Exhibit 10.7
MASTER SERVICES
AGREEMENT
BETWEEN
CONVERGYS INFORMATION MANAGEMENT GROUP INC.
AND
TELECORP COMMUNICATIONS, INC. AND TRITEL COMMUNICATIONS, INC.
TABLE OF CONTENTS
1. DEFINITIONS...............................................................2
2. SERVICES..................................................................8
3. EXCLUSIVITY..............................................................10
4. CHANGES..................................................................11
5. ACCEPTANCE AND REJECTION.................................................12
6. SCHEDULE AND DELAYS......................................................13
7. SERVICE LEVELS...........................................................15
8. PERSONNEL................................................................16
9. MANAGEMENT...............................................................16
10. USE OF SUBCONTRACTORS....................................................18
11. SOFTWARE.................................................................19
12. EQUIPMENT................................................................20
13. RIGHT OF ACCESS; COOPERATION.............................................21
14. DATA.....................................................................22
15. DISASTER RECOVERY........................................................23
16. SECURITY.................................................................23
17. AUDIT....................................................................24
18. FEES AND CHARGES.........................................................26
19. INVOICING AND PAYMENT....................................................27
20. CONTINUOUS IMPROVEMENT; BENCHMARKING.....................................28
21. CLIENT RESPONSIBILITIES..................................................29
22. CONFIDENTIALITY AND NONDISCLOSURE; PUBLICITY.............................29
23. OWNERSHIP OF INTELLECTUAL PROPERTY.......................................30
24. WARRANTIES...............................................................31
25. INDEMNIFICATION AND DEFENSE..............................................32
26. LIMITATION OF LIABILITY..................................................34
27. INSURANCE................................................................34
28. TERM AND TERMINATION.....................................................35
29. DISPUTE RESOLUTION.......................................................38
30. HIRING OF EMPLOYEES......................................................38
31. GENERAL..................................................................39
EXHIBIT A: CONFIDENTIALITY AGREEMENT.........................................44
Schedule 1 Statement of Work
Schedule 2 Implementation and Customization Work Order
Schedule 3 Conversion Work Order
Schedule 4 Charges
Schedule 5 Change Control Process
Schedule 6 Atlys Product Release Process
Schedule 7 Scope Change and Issue Management
Schedule 8 Service Level Agreement
Schedule 9 Key Convergys Personnel
Schedule 10 Source Code Escrow Agreement
Schedule 11 Third Party Software
Schedule 12 Disaster Recovery Plan
Schedule 13 Benchmarking
Schedule 14 Termination Assistance
This Master Services Agreement ("Agreement") is effective September 5,
2001, ("Effective Date") between Convergys Information Management Group Inc., an
Ohio Corporation, with offices located at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxx
00000 ("Convergys"), and TeleCorp Communications, Inc., and Tritel
Communications, Inc., each a Delaware corporation having a place of business at
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (collectively,
"Client").
WHEREAS, the parties acknowledge that Client has made a decision to
outsource its billing functions, which are a critical part of its business; and
WHEREAS, Convergys agrees to provide such billing services to Client in
accordance with this Agreement;
NOW, THEREFORE, In consideration of the terms and conditions set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
Capitalized terms used throughout this Agreement shall have the meanings set
forth below.
"Active Subscriber" means a Subscriber for whom, during a xxxx cycle, Convergys
creates a xxxx, processes an account for collections purposes, and/or creates a
billable transaction in accordance with Client's business requirements.
"Additional Services" means those services provided to Client by Convergys
pursuant to one or more Work Orders other than the Initial Work Orders.
"Affiliate" means any other person or entity that directly or indirectly
controls, is controlled by or is under common control with a party. For the
purposes of this definition, "control" means ownership, directly or indirectly,
of more than 50% of the voting stock of such entity, if a corporation, and
ownership of more than 50% of the equity or beneficial interest in any other
entity. The general partner of any entity that is a partnership will be deemed
to control such entity. Without limiting the foregoing, Client Affiliates
include the subsidiaries of TeleCorp Communications, Inc. and Tritel
Communications, Inc. and any additional entities that Client may acquire during
the Term.
"Agreement" or "MSA" means this agreement and all exhibits, schedules, Work
Orders and documents incorporated herein or therein by reference.
"Atlys(R)" means the Convergys customer care and billing system, the
functionality of which is described in Schedule 1 and the User Guides.
"Atlys GUI Client Workstation Application" means the component of Atlys licensed
to Client under Section 11.1 herein that allows Client to access the Services.
"Atlys(R) Reports" means those reports that Convergys is required to provide to
Client as specified in Section 3.0 of Attachment 1 to Schedule 1.
"AWS" means AT&T Wireless Group.
"Xxxx Production Schedule" means the xxxx production schedule agreed upon by the
parties in advance of each month in accordance with the Xxxx Production Process
Guide as described in Schedule 1.
"Business Continuity Plan" is defined in Section 2.1.9 of Schedule 1.
"Business Days" means Monday through Friday, 8 a.m. to 5 p.m. ET, excluding
Holidays.
"Change Control Process" means the procedures set forth in Schedule 5 and
Schedule 7 which are utilized to manage change and problem resolution under this
Agreement, as applicable.
"Change in Control" means, with respect to any entity, (a) the consolidation or
merger of such entity with or into any other entity, (b) sale, transfer or other
disposition of all or substantially all of the assets of such entity, or (c)
acquisition by any other entity of beneficial ownership of more than 50% of the
outstanding voting securities or other ownership interests of such entity.
"Client" means TeleCorp Communications, Inc., Tritel Communications, Inc. and
their Affiliates as they may exist from time to time.
"Client Data" means all data and information relating to Client, Client's
business and operations and Client's subscribers. Client Data includes, without
limitation, all information specific to Client's subscribers, such as subscriber
names, addresses, phone numbers, mobile identification numbers, IP addresses,
rates, rate plans, usage data and statistics, equipment records and customer
notices.
"Commercial Launch Date" means the date on which Subscribers are first processed
by Convergys in a production environment.
"Confidential Information" is defined in Section 22.1 herein.
"Confidentiality Agreement" means the Confidentiality Agreements effective as of
March 13, 2001 and attached hereto as Exhibit A.
"Convergys Program Manager" means the individual appointed by Convergys who has
responsibility for the daily management of the provision of Services to Client
under this Agreement.
"Conversion Services" means those services provided by Convergys under Schedule
3 to this Agreement.
"Core Development" means Convergys' development of features and functionality
for Atlys that will be made available to Convergys' general customer base and
that are not made pursuant to an Enhancement Request.
"Core Release" means a major or minor release of Atlys which provides for new
functionality or extensions of existing functionality.
"Custom Development" means Convergys' development of features and functionality
at the request of Client pursuant to an Enhancement Request.
"Cycle Cut Date" means the date beyond which no further usage is applied to the
calculation of the xxxx for that cycle.
"Data Center" means the Convergys data centers located in Orlando, FL, and
Cincinnati, OH, which will house all applications, networks and servers used to
provide Services to Client as well as all Client Data and at which all data
processing services will be performed for Client.
"Data Processing Services" means those services provided by Convergys in
accordance with Section 2.1 of Schedule 1.
"Data Processing Charges" means the charges for Data Processing Services as set
out in Schedule 4.
"Deliverables" means those products, Services and developments to be provided by
Convergys pursuant to the Statement of Work and any Work Order.
"Documentation" means the process guides set forth in Section 4.1 of Schedule 1
as provided to Client and updated from time to time.
"ECI" is defined in Section 2.6 to this Agreement.
"EDGE" means enhanced data rates for GSM evolution.
"Effective Date" means the date first written in the introduction paragraph of
this Agreement.
"Enhancement Requests" means Client requests to change system requirements or
functionality.
"Event" means a derived measure of wireless usage that normalizes the various
wireless usage types (i.e., voice calls, data transfers, short message service)
into a single unit based on size and complexity from a billing perspective.
"Executive Steering Committee" means the management committee referenced in
Section 9.1 herein.
"Force Majeure" is defined in Section 31.2 herein.
"GSM" means "Groupe Special Mobile" also known as Global System for Mobile
Communications. GSM is a set of standards from the European Telecommunications
Standards Institute specifying the infrastructure for a digital cellular
service.
