AGREEMENT
This agreement (the "Agreement"), dated as of September 13, 1999 (the
"Effective Date"), is by and among ADS ALLIANCE DATA SYSTEMS, INC., a Delaware
corporation with its principal place of business located at 00000 Xxxxxxxxx
Xxxxxxx, Xxxxxx, Xxxxx 00000 ("Alliance"), PEGASUS SATELLITE TELEVISION, INC., a
Delaware corporation, with its principal place of business located at 000 Xxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("PST"), and DIGITAL TELEVISION
SERVICES, INC., a Delaware corporation, with its principal place of business
located at 000 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("DTS" and together
with PST, the "Customer"). Alliance and Customer are referred to herein
individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Alliance provides customer service on behalf of businesses;
WHEREAS, Customer desires Alliance to serve as its customer service
provider; and
WHEREAS, Alliance desires to be Customer's customer service provider.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows.
1. SERVICES.
1.1. Services. Alliance will provide to Customer the services described on
Exhibit A hereto as modified from time to time (the "Services").
1.2 Procedures/Reporting. Both Parties will use best efforts to mutually
agree upon and establish policies, procedures, and standard reporting concerning
call center activities, performance, escalation and recovery no later than
December 31, 1999.
1.3. Facility. Alliance will initially provide Services under this Agreement
from its Dallas, Texas call center facility. Alliance shall provide up to
[omitted and filed separately with the Commission] work stations at the Dallas
facility, which is estimated to accommodate [omitted and filed separately with
the Commission] monthly handle time minutes. After consultation with Customer,
Alliance may relocate its call center to accommodate future growth or volume
variations. Alliance agrees that any costs or expenses incurred by Customer as a
result of Alliance relocating its call center, including costs related to
relocating equipment and software provided by Customer or third party vendors or
licensors, shall be borne by Alliance, unless otherwise agreed upon in writing
by Customer. If the number of work stations needed exceeds [omitted and filed
separately with the Commission] and Customer desires Alliance to add additional
capacity, Alliance and Customer agree to negotiate in good faith additional
terms and conditions relating to such additional capacity, including the length
of term for the new facility and the minimum volume requirements for the
facility(ies) needed to handle the additional capacity.
1.4. Changes in Services. From time to time, the Parties may agree to certain
changes in the Services, including but not limited to, requests for software
modification, additions and enhancements in the system design, research, problem
resolution, testing, report modification, and procedural changes. In the event
Customer desires any such changes, modifications, additions or enhancements,
Customer will provide Alliance with written notice of such request. Alliance
will then evaluate the request to understand the requirements involved and
notify Customer in writing of the cost of and time period necessary to implement
the change(s) and any other modifications in the terms or conditions of this
Agreement that would be required as a result of the change. Upon Customer's
written approval of such fee(s), timeline and other modifications to the terms
of this Agreement, Alliance shall make the modifications to the Services.
Notwithstanding, Alliance shall not be obligated to make any Customer requested
changes in the Services, if Alliance reasonably determines that it cannot make
such changes due to certain constraints, including, but not limited to,
constraints relating to issues concerning financial, legal, employment,
technology and facilities matters.
1.5. Third-Party Performance. Customer acknowledges that Alliance's
performance of the Services is contingent upon the acts of Customer and/or
certain third parties. Accordingly, in the event any act or omission by Customer
and/or any such third party engaged by Customer adversely affects Alliance's
performance of the Services, Customer hereby waives all rights and remedies
available with respect to Alliance's performance of the Services as affected by
Customer and/or such third-party acts or omissions.
2. TERM.
2.1. Initial Term. This Agreement will commence on the first date upon which
Alliance begins providing the Services to Customer (the "Implementation Date")
and will continue for an Initial Term (herein so called) ending December 31,
2004. At the end of the Initial Term, the Agreement will automatically renew for
successive three (3) year terms (each, a "Renewal Term") thereafter, unless
either Party provides the other with at least one hundred fifty (150) days'
written notice prior to the expiration of the Initial Term or at least one
hundred fifty (150) days' written notice prior to the expiration of the
then-existing Renewal Term or unless otherwise terminated as provided herein.
