section 20.
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(f) "Required Consents" shall mean the consents required to permit
the transfer to ALLTEL of the right to use any Client
Resources.
(g) "Start Date" shall mean, 1997.
(h) "Third Party Software" shall mean any program, or part of a
program which is licensed or sub-licensed to Client or ALLTEL
by a third party that has the right to provide that license or
sub-license, including, without limitation, those programs
described in Exhibit C.
(i) "ALLTEL Network" shall mean that equipment, network components
and telephone leased lines between Client's Fort Xxxxx
facility and ALLTEL's Technology Center at Little Rock.
Specifically included are the channel extenders, DS1 circuits
between Client's Fort Xxxxx facility and ALLTEL Technology
Center in Little Rock, including CSU's required to support
circuits and equipment attached to and including the Front End
Processor located at the ALLTEL Technology Center in Little
Rock.
(j) "Client Network" shall mean all communication equipment,
network components, leased and dial data circuits which
terminate on Client's premises in Fort Xxxxx. Specifically
included are all LAN attached equipment, VSAT equipment, and
any remaining 3X74 or 3172 equipment located in Fort Xxxxx.
2. SERVICES
2.1 SERVICES. This Agreement sets forth the terms and conditions for the
provision by ALLTEL to Client of the information systems management
services, production control, operations services, technical support
and consulting services during the term hereof, as described in the
Service Attachment attached hereto as Exhibit A (individually and
collectively the "Services"). ALLTEL, on behalf of Client, also
agrees to provide certain specifically identified Services as set
forth on Exhibit A to Client Affiliates. Client agrees to notify
ALLTEL of new opportunities to provide similar or related Services
to Client, including, without limitation, providing new outsourcing
services, and to include such services within the scope of this
Agreement, by written amendment to Exhibit A in situations that are
mutually beneficial to Client and ALLTEL. This section in no way
obligates Client to select ALLTEL to provide the above described
additional services.
2.2 ATTACHMENT. All applicable terms, conditions, responsibilities and
delivery schedules which apply to a particular Service (as opposed
to those which apply generally to all Services and which are set
forth elsewhere in this Agreement and in the other exhibits attached
hereto) are identified in Exhibit A. The Service-specific terms,
conditions, responsibilities and delivery schedules shall govern the
provision of the relevant Service. Any new terms, conditions,
responsibilities or delivery
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schedules which may be specifically applicable to any particular
Service, as they are negotiated through the course of business,
shall be set forth in writing and executed by the parties and added
to this Agreement as an amendment. Such action shall not constitute
a modification or change of any provision of this Agreement or of
any other provision of any other Exhibit, unless expressly stated in
such written agreement. Unless otherwise agreed to by the parties
hereunder, the Services to be rendered by ALLTEL to Client and the
Service Beneficiaries are limited to those Services which are
described in this Agreement and the Exhibits.
2.3 PROCESSING SCHEDULE. ALLTEL will process and update Client's data in
accordance with Exhibit B.
3. FEES AND PAYMENT ARRANGEMENTS
3.1 SERVICE FEES. Attached hereto as Exhibit E is a schedule of fees
chargeable by ALLTEL to Client for performing the Services,
including, without limitation, the monthly base fee (the "Monthly
Base Fee"), monthly variable fee (the "Monthly Variable Fee"), a
mechanism for adjusting the Monthly Base Fee for changes in Client's
volume type or quantity of Services, penalties or incentives
(annually), a mechanism for changing the Monthly Variable Fee for
changes in Staff, a mechanism for changing the Monthly Base Fee and
Monthly Variable Fee for changes in inflation, a mechanism for
changing the Monthly Base Fee for changes in the cost of hardware
and software maintenance (collectively, as from time-to-time
adjusted, the "Service Fees"), as well as certain out-of-pocket
expenses paid to third parties by ALLTEL (the "Pass-Through
Expenses"): The Monthly Base Fee set forth in Exhibit E is expressly
conditioned on Client being and continuing in full compliance with
ALLTEL's standard operating procedures as further defined in Exhibit
I(as of and after, 6 months after the Effective Date), including,
without limitation, weekly maintenance windows, operating system and
hardware upgrade schedules and problem and change procedures. In the
event Client fails to so comply, Client shall pay to ALLTEL a
penalty in the amount of 2% of the Monthly Base Fee retroactive to
the Start Date until Client comes into compliance with ALLTEL's
operating procedures as described above. In the event ALLTEL is the
sole cause of Client's failure to be compliant within 6 months,
Client shall not pay the 2% penalty and ALLTEL will continue to
invoice Client at the leveraged rate until Client is compliant.
Client agrees to make best efforts to become compliant.
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3.2 PAYMENTS BY CLIENT
(a) INVOICING REQUIREMENTS. Client agrees and acknowledges that
depending on the underlying reason for a change in the amount
of the Monthly Base Fee or Monthly Variable Fee, in accordance
with Exhibit E, ALLTEL shall reflect such change either as a
permanent recalculation to the Monthly Base Fee and/or Monthly
Variable Fee (after prior notice to Client) or as a separately
delineated temporary increase to the Monthly Base Fee and/or
Monthly Variable Fee. ALLTEL shall invoice Client monthly by
no later than the 15th calendar day of each month for the
Service Fees for the upcoming calendar month, as well as for
any known Pass-Through Expenses and any other applicable
charges for the immediately preceding month and other
preceding months. ALLTEL's invoice shall be in such format and
contain such detail and supporting backup as may be agreed
upon by the parties.
(b) PAYMENT TERMS. Client shall pay by method satisfactory to
ALLTEL and Client, the monthly invoiced amount in full,
including any amounts or portions thereof in dispute, on or
prior to the first day of the month immediately following the
month in which the invoice is dated. Any amount not received
by the 30th day after the date that the payment was due, shall
be subject to interest on the balance overdue at a rate equal
to 12% per annum prorated to the date of payment. Should
Client dispute in good faith all or any portion of the amount
due on any invoice or require any adjustment to an invoiced
amount, Client shall notify ALLTEL in writing, prior to the
due date of that invoice, of the nature and basis of the
dispute and/or adjustment as soon as possible using the
dispute resolution procedures set forth in Section 15 of this
Agreement. The parties each shall use its best efforts to
resolve the dispute prior to the payment due date. If the
parties, however, are unable to resolve the dispute prior to
the payment due date, Client shall nevertheless pay the entire
amount to ALLTEL by the due date. If it is ultimately
determined that such amount should not have been paid by
Client to ALLTEL, ALLTEL shall credit this amount, plus
interest, in accordance with Section 15.1 of this Agreement on
Client's next invoice.
4. TERM
4.1 TERM. The term of this Agreement shall begin on the Effective Date
and end on the Expiration Date. At least twelve(12) months prior to
the Expiration Date, ALLTEL shall submit to Client a written
proposal for renewal of this Agreement for an additional term as
specified in such proposal. Client shall respond to such proposal
within one hundred twenty (120) days following receipt thereof.
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4.2 CLIENT RENEWAL OPTION. In lieu of responding to ALLTEL's written
proposal described in Section 4.1, Client shall have the right and
option, exercisable at any time during the 90 day period immediately
preceding the date that is six (6) months prior to the Expiration
Date, to notify ALLTEL that Client elects to extend such initial
term for a two year extension. Client shall have the further right
and option, exercisable during the 90 day period immediately
preceding the date that is six (6) months prior to the expiration of
the initial two year extension to extend the Agreement for an
additional two year term. The parties shall agree on any extensions
to the term of the Agreement beyond the two, two year extensions.
5. EDUCATION
5.1 ALLTEL STANDARD CORPORATE TRAINING. In addition to the corporately
provided ALLTEL classroom education services, ALLTEL will make
available to Client personnel its standard application software
training courses, which are generally held in Little Rock, Arkansas,
in accordance with ALLTEL's Education and Training Department
schedule, a current copy of which will be provided quarterly to
Client upon request. Client personnel may attend such courses, and
any other standard courses generally offered by ALLTEL to its other
customers, upon payment of ALLTEL's then current published course
fee, subject to normal space availability requirements and
compliance with ALLTEL's standard registration and enrollment
deadlines and procedure. Client will pay all of its travel and
lodging expenses while attending ALLTEL courses.
5.2 THIRD PARTY APPLICATION TRAINING. Client will pay for any third
party end user training associated with the implementation of third
party application software. ALLTEL will work with Client to
supplement and customize such training as reasonably practicable in
light of the ALLTEL resources available.
6. DATA PROCESSING, PREMISES AND SECURITY.
6.1 DATA PROCESSING. ALLTEL shall provide the operation of Client's data
processing systems at ALLTEL's Technology Center defined below.