"GPRS" means general packet radio service, a 2.5G GSM technology that delivers
high speed packet data services to mobile terminals.
"Holidays" means those holidays listed in Section 6.1 of Schedule 1.
"Implementation and Customization Services" means those services to be provided
by Convergys in accordance with Schedule 2.
"Implementation, Customization and Conversion Fee" means the fee specified in
Schedule 4 for the Implementation, Customization and Conversion Services.
"Initial Work Orders" means the Work Orders comprising Schedule 2 and Schedule
3.
"Investigation Request" means a query about system functionality, documentation,
feasibility or estimates that requires research and possible review of code but
does not require changes to code.
"Joint Program Management Office" means the office formed by both Client and
Convergys that must mutually agree to project affecting changes.
"Key Convergys Personnel" means those personnel with primary responsibility for
providing the Services to Client and who fill the positions designated on
Schedule 9.
"Out of Scope Services" is defined in Section 2.4 herein.
"Outsourced Services" means those services provided by Convergys in accordance
with the Statement of Work attached as Schedule 1.
"PCS" means personal communications services.
"Pre-existing Intellectual Property" is defined in Section 23.1 herein.
"Professional Services" means Services other than Data Processing Services
provided to Client on a time and materials basis at the Professional Services
Fee rate set out in Schedule 4.
"Professional Services Fee" means the fee for Professional Services which is
billed in accordance with the rates set out in Schedule 4.
"Product Review Board" means the review board referenced in Section 2.3.2 of
Schedule 1 and in Schedule 6.
"Product Release Process" means the process described in Schedule 6 to this
Agreement
"Project Management Team" means the team of Convergys personnel that will mange
the Services for Client.
"Project Plan" means the plan jointly developed by the parties under a Work
Order for performance of the services to be completed under such Work Order.
"Reports" means those management reports that Convergys is required to provide
to Client as specified in Section 9.3 herein.
"Releases" is defined in Section 4.2 herein.
"Sales Taxes" is defined in Section 18.3.2 herein.
"Services" means the Outsourced Services, Professional Services and Additional
Services provided by Convergys to Client pursuant to the terms of this
Agreement.
"Service Level" means the performance service levels that Convergys is required
to meet with respect to certain Services provided to Client as set forth in
Schedule 8.
"Service Level Agreement" or "SLA" means Schedule 8 to this Agreement which sets
out the Service Levels and Service Level Credits.
"Service Level Credit" means the credit amount payable to Client if Convergys
fails to meet the Service Level for any Service as set forth in Schedule 8.
"Software" means any software used to perform the Services under this Agreement.
"Solution Test Cases" means a description of the testing done by Convergys to
determine whether the Deliverable will operate without error when implemented as
part of the Services and the results of such testing.
"Source Code" means software in human-readable form.
"Source System" is defined in Section 3.1 of Schedule 3.
"Standard Interfaces" are defined in Attachment A to Schedule 2.
"Statement of Work" or "SOW" means the service description, including all
functional and technical specifications for System Software, hardware and other
products used to provide the Services, as set out in Schedule 1 as it may be
amended from time to time by mutual agreement of the parties and supplemented by
new Releases of the System Software or other agreed upon changes to the
Services.
"Subscriber" means an individual user of the service(s) offered by Client. 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 services and a wireless data service as part of his/her
subscription with Client.
"Subscriber Data Processing Charges" means the modified cliff per subscriber
rates set forth in section 1.1 of Schedule 4.
"System Software" means (a) Convergys' proprietary Atlys(R) software (including
those modules formerly known as Switch Manager and RPM) in use for Client
pursuant to this Agreement, (b) any Releases of Atlys(R), and any new
functionality related thereto which Client elects to implement, (c) all Third
Party Software provided by Convergys, and (d) all other software used in or that
is part of the system, which is owned or operated by Convergys to provide the
Data Processing Services to Client pursuant to this Agreement.
"TDMA" means Time Division Multiple Access, a digital transmission scheme that
multiplexes three signals over a single channel.
"Term" means the term of this Agreement, including any renewals, as set out in
Section 28.1 herein.
"Termination Assistance" means the assistance to be provided by Convergys upon
expiration or termination of this Agreement in accordance with Schedule 14.
"Third Party Software" means 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. As of the Effective Date, the Third Party Software and the party
responsible for the licensing of such Third Party Software are listed on
Schedule 11.
"3G" means third generation technologies for wireless systems that provide
high-speed wireless access to wideband multimedia services wherever spectrum and
licenses are made available.
"UMTS" means Universal Mobile Telecommunications Systems.
"User Guides" means those guides provided by Convergys which explain how to
complete a System Software procedure and which include field attributes, edit
controls, user tasks and glossaries and which explain why a procedure would be
performed and which include window flow diagrams.
"Wireless Local Number Portability" or "WLNP" means the ability of end users to
retain their geographic or non-geographic wireless telephone number when they
change their service provider, location or service.
"Work Order" means the Statement of Work and any other written statement of work
signed by each party describing the Outsourced Services, Professional Services,
Additional Services and any Deliverables to be provided by Convergys to Client.
2. SERVICES
2.1 Outsourced Services. Convergys shall provide to Client and its Affiliates
the outsourced billing operations and related activities and functionality,
including data processing and professional services, described in Schedule 1,
"Statement of Work," (the "Outsourced Services") pursuant to the terms of this
Agreement and such Schedule, including without limitation all new Releases of
the System Software which Client elects to implement.
2.2 Additional Services.
2.2.1 Work Order. In addition to the Outsourced Services, Convergys agrees to
perform from time to time at the request of Client, on such terms and conditions
as are negotiated by the parties in good faith and consistent with the terms of
this Agreement, certain professional services ("Additional Services") as
specified in written statements of work (each a "Work Order"). Within ten (10)
business days following Convergys' receipt of Client's request for Additional
Services, unless otherwise agreed, Convergys agrees to provide Client with a
quotation for the requested services in accordance with the rates set out in
Schedule 4, Charges. Upon agreement on the Additional Services, the parties will
each execute the Work Order, which will be effective when signed by Convergys
and Client. Each such Work Order will be numbered and titled, and will set forth
the respective responsibilities of Convergys and Client. Work Orders will
include, but will not be limited to, each of the following items whenever such
item is applicable:
1. the effective date and term of the Work Order;
2. the incorporation of this Agreement by reference;
3. a description of the professional services and
Deliverables to be provided;
4. specifications for Deliverables regarding functionality,
configuration, compatibility and integration;
5. delivery and implementation schedules;
6. testing and acceptance criteria;
7. operational and maintenance specifications;
8. required service levels, including technical and user
support;
9. a description of Client's responsibilities;
10. any additional or special terms and conditions; and
11. pricing.
2.2.2 Incorporation. Unless the parties otherwise expressly agree in writing,
each Work Order will be deemed to incorporate by reference all of the terms and
conditions of this Agreement, including any exhibits and schedules, as
applicable. This Agreement will continue to apply to a Work Order pursuant to
the terms of this Agreement until all obligations herein and thereunder are
performed.
2.2.3 Initial Work Orders. Convergys shall provide those implementation,
customization, conversion, integration and migration services as set forth in
Schedule 2, "Implementation and Customization Work Order," and Schedule 3,
"Conversion Work Order," (collectively, the "Initial Work Orders"), each of
which shall be deemed a Work Order hereunder.
2.3 Incidental Services. If any incidental services, functions or
responsibilities not specifically described in this Agreement are reasonably
necessary for the proper functioning of the System Software in accordance with
the Documentation, but do not arise from Client's unique business requirements
or Custom Developments, they shall be deemed to be included within the scope to
be performed by Convergys for the charges specified in Schedule 4, "Charges," as
if they were specifically described herein. The foregoing shall not be construed
to require Convergys to provide any Professional Services which are not
requested and agreed to be paid for as provided herein.