Except as provided in subsection 2.2 below, all the terms and conditions of this
Agreement will remain in effect throughout each Renewal Term.
2.2. Renewal Terms. No later than one hundred eighty (180) days prior to the
close of the Initial Term and one hundred eighty (180) days prior to the close
of the then-existing Renewal Term, Alliance will notify Customer of any new
fees, new Minimums (herein defined in Exhibit B) and other changes to this
Agreement to be effective during the upcoming Renewal Term.
3. FEES, CHARGES AND MINIMUMS.
3.1. Fees. Except as modified pursuant to Sections 3.3,3.4 and 3.5 below
below, Customer will pay to Alliance the fees set forth in Exhibit B during the
Initial Term.
3.2 Taxes. Amounts payable to Alliance by Customer under this Agreement are
net of taxes. Taxes and duties, however designated, on Customer's use of the
Services, excluding taxes based on the income and/or property of Alliance, are
the Customer's responsibility. Alliance will either pay those taxes on behalf of
Customer and invoice Customer for them monthly and/or Customer will provide
Alliance with evidence that Customer is exempt from payment of those taxes. If
such an exemption is later held to be invalid by the taxing authority of the
jurisdiction for which the exemption is asserted, Customer shall be liable for,
and shall indemnify Alliance for, any penalties, taxes and interest. [omitted
and filed separately with the Commission] The provisions of this Section 3.2
shall survive the termination or expiration of this Agreement.
3.3 Fees Not Included. The Fees for Services set forth in Exhibit B do not
include mutually agreed upon pass-through items and the cost of the following
items: one-time data or telecommunication line and modem charges, fees
associated with the deployment of Customer's software to Alliance facilities,
all output medium, postage, delivery service (i.e. courier, express mail),
training materials and supplies. The costs for such items shall either be paid
directly by Customer or paid by Alliance with prompt reimbursement from
Customer.
3.4. Fee Adjustment. The time clock hour and handle time minute fees for call
center labor set forth in Exhibit B may, as of each anniversary date of this
Agreement, be increased by the actual percentage increase in the average hourly
earnings for service workers published by the Bureau of Labor Statistics of the
Department of Labor, for the then-most-recent twelve (12) months as to which
such statistics are available, provided such fees may not be increased under
this Section 3.4 by more than [omitted and filed separately with the Commission]
per year. If the average hourly earnings for service workers is no longer being
published, the Parties will agree upon use of the most comparable index being
published at that time.
3.5. Minimum Annual Call Handling Fee. Customer shall pay Alliance a minimum
annual fee for call handling based on the minimum amounts set forth in Exhibit
B; provided, however, that with respect to a termination of this Agreement prior
to the end of a calendar year, the annual handle time minimum volumes and annual
call handling fee minimums applicable to that year shall be adjusted by
multiplying such numbers by a number equal to the number of days in the calendar
year that Services are provided under this Agreement prior to termination
divided by 365.
4. SOFTWARE.
4.1 Software License from Customer. For as long as this Agreement is in
effect, Customer hereby grants to Alliance a limited, non-exclusive and
non-transferable object-code license (the "License") to use Customer's
proprietary software or third party software that has been licensed to Customer
and which is necessary for Alliance to use to provide the Services, and any
updates thereto (the "Software"). Customer warrants to Alliance that it has full
title to and/or the right to license the Software to Alliance and that the
Software does not infringe on the patent, copyright, trade secret or other
intellectual property right of any third party. If an intellectual property
infringement claim arises with respect to the Software, in addition to
Alliance's rights to indemnification in Section 6, Customer shall use its best
efforts to procure the right to have Alliance continue to use the Software or
replace the Software with non-infringing Software of equivalent functionality.
4.2 Software License from Alliance. In the event that Customer requests
Alliance to provide, develop or acquire software to meet Customer's special
requirements or if Customer desires to use Alliance's software, or third party
software that is licensed to Alliance, at Customer's facility(ies) or a third
party's facility(ies), then Alliance and Customer shall negotiate, in good
faith, the terms and conditions of Customer's use of such software. If Alliance,
solely at its own discretion, develops or purchases proprietary software which
enhances its operating capability at its own facilities, Alliance will not
charge Customer for the use of such software in Alliance facilities.