6.2 CLIENT PROCESSING PREMISES. Client agrees to provide ALLTEL with
adequate premises located in Fort Xxxxx, Arkansas, in good repair,
to perform its responsibilities under this Agreement (hereinafter
the "Data Center"). Without limiting the generality of the
foregoing, Client agrees to supply water, sewage, heat, lights,
telephone lines and equipment, air conditioning, electricity, daily
janitorial services, cafeteria privileges office equipment and
furniture, and parking spaces for ALLTEL employees under the same
conditions provided to employees of Client. ALLTEL is not
responsible for any injury or damage to property or persons which
occurs in or around the Data Center unless it is caused by the
negligence or willful misconduct of ALLTEL. Client will provide
telephone instruments and telephone service for ALLTEL to
communicate with the
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employees of Client and as required by ALLTEL to operate the Data
Center. In the event Client desires to move the Data Center after
the Effective Date, Client shall provide ALLTEL prior notice of such
move and pay ALLTEL for any costs incurred by ALLTEL because of such
move.
6.2.1 ALLTEL TECHNOLOGY CENTER. Throughout the term of this
Agreement, ALLTEL will provide sufficient facilities to
support the required mainframe equipment and operations
(hereinafter the "ALLTEL Technology Center"). Throughout the
term of this Agreement, ALLTEL will notify Client of any
material changes in the ALLTEL Technology Center operating
environment that might affect Client's operations or
obligations under this Agreement.
6.2.2 ALLTEL TECHNOLOGY CENTER RELOCATION. ALLTEL may relocate the
ALLTEL Technology Center by providing Client with reasonable
notice of such relocation. ALLTEL will bear all costs
associated with such relocation and Client shall not incur any
additional costs due to such relocation.
6.3 SECURITY STANDARDS ALLTEL will adhere to such security standards
with respect to Client's data mutually agreed upon by the parties.
Client will reimburse ALLTEL for its actual costs incurred as a
Pass-Through Expense if adherence is above the normal accepted
industry security processes requested or required by Client
increases ALLTEL's costs of operation.
7. CLIENT RESOURCES
7.1 CLIENT RESOURCES During the term of this Agreement, and except as
otherwise described in this Agreement, Client will provide for
ALLTEL's use in providing the Services, the Client Resources as
described on 1.1.c..
7.2 REQUIRED CONSENTS
(a) COOPERATION. Client shall be required to obtain all Required
Consents. Upon Client's request, ALLTEL shall assist Client in
obtaining the Required Consents. Once each such Required
Consent has been obtained, Client shall provide a copy of it
to ALLTEL. Until such time as the Required Consent has been
obtained by Client, any right to use the affected Client
Resource shall not be deemed to have been transferred to
ALLTEL, and the parties shall cooperate with each other in
achieving a reasonable alternative arrangement for the use of
the affected Client Resources. Client shall provide any and
all consents for the use by ALLTEL of the Client provided
Third Party Software listed in the Client column of Exhibit
C-2.
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(b) COSTS. Any cost incurred by ALLTEL at Client's request in
obtaining a Required Consent shall be separately charged by
ALLTEL to Client as a Pass-Through Expense.
(c) TRAINING. The Base Staff shall provide training to Client's
designated training staff located at Ft. Xxxxx on all changes
to the host system requiring training of Client's staff.
Client shall be responsible for supplying resources for and
paying the cost of end-user training.
8. EQUIPMENT
8.1 HARDWARE. Client shall pay all costs of purchasing, leasing,
installing, utilizing and owning all hardware at Client facilities
as required for the operation of Client's application systems and
for the testing and training of such systems. A list of Client's
hardware as of the Effective Date is set forth in Exhibit D. Client
will also provide, at no cost to ALLTEL, all specialized
workstations, printers and other hardware and software required by
ALLTEL to support the Client application systems.
8.2 TERMINALS/WORKSTATIONS/NETWORK EQUIPMENT. Client will pay all costs
associated with Client Network, including, without limitation, all
hardware maintenance fees and software license and maintenance fees,
of purchasing, leasing, installing, utilizing and owning personal
computers, terminals, workstations and controllers used by Client's
personnel, as well as all network equipment, including, without
limitation, all communication or telephone lines, data service
units, modems, hubs, routers, and LAN operating system software.
8.3 SUPPLIES AND FORMS. Client will be responsible for all cost
associated with the addition of new magnetic tapes and tape
cartridges above the base capacity outlined in Exhibit E required to
perform ALLTEL's processing responsibilities during the term of this
agreement. Client is responsible for furnishing and cost for all
printer-related consumables. Client will provide all supplies for
office equipment and personal computers for ALLTEL's Base Staff at
all client facilities necessary to perform Client related
activities.
8.4 CONFIDENTIALITY OF CLIENT DATA. ALLTEL shall make best efforts to
cause all information concerning Client, its business or customers
submitted to ALLTEL pursuant to this Agreement to be held in
confidence by ALLTEL and not be disclosed. No person or entity,
other than those employees and contractors with a need to know,
shall be permitted to have access to Client's data without the
written authorization of Client. All of Client's data shall be
available for examination by Client, at any time during regular
business hours, without notice. If ALLTEL receives any legal process
requiring it to produce Client's data or that of any of its
customers, ALLTEL shall notify Client promptly, and deliver copies
of such orders to Client, immediately and prior to compliance with
such process.
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8.5 DELIVERY. Client, or its designee, is responsible for delivery of
all input and output data to and from the Fort Xxxxx Data Center and
for all costs of delivery of output from the ALLTEL Technology
Center.
9. SOFTWARE.
9.1 CLIENT SOFTWARE. ALLTEL will use all Client Software for the
exclusive use by Client and the Service Beneficiaries in connection
with providing the Services to Client and the Service Beneficiaries.
Additional use of Client Software by ALLTEL shall require the
written consent of Client. ALLTEL reserves the right in advance of
any processing or use of Client Software to assure compatibility
with equipment and consistency with other processing requirements,
techniques and standards. ALLTEL's use of any, new or not supported
by vendor, Client Software may result in an increase to the Service
Fees.
9.2 THIRD PARTY SOFTWARE AND MAINTENANCE.
(a) THIRD PARTY SOFTWARE. Exhibit C sets forth a list of all
Client provided Third Party Software and ALLTEL provided Third
Party Software. ALLTEL will use all Client provided Third
Party Software for the exclusive use by Client in connection
with the Services to Client. For any Client provided Third
Party Software that is not listed on Exhibit C, ALLTEL
reserves the right in advance of any processing or use of any
Client provided Third Party Software to assure compatibility
with equipment and consistency with other processing
requirement, techniques, and standards including year 2000
compliance. Client will procure all consents and pay any
reasonable expenses necessary to allow ALLTEL to use any
Client provided Third Party Software. If a defect occurs in
the Client provided Third Party Software (including
noncompliance with year 2000 standards) or if such Client
provided Third Party Software does not function in accordance
with its specifications during the Term of the Agreement,
Client shall cooperate fully with ALLTEL to cause such third
party to promptly correct such defect to the extent required
under the applicable agreement. To the extent that any Third
Party Software or necessary part thereof is not made available
to ALLTEL or if a defect in any Third Party Software or
necessary part thereof inhibits ALLTEL's provision of the
Services, ALLTEL shall be excused from providing such Services
until at least the Third Party Software is made available or
the defect remedied. ALLTEL agrees to reasonably contact and
negotiate with Third Party Software vendors in an effort to
accomplish the elimination of any problems. If a defect occurs
in any ALLTEL provided Third Party Software or such ALLTEL
provided Third Party Software does not function in accordance
with its specifications, ALLTEL shall use its best
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efforts to cause such third party to promptly correct such
defect to the extent required under the applicable agreement.
(b) THIRD PARTY SOFTWARE MAINTENANCE. Client will pay for all
Third Party Software maintenance fees for the Client provided
Third Party Software listed in Exhibit C. ALLTEL will provide
as part of the Monthly Base Fee all third party software
maintenance for the ALLTEL provided Third Party Software
listed in Exhibit C.
9.3 INSTALLATION OF NEW RELEASES, UPDATES AND ENHANCEMENTS. All changes
to the ALLTEL Software and ALLTEL provided Third Party Software,
being used by Client including the installation of enhancements,
updates, new releases and replacements of the ALLTEL Software and
ALLTEL provided Third Party Software, shall be made only with the
prior written approval of Client, which shall not be unreasonably
withheld, both parties agree to provide all necessary approvals in
order to ensure that the version of the ALLTEL Software and ALLTEL
provided Third Party Software in production with Client shall not be
more than two major releases behind that version of the ALLTEL
Software and ALLTEL provided Third Party Software then generally
available to the public. Similarly, for all Client Software and
Client provided Third Party Software, Client agrees, upon
notification by ALLTEL, and unless mutually agreed otherwise, to
take all necessary steps in order to ensure that the version of the
Client Software and Client provided Third Party Software in
production with Client is not more than two major releases behind
the version of the Client Software or Third Party Software then
generally available to the public. If Client refuses to approve
replacements of the ALLTEL Software or ALLTEL provided Third Party
Software, Client shall pay for any reasonable and actual costs
incurred by ALLTEL for supporting and maintaining the replaced
software.