2.4 Out of Scope Services. Client may request that Convergys perform functions
or provide Professional Services that are materially different from, and outside
the scope of, the Services described in this Agreement ("Out of Scope
Services"). At Client's option, it may elect to solicit and receive bids from
third parties to perform such Out of Scope Services. If Client elects to utilize
such third party services, Convergys shall reasonably cooperate with those third
parties to enable the third party to perform the Out of Scope Services, subject
to appropriate confidentiality provisions. The parties anticipate that Services
provided under this Agreement will evolve and be supplemented, enhanced, or
modified over time to keep pace with technological advancements and improvements
in the methods of delivering Services. The parties acknowledge that such
evolutionary changes will not be Out of Scope Services and shall be provided to
Client at the agreed upon charges. Out of Scope Services explicitly do not
include enhancements and new functionality required to be delivered under this
Agreement under Section 4.2.
2.5 Compliance with Law and Regulations. Convergys shall perform the Services in
accordance with all applicable laws and regulations governing the Services and
Client's business. Any changes in the Services occasioned by changes in laws or
regulations
shall be subject to the procedures set out in Schedule 7. If such changes
prevent Convergys from performing its obligations under this Agreement, subject
to the procedures in Schedule 7, Convergys shall develop and, upon the
applicable Client approval, implement a suitable workaround until such time as
Convergys can perform its obligations under this Agreement without such
workaround. [OMITTED*] Notwithstanding the foregoing, Convergys
shall not be liable for any failure to notify Client of any changes in laws or
regulations affecting Client's business as they may relate to the Services, nor
shall Convergys be liable for any failure to implement any change not requested
by Client. Without limiting any of the foregoing, Convergys shall ensure that
the Services comply at all times with all laws and regulations regarding
Wireless Local Number Portability ("WLNP").
2.6 ECI. Except as otherwise provided in a Work Order, effective as of September
1 of each year, Convergys shall have the right to increase the Professional
Service Fee rate only, in accordance with this Section 2.6. The increase set out
in this Section does not apply to any other fees or rates charged under this
Agreement or set out in any Schedule.[OMITTED*]
3. EXCLUSIVITY
3.1 [OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
3.2 [OMITTED*]
3.3 [OMITTED*]
4. CHANGES
4.1 Change Management Services. Any changes to the Services to be provided under
this Agreement shall be performed in accordance with Schedule 5, "Change Control
Procedures" and Schedule 7, "Scope and Issue Management." Changes to the
Services include, without limitation, changes to the System Software.
4.2 [OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
4.3 Problem Management Services. Convergys will manage all problems in the
delivery of the Services in accordance with Schedule 7, "Scope Change and Issue
Management." Problem management services will include at a minimum, the
following activities:
a) problem definition
b) impact assessment
c) severity classification (1, 2, 3, or 4)
d) initial diagnosis
e) notifications (including third parties)
f) escalation
g) resolution
h) resolution timeframes
i) post problem review (root cause analysis and process improvement)
j) settlement and/or charges, if applicable.
4.4 [OMITTED*]
5. ACCEPTANCE AND REJECTION
5.1 Acceptance Period. All Deliverables specified in a Work Order will be
subject to acceptance by Client before being utilized in a production
environment. Unless otherwise specified in a Work Order, for each Deliverable,
Client shall have a period of thirty (30) days to review and test the
Deliverable in accordance with the acceptance test plans for such Deliverable.
5.2 Acceptance Test Plans/Criteria. Convergys will provide Client with Solution
Test Cases for Deliverables upon request. Client shall provide Convergys with
acceptance test plans for each Deliverable at least four (4) weeks prior to the
start of the acceptance test and the parties shall mutually agree on the
acceptance criteria for each Deliverable. The acceptance test plans and
acceptance test criteria will be used to ensure that such Deliverables are free
from material defects and function in all material respects in accordance with
the applicable functional and technical specifications set out or referenced in
the Work Order or applicable Documentation. All Deliverables shall have
completed successfully Convergys' internal testing without material defect or
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
failure prior to initial delivery to Client. Client shall be permitted to
observe and monitor Convergys' solution testing at Convergys' site.
5.3 Rejection and Cure. In the event that Client, in its reasonable judgment,
concludes (i) that a Deliverable fails to meet the applicable acceptance test
criteria other than due to the fault of Client or any Client contractor, or (ii)
where there are no acceptance test criteria, that there are one or more material
deficiencies in a Deliverable other than due to the fault of Client or any
Client contractor, Client shall promptly report to Convergys each such failure
or deficiency in a reasonably detailed writing and Convergys shall track the
problem and its resolution in accordance with Schedule 7, and Convergys shall
use its best efforts to cure or remove the failures or deficiencies within ten
(10) business days from receipt of such notice, unless otherwise instructed by
Client. The process set out in this Section 5.3 shall be repeated until the
failures and deficiencies have been remedied as provided herein. Client's
acceptance of a prior Deliverable shall not affect its ability to test and
accept all elements of a subsequent Deliverable that incorporates, or interacts
with, the prior Deliverable. This section shall not limit Client's termination
rights as set out in this Agreement.
5.4 Final Acceptance. Final acceptance will be completed when Client signs an
acceptance certificate. Notwithstanding anything to the contrary in this Section
5, the Services will be regarded as finally accepted and approved if the
Deliverables are used in production and no uncorrected Severity 1 or Severity 2
problems exist within the first thirty (30) days of use in production.
6. SCHEDULE AND DELAYS
6.1 Schedule. Convergys shall meet the following schedule with respect to
implementation of Release 7.0 and Release 8.0 of the System Software, unless
otherwise agreed in a writing signed by a representative of each party who is
authorized to amend this Agreement.
Deliverable Date
----------- ----
Release 7.0 in production for TeleCorp [OMITTED*]
Release 7.0 in production for Tritel [OMITTED*]
Release 8.0 available for testing by [OMITTED*]
Client of WLNP and GSM/GPRS
functionality
Release 8.0 available for production [OMITTED*]
Release 8.0 includes a single instance of TDMA and GSM/GPRS.
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
6.2 Notice. Whenever there is an actual or potential delay to Convergys'
performance under this Agreement, Convergys will immediately notify Client of
the delay, the party responsible for the delay and the reasons for the delay.
6.3 [OMITTED*]
6.4 Resources/Meetings. With respect to the final delivery of any Deliverable
under any Work Order that is delayed more than ten (10) days, where such delay
is not due to the fault of Client or any Client contractor, whether or not such
Deliverable is the final Deliverable:
a) Convergys shall use its best efforts to ensure that the Deliverable
is not further delayed and that subsequent Deliverables are not
delayed and are completed in accordance with the applicable Work
Order schedule; and
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
b) Client may require the Executive Steering Committee to participate
in daily meetings to apprise Client of the progress on Deliverables
until such time as Convergys is in compliance with the applicable
Work Order schedule.
6.5 Other Remedies. Client's rights under this Section 6 are in addition to, and
not in lieu of, any other rights of Client under this Agreement, including,
without limitation, rights of termination, provided that the amount of any
credit received by Client under this Section shall be set off against any final
damages award.
7. SERVICE LEVELS
7.1 Service Level Agreement. Convergys shall provide all Services under this
Agreement in accordance with Schedule 8, "Service Level Agreement."
7.2 Failure to Perform. In addition to any remedial obligations or penalties set
out in the Service Level Agreement, if Convergys fails to meet a Service Level,
Convergys shall (i) promptly investigate the underlying cause of the problem;
(ii) prepare and deliver to Client a report identifying the same; (iii) use its
best efforts to promptly correct the problem and to meet the Service Levels as
soon as practicable, including but not limited to dedicating all necessary
resources to the performance of the Services as necessary to meet the Service
Levels; and (iv) advise Client of the status of remedial efforts being
undertaken with respect to the underlying cause of the problem and communicate
with Client on a daily basis or as otherwise agreed with respect to the status
of such Service Levels until such time as the Service Levels are met.
7.3 [OMITTED*]
7.4 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 Service Levels. Such
measurement and monitoring shall permit reporting at a level of detail
sufficient to verify compliance with the Service Levels and the applicable
provisions set forth in this Agreement, and shall be subject to audit by Client.
Convergys shall provide Client, on a monthly basis, a written report stating its
compliance and/or non-compliance with the Service Levels and how such compliance
or non-compliance was determined.
7.5 Periodic Reviews. Within six (6) months after the Commercial Launch Date,
and at least annually thereafter, Client and Convergys shall review the Service
Levels and Service Level Credits and may adjust them if appropriate to reflect
improved performance capabilities associated with advances in technology and
methods and
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
evolving industry standards used to perform Services. The parties expect and
understand that the Service Levels achieved by Convergys and received by Client
should improve over time consistent with the introduction of such technology and
methods.
