EXECUTION COPY
MASTER SERVICES
AGREEMENT
BETWEEN
CONVERGYS INFORMATION MANAGEMENT GROUP INC.
AND
AMERICAN CELLULAR CORPORATION
5
Confidential and Proprietary to Convergys and Client
TABLE OF CONTENTS
1.0 WORK STATEMENT......................................................2
2.0 TERM................................................................2
3.0 PAYMENT TERMS; BILLING; TAXES; PAYMENTS AND DISPUTES................3
4.0 EXCLUSIVITY.........................................................4
5.0 MINIMUM PROCESSING COMMITMENT.......................................4
6.0 ISSUE MANAGEMENT SERVICES...........................................5
7.0 RECORD KEEPING AND AUDIT RIGHTS.....................................5
8.0 SERVICE LEVEL AGREEMENTS............................................5
9.0 RELATIONSHIP MANAGEMENT.............................................6
10.0 CONFIDENTIALITY AND NONDISCLOSURE; PUBLICITY........................7
11.0 EQUIPMENT...........................................................8
12.0 DATA BACKUP.........................................................8
13.0 SECURITY REPRESENTATION.............................................8
14.0 DISASTER RECOVERY...................................................9
15.0 OWNERSHIP OF INTELLECTUAL PROPERTY..................................9
16.0 CLIENT RESPONSIBILITIES............................................10
17.0 WARRANTIES.........................................................11
18.0 TERMINATION FOR DEFAULT............................................12
19.0 OPTION TO TERMINATE FOR CHANGE IN CONTROL..........................13
20.0 LIMITATION OF LIABILITY............................................14
21.0 IMPROVEMENTS.......................................................14
22.0 COMPANY AND WORK RULES, RELATIONSHIP OF THE PARTIES................14
23.0 RIGHT OF ACCESS; COOPERATION.......................................15
24.0 COMPLIANCE WITH LAWS...............................................15
25.0 INDEMNIFICATION AND DEFENSE........................................16
*
27.0 INSURANCE..........................................................17
28.0 DISPUTE RESOLUTION.................................................18
29.0 OBLIGATIONS UPON TERMINATION.......................................19
30.0 ASSIGNMENT.........................................................20
31.0 FORCE MAJEURE......................................................20
32.0 LICENSES...........................................................21
33.0 APPLICABLE LAW AND BINDING EFFECT..................................21
34.0 NOTICES............................................................21
35.0 SEVERABILITY.......................................................22
36.0 WAIVER; AMENDMENT..................................................22
37.0 SURVIVAL OF RIGHTS AND OBLIGATIONS.................................23
38.0 HIRING OF EMPLOYEES................................................23
39.0 SECTION AND PARAGRAPH HEADINGS.....................................23
40.0 CONFLICTING TERMS..................................................23
41.0 COMPANION AGREEMENTS...............................................23
42.0 ENTIRE AGREEMENT...................................................24
ATTACHMENT A................................................................1
ATTACHMENT B................................................................1
MASTER SERVICES AGREEMENT
This Master Services Agreement ("MSA") is effective December 1, 2002 ("Effective
Date") between Convergys Information Management Group Inc., an Ohio corporation,
with offices located at 000 Xxxx Xxxxxx, Xxxxxxxxxx Xxxx 00000 ("Convergys"),
and American Cellular Corporation, an Oklahoma corporation with an office at
00000 Xxxxxxxx Xxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 ("Client").
1.0 WORK STATEMENT
1.1. Convergys shall furnish Services to Client in accordance with and
subject to the terms and conditions stated herein or in any Work
Work Order.
1.2. Each Work Order shall contain the following information;
1.2.1. The effective date and the term of the Work Order;
1.2.2. A detailed description of the Services;
1.2.3. The schedule and timeframe for the Services to be performed;
1.2.4. A description of each party's responsibilities;
1.2.5. A description of SLAs related to the Services in the Work
Order.
1.2.6. A schedule of fees and charges.
1.2.7. A description of the business requirements and technical
specifications for the Services, where applicable.
1.2.8. Acceptance Criteria, if any, related to such Work Order.
1.2.9. Any other information pertinent to the Services covered by
the Work Order.
1.2.10.The signatures of Client and Convergys' authorized
representatives.
2.0 TERM
The term of this Agreement shall commence on the Effective Date and
shall continue, pursuant to the terms of Section 18.0 or 19.0, below
until the later of (a) sixty (60) months after the Commercial Launch
Date, or (b) the expiration or termination date of any unexpired Work
Order entered into or incorporated under this Agreement.
3.0 PAYMENT TERMS; BILLING; TAXES; PAYMENTS AND DISPUTES
3.1. General. Convergys shall invoice Client and Client shall pay
to Convergys the fees and charges set forth in this Agreement.
Charges for Services are subject to change, but only as
specified in this Agreement.
3.2. Professional Services Rate. Except as otherwise set forth in a
specific Work Order, Convergys shall invoice Client and Client
shall pay Convergys for Professional Services at a rate of *
per hour.
3.3. Pass-Through Expenses. Convergys shall invoice and Client shall pay
Convergys for expenses incurred in the performance of the Services
outside of ordinary Data Processing Services and designated as
cost-plus expenses in a Work Order at cost plus a * administrative
charge. Convergys shall provide to Client, upon request, the
original invoice for each such expense, together with a statement
that Convergys has reviewed the invoiced charges, determined which
charges are proper and valid. Pass-through expenses may include,
for example: courier charges, express mail charges, off-site storage
charges, tapes, CDROMs, communication/network lines specifically
requested by Client, additional hardware and software for
environments not listed in Section 3.0 of Work Order 2002-01, and
xxxx finisher special services fees such as pulled statements,
insert handling, microfiche copies and the like.
3.4. Invoice Date. Unless otherwise specified in a Work Order, the fees
and charges for Services rendered to Client hereunder shall be
invoiced by Convergys monthly after monthly processing has been
completed or Professional Services rendered. Payments made pursuant
to Work Order 2002-01 shall be made on a milestone basis pursuant
to Section 7.0 of Work Order 2002-01 and Professional Services
projects estimated to be in excess of five hundred (500) hours may
be invoiced on a milestone basis in accordance with the following
table or as otherwise agreed by the parties.
*
3.5. Payment Date. All invoices shall be due and payable thirty (30) days
from the date of the invoice. All invoices and payments shall be in
U.S. dollars. Client shall pay a late charge of one and one half
percent (1.5%) per month on the undisputed portion of any past due
invoice until such past due amount is paid.
3.6. Disputed Payments. If Client disputes any of the amounts set forth
in any invoice rendered by Convergys hereunder, Client shall notify
Convergys in writing within 30 days following the Payment Date,
provided Client provides Convergys with a written statement of the
basis of the dispute in reasonable detail (the "Dispute Notice").
Client shall pay all undisputed charges on or before the Payment
Date. The parties agree to negotiate in good faith for the purpose
of resolving such dispute. In the event such dispute is mutually
agreed upon and resolved, either Client will pay the disputed amount
within 10 days, or Convergys will issue a credit memo on the next
invoice to Client. In the event that a dispute is not resolved
within 60 days following Convergys' receipt of the Dispute Notice
despite the good faith efforts of the parties, the parties shall
have the right to submit such dispute to the dispute resolution
process set forth in Section 28.0 below.
3.7. Taxes. Client agrees to pay all taxes, however designated
(excluding taxes based upon Convergys' net income) imposed on
or based upon the provision of Services hereunder. If any such
taxes or assessments are required to be collected and/or paid
by Convergys, then Client agrees to reimburse Convergys for
the taxes and costs incurred in collection, including
reasonable attorney fees.
4.0 EXCLUSIVITY
4.1. Convergys shall be the exclusive provider of the Services with
respect to the Client Markets and any Markets or portions of
Markets acquired by Client after the Effective Date. For
Markets acquired by Client after the Effective Date, the
parties will agree upon a schedule to transition Subscribers
in acquired Markets to the System as soon as reasonably
possible. *
5.0 MINIMUM PROCESSING COMMITMENT
5.1. During the Term of the Agreement, except when performance is
suspended in accordance with Section 31.0 due to the
occurrence of a Force Majeure event, Client shall process a
minimum of * Active Subscribers per month on Atlys(R) pursuant
to the terms and conditions of this Agreement.
6.0 ISSUE MANAGEMENT SERVICES
6.1. Change Management Services. Any changes to the Services to be
provided under this Agreement shall be performed in accordance
with the Work Request Process.
6.2. Release Management Services. During the Term, Convergys shall
implement Atlys(R) Core Releases and Maintenance Releases for
Client for the fees set forth in this Agreement. Convergys
will support only the currently available Release and the
immediately preceding Release. Convergys shall have no
obligation to support the System and shall be relieved of all
SLAs in connection with the System if Client does not permit
Convergys to install Core Releases and Maintenance Releases in
accordance with this Section 6.0. Convergys will give Client
three months advance notice of the general availability date
of and the functionality contained in a new Core Release.
6.3. Problem Resolution Management Services. Convergys will manage
all problems in the delivery of the Services in accordance
with the Problem Resolution Management Process.
