Exhibit 10.30
REMOTE OUTSOURCING SERVICES AGREEMENT
BY AND BETWEEN
ALLTEL INFORMATION SERVICES, INC.
AND
BANK OF OKLAHOMA, NA
DATED AS OF: SEPTEMBER 2002
TABLE OF CONTENTS
PAGE
1.
Definitions...............................................................1
1.1 Definitions......................................................1
-----------
1.2 Definition Cross-Reference Index.................................2
--------------------------------
2. Services..............................................................3
2.1 Services.........................................................3
--------
2.2 Exhibits.........................................................4
--------
3. Fees and Payment
Arrangements..............................................................4
3.1 Service Fees.....................................................4
------------
3.2 Payments by Client...............................................4
------------------
4.
Term......................................................................5
5. Data Processing, Premises and
Security..................................................................6
5.1 Data Processing..................................................6
---------------
5.2 Office Space and Accommodations..................................6
-------------------------------
5.3 Security Standards...............................................6
------------------
6. Client
Resources.................................................................7
6.1 Client Resources.................................................7
----------------
6.2 Required Consents................................................7
-----------------
7. Mergers and
Acquisitions..............................................................7
8.
Software..................................................................8
8.1 ALLTEL Software..................................................8
---------------
8.2 User Manuals.....................................................9
------------
8.3 Client Software..................................................9
----------------
8.4 Third Party Software and Maintenance.............................9
-------------------------------------
8.5 Installation of New Releases, Updates and Enhancements..........10
------------------------------------------------------
9. Personnel And
Committees...............................................................11
9.1 ALLTEL Account Manager.........................................11
-----------------------
9.2 Executive Liaison...............................................11
-----------------
9.3 ALLTEL Base Staff...............................................11
-----------------
9.4 ALLTEL Staff Personnel Changes..................................12
------------------------------
9.5 Periodic Communications.........................................13
-----------------------
10. Files and Programs, Storage, and Disaster
Recovery.................................................................14
10.1 Files and Programs...........................................14
------------------
10.2 Retention....................................................14
---------
10.3 Disaster Recovery............................................15
-----------------
11. Change
Orders...................................................................16
12. Intellectual Property
Rights...................................................................17
12.1 Ownership of Client Software.................................17
----------------------------
12.2 Modifications to Client Software.............................17
--------------------------------
12.3 Ownership of ALLTEL Software.................................17
----------------------------
12.4 Modifications to ALLTEL Software.............................17
--------------------------------
13.
Audits...................................................................18
13.1 Client's Regulatory Audit....................................18
-------------------------
13.2 General Audit...................................................18
-------------
13.3 Independent Audit.............................................19
-----------------
13.4 Excluded Materials...........................................19
------------------
14. Dispute
Resolution...............................................................19
14.1 Dispute Resolution Procedures................................19
-----------------------------
14.2 Claims Procedures............................................19
-----------------
14.3 Escalation Procedures........................................20
---------------------
15. Limitation of
Liability................................................................21
16.
Indemnification..........................................................21
16.1 Personal Injury and Property Damage..........................21
-----------------------------------
16.2 Infringement of ALLTEL Software or ALLTEL Provided
Third Party Software.........................................21
--------------------------------------------------
16.3 Infringements of Client Software or Client Provided
Third Party Software or Client Resources....................22
-----------------------------------------------------
16.4 Employee Matters Indemnification.............................23
16.5 Violation of Law Indemnification................................23
--------------------------------
17. Force Majeure, Time of Performance and Increased Costs
and Error Correction...............................................24
------------------------------------------------------
17.1 Force Majeure................................................24
-------------
17.2 Time of Performance and Increased Costs......................24
---------------------------------------
17.3 Error Correction.............................................25
----------------
18.
Notices..................................................................25
18.1 Notices......................................................25
-------
18.2 Change of Address............................................26
-----------------
19.
Termination..............................................................26
19.1 Termination..................................................26
-----------
19.2 Termination Upon ALLTEL's Material Breach....................26
-----------------------------------------
19.3 Termination Upon Client's Material Breach....................27
-----------------------------------------
19.4 Termination by Client for Convenience; Insolvency............27
-------------------------------------------------
19.5 Termination by Client for Merger.............................28
---------------------------------
19.6 Return of Material; Deconversion Assistance;
In-House Transition Assistance..............................28
--------------------------------------------
19.7 Equipment; Software..........................................29
-------------------
19.8 Survival Upon Expiration or Termination......................30
----------------------------------------
19.9 Offer of Employment..........................................30
-------------------
20.
Confidentiality..........................................................30
20.1 Confidentiality Obligation...................................30
--------------------------
20.2 Non-Disclosure Covenant......................................30
-----------------------
20.3 Exceptions...................................................30
----------
20.4 Confidentiality of this Agreement; Protective Arrangements...31
---------------------------------------------------------
20.5 Injunctive Relief............................................32
-----------------
21. Other Representations, Warranties and
Covenants................................................................32
21.1 Licenses and Permits and Compliance with Laws................32
----------------------------------------------
21.2 No Interference with Contractual Relationship................32
---------------------------------------------
21.3 Covenant of Good Faith.......................................32
----------------------
21.4 Authorization and Effect.....................................32
------------------------
21.5 Business Practices...........................................33
------------------
21.6 ALLTEL Software..............................................33
---------------
21.7 Client Software..............................................33
---------------
21.8 Professional and Workmanlike.................................33
----------------------------
21.9 No Additional Representations or Warranties..................33
-------------------------------------------
22.
Miscellaneous............................................................34
22.1 Independent Contractor.......................................34
----------------------
22.2 Assignment...................................................34
----------
22.3 Severability.................................................35
------------
22.4 Third Party Beneficiaries....................................35
------------------------
22.5 Governing Law, Forum Selection; Consent of Jurisdiction......35
-------------------------------------------------------
22.6 Executed in Counterparts.....................................35
------------------------
22.7 Construction.................................................35
------------
22.8 Entire Agreement.............................................36
----------------
22.9 Amendments and Waivers.......................................6
----------------------
22.10 Remedies Cumulative..........................................36
-------------------
22.11 Education and Training.......................................36
----------------------
22.12 Taxes........................................................37
-----
22.13 Attorney Fees..................................................37
-------------
22.14.
Insurance................................................................37
EXHIBITS
Exhibit A Services
Exhibit B Service Fees
Exhibit C Software
Exhibit D Service Level Agreements
Exhibit E Acquisition Conversion Prerequisite Conditions and Restrictions
Exhibit F Client Systems Isolation
Exhibit G Form Software License Agreement
Exhibit H ACBS and ALS Integration
Exhibit I In-House Transition Assistance
Exhibit J Deconversion Assistance
REMOTE OUTSOURCING SERVICES AGREEMENT
This is a Remote Outsourcing Services Agreement (the "Agreement"),
dated as of the 1st day of September 2002 ("Effective Date"), by and between
ALLTEL INFORMATION SERVICES, INC., an Arkansas corporation, 0000 Xxxxxx Xxxxxx
Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("ALLTEL") and BANK OF OKLAHOMA, NA, a
national association, Bank of Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000 (the
"Client").
NOW, THEREFORE, the parties agree as follows:
1. Definitions.
1.1 Definitions. As used in this Agreement:
-----------
(a) "ALLTEL Affiliate" shall mean any wholly-owned direct or
indirect subsidiary of ALLTEL Corporation, as from time to time constituted.
(b) "ALLTEL Provided Third Party Software" shall mean any
program or part of a program, which is licensed or sublicensed to ALLTEL by a
third party that has the right to provide that license or sublicense, including,
without limitation, those programs described in Exhibit C.
(c) "ALLTEL Software" shall mean any program or part of a
program as described in Exhibit C, or any program or part of a program which is
otherwise developed for Client or a Client Affiliate or licensed to Client or a
Client Affiliate by ALLTEL or an ALLTEL Affiliate, which is owned by ALLTEL or
an ALLTEL Affiliate and all modifications, upgrades or enhancements to any such
program prepared by ALLTEL or any ALLTEL Affiliate.
(d) "ALLTEL Technology Center" shall mean as of the Effective
Date, ALLTEL's data centers located in Little Rock, Arkansas, and San Diego,
California, or such other or replacement locations as ALLTEL may designate.
(e) "Client Affiliate" shall mean BOK Financial Corporation,
Bank of Texas, NA, Bank of Albuquerque, NA, Bank of Arkansas, NA and BOSC, Inc.
and those entities (i) added to the definition of "Client Affiliate" as provided
in Section 7, Mergers and Acquisitions, herein and (ii) that are directly or
indirectly, through one or more intermediaries, controlled by, or is under
common control with, Client. "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of an entity through the majority ownership of voting securities. It is
agreed by the parties that (i) such Client Affiliates shall be bound by the
terms and conditions of this Agreement (ii) all of the systems and services
provided under this Agreement may be made available to the Client Affiliates,
and (iii) Client guarantees the performance of, and payment by, each Client
Affiliate of any and all obligations and liabilities under this Agreement.
(f) "Client Provided Third Party Software" shall mean any
program or part of a program, which is licensed or sublicensed to Client by a
Third Party that has the right to provide that license or sublicense, including,
without limitation, those programs described in Exhibit C.
(g) "Client Resources" shall mean those assets, services,
personnel and rights, leased, contracted for, licensed, or owned by Client,
Client Software, and Client Provided Third Party Software, if any, to be made
available to ALLTEL by Client to enable ALLTEL to provide the Services.
(h) "Client Software" shall mean any program or part of a
program (or any modifications, updates or enhancements to such Client Software,
if any, which is owned by Client which is made available by Client to ALLTEL and
which is necessary for ALLTEL to provide the Services as well as any Client
Provided Third Party Software described in Exhibit C. Under no circumstances
shall the ALLTEL Software and ALLTEL Work constitute Client Software for
purposes of the Agreement.
(i) "Competitor" shall mean any person, firm or corporation
engaged in the business of developing, marketing or licensing application
software products, or engaged in the business of providing like technology
services to financial services companies.
(j) "Days" shall mean calendar days, unless otherwise
specified.
(k) "Expiration Date" shall mean the earliest of (i) the later
to occur of August 31, 2010, 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 19 or Section 7.