8. PERSONNEL
8.1 Key Convergys Personnel. Client may provide Convergys with direct feedback
relating to performance of Key Convergys Personnel, which feedback, if provided,
shall be considered by Convergys during its internal employee review and
evaluation process, but which shall not obligate Convergys to take any actions
with respect to such employee contrary to Convergys' human resource policies or
employment laws applicable to such employee.
8.2 Replacement and Qualifications of Convergys Personnel
8.2.1 Replacement. If Client makes a good faith objection to any person
fulfilling a Key Convergys Personnel role, Client may request that such person
be removed from the provision of Services to Client. Upon receipt of such
request, Convergys agrees to use its best efforts to replace such person as soon
as possible with a person of suitable ability and equal or better qualifications
than the person being replaced. Nothing in this Section 8 gives Client the right
to require Convergys to terminate any person's employment or otherwise control
any aspect of that person's employment. Convergys shall at all times have and
exercise complete and exclusive control over all employees and contractors of
Convergys and its subcontractor(s). Such control includes responsibility for
directing each such employee's work, evaluation of employee performance and the
resolution of all employee complaints and grievances.
8.2.2 Qualifications. The personnel Convergys assigns to perform Services shall
be properly trained, experienced and qualified for the Services they are to
perform and Convergys will discuss any good faith concerns that Client has with
respect to any Convergys personnel and shall take reasonable and appropriate
corrective actions in response to such concerns.
8.2.3 General. In addition to Key Convergys Personnel, Convergys shall use an
adequate number of qualified individuals with suitable training, experience and
skill to perform the Services throughout the Term.
9. MANAGEMENT
9.1 Executive Steering Committee. The parties shall form an "Executive Steering
Committee" to facilitate communications between them. The Executive Steering
Committee shall consist initially of: (a) for Client, its Chief Information
Officer, and two others appointed by the Chief Information Officer; and (b) for
Convergys, its President, Communications Solution Group, and a minimum of two
others appointed by the President, Communications Solutions Group. The parties
may designate other senior
management personnel for membership on the Executive Steering Committee from
time to time, provided that Client's representatives must include its Chief
Information Officer or an executive of equivalent or higher seniority and
Convergys' representative must include its President, Communication Solutions
Group, or an executive of equivalent or higher seniority. The presiding member
of the Executive Steering Committee for either party may designate a
representative to attend a meeting on his/her behalf from time to time, provided
that such representative is of equal or higher rank in the organization. The
Executive Steering Committee shall meet quarterly to (i) review the Reports,
(ii) review Convergys' performance under this Agreement, (iii) review progress
on the resolution of issues, (iv) provide, update and maintain a strategic plan
for Client's billing systems requirements, and (v) discuss such other matters as
appropriate. The meetings will be held in a mutually agreed upon location or via
teleconference. Each party will bear the cost of its participation in meetings
of the Executive Steering Committee.
9.2 Program Management Team. Convergys will establish a Program Management Team
which 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 devote his or her full time and effort to
managing the Services. The Convergys Program Manager shall 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 Services, and will be in contact with Client on a
daily basis during the term of the Initial Work Orders until such time as the
Outsourced Services are fully transitioned to Convergys. 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.
9.3 Reports. Convergys shall provide Client with the Atlys(R) Reports in
accordance with Attachment 1 to Schedule 1. In addition to the Atlys(R) Reports,
Convergys shall issue to Client detailed, comprehensive periodic management
reports in accordance with this section ("Reports"). There will be no separate
charges to Client for such Reports. Reports will include the following:
9.3.1 Weekly Management Reports:
a. Open Items Reports/Review Call
b. Project Status Report (Status Calls Held Weekly)
c. Implementation Issues Report (through completion of the Initial Work
Orders and the Work Order for Release 8.0); this report shall
include progress against the schedules set out in the Initial Work
Orders and the Work Order for Release 8.0.
9.3.2 Monthly Management Reports and Invoices:
a. Production/Operations Report Summary (Production SLAs). This report
shall address all Service objectives and billing system operations,
including any
changes to the Services and billing system operations. The report shall
document Convergys' performance with respect to the Service Levels,
specifications and other requirements set forth in this Agreement.
Convergys shall deliver this report to Client within ten (10) business
days after the end of each month. Deviations from the Service Levels and
other performance or delivery requirements, including a plan for
corrective action where appropriate, will be addressed according to
Schedule 7 as needed. In addition, Convergys shall provide Client with
such documentation and other information as may reasonably be requested by
Client from time to time in order to verify that Convergys' performance of
Services is in compliance with the Service Levels and the terms of this
Agreement.
b. Client Metrics Report (Remaining SLAs not covered in Section 9.3.2
(a))
c. Professional & Consulting Invoice
d. Data Processing Invoice
9.3.3 Quarterly Management Reports:
a. Quarterly Summary Letter/ Quarterly Management Meeting
9.3.4 Other Reports. From time to time during the Term, Client may request
additional management reports and Convergys may charge for the development of
such reports on a time and materials basis at the Professional Services Fee
rate.
9.4 Meetings. The parties shall participate in a set of regular meetings to be
held between representatives of Client and Convergys, including the following:
(i) a weekly meeting among operational personnel representing Client and
Convergys to discuss daily performance and planned or anticipated activities and
changes that might adversely affect performance; (ii) a bi-monthly meeting of
the Program Management Team to review the Reports described above; and (iii) a
quarterly meeting of the Executive Steering Committee to review relevant
contract and performance issues as described above. Convergys shall prepare and
circulate an agenda sufficiently in advance of each meeting to give participants
an opportunity to prepare for the meeting and shall incorporate into such agenda
items that Client wishes to discuss. At Client's request, Convergys shall
prepare and circulate minutes promptly after a meeting. Meetings may be
conducted by teleconference upon mutual agreement.
10. USE OF SUBCONTRACTORS
10.1 Right to Subcontract. With respect to any subcontractors that Convergys
utilizes to provide any portion of the Services specified in this Section 10.1
specifically for Client, Convergys shall notify Client of the identity of such
subcontractor and the scope of the Services that such subcontractor will provide
for Client's account. The Services applicable to the previous sentence are
production team services, project management services, development and testing.
Convergys agrees that it will not subcontract any
responsibilities of Key Convergys Personnel, nor will it use any subcontractors
to fulfill Key Convergys Personnel roles.
10.2 Responsibility. Convergys is and shall remain responsible for the Services
and other Convergys obligations performed by subcontractors to the same extent
as if they were performed by Convergys. In addition, Convergys shall not
disclose any Confidential Information of Client to any subcontractor unless and
until such subcontractor has agreed in writing to protect the confidentiality of
such Confidential Information in a manner no less protective than that required
of Convergys under this Agreement and the Confidentiality Agreement. With
respect to any Confidential Information of Client that Convergys provides to any
subcontractor, Convergys agrees to enforce the confidentiality provision in its
subcontractor agreements on Client's behalf when requested by Client, or, in the
alternative, Convergys agrees to permit Client to enforce such provision
directly. If Client expresses any concerns to Convergys about any subcontracted
services in good faith, Convergys shall discuss such concerns with Client and
work in good faith to resolve Client's concerns on a mutually acceptable basis,
including, if reasonably agreed, replacing such subcontractor with a suitably
experienced and qualified subcontractor.
11. SOFTWARE
11.1 Convergys Software. The Convergys customer care and billing system used to
process Client's data under this Agreement is Atlys(R), the functionality of
which is described in Schedule 1 and the User Guides. Except as provided in the
following sentence, Atlys(R) is operated by Convergys in a service bureau
environment and no licenses, express or implied, are granted by Convergys under
this Agreement. Convergys hereby grants Client a non-exclusive, worldwide
license during the Term of this Agreement to install the Atlys(R) GUI Client
Workstation Application to be provided by Convergys under this Agreement on
Client's workstations and to use such application to access the Services
provided hereunder. The source code for Atlys(R) as provided in escrow under
Section 11.3 herein includes the source code for the Atlys(R) GUI Client
Workstation Application. This license shall terminate upon the expiration or
termination of this Agreement for any reason.