4.3 Related Rights. Neither Party will, as a result of this Agreement or of
performance hereunder, acquire any property or other right, claim or interest,
including any patent right or copyright interest, in any of the information,
systems, processors, equipment, computer software, data or service or trademarks
of the other.
4.4 Survival. The provisions of this Section 4 shall survive the termination
or expiration of this Agreement.
5. PERFORMANCE/CALL FORECASTING.
5.1 Performance. No later than December 31, 1999, Alliance and Customer will
mutually agree upon commercially reasonable performance targets that are
consistent with standard industry practice and that are tied to financial
incentives and disincentives for Alliance ("Performance Targets"). Until the
implementation of the mutually agreed upon Performance Targets, Alliance will
use commercially reasonable efforts to answer eight-five percent (85%) of calls
offered within 30 seconds and to maintain an abandon rate of less than or equal
to ten percent (10%).
5.2 Call Forecasting. In order for Alliance to provide sufficient personnel,
equipment and facilities to provide the Services specified in this Agreement,
Alliance and Customer will mutually agree upon a commercially reasonable call
forecasting process that is consistent with standard industry practice no later
than December 31, 1999.
5.3 Volume Allocation. No later than December 31, 1999, both Parties will
mutually agree on a commercially reasonable methodology to allocate call volume
from Customer's network to Alliance's call centers that is consistent with
standard industry practice.
6. LIABILITY; INDEMNIFICATION.
6.1 Liability and Indemnification Obligations. Except as otherwise provided
in this Section 6 and subject to the terms of subsection 6.2 below, Each Party
shall be liable to the other Party for all direct damages and shall defend,
indemnify and hold the other Party harmless from and against any and all
third-party claims, to the extent any such direct damages and/or third-party
claims are based upon or arise from (i) the indemnifying Party's breach of any
material provision of this Agreement and/or (ii) the indemnifying Party's gross
negligence or willful misconduct in its performance or failure to perform under
this Agreement.
6.2. Limitations on Liability, Indemnification. Each Party's aggregate
liability to the other for (a) direct damages and (b) third-party claims, which
occur or are made during a Contract Year, shall not exceed [omitted and filed
separately with the Commission] of the fees (excluding pass-through expenses)
actually received by Alliance from Customer hereunder during such Contract Year.
The parties agree that (a) any breach or gross negligence or willful misconduct
described in subsection 6.1 above that continues over more than one (1) Contract
Year, and/or (b) all direct damages or third-party claims which are related to
the same breach or gross negligence or willful misconduct described in
subsection 6.1.and which accumulate for more than one (1) Contract Year, shall
be deemed to have occurred or been sustained during the Contract Year in which
such breach or gross negligence or willful misconduct initially occurred. For
the purposes of this Agreement, "Contract Year" shall mean the period commencing
on the Effective Date and continuing for three hundred sixty-four (364) days
thereafter, as well as each subsequent three hundred sixty-five (365)-day period
of the Term and of the Renewal Term.
6.3. SPECIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
ANY INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES, PUNITIVE OR EXEMPLARY ARISING OUT
OF, OR RELATED TO, THIS AGREEMENT.
6.4 Limitation Not Applicable. The limitations on liability contained in
subsections 6.2 and 6.3 shall not apply to: (i) claims that either Party's
intellectual property infringes the intellectual property rights of another;
(ii) a claim by Alliance against Customer for failure to pay the minimum annual
fees or termination fees as provided in this Agreement unless the Customer's
non-payment of such minimum fees or termination fees is otherwise permitted by
the Agreement; or (iii) a claim by Alliance against Customer for Customer's
failure to pay taxes in accordance with Section 3.