7.0 RECORD KEEPING AND AUDIT RIGHTS
7.1. Record Keeping. Convergys shall keep or cause to be kept
complete and accurate accounting records, in accordance with
GAAP, to substantiate Convergys' charges hereunder. Convergys
shall retain such records for a period of two (2) years from
the date of rendering Services for which such charges were
billed.
7.2. Audit Rights. Client, at its cost, has the right to conduct
periodic audits of the charges for the Services performed by
Convergys for Client, and any Convergys third-party
pass-through charges under this Agreement with thirty (30)
days prior written notice to Convergys; provided, however,
that such audits shall not occur more frequently than once per
year during the term of the Agreement. Any changes suggested
by the auditor as a result of the audit will be subject to the
mutual agreement of the parties.
8.0 SERVICE LEVEL AGREEMENTS
8.1. Service Level Agreement. Convergys shall provide all Services
under this Agreement in accordance with the applicable Service
Level Agreement attached to the Work Order. Should Convergys
exceed the SLAs, Client shall make incentive payments to
Convergys in accordance with the Service Level Agreement.
8.2. Failure to Perform. If Convergys fails to meet an SLA,
Convergys shall (i) promptly investigate the underlying cause
of the problem; (ii) prepare and deliver to Client a report
identifying the same; (iii) promptly correct the problem and
begin meeting the SLAs as soon as practicable; (iv) advise
Client of the status of remedial efforts being undertaken with
respect to the underlying cause of the problem and communicate
with Client as necessary with respect to the status of such
SLAs until such time as the SLAs are met; and (v) provide
credits in accordance with the Service Level Agreement.
8.3. Measurement and Monitoring Tools. Convergys shall implement
necessary measurement and monitoring tools and procedures
required to measure and report Convergys' performance of
Services against applicable SLAs. Such measurement and
monitoring shall permit reporting at a level of detail
sufficient to verify compliance with the SLAs and the
applicable provisions set forth in this Agreement. Convergys
shall provide Client, on a monthly basis, with a written
report stating its compliance and/or non-compliance with the
SLAs and how such compliance or non-compliance was determined.
9.0 RELATIONSHIP MANAGEMENT
9.1. Program Management Team. Convergys will establish a Program
Management Team that will consist of the Convergys Program Manager
and other key Convergys personnel responsible for the day to day
operation and delivery of the Services. The Convergys Program
Manager will be responsible for managing the delivery of the
Services. The Convergys Program Manager will be authorized to act as
Convergys' primary contact for Client under this Agreement. The
Program Management Team will meet with Client's designated personnel
at least twice a month to review performance of the Services, and
will be in contact with Client on a regular basis until such time as
the billing services are fully transitioned to Atlys(R). Program
Management Team meetings will take place at an agreed upon location
or via teleconference, at the mutual agreement of the parties. Each
party will bear the cost of its participation in Program Management
Team meetings.
9.2. Management Reports. As a part of the Services and at no additional
charge to Client, Convergys shall issue the Management Reports
listed in this Section 9.2 to Client. From time to time during the
Term, Client may request additional reports, which will be charged
on a Time and Materials basis at the Professional Services Rate. The
included Management Reports are:
Weekly:
Open Items Reports/Review Call
Client Status Report (through completion of Conversion Services)
Monthly:
Production/Operations Report Summary
Client Metrics Report
Professional & Consulting Invoice
Data Processing Invoice
Quarterly:
Quarterly Summary Letter/ Quarterly Management Meeting
10.0 CONFIDENTIALITY AND NONDISCLOSURE; PUBLICITY
10.1. Confidentiality And Non-Disclosure. Convergys and Client have
entered into that certain Mutual Nondisclosure Agreement dated June
18, 2002 and attached hereto as Exhibit B and incorporated herein by
this reference (the "Nondisclosure Agreement"). Each party hereby
ratifies and confirms its continuing duties, and rights and remedies
under the Nondisclosure Agreement. In addition, the Nondisclosure
Agreement shall be expanded to include the right of each party to
use Confidential Information to perform its obligations under this
Agreement. Without limiting the generality of the foregoing, the
parties hereby expressly acknowledge and agree that all information
that would be considered Confidential Information under the
Nondisclosure Agreement, shall retain such designation. Client's
"Confidential Information" shall include, but shall not be limited
to: (i) Client's "Customer Data" provided to Convergys or any of its
agents either prior to or during the term of this Agreement, and
(ii) any and all other information relating to Client's business or
operations. The term "Customer Data" shall include all information
specific to Client's customers, including but not limited to:
customer names, addresses, phone numbers, IP addresses, rates, rate
plans, usage data and statistics, equipment records, and customer
notices. Except as otherwise expressly set forth in writing,
Convergys' "Confidential Information" shall include: (1) Convergys'
system, software, source code, object code, procedures, drawings,
designs, specifications, technology and/or user documentation
therefore provided to Client or any of its agents during the term of
this Agreement; (2) technical and business development methods and
processes used by Convergys, and program listings, manuals and
documentation related to Convergys' software and applications; (3)
Convergys business information, including but not limited to
nonpublic financial information, pricing, customer information or
lists and (4) all other proprietary information relating to
Convergys' Services which are provided to Client in tangible form
during the term of this Agreement. Convergys' Confidential
Information and any copies made by Client are the property of
Convergys.
10.1.1. For further clarification, Client is not an Affiliate
of AT&T Wireless, Inc. and neither party may disclose
Confidential Information of the other party to AT&T
Wireless, Inc. without the non-disclosing party's
written consent.
10.2. Publicity. Unless in the sole opinion of Client it will
materially hamper negotiations with Client's present xxxx
processing vendor, Convergys and Client agree to issue two
mutually acceptable joint press releases announcing the
existence and nature of this Agreement, the first upon
execution of this Agreement and the second upon Commercial
Launch of Atlys(R)for Client. Client agrees that Convergys may
include Client's name along with its properly formatted logo
in lists of Convergys customers (a) in marketing materials,
including the Convergys web sites, (b) in reporting for
purposes of the Securities and Exchange Commission including
the Convergys annual report, and (c) as otherwise required by
law. As soon as any impairment to Client's negotiations with
its present xxxx processing vendor is removed, Convergys and
Client shall proceed with carrying out this Section 10.2
11.0 EQUIPMENT
11.1. Damage to or Loss of Equipment. Convergys will be liable for all
loss or damage, other than ordinary wear and tear, to Client's
equipment in Convergys' possession or control. In the event of any
such loss or damage, Convergys will pay Client the amortized value
of such equipment based on a three year depreciation. Client will be
liable for all loss or damage, other than ordinary wear and tear, to
Convergys' equipment in Client's possession or control. In the event
of any such loss or damage, Client will pay Convergys the amortized
value of such equipment based on a three year depreciation.
11.2. Return of Equipment. Upon termination of this Agreement for any
reason, Convergys will return all Client equipment to Client and
Client will return all Convergys equipment to Convergys, within ten
(10) days after the effective date of termination.
12.0 DATA BACKUP
12.1. Client is responsible for initiating and maintaining, externally to
Convergys' system, backup copies of data that is provided by Client
as input to Services provided by Convergys.
13.0 SECURITY REPRESENTATION
13.1. No Unauthorized Access. While the Services are being provided by
Convergys to Client in Convergys' Data Center, Convergys shall use
commercially reasonable efforts to secure the customer care and
billing services environment, system operations and data against
unauthorized access or disclosure and to protect against breaches of
said security. Convergys shall use reliable, tested technology to
perform its obligations under this Section 13.1. Protection shall
consist of a combination of controls for the following:
o Integrity - protection against alteration of the System
software, applications, data, hardware configuration,
connectivity, and the state-of-privilege settings during
storage or transmission;
o Availability - protection against access of the System and
data by unauthorized persons; and,
o Confidentiality - protection against disclosure of information
to unauthorized persons.
13.2. Security Audit. After providing 30 days prior notice to
Convergys, Client shall have the right to conduct a security
audit during normal business hours to ensure compliance with
the foregoing security provisions no more frequently than once
per year. Notwithstanding the foregoing, if Client has a good
faith belief that there may have been a material breach of the
agreed security protections, Client shall meet with Convergys
to discuss the perceived breach and attempt to resolve the
matter as soon as reasonably possible. If the matter cannot be
resolved within a thirty (30) day period, the parties may
initiate an audit to be conducted and completed within thirty
(30) days thereafter. A report of the audit findings shall be
issued within such thirty (30) day period, or as soon
thereafter as is practicable. Such audit shall be conducted by
Convergys' auditors, or the successors to their role in the
event of a corporate reorganization, at Convergys' cost.
Client has the option, at Client's own cost, to engage an
agreed upon independent auditor, to work in conjunction with
Convergys' auditors. If the independent Third Party auditor
recommends additional security measures after completion of
the audit, Convergys and Client shall jointly determine how
best to respond to such recommendation.