11.2 Developed Software. To the extent that any Work Order requires the
development of Software by Convergys, such Software shall be developed in
accordance with Section 2.3 of Schedule 1.
11.3 Source Code Escrow. Simultaneous with the execution of this Agreement, the
parties are executing a source code escrow agreement as set out in Schedule 10
that provides for release of the Source Code to the System Software (excluding
Third Party Software) upon the occurrence of any of the following events: (i)
cessation of Convergys' business operations generally; or (ii) insolvency or
bankruptcy of Convergys or the commencement of any insolvency procedure or
proceeding by Convergys or against Convergys which is not dismissed within sixty
(60) days. Upon release of the Source Code, Client shall have the right to copy
and use the Source Code solely to maintain the Services to Client or to enable a
third party to perform Services for Client,
and Client may grant to such third party a non-exclusive right to maintain and
modify such Source Code solely for the benefit of Client, provided that such
third party agrees to be bound by the confidentiality provisions of this
Agreement with respect to the Source Code.
11.4 Third Party Software. Convergys has financial and administrative
responsibility during the Term for Convergys provided Third Party Software and
related maintenance obligations for all Convergys provided Third Party Software
required for performance of the Services and listed on Schedule 11, "Third Party
Software." Convergys will manage and administer all licenses for Convergys
provided Third Party Software obtained pursuant to this Section, comply with and
perform all of Convergys' obligations thereunder, and pay all costs associated
therewith. Client shall have financial and administrative responsibility and
related maintenance obligations for all Third Party Software licensed to Client.
12. EQUIPMENT
12.1 General. Except as expressly provided otherwise in this Agreement,
Convergys shall be responsible for providing all facilities, personnel,
equipment, software and other resources necessary to provide the Services and to
meet the SLAs. Equipment shall not be operated in excess of the capacity
specified in the manufacturer's specifications. Convergys shall use and maintain
adequate equipment (where such equipment is under Convergys' control in
accordance with this Agreement), including, without limitation, hardware and
software resources, to provide the Services in accordance with growth in
Client's Subscriber base and the provision by Client of new post-paid PCS voice
and data services (including TDMA and GSM/GPRS, UMTS, 3G and EDGE) during the
Term. Convergys shall ensure that all equipment is available, and shall upgrade
and purchase additional equipment as necessary, to accommodate such growth and
changes in and additions to the Services approved hereunder, throughout the
Term.
12.2 Client Resources. Unless otherwise specifically agreed in writing, Client
shall acquire, at its expense, the personal computers, compatible terminals,
modems, data collection units and/or telephone equipment and telephone lines
which are specified as Client resources in the process guides described in
Section 4.1 of Schedule 1 or as otherwise set out in Schedule 1, as necessary
for accessing Convergys' system or data collection devices ("Client Resources").
The cost of installing, operating, maintaining and removing such equipment will
be borne by Client. Convergys agrees to act as an advisor for Client equipment
purchases or leases insofar as to supply information both written and oral, as
needed, to state whether proposed equipment purchases will work in conjunction
with Convergys services and equipment. In the event Convergys installs and
maintains the equipment at Client's request and as agreed by the parties in
writing, 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.
CLIENT RESOURCES (IF ANY) ARE PROVIDED TO CONVERGYS BY CLIENT ON AN "AS
IS, WHERE IS" BASIS, WITH NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER.
WITHOUT LIMITING THE FOREGOING, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT (WITH RESPECT TO THIRD PARTY RESOURCES ONLY) AND FITNESS
FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED.
12.3 Equipment Ownership. Unless otherwise agreed, Convergys shall be
responsible for providing, and shall be the owner, lessee or licensee of, all
interest in equipment, software, systems or networks necessary to provide the
Services, excluding any Client Resources.
12.4 Responsibility for Equipment and Networks. Convergys is responsible for
managing and maintaining all equipment and networks used to provide the Services
throughout the Term up to the Convergys firewall separating Convergys equipment
from any Client Resources. Convergys is also responsible for upgrading such
equipment and networks as necessary, including costs, to enable it to meet the
high standards and obligations set forth herein. Convergys will use commercially
reasonable and diligent efforts to identify and implement efficiencies and
increased levels of service.
12.5 Equipment Leases. If Convergys leases any equipment to provide the
Services, to the extent permitted by the equipment lease, Convergys shall, upon
expiration or termination of this Agreement, assign to Client its rights to
purchase such equipment and shall reasonably assist Client in its dealings with
the lessor to affect such assignment and purchase.
13. RIGHT OF ACCESS; COOPERATION
13.1 Facilities. Subject to Convergys' security procedures, Convergys shall
permit Client reasonable access to its facilities in connection with work
hereunder. No charge shall be made for such visits. It is agreed that prior
notification will be given when access is requested.
13.2 Releases Void. Convergys shall not require waivers or releases of any
personal rights from Client or its representatives in connection with visits to
Convergys' premises, and no such releases or waivers shall be pleaded by
Convergys or third persons in any action or proceeding.
13.3 Company and Work Rules; Responsibility. Client employees and agents, while
on the premises of Convergys, 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. Convergys employees and agents, while on the premises of
Client, 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.
14. DATA
14.1 Ownership and Use. Client Data shall be and remain the exclusive property
of Client. Convergys shall maintain Client Data and ensure its on-line
availability to Client for a period of six (6) months from the creation of the
Client Data. Thereafter, at Client's option and at a mutually agreed upon cost,
Convergys shall convert Client Data to tapes and either store the tapes or send
them to Client. Client Data shall not be utilized by Convergys for any purpose
other than rendering Services under this Agreement, nor shall Client Data or any
part thereof be sold, assigned, leased, or otherwise disposed of to third
parties by Convergys or commercially exploited by or on behalf of Convergys, its
employees or agents. Convergys shall not possess or assert any lien or other
right against Client Data or fail to return Client Data under any circumstances
for any reason.
14.2 Data Protection. Convergys shall establish and maintain safeguards against
the unauthorized access, destruction, loss or alteration of Client Data in the
possession of Convergys, including but not limited to, in accordance with
Section 15. Client is responsible for initiating and maintaining externally to
Convergys' System, backup copies of data that are provided to Convergys as input
to the Services provided by Convergys.
14.3 Client Access to Data. Convergys agrees that Client will have full access
at all times to all Client Data, in whatever format it exists at the time,
stored on the Convergys systems and Convergys shall deliver promptly to Client
any or all such Client Data upon Client's request. Access to Client Data may be
subject to maintenance and upgrade schedules as set out in this Agreement or the
applicable Schedule, provided that Convergys has provided Client with advance
notice of such maintenance and upgrade schedules. Access to Client Data will be
provided through mutually agreed upon methods that will provide Client access in
a timely manner to meet its needs, subject to Section 2.3 of Schedule 4.
Convergys shall provide Client with a daily ftp data feed (in accordance with a
schedule provided by Client monthly in advance) of Client specified data in "as
is" format at no additional charge, excluding any required circuits, which shall
be paid for by Client. Client agrees that scheduling of the daily ftp data feed
will occur in such a manner as to minimize System Software disruption. Any
Client requests to receive the daily ftp data feed other than as scheduled must
be agreed upon by Convergys.
14.4 Data Conversion. At any time during the Term, Convergys will assist Client
as reasonably necessary, upon Client's request, in the conversion of Client Data
to any format which Client may require for internal purposes, on a time and
materials basis at the Professional Service Fee rate.
15. DISASTER RECOVERY
As more fully set forth in Section 2.1.9 of Schedule 1 and Schedule 12,
"Disaster Recovery Plan," Convergys shall (i) assume responsibility for disaster
recovery plans, (ii) implement and manage disaster recovery plans, (iii)
maintain such facilities as set out in Schedule 12, (iv) within one hundred
eighty (180) days of the Commercial Launch Date, and no more than 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 plans are operational in all material
respects, and (vi) upon discovery by Convergys, promptly provide Client with
written notice of a disaster and implement the disaster recovery plans upon the
occurrence of a disaster. The disaster recovery services outlined in Schedule 12
will be provided at no additional charge to Client.