(l) "Pass Through Expenses" shall mean those designated costs
or expenses incurred by ALLTEL under this Agreement that shall be passed through
to Client by ALLTEL without xxxx up.
(m) "Required Consents" shall mean the consents required (if
any) to enable ALLTEL to use any Client Resources.
(n) "Source Code" shall mean the human readable version of
that ALLTEL Software described in Exhibit C that is indicated with a single
asterisk, including comments and other explanatory documentation.
1.2 Definition Cross-Reference Index. As used in this Agreement,
the following terms are defined in the following sections
of the Agreement:
Term Section
---- -------
Affected Performance 17.1
Agreement Preamble
ALLTEL Preamble
ALLTEL Account Manager 9.1
ALLTEL Damages 19.3(d)
ALLTEL Staff 9.3
ALLTEL Staff Offeree 4.2
ALLTEL Work 12.4
ALLTEL Work Product 16.2
Assignment 22.2
Base Staff 9.3
Change Order 11.1
Client Preamble
Client Damages 19.2(c)
Client Work 12.2
Client Work 12.2
Confidential Information 20.1
Courts 22.5
Data Retention Standard 10.2
Delayed Invoice 3.2(a)
Disaster Recovery Guidelines 10.3.4
Effective Date Preamble
Escalation Procedures 14.3
Escrow 3.2(a)
Executive Liaison 9.2
Extension Period 4.1
GLB Act 20.1
In-House Transition 4.2
Local Offices 5.2
Merger Early Termination Option 7.3
New Affiliate 7.1
Other Entity 7.4
Press Release 22.11
Confidential Information 20.1
Services 2.1
Service Fees 3.1
Software License Agreement 8.1
Temporary Staff 9.3
Term 4.1
Termination Date 19.1
Termination for Convenience 19.4
2. Services.
2.1 Services. This Agreement sets forth the terms and conditions for
the provision by ALLTEL to Client and Client Affiliates of the consulting,
implementation, conversion, data processing, network, disaster recovery,
software maintenance, software customization and support services during the
Term, as more fully described in Exhibit A attached hereto (individually and
collectively the "Services"). ALLTEL will provide the Services on its own and/or
through one or more ALLTEL Affiliates and/or subcontractors and shall be the
sole and exclusive provider of the Services to Client and Client Affiliates
except as provided in Section 7, Mergers and Acquisitions, herein.
2.2 Exhibits. Exhibits A-J form a part of this Agreement. 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 the Exhibits. The Service-specific
terms, conditions, responsibilities and delivery schedules shall govern the
provision of the relevant Service. Any new terms, conditions, responsibilities
or delivery 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 a
Change Order or 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 are limited to those Services, which are described in this Agreement and
the Exhibits. In the event of a conflict the Exhibits and any other part of this
Agreements, the Exhibits shall control.
3. Fees and Payment Arrangements.
3.1 Service Fees. Client shall pay ALLTEL the fees set forth in Exhibit
B in accordance with the terms described in Section 3.2 (the "Service Fees").
3.2 Payments by Client.
(a) Current Month Invoicing and Payment Requirements. Upon the
Effective Date, Client shall pay the Service Fees for the first calendar month
of the Term. ALLTEL shall invoice Client monthly between the first (1st) and the
fifteenth (15th) day of each month for such fees for the upcoming calendar
month, as well as for any known Pass Through Expenses and incremental processing
fees and any other applicable charges for the preceding months. ALLTEL will make
reasonable efforts to invoice all charges promptly. If Service Fees, Pass
Through Expenses or other service fees are not invoiced by ALLTEL to Client
within one-hundred and twenty (120) days of the date such services were rendered
by ALLTEL or such expenses were incurred by ALLTEL (excluding taxes), the
following terms shall apply ("Delayed Invoice"). The Delayed Invoice amount
shall be payable in six (6) equal monthly installments beginning on the later of
the first month of Client's next fiscal year immediately following the fiscal
year in which the Delayed Invoice should have been received by Client or six (6)
months after the Delayed Invoice is sent to Client. The account volumes used to
calculate the applicable incremental processing fees shall be measured on the
twentieth (20th) day of the preceding month. In accordance with Section 3.2(a),
Client shall pay ALLTEL the monthly invoiced amount by the later of (i) the
twenty-fifth (25th) day after receipt by Client of the applicable invoice or
(ii) prior to the thirtieth (30th) day following the date of the applicable
invoice. Should Client dispute in good faith all or any portion of the amount
due, Client shall promptly notify ALLTEL in writing, prior to the due date of
that invoice, of the nature and basis of the dispute. The parties shall make
best efforts to resolve the dispute prior to the payment due date. In the event
the parties are not able to resolve the dispute prior to the payment due date,
Client shall pay ALLTEL the undisputed portion and shall pay the disputed amount
into an interest-bearing account with a mutually agreeable independent financial
institution pending resolution of such dispute ("Escrow"). Upon resolution of
such dispute, any portion of the disputed amount determined to have been payable
to ALLTEL, together with accrued interest thereon, if any, shall be disbursed to
ALLTEL and all remaining amounts shall be disbursed to Client. All payments
under this Section shall be made by Client to ALLTEL by wire transfer in readily
available funds or at Client's option, by check or ACH payment.
(b) Past Due Amounts. Any amount not received by the fifteenth
(15th) day after the date that the payment was due (which has not otherwise been
placed into Escrow as provided in Section 3.2(a) above), shall be subject to
interest on the balance overdue at a rate equal to the lesser of: (i) the prime
rate plus one and one half (1 1/2%) per annum published in the Wall Street
Journal on the first Monday (or next bank business day) following the due date,
or (ii) the highest rate permitted by law, in each case, for the number of days
from the payment due date up to and including the date payment is actually made
by Client (calculated on the basis of the actual days in the applicable calendar
year).
4. Term.
4.1 The term of this Agreement shall begin on the Effective Date and
end on the Expiration Date (the "Term"). Notwithstanding anything in this
Agreement to the contrary, Client may elect by written notice received by ALLTEL
at least six (6) months prior to the end of the Term (or thirty (30) days notice
prior to the Termination Date if the Agreement is terminated by Client or ALLTEL
for breach prior to the ninety-seventh (97th) month of the Term), in its sole
discretion, regardless of the reason for the ending of the Term, to extend the
term of this Agreement one time only for any period up to twelve (12) months
beyond the Expiration Date subject to the payment of the then current prices
being paid by Client to ALLTEL under the Agreement and the terms and conditions
of this Agreement (the "Extension Period"). The foregoing notwithstanding, if
the Agreement is terminated by ALLTEL for non-payment by Client, Client shall
prepay to ALLTEL all amounts which would be payable during the Extension Period,
such payment to be made prior to ALLTEL beginning any work during the Extension
Period. At twelve (12) months prior to the Expiration Date, ALLTEL may submit to
Client a written proposal for renewal of this Agreement for an additional term
as specified in such proposal. Client shall accept or reject such proposal
within three (3) months following receipt thereof.
4.2 ALLTEL further agrees that at the end of the Term (whether by
expiration or termination as provided herein), Client shall have the option of
transitioning the ALLTEL Services so that the same functions are completed by
Client instead of ALLTEL (the "In-House Transition). The In-House Transition
shall consist of perpetual licenses for the ALLTEL Software designated with a
single asterisk in Exhibit C which is used to perform the Services at the end of
the Term as well as reasonably necessary training, installation and other
assistance to affect the In-House Transition at ALLTEL's professional service
rates described on Exhibit B and as otherwise defined in Exhibit I. Such
perpetual license is effective only so long as Client pays maintenance and
support fees without interruption. ALLTEL further agrees that, notwithstanding
Section 19.9, Client shall have the option to offer to any one of the ALLTEL
Staff, excluding the ALLTEL Account Manager, positions with Client or Client
Affiliates (an "ALLTEL Staff Offeree") and that, in such event, ALLTEL has the
right to make a competitive offer to such ALLTEL Staff Offeree to cause the
continued employment with ALLTEL of the ALLTEL Staff Offeree. ALLTEL further
agrees that it shall offer its standard maintenance services for the ALLTEL
Software at ALLTEL's then current maintenance services rates.
5. Data Processing, Premises and Security.
5.1 Data Processing. ALLTEL shall perform the production support
component of the Services at Client's facility in accordance with Section 5.2.
The systems operating environment and office accommodations for the Base Staff
(as defined in Section 9.3) that perform these Services will be provided by
Client.
5.2 Office Space and Accommodations. On the Effective Date, Client
shall provide ALLTEL, without any charge or cost, adequate premises for ALLTEL
Staff, in good repair, at Client's facility in Tulsa, Oklahoma, to perform the
Services under this Agreement (the "Local Offices"). Without limiting the
generality of the foregoing, Client shall supply water, sewer, heat, lights,
telephone lines, local and long distance service, equipment, air conditioning,
electricity (including, if desired by ALLTEL, an uninterruptable power system,
battery backup and backup generator capacity), daily janitorial services, office
equipment, personal computers, supplies and furniture, meals, and parking
spaces, in each case, for ALLTEL employees under the same conditions as provided
to employees of Client. ALLTEL shall provide annual estimates to Client of
ALLTEL's Local Offices' requirements. ALLTEL is not responsible for any injury
or damage to property or persons which occurs in or around the Local Offices
unless it is caused by the negligent or intentional acts of ALLTEL, in which
case ALLTEL shall indemnify Client as provided in Section 16.1 herein. In the
event Client desires to move the Local Offices after the Effective Date, whether
such move is internal within Client or external, Client shall provide ALLTEL
notice of such move as soon as reasonably practicable and Client shall reimburse
ALLTEL for any cost incurred by ALLTEL resulting from such move.
5.3 Security Standards. Client shall provide ALLTEL with a copy of its
safety, security, and facilities polices that are applicable to all of its
employees in the Local Offices, and ALLTEL shall abide by such communicated
policies. Client will reimburse ALLTEL for its actual costs incurred as a
Pass-Through Expense if adherence to such policies requested or required by
Client increases ALLTEL's costs of operation. The parties agree that ALLTEL
shall conduct background checks and drug testing of the ALLTEL Staff in
accordance with ALLTEL's standard policies. ALLTEL agrees that any ALLTEL Staff
member, or potential ALLTEL Staff member, may be removed from Client's
facilities based upon ALLTEL's discoveries pursuant to the background checks or
drug tests which ALLTEL reasonably believes causes a security risk or employment
issue. ALLTEL shall provide Client a copy of ALLTEL's policies regarding
background checks and drug tests.