6.5. Threshold for Claims. Neither Party shall assert claims for damages
against the other Party unless and until the aggregate amount of such claims
exceeds $25,000. The Party who is the potential indemnitee hereunder shall
promptly notify the other Party (the potential indemnitor) in writing of any
such claim for direct damages or of the receipt of notice of the making or
institution of a third-party claim against the potential indemnitee. However,
the potential indemnitor shall not be liable for any direct damages or
third-party claims where more than three hundred sixty-five (365) days have
elapsed between the initial occurrence of the event giving rise to such direct
damages or such third-party claims and the potential indemnitor's receipt of
notice from the potential indemnitee of a claim for direct damages or the making
or institution of a third-party claim against the potential indemnitee.
6.6 Defense. An indemnitee shall have the option of joining in the contest of
a third-party claim or the defense against same by its own counsel, but in any
event shall reasonably cooperate in any such contest or defense. The indemnitor
shall bear all expenses in connection with the contest, defense and/or
settlement of any third-party claim, except that, if the indemnitee desires to
retain its own counsel to participate in any such contest or defense, it will do
so at its own expense.
6.7 NO WARRANTIES. OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT,
THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THE GOODS OR
SERVICES PROVIDED BY ALLIANCE PURSUANT TO THIS AGREEMENT. THE REMEDIES SET FORTH
IN THIS SECTION 6 ARE THE SOLE REMEDIES RELATING TO ALLIANCE'S LIABILITY TO
CUSTOMER AND CUSTOMER'S LIABILITY TO ALLIANCE FOR DIRECT DAMAGES AND THIRD-PARTY
CLAIMS.
6.8 Survival. The obligations of the parties pursuant to this Section 6 shall
survive the termination or expiration of this Agreement with respect to any
direct damages or third-party claims.
7. TERMINATION.
7.1 Events of Default. If either Party fails substantially to perform any
material provision of this Agreement (including performance of the Performance
Targets) and does not cure the failure substantially to perform within sixty
(60) days after written notice from the other Party specifying the failure
(except that such cure period will be thirty (30) days for failure to pay money
when due), or becomes insolvent, enters voluntary bankruptcy or receivership
proceedings or makes an assignment for the benefit of creditors, or if within
thirty (30) days after the filing of any petition or the commencement of any
proceeding against it seeking relief under the Federal Bankruptcy Code such
proceeding shall not have been dismissed, the other Party may, in addition to
any other rights or remedies it may have hereunder or by law, terminate this
Agreement by giving notice at any time thereafter, but if termination is for a
failure substantially to perform, only if the failure remains uncured and is
continuing at the end of the respective cure period. In addition, if the
Customer and Alliance cannot mutually agree, prior to the applicable deadlines
set forth in this Agreement or any mutually agreed upon extension of those
deadlines, upon (i) the procedures and reporting policies pursuant to Section
1.2 or (ii) pursuant to Section 5, performance targets, a call forecasting
process and a method to allocate call volume, Customer shall have the right to
terminate this Agreement, without penalty (notwithstanding any other provision
of this Agreement), upon forty-five (45) days' notice to Alliance.
The terminating Party under this subsection 7.1 will be relieved of all
further obligations hereunder except for those obligations which are specified
to survive the termination or expiration of this Agreement and provided, that if
Customer is the terminating Party, Customer will pay to Alliance any monies
payable by it to Alliance up to such termination.
7.2 Early Termination. [Paragraph omitted and filed separately with the
Commission]
7.3 Deconversion.Upon termination or cancellation of this Agreement, other
than termination by Alliance under Section 7.1 as a result of Customer's breach,
Alliance shall provide Customer with assistance in deconverting the Services.
Such deconversion assistance shall be performed in accordance with commercially
reasonable industry practice. Alliance shall not be required to pay for or share
in any of Customer's out-of-pocket deconversion costs.
7.4 Survival . The provisions of this Section 7 shall survive the termination
or expiration of this Agreement.
8. CONFIDENTIALITY.
8.1. Customer Information. Except to the extent necessary to perform its
obligations under this Agreement or as required by law, Alliance will not,
without the written authorization of Customer, use or disclose to anyone other
than Customer, information concerning Customer's customers that Alliance obtains
as a result of its negotiating or implementing this Agreement or providing
Services hereunder.