10. PERSONNEL AND COMMITTEES.
10.1 ALLTEL ACCOUNT RELATIONSHIP EXECUTIVE. ALLTEL will assign an
individual (the "ALLTEL Account Relationship Executive") who will
oversee and manage the Services and serve as ALLTEL's primary point
of contact with Client with respect to the Services and will be
located at the Technology Center. Prior to the selection of any
replacement ALLTEL Account Relationship Executive, ALLTEL shall give
prior written notice to Client of such change, will provide Client a
resume of the proposed ALLTEL Account Relationship Executive and
shall give Client an opportunity to interview such proposed ALLTEL
Account Relationship Executive.
10.2 LIAISON MANAGER. Client will assign a mutually agreeable individual
(the "Liaison Manager") who will serve as Client's primary point of
contact for all communications with ALLTEL with respect to this
Agreement. As of the date hereof, Client's Chief Information Officer
or such officer's designee shall serve as
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the initial Liaison Manager. Prior to the selection of the initial
or any replacement Liaison Manager, Client shall give written notice
to ALLTEL of such selection or change.
10.3 ALLTEL BASE STAFF. ALLTEL shall have responsibility for providing
the human resources as required to provide the Services described in
Exhibit A. ALLTEL can draw upon its own employees (at the Client's
facility or elsewhere), as well as the employees of the ALLTEL
Affiliates and subcontractors in order to bring together the Base
Staff and to perform the Services. ALLTEL shall have the right to
transfer or substitute members of the Base Staff as ALLTEL may
reasonably determine after six (6) months from Start Date.
10.4 TEMPORARY RESOURCE. Client may request ALLTEL to provide additional
resources or hours on a temporary basis and ALLTEL will provide such
resources or hours on an as-available basis at ALLTEL's prices for
such resources as set forth in Exhibit E. ALLTEL will promptly
respond with a quotation for such resource. If Client wishes to
utilize ALLTEL services quoted, Client will notify ALLTEL in
writing, authorizing ALLTEL to provide such services.
10.5 MUTUAL PLANNING COMMITTEE.
(a) MUTUAL PLANNING COMMITTEE. ALLTEL and Client agree that
effective planning and communication are necessary to provide
overall direction for the Services and that each will work to
promote a free and open exchange of information. To that end,
ALLTEL's Account Relationship Executive and Client
executives(CIO and senior level or higher employees of Client)
will endeavor to meet at least quarterly, but no less than
annually, for the duration of this Agreement to discuss
matters of mutual importance. Some of the matters to be
discussed are:
(i) review and approve the strategic technology plan of
Client and all annual updates thereto;
(ii) review and approve systems design, development and
implementation project recommendations of ALLTEL
concerning the Services, including, without limitation,
providing human resources, utilizing available ALLTEL
Software, procuring Third Party Software, providing
equipment, increasing or decreasing ALLTEL supplied
processing to support the Services, and forwarding
recommendations for major authorizations to the Client
management committee for approval;
(iii) review ALLTEL's performance of the Services during the
previous calendar quarter, including, without
limitation, the milestones that have been completed;
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(iv) review the status of the current Services that ALLTEL is
performing;
(v) identify any problems relating to the Services and suggest
corrective actions to solve such problems, including,
without limitation, the cost to Client to correct such
problems;
(vi) review and approve the Services that are scheduled to be
provided by ALLTEL for the upcoming calendar quarter(s),
including, without limitation, the scope of the Services
and of any applicable performance standards, and
deliverables.
(vii) review, approve and establish information technology
standards, policies and procedures as recommended by
ALLTEL, including, without limitation, delegation of
certain review and approval authority to specific Client
managers and the Mutual Planning Committee;
(viii) review and approve requests for major system modifications
and enhancements that may be submitted by end-users;
(ix) prioritize and allocate Staff resources on all systems
design, development and implementation projects;
(x) review and approve any ALLTEL's bids and related scope of
Services and deliverables for new work;
(xi) review and approve ALLTEL requests for Staff resources and
changes;
(xii) periodically review information provided by ALLTEL on new
products and services available from ALLTEL and other key
third party providers;
(xiii) review at least annually the composition of the Base Staff
and any planned or suggested changes;
(xiv) review any other aspect of the information processing and
technology requirements or desires of Client.
Either party may request that this meeting may be held more
or less frequently than quarterly. The Chief Information
Officer of Client or his or her designee (who is a senior
level or higher employee of Client) shall be the Chairman
of the Mutual Planning Committee, and shall be responsible
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for communicating, on behalf of the Mutual Planning
Committee, to ALLTEL. All meetings shall have a published
agenda issued by the ALLTEL Account Relationship Executive
(as approved by the Chairman of the Mutual Planning
Committee) at least five business days in advance of the
meeting to allow the committee members a reasonable
opportunity to prepare for the meeting. Meeting minutes
will be issued by the ALLTEL Account Relationship Executive
to members of the Mutual Planning Committee within five
business days after the meeting. Following review by such
members, the ALLTEL Account Relationship Executive will
incorporate into final meeting minutes the members'
accurate and reasonable comments and revisions, which shall
constitute the final meeting minutes.
From time to time as requested by Client ALLTEL shall
submit to the Mutual Planning Committee in writing a
performance report, in a form and with content mutually
established by the parties, that documents ALLTEL's
performance of the Services. In addition, ALLTEL will
provide the Mutual Planning Committee with such
documentation and other information as may be reasonably
requested by the Mutual Planning Committee.
11. FILES AND PROGRAMS, STORAGE, AND DISASTER RECOVERY
11.1 FILES AND PROGRAMS. After such time as the ALLTEL employees
receive and operate Client's data on appropriate media in
electronic format, ALLTEL will provide and maintain reasonable
backup files as required by Client.
11.2 STORAGE. ALLTEL is not responsible for off-site storage and
transportation for all backup data files and programs produced at
Client's facilities.
11.3 DISASTER RECOVERY. Disaster Recovery shall be provided pursuant to
the terms and conditions defined in Exhibit H.
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12. CHANGE ORDERS.
Client may, at any time, in writing to ALLTEL, request changes to the
scope or quantity of Services listed in Exhibits A, B, C, D, F or H. Such
a request will be considered a "Change Order".. The parties agree and
acknowledge that Client shall not request a Change Order that has the
effect of terminating one or more of the Services in violation of the
term of the Agreement. If any Change Order results in an increase or
decrease in the cost of or time required for ALLTEL's performance of any
of the Services, an equitable adjustment to the cost or delivery schedule
or both shall be negotiated by the parties, and the Agreement and
appropriate Exhibits shall be deemed amended to reflect such approved
Change Order. ALLTEL may, but is not obligated to, begin work on the
Change Order before such time as Client and ALLTEL shall have reached an
equitable adjustment to the cost and delivery schedule
13. INTELLECTUAL PROPERTY RIGHTS.
13.1 MODIFICATIONS TO CLIENT SOFTWARE. Any writing or work of
authorship, regardless of medium, comprising Client Software or
Client-provided Third Party Software created by ALLTEL at Client's
request in the course of performing the Services under this
Agreement (including but not limited to software, source code,
blueprints, diagrams, flow charts, specifications or functional
descriptions, and specifically including any modifications,
enhancements, interfaces (other than interfaces to the ALLTEL
Software) (individually, a "Client Work") shall be deemed a "work
for hire", and the sole and exclusive property of Client (except,
no such writing or work of authorship relating to the
Client-provided Third Party Software shall be a Client Work if the
license agreement governing the Third Party Software prohibits the
granting of such right by ALLTEL). The term "Client Work" shall
not include the ALLTEL Software, or any modifications thereto, as
well as any writing or work of authorship, regardless of medium,
relating to or evidencing the ALLTEL Software. To the extent any
Client Work is not deemed a "work for hire" under applicable law,
ALLTEL hereby irrevocably assigns, transfers and conveys to Client
all of its right, title and interest in such Client Work,
including but not limited to, all rights of patent, copyright,
trade secret, know-how and other proprietary and associated rights
in such Client Work. ALLTEL agrees to execute such other documents
or take such other actions as Client may reasonably request to
perfect Client's ownership of any Client Work of which Client is
granted ownership under this Section 13.1. The parties acknowledge
that Client's ownership of any such Client Work shall not preclude
ALLTEL from developing for other ALLTEL customers any work or
works which are the same or substantially similar to a Client Work
or Client Works, in whole or in part if such work or works are
developed independently from Client Work or Client Works and if
such work or works do not violate Client's intellectual property
rights.
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13.2 OWNERSHIP OF ALLTEL SOFTWARE. As of the date hereof, and at all
times hereafter, ALLTEL shall be the sole and exclusive owner of
all right, title, and interest in and to the ALLTEL Software,
including, without limitation, all intellectual property and other
rights with respect to the ALLTEL Software. The parties
acknowledge that this Agreement in no way limits or restricts
ALLTEL and the ALLTEL Affiliates from developing or marketing on
their own or for any third party in the United States or
internationally the ALLTEL Software as from time to time
constituted (including, but not limited to, any modification,
enhancement, interface, upgrade, change and all software, source
code, blueprints, diagrams, flow charts, specifications,
functional descriptions or training materials relating thereto)
without payment of any compensation to Client, or any notice to
Client.