16. SECURITY
16.1 Requirements. While the Services are being provided by Convergys to Client
in Convergys' Data Center, back-up data center, and any other location where
there is access to Client Data or Confidential Information or the ability to
access the production environment for the Outsourced Services, Convergys shall
ensure that its facilities, customer care and billing services environment,
system operations and data remain strictly secured against unauthorized access
or disclosure and that requisite protections are provided that are satisfactory
to Client, in recognition that all said operations and data are highly sensitive
and confidential, and that competitive harm to Client, as well as Client's legal
liabilities, may foreseeably flow from breaches of said security. Convergys will
use reliable, tested technology to perform its obligations under this Section.
Convergys shall not relocate the Data Center without the express written consent
of Client.
16.2 Objectives. Requisite protection shall consist of a combination of controls
to ensure the following: (i) Integrity - the ability to ensure system software,
applications, data, hardware configuration, connectivity, and the
state-of-privilege settings cannot be altered during storage or transmission;
(ii) Availability - the ability to ensure systems, applications, and data are
accessible only by authorized persons when needed; and (iii) Confidentiality -
the ability to ensure information is disclosed only to those who have a valid
need to use it.
16.3 Data Transition. Client Data residing in Convergys databases assumes many
states and resides in many environments prior to final output. With each
transition from one state to another, Convergys shall use consistent and
continuous procedures to protect the information from unauthorized disclosure.
For example, data transmitted over communications lines must be afforded
protection at its source, while in transmission, and at its destination, to the
extent of Convergys' direct control. Convergys shall use best efforts to ensure
that all components/activities involved in processing Client Data residing in
Convergys databases shall operate to protect the integrity, availability and
confidentiality of the system operations and Client Data.
Complementary security policies and procedures shall be implemented within all
relevant portions of the Convergys system.
16.4 Communication. Convergys is responsible for communicating with Client's
business security department in the event an external or internal fraudulent
activity with respect to the Services or any Client Data is suspected or
detected by either Client or Convergys. In the event fraud is suspected or
detected, Client and Convergys agree to the following process: Convergys must
contact Client and Client's designated security officer to inform them of the
activity (whether suspected or actual). The parties will work together in good
faith and Convergys will use its best efforts to correct the problem
immediately. Material fraud issues will be treated as Severity 1 issues. If
Convergys fails to comply with its obligations set forth in this Section 16.4,
Client may then terminate this Agreement immediately and without penalty. During
any investigation, Convergys must be available to meet with Client's security
representatives on a daily basis until the matter has been resolved to Client's
satisfaction. Convergys must use best efforts to comply with Client's requests
for information regarding an ongoing investigation within a 24-hour period.
16.5 Security Audit. After providing reasonable prior notice to Convergys,
Client shall have the right at its own cost to conduct a security audit during
normal business hours to ensure compliance with the foregoing security
requirements. Client shall use commercially reasonable efforts to minimize any
disruption to Convergys' operations during any such audit. Such an audit shall
be conducted in accordance with Section 17.
16.6 Service Location. Convergys shall provide the Services to Client from, and
shall house the applications, servers and networks used to provide Services to
Client in, a secure location in the Data Center. With respect to servers and
networks which contain or can provide access to any Client Data or Client
Confidential Information, Convergys shall restrict access to such servers and
networks to those Convergys personnel who are employed in providing Services to
Client under this Agreement.
17. AUDIT
17.1 Audit Rights. Client shall have the right to conduct audits (or appoint a
mutually acceptable third party independent auditor to conduct audits) of the
Services and related invoicing, facilities, systems, security procedures and
records as set forth in this Section for the purpose of auditing Convergys'
compliance with the provisions of this Agreement and for audit of revenue and
all other records related to this Agreement and the Services. The foregoing
audit rights shall include, to the extent applicable to Services, audits of: (i)
fees and costs charged to Client for the Services, including pass through
expenses and any other costs that are paid by Client on a similar basis, (ii)
practices and procedures, (iii) systems and equipment, (iv) general controls and
security practices and procedures, (v) disaster recovery and backup procedures,
(vi) efficiency in performing Services, including Service Levels, and (vii) any
audits necessary to enable Client to meet applicable regulatory requirements.
17.2 Procedure and Assistance. Audits may be conducted from time to time during
the Term and, with respect to fee and cost audits, for a period of two (2) years
following the expiration or termination of this Agreement. Audits will be
conducted during regular business hours. Convergys shall provide Client or its
designees with access to Convergys' staff, records, and supporting documentation
as pertains to this Agreement and as may be necessary for Client or its
designees to perform such audits. Convergys shall provide such auditors any
reasonable assistance that they may require. Such reasonable assistance shall be
provided as part of the Services at no additional charge, excluding any
extraordinary expenses and out of pocket expenses. Such audits shall be
conducted with as minimal disruption as possible to Convergys' operations.
17.3 Record Retention. Convergys shall maintain complete and accurate records of
its performance of the Services as well as complete and accurate accounting
records, in a form in accordance with generally accepted accounting practices,
to substantiate Convergys' performance and charges hereunder. Convergys shall
retain such records for a period of two (2) years from the date of expiration or
termination of this Agreement.
17.4 Results of Payment Audit. If an audit of any invoiced charges reveals a
discrepancy of [OMITTED*] or more, Convergys will pay for the reasonable costs
of the audit relating to the invoiced charges. Within thirty (30) days of
completion of the audit, Convergys will refund or credit to Client all excess
amounts paid, and if such audit reveals a discrepancy of [OMITTED*] or more,
interest at the rate of the lesser of [OMITTED*] per annum or the maximum amount
permitted by law. In all other cases, Client will pay for the cost of the audit.
17.5 Results of Other Audits. If any audit other than a payment audit reveals a
substantial performance failure of Convergys, Convergys will pay for the
reasonable costs of the audit. The parties will meet promptly upon completion of
the audit to review the audit findings. Any changes to processes or systems
suggested by the auditor as a result of the audit will be subject to the mutual
agreement of both parties. Charges for agreed changes shall be negotiated by the
parties and subject to the Professional Services Fee Rates. With respect to
Service Level audits, the obligations of this paragraph shall not relieve
Convergys of its obligations under Section 7 herein or any Service Level
Agreement.
17.6 Subcontractors. Convergys will use its best efforts to assist Client in
obtaining from all subcontractors engaged by Convergys in connection with this
Agreement any data or records that may be in such subcontractor's possession and
which are needed to complete an audit under this Agreement. Convergys agrees to
pass through to Client any audit rights it may have in any subcontracts with
subcontractors performing Services, to the extent permitted.
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
18. FEES AND CHARGES
18.1 General. Client shall pay to Convergys the charges set forth in Schedule 4,
"Charges," for all Services. Except as expressly set forth in this Agreement,
Client is not obligated to pay Convergys any amounts other than the charges
payable to Convergys under Schedule 4. Consistent with its obligation to provide
Services hereunder, Convergys shall use commercially reasonable efforts,
including maintaining and enhancing efficient utilization of resources, to
minimize charges to and expenses payable by Client.
18.2 Pass-Through Expenses. All pass-through expense categories are listed in
Schedule 4. The parties agree that all pass-through expenses are to be paid by
Client to Convergys only in accordance with Schedule 4. 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 and determined such
charges are proper and valid. Any taxes payable on or incident to pass-through
expenses shall be the responsibility of Client.
18.3 Taxes. The parties' respective responsibilities for taxes arising under or
in connection with this Agreement shall be as follows.
18.3.1 Each party shall be responsible for (i) personal property taxes on
property, including equipment and circuits, it owns or leases; (ii) for
franchise and privilege taxes on its business; and (iii) for taxes based on its
net or gross income or gross receipts or capital. Gross receipts taxes shall
include, without limitation, excise, business, occupation, license, privilege,
service, and other similar taxes (a) which are imposed on or measured by the
gross volume of a party's business, in terms of gross receipts or in other
terms, and in the determination of which the deductions allowed would not cause
the tax to be an income tax or value added tax; and (b) which are not, pursuant
to law or custom, separately stated from the selling price. Applicable personal
property taxes, if any, on existing equipment purchased by or assigned to
Convergys shall be prorated between the parties as of the Effective Date for the
tax year of the taxing jurisdiction in which each item of existing equipment is
located as of the Effective Date of this Agreement.