6. Client Resources.
6.1 Client Resources. During the Term, Client will provide the Client
Resources reasonably requested by ALLTEL for ALLTEL's use in providing the
Services. Client will provide, at no cost to ALLTEL, all input and output forms,
audit and control forms, stock paper, envelopes, inserts, boxes, and any forms
necessary for ALLTEL to meet the processing requirements of Client, as well as
adequate transportation and storage therefor.
6.2 Required Consents.
(a) Cooperation. Client shall 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. ALLTEL will assist Client in obtaining any Required
Consents at the lowest price reasonably available under the circumstances.
(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.
7. Mergers and Acquisitions.
7.1 Upon written request by Client, ALLTEL will process additional data
of the type processed for Client hereunder and perform additional Services (in
whole or in part) for any chartered bank entity acquired by Client or a Client
Affiliate by way of merger, acquisition or restructuring which results in the
Control by BOK Financial Corporation of such new affiliate (a "New Affiliate").
Client shall have no obligation to include a New Affiliate as a "Client
Affiliate" under this Agreement unless Client gives ALLTEL written notice of its
request to have such New Affiliate receive the Services and become a "Client
Affiliate". In the event Client elects to have a New Affiliate become an
additional "Client Affiliate" as defined in Section 1.1(e), Client shall pay all
costs, including, but not necessarily limited to, increased personnel,
additional license fees to third parties, if any, and additional royalties on
software provided through ALLTEL (at a rate and fee structure described in
Exhibit B as adjusted by the provisions of this Agreement) required to process
the additional data and perform the additional Services for the additional
Client Affiliate. Client will notify ALLTEL of any such proposed merger or
acquisition as soon as reasonably practicable.
7.2 In the event Client elects to have a New Affiliate become a "Client
Affiliate," ALLTEL agrees to provide a proposal to Client for the services, time
and materials necessary to perform such conversion (including testing services)
subject to all of the prerequisite conditions and restrictions as outlined in
Exhibit E hereto. In the event Client does not elect to have a New Affiliate
become a "Client Affiliate" ALLTEL agrees to provide support and technical
access necessary to allow Client to support the New Affiliate on a system which
resides outside the ALLTEL Technology Center, and which may be supported by 1) a
vendor other than ALLTEL provided that the New Affiliate is not utilizing ALLTEL
Software or 2) the New Affiliate, Client or a Client Affiliate themselves using
either Alltel Software or another vendor(s) software, at a reasonable cost to
Client. In no event shall any third party vendor have access to or the right to
operate or support the ALLTEL Software or ALLTEL Provided Third Party Software.
7.3 In the event Client, or a Client Affiliate, acquires (or is
acquired by) an entity (by way of merger or acquisition or otherwise), ALLTEL
will, at Client's option, agree to an early termination of this Agreement upon
the terms and conditions described in Section 19.5 ("Merger Early Termination
Option").
7.4 In the event that Client, or a Client Affiliate, acquires (or is
acquired by) an entity (the "Other Entity") (by way of merger or acquisition or
otherwise), and the Other Entity, at such time, receives substantially the same
services from ALLTEL as the Services provided hereunder, or such services are
performed in house by the Other Entity using an ALLTEL based system, then any of
the fees to be paid by Client pursuant to Section 19.5(i), (ii) or (iii) shall
be decreased by seventy-five percent (75%) of any amounts by which the monthly
payments to ALLTEL by the Other Entity are increased as a direct result of the
transaction (merger or otherwise) with Client or a Client Affiliate times the
number of months remaining in the Term excluding conversion fees and any other
one-time fees. In no event shall this Section 7.4 reduce the early termination
fees payable pursuant to Section 19.5 to less than thirty percent (30%) of the
fees due for the remaining months of the Term.
8. Software.
8.1 ALLTEL Software.
(a) Upon the earlier to occur of the expiration of the Term or
the termination of the Agreement by Client in accordance with Section 19.2
hereof, ALLTEL will grant to Client and for the benefit of Client Affiliates a
nonexclusive, nontransferable (except for that assignment described in Section
22.2) perpetual license (subject to payment of annual maintenance and support
fees as provided herein) to use only that ALLTEL Software that is specified in
Exhibit C (except the ACBS Software and Service Delivery Software shall be
subject to the additional terms described in Exhibit C), subject to a license at
terms and conditions to be mutually agreed to by the parties but substantially
in the form of Software License Agreement attached as Exhibit G hereto. The
parties acknowledge that the license terms for the Service Delivery Software and
ACBS Software may vary in some material respects from the form attached as
Exhibit G. Such perpetual license is effective only so long as Client pays
maintenance and support fees without interruption at ALLTEL's then current
maintenance rates. The parties acknowledge that upon entering such Software
License Agreement, Client shall not be required to remit to ALLTEL any license
fees for the ALLTEL Software (except the ACBS Software and Service Delivery
Software).
(b) As part of the Base Fee, during the Term of this
Agreement, ALLTEL grants to Client a nonexclusive, nontransferable (except as
provided in Section 22.2) term license to use the object code version of the
ALLTEL Service Delivery Software and the ACBS Software solely for use by Client
and Client Affiliates, such Base Fee to also include ALLTEL's standard
maintenance and support services. Client shall not process any other third party
data for a fee or receipt of value, nor sublicense, lease, rent, transfer or
assign (except for that assignment described in Section 22.2) the Service
Delivery Software or the ACBS Software without ALLTEL's prior written consent.
Client agrees not to disclose, decompile, disassemble, reverse engineer, or copy
(except for backup purposes) the Service Delivery Software. Client is licensed
to use the Service Delivery Software as provided in Exhibit B(2) and the ACBS
Software as provided in Section 3 of Exhibit A. The Service Delivery Software
and all documentation and materials related thereto may be used at any location
or facility provided ALLTEL has written notice of such location or facility.
(c) ALLTEL will furnish at any time upon Client request, a
current list of all other ALLTEL software products made generally available to
customers of ALLTEL which may be licensed at a mutually agreed upon price for
maintenance and usage fees. License fees for such ALLTEL Software products shall
be at ALLTEL's then current list price for the license fees for such products
and maintenance and support fees related to such ALLTEL Software shall be at
ALLTEL's then current maintenance and support rates.
8.2 User Manuals. Prior to the installation of any ALLTEL Software,
ALLTEL will deliver or cause to be delivered to Client three (3) copies of the
ALLTEL Software user manuals (as well as any updated user manuals) by hard copy
or on CD ROM as determined by ALLTEL. ALLTEL consents to the reproduction of
such user manuals by Client in accordance with this Agreement. Client may order
additional copies of the ALLTEL Software user manuals at ALLTEL's then current
prices.
8.3 Client Software. ALLTEL will use all Client Software for the
exclusive use by Client and Client Affiliates in connection with providing the
Services to Client and Client Affiliates. 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. If any use of such Client Software increases or decreases ALLTEL's
operating costs, ALLTEL will so advise Client and both Client and ALLTEL will
negotiate to agree upon the appropriate changes to the Base Fees.
8.4 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
that as of the Effective Date are included within the Base Fees. ALLTEL will use
all Client Provided Third Party Software for the exclusive use by Client and
Client Affiliates in connection with the Services to Client and Client
Affiliates. Additional use of Client Provided Third Party Software by ALLTEL
shall require the prior written consent of 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. If any use of such Client Provided Third
Party Software increases or decreases ALLTEL's operating costs, ALLTEL will so
advise Client and both Client and ALLTEL will negotiate to agree upon the
appropriate changes to the Base Fees. Client will procure all consents and pay
any expenses necessary to allow ALLTEL to use any Client Provided Third Party
Software. If a defect occurs in the Client Provided Third Party Software or
ALLTEL Provided Third Party Software or if such Client Provided Third Party
Software or ALLTEL Provided Third Party Software does not function in accordance
with its specifications during the Term, ALLTEL and Client shall cooperate fully
with each other to cause such third party to promptly correct such defect to the
extent required under the applicable agreement. To the extent that any Client
Provided Third Party Software or ALLTEL Provided Third Party Software or
necessary part thereof is not made available to ALLTEL or if a defect in any
Client Provided Third Party Software or ALLTEL Provided Third Party Software or
necessary part thereof inhibits ALLTEL's provision of the Services, and despite
ALLTEL's reasonable efforts to avoid and minimize such occurrence, ALLTEL shall
be excused from providing such Services until at least the Client Provided Third
Party Software or ALLTEL Provided Third Party Software is made available or the
defect remedied plus a reasonable time thereafter. ALLTEL shall use its
reasonable best efforts to propose interim "work around" solutions and to
contact and negotiate with such third party software vendors in an effort to
accomplish the prompt elimination of any problems, and Client shall reimburse
ALLTEL on a Pass-Through Expense basis for any costs incurred by ALLTEL outside
of the Base Staff in providing such interim "work around" solutions. ALLTEL will
make reasonable efforts to provide application support services for the
Client-Provided Third Party Software.
(b) Third Party Software Maintenance. During the Term, Client
will provide and pay for all software maintenance for the Client Provided Third
Party Software listed in Exhibit C. During the Term, ALLTEL will provide as part
of the Base Fees all third party software maintenance for the ALLTEL Provided
Third Party Software listed in Exhibit C.
8.5 Installation of New Releases, Updates and Enhancements. All changes
to the ALLTEL Software and ALLTEL Provided Third Party Software being provided
to Client and Client Affiliates including the installation of enhancements,
updates and new releases of the ALLTEL Software and ALLTEL Provided Third Party
Software, shall be made only with the prior approval of Client, which shall not
be unreasonably withheld. Client shall provide all necessary approvals in order
to ensure that the version of the ALLTEL Software (exclusive of the Service
Delivery Software) and ALLTEL Provided Third Party Software in production with
Client shall not be more than two (2) 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, Client shall, upon
notification by ALLTEL, and unless mutually agreed otherwise, take all necessary
steps in order to ensure that the version of the Client Software in production
with Client shall not be more than two (2) major releases behind the version of
the Client Software then generally available to the public. Client and ALLTEL
will mutually agree upon the installation of enhancements, updates and new
releases to the Service Delivery Software and any Client Provided Third Party
Software. Client acknowledges with respect to the ACBS products, new releases,
updates, and enhancements will be implemented with Client's cooperation, and
that the ACBS ASP model requires timely implementation of such changes in order
that the ACBS Software will be no more than one (1) update/release behind the
then current release.