14.0 DISASTER RECOVERY
Convergys shall provide Business Continuity Services in accordance with
Work Order 2002-02 as follows: Convergys shall (i) assume
responsibility for the Disaster Recovery Plan in accordance with
Attachment E to Work Order 2002-02, (ii) implement and manage the
Disaster Recovery Plan, (iii) maintain a cold site, (iv) once every
calendar year during the Term, update and test the operability of the
Disaster Recovery Plan in effect at that time, (v) upon Client's
request, certify to Client that the Disaster Recovery Plan is
materially operational, and (vi) upon discovery by Convergys, promptly
provide Client with written notice of a disaster and implement the
Disaster Recovery Plan upon the occurrence of a disaster. *
15.0 OWNERSHIP OF INTELLECTUAL PROPERTY
15.1. Pre-Existing Intellectual Property. Each Party shall retain
ownership of all right, title and interest in and to any
intellectual property it owned or had an interest in prior to the
Effective Date of this Agreement, including, but not limited to all
copyright, patent, trademark, service xxxx and trade secret rights,
technical documents, technical data, documentation, and engineering
materials (collectively, the "Pre-existing Intellectual Property").
Unless expressly stated herein, nothing in this Agreement shall be
deemed to imply a transfer of ownership of the Pre-existing
Intellectual Property.
15.2. Proprietary Materials. As used in this Agreement, "Proprietary
Materials" means all products, devices, computer programs,
techniques, know-how, algorithms, procedures, discoveries or
inventions, whether patentable or copyrightable and whether reduced
to practice, and all materials, texts, drawings, specifications,
source code, object code, data and other recorded information, in
preliminary or final form and on any media whatsoever, that are
related to the software or System provided by Convergys or that are
used to provide the Services, including any improvements, updates
and modifications, developed, discovered, or made to the software or
System during the term of or in anticipation of this Agreement,
whether solely or jointly with others, and whether or not while
Convergys is engaged in performing the Services.
15.3. Ownership. Unless otherwise provided in a Work Order or other
written agreement, as between Convergys and Client, Convergys will
be the exclusive owner of all Proprietary Materials. Client hereby
assigns and transfers to Convergys all right, title and interest
that Client may now or hereafter have in the Proprietary Materials,
subject to the limitations set forth in any Work Order or other
written agreement between the parties.
15.4. Further Acts. Client will take such action (including, but not
limited to, the execution, acknowledgment, delivery and assistance
in preparation of documents or the giving of testimony) as may be
reasonably requested by Convergys to evidence, transfer, vest or
confirm Convergys' right, title and interest in the Proprietary
Materials.
15.5. Limitation. Notwithstanding any other provision of this Agreement to
the contrary, this Section 15.0 will not obligate Client to assign
or offer to assign to Convergys any of Client's rights in Client
owned materials, and "Proprietary Materials" shall not be construed
to include any materials prepared by Client even if those materials
relate to the software or System. By way of example and not of
limitation this would include such materials as training materials
and guides for usage.
16.0 CLIENT RESPONSIBILITIES
16.1. *
16.2. Access to Equipment. In the event Convergys installs and maintains
the equipment for Client, Client agrees to promptly provide and
permit reasonable access to such equipment by Convergys personnel
and to provide the necessary environment for such equipment;
provided that Convergys is responsible for identifying such
requirements for such environment.
16.3. Business Requirements. Client shall be responsible for advising
Convergys of the requirements and nature of Client's business as
such may affect the provision of the Services, including but not
limited to projected material increases in the volumes, changes in
the law, and the like.
16.4. Provision of Information. Client shall provide timely, complete and
accurate information, data, requirements or specifications that it
is obligated to provide pursuant to a Work Order and shall not
unreasonably interfere with Convergys' performance of its
obligations.
17.0 WARRANTIES
17.1. Performance of Services. Convergys warrants that the Services
provided hereunder will be provided in a professional and
workmanlike manner and will be free of material errors, defects,
malfunctions or omissions caused by Convergys, its equipment,
software or employees.
17.2. Title. Convergys represents and warrants that Convergys owns all
right, title and interest in or to, or possesses valid and binding
licenses for use of, all software provided by Convergys without
infringement of the proprietary rights of any other person arising
from any U.S. patent, copyrights, or trademarks. Convergys does not
warrant against infringement arising from the combination,
operation, or use of its proprietary software with Third Party
software or hardware not provided by Convergys if such infringement
could have been avoided by the combination, operation, or use of the
Convergys software with other software or systems. Client represents
and warrants that Client owns the necessary right, title and
interest in or to, or possesses valid and binding licenses for
Client-provided software without infringement of the proprietary
rights of any other person arising from any U.S. patent, copyright
or trademark.
17.3. No Default/Conflict. Convergys and Client each warrants that its
signing, delivery and performance of this Agreement shall not
constitute a violation of any judgment, order or decree or a
material default under any material contract by which it or any of
its material assets are bound. Convergys and Client each further
warrants that the performance of this Agreement will not conflict
with or be hindered by any obligation of Convergys or Client
respectively under any other agreement, whether in effect as of the
Effective Date or entered into thereafter.
17.4. Authorization. Convergys and Client each warrants that (i) it has
the requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated by this
Agreement; and (ii) the signing, delivery and performance of this
Agreement and the consummation of the transactions contemplated by
this Agreement have been duly authorized through requisite corporate
action.
17.5. Notice. If Client believes that any Services provided hereunder are
not performed in accordance with the above warranty, Client shall
give Convergys written notice detailing the deficiencies. Convergys
shall thereafter have an opportunity, over a reasonable period of
time, but not less than thirty (30) days from receipt of notice of
delinquency, to satisfy such warranty claim.
17.6. Remedy. Convergys agrees to re-run or correct, at its sole expense,
any nonconforming Services that are due solely to errors,
malfunctions or omissions on the part of Convergys, its equipment,
software or employees or otherwise results from Convergys' failure
to perform its obligations under this Agreement. Convergys shall not
be responsible for any nonconforming Services caused by changes,
misuse or negligence of Client or its authorized agents. Failure by
Client to give notice of nonconforming Services within ninety (90)
days after performance of such Services shall constitute final
acceptance thereof.
17.7. EXCEPT FOR THE WARRANTIES STATED IN THIS AGREEMENT OR IN APPLICABLE
WORK ORDERS, CONVERGYS DISCLAIMS ALL WARRANTIES WITH REGARD TO THE
SERVICES OR PRODUCTS FURNISHED UNDER THIS AGREEMENT, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
18.0 TERMINATION FOR DEFAULT
18.1. Intermediate Terminations. Notwithstanding anything in this
Agreement to the contrary, the non breaching party will have the
right to terminate this Agreement immediately upon notice to the
breaching party in the event of a material breach of Section 10.0
(Confidentiality).
18.2. Termination by Convergys. Convergys may terminate this Agreement for
non-payment if any such non-payment is not cured within thirty (30)
days after written notice to correct such default is sent to Client.
18.3. Termination For Default. Either party may terminate this Agreement
if any of the following events of default occur: (i) if, for reasons
other than force majeure, or those described in Section 18.1 or 18.2
either party materially fails to perform or comply with this
Agreement and such failure is not cured within thirty (30) days (or
such longer period as may be reasonably necessary, not to exceed
sixty (60) days; provided such breaching party immediately commences
such cure and diligently pursues completion) after written notice to
correct such default is received from the other party; (ii) if
either party becomes insolvent or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the benefit
of creditors; (iii) if a petition under any foreign, state, or U.S.
bankruptcy act, receivership statute, or the like, as they now
exist, or as they may be amended, is filed by either party; or (iv)
if such a petition is filed by any Third Party, or an application
for a receiver of either party is made by anyone and such petition
or application is not resolved favorably within sixty (60) days.
19.0 OPTION TO TERMINATE FOR CHANGE IN CONTROL
19.1. Payment of Termination Fee. Beginning * Client may terminate this
Agreement by giving * prior written notice only: (a) in the event of
a Change in Control of Client as defined in Section 19.2; and (b)
payment by Client of the appropriate Termination Fee as set forth in
Section 19.3.
19.2. Definition of Change in Control. For purposes of this Section 19.0,
"Control" shall mean, with respect to any legal entity, the legal,
beneficial or equitable ownership, direct or indirect, of more than
50% of the aggregate of all voting or equity ownership interests in
such entity; "Change in Control" shall mean any change in the legal,
beneficial or equitable ownership, direct or indirect, such that
Control of such entity is no longer the same as on the Effective
Date, or a sale of substantially all of the assets of Client.
19.3. Termination Fees. In the event that this Agreement is terminated
pursuant to Section 19.1, Client shall pay a Termination Fee
according to the following schedule:
------------------------------ -------------------------------
Termination Fee Effective Date of Termination
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*
*
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*
*
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*
*
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*
*
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Client shall pay Convergys * of the Termination Fee upon
notice of termination and place the remaining balance in an
escrow account to be released to Convergys once Client's
Subscriber's have been migrated off of the System.
20.0 LIMITATION OF LIABILITY
CONVERGYS' TOTAL LIABILITY FOR LOSS, DAMAGE OR EXPENSE IN CONNECTION
WITH OR ARISING FROM THIS AGREEMENT, INCLUDING ANY WORK ORDERS
HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES PROVEN NOT TO EXCEED * PER
ANY SINGLE EVENT OR SERIES OF RELATED EVENTS WITH A MAXIMUM LIMITATION
OF *1 IN THE AGGREGATE FOR THE COMPANION AGREEMENTS DURING THE TERM OF
THE AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND, NOR FOR
LOSS OF PROFITS, LOSS OF REVENUE, BUSINESS OR GOODWILL, UNDER OR
ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED.