18.3.2 Convergys shall be responsible for any sales, use, excise, value-added,
services, consumption, and other taxes and duties payable on any goods or
services (collectively, "Sales Taxes") used or consumed by Convergys in
providing Services or other work, including taxes imposed on Convergys'
acquisition or use of such goods or services, but excluding taxes on
pass-through expenses. Any services or Software acquired by Convergys for use by
Client shall be purchased exempt for resale where permitted by statute or
regulation. If during the course of the performance of the Agreement, Convergys
creates or purchases software for Client on which tax could be imposed,
Convergys shall, if possible, either obtain or transmit, as appropriate, such
Software to Client electronically or separately invoice the Software and the
tape, compact disk, or other media to Client.
18.3.3 Each party agrees to fully cooperate with the other to enable each to
accurately determine its own tax liability and to minimize such liability to the
extent legally permissible. To this end:
(i) Convergys' invoices shall separately state the amounts of any taxes
Convergys collects from Client;
(ii) each party shall provide and make available to the other any resale
certificates, information regarding out-of-state or out-of-country sales or use
of equipment, materials or services, and other exemption certificates or
information reasonably requested by the other party; and
(iii) if a tax is assessed on the provision of all or any part of the Services,
Software or other work provided to Client, or if a party determines in good
faith that such an assessment may be made, the parties shall cooperate in
structuring the arrangements between them with respect to the affected items and
related invoices so as to exempt the non-taxable portion (if any) of such items
from the tax to the extent permitted by law.
18.3.4 Convergys shall promptly notify Client of, and coordinate with Client the
response to and settlement of, any claim for taxes asserted by applicable taxing
authorities for which Client is responsible hereunder. With respect to any claim
arising out of a form or return signed by a party to the Agreement, such party
shall have the right to elect to control the response to and settlement of the
claim, but the other party shall have the right to participate in responses and
settlements appropriate to its potential responsibilities or liabilities.
Notwithstanding the foregoing, Convergys shall permit Client to control the
response to and settlement of any claim which is to be borne 95% or more by
Client. Client shall be entitled to any tax refunds or rebates granted to the
extent such refunds or rebates are attributable to taxes paid by Client.
19. INVOICING AND PAYMENT
19.1 Invoicing. Convergys shall invoice Client for the Services on a monthly
basis. Convergys shall provide billing detail on invoices as reasonably
specified by Client. To the extent a credit may be due Client pursuant to the
Agreement, Convergys shall provide Client with an appropriate credit against
amounts then due and owing; if no further payments are due Convergys, Convergys
shall pay the credit to Client within thirty (30) days. All charges and credits
to be made or given in a particular month shall be consolidated into a single
invoice. Related charges shall be grouped together in a logical manner to
facilitate review and verification by Client. Except as expressly stated to the
contrary, periodic charges under the Agreement are to be computed on a calendar
month basis, and shall be prorated for any partial month.
19.2 Payment Due. Subject to other provisions of this Section, each invoice
shall be payable within thirty (30) days after the date of the invoice. Any
amount due under this
Agreement for which a time for payment is not otherwise specified shall be
payable within thirty (30) days after the date of the invoice for such amount
from Convergys. Client shall pay a late charge equal to one and one half percent
(1.5%) per month of the undisputed portion of any past due invoice until such
delinquent invoice is paid.
19.3 Prepaid Amounts. Where Client has prepaid for a service or function for
which Convergys is assuming financial responsibility under this Agreement,
Convergys shall reimburse Client, upon either party identifying the prepayment,
for that portion of such prepaid expense which is attributable to periods on and
after the Effective Date. Where Convergys has prepaid for a service or function
for which Client or an alternative service provider shall assume financial
responsibility following expiration or termination of this Agreement, Client
shall reimburse Convergys, upon either party identifying the prepayment, for
that portion of such prepaid expense which is attributable to periods on and
after expiration or termination of this Agreement.
19.4 Disputed Charges. Client shall pay undisputed charges when such payments
are due. Client may withhold payment of particular charges that Client disputes
in good faith and in such case, Client shall advise Convergys in writing of the
nature of the dispute and the parties shall immediately commence dispute
resolution in accordance with the dispute resolution mechanism herein. No
interest shall accrue on disputed amounts. No matter what the nature of the
dispute, Convergys' obligation to provide Services continues during such
dispute, and Convergys and its personnel will continue to use all best efforts
to deliver Services in accordance with the terms of the Agreement. Charges must
be disputed by Client within one hundred and twenty (120) days of the invoice
date or they shall be deemed to be approved by Client, except where charges are
disputed as the result of an audit under this Agreement.
20. CONTINUOUS IMPROVEMENT; BENCHMARKING
20.1 Continuous Improvement. Convergys shall use commercially reasonable efforts
to cause all aspects of the Services (including performance, quality,
comprehensiveness, cost-effectiveness, timeliness and efficiency of the
Services) to improve for the benefit of Client. Such improvements shall continue
through the Term and performance and scope of Services shall improve over time
to reflect improvements in technology and Convergys' processes. Convergys shall
research and develop new technology and applications to be used with the
Services in the ordinary course of its business operations. Convergys and Client
shall meet on a regular basis, but no less than every six (6) months, to discuss
Convergys' research and development efforts and the applications thereof for the
benefit of Client. Continuous improvement includes an obligation to make
available to Client all technologies and billing functionalities that are
generally available in the wireless marketplace, including without limitation
functionality to support TDMA and GSM/GPRS in a single instance and UMTS. In
order to continually improve the quality of the Services to Client, Convergys
may propose changes to the Services in accordance with the procedures set out in
Schedule 5.
20.2 Benchmarking. Client may, at its own cost, use benchmarking procedures and
may utilize independent third parties acceptable to Convergys to conduct such
benchmarking procedures to obtain an objective measurement and industry
comparison of the Services and Service Levels throughout the Term. The
benchmarking procedures are set out in Schedule 13, "Benchmarking." If the
benchmarking process shows Convergys is not competitive with leaders in the
industry in any material respect, Convergys will take appropriate remedial
actions.
21. CLIENT RESPONSIBILITIES
21.1 Business Requirements. Client shall advise Convergys of the requirements
and nature of Client's business, but the parties acknowledge that Client is
relying on Convergys' expertise in the subject matter of this Agreement to
ensure that the Services meet the stated business requirements of Client.
21.2 Information Requests. Client shall provide timely, complete and accurate
information, data, requirements or specifications that it is obligated to
provide pursuant to this Agreement and shall not unreasonably interfere with
Convergys' performance of its obligations.
22. CONFIDENTIALITY AND NONDISCLOSURE; PUBLICITY
22.1 Confidentiality And Non-Disclosure. Convergys and Client agree that all
Confidential Information exchanged under this Agreement shall be subject to the
Confidentiality Agreements entered into by the parties effective as of March 13,
2001, and attached hereto as Exhibit A and incorporated herein by this reference
(collectively, the "Confidentiality 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
Confidentiality Agreement shall retain such designation. Without limiting any of
the terms of the Confidentiality Agreement, Client's "Confidential Information"
shall include, but shall not be limited to: (i) Client Data provided to or
collected by Convergys or any of its agents either prior to or during the Term
of this Agreement, (ii) any and all other information relating to Client's
business, operations or Subscribers, (iii) Client's system, software, source
code, object code, procedures, drawings, designs, specifications, technology
and/or user documentation therefore provided to Convergys or any of its agents
during the Term of this Agreement; (ii) technical and business development
methods and processes used by Client, and program listings, manuals and
documentation related to Client's software and applications; (iii) Client's
business information, including but not limited to nonpublic financial
information, pricing, customer information or lists and (iv) all other
proprietary information relating to Client's business which is provided to
Convergys in tangible form during the Term of this Agreement. Except as
otherwise expressly set forth in writing, Convergys' "Confidential Information"
shall include: (i) 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; (ii) technical and business
development methods and processes used by Convergys, and program listings,
manuals and documentation related to Convergys' software and applications; (iii)
Convergys business information, including but not limited to nonpublic financial
information, pricing, customer information or lists and (iv) all other
proprietary information relating to Convergys' Services which are provided to
Client in tangible form during the Term of this Agreement. Confidential
Information and any copies made by either party are the property of the
disclosing party.