13.3 MODIFICATIONS TO ALLTEL SOFTWARE. Any writing or work of
authorship, regardless of medium, created or developed by ALLTEL
or Client in the course of performing the Services under this
Agreement and relating to the ALLTEL Software (including but not
limited to, any modification, enhancement, interface, upgrade,
change to the ALLTEL Software or ALLTEL-provided Third Party
Software and all software, source code, blueprints, diagrams, flow
charts, specifications, functional descriptions or training
materials relating thereto) (individually an "ALLTEL Work") shall
not be deemed a "work for hire" but shall be owned solely and
exclusively by ALLTEL. To the extent any ALLTEL Work for any
reason is determined not to be owned by ALLTEL, Client hereby
irrevocably assigns, transfers and conveys to ALLTEL all of
Client's right, title, and interest in such ALLTEL Work,
including, but not limited to, all rights of patent, copyright,
trade secret, know-how, and or other proprietary and associated
rights in such ALLTEL Work. Client agrees to execute such
documents and take such other actions as ALLTEL may reasonably
request to perfect ALLTEL's ownership of any such ALLTEL Work.
14. AUDITS
14.1 CLIENT'S REGULATORY AUDIT. As reasonably requested by Client,
ALLTEL shall cooperate with Client and its internal or external
auditors for the purpose of Client's regulatory compliance at
Client's facilities. Promptly following any such regulatory audit,
whether conducted by Client's internal or external auditors,
Client will instruct its auditors to conduct an exit conference
with ALLTEL and to provide ALLTEL as soon thereafter as reasonably
possible a copy of each report prepared as a result of such audit
examination relating to data processing whether in draft or final
form. In addition, Client will provide and instruct its external
auditors to provide ALLTEL with a copy of that portion of each
written report containing comments concerning ALLTEL or the
Services performed by ALLTEL pursuant to this Agreement. ALLTEL
shall make reasonable efforts to make changes required or
recommended by the audit. Client shall reimburse ALLTEL as a
Pass-Through Expense for any costs incurred by ALLTEL in
cooperating with Client in connection with Client's audit except
where ALLTEL's efforts are
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necessary to achieve audit compliance for exceptions that are
considered generally accepted practices of the outsourcing
industry.
14.2 EXCLUDED MATERIALS. Nothing in this Section 14 shall be construed
to require ALLTEL to provide Client with access to any records of
whatever kind which contain information pertaining to any person
or entity other than Client. In the event that the records contain
commingled information relating to Client and a person or entity
other than Client, ALLTEL shall mask or take other appropriate
steps to maintain the confidentiality of the information relating
to such other person or entity.
15. DISPUTE RESOLUTION.
15.1 DISPUTE RESOLUTION PROCEDURES. In the event a dispute arises
between ALLTEL and Client with respect to the terms and conditions
of this Agreement, or any subject matter governed by this
Agreement, other than disputes regarding a party's compliance with
the provisions of Section 21 (Confidentiality), such dispute shall
be settled as set forth in this Section 15. At such time as the
dispute is resolved, interest at a rate equal to the lesser of
prime rate plus two percent per annum as announced from time to
time by Boatmen's National Bank of Arkansas or five (5) percentage
points above the federal discount rate as in effect from time to
time for the period of dispute shall be paid to the party entitled
to receive the disputed monies to compensate for the lapsed time
between the date such disputed amount originally was to have been
paid (or was paid) through the date monies are paid (or credited)
in settlement of the dispute.
15.2 CLAIMS PROCEDURES. If any party shall have any dispute with
respect to the terms and conditions of this Agreement, or any
subject matter referred to in or governed by this Agreement, that
party (through the ALLTEL Account Relationship Executive of ALLTEL
or the Liaison Manager of Client, as the case may be) shall
provide written notification to the other party (through the
ALLTEL Account Relationship Executive of ALLTEL or the Liaison
Manager of Client, as the case may be) in the form of a claim
identifying the issue or amount disputed and including a detailed
reason for the claim. The party against whom the claim is made
shall respond in writing to the claim within 30 days from the date
of receipt of the claim document. The party filing the claim shall
have an additional 30 days after the receipt of the response to
either accept the resolution offered by the other party or request
implementation of the procedures set forth in Section 15.3 (the
"Escalation Procedures"). Failure to meet the time limitations set
forth in this Section may result in the implementation of the
Escalation Procedures.
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15.3 ESCALATION PROCEDURES.
(a) Each of the parties agrees to negotiate, in good faith, any
claim or dispute that has not been satisfactorily resolved
following the claim resolution procedures described in
Section 15.2. To this end, each party agrees to escalate
any and all unresolved disputes or claims in accordance
with Section 15.3(b) and (c) before taking further action.
(b) If the negotiations conducted pursuant to Section 15.2 do
not lead to resolution of the underlying dispute or claim
to the satisfaction of a party involved in such
negotiations, then either party may notify the other in
writing that he desires to elevate the dispute or claim to
the Senior Vice President and General Manager of Technology
Center of ALLTEL and the Chief Information Officer of
Client for resolution. Upon receipt by the other party of
such written notice, the dispute or claim shall be so
elevated and the Senior Vice President and General Manager
of Technology Center of ALLTEL and the Chief Information
Officer of Client shall negotiate in good faith and each
use its reasonable best efforts to resolve such dispute or
claim. The location, format, frequency, duration and
conclusion of these elevated discussions shall be left to
the discretion of the representatives involved. Upon
agreement, the representatives may utilize other
alternative dispute resolution procedures to assist in the
negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be
treated as confidential information developed for purposes
of settlement, exempt from discovery and production, which
shall not be admissible in subsequent proceedings between
the parties. Documents identified in or provided with such
communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise
admissible, be admitted in evidence in such subsequent
proceeding.
(c) If the negotiations conducted pursuant to Section 15.3(b)
do not lead to resolution of the underlying dispute or
claim to the satisfaction of a party involved in such
negotiations, then either party may notify the other in
writing that he desires to elevate the dispute or claim to
the President of Technology Services of ALLTEL and the
Chief Executive Officer of Client for resolution. Upon
receipt by the other party of such written notice, the
dispute or claim shall be so elevated and the President of
Technology Services of ALLTEL and the Chief Executive
Officer of Client shall negotiate in good faith and each
use its reasonable best efforts to resolve such dispute or
claim. The location, format, frequency, duration and
conclusion of these elevated discussions shall be left to
the discretion of the representatives involved. Upon mutual
agreement, the dispute may be mediated before either party
may resort to litigation. Upon agreement, the
representatives may utilize other alternative dispute
resolution procedures to assist in the negotiations.
Discussions and correspondence among the representatives
for purposes of these negotiations shall be treated as
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confidential information developed for purposes of
settlement, exempt from discovery and production, which
shall not be admissible in any subsequent proceedings
between the parties. Documents identified in or provided
with such communications, which are not prepared for
purposes of the negotiations, are not so exempted and may,
if otherwise admissible, be admitted in evidence in such
subsequent proceeding.
16. LIMITATION OF LIABILITY.
(a) Except for liability arising out of Section 17.2 herein,
ALLTEL's liability for any claims or causes of action
arising out of or related to this Agreement shall be
limited to Client's direct damages, actually incurred,
which under no circumstances shall exceed, in the
aggregate, the amount paid by Client to ALLTEL under this
Agreement for the twelve month period immediately
preceeding the date of the breach. In no event shall ALLTEL
be liable for indirect, special, punitive, incidental or
consequential damages of any kind whatsoever including
claims arising out of Section 17.2 herein or the claims or
demands made by any third parties.
(b) ALLTEL shall have no liability, express or implied, whether
arising under contract, tort or otherwise which results
directly or indirectly from the internal operations and
performance of any Client Software and/or Client provided
Third Party Software or any enhancement, development or
maintenance of any such Client Software and/or Client
provided Third Party Software.
17. INDEMNIFICATION.
17.1 PERSONAL INJURY AND PROPERTY DAMAGE. Each party agrees to
indemnify, defend and hold harmless the other and its officers,
directors, employees, affiliates (including, where applicable, the
ALLTEL Affiliates and Client Affiliates), and agents from any and
all liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees) arising from or in connection with the
damage, loss (including theft) or destruction of any real property
or tangible personal property of the indemnified party resulting
from the actions of any employee, agent or subcontractor of the
indemnifying party insofar as such damage arises out of or in the
course of fulfilling its obligations under this Agreement and to
the extent such damage is due to any negligence, breach of
statutory duty, omission or default of the indemnifying party, its
employees, agents or subcontractors.