21.0 IMPROVEMENTS
In order to continuously improve the quality of Services to Client,
Convergys reserves the right to make reasonable changes in rules of
operation, Client's identifications, procedures, type of terminal
equipment, type of system equipment, system programming languages and
location of the Data Center or remote access stations serving Client,
at no expense to Client. Convergys agrees to provide reasonable advance
notice to Client of any such changes to allow Client to adequately
prepare its operations for such change.
22.0 COMPANY AND WORK RULES, RELATIONSHIP OF THE PARTIES
22.1. Convergys and Work Order. Convergys and Client employees and agents,
while on the premises of the other, shall comply with all company
rules and regulations including, where required by government
regulations, submission of satisfactory clearance from the U.S.
Department of Defense and other federal authorities concerned. Each
party shall be responsible for supervision and direction of the work
by its employees, agents and subcontractors.
22.2. Relationship of the Parties. This Agreement shall not be construed
to deem either party as a representative, agent, employee, partner,
or joint venture of the other. Convergys shall be an independent
contractor for the performance under this Agreement. Neither party
shall have the authority to enter into any agreement, nor to assume
any liability, on behalf of the other party, nor to bind or commit
the other party in any manner, except as provided hereunder. Each
party's employees and subcontractors who perform under this
Agreement shall remain employees and subcontractors of that party
and each party shall have sole responsibility for such employees and
subcontractors, including responsibility for payment of compensation
to such personnel and for injury to them in the course of their
employment. Each party shall be responsible for all aspects of labor
relations with such employees and subcontractors, including their
hiring, supervision, evaluation, discipline, firing, wages,
benefits, overtime and job and shift assignments and all other terms
and conditions of their employment, and the other party shall have
not responsibility therefore.
23.0 RIGHT OF ACCESS; COOPERATION
23.1. Convergys and Client shall permit reasonable access to the other's
facilities in connection with work under the Agreement. No charge
shall be made for such visits. Prior notification will be given when
access is required. Neither Convergys nor Client shall require
waivers or releases of any personal rights from representatives of
the other in connection with visits to the other's premises, and no
such releases or waivers shall be pleaded by Convergys, Client or
third persons in any action or proceeding.
23.2. Convergys will cooperate in a timely manner with all Client requests
for information and assistance with respect to the Service and
information/data maintained on the Convergys systems. In particular,
Convergys will provide timely cooperation with respect to Client
customer requests, Client internal evaluations of information, and
requests relating to administrative and legal proceedings.
Investigations conducted and responses provided pursuant to this
Section 23.0 shall be charged to Client on a Time and Materials
basis at the Professional Services Rate.
24.0 COMPLIANCE WITH LAWS
Convergys will comply with all federal, state and local laws,
ordinances, rules, regulations and orders with respect to its
performance of the Services. Client will comply with all federal, state
and local laws, ordinances, rules, regulations and orders with respect
to its obligations under this Agreement. Client shall advise Convergys
of any laws or regulations or changes in laws or regulations affecting
Client's business as they may relate to the Services. Changes in the
Services occasioned by changes in laws or regulations shall be subject
to the Work Request Process and shall be charged on a Time and
Materials basis at the Professional Services Rate.
25.0 INDEMNIFICATION AND DEFENSE
25.1. Convergys will indemnify, defend and hold Client (and Client's
agents and employees) harmless from all claims, damages,
liabilities, losses, costs and expenses (including without
limitation reasonable attorneys' fees) arising out of or resulting
from any Third Party claim, action or other proceeding (including
any proceeding by any of Convergys' employees, agents or
contractors) that is based upon or relates to (a) the negligence or
willful misconduct of Convergys or any party under direction or
control of Convergys, (b) the damage, loss or destruction of any
real property or tangible personal property of Client or injury or
death to any persons resulting from the actions or inactions of any
employee, agent or subcontractor of Convergys 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
Convergys, its employees, agents or subcontractors, or (c) the
infringement or misappropriation of any U.S. patent, copyright or
trademark by the software provided by Convergys pursuant to the
Agreement, provided, however, Convergys will have no liability for
claims of infringement arising from the combination, operation or
use of the software or any portion of its software with Third Party
software or hardware not provided by Convergys if such infringement
could have been avoided by the combination, operation, or use of the
software with other software or hardware. Convergys obligations
under this Section 25.1 are contingent upon Client's prompt
notification of any claim or potential claim for which it may seek
indemnification and opportunity. Client shall provide Convergys with
its opportunity to defend such claim and the information and
assistance necessary to provide such defense.
25.2. Client will indemnify, defend and hold Convergys (and Convergys'
agents and employees) harmless from all claims, damages,
liabilities, losses, costs and expenses (including without
limitation reasonable attorneys' fees) arising out of or resulting
from any Third Party claim, action or other proceeding (including
any proceeding by any of Client's employees, agents or contractors)
that is based upon or relates to (a) the negligence or willful
misconduct of Client or any party under direction or control of
Client, (b) the damage, loss or destruction of any real property or
tangible personal property of Convergys or injury or death to any
persons resulting from the actions or inactions of any employee,
agent or subcontractor of Client 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 Client, its
employees, agents or subcontractors, or (c) the infringement or
misappropriation of any U.S. patent, copyright or trademark by all
or any portion of intellectual property provided by Client pursuant
to the Agreement. Client's obligations under this Section 25.2 are
contingent upon Convergys' prompt notification of any claim or
potential claim for which it may seek indemnification. Convergys
shall provide Client with the opportunity to defend against such
claim and the information and assistance necessary to provide such
defense. Convergys may, at its option and sole cost, participate in
the defense in any such proceeding.
25.3. Infringement remedies. If any Convergys software used to provide
Services becomes, or in Convergys' reasonable opinion is likely to
become, the subject of an infringement or misappropriation claim or
proceeding, Convergys shall, in addition to indemnifying Client as
provided in Section 25.1, if commercially reasonable, promptly take
the following actions at no charge to Client: (i) secure the right
to continue using the software; or (ii) replace or modify the
software to make it non-infringing, provided that any such
replacement or modification will not materially degrade
functionality, performance or quality of the affected software.
26.0 *
27.0 INSURANCE
27.1. Insurance Policies. Convergys, at its own costs, shall procure,
maintain, and keep in force and effect throughout the Term insurance
issued by companies in good standing with coverage as follows:
o Worker's compensation insurance, including occupational
illness or disease coverage, and/or all other social insurance
in accordance with the statutory requirements of all states,
provinces, or countries where the Services are performed;
o Comprehensive or commercial general liability insurance with a
combined single limit of not less than * each occurrence for
bodily injury and property damage;
o Employee's liability insurance with of at least * each
occurrence.
28.0 DISPUTE RESOLUTION
28.1. Informal Dispute Resolution Procedure. The parties will attempt to
settle any claim or controversy among them through consultation and
negotiation in good faith and with a spirit of mutual cooperation.
After attempts to resolve a dispute by the parties have failed, any
party may, upon notice to the others, request that such controversy
or claim be referred to the appropriate management personnel of each
party for negotiation and resolution. If such a request is made, the
applicable and appropriate management-level personnel of the parties
shall meet in person or by telephone within seven (7) days after
such request and shall review and attempt to negotiate a mutually
acceptable resolution of the controversy or claim in dispute. Any
resolution reached under this Section 28.0 will be reduced to
writing and signed by the parties. Any dispute that cannot be
resolved between the parties through the informal dispute shall then
be submitted for final and binding arbitration as set forth in
Section 28.2. Notwithstanding anything to the contrary herein,
disputes involving either party's intellectual property rights and
the parties shall not be required to comply with the provisions of
this Section 28.0 with regards thereto.
28.2. Arbitration. Arbitration shall be conducted before one arbitrator in
accordance with the rules of the American Arbitration Association.
The arbitrator must be licensed to practice law in the United
States. The arbitration hearing shall be held in Cincinnati, Ohio
within thirty (30) calendar days of the appointment of the
arbitrator. The arbitration rules and procedures of the American
Arbitration Association shall govern the hearing procedure, provided
that the Federal Rules of Evidence shall govern the admissibility of
evidence at such hearing and provided that the arbitrator shall have
no power to make an award in contradiction of the terms of the
Agreement, including, but not limited to, the limitations of
liability set forth herein. The laws of the state of Ohio, exclusive
of its conflicts of law rules, shall govern the construction of this
Agreement. The arbitrators shall have no power to alter or amend any
of the provisions of this Agreement. The arbitrator shall have the
power to award the prevailing party at the hearing all reasonable
expenses of enforcing its rights under the Agreement, including,
without limitation, reasonable attorneys' fees, arbitrator's fees,
and expenses. The arbitrator shall issue an award within seven (7)
calendar days following the end of the hearing. Any award or
decision of the arbitrator shall be final and binding on all
parties, and judgment on such award may be entered by either party
in a court of competent jurisdiction.
28.3. Equitable Relief. Nothing in this Section 28.0 is intended to
restrict or limit either party's ability to apply to a court of
competent jurisdiction for specific performance or injunctive relief
as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof at an interim or
interlocutory stage.