8.2 Confidential Information. "Confidential Information" means any
information or data (whether oral, written, electronic or otherwise) concerning
the terms of this Agreement or either Party's business, business plans,
processes, financial information, data, know-how, designs, reports, technical
specifications, pricing information, market definitions and information,
subscriber account information, inventions and ideas, which is conveyed or
communicated, in any form, by one Party to the other Party or learned as a
result of negotiating or implementing this Agreement or providing Services
hereunder.
8.3. No Disclosure. Neither Party will disclose any Confidential Information
without the prior written consent of the Party to whom the Confidential
Information belongs; provided, however, either Party may disclose Confidential
Information (i) to its employees and agents (including attorneys, lenders,
accountants, and investment bankers) who have a need to know this information,
(ii) in connection with a transfer of control, merger or a sale of substantially
all of a Party's ' assets (provided that the recipient has entered into a
confidentiality agreement that preserves the disclosing Party's Confidential
Information) or (iii) as required by court order or law (including United States
securities laws). Alliance acknowledges that Customer or its affiliates are
publicly reporting companies and may need to file this Agreement with its
filings to the Securities and Exchange Commission. Customer agrees to use it
reasonable best efforts to seek confidential treatment of any such information
that may need to be disclosed by Customer or its affiliates and to consult with
Alliance regarding the disclosure of such information prior to disclosing it.
Information shared between the Parties, including customer information covered
in Subsection 8.1 above, shall not be considered Confidential Information if:
(i) it is generally known to the trade or the public at the time of such
disclosure; (ii) it becomes generally known to the trade or the public
subsequent to the time of such disclosure, but not as a result of disclosure by
the other; (iii) it is legally received by either Party from a third party
without restriction; (iv) it is independently developed by either Party; or (v)
it is approved for release in writing by the Party whose Confidential
Information is to be released, prior to any release
8.4. Property Rights. Neither Party will, as a result of this Agreement or of
performance hereunder, acquire any property or other right, claim or interest,
including any patent right or copyright interest, in any of the information,
systems, processors, equipment, computer software, derivative works, data,
servicemarks or trademarks of the other.
8.5. Procedures to Protect. Both Parties covenant that at all times each will
have in place procedures designed to assure that each of its employees and each
third party who is given access to the other Party's Confidential Information
will protect the confidentiality thereof.
8.6. Breach of Confidentiality. Each of the Parties acknowledges that any
breach of the confidentiality provisions of this Agreement by it shall result in
irreparable and continuing damage to the other Party and, therefore, in addition
to any other remedy which may be afforded by law, any breach or threatened
breach of the confidentiality provisions of this Agreement may be prohibited by
restraining order and/or injunction or other equitable remedies of any court.
8.7. Survival. The provisions of this Section 8 will survive termination or
expiration of this Agreement for a period of five (5) years.
8.8 Joint Developments. Any jointly developed materials that are not
software, hardware, or derivative works (the ownership of which is covered in
Section 4.3) including without limitation, training materials or scripts, shall
be both Party's Confidential Information, which neither Party will disclose to a
third party without the other Party's prior written consent.
9. INVOICES; INVOICE DISPUTES.
9.1 Invoices. Invoices for amounts owing to Alliance hereunder will be sent
to Customer monthly, in arrears, at the address designated by Customer and are
payable within thirty (30) days of the invoice date. Alliance may include all
charges for a given month on one invoice. Invoices will be in Alliance's
standard invoice format.
9.2. Invoice Disputes. In the event of a dispute as to the accuracy of an
invoice or calculation made pursuant to this Agreement, Customer will promptly
request in writing that Alliance provide to it such supporting material as would
be reasonably designed to ascertain the accuracy of the invoice or calculation.
Customer will notify the Alliance Controller in writing at P. 0. Xxx 000,
Xxxxxx, XX 00000-0000 of its intent to dispute a portion or all of an invoice,
and in such notice Customer will specify the exact amount of such dispute, and
the reason(s) for such a dispute. Invoice charges that are not more than five
percent (5%) greater than Customer's calculations for such charges will be
payable on receipt; amounts above five percent (5%) need not be paid until the
dispute is resolved.
The Parties will cooperate to resolve any invoice disputes in an
expeditious manner. If an invoice dispute is resolved in favor of the Customer,
Alliance will promptly issue invoice credits to Customer against subsequent
invoices.