17.2 INFRINGEMENT OF ALLTEL SOFTWARE OR ALLTEL PROVIDED THIRD PARTY
SOFTWARE. ALLTEL agrees to defend at its own expense, any claim or
action brought by any third party against Client and its officers,
directors, employees, Client Affiliates, and agents for actual or
alleged infringement of any patent, copyright or similar
intellectual property right (including, but not limited to,
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misappropriation of trade secrets) based upon the ALLTEL Software
or ALLTEL provided Third Party Software furnished hereunder by
ALLTEL. ALLTEL further agrees to indemnify and hold Client and the
Client Affiliates harmless from and against any and all
liabilities, losses, costs, damages, and expenses (including
reasonable attorneys' fees) associated with any such claim or
action incurred by Client and the Client Affiliates. ALLTEL shall
have the sole right to conduct the defense of any such claim or
action and all negotiations for its settlement or compromise,
unless otherwise mutually agreed to in writing between the parties
hereto. ALLTEL agrees to give Client, and Client agrees to give
ALLTEL, as appropriate, prompt written notice of any written
threat, warning or notice of any such claim or action against
ALLTEL or Client, as appropriate, or any other user or any
supplier of components of the ALLTEL Software or ALLTEL provided
Third Party Software covered hereunder, which could have an
adverse impact on Client's use of same, provided ALLTEL or Client,
as appropriate, knows of such claim or action. If in any such suit
so defended, all or any part of the ALLTEL Software (or any
component thereof) or the ALLTEL provided Third Party Software (or
any component thereof) is held to constitute an infringement or
violation of any other party's intellectual property rights and is
enjoined, or if in respect of any claim of infringement, ALLTEL
deems it advisable to do so, ALLTEL shall at its sole option take
one or more of the following actions at no additional cost to
Client: (a) procure the right to continue the use of the same
without material interruption for Client; (b) replace the same
with non-infringing software that meets the specifications
identified in the Service Attachment; (c) modify said ALLTEL
Software or ALLTEL provided Third Party Software (to the extent
permitted by such third party) so as to be non-infringing,
provided that the ALLTEL Software or ALLTEL provided Third Party
Software as modified meets all of the specifications; or, (d) take
back the infringing the ALLTEL Software or ALLTEL provided Third
Party Software and credit Client with an amount equal to its list
price less straight line depreciation over five (5) years.
17.3 INFRINGEMENTS OF CLIENT SOFTWARE OR CLIENT PROVIDED THIRD PARTY
SOFTWARE. Client agrees to defend at its own expense, any claim or
action brought by any third party against ALLTEL and its officers,
directors, employees, ALLTEL Affiliates, and agents for actual or
alleged infringement of any patent, copyright or similar
intellectual property right (including, but not limited to,
misappropriation of trade secrets) based upon the Client Software
or Client provided Third Party Software furnished hereunder by
Client. Client further agrees to indemnify and hold ALLTEL and the
ALLTEL Affiliates harmless from and against any and all
liabilities, losses, costs, damages, and expenses (including
reasonable attorneys' fees) associated with any such claim or
action incurred by ALLTEL and the ALLTEL Affiliates. Client shall
have the sole right to conduct the defense of any such claim or
action and all negotiations for its settlement or compromise,
unless otherwise mutually agreed to in writing between the parties
hereto. Client agrees to give ALLTEL, and ALLTEL agrees to give
Client, as appropriate, prompt written notice of any written
threat, warning or notice of any such claim or action
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against ALLTEL or Client, as appropriate, or any other user or any
supplier of components of Client Software or Client provided Third
Party Software covered hereunder, which could have an adverse
impact on ALLTEL's use of same, provided ALLTEL or Client, as
appropriate, knows of such claim or action. If in any such suit so
defended, all or any part of Client Software (or any component
thereof) or the Client provided Third Party Software (or any
component thereof) is held to constitute an infringement or
violation of any other party's intellectual property rights and is
enjoined, or if in respect of any claim of infringement, Client
deems it advisable to do so, Client shall at is sole option take
one or more of the following actions at no additional cost to
ALLTEL: (a) procure the right to continue the use of the same
without material interruption for ALLTEL; (b) replace the same
with non-infringing software that meets the specifications
identified in the Service Attachment; (c) modify said Client
Software or Client provided Third Party Software (to the extent
permitted by such third party) so as to be non-infringing,
provided that Client Software as modified meets all of the
specifications; or (d) relieve ALLTEL of its obligation to use
such software to perform the applicable Services hereunder.
17.4 PREVIOUS LIABILITIES. The parties hereto agree to indemnify the
other and hold the other and its officers, directors, employees,
affiliates (including, where applicable, the ALLTEL Affiliates and
Client Affiliates) and agents harmless against any liabilities,
losses, costs, damages, and expenses (including reasonable
attorneys' fees) arising out of any claims or lawsuits filed or
subsequently filed as a result of the acts of the other party
which occurred prior to the Effective Date of this Agreement.
17.5 DISPUTE RESOLUTION. The provisions of Section 15 shall apply with
respect to the submission of any claim for indemnification under
this Agreement and the resolution of any disputes relating to such
claim.
18. FORCE MAJEURE, TIME OF PERFORMANCE AND INCREASED COSTS AND ERROR
CORRECTION.
18.1 FORCE MAJEURE. Neither party shall be held liable for any delay or
failure in performance of all or a portion of the Services of any
part of this Agreement from any cause beyond its reasonable
control and without its fault or negligence, including, but not
limited to, acts of God, acts of civil or military authority,
government regulations, embargoes, epidemics, war, terrorist acts,
riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, power
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blackouts affecting facilities other than facilities of a kind
commonly protected by redundant power systems, unless such
redundant power systems are also affected by any Force Majeure
condition, unusually severe weather conditions, inability to
secure products or services of other persons or transportation
facilities, or acts or omissions of transportation common carriers
(the "Affected Performance"). Upon the occurrence of a condition
described in this Section 18.1, the party whose performance is
affected shall give written notice to the other party describing
the Affected Performance, and the parties shall promptly confer,
in good faith, to agree upon equitable, reasonable action to
minimize the impact, on both parties, of such condition,
including, without limitation, implementing the disaster recovery
services. The parties agree that the party whose performance is
affected shall use commercially reasonable efforts to minimize the
delay caused by the force majeure events and recommence the
Affected Performance. In the event the delay caused by the force
majeure event lasts for a period of more than 30 days, the parties
shall negotiate an equitable modification to this Agreement with
respect to the Affected Performance. If the parties are unable to
agree upon an equitable modification within 15 days after such 30
day period has expired, then either party shall be entitled to
serve 30 days notice of termination on the other party with
respect to only such Affected Performance. If the force majeure
event for such Affected Performance is continuing upon the
expiration of such 30 day notice period the portion of this
Agreement relating to the Affected Performance shall automatically
terminate. The remaining portion of the Agreement that does not
involve the Affected Performance shall continue in full force and
effect. In such event ALLTEL shall be entitled to be paid for that
portion of the Affected Performance for which it has completed or
in the process of completing through the termination date. In the
event that the affected performance substantially diminishes the
services provides hereunder and materially affects the business
operations of Client, Client shall be entitled to serve 30 days
notice of termination to ALLTEL. If the Force Majeure event for
such Affected Performance is continuing upon the expiration of
such 30 day notice period the Agreement shall terminate without
penalty to Client. In such event, ALLTEL shall be entitled to be
paid for the Services which it has performed through the
termination date.
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18.2 TIME OF PERFORMANCE AND INCREASED COSTS. ALLTEL's time of
performance with respect to Services performed under this
Agreement shall be enlarged, and its obligations under Exhibit A-2
shall be suspended, if and only to the extent, any of the
following causes, in whole or in part, the necessity for such
enlargement or suspension: (a) Client substantially fails to
submit data or materials in the prescribed form or in accordance
with the requirements of this Agreement, (b) Client substantially
fails to perform on a timely basis or provide adequate resources
to perform the tasks, functions or other responsibilities of
Client described in this Agreement, (c) there occurs a Force
Majeure condition described in Section 18.1 hereof which prevents
timely performance, (d) Client or any governmental agency
authorized to regulate or supervise Client makes any special
request which substantially affects ALLTEL's normal performance
schedule, (e) Client substantially fails to provide Client
Resources called for by this Agreement, (f) Client substantially
changes the priorities or decreases the number of the Staff, or
(g) Client provided Third Party Software or the Client Software
does not substantially perform in accordance with its
specifications and, in each case, the same is necessary for
ALLTEL's performance hereunder. In addition, if any of the above
events occur, and such event will result in an increased cost to
ALLTEL for providing the affected Service, ALLTEL shall so advise
Client and Client may either pay any and all of such increased
costs to ALLTEL or relieve ALLTEL of its responsibilities
hereunder.