29.0 OBLIGATIONS UPON TERMINATION
29.1. Return of Client's Confidential Information. Upon the termination or
expiration of this Agreement, Convergys shall promptly destroy or
deliver to Client all copies and embodiments in whatever form of
Client's Confidential Information, or destroy or erase any
embodiments of Client Confidential Information existing in
electronic media, including, but not limited to, written records,
notes, photographs, manuals, notebooks, documentation, and all other
materials containing any of Client's Confidential Information, no
matter where such material is located and no matter what form the
material may be in and, if requested by the Client, shall provide
Client with written confirmation that all such materials have been
returned or destroyed.
29.2. Return of Convergys' Confidential Information. Upon the termination
or expiration of this Agreement, Client shall promptly destroy or
deliver to Convergys all copies and embodiments, in whatever form,
of Convergys' Confidential Information or destroy or erase any
embodiments of Convergys' Confidential Information existing in
electronic media, including but not limited to, written records,
notes, photographs, manuals, notebooks, documentation, and all other
materials containing any of Convergys' Confidential Information, no
matter where such material is located and no matter what form the
material may be in and, if requested by Convergys, shall provide
Convergys with written confirmation that all such materials have
been returned or have been destroyed.
29.3. Termination Assistance. In the event of any termination or
expiration of this Agreement, Convergys shall continue to provide
the Services for a period of up to six months following the
effective date of any such termination or expiration (the "Post
Termination Transition Period") at the rates set forth in this
Agreement and on terms to be agreed upon by the parties as of the
effective date of the termination or expiration. Client may elect,
in its sole discretion, to terminate the Post Termination Transition
Period at any time upon sixty (60) days' prior written notice to
Convergys, which notice shall include the date on which the Services
shall be discontinued. In the event Convergys terminates this
Agreement pursuant to Section 18.2 for Client's non-payment, Client
agrees to pay to Convergys: (a) all outstanding amounts then due and
owing by Client; and (b) monthly, in advance, for the services
provided by Convergys during the Post Termination Transition Period.
30.0 ASSIGNMENT
30.1. Consent to Assign. Neither party shall assign any right or
obligation under this Agreement without the prior written consent of
the other party. Any assignment without such written consent shall
be void. Notwithstanding the preceding sentence, either party may
assign this Agreement, in whole or in part, to an Affiliate upon
notice, but without the consent of the other party, provided the
assigning party is not released from this Agreement without the
written consent of the other party. Further, either party may assign
its rights and obligations under this Agreement to a company into
which it may merge or consolidate or which acquires substantially
all of its assets or stock, upon notice, but without the consent of
the other party. Any authorized assignment under this Section 30.0
shall be binding upon and inure to the benefit of the parties, their
respective successors (whether by stock or asset transfer or any
change of control by any other means), personal representatives and
permitted assigns.
30.2. Client Disposition. Unless otherwise expressly agreed to in writing
by Convergys, Client agrees that, in connection with any sale,
transfer, assignment or other disposition of (I) all or
substantially all of the assets of the Client, or (II) a majority of
the stock of Client, whether in connection with a divestiture,
spin-off, reorganization, business combination, recapitalization or
similar corporate restructuring, or otherwise (a "Disposition"),
unless this Agreement is terminated pursuant to Section 19.0, it
will ensure that (i) the purchaser of the assets of Client or
successor entity to Client reaffirms or assumes in writing the
rights and obligations under this Agreement and (ii) the purchaser
of the assets of Client or successor entity to Client has
creditworthiness comparable to that of Client as of the Effective
Date. 30.3. Sale or Purchase of Market. Convergys shall not be
required to accept performance from, or render performance to, any
party other than Client. Provided, subject to the Minimum Processing
Commitment in Section 5.0, nothing in this Agreement shall be
construed as affecting the ability of Client to sell or exchange a
Market. Similarly, nothing in this Agreement shall be construed as
affecting the ability of Client to purchase a Market and add such
Market to this Agreement, and the Exclusivity provision of Section
4.1 shall be subject to a reasonable transition period.
31.0 FORCE MAJEURE
Neither Convergys nor Client shall be held responsible for any delay or
failure in performance hereunder caused by fires, strikes, embargoes,
terrorist activities, government requirements, civil or military
authorities, power failures, acts of God or by the public enemy,
inability to secure raw materials or transportation facilities, labor
disputes, acts or omissions of carriers, or other causes beyond the
control of Convergys or Client. If such contingency occurs, the party
injured by the other's inability to perform may elect to suspend such
Services for the duration of the delaying cause, buy or sell elsewhere
the items or Services to be bought or sold hereunder and on an interim
basis and resume performance once the delaying cause ceases. The
occurrence of a Force Majeure event does not excuse, limit or otherwise
affect Client's obligation to pay for Services rendered.
32.0 LICENSES
No licenses, express or implied, are granted to Client by Convergys
hereunder, except that Convergys hereby grants Client a non-exclusive,
world-wide license during the Term of this Agreement to install the
Atlys(R) GUI Client Workstation Application to be provided under this
Agreement on Client's workstations and to use such application to
access the Services provided hereunder. This license shall terminate
upon the expiration or termination of this Agreement for any reason.
33.0 APPLICABLE LAW AND BINDING EFFECT
This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio, excluding its conflicts of law rules,
and shall inure to the benefit of and be binding upon the parties
hereto and their heirs, personal representatives, successors and
permitted assigns.
34.0 NOTICES
All notices given hereunder will be given in writing, will refer to
this Agreement and will be personally delivered, sent by facsimile
transmission or by registered or certified mail (return receipt
requested) to the address set forth below. Any party may from time to
time change such address by giving the other party notice of such
change in accordance with this Section 34.0. All notices shall be
deemed given as of the day they are received.
If to Client: American Cellular Corporation
c/x Xxxxxx Cellular Systems, Inc.
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: R. Xxxxxx Xxxxxx
Fax: 000-000-0000
With a copy to: American Cellular Corporation
c/x Xxxxxx Cellular Systems, Inc.
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxx
Senior Corporate Counsel
Fax: 000-000-0000
If to Convergys: Convergys Information Management Group
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx Xxxx 00000
Attn: President of Communications
Solutions Group
Fax: 000-000-0000
With a copy to: Convergys Corporation
Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: General Counsel
Fax: 000-000-0000
35.0 SEVERABILITY
If any provision of this Agreement is held invalid, illegal or
unenforceable in any jurisdiction, for any reason, then, to the full
extent permitted by law (a) all other provisions hereof will remain in
full force and effect in such jurisdiction and will be liberally
construed in order to carry out the intent of the parties hereto as
nearly as may be possible, (b) such invalidity, illegality or
unenforceability will not affect the validity, legality or
enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover will have the power to reform
such provision to the extent necessary for such provision to be
enforceable under applicable law.
36.0 WAIVER; AMENDMENT
No delay or failure by any party hereto in exercising or enforcing any
of its rights or remedies hereunder, and no course of dealing or
performance with respect thereto, will constitute a waiver thereof. The
express waiver by a party hereto of any right or remedy in a particular
instance will not constitute a waiver thereof in any other instance.
Except as expressly provided in this Agreement, no amendment, waiver or
discharge of any provision of this Agreement will be effective unless
made in writing that specifically identifies this Agreement and the
provision intended to be amended, waived or discharged and signed by
both parties. Each such amendment, waiver or discharge will be
effective only in the specific instance and for the specific purpose
for which given.
37.0 SURVIVAL OF RIGHTS AND OBLIGATIONS
To the extent applicable, Sections 3.0 [Payment Terms], 10.0
[Confidentiality], 11.0 [Equipment], 15.0 [Intellectual Property], 20.0
[Limitation of Liability], 25.0 [Indemnification], 29.0 [Obligations on
Termination], 33.0 [Applicable Law], 35.0 [Severability], 36.0
[Survival], and 37.0 [Hiring of Employees] (together with all other
provisions of this Agreement that may reasonably be interpreted or
construed as surviving termination of this Agreement) shall survive
after any expiration or termination of this Agreement.
38.0 HIRING OF EMPLOYEES
Convergys agrees that it will not hire or solicit for employment
Client's employees who are involved with the work relating to this
Agreement for a period of one year following termination of said work
by the employee in question unless mutually agreed upon in writing.
Client agrees that it will not hire or solicit for employment
Convergys' employees who are involved with the work relating to this
Agreement for a period of one year following termination of said work
by the employee in question unless mutually agreed upon in writing.
39.0 SECTION AND PARAGRAPH HEADINGS
Section and paragraph headings used throughout this Agreement are for
reference and convenience and in no way define, limit or describe the
scope or intent of this Agreement or affect its provisions.
40.0 CONFLICTING TERMS
The parties agree that in the event of any conflicting terms or
conditions between the MSA, or a Work Order issued hereunder, and any
change order issued pursuant to such a Work Order ("Change Order"), the
order of priority and controlling terms and conditions shall be as
follows: the Change Order, the Work Order, and then the MSA.
41.0 COMPANION AGREEMENTS
41.1. Companion Agreements. This Agreement is one of two companion but
separate agreements entered into at the same time and with
substantially the same terms. * The other party to each of the
Companion Agreements are separate entities, each with its own
Markets to which the specific Companion Agreement will apply.