9. Personnel and Committees.
9.1 ALLTEL Account Manager. ALLTEL will assign an individual who will,
on a full time basis, oversee and manage the Services under this Agreement (the
"ALLTEL Account Manager"). Prior to the selection of any replacement ALLTEL
Account Manager, ALLTEL shall give notice to Client of such change, provide
Client with a resume of the proposed ALLTEL Account Manager and give Client an
opportunity of interview such proposed ALLTEL Account Manager. In the event
Client does not reasonably approve the proposed ALLTEL Account Manager, ALLTEL
shall promptly provide an alternative candidate for which Client shall again
have the opportunity to review the resume of and interview the alternative
candidate, such process to continue until Client and ALLTEL mutually agree on an
ALLTEL Account Manager. Such approval by Client shall not be unreasonably
withheld or delayed.
9.2 Executive Liaison. Client will assign a mutually agreeable
executive who will serve as Client's primary point of contact for all
communications with ALLTEL with respect to this Agreement (the "Executive
Liaison"). Prior to the selection of the initial or any replacement Executive
Liaison, Client shall give notice to ALLTEL of such selection or change, will
provide ALLTEL a resume of the proposed Executive Liaison and shall give ALLTEL
an opportunity to interview such proposed Executive Liaison.
9.3 ALLTEL Base Staff. ALLTEL shall provide fifteen (15) Full Time
Equivalent (FTE) resources, which shall consist of an individual or combination
of individuals as determined by ALLTEL to perform the Services (the "Base
Staff"). ALLTEL will provide the FTE resources by job classification as shown in
the following table. Such resources shall be located at Client's site.
--------------------------------------------- ------------------------
Base Staff Function Base Staff Level
--------------------------------------------- ------------------------
Account Manager 1
--------------------------------------------- ------------------------
Programming Manager 1
--------------------------------------------- ------------------------
Programmer Analyst 10
--------------------------------------------- ------------------------
Business Analyst 1
--------------------------------------------- ------------------------
Operations Analyst 1
--------------------------------------------- ------------------------
Administrative 1
--------------------------------------------- ------------------------
Client and ALLTEL shall jointly establish project priorities for the Base Staff.
Client acknowledges that any changes in Client priorities that require
reassignment of the Base Staff to other responsibilities may result in an
enlargement of ALLTEL's time to complete certain tasks assigned hereunder. In
the event this Agreement provides for Services to be provided by the Base Staff
and, based upon project priorities established pursuant to this Section 9.3, the
Base Staff are not sufficient to provide such Services, at the request of
Client, ALLTEL may provide additional resources (hereinafter referred to as the
"Temporary Staff") as defined in Section 9.4 below. The ALLTEL Base Staff , the
ALLTEL Temporary Staff and the Additional Base Staff (as defined in Section 9.4
(d)) are collectively known as the "ALLTEL Staff." If ALLTEL removes or
temporarily reassigns a member of the Base Staff, ALLTEL shall use best efforts
to replace such removed personnel promptly with someone who is of similar
experience. Beginning on the second anniversary of the Effective Date, ALLTEL
agrees not to reassign more than twenty percent (20%) of the Base Staff
personnel per year. Reassignment does not include resignations or terminations,
illness or disability.
9.4 ALLTEL Staff Personnel Changes. At any time during the Term, Client
may request and ALLTEL will use its reasonable efforts to provide increases and
decreases to the ALLTEL Staff, on either a short or long term basis, but in no
event shall the Base Staff be less than fifteen (15) FTEs in addition to the
Additional Base Staff added pursuant to Section 9.4 (d)during the Term with the
same Base Staff functions described in Section 9.3 above.
(a) Increases in the Base Staff will be in minimum increments
of one (1) person for a minimum term of one (1) year. Client shall be obligated
to pay for reasonable relocation costs as a Pass-Through Expense consistent with
ALLTEL's Relocation Policy and Guide in effect at the time of the relevant
relocation; provided however, that when ALLTEL's Relocation Policy allows
relocation benefits to be made at ALLTEL's discretion or option, allowing such
relocation benefits shall instead be at Client's discretion or option. Client
will not unreasonably withhold approval of relocation benefits. A copy of
ALLTEL's Relocation Policy and Guide has been supplied to Client prior to the
Effective Date of this Agreement. If Client elects to decrease the Base Staff,
Client shall be obligated to pay for any associated severance expenses pursuant
to ALLTEL's standard severance policy.
(b) For short term (less than one (1) year) changes, ALLTEL
will provide a proposal to Client identifying the change that such request will
have on the scope and quality of the Services, as well as the applicable
hourly/monthly rate(s) (plus expenses) for such personnel, such charges to be in
accordance with Exhibit B hereto. For long term (one (1) year or more) changes,
ALLTEL will provide a proposal to Client identifying the change that such
request will have on the scope and quality of the Services, as well as the
applicable increases or decreases to the Base Fees which shall be in accordance
with the ALLTEL Resource Rate Chart described in paragraph 5 of Exhibit B
hereto. Client may request increases to the Base Staff and Temporary Staff in
order to redirect their priorities or to ask ALLTEL to undertake out-of-scope of
Services under this Agreement.
(c) In the case of either an increase in the ALLTEL Staff or a
decrease, each party agrees to negotiate an appropriate amendment to this
Agreement setting forth all relevant personnel, price and Service changes. All
such rates shall be subject to increase or decrease in accordance with the terms
defined in Section 5 of Exhibit B.
(d) Client will increase the Base Staff at a minimum of five
(5) FTEs during the calendar years 2004 through 2008, at a minimum increase of
one (1) FTE per year during such five (5)-year period ("Additional Base Staff")
(with at least one of the five Additional Base Staff being a Program Manager) at
the Additional Base Staff rate described in Section 5 of Exhibit B. Each
Additional Base Staff shall provide the Services through the end of the Term.
9.5 Periodic Communications.
(a) Monthly Meetings. 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 between ALLTEL personnel, Client management, and Client user
departments. For the duration of the Term, one or more senior representatives of
ALLTEL and Client agree to meet on at least a monthly basis to:
(i) review Client's priorities and long term
objectives to determine if the scope of Services is on
schedule;
(ii) discuss and establish the short-term and
long-term business strategy involving the relationship
between Client and ALLTEL;
(iii) review Client's automation system plan and
monitor such automation system plan on a periodic basis;
(iv) review all requests for major system
modifications and enhancements;
(v) discuss systems design, development and
implementation project recommendations of ALLTEL
concerning the Services, including, without limitation, providing human
resources, procuring third party software, allocating ALLTEL Staff, providing
equipment, increasing or decreasing ALLTEL supplied processing to support the
Services;
(vi) review ALLTEL's performance of the Services
during the previous three (3) months, including,
without limitation, the milestones that have been completed;
(vii) review the status of the current Services that
ALLTEL is performing;
(viii) 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;
(ix) review 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;
(x) review any ALLTEL's bids and related scope of
Services and deliverables for new work;
(xi) review ALLTEL requests for ALLTEL 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;
and
(xiv) review any other aspect of the information
processing and technology requirements or desires of
Client.
Either party may request that this meeting be held more or less
frequently than monthly. The ALLTEL Account Manager or his or her designee shall
be the Chairman of this meeting. All meetings shall have a published agenda
issued by the ALLTEL Account Manager at least seven (7) days in advance of the
meeting to allow Client members a reasonable opportunity to prepare for the
meeting. Meeting minutes will be issued by the ALLTEL Account Manager to Client
who attended the meeting within five (5) business days after the meeting.
Following review by such members, the ALLTEL Account Manager will incorporate
into final meeting minutes the members' accurate and reasonable comments and
revisions, which shall constitute the final meeting minutes.
10. Files and Programs, Retention, and Disaster Recovery.
10.1 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 on appropriate media
for such Client data. ALLTEL will also reasonably backup all programs utilized
to process Client's data in accordance with any federal rules or regulations
applicable to Client or ALLTEL with regard to such data. Client will make ALLTEL
aware of any applicable local or state rules or regulatory requirements that
have requirements different than those of federal rules or regulations. ALLTEL
agrees to make any changes required by such state or local requirements provided
that Client pays any reasonable incremental costs associated with ALLTEL's
increased compliance effort.
10.2 Retention. Client shall maintain copies of all Client's input data
submitted to ALLTEL for processing hereunder pursuant to its standard input data
retention policy, whether submitted to ALLTEL directly or through third parties,
to permit reconstruction of such input data if required. ALLTEL shall use
industry standard practices to maintain copies of all input data for processing
hereunder to permit reconstruction of such input data if required in accordance
with ALLTEL's data retention policy, but in no event shall such "industry
standard practices" be less than required by any federal rules or regulations
governing the process and retention of Client's data (the "Data Retention
Standard"). Client will make ALLTEL aware of any applicable local or state rules
or regulatory requirements that have requirements different than those of
federal rules or regulations. ALLTEL agrees to make any changes required by such
state or local requirements provided that Client pays any reasonable incremental
costs associated with ALLTEL's increased compliance effort. Client assumes all
risks of loss and expenses of reconstruction of such input data, except for loss
caused by ALLTEL's failure to conform to the Data Retention Standard. In the
event reconstruction of such data is required, the parties shall mutually agree
on the schedule for such reproduction based on the needs of the parties at that
time . For purposes of this Section 10.2, "Industry Standard Practices" means
that ALLTEL will (i) produce and capture images to direct access storage
devices; (ii) subsequently back up such images to industry standard tape
cartridges using commercially available data transfer software with appropriate
offsite rotation for purposes of disaster recovery; and (iii) provide daily
backups on a rolling seven (7)) day basis, inputs and outputs sufficient to
recreate the thirteen (13) prior month end reports, the thirteen (13) prior
quarter end reports, and the seven (7) prior year end reports. Such industry
standard practices do not include non-repetitive services or interface
transmission.