18.3 ERROR CORRECTION. Client will carefully review and inspect all
reports prepared by ALLTEL, to balance promptly to the appropriate
control totals and within a reasonable time after any error or
out-of-balance control totals should be detectable. Client agrees
to notify ALLTEL of any erroneous processing. If Client fails to
so notify ALLTEL within 60 days after Client's receipt of the
report containing such erroneous processing, Client shall be
deemed to have waived its rights in respect of such error and to
have assumed all risks in respect thereof, provided however, that
ALLTEL shall not be relieved of its obligations to correct such
error, once notified, for on-going processing.
19. NOTICES.
19.1 NOTICES. Except as otherwise provided under this Agreement or in
the Exhibits, all notices, demands or requests which may be given
by any party to the other party shall be in writing and shall be
deemed to have been duly given on the date delivered in person, or
sent via telefax, overnight mail, electronic mail with return
receipt, or on the date of the third business day after deposit,
postage prepaid, in the United States Mail via Certified Mail
return receipt requested, and addressed as set forth below:
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If to Client, to:
Xxxxxxx Enterprises Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 00-X
Xxxx Xxxxx, XX 00000
Attn: Chief Information Officer
With a copy to:
Xxxxxxx Enterprises Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 00-X
Xxxx Xxxxx, XX 00000
Attn: General Counsel
If to ALLTEL, to:
ALLTEL Information Services, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn.: Vice President and General Manager of Technology
Center
With a copy to:
ALLTEL Information Services, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn.: General Counsel
19.2 CHANGE OF ADDRESS. The address to which such notices, demands,
requests, elections or other communications are to be given by
either party may be changed by written notice given by such party
to the other party pursuant to this Section.
20. TERMINATION.
20.1 TERMINATION. This Agreement, except as otherwise provided herein,
will continue in effect until the Expiration Date. This Agreement,
including all Exhibits may be terminated by the permitted party
giving written notice to the other party in accordance with
Section 19.1 and the provisions of the following sentence in this
Section 20.1 or the provisions of Sections 20.2, 20.3 or 20.4
hereof, as applicable.
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The effective date of any such termination shall be the
Termination Completion Date (as defined and determined in
accordance with the provisions of Section 20.5, and such date
shall be the Expiration Date in the event this Agreement is so
terminated.
20.2 TERMINATION UPON ALLTEL'S MATERIAL BREACH. In the event of the
material breach by ALLTEL of any provision of this Agreement,
Client shall give ALLTEL written notice, and:
(a) If such breach is for ALLTEL's breach of its obligations
under Section 21 with respect to Client's Proprietary
Information, ALLTEL shall cure the breach within 15
calendar days after receipt of such notice. If ALLTEL does
not cure such breach by such date (or is not working
diligently in good faith to cure such breach in cases where
a breach cannot reasonably be expected to be cured within
15 days), Client may, at its sole option, elect to
terminate this Agreement by giving written notice of such
election to ALLTEL (the "Client Termination Election
Date"). In such case, within 30 days after the Termination
Completion Date, ALLTEL shall pay the Client Damages (as
such term is defined below) to Client.
(b) If such breach is for any failure by ALLTEL to perform in
accordance with this Agreement which, in the reasonable
judgment of Client, materially adversely affects Client,
Client may give notice of the breach and ALLTEL shall cure
such breach within 90 days after the date of such notice.
If ALLTEL does not cure such breach within such period (or
within 150 days after the date of such notice, if ALLTEL is
working diligently in good faith to cure such breach in
cases where a breach cannot reasonably be expected to be
cured within 90 days), then Client may, at its sole option,
elect to terminate this Agreement without penalty by giving
written notice of such election to ALLTEL which date shall
constitute Client Termination Election Date. In such case,
within 30 days after the Termination Completion Date,
ALLTEL shall pay the Client Damages (as such term is
defined below) to Client.
(c) For the purpose of this Agreement, Client Damages, subject
to Section 16 hereof, shall consist solely of Client's
direct out-of-pocket damages actually incurred, for
obtaining replacement Services of a substantially similar
scope and nature to the Services being provided by ALLTEL
hereunder in excess of what Client would have otherwise
paid ALLTEL hereunder (the "Client Damages").
(d) The failure of Client to exercise any right to elect to
terminate this Agreement shall not constitute a waiver of
the rights granted herein with respect to any subsequent
default.
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20.3 TERMINATION UPON CLIENT'S MATERIAL BREACH. In the event of the
material breach by Client of any provision of this Agreement,
ALLTEL shall give Client written notice, and:
(a) If such breach is for Client's non-payment of amounts due
under this Agreement, Client shall cure such breach within
45 calendar days after receipt of such notice, or if for
Client's breach of its obligations under Section 21 with
respect to ALLTEL's Proprietary Information, Client shall
cure the breach within 15 calendar days after receipt of
such notice. If Client does not cure such breach by such
date (or in the case of a breach under Section 21 with
respect to ALLTEL's Proprietary Information is not working
diligently in good faith to cure such breach in cases where
a breach cannot reasonably be expected to be cured within
15 days), ALLTEL may, at its sole option, elect to
terminate this Agreement by giving written notice of such
election to Client (the "ALLTEL Termination Election
Date"). In such case, within 30 days after the ALLTEL
Termination Election Date, Client shall pay ALLTEL the
ALLTEL Damages (as such term is defined below). Client's
payment of or agreement to pay interest on any amount past
due shall in no way limit or prohibit ALLTEL's right to
terminate this Agreement in accordance with this Section
20.3(a).
(b) If such breach is for any failure by Client to perform in
accordance with this Agreement which, in the reasonable
judgment of ALLTEL, materially adversely affects ALLTEL,
ALLTEL may give notice of the breach and Client shall cure
such breach within 90 days after the date of such notice.
If Client does not cure such breach within such period (or
is not working diligently in good faith to cure such breach
in cases where a breach cannot reasonably be expected to be
cured within 90 days), then ALLTEL may, at its sole option,
elect to terminate this Agreement by giving written notice
of such election to Client which date shall constitute the
ALLTEL Termination Election Date. In such case, within 30
days after the ALLTEL Termination Election Date, Client
shall pay ALLTEL the ALLTEL Damages (as such term is
defined below).
(c) For the purposes of this Agreement, the ALLTEL Damages
solely shall consist of the following: (i) all unpaid
amounts due and owing to ALLTEL under the Agreement from
the date hereof up to and including the ALLTEL Termination
Election Date, (ii) a fee equal to the present value (using
a discount rate equal to the applicable U.S. Treasury xxxx
or note rate of an equivalent maturity) of fees due under
this Agreement from the day immediately following the
ALLTEL Termination Election Date through the end of the
Term had the termination not occurred multiplied by [.40,]
(iii) an amount equal to reasonable travel expenses,
relocation and severance expenses (in accordance with
ALLTEL's then current policy), and
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incentive payments to provide for the continued services of
ALLTEL's staff located at Client's facilities, (iv) an
amount equal to the undepreciated equipment and unamortized
software used to provide the Services under this Agreement,
and (v) an amount equal to any other shut-down expenses,
including, without limitation, relating to canceling
leases, licenses, and subcontractor agreements
(collectively the "ALLTEL Damages".
(d) The failure of ALLTEL to exercise any right to elect to
terminate this Agreement shall not constitute a waiver of
the rights granted herein with respect to any subsequent
default.
20.4 OPERATIONS DURING THE TERMINATION PERIOD. If either party properly
elects to terminate this Agreement in accordance with Sections
20.1, 20.2, 20.3 or 20.4 then Client shall have at least six
months from and after the date of the requisite ALLTEL Termination
Election Date or Client Termination Election Date to make
arrangements with respect to the conversion of all of Client's
data then resident on ALLTEL systems to the non-ALLTEL systems.
The date when all of Client's data have been substantially
converted to the non-ALLTEL Systems shall hereinafter be referred
to as the "Termination Completion Date" and shall be the effective
date of termination of this Agreement in such events. The
Termination Completion Date shall occur no sooner than six months,
and no later than twelve months, after the date of the requisite
ALLTEL Termination Election Date or Client Termination Election
Date. Provided that Client is current in all amounts due and owing
to ALLTEL, at the time of the ALLTEL Termination Election Date or
Client Termination Election Date, as well as during the period
between the ALLTEL Termination Election Date or Client Termination
Election Date (as appropriate) and the Termination Completion
Date, ALLTEL shall continue to render the Services to Client, with
such changes as Client and ALLTEL may agree upon, together with
such additional Services relating to such conversion as Client and
ALLTEL may agree. Client shall keep ALLTEL reasonably informed of
Client's decisions and activities with respect to such conversion.
Client also shall give ALLTEL written notice of Client estimated
Termination Completion Date promptly after a reasonably definitive
projected Termination Completion Date is known by Client, and
shall give written notice to ALLTEL promptly after any change in
such estimated Termination Completion Date.
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20.5 TRANSITIONAL COOPERATION.
(a) OFFER OF EMPLOYMENT. Client and ALLTEL agree not to solicit
or offer employment, directly or indirectly (including,
without limitation, through the use of any third party) to
any employee of the other without the prior written consent
of the other, except for clerical positions. The sole and
exclusive remedy for breach of this provision by either
party is for the breaching party to pay the non-breaching
party on amount equal to two (2) times the annual salary of
the subject employee.