However, the Companion Agreements will be administered and
performed together (e.g., Subscribers under both Companion
Agreements shall be processed on a single instance of the System),
and provisions related to volume commitments, minimums,
limitations and fees shall be construed together as further
described in Section 41.2.
41.2. Joint Administration. Without limiting the generality of Section
41.1, certain sections that appear in each of the Companion
Agreements shall be treated as follows:
o MSA Section 5.0, Minimum Processing Commitment - shall be
determined on a combined basis.
o MSA Section 20.0, Limitation of Liability - shall be
determined on a combined basis.
o MSA Section 19.3, Termination Fees - *
o Work Order 2002-01 Section 6.1, Implementations Fee - is the
amount applicable to both Companion Agreements combined.
o Work Order 2002-01 Section 7.0, Payment Terms - is the amount
applicable to both Companion Agreements combined.
o Work Order 2002-02, Attachment A Section 1.1.1, Xxxx
Production Fees for Active Subscribers - the number of Active
Subscribers shall be determined on a combined basis.
o Work Order 2002-02, Attachment A Section 1.1.3, Minimum Data
Processing Commitment - the number of Active Subscribers shall
be determined on a combined basis.
42.0 ENTIRE AGREEMENT
This Agreement supersedes any and all prior negotiations,
understandings and agreements with respect hereto, and, together with
the Nondisclosure Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof.
The parties have executed this Agreement as of the date first set forth
above.
American Cellular Corporation Convergys Information Management
Group Inc.
By: XXXXX X. XXXXXXXXXXX By: XXXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President Title: President
Date: December 1, 2002 Date: December 1, 2002
---------------
*Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
MASTER SERVICES AGREEMENT
ATTACHMENT A
Definitions
For all purposes of this Agreement, except as otherwise expressly provided
herein, capitalized terms and capitalized abbreviations shall have the meanings
set forth in this Attachment A.
"Acceptance" shall mean with regard to the Atlys(R) billing system or any
enhancement thereto, the earlier occurrence of (i) material compliance with the
Acceptance Criteria; or (ii) first use of the software in a production
environment.
"Acceptance Criteria" shall mean the mutually agreed upon criteria used to
measure whether or not a new project and/or enhancement will function in
production according to requirements.
"Acceptance Test Environment" shall mean the non-production environment used to
test current or future releases of Atlys(R) software. This environment also may
be referred to as the Joint System Test Environment.
"Acceptance Test Plan" shall mean the mutually agreed upon materials, process,
procedures, schedule and resources used to measure whether the Acceptance
Criteria have been achieved.
"Account" shall mean the record within Atlys(R) where the financial relationship
between Client and a Customer is maintained. An Account may have one or more
Subscribers associated with it.
"Account Management Services" is defined in Work Order 2002-02.
"Activation Manager" is Convergys' proprietary wireless network provisioning
system.
"Active Subscriber" shall mean a Subscriber for whom Convergys creates a xxxx,
processes for collection purposes, and/or creates a billable transaction. Active
Subscribers have any status in the System other than "written off" or "final,"
and if in "final" status, they have a non-zero account balance.
"Affiliate" shall mean any person or entity that controls, is controlled by, or
is under common control with a party on the Effective Date. For the purposes of
this definition, control means ownership of more than 50% of the voting stock,
equity or beneficial interest of such entity.
"AFP" or "Advanced Functionality Presentation" shall mean an output file
suitable for high-volume printing.
"Agreement" shall mean this Master Services Agreement and all Exhibits,
Schedules, and Work Orders attached hereto or incorporated herein, as the same
may be amended from time to time in accordance with the terms hereof.
"API" means application program interface.
"APV" or "ASCCI Positional Variable" shall mean the Mediation Manager internal
representation of Events, standardized by data type.
"Atlys(R)" is Convergys' proprietary wireless billing and customer care software
used by Convergys to process Client data.
"Xxxx Finishing Services" shall mean the services provided by Convergys to
Client and defined in Work Order 2002-02 for xxxx printing and mail preparation.
"Xxxx Production Services" shall mean the process defined in Work Order 2002-02,
or mutually agreed to by the parties, for producing invoices for Subscribers.
"Business Days" shall mean Monday through Friday, excluding Holidays.
"Business Hours" shall mean from 8:00a.m. until 5:00p.m. Central Time on
Business Days.
"Business Continuity Services" is defined in Work Order 2002-02.
"Call Detail Record" or "CDR" is the record generated by a network element for a
voice call, Circuit Switch, data call, SMS, or similar type of transaction. In
addition, an event detail record can either be generated by the network or
created by Mediation Manager.
"CDMA" or "Code Division Multiple Access" is a multiplexing technique that
allows several signals to be housed on one transmission channel.
"Change in Control" and "Control" are defined in Section 19.2 of the MSA.
"Change Order" shall mean, as further defined in Attachment B to Work Order
2002-02, a written request by a party's Authorized Representative to modify the
scope, Services, Deliverables, and/or fees in a specific Work Order pursuant to
the Work Request Process.
"Circuit Switch" is a wireless network protocol widely deployed in first- and
second-generation wireless networks. The circuit switch provides a physical,
dedicated path - called a time slot - for a call when it goes through the
switching matrix. Because this path is dedicated to the call, no other callers
can use that switch path until the call is ended.
"Client" shall mean American Cellular Corporation.
"Client Markets" shall mean all Markets served by Client on the Effective Date.
"Client Planning Process" shall mean the process by which Client will advise
Convergys of Client's projected changes that may impact the Services provided by
Convergys to Client, as well as non-binding projections on Professional Services
spending with Convergys.
"Commercial Launch Date" shall mean the date upon which Subscriber bills are
first produced by the Atlys(R) System.
"Companion Agreement" shall mean the agreement between Convergys and Xxxxxx
Cellular Systems, Inc. of even date herewith as more fully described in Section
41.0. The Agreement and the Companion Agreement shall be referred to
collectively as the "Companion Agreements."
"Concurrent End Users" shall mean all End Users, who are signed on to work
stations connected to the System, regardless of activity.
"Confidential Information" is defined in Section 10.0 of the MSA.
"Conversion Services" shall mean the tasks included in the conversion of
customer data to Atlys(R) for Client as described in Work Order 2002-01.
"CORBA" or "Common Object Request Broker Architecture" is the standard that
assists in the transfer of messages between distributed objects in various
platforms and in a dispersed computing environment.
"Core Development" shall mean the development of features and functionality for
the Atlys(R) System, which is not designated as Custom Development.
"Core Release" shall mean a product release of Atlys(R) software that
incorporates new or increased non custom functionality or capabilities.
"Customer" shall mean an individual or organization to which Client provides
services. A Customer may have one or more Accounts associated with it.
"CRM" means Customer Relationship Management software.
"CRS" or "Consolidated Roamer System" is the name of a Convergys proprietary
software product that will be used by Convergys to perform certain usage
processing functions unique to roamer usage.
"CSA" or "Communication Service Area" shall mean a certain geographical area in
which a carrier provides services.
"CSR" shall mean Client's customer service representative.
"Customer Services Component" or "CACS" shall mean the Atlys(R) component used
by CSRs to interact with Customers, as detailed in Attachment A to Work Order
2002-01.
"Custom Development" shall mean the development of features and functionality
that is done at Client's request and is in conjunction with a unique Client
concept or unique Client service offering.
"Customization Services" shall mean the tasks included in the customization of
Atlys(R) interfaces for Client as described in Work Order 2002-01.
"Customer Data" is defined in Section 10.1.
"DACC" or "Directory Assistance Call Completion" is a form of wireless usage
that will be supplied to Convergys by a Client Third Party solution provider.
"DAP" or "Directory Access Protocol" is an overall model for directory services
in the open system interconnection environment.
"Data Archival Services" shall mean the services that enable customer data to be
archived, but still easily accessed, for a defined period of time.
"Data Center" shall mean the physical site which houses the applications,
networks and servers used to provide the Data Processing Services to Client.
"Data Processing Services" shall mean the data processing services provided by
Convergys to Client as described in Work Order 2002-02.
"Detailed Estimate" is defined in Attachment B to Work Order 2002-20.
"Disaster Recovery Plan" shall mean the document attached to Work Order 2002-02,
which is a part of the Business Continuity Services.
"Dispute Notice" is defined in Section 3.5 of the MSA.
"Documentation" shall mean the information supplied to Client by Convergys
relating to an Atlys(R) Release.
"Documentation Services" is defined in Work Order 2002-02.
"Effective Date" shall mean the date first written in the introduction paragraph
of this Agreement.
"End User" shall mean the individual who ultimately uses the System pursuant to
this Agreement.
"Enhancement Request" or "ER" is defined in Attachment B to Work Order 2002-02.
"Event" shall mean a derived measure of wireless usage that normalizes the
various wireless usage types (i.e., voice calls, data transfers, SMS) into a
single unit based on size and complexity from a billing perspective.
"Escalation Process" is defined in Attachment D to Work Order 2002-02.
"Force Majeure" is defined in Section 31.0 of the MSA.
"GAAP" shall mean U.S. generally accepted accounting principles, consistently
applied.
"G-CDR" or "Gateway Call Detail Record" is a record of information generated in
connection with GPRS technology.
"GPRS" or "General Packet Radio Service" is a 2.5G GSM technology that delivers
high speed packet data services to mobile terminals.