10.3 Disaster Recovery; Data Security.
10.3.1 ALLTEL shall provide disaster recovery services for its
batch and on-line processing obligations to Client at a dedicated facility which
is equipped to handle the ALLTEL Technology Center processing in the event
disaster recovery is needed. Client agrees to pay for, and ALLTEL agrees to
arrange for, a dial-up telephone line for data communications access to a backup
network in the case of a disaster. ALLTEL shall provide and pay for the
necessary communications devices (including, but not limited to multiplexors,
modems, channel extenders, etc.) to facilitate such communication. ALLTEL shall
designate and design such backup network for Client. Throughout the Term of this
Agreement, ALLTEL will maintain in effect contracts and/or arrangements for
disaster recovery, which are substantially equivalent to those currently in
effect. This Section 10.3 does not apply to the ALLTEL Service Delivery hardware
located at Client's site in Tulsa, Oklahoma (as described in Exhibit A). The
disaster recovery services provided by ALLTEL identified in this Section 10.3,
including the declaration of a disaster for which the disaster recovery services
must be employed, shall be included as part of the Base Fee and shall be at no
additional cost to Client. Client shall be responsible for any costs or expenses
incurred by its own employees and agents related to this Section 10.3.
10.3.2 Client acknowledges that disaster recovery arrangements
are designed to deal with circumstances that are expected to cause a substantial
portion of the capabilities at the ALLTEL Technology Center to be unavailable
for a period exceeding seventy-two (72) consecutive hours.
10.3.3 ALLTEL will test its disaster recovery capabilities at
least once per calendar year, including obtaining an SAS 70 Type II audit.
Client shall participate in the disaster recovery test to the extent required to
verify the effectiveness of Client and ALLTEL's disaster recovery plans. ALLTEL
will provide a report of the test, including the SAS 70 Type II report, and its
results to Client by January 31 of each year for the test conducted during the
immediately preceding calendar year. In the event the Client discovers, or the
ALLTEL report or the SAS 70 Type II audit discloses a material inadequacy in
ALLTEL's disaster recovery capabilities, ALLTEL shall promptly remedy such
inadequacy at ALLTEL's cost and expense. ALLTEL agrees Client may provide
ALLTEL's disaster recovery report to federal regulatory agencies requesting such
information and that ALLTEL shall cooperate at Client's expense, in providing
such additional information requested by federal regulatory agencies.
10.3.4 Guidelines to assist the parties in understanding their
respective general responsibilities and areas of cooperation are set forth in
Attachment 2 to Exhibit A attached hereto (the "Disaster Recovery Guidelines").
ALLTEL will assist Client in establishing procedures and practices that will
enable Client to satisfy its responsibilities under the Disaster Recovery
Guidelines.
10.3.5 Upon request, ALLTEL will review and comment upon those
portions of Client's overall business resumption plan, when finalized, related
to the Services provided under this Agreement and will provide a written report
setting forth any discrepancies between Client's overall business resumption
plan and the Disaster Recovery Guidelines, subject to the mutual agreement of
the parties on the additional charges therefor.
10.3.6 ALLTEL agrees it shall provide data security which is
in accordance with industry standards and in compliance with all federal data
security regulations and guidelines applicable to Client and/or ALLTEL. Client
will make ALLTEL aware of any applicable local or state rules or regulatory
requirements that have requirements different than those of federal rules or
regulations. ALLTEL agrees to make any changes required by such state or local
requirements provided that Client pays any reasonable incremental costs
associated with ALLTEL's increased compliance effort.
11. Change Orders and Client Request for Enhancements.
11.1 Client may, at any time by written order to ALLTEL, request
changes to the Services ("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. If any Change Order results in an increase or decrease
in the cost 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
amended to reflect such approved Change Order. ALLTEL may, but is not obligated
to, begin work on the Change Order until such time as Client and ALLTEL shall
have reached an equitable adjustment to the cost and delivery schedule.
11.2 Upon Client's written request, ALLTEL will make reasonable efforts
to deliver an enhancement estimate within ten (10) business days after ALLTEL
has received such request.
12. Intellectual Property Rights.
12.1 Ownership of Client Software. As of the Effective Date, and at all
times thereafter, Client shall be the sole and exclusive owner of all rights,
title, and interest in and to the Client Software, including, without
limitation, all intellectual property and other rights with respect to the
Client Software.
12.2 Modifications to Client Software. Any writing or work of
authorship, regardless of medium, created or developed by ALLTEL at Client's
request in the course of performing the Services under this Agreement and
relating to the Client Software or Client Provided Third Party Software
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 that 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). The term "Client Work" shall not include
the ALLTEL Software, 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 12.2. Subject to ALLTEL's obligations to Client under Section 20 hereof,
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.
12.3 Ownership of ALLTEL Software. As of the Effective Date, 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 and the accompanying ALLTEL Software user manuals and
documentation. 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 any other country 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.
12.4 Modifications to ALLTEL Software. Any writing or work of
authorship, regardless of medium, created or developed by ALLTEL, Client, or any
third party in the course of performing the Services under this Agreement and
relating to the ALLTEL Software or ALLTEL Provided Third Party Software,
including, but not limited to, any software, source code, blueprints, diagrams,
flow charts, specifications or functional descriptions, and any modifications,
enhancements, and interfaces (individually an "ALLTEL Work") shall not be deemed
a "work for hire", but shall be owned solely and exclusively by ALLTEL (except
that no such writing or work of authorship relating to the ALLTEL Provided Third
Party Software shall be an ALLTEL Work if the license agreement governing the
ALLTEL Provided Third Party Software prohibits the granting of such right). 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 shall
execute such documents and take such other actions as ALLTEL may reasonably
request to perfect ALLTEL's ownership of any such ALLTEL Work. Client agrees and
acknowledges that ALLTEL and the ALLTEL Affiliates shall have the right to
undertake parallel efforts to develop, market and make available for itself or
any third party, without the consent of or compensation to Client, any
interfaces, modifications, upgrades, enhancements or changes to the ALLTEL
Software or any ALLTEL Provided Third Party Software without regard to whether
such interfaces, modifications, upgrades, enhancements or changes may be the
same as, substantially similar to, or different from ALLTEL Work, as long as
such efforts are performed in accordance with ALLTEL's obligations to Client
under Section 20 hereof.
13. Audits.
13.1 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. 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 (excluding services provided by
the Base Staff).
13.2 General Audit. ALLTEL agrees to keep such books and records (which
books and records shall be maintained on a consistent basis and substantially in
accordance with generally accepted accounting principles) and shall readily
disclose Pass Through Expenses or hours related to Services performed on a time
and materials basis billed or due under this Agreement and shall make them
available for examination and audit by Client and its agents. When requested by
Client, ALLTEL shall provide Client's personnel or agents with access during
normal working hours (with reasonable notice and subject to ALLTEL's security
and confidentiality processes and procedures) to ALLTEL's records necessary to
effectuate Client's audit.
13.3 Independent Audit. ALLTEL agrees that it shall, on an annual
basis, procure an SAS 70 Type II audit from a reputable auditor of the controls
placed on ALLTEL operations regarding all of the Services hereunder (excluding
disaster recovery) and shall promptly provide a copy of the results of such
audit to Client at no additional cost to Client. In the event such ALLTEL audit
discloses that ALLTEL's controls or operations do not meet industry standards,
ALLTEL shall promptly remedy any material inadequacy at ALLTEL's cost and
expense. Subject to the confidentiality restrictions herein this Agreement,
ALLTEL agrees Client may provide ALLTEL's audit report to federal regulatory
agencies requesting such information and that ALLTEL shall cooperate, at
Client's expense, in providing such additional information requested by federal
regulatory agencies.
13.4 Excluded Materials. Nothing in this Section 13 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.
14. Dispute Resolution.
14.1 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 20, such dispute
shall be subject to the escalation procedures as set forth in this Section 14.
If either party exercises its right to initiate the dispute resolution
procedures under this Section 14, then during such procedure any time periods
providing for termination of the Agreement or curing any material breach under
Section 19 shall be automatically suspended. At such time as the dispute is
resolved, interest at a rate equal to the lesser of: (i) the prime rate plus one
and one half (1 1/2%) per annum published in the Wall Street Journal on the
first Monday (or next bank business day) following the due date, or (ii) the
highest rate permitted by law, in each case, 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.
14.2 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 Manager or the Executive Liaison, as the case may be) shall provide
written notification to the other party (through the ALLTEL Account Manager or
the Executive Liaison, 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 fourteen (14) Days from the date of receipt of the claim document. The
party filing the claim shall have an additional fourteen (14) 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 14.3 (the
"Escalation Procedures"). Failure to meet the time limitations set forth in this
Section shall result in the implementation of the Escalation Procedures.
14.3 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 14.2. To this end, each party
agrees to escalate any and all unresolved disputes or claims in accordance with
Section 14.3(b) before taking further action.
(b) If the negotiations conducted pursuant to Section 14.2 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/she desires to elevate the dispute or claim to the President,
Financial Services division of ALLTEL and a an executive officer of Client who
is a direct report to the president 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, Financial Services division of ALLTEL and a an
executive officer of Client who is a direct report to the President 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 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.
14.4 No claims to be resolved under this Section 14 may be made more
than two (2) years after the date by which the fault or failure was or should
reasonably have been discovered; failure to make such a claim within the two (2)
year period shall forever bar the claim.
14.5 If the negotiations conducted pursuant to Section 14.2 and 14.3 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 bring an action in
a court of competent jurisdiction in the jurisdiction described in Section 22.5
herein.
14.6 Unless ALLTEL is bringing an action for Client's failure to make
timely and complete payments to ALLTEL for Services not otherwise in dispute
under Section 14, ALLTEL will continue to provide Services under this Agreement,
and Client will continue to make payments to ALLTEL in accordance with this
Agreement, during the dispute resolution procedures described in this Section
14.