9.3. Address for Invoices. Invoices will be sent to Customer at the fo11owing
address: 000 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx
XxXxx. Customer will promptly notify Alliance of any change in such address.
9.4. Past Due Invoices. Invoices not paid by the invoice due date may be
assessed by Alliance at a rate equal to the lesser of (i) one and one-half
percent (1 1/2%) per month or (ii) the then applicable legal maximum rate of
interest.
10. SUCCESSORS AND ASSIGNS.
This Agreement is binding upon the Parties and their respective successors
and assigns, and neither Party will assign or transfer any rights or obligations
hereunder without the prior written consent of the other Party, which will not
be unreasonably withheld, except that either Party may at any time assign and
transfer this Agreement and all rights and obligations hereunder if the
assignment does not relieve the assignor of any of its obligations hereunder in
the event of default by its assignee
11. FORCE MAJEURE.
Neither Party will be responsible for any failure or delay in performance of
its obligations under this Agreement because of circumstances beyond its
control, including, but not limited to, acts of God, flood, fire, riot,
terrorist activity or the threat of terrorist activity, strikes or work
stoppage, embargo, inability to obtain material, the failure of the equipment or
phone lines of third parties not affiliated with Alliance, government action
(including any laws, ordinances, regulations or the like which restrict or
prohibit the providing of the Services contemplated by this Agreement), and
other causes whether or not of the same class or kind as specifically named
above. In the event a Party is unable substantially to perform for any of the
reasons described in this Section, it will notify the other Party promptly of
its inability so to perform, and if the inability continues for not fewer than
sixty(60) consecutive days, the Party so notified may then terminate this
Agreement effective upon notice to the other Party. This provision shall not,
however, release the Party unable to perform from taking reasonable action to
avoid or remove such circumstance and such Party unable to perform shall
continue performance hereunder with the utmost dispatch whenever such causes are
removed.
12. NOTICES.
All notices pursuant to this Agreement must be in writing and are given when
mailed by certified or registered mail, return receipt requested, or sent by
receipted courier service, or delivered personally, to the Party concerned at
the following address: If to ADS Alliance Data Systems, Inc., 00000 Xxxxxxxxx
Xxxxxxx, Xxxxxx, Xxxxx 00000, Attn: Chief Administrative Officer with a copy to
General Counsel. If to Customer: 000 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000, Attn: Xxxx XxXxx with a copy to: Pegasus Communications Corporation, 000
Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000, Attn: Xxx X.
Lodge.
Either Party may change the address to which notices and communications will
be sent by written notice to the other Party, provided that any notice of change
of address is effective only upon receipt.
13. INTEGRATION.
This Agreement sets forth the entire agreement and understanding between the
Parties relating to its subject matter and merges all prior discussions between
them. This Agreement may not be amended or modified except in writing signed by
the Party against whom such modification or amendment is to be enforced.
14. RELATIONSHIP OF PARTIES.
The Parties to this Agreement are acting solely in the capacity of
independent contractors and nothing in this Agreement shall be construed as to
constitute the Parties as partners or joint venturers, or agent of the other,
and neither Party will so represent itself. Likewise, the employees of each
Party shall not be deemed to be employees of the other Party by virtue of this
Agreement or the rights and obligations set forth herein.
15. HEADINGS.
The headings given to the Sections of this Agreement are for convenience of
reference and are not to be used to interpret this Agreement.
16. SEVERABILITY.
In the event that one or more provisions of this Agreement are held invalid,
illegal or unenforceable in any respect or on the basis of any particular
circumstances or in any jurisdiction, the validity, legality and enforceability
of such provision or provisions under other circumstances or in other
jurisdictions and of the remaining provisions will not in any way be affected or
impaired, unless the declaration of the invalidity, illegality or
unenforceability of such provision or provisions substantially frustrates the
continued performance by, or entitlement to benefits of, either Party, in which
case this Agreement may be terminated by the affected Party, without minimum fee
guarantees or other penalty.