(d) TRANSITION. ALLTEL will cooperate with Client to cause an
orderly and efficient transition. Without limiting the
generality of the foregoing, ALLTEL shall be obligated to
provide Client with data reasonably necessary for Client to
convert to or implement ALLTEL Systems, procedures, and
practices. ALLTEL's obligation shall be limited to: (i) the
provision of data or information in the format of, and
reasonably available to, ALLTEL; (ii) one test copy of such
data and one final conversion copy, and (iii) parallel
testing not exceeding one month, including parallel data
feeds.
(c) RETURN OF MATERIAL. Within 30 days after the Termination
Completion Date, ALLTEL, at Client's sole cost and expense,
will return all material and property owned by Client and
the Client affiliates as well as all material and property
of a proprietary nature involving Client and the Client
affiliates. In addition, upon Client's request, ALLTEL
agrees to provide to Client copies of Client data files,
records and programs on magnetic media, or to destroy
Client's data files, records and programs in its possession
and to certify promptly to Client as to the completed
destruction of these materials.
20.6 SURVIVAL UPON EXPIRATION OR TERMINATION. The provisions of
Sections 15 (Dispute Resolution), 16 (Limitation of Liability), 17
(Indemnification), 19 (Notices), 21 (Confidentiality), 23.2
(Omnibus Reconciliation Act Compliance), 23.6 (Governing Law),
23.12 (Press Release), and 23.13 (Taxes), shall survive the
Termination Completion Date of this Agreement, unless otherwise
agreed to in writing by both parties.
20.7 TERMINATION FOR CONVENIENCE. Client may terminate this Agreement
for convenience and without cause effective as of any date after
the third anniversary of the Start Date provided that Client is
not in default of any of its obligations under this Agreement by
(i) giving ALLTEL at least nine (9) months prior written notice
designating the termination date and (ii) paying ALLTEL an amount
computed as follows: One hundred eighteen thousand five hundred
dollars($118,500) multiplied by the number of months remaining
through 60
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months from the Start Date or in the alternative, times any months
remaining in any extension to the Agreement.
21. CONFIDENTIALITY.
21.1 CONFIDENTIALITY OBLIGATION. All information disclosed by Client or
ALLTEL to the other during the negotiations and the term of this
Agreement ("Proprietary Information") (i) shall be deemed the
property of the disclosing party, (ii) shall be used solely for
the purposes of administering and otherwise implementing the terms
of this Agreement and (iii) shall be protected by the receiving
party in accordance with the terms of this Section 21.
21.2 NON-DISCLOSURE COVENANT. The parties agree that they shall not
disclose any Proprietary Information of any other party in whole
or in part, including derivations, to any third party. If the
parties agree to a specific nondisclosure period for a specific
document, the disclosing party shall xxxx the document with that
nondisclosure period. Proprietary Information shall be held in
confidence by the receiving party and its employees, contractors
or agents and shall be disclosed to only those of the receiving
party's employees, contractors or agents who have a need for it in
connection with the administration and implementation of this
Agreement. The receiving party shall cause such contractors and
agents to execute confidentiality agreements in a form acceptable
to the disclosing party. The receiving party agrees to give the
disclosing party copies of any such confidentiality covenants
promptly upon request by the disclosing party
21.3 EXCEPTIONS. Proprietary Information shall not be deemed
proprietary and the receiving party shall have no obligation with
respect to any such information which:
(a) is or becomes publicly known through no wrongful act, fault
or negligence of the receiving party;
(b) was known by the receiving party prior to disclosure and
the receiving party was not under a duty of non-disclosure;
(c) was disclosed to the receiving party by a third party who
was free of obligations of confidentiality to the party
providing the information; (d) is approved for release by
written authorization of the disclosing party;
(e) is publicly disclosed pursuant to a requirement or request
of a governmental agency or disclosure is required by
operation of law; or
(f) is furnished to a third party by the disclosing party
owning the Proprietary Information without a similar
restriction on the third party's rights.
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The parties acknowledge that without in any way lessening the
proprietary nature of a party's Proprietary Information, either
party in accordance with the terms and conditions of this
Agreement shall be free at any time to develop the same or similar
Proprietary Information independently of disclosure by the
transmitting party.
21.4 CONFIDENTIALITY OF THIS AGREEMENT; PROTECTIVE ARRANGEMENTS.
(a) The parties acknowledge that this Agreement contains
confidential information that may be considered proprietary
by one or both of the parties, and agree to limit
distribution of this Agreement to those individuals in
their respective companies with a need to know the contents
of this Agreement. In no event may this Agreement be
reproduced or copies shown to any third parties by Client
or ALLTEL without the prior written consent of the other
party, except as may be necessary by reason of legal,
accounting or regulatory requirements beyond the reasonable
control of Client or ALLTEL as the case may be, in which
event Client and ALLTEL agree to exercise diligence in
limiting such disclosure to the minimum necessary under the
particular circumstances. The parties further agree to seek
commercial confidential status for this Agreement with any
regulatory commission with which this Agreement must be
filed, to the extent such a designation can be secured.
(b) In addition, each party agrees to give notice to the other
parties of any demands to disclose or provide Proprietary
Information received from the other or any third party
under lawful process prior to disclosing or furnishing
Proprietary Information, and agrees to cooperate in seeking
reasonable protective arrangements requested by the other
party. In addition, any party may disclose or provide
Proprietary Information of the other party requested by a
government agency having jurisdiction over the party;
provided that the party uses its best efforts to obtain
protective arrangements satisfactory to the party owning
the Proprietary Information. The party owning the
Proprietary Information may not unreasonably withhold
approval of protective arrangements.
22. OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS.
22.1 LICENSES AND PERMITS AND COMPLIANCE WITH LAWS.
(a) LICENSES AND PERMITS. ALLTEL and Client shall each secure
and maintain in force all licenses and permits required of
it and its employees in the performance of this Agreement,
and shall conduct its business in full compliance with all
laws, ordinances and regulations applicable to its business
or applicable to the other party's business to the extent
that the
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other party has notified ALLTEL or Client, as the case may
be, of the specific laws, ordinances or regulations with
which the other party must comply.
(b) COMPLIANCE WITH LAWS. ALLTEL and Client shall each shall
comply, at its own expense, with the provisions of all
applicable municipal requirements and those state and
federal laws which may be applicable to each party in the
performance of their respective obligations under this
Agreement.
22.2 NO INTERFERENCE WITH CONTRACTUAL RELATIONSHIP. Each party warrants
that, as of the date hereof, it is not subject to any contractual
obligation that would prevent it from entering into this
Agreement. Client and ALLTEL each further warrant to the other
that entering into this Agreement shall not cause or induce it to
breach any of its other contractual obligations.
22.3 COVENANT OF GOOD FAITH. Each of the parties agree that, in its
respective dealings with each other party arising out of or
related to this Agreement, it shall act fairly and in good faith.
22.4 NO INFRINGEMENT.
(a) ALLTEL SOFTWARE. ALLTEL warrants to Client that (i) ALLTEL
has the right to furnish the Services provided to Client
hereunder free of all liens, claims, encumbrances and other
restrictions, and (ii) Client shall quietly and peacefully
possess the ALLTEL Software, ALLTEL provided Third Party
Software, documentation and other materials provided to
Client hereunder, subject to and in accordance with the
provisions of this Agreement. Each of ALLTEL warranties set
forth above, as well as the patent and trademark indemnity
provisions of Section 17.2 hereof, shall apply to the
Services and to all enhancements, modifications or changes
thereto.
(b) CLIENT SOFTWARE. Client warrants to ALLTEL that (i) Client
has the right to furnish Client Resources (including,
without limitation, Client Software, Client provided Third
Party Software, documentation and other materials) provided
to ALLTEL hereunder and ALLTEL has the right to use the
Client Resources (including, without limitation, Client
Software, Client provided Third Party Software,
documentation and other materials), in each case, free of
all liens, claims, encumbrances and other restrictions,
and (ii) ALLTEL shall quietly and peacefully possess Client
Software, Client provided Third Party Software,
documentation and other materials provided to ALLTEL
hereunder, subject to and in accordance with the
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provisions of this Agreement. Each of Client's warranties
set forth above, as well as the patent and trademark
indemnity provision of Section 17.3 hereof, shall apply to
the Services and to all enhancements, modifications or
changes thereto.
22.5 AUTHORIZATION AND EFFECT.
(a) The execution and delivery by ALLTEL of its obligations
under this Agreement have been duly authorized by all
necessary corporate action on the part of ALLTEL. This
Agreement has been duly executed and delivered by ALLTEL
and, assuming the due execution and delivery of this
Agreement by Client, constitutes a valid and binding
obligation of ALLTEL, except as the same maybe limited by
bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting the enforcement of
creditor's rights generally, and subject to the
qualification that general equitable principles may limit
the enforcement of certain remedies, including the remedy
of specific performance.