15. Limitation of Liability.
(a) ALLTEL's liability for any breach of any claim or cause of action
whether based in contract, tort or otherwise which arises under or is related to
this Agreement shall be limited to Client's direct damages (other than the
Adverse Conversion Event Credit pursuant to Section 7 of Exhibit B hereto),
which under no circumstances shall exceed eleven million dollars
($11,000,000.00). In no event, other than the Adverse Conversion Event Credit
pursuant to Section 7 of Exhibit B hereto, shall either party be liable for
indirect, special, punitive, incidental or consequential damages, including,
without limitation, loss of profits or business, of any kind whatsoever whether
or not such party has been advised of the possibility of such damages. The
limitation in this Section 15(a) shall not apply to Section 12.13 (Attorneys
Fees) or to any amounts payable by Client to a third party which are indemnified
by ALLTEL pursuant to Section 16.2 herein.
(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 hardware or any enhancement, development or
maintenance of any such Client Software and/or Client Provided Third Party
Software. ALLTEL will continue to perform the Services, except to the extent
that the internal operations and performance of such Client Software and/or
Client Provided Third Party Software prevents such performance of the Services.
In such event, ALLTEL will use its reasonable best efforts to implement an
appropriate "work around" so as to minimize any material adverse effect to
Client.
16. Indemnification.
16.1 Personal Injury and Property Damage. Each party shall 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 or on account of personal
injury or death resulting from the actions or inactions 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.
ALLTEL agrees that regardless of a determination that the ALLTEL Staff are
employees or agents of Client under any legal theory, ALLTEL Staff shall be
employees of ALLTEL for purposes of indemnification of Client under this Section
16.
16.2 Infringement of ALLTEL Software, ALLTEL Provided Third Party
Software or the Services. ALLTEL shall defend at its own expense, any claim or
action brought by any third party against Client or against its officers,
directors, employees, Client Affiliates, and agents for actual or alleged
infringement of any patent, copyright or other intellectual property right
(including, but not limited to, misappropriation of trade secrets) based upon
the ALLTEL Software, ALLTEL Provided Third Party Software or the Services
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 and control
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 shall give Client, and Client shall 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), the ALLTEL Provided Third Party Software
(or any component thereof) or work product resulting from the Services ("ALLTEL
Work Product") 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, ALLTEL Provided Third Party Software, or ALLTEL Work Product
(to the extent permitted by such third party) so as to be non-infringing,
provided that the ALLTEL Software, ALLTEL Provided Third Party Software, or
ALLTEL Work Product as modified meets all of the specifications, or (d) take
back the infringing ALLTEL Software or ALLTEL Provided Third Party Software and
credit Client with an amount equal to ALLTEL's then current list price less
straight line depreciation for the amount of time used by Client over a five (5)
year depreciation time schedule. The parties agree that regardless of a
determination that (i) the ALLTEL Staff are employees or agents of Client under
any legal theory, ALLTEL Staff shall be employees of ALLTEL for purposes of
indemnification of Client under this Section 16 and (ii) the personnel of Client
are employees or agents of ALLTEL under any legal theory, the Client personnel
shall be employees of Client for purposes of indemnification of ALLTEL under
this Section 16. The foregoing represents the sole and exclusive remedy of
Client with regard to any of the above infringements or alleged infringements.
16.3 Infringements of Client Software, Client Provided Third Party
Software, or Client Resources. Client shall defend at its own expense, any claim
or action brought by any third party against ALLTEL or against its officers,
directors, employees, ALLTEL Affiliates, and agents for actual or alleged
infringement of any patent, copyright or other intellectual property right
(including, but not limited to, misappropriation of trade secrets) based upon
the Client Software, Client Provided Third Party Software, or Client Resources
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 shall give ALLTEL, and ALLTEL shall give Client, 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 Client Software, Client Provided Third Party Software,
or Client Resources 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), or Client Resources (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 or Client Resource
that meets the specifications identified in the Service Attachment; (c) modify
said Client Software, Client Provided Third Party Software, or Client Resource
(to the extent permitted by such third party) so as to be non-infringing,
provided that Client Software, Client Provided Third Party Software, or Client
Resource as modified meets all of the specifications; or (d) relieve ALLTEL of
its obligation to use such Client Software, Client Provided Third Party
Software, or Client Resource to perform the applicable Services hereunder. The
foregoing represents the sole and exclusive remedy of ALLTEL with regard to any
of the above infringements or alleged infringements.
16.4 Employee Matters Indemnification. Client and ALLTEL shall
indemnify, defend and hold harmless the other and its officers, directors,
employees, affiliates (including, Client Affiliates and ALLTEL Affiliates), and
agents from any and all liabilities, losses, costs, damages and expenses
(including reasonable attorneys' fees) arising from or in connection with (i)
ALLTEL's breach of Section 22.1(b) and Client's breach of Section 22.1(b) (ii)
as a result of ALLTEL Staff or Client personnel claims or demands regarding any
of the employee compensation matters identified in Section 22.1(b), (iii) on
account of ALLTEL Staff or Client personnel claims under any federal, state or
local employment laws, including, but not limited to, workers compensation and
employment discrimination or (iv) ALLTEL's Staffs' or Client personnel's
negligence, gross negligence, intentional conduct or breach of statutory duty.
The parties agree that regardless of a determination that the ALLTEL Staff are
employees or agents of Client or that the Client personnel are employees of
ALLTEL under any legal theory, the ALLTEL Staff shall be employees of ALLTEL and
the Client personnel shall be employees of Client for purposes of
indemnification by each party of the other under this Section 16.
16.5 Violation of Law Indemnification. Each party shall 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 indemnifying party, or its employees or agents, breach of any
applicable federal, state or local law, and in the case of ALLTEL, a violation
of its warranty under Section 21.1 herein.
17. Force Majeure, Time of Performance and Increased Costs and Error Correction.
17.1 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, government agencies, delay or
failure to receive any required government approvals, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, power blackouts affecting facilities unusually severe weather
conditions, or transportation facilities, or acts or omissions of transportation
carriers, or delays associated with visa, immigration and/or custom problems
(the "Affected Performance"). Upon the occurrence of a condition described in
this Section 17.1, 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 thirty (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 fifteen (15) days after such thirty (30) day period has
expired, then either party shall be entitled to serve thirty (30) days' notice
of termination on the other party with respect to only such Affected
Performance. If the Affected Performance is continuing upon the expiration of
such thirty (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.
17.2 Time of Performance and Increased Costs. ALLTEL's time of
performance with respect to Services performed under this Agreement shall be
adjusted, if and to the extent reasonably necessary, in the event that the
following events materially affect ALLTEL's ability to perform hereunder (a)
Client fails to timely submit data or materials in the prescribed form or in
accordance with the requirements of this Agreement, (b) Client fails to perform
on a timely basis, the functions or other responsibilities of Client described
in this Agreement, (c) there occurs an Affected Performance condition which
prevents timely performance, (d) Client or any governmental agency authorized to
regulate or supervise Client makes any special request which affects ALLTEL's
normal performance schedule, (e) Client fails to provide any Client Resources
called for by this Agreement, (f) Client materially changes the priorities of
the ALLTEL Staff, or (g) any Client Provided Third Party Software, Client
Software or Client Resource does not materially 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. ALLTEL
agrees that in the event it fails to meet the performance standard identified in
Exhibit D that Client shall receive such relief as provided therein.
17.3 Error Correction. Client will carefully review and inspect all
reports prepared by ALLTEL, to balance promptly to the appropriate control
totals. Client shall to promptly notify ALLTEL of any erroneous control totals.
If Client fails to so notify ALLTEL (a) within five (5) days after Client's
receipt of daily reports, (b) within fifteen (15) days after Client's receipt of
monthly reports, and (c) within sixty (60) days after Client's receipt of yearly
reports, in each case, of such erroneous control totals, Client shall have
waived its rights in respect of such error and 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. In the event of
any erroneous control totals caused by ALLTEL, ALLTEL shall correct such error
and , upon request by Client and after exhausting other reasonably available
techniques for correction, re-run any affected billing cycle at no additional
cost to Client.
18. Notices.
18.1 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 when received, written notice may be delivered in person, or sent via
telefax, United States mail or internationally recognized courier service, and
addressed as set forth below:
If to ALLTEL:
ALLTEL Information Services, Inc.
0000 Xxxxxx Xxxxxx Xx
Xxxxxx Xxxx, XX 00000
Attn: President, Financial Services Division
With a copy to: Attn: General Counsel
If to Client: Bank of Oklahoma, NA
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
Attn: Chief Information Officer
With a copy to: Xxxxxxxx Xxxxxxx, Lawyers
000 X. 0xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: BOKF General Counsel
18.2 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.
19. Termination.
19.1 Termination. This Agreement, except as otherwise provided in this
Agreement, will continue in effect until the Expiration Date (unless otherwise
extended for the Extension Period). This Agreement, including all Exhibits, may
be terminated by the permitted party giving written notice to the other party in
accordance with Section 18.1 and the applicable provisions of this Section. The
effective date of any such termination, pursuant to this Section 19
(Termination) or Section 7 (Mergers or Acquisitions), shall be the Termination
Date ("Termination Date") and such date shall be the Expiration Date in the
event this Agreement is so terminated. Nothing in this Section 19.1 shall
prohibit Client from entering into an Extension Period in accordance with
Section 4, Term.
19.2 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 20 with respect to Client's Confidential Information, which, in
the reasonable judgment of Client, materially and adversely affects Client,
ALLTEL shall cure the breach within fifteen (15) days after 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 fifteen (15) days, Client may, at its sole option,
elect to terminate this Agreement by giving written notice of such election to
ALLTEL and seek any damages allowed by law or in equity except to the extent
specifically limited herein.
(b) If such breach is for any other failure by ALLTEL to
perform in accordance with this Agreement which, in the reasonable judgment of
Client, materially and adversely affects Client, ALLTEL shall cure such breach
within thirty (30) days after the date of such notice. If ALLTEL 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 thirty (30) days, then Client may, at its sole option, elect to
terminate this Agreement by giving written notice of such election to ALLTEL
which date shall constitute the Termination Date and seek any damages allowed by
law or in equity except to the extent specifically limited herein.
(c) 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.