17. WAIVER.
No failure or delay on the part of either Party in exercising any power or
right under this Agreement operates as a waiver, nor does any single or partial
exercise of any power or right preclude any other or further exercise, or the
exercise of any other power or right. No waiver by a Party of any provision of
this Agreement, or of any breach or default, is effective unless in writing and
signed by the Party against whom the waiver is to be enforced.
18. APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
19. MUTUAL DRAFTING.
This Agreement is the joint product of Alliance and Customer and each
provision hereof has been subject to mutual consultation, negotiation and
agreement of Alliance and Customer, and shall not be construed for or against
any Party hereto.
20. NO THIRD PARTY BENEFICIARIES.
The provisions of this Agreement are for the benefit of the Parties hereto
and not for any other person or entity.
21. COORDINATION OF PUBLIC STATEMENTS/USE OF NAMES.
21.1 Public Statements. Neither Party will make any public announcement
pertaining to this Agreement or the Services or provide any information related
to the Agreement or Services to the news, trade or other media without the prior
written approval of the other Party, and will not respond to any inquiry from
any public or governmental authority, except as required by law, pertaining to
this Agreement or the Services without the prior consultation and coordination
with the other Party.
21.2 Use of Names and Logos. Neither Party shall use the other Party's name,
slogans, logos, tradenames, trademarks, servicemarks, or distinctive symbols
without the other Party's prior written permission.
22 NO HIRE.
During this Agreement and for a period of 24 months following termination or
expiration, neither Party shall knowingly hire an employee of the other Party
(the "Employer"); provided, however, that an employee may be hired who is not in
a management position with Employer, who seeks employment in response to a
classified ad or similar means of obtaining an employee, or who responds to an
ad or request made by a professional recruiting firm or similar organization.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
and through their duly authorized representatives.
PEGASUS SATELLITE TELEVISION, INC.
By: Xxxxxx X. Xxxxxx
-------------------------
Title: E.V.P.
-------------------------
DIGITAL TELEVISION SERVICES, INC.
By: Xxxxxx X. Xxxxxx
-------------------------
Title: E.V. P.
-------------------------
ADS ALLIANCE DATA SYSTEMS, INC.
By: X.X. Xxxxxxxx
-------------------------
Title: Ex V.P. & CAO
-------------------------
EXHIBIT A
SERVICES
1. Alliance will provide the resources to handle inbound calls from Customer's
existing or potential customer base regarding existing or planned Customer
products (hereinafter referred to as "customer care"). Alliance will provide
customer care 24-hour a day, 7 day a week. Alliance's facility will
supplement existing Customer facilities. Initially, Alliance will provide the
Services at its Dallas, Texas facility. Call types to be handled may include,
but may not be limited to:
o General inquiries regarding features, functions, content and pricing of
Customer's product(s).
o Inquiries regarding monthly invoices or billing statements for Customer's
product(s).
o Requests to receive information regarding waivers from local broadcast
network affiliates.
o Enrollment of potential subscribers from direct marketing campaigns.
o Spanish language subscriber inquiries
o Per the terms and conditions of the Agreement, Alliance may also provide
related non-telephone related administrative and clerical support, as well
as the appropriate mutually agreed upon required skills training for
customer care representatives.
2. From time to time, the Customer may require more advanced call center
support, which may include, by way of example only, sales, retention and
technical support. Costs for these types and other call center support not
contemplated in this Agreement will be mutually agreed upon based on the
required skill level and associated support.
3. At the Customer's request, based on terms and conditions to be agreed upon,
Alliance will use commercially reasonable efforts to provide customer care
and related support for significant business events. A significant business
event is an event that requires significant additional Alliance or other
third-party resources, a majority of which will not be retained at the
conclusion of the event, over and above those resources typically dedicated
to support the Customer. By way of example only, these events may include
Tyson or Xxxxxxxxx Pay-Per-View events, periodic CAM card replacements, etc.
4. Alliance will provide the Services and access the Customer's database
utilizing customer care and billing system software provided by the Customer.
This software will be deployed to Alliance facility workstations in a
mutually agreed upon fashion at the Customer's own expense.
5. Alliance will not provide long distance telephone service. Customer will
utilize its existing network to provide this service and will be responsible
for the initial implementation and ongoing support of all long distance
service and local access.