"GSM" Groupe Speciall Mobille a/k/a Global System for Mobile Communications. A
set of standards from the European Telecommunications Standards Institute
specifying the infrastructure for a digital cellular system.
"GUI" or "Graphical User Interface" is a form of screen design based upon the
use of graphics. In software, for example, it allows users to manipulate
pictured objects rather than entering pure text at a command line prompt.
"Holidays" shall mean days on which normal Business Hours are suspended and
shall include New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, day after Thanksgiving Day and Christmas Day.
"HTML" means hyper-text markup language.
"ICP" means intercarrier communications process.
"Implementation Services" shall mean the tasks included in the implementation of
Atlys(R) for Client as described in Work Order 2002-01.
"Implementation Fee" shall mean the fee specified in Work Order 2002-01 for the
Implementation Services, Conversion Services and Customization Services
described in that Work Order.
"IMSI" or "International Mobile Subscriber Identity" is a unique non-dialable
number used in GSM to identify a subscriber.
"Inactive Subscriber" shall mean a Subscriber who (a) has terminated its
relationship with Client, (b) has been issued a final xxxx, (c) has a status of
"final" in Atlys(R), and (d) has a zero account balance or has a status of
"written off" in Atlys(R).
"Investigation Request" is defined in Attachment B to Work Order 2002-01.
"IP" or "Internet Protocol" shall mean the rules governing the exchange of data
at the network layer for the TCP/IP internet protocol suite. IP provides
addressing and segmentation information so that routers can forward packets
across an internet, and determines the optimum route for a message to reach its
destination.
"ISP" or "Internet Service Provider" shall mean a telecommunications company,
which provides subscriber access to the internet.
"ITEM" is defined in Attachment B to Work Order 2002-02.
"ITEM Log" is defined in Attachment B to Work Order 2002-02.
"IVR" or "Interactive Voice Response" shall mean an automated phone-answering
system that invites the caller to select from a list of choices using the
phone's touch-tone keypad.
Joint System Test Environment" see Acceptance Test Environment.
"Key Service Level Agreements" or "Key SLAs" shall mean those Service Levels
(the "Key Service Levels") defined in Attachment C to Work Order 2002-02.
"LNP" or "Local Number Portability" shall mean the feature that allows customers
to retain telephone numbers while changing carriers.
"Maintenance Release" shall mean any enhancement, upgrade, new functionality or
new version of the Systems intended to eliminate or mitigate problems and/or
improve operation.
"Maintenance Request" is defined in Attachment B to Work Order 2002-02.
"Management Reports" is defined in Section 9.2.
"Market" shall mean a market area licensed by the FCC to provide wireless
service.
"MDN" shall mean mobile dialed number.
"Mediation Manager" is Convergys' proprietary software product used by Convergys
to perform certain event mediation functions, including acquisition of data from
network elements, validation and manipulation of data according to business
rules, and distribution of data to downstream applications.
"MSA" shall mean the Master Services Agreement between Convergys and Client
dated as of the Effective Date.
"MSID" or "Mobile Station Identifier" shall mean the identifier for a mobile
device such as a cellular phone or a mobile personal digital assistant.
"MSISDN" or "Mobile Subscriber Integrated Services Digital Network Number" shall
mean the dialable number that callers use to reach a mobile subscriber.
"Nondisclosure Agreement" shall mean the Mutual Nondisclosure Agreement dated
June 18, 2002, a copy of which is attached hereto as Attachment B.
"Non-Production Environments" shall mean the three (3) separate and distinct
instances of the System provided by, maintained, administered, provisioned,
owned, and operated by Convergys for purposes other than provision of the Data
Processing Services, as further defined using the following terms in Work Order
2002-01: (a) "Acceptance Test Environment"; (b) "PreProduction Environment" and
(c) "Training Environment".
"Non-Production Environment Support Services" is defined in Work Order 2002-02.
"NRUF" or "Numbering Resource Utilization/Forecasting" shall mean the
semi-annual report on phone number utilization and demand forecasts.
"Originator" is defined in Attachment B to Work Order 2002-02.
"PAD" or "Packet Assembly-Disassembly" shall mean the process by which data is
segmented and assembled into an ordered series of packets and transmitted across
a network where, at the other end of the network, the packets are disassembled
into the original data sent.
"Page " is defined in Section 2.1 of Attachment A to Work Order 2002-02.
"PDP" or "Packet Data Protocol" shall mean the protocol used by packet data
networks connected to a GPRS network.
"PLMN" or "Public Land Mobile Network" shall mean a network a service provider
establishes for providing land mobile services.
"Point of Presence" or "POP" shall mean an entry point for connection into the
network.
"Post Termination Transition Period" is defined in Section 29.3 of the MSA.
"Pre-existing Intellectual Property" is defined in Section 15.1.
"Prepaid" shall mean a billing arrangement between Client and its customers in
which the customers pay an advance amount of money for an equivalent amount of
service.
"PreProduction Environment" is defined in Work Order 2002-01.
"Pre-Verification Analysis" or "PVA" is a process conducted prior to each
production xxxx cycle in Atlys(R) to initially validate the xxxx cycle.
Pre-verification billing is run against a small subset of accounts (50 to 200)
defined by Client, which covers a mixture of account types and price plans. The
production xxxx cycle is completed once the pre-verification run has been
approved.
"Problem" is defined in Attachment D to Work Order 2002-02.
"Problem Resolution Management Process" shall mean the processes and procedures
the parties will follow in addressing issues that arise in the course of
providing systems operations and xxxx production services, from the moment of
problem identification through post problem review as set forth in Attachment D
to Work Order 2002-02.
"Production Environment" shall mean the instance of the System owned and
operated by Convergys to provide the Data Processing Services, as defined in
Work Order 2002-02.
"Professional Services" shall mean the professional and consulting services
provided by Convergys to Client as described herein or in a Work Order.
"Professional Services Rate" shall mean the rate charged by Convergys for
Professional Services as set forth in Section 3.2.
"Program Management Team" shall mean the team of Convergys personnel that will
manage the Services for the Client.
"Program Manager" shall mean the Convergys employee who will supervise the day
to day operations of the Project Management Team.
"Project Plan" shall mean the plan jointly developed by the parties relating to
the performance of services under this Agreement.
"Proprietary Materials" is defined in Section 15.2.
"RAS" or "Reporting and Analysis Component" shall mean a reporting tool owned by
and proprietary to Convergys that will be used to track and report active Client
subscriber volumes.
"Receiver" is defined in Attachment B to Work Order 2002-02.
"Release Implementation Services" is defined in Work Order 2002-02.
"ROM" or "Rough Order of Magnitude" is defined in Attachment B to Work Order
2002-02.
"Root Cause Analysis Process" is defined in Attachment D to Work Order 2002-02.
"Root Cause Analysis Report" or "RCA Report" is defined in Attachment D to Work
Order 2002-02.
"S-CDR" or "Serving Call Detail Record" is a record of information generated in
connection with GPRS technology.
"Script" shall mean a line of code or computer program that, when executed, is
used to manipulate data within the application without changing the underlying
application's source code.
"SEC" means the Securities and Exchange Commission.
"Self Care" shall mean the Atlys(R) component described in Attachment A to Work
Order 2002-01.
"Service Agreement Line Item" or "SALI" is defined in Attachment A to Work Order
2002-01.
"Service Level Agreement" or "SLA" shall mean the performance service levels
that Convergys is required to meet with respect to each Service provided to
Client. The standards are to be set forth as part of each Work Order or as part
of a separate agreement.
"Services" shall mean, collectively, the Data Processing Services, Professional
Services, Implementation Services, Conversion Services, Software Development
Services, Business Continuity Services and other services provided by Convergys
to Client pursuant to the terms of this Agreement.
"Short Message Service" or "SMS" shall mean a form of wireless data usage that
provides the ability for subscribers to send and receive text messages on their
mobile phone.
"SIM" or "Subscriber Identity Module" shall mean the chip or card which contains
the IMSI information and which can be inserted in equipment to identify the
subscriber to the network.
"SOA" means service order administration.
"Software Development Services" is defined in Work Order 2002-02.
"Source System" shall mean a billing system used to process Client subscribers
prior to conversion to Atlys(R).
"Span of Control" shall mean the Convergys Span of Control shall be deemed the
hardware, software, and network that resides within the physical confines of a
Convergys Data Center.
"Special Processing" shall mean any process that requires Convergys or Client to
adjust the production environment in an exception mode in order for that process
to successfully complete.
"Standard Interfaces" are defined in Attachment E to the Work Order 2002-01.
"Standard Reports" is defined in Work Order 2002-01.
"Sub - Project Code" or "SPC" is defined in Section 8.1 of the Work Order
2002-02.
"Subscriber" shall mean an individual user who is using the service(s) offered
by Client. Such an individual, also known in Atlys(R) as a subscription, can
have zero to n services tied to his/her subscription. For example, a subscriber
could have both wireless voice service and a wireless data service as part of
his/her subscription with Client. A Subscriber may be Active or Inactive as
defined herein.
"System" shall mean (a) Convergys' proprietary Atlys(R) software in use for
Client pursuant to this Agreement, (b) any Releases of Atlys(R) which Convergys
implements for Client, and (c) Third Party Software provided by Convergys to
provide the Data Processing Services to Client pursuant to this Agreement.