19.3 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 breach of its obligations
under Section 20 with respect to ALLTEL's Confidential Information, which, in
the reasonable judgment of ALLTEL, materially and adversely affects ALLTEL,
Client shall cure the breach within fifteen (15) days after such notice. If
Client 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 fifteen (15) days, ALLTEL may, at its sole option,
elect to terminate this Agreement by giving written notice of such election to
Client and seek any damages allowed by law or in equity.
(b) If such breach is for Client's non-payment of amounts
(except for those held in escrow pursuant to Section 3 herein) due ALLTEL under
this Agreement, Client shall cure the breach within thirty (30) days after such
notice. If Client does not cure such breach by such date, ALLTEL may, at its
sole option, elect to terminate this Agreement by giving written notice of such
election to Client, which shall constitute the Termination Date and seek any
damages allowed by law or in equity. 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.
(c) If such breach is for any other failure by Client to
perform in accordance with this Agreement which, in the reasonable judgment of
ALLTEL, materially and adversely affects ALLTEL, ALLTEL may give notice of the
breach and Client shall cure such breach within ninety (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 ninety (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 Termination
Date and seek any damages allowed by law or in equity.
(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.
19.4 Termination by Client for Convenience; Insolvency.
(a) Client may, at any time during the Term, terminate this
Agreement for any reason, or no reason, by providing ALLTEL written notice of
termination, such termination (a "Termination for Convenience"). The Termination
for Convenience shall be effective at the date specified by Client in the
Termination for Convenience notice, but in no event sooner than one-hundred and
eighty (180) days after to the date of such Termination for Convenience Notice.
In the event Client exercises it right to Termination for Convenience, Client
agrees to pay ALLTEL a termination fee based on the remaining unused Term of
this Agreement, the amount to be determined by multiplying the Monthly Base Fees
by fifty percent (50%) times the remaining months of the Term, plus any of the
Pass Through Expenses which have been incurred up to the date of termination and
any unavoidable third party expenses existing on ALLTEL's books at the date of
ALLTEL's receipt of Client's written notice of termination
(b) Client has the right to terminate this Agreement, with no
cost or penalty other than payment for services rendered, in the event ALLTEL or
any ALLTEL Affiliate which performs a significant part of the Services, (i)
terminates or suspends its business, (ii) becomes subject to any bankruptcy or
insolvency proceedings under Federal or state statute, (iii) becomes insolvent
or becomes subject to direct control by a trustee, receiver or similar authority
or (iv) has liquidated, voluntarily or otherwise.
19.5 Termination by Client for Merger.
(i) If ALLTEL receives one-hundred and eighty (180) days prior
written notice of Client's exercise of the Merger Early Termination Option (as
defined in Section 7.3) in the first thirteen (13) months following the
Effective Date of this Agreement, ALLTEL may charge Client a termination fee
based on the remaining unused Term of this Agreement, the amount to be
determined by multiplying the Monthly Base Fees by twenty five percent (25%)
times the remaining months of the Term, plus any of the Pass Through Expenses
which have been incurred up to the date of deconversion and any unavoidable
third party expenses existing on ALLTEL's books at the date of ALLTEL's receipt
of Client's written notice of termination.
(ii) If ALLTEL receives written notice of Client's exercise of
the Merger Early Termination Option in the fourteenth (14th) through the
eighty-fourth (84th) month following the Effective Date of this Agreement,
ALLTEL may charge Client a termination fee based on the remaining unused Term of
this Agreement, the amount to be determined by multiplying the Monthly Base Fees
by fifty percent (50%) times the remaining months of the Term, plus any of the
Pass Through Expenses which have been incurred up to the date of deconversion
and any unavoidable third party expenses existing on ALLTEL's books at the date
of ALLTEL's receipt of Client's written notice of termination.
(iii) If ALLTEL receives written notice of Client's exercise
of the Merger Early Termination Option in the eighty-fifth (85th) through the
ninety-seventh (97th) month following the Effective Date of this Agreement,
ALLTEL may charge Client a termination fee based on the remaining unused Term of
this Agreement, the amount to be determined by multiplying the Monthly Base Fees
by twenty five (25%) times the remaining months of the Term, plus any of the
Pass Through Expenses which have been incurred up to the date of deconversion
and any unavoidable third party expenses existing on ALLTEL's books at the date
of ALLTEL's receipt of Client's written notice of termination. The Merger Early
Termination Option must be exercised within six (6) months after the merger
occurs.
19.6 Return of Material; Deconversion Assistance. Within thirty (30)
days after the Termination Date, ALLTEL, at ALLTEL'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 shall provide
to Client copies of Client's customer data files (includes customer information
files, account master files and transaction history files) and associated
documentation, including file layouts and field descriptions, 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. In addition, ALLTEL will provide the
deconversion assistance in accordance with Exhibit K herein. Unless Client has
exercised the In-House Option in Section 4, within thirty (30) days after the
earlier of (i) the Termination Date or (ii) expiration of the Term (unless
either (i) or (ii) are extended by the Extension Period, in which case at the
end of the Extension Period), Client will return all ALLTEL Software, including
without limitation the Service Delivery Software and ACBS Software,
documentation and other ALLTEL Confidential Information to ALLTEL or destroy all
of such ALLTEL Software, documentation and ALLTEL Confidential Information and
provide written certification of such destruction to ALLTEL.
19.7 Equipment; Software. In the event that there occurs a termination
of this Agreement in accordance with Section 19.2, Client has the right, but not
the obligation, to purchase any or all of the ALLTEL-owned Client-dedicated
equipment or stand alone Third Party Software which is located in the Local
Offices that ALLTEL uses in order to perform the Services at a price equal to
ALLTEL's book value for such equipment which shall be payable by Client to
ALLTEL on the Termination Date. In the event that there occurs a termination of
this Agreement in accordance with Sections 19.3, ALLTEL has the right, but not
the obligation, to require Client to purchase any or all of the ALLTEL-owned
Client-dedicated equipment which is located in the Local Offices that ALLTEL
uses in order to perform the Services at a price equal to ALLTEL's book value
for such equipment which shall be payable by Client to ALLTEL on the Termination
Date. In the event there occurs the expiration of the Term, Client has the
right, but not the obligation, to purchase some (but not all) of ALLTEL's owned
dedicated equipment which is located in the Local Offices that ALLTEL uses in
order to perform the Services at a price equal to ALLTEL's book value for such
equipment, or to purchase all (but not some) of ALLTEL's owned dedicated
equipment which is located in the Local Offices that ALLTEL uses in order to
perform the Services at a price equal to ALLTEL's book value for such equipment,
in each case, payable by Client to ALLTEL on the Termination Date. Any sales by
ALLTEL of equipment under this Section shall be made only in those situations
where ALLTEL is permitted to do so by the relevant third party agreements and
only on a "where is as is" basis without any warranty by ALLTEL to Client
whatsoever, except that ALLTEL shall make available to Client the benefit of any
warranties from the applicable equipment manufacturers to the extent ALLTEL is
contractually permitted to do so by such equipment manufacturer. ALLTEL agrees
that any ALLTEL Provided Third Party Software licenses which are purchased
solely for the benefit of Client hereunder shall either be (i) licensed in the
name of Client and fully usable or transferable to Client upon termination of
this Agreement or (ii) licensed in the name of ALLTEL and fully transferable to
Client upon termination. ALLTEL agrees that in the event of termination ALLTEL
shall promptly assign any such licenses to Client upon termination. ALLTEL will
make reasonable efforts to negotiate licenses which can be assigned or otherwise
transferred to Client at no charge. Client acknowledges that third party
software vendors may require additional payments from Client as a result of
differences in the use of the third party software by Client.
19.8 Survival Upon Expiration or Termination. The provisions of
Sections 4 (Term), 14 (Dispute Resolution), 15 (Limitation of Liability), 16
(Indemnification), 18 (Notices), 19 (Termination), 20 (Confidentiality), 22.5
(Governing Law; Forum Selection; Consent to Jurisdiction), and 22.12 (Taxes),
and any other provisions which by their terms should reasonably survive
termination, shall survive the Termination Date of this Agreement, unless
otherwise agreed to in writing by both parties.
19.9 Offer of Employment. For three (3) months prior to the Termination
Date, Client may offer employment to the employees of ALLTEL, excluding the
ALLTEL Account Manager. Except as specifically set forth in this Section 19 and
Section 4.2, 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.
20. Confidentiality.
20.1 Confidentiality Obligation. All information disclosed by Client or
ALLTEL to the other during the negotiations and the Term (as well as any
Extension Period) ("Confidential Information") (a) shall be deemed the property
of the disclosing party, (b) shall be used solely for the purposes of
administering and otherwise implementing the terms of this Agreement and (c)
shall be protected by the receiving party in accordance with the terms of this
Section 20. "Confidential Information" shall also include all "non-public
personal information" as defined in Title V of the Xxxxx-Xxxxx-Xxxxxx Act (15
U.S.C. Section 6801, et seq.) and the implementing regulations thereunder
(collectively, the "GLB Act"), as the same may be amended from time to time,
that ALLTEL receives from or at the direction of Client and that concerns any of
Client's "customers" and/or "consumers" (as defined in the GLB Act).
20.2 Non-Disclosure Covenant. Except as set forth in this Section, the
parties agree that they shall not disclose any Confidential Information of the
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.
Confidential Information shall be held in confidence by the receiving party and
its employees, contractors, subcontractors, Affiliates, or agents and shall be
disclosed to only those of the receiving party's employees, contractors,
subcontractors, Affiliates 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, subcontractors, Affiliates, or agents to execute
confidentiality agreements that contain terms which are consistent with this
Section 20.
20.3 Exceptions. Confidential 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 rightfully 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 Confidential Information without a similar restriction on the third
party's rights.
The parties acknowledge that without in any way lessening the
proprietary nature of a party's Confidential 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 Confidential Information independently of
disclosure by the transmitting party.
20.4 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 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 (exclusive of
contractors, subcontractors and agents who have a need for it) without the prior
written consent of the other party, except as may be necessary by reason of
legal, accounting, tax or regulatory requirements, in which event Client and
ALLTEL agree to exercise reasonable 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 Confidential Information received
from the other or any third party under lawful process prior to disclosing or
furnishing Confidential Information, and agrees to cooperate in seeking
reasonable protective arrangements requested by the other party. In addition,
any party may disclose or provide Confidential Information of the other party
requested by a government agency having jurisdiction over the party; provided
that the party uses its reasonable best efforts to obtain protective
arrangements satisfactory to the party owning the Confidential Information. The
party owning the Confidential Information may not unreasonably withhold approval
of protective arrangements.