(b) The execution and delivery by Client of this Agreement and
the fulfillment of its obligations under this Agreement
have been duly authorized by all necessary corporate action
on the part of Client. This Agreement has been duly
executed and delivered by Client and, assuming the due
execution and delivery of this Agreement by ALLTEL,
constitutes a valid and binding obligation of Client,
except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
relating to or affecting the enforcement of creditor's
rights generally, and subject to the qualification that
general equitable principles may limit the enforcement of
certain remedies, including the remedy of specific
performance.
22.6 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES. Except as provided in
this Agreement, ALLTEL IS MAKING NO representation or warranty of
any kind, express, implied or statutory, including but not limited
to the implied warranties of merchantability and fitness for a
particular purpose, and CLIENT AGREES THAT all such other
representations and warranties that are not provided in this
agreement are hereby excluded and disclaimed.
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23. MISCELLANEOUS.
23.1 INDEPENDENT CONTRACTOR. It is agreed that ALLTEL is an independent
contractor and that:
(a) CLIENT SUPERVISOR POWERS. Client has no power to supervise,
give directions or otherwise regulate ALLTEL's operations
or its employees, except as herein provided for security of
Client's data and detection of errors in processing.
(b) ALLTEL'S EMPLOYEES. ALLTEL shall be solely responsible for
payment of compensation to its personnel and for any injury
to them in the course of their employment. ALLTEL shall
assume full responsibility for payment of all federal,
state and local taxes or contributions imposed or required
under unemployment insurance, social security and income
tax laws with respect to such persons.
(c) RELATIONSHIP. The parties declare and agree that each party
is engaged in a business which is independent from that of
the other party and each party shall perform its
obligations as an independent contractor. Neither party is
an agent of the other party and has no authority to
represent the other party as to any matters, except as
authorized herein.
23.2 OMNIBUS RECONCILIATION ACT COMPLIANCE. As applicable under the
Omnibus Reconciliation Act of 1980, until the expiration of 4
years after the furnishing of Services under this Agreement,
ALLTEL shall, upon receipt of written request, and if then
required to make such information available under the
then-existing law, make available to the Secretary of the United
States Department of Health and Human Services, the Comptroller
General, or any of their duly authorized representatives, this
Agreement, books, documents, and/or records of ALLTEL that are
necessary to certify the nature and extent of products and
services delivered under this Agreement and costs associated
therewith. In addition, if ALLTEL carries out any of the duties of
this Agreement through a subcontract with a value or cost of
$10,000.00 or more over a 12 month period, such subcontract will
contain a clause to the effect that, until the expiration of 4
years after the furnishing of such services under such
subcontract, the subcontractor shall, upon receipt of written
request and if then required to make such information available
under the then-existing law, make available to the Secretary of
the United States Department of Health and Human Services,
Comptroller General, or any of their duly authorized
representatives, the subcontract, books, documents, and/or records
of such subcontractor that are necessary to verify the nature and
extent of such costs.
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23.3 ASSIGNMENT. Neither party shall assign, delegate, or otherwise
convey or transfer (the "Assignment") its rights, interests or
obligations under this Agreement to any person or entity without
the prior written consent of the other party which consent shall
not be unreasonably denied, delayed or limited. All obligations
and duties of any party under this Agreement shall be binding on
all successors in interest and permitted assigns of such party. If
the other party consents to the Assignment, the proposed assignee
or transferee shall, upon completion of the Assignment,
automatically succeed to the corresponding rights, interests, and
obligations of the assigning and transferring party and shall be a
successor of such party for purposes of this Agreement. ALLTEL
recognizes that Client anticipates temporarily transferring
substantially all of its assets to a new entity, New Xxxxxxx
Holding, Inc. then back to Client for the purpose of divesting its
pharmacy operations. ALLTEL hereby consents to such transfer.
23.4 SEVERABILITY. In the event that any one or more of the provisions
contained herein shall for any reason be held to be unenforceable
in any respect under law, such unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be
construed as if such unenforceable provision or provisions had
never been contained herein, provided that the removal of such
offending term or provision does not materially alter the burdens
or benefits of either of the parties under this Agreement or any
Service Attachment.
23.5 THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
for the benefit of the parties and not for any other person.
However, should any third party institute proceedings, this
Agreement shall not provide any such person with any remedy,
claim, liability, reimbursement, cause of action, or other right.
23.6 GOVERNING LAW. Except as otherwise expressly provided in this
Agreement and Exhibits, this Agreement shall be deemed to be a
contract made under the laws of the State of Arkansas and the
construction, interpretation, and performance of this Agreement
and Exhibits and all transactions hereunder shall be governed by
the substantive law of such State. All judicial proceedings to be
brought with respect to this Agreement shall be brought in the
appropriate federal or state court in the state of Arkansas (the
"Courts") and by execution and delivery of this Agreement, Client
and ALLTEL each accepts general and unconditionally the exclusive
jurisdiction of the Courts. Client and ALLTEL also each
irrevocably waives any objection (including, without limitation,
any objection of the laying of venue based on the grounds of forum
non-conveniens) which Client or ALLTEL may now have or hereafter
may have to the bringing of any new action or proceeding with
respect to this Agreement in the Courts.
23.7 EXECUTED IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
document.
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23.8 CONSTRUCTION. The headings and numbering of sections in this
Agreement are for convenience only and shall not be construed to
define or limit any of the terms or affect the scope, meaning or
interpretation of this Agreement or the particular section to
which they relate. This Agreement and the provisions contained
herein shall not be construed or interpreted for or against any
party because that party drafted or caused its legal
representative to draft any of its provisions.
23.9 ENTIRE AGREEMENT. This Agreement, including the Exhibits attached
hereto and the agreements referenced herein constitute the entire
Agreement between the parties, and supersedes all prior oral or
written agreements, representations, statements, negotiations,
understandings, proposals and undertakings, with respect to the
services to be provided by ALLTEL to Client.
23.10 AMENDMENTS AND WAIVERS. This Agreement may be amended only by
written agreement signed by duly authorized representatives of
each party. No waiver of any provisions of this Agreement and no
consent to any default under this Agreement shall be effective
unless the same shall be in writing and signed by or on behalf of
the party against whom such waiver or consent is claimed. No
course of dealing or failure of any party to strictly enforce any
term, right or condition of this Agreement shall be construed as a
waiver of such term, right or condition. Waiver by either party of
any default by the other party shall not be deemed a waiver of any
other default.
23.11 REMEDIES CUMULATIVE. Unless otherwise provided for under this
Agreement, all rights of termination or cancellation, or other
remedies set forth in this Agreement, are cumulative and are not
intended to be exclusive of other remedies to which the injured
party may be entitled by law or equity in case of any breach or
threatened breach by the other party of any provision in this
Agreement. Use of one or more remedies shall not bar use of any
other remedy for the purpose of enforcing any provision of this
Agreement.
23.12 PRESS RELEASES. The parties shall consult with each other in
preparing any press release, public announcement, news media
response or other form of release of information concerning this
Agreement or the transactions contemplated hereby that is intended
to provide such information to the news media or the public (a
"Press Release"). Neither party shall issue or cause the
publication of any such Press Release without the prior written
consent of the other party; except that nothing herein will
prohibit either party from issuing or causing publication of any
such Press Release to the extent that such action is required by
applicable law or the rules of any national stock exchange
applicable to such party or its affiliates, in which case the
party wishing to make such disclosure will, if practicable under
the circumstances, notify the other party of the proposed time of
issuance of such Press Release and consult with and allow the
other party reasonable time to comment on such Press Release in
advance of its issuance.
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23.13 TAXES. All charges and fees to be paid by Client are exclusive of
any applicable sales, use, excise or services tax which may be
assessed on the provision of the Services. In the event that a
sales, use, excise or services tax is assessed on the provision of
any of the Services provided to Client under this Agreement,
Client will pay directly or reimburse ALLTEL for such taxes. The
parties will cooperate with each other in determining the extent
to which any tax is due and owing under the circumstances, and
shall provide and make available to each other any resale
certificates, information regarding out-of-state use of materials,
services or sale, and other exemption certificates or information
reasonably requested by either party. The parties also agree to
work together to segregate all payments under this Agreement into
three payment streams, those for taxable services, those for
non-taxable services, and those in which ALLTEL functions as a
payment agent for Client in receiving goods, supplies or services
(including leasing and licensing arrangements) that otherwise are
nontaxable or have previously been subject to tax.
IN WITNESS WHEREOF, the parties, acting through their authorized officers, have
caused this Agreement to be duly executed and delivered as of the date first
above written.
ALLTEL INFORMATION XXXXXXX ENTERPRISES,
SERVICES, INC. INC.
By: By:
-------------------------------- -----------------------------------
Name: Name:
------------------------------ ---------------------------------
Title: Title:
----------------------------- --------------------------------
Date: Date:
------------------------------ ---------------------------------
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