"Term" shall have the meaning set forth in Section 2.0 of this Agreement.
"Termination Fee" shall mean the fee to be paid by Client to Convergys in the
event Client terminates this Agreement pursuant to Section 19.1 or Section 30.2
of the MSA.
"TDMA" or "Time Division Multiple Access" is a digital transmission scheme that
multiplexes three signals over a single channel.
"Third Party" shall mean any party other than Client or Convergys.
"Third Party Software" shall mean any program, or component of a program, that
is licensed to Client or Convergys by a Third Party and is necessary to provide
the Services. The Convergys provided Third Party Software as of the Effective
Date is listed in Attachment C to Work Order 2002-01.
"Time and Materials" shall mean a Convergys and Client billing arrangement in
which Client is billed the actual time and materials Convergys expended in
completing a request.
"Training Services" is defined in Work Order 2002-02.
"Train-the-Trainer" is defined in Attachment B to Work Order 2002-01.
"Trouble Report" or "TR" is defined in Attachment D to Work Order 2002-02.
"Work Order" shall mean the mutually agreed upon work statement that authorizes,
and specifies the terms for Convergys to provide services under this Agreement.
"Work Management System" or "WMS" shall mean the work management software tool
owned, operated, and administered by Convergys to track Enhancement,
Maintenance, Investigation and Trouble Requests.
"Work Request" is defined in Attachment B to Work Order 2002-02.
"Work Request Process" is defined in Attachment B to Work Order 2002-02.
"Work Request Services" is defined in Work Order 2002-02.
[END OF ATTACHMENT A]
EXECUTION COPY
ATTACHMENT B
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement") is made and entered into
in Cincinnati, Ohio as of December 5, 2002 ("Effective Date"), by and between
Convergys Corporation, its affiliates and subsidiaries, an Ohio corporation with
offices located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 ("Convergys")
and American Cellular Corporation,, its affiliates and subsidiaries, with
offices located at 00000 Xxxxxxxx Xxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000
("Company").
BACKGROUND
Convergys and Company, for their mutual benefit, desire to disclose
certain proprietary and confidential information to the other party. Each party
desires to protect its proprietary and confidential information and to prevent
other persons and entities from acquiring, appropriating or discovering its
proprietary and confidential information.
1. AGREEMENT
NOW, THEREFORE, in consideration of the promises and covenants set
forth herein, and for other good and valuable consideration, the receipt,
adequacy and legal sufficiency of which are hereby acknowledged, the parties
agree and covenant as follows:
1. Confidentiality. Each party ("Receiving Party" or "Disclosing Party", as
appropriate) agrees to regard and preserve as confidential any and all business,
technical and financial information, including, but not limited to,
specifications, design plans, prototypes, drawings, software, software
documentation, material, documents and data related to the business activities
of the other party and their respective customers (including, but not limited
to, customer information and lists), and (in the case of Convergys) of its third
party vendors and licensors, and Code and Documentation (as defined in Section 2
below) that may be disclosed to, received or passively observed by, the
Receiving Party from the Disclosing Party ("Confidential Information").
Confidential Information shall not include information which is or
becomes through no fault of the Receiving Party part of the public domain; which
was already known to the Receiving Party at the time of disclosure as evidenced
by written documents; which is independently developed by the Receiving Party
without reference to or use of any Confidential Information received from the
other party; which is lawfully obtained by the Receiving Party from a third
party outside of this Agreement, which third party also lawfully obtained the
Confidential Information; or which is disclosed pursuant to law, judicial order
or government regulation so long as the Receiving Party promptly notifies the
other party prior to disclosure.
Unless otherwise provided in this Agreement, for five (5) years after
the Effective Date, the Receiving Party: (i) shall hold the Confidential
Information in trust and confidence for the other party and shall protect the
Confidential Information with the same degree of care as the Receiving Party
employs for the protection of its own trade secrets and confidential information
(but in no event shall such care be less than that which is commercially
reasonable); (ii) shall not disclose, reveal, make accessible or make available
to any person or entity any Confidential Information other than to the extent
necessary to comply with the reasonable requests of its auditors or other
professional consultants or to the extent necessary to permit Convergys'
securitization and/or financing of the receivables arising hereunder; (iii)
shall only use and reproduce the Confidential Information for the limited
purpose of performing its duties pursuant to the business relationship between
the parties and, in such performance, shall limit access to and disclosure of
the Confidential Information to the Receiving Party's employees or agents on a
"need to know" basis only (and advise such employees or agents of the
obligations assumed herein); and (iv) shall not use or exploit any such
Confidential Information for its own benefit or any other person's or entity's
benefit.
2. Code and Documentation. Whereas, the parties to this Agreement each
expressly acknowledge and agree that, to the extent disclosed hereunder, the
Code and Documentation are commercially valuable, proprietary, unpublished
product of the Disclosing Party, the design and development of which reflect the
efforts of skilled development experts and the investment of considerable time
and money, therefore, the Code and Documentation are protected indefinitely.
For purposes of this Agreement, "Code" shall mean computer-programming
code in Source Code form and in Object Code form. "Object Code" shall mean the
machine-readable form of the Code. "Source Code" shall mean the human-readable
form of the Code and related system documentation, including all comments and
any procedural code such as job control language. "Documentation" shall mean
user manuals and other written materials that relate to particular Code,
including materials useful for design and data modeling (e.g. logic manuals,
flow charts, Entity Relationship Diagrams (ERD), Data Dictionaries (DD), and
principles of operation), and machine-readable files subject to display,
printout or import/export operations.
Notwithstanding anything to the contrary, the Disclosing Party claims
and reserves all rights and benefits afforded under applicable copyright law and
international copyright treaties in the Code and Documentation as an unpublished
work.
3. Ownership and Return. The Receiving Party acknowledges and agrees that
all of the Confidential Information of the other party are and shall remain the
sole and exclusive property of the other party, free of any and all claims of
the Receiving Party. Upon the expiration of the obligations under this Agreement
or an earlier request by the other party, the Receiving Party shall have no
right to keep or use and shall promptly return to the other party all
Confidential Information embodied in tangible form and all equipment and
tangible personal property of the other party entrusted to the Receiving Party
or otherwise in the Receiving Party's possession or control. The Receiving Party
shall be deemed to be the bailee thereof for the use and benefit of the other
party and shall not at any time acquire any right, title or interest in or to
such Confidential Information or equipment or tangible personal property of the
other party and shall safely keep and preserve the same.
4. License. No license to the Receiving Party under any trademark, patent,
copyright, mask work protection right or any other intellectual property right,
is either granted or implied by conveying of Confidential Information. None of
the Confidential Information which may be disclosed or exchanged by the parties
shall constitute any representation, warranty, assurance, guarantee or
inducement by the Disclosing Party to the Receiving Party, of any kind, and, in
particular, with respect to the non-infringement of trademarks, patents,
copyrights, mask protection rights or any other intellectual property rights, or
other rights of third persons.
5. Remedies. In the event of any actual or threatened breach by the Receiving
Party of any provision of this Agreement, the Receiving Party acknowledges that
the other party will incur significant and irreparable damage for each such
breach and that the other party has no adequate remedy at law for such breach.
Therefore, the other party shall be entitled to injunctive relief immediately
and permanently restraining the Receiving Party from such continuing and/or
threatened breach. In addition, the Receiving Party shall be liable to the other
party for any and all actual, direct damages caused by any such breach,
including attorney's fees. The rights and remedies of the parties hereto shall
not be mutually exclusive and the exercise of one or more rights or remedies
provided for by this Agreement shall not preclude the exercise of any other
rights or remedies provided for by this Agreement or by law, equity, statute or
otherwise.
6. Miscellaneous. This Agreement constitutes the entire understanding between
the parties as to the Confidential Information and merges all prior discussions
between the parties relating thereto. Each party hereto acknowledges that this
Agreement does not in any way, expressly or implied, create any obligation on
either party to pursue or consummate any business or other relationship. This
Agreement shall be interpreted, construed and enforced according to the laws of
the State of Ohio, without giving effect to any conflict of laws provisions.
This Agreement shall inure to and bind the successors and assigns of the
respective parties; provided, however, that nothing herein shall be construed to
permit the sale, assignment or delegation of the parties' interests and/or
obligations hereunder. Any waiver by any party of any breach of any kind or
character whatsoever by any other party, whether such waiver be direct or
implied, shall not be construed as a continuing waiver of, or consent to, any
subsequent breach of this Agreement on the part of the other party. In addition,
no course of dealing between the parties, nor any delay in exercising any rights
or remedies hereunder or otherwise, shall operate as a waiver of any of the
rights or remedies of the parties. The provisions of this Agreement are
severable. No amendment or modification of this Agreement shall be valid or
binding on the parties unless made in writing and signed on behalf of each of
the parties by their respective duly authorized officers or representatives.
Facsimile signatures shall have the same force and effect as original
signatures.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Effective Date.
Convergys Corporation American Cellular Corporation
By: By:
Print Name: Xxxxxxx Xxxxx Print Name:
Title: Vice President, Legal Title:
Date: December 5, 2002 Date:
[END OF ATTACHMENT B]