(c) 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 and
will obtain prior written approval of the other party before such release is
made.
20.5 Injunctive Relief. The parties recognize and acknowledge that the
ascertainment of damages in the event of its breach of any provision of this
Section 20 would be difficult, and the parties agree that, in addition to all
other remedies they may have, the non-breaching party shall have the right to
injunctive relief if there is such a breach.
21. Other Representations, Warranties and Covenants.
21.1 Licenses and Permits and Compliance with Laws. ALLTEL and Client
represent and warrant that they shall each secure and maintain in force all
licenses and permits required of it and its employees in the performance of its
respective obligations under this Agreement, and each party shall conduct its
business and otherwise be in full compliance with all federal laws, ordinances
and regulations applicable to its business. ALLTEL further agrees that it shall
provide the Services in full compliance with all federal laws, ordinances and
regulations applicable to the Customer's business including, but not limited to,
those of the Officer of the Comptroller of the Currency and the FDIC, at no
additional cost. Client will make ALLTEL aware of any applicable local or state
rules or regulatory requirements that have requirements different than those of
federal rules or regulations. ALLTEL agrees to make any changes required by such
state or local requirements provided that Client pays any reasonable incremental
costs associated with ALLTEL's increased compliance effort.
21.2 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.
21.3 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.
21.4 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 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.
(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.
21.5 Business Practices. Neither Client or any of Client's directors,
officers, agents, employees or other persons associated with or acting on behalf
of Client has made or give any payments or inducements, directly or indirectly,
to any Government officials in the jurisdictions in which Client conducts
business in connection with any opportunity, agreement, license, permit,
certificate, consent, order, approval, waiver or other authorization relating to
the business of Client, except for such payments or inducements as were lawful
under the written laws, rules and regulations of such jurisdictions. Neither
Client nor any of Client's directors, officers, agents, employees or other
persons associated with or acting on behalf of Client: (a) has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (b) made any direct or indirect
unlawful payment to any Government official or employee from corporate funds;
(c) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (d) made any bribe, unlawful rebate, pay off,
influence payment, kickback or other unlawful payment in connection with the
business of Client.
21.6 ALLTEL Software. ALLTEL represents and warrants to Client that the
ALLTEL Software shall perform in all material respects with its documentation
and specifications and that the ALLTEL Software shall not contain or receive
from ALLTEL's data transmission via modem or any other ALLTEL medium any virus,
worm, trap door, back door, timer, clock, counter or other limiting routine,
instruction or design that would erase data or programming or cause the ALLTEL
Software to become inoperable or incapable of being used in the full manner for
which is was designed or created and for which it is licensed under this
Agreement.
21.7 Client Software. Client represents and warrants to ALLTEL that the
Client Software shall perform in all material respects with its documentation
and specifications.
21.8 Professional and Workmanlike. Each party represents and warrants
to the other that they shall perform their respective personnel obligations
under this Agreement, including Exhibits, in a professional and workmanlike
manner.
21.9 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.
22. Miscellaneous.
22.1 Independent Contractor. It is agreed that ALLTEL is an
independent contractor and that:
(a) Client Supervisory Powers. Client has no power to
supervise, give directions or otherwise regulate ALLTEL's operations or its
employees.
(b) Employees of the Parties. ALLTEL and Client shall be
solely responsible for the payment of their respective employees' compensation
and benefits including employment taxes, any similar taxes associated with
employment, withholding of federal, state or local taxes imposed on wages
(including income tax, FICA and FUTA), deductions for social security,
contributions for unemployment compensation funds, and all other regulations
governing such matters. ALLTEL and Client each warrant that it will comply with
all other applicable federal, state or local laws or regulations applicable to
an employer regarding compensation, hours of work or other conditions of
employment, including those applicable to minimum wage and overtime wages.
Neither parties' employees shall not be entitled to participate in or receive
benefits under any programs which are maintained for their respective employees,
including, without limitation, life, medical and disability benefits, pension,
profit sharing or other retirement plans or other fringe benefits.
(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.
22.2 Assignment. Neither party shall assign, delegate, or otherwise
convey or transfer (by operation of law or otherwise) (the "Assignment") its
rights, interests or obligations under this Agreement to any person or entity
without the prior written consent of the other party, except (a) that Client may
assign, delegate, or otherwise convey or transfer its rights, interests or
obligations under this Agreement to any entity other than a Competitor of ALLTEL
which succeeds to all, or substantially all the stock or assets of Client or BOK
Financial Corporation whether by way of merger, acquisition or otherwise or to a
Client Affiliate upon notice to, but not upon prior written consent of, (and at
no additional charge) ALLTEL, and (b)ALLTEL may assign, delegate, or otherwise
convey or transfer its rights, interests or obligations under this Agreement to
any ALLTEL Affiliate existing upon the Effective Date of this Agreement
(notwithstanding Section 1.1(a)) and not otherwise the party to an acquisition
or merger, the result of which is to effect the Assignment of this Agreement by
ALLTEL to a third party) upon notice to, but not upon prior written consent of,
Client. All obligations and duties of any party under this Agreement shall be
binding on all successors in interest and permitted assigns of such party.
ALLTEL may subcontract performance of this Agreement so long as it remains
primarily responsible for performance of the duties and obligations hereunder
and so long as such subcontracting effort is not in an effort to circumvent
Client's right to approve assignment of this Agreement as provided above. 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.
22.3 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
Exhibit.
22.4 Third Party Beneficiaries. Except with regard to Client Affiliates
who receive Services pursuant to this Agreement who are hereby deemed third
party beneficiaries, the provisions of this Agreement are for the benefit of the
parties and not for any other person. 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.
22.5 Governing Law; Forum Selection; Consent of Jurisdiction. This
Agreement will be governed by and construed under the laws of the State of
Oklahoma, USA, without regard to principles of conflict of laws. All such
judicial proceedings shall be litigated, if at all, exclusively in a United
States District Court in the State of Nebraska and, if necessary, the
corresponding appellate courts. Each of the parties submits to the jurisdiction
of any state or federal court sitting in the State of Nebraska, with respect to
such judicial proceedings. Each party also agrees not to bring any action or
proceeding arising out of or relating to such judicial proceeding in any other
court. Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety
or to other security that might be required of any party with respect thereto.
Any party may make service on the other party by sending or delivering a copy of
the process to the party to be served in care of the process agent at the
address set forth in Section 18 above. Nothing in this Section, however, shall
affect the right of any party to serve legal process in any other manner
permitted by law or in equity. Each party agrees that a final judgment in any
action or proceeding so brought shall be conclusive and may be enforced by suit
on the judgment or in any other manner provided by law or in equity.
22.6 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.
22.7 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.
22.8 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 related thereto.
22.9 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. No course of dealing shall be deemed to
amend the Agreement in the absence of any writing signed by duly authorized
representatives of each party.
22.10 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.
22.11 Education and Training. ALLTEL will make available to Client and
its 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 to
Client upon request. During the Term of the Agreement, Client shall have up to
twenty (20) seats of one (1)-week duration during the first year of the Term and
commencing upon the second year of the Term and thereafter, on an annual basis,
Client shall have up to five (5) seats of one (1)-week duration each, included
as part of the Base Fee. Client may not carry forward any unused seats from one
year to the next. For any additional training courses, Client personnel may
attend such courses that are generally offered by ALLTEL to its customers upon
payment of ALLTEL's then current standard published course fee in advance.
Client acknowledges that Client shall be bound by the then current cancellation
policies, procedures, deadlines, and fees in the event of a cancellation if
applicable. Client shall be responsible for all travel, lodging, and other
out-of-pocket expenses for Client personnel attending such courses. Client
acknowledges that enrollment of Client personnel in any courses offered by
ALLTEL shall be subject to normal space availability requirements and compliance
with ALLTEL's standard registration and enrollment deadlines and procedures.
Client also will complete any and all class prerequisites prior to attending
class.
22.12 Taxes. All charges and fees to be paid by Client under this
Agreement are exclusive of any applicable withholding, sales, use, value added,
excise, services or other United States or foreign tax which may be assessed on
the provision of the Services. In the event that a withholding, sales, use,
value added, excise, services or other United States or foreign tax is assessed
on the provision of any of the Services provided to Client under this Agreement,
Client will pay directly, reimburse or indemnify ALLTEL for such taxes, as well
as any applicable interest, penalties and other ALLTEL fees and expenses. 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 or country use of materials, services or sale, and other exemption
certificates or information reasonably requested by either party.
22.13 Attorney Fees. In any action brought by a party hereto to enforce
the obligations of any other party hereto, the prevailing party shall be
entitled to collect from the opposing party to such action such party's
reasonable litigation costs and attorneys fees and expenses (including court
costs, reasonable fees of accountants and experts, and other expenses incidental
to the litigation).
22.14. Insurance. During the Term, ALLTEL shall obtain and maintain,
and require any subcontractors performing Services pursuant to
the terms of this Agreement to obtain and maintain, at ALLTEL'
or its subcontractor's expense, until the end of the Term,
insurance of the types and in the amounts set forth below:
(a) statutory workers' compensation in accordance with all
international, foreign, federal, state and local requirements;
(b) employer's liability insurance in an amount not less than
$500,000 per occurrence, covering bodily injury by accident or
disease, including death;
(c) commercial general liability in an amount not less than
$1,000,000;
(d) comprehensive automobile liability covering all vehicles that
ALLTEL owns, hires or leases in an amount not less than
$1,000,000 (combined single limit for bodily injury and
property damage); and
(e) professional errors and omissions liability insurance in an
amount of not less than $3,000,000 per occurrence for
liability arising out of any negligent act, error, mistake or
omission of ALLTEL or any subcontractors performing Services
pursuant to the terms of this Agreement.
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 SERVICES, INC.
By: ________________________
Name: ___________________________
Title: _________________________
BANK OF OKLAHOMA, NA
By: /s/ Xxxxx X. Xxxxx
-----------------------
Title: Senior Vice President
Bank of Oklahoma, N.A.