6. Mutually agreed upon daily, weekly and monthly Service performance reporting
and statistics will be provided to Customer by Alliance.
EXHIBIT B
FEES
1. Call Center Labor: Through December 31, 1999, call center labor will be
billed on a paid time-clock-hour basis. Thereafter, all call center labor
will be billed on a monthly handle time minute basis as stated in Section 3,
below. A handle time minute is defined as the sum of the talk time of an ACD
call and the after call work time associated with the ACD call. All call
center labor fees include management, supervisory, and quality staff.
2. Ramp-Up Period: All call center labor will be billed at the rate of $
[omitted and filed separately with the Commission] per timeclock hour through
December 31,1999.
3. On-Going Labor: The fees stated below take effect January 1, 2000.
Aggregate
Monthly Handle Time Minutes Fee
[omitted and filed separately with the [omitted and filed separately with
Commission] the Commission]
o Pricing above assumes twenty-four hour per day, seven day per week support
with [omitted and filed separately with the Commission] of calls offered
answered within 30 seconds and an abandon rate equal to or less than
[omitted and filed separately with the Commission].
o Monthly handle time minutes over [omitted and filed separately with the
Commission] may require additional call center facilities which may be
subject to new or additional terms, conditions, and minimums.
4. Specialized Support: At Customer's request, Alliance may provide specialized
call center support for unique call types at the fees set forth below.
Function Fee
-------- ---
Spanish Language Support [omitted and filed separately
with the Commission]
Non-Call Administrative/Clerical Support
Sales/Subscriber Retention Support
Technical Support
o *TBD: Fees for these types of call center representatives and others not
included in the Agreement will be determined on an "as needed" basis based
on required skill level and associated support costs.
EXHIBIT B
FEES
(Continued)
5. Significant Business Events: At Customer's request, Alliance may provide
support for Customer's significant business events. A significant business
event is an event that requires significant additional Alliance resources, a
majority of which will not be retained at the conclusion of the event, over
and above those resources typically dedicated to support the Customer. These
events may include, by way of example only: Tyson PPV Events, Xxxxxxxxx PPV
Events, Periodic CAM card replacements, etc. Fees for the support of these
events will be determined on an event-by-event basis based on the required
level of support, duration of the event, and the amount of advance
notification Customer provides to Alliance..
6. Training: All fees quoted include [omitted and filed separately with the
Commission] hours of attrition training. Initial training of customer care
representatives hired during the ramp-up period will be billed to customer at
$ [omitted and filed separately with the Commission] per time clock hour.
Training Type Fee
------------- ---
Customer requested training [omitted and filed separately with the
Creation of training materials Commission]
7. Overtime: Alliance will staff call center support to the mutually agreed upon
call forecasting process. Overtime for call center labor will be used
strictly on an "as needed", mutually agreed upon basis to handle actual call
volume over the mutually agreed upon call volume forecast. Alliance will use
commercially reasonable efforts to maximize all available "regular",
non-overtime hours before authorizing overtime hours. In the event overtime
is required, the following fees apply:
Function Fee
-------- ---
Required Overtime [omitted and filed separately with the
Commission]
8. Minimums: Beginning January 1, 2000, the minimum call handling fees paid by
Customer to Alliance each year shall be as follows:
Annual Handle Time Annual Call Handling
Year Minimum Volumes Fee Minimums
2000 [omitted and filed $12,600,000
2001 separately with the $18,216,000
2002+ Commission] $20,250,000
o Customer shall pay Alliance a monthly call handling fee based on Customer's
actual monthly handle time minutes allocated to Alliance by Customer. If at
the end of each calendar year the total actual handle time fees paid to
Alliance are less than the minimum fees for that year as set forth above,
Customer shall pay Alliance the difference within 30 days of Customer's
receipt of an invoice from Alliance; provided, however, that with respect
to a termination of this Agreement prior to the end of a calendar year, the
annual handle time minimum volumes and annual call handling fee minimums
applicable to that year shall be adjusted by multiplying such numbers by a
number equal to the number of days in the calendar year that Services are
provided under this Agreement prior to termination divided by 365.