22.2 Publicity. Convergys and Client agree to issue two joint press releases
announcing the existence and nature of this Agreement. The wording of each press
release shall be mutually agreed prior to release, and neither party shall
unreasonably withhold its approval. The first press release will be issued at
the time of execution of this Agreement, and the second press release will be
issued at the time of the Commercial Launch Date. At Client's discretion and
with Client's prior written approval, Convergys may (a) include Client in lists
of Convergys customers in marketing materials, including the Convergys Web Sites
identified with the URLs of xxx.xxxxxxxxx.xxx, xxx.xxxxxxxxx.xx,
xxx.xxxxxxxxx.xx, xxx.xxxxxxxxx.xx, and xxx.xxxxxxxxx.xx and any similar site,
along with its properly formatted logo as provided by Client, and (b) reference
the existence and nature of this Agreement as required in reporting for SEC
purposes, including the Convergys annual report, and as otherwise required by
law, provided that, any public disclosure required for SEC purposes or as
otherwise required by law shall be subject to confidential treatment to the
extent permitted by law whenever such treatment is requested by Client and
provided further that Client is given an opportunity to comment, if not
prohibited by law, whenever it is mentioned in such a disclosure.
23. OWNERSHIP OF INTELLECTUAL PROPERTY
23.1 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 or which is
developed outside of this Agreement, including, without limitation, 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 license or
transfer of ownership of either party's Pre-existing Intellectual Property to
the other party or any third party.
23.2 Work Product. As between Convergys and Client, unless otherwise specified
in a Work Order, the Deliverables developed under this Agreement and all
intellectual property rights therein shall be owned by Convergys, excluding any
Client Data and Client Confidential Information contained in or used to develop
such Deliverables. Client hereby assigns and transfers to Convergys all right,
title and interest that Client may now or hereafter have in the Deliverables
excluding any Client Data or Client Confidential Information. Any software,
documentation or other materials developed by
or on behalf of Client, (other than by Convergys), including without limitation
any interfaces to any System Software or Third Party Software, will be owned by
Client.
23.3 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 Deliverables.
23.4 Limitation. Notwithstanding any other provision of this Agreement to the
contrary, this Section 23 will not obligate Client to assign or offer to assign
to Convergys any of Client's rights in Client owned material or Client
proprietary materials.
24. WARRANTIES
24.1 Performance Standards. Convergys warrants that the Services provided
hereunder will be provided in a professional and workmanlike manner consistent
with leading industry standards. Convergys warrants that it has all requisite
knowledge, know-how, skill, expertise and experience to perform its obligations
in accordance with this Agreement.
24.2 Defects. Convergys warrants that all Services and Deliverables will be free
of material errors, defects, malfunctions or omissions and will function in
accordance with the applicable functional and technical specifications.
24.3 Releases. Convergys warrants that any Releases which have been approved by
Client for implementation will not result in a Convergys caused (i) material
delay or interruption of performance of the System Software; or (ii) material
loss or corruption of data within the System Software.
24.4 Ownership. Convergys represents and warrants that Convergys owns all right,
title and interest in or to, or possesses valid and binding licenses for use of
the System Software without infringement of the proprietary rights of any other
person, including, without limitation, rights arising from U.S. or foreign
patents, copyrights and trade secrets. Client represents and warrants that
Client owns all 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, including, without limitation, rights
arising from U.S. or foreign patents, copyrights and trade secrets.
24.5 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.
24.6 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.
24.7 Compliance with Laws. Convergys and Client each warrants that it will
comply with all federal, state and local laws, ordinances, rules, regulations
and orders with respect to its performance of the Services and/or its
obligations under this Agreement, including identifying and procuring required
permits, certificates, approvals and inspections. This warranty does not change
the parties' obligations under Section 2.5 herein.
24.8 EXCEPT FOR THE WARRANTIES STATED IN THIS AGREEMENT, CONVERGYS DISCLAIMS ALL
WARRANTIES WITH REGARD TO THE SERVICES OR PRODUCTS FURNISHED UNDER THIS
AGREEMENT, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
25. INDEMNIFICATION AND DEFENSE
25.1 Convergys Indemnity. In addition to and not in lieu of any other remedies
provided for herein and under applicable law, Convergys will indemnify, defend
and hold Client (and Client's officers, directors, agents, employees, successors
and assigns) harmless from all claims, damages, liabilities, losses, costs and
expenses (including without limitation attorneys' fees) arising out of or
resulting from any third party claim (actual or threatened), action or other
proceeding (including any proceeding by any of Convergys' employees, agents or
contractors) that is based upon or relates to (i) Convergys' breach of this
Agreement or breach of any warranty in this Agreement, (ii) the negligence or
willful misconduct of Convergys or any party under direction or control of
Convergys, (iii) 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, (iv) the actual or alleged infringement or
misappropriation of any patent, copyright, trademark, trade secret or other
proprietary right by all or any portion of the Services or the Deliverables
delivered pursuant hereto or the wrongful use of any trade secret or
Confidential Information involving all or any portion of the Convergys-owned
Services or the Deliverables delivered pursuant hereto, (v) failure to pay any
taxes, interest and penalties for which Convergys is responsible, (vi) violation
of any law, regulation, rule or order for which Convergys is responsible, and
(vii) failure to pay all contributions, taxes or payments required to be made
with respect to its employees or their employment.
25.2 Client Indemnity. In addition to and not in lieu of any other remedies
provided for herein and under applicable law, Client will indemnify, defend and
hold Convergys (and Convergys' officers, directors, agents, employees,
successors and assigns) harmless from all claims, damages, liabilities, losses,
costs and expenses (including without limitation attorneys' fees) arising out of
or resulting from any third party claim (actual or threatened), action or other
proceeding (including any proceeding by any of Client's employees, agents or
contractors) that is based upon or relates to (i) Client's breach of this
Agreement or breach of any warranty in this Agreement, (ii) the negligence or
willful misconduct of Client or any party under direction or control of Client,
(iii) 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, (iv) the actual or alleged infringement or
misappropriation of any patent, copyright, trademark, trade secret or other
proprietary right by all or any portion of the Client-owned Client Resources
delivered pursuant hereto or the wrongful use of any trade secret or
Confidential Information of Convergys involving all or any portion of the
Services or the Deliverables delivered pursuant hereto, (v) failure to pay any
taxes, interest and penalties for which Client is responsible, (vi) violation of
any law, regulation, rule or order for which Client is responsible, and (vii)
failure to pay all contributions, taxes or payments required to be made with
respect to its employees or their employment.
25.3 Infringement Remedies. If any item used or provided by Convergys to provide
Services becomes, or in Convergys' reasonable opinion is likely to become, the
subject of an infringement or misappropriation claim or proceeding, in addition
to indemnifying Client as provided in this Section, Convergys shall promptly
take the following actions at no charge to Client, and in the listed order of
priority: (i) secure the right to continue using the item; or (ii) replace or
modify the item to make it non-infringing, provided that any such replacement or
modification will not degrade functionality performance or quality of the
affected component of the Services.
25.4 Indemnification Procedures. Promptly after receipt by either party of
notice of the commencement or threatened commencement of any civil, criminal,
administrative, or investigative action or proceeding involving a claim in
respect of which the indemnified party will seek indemnification, the
indemnified party shall notify the other party of such claim in writing. Failure
to so notify the indemnifying party shall not relieve the indemnifying party of
its obligations under this Agreement, except to the extent that it can
demonstrate harm attributable to such failure. The indemnifying party shall be
entitled to have, and shall promptly take, sole control over the defense and
settlement of such claim; provided, however, that (i) the indemnified party
shall be entitled to participate in the defense of such claim and to employ
counsel at its own expense to assist in the handling of such claim, and (ii) the
indemnifying party shall obtain the prior written approval of the indemnified
party before entering into any settlement of such claim or ceasing to defend
against such claim. If the indemnifying party fails to assume the defense
following receipt of a notice of any claim, the indemnified party shall have the
right to defend the claim in such manner as it may deem appropriate, at the cost
and expense of the indemnifying party, and the indemnifying party shall promptly
reimburse the indemnified party for all such costs and expenses.
26. LIMITATION OF LIABILITY
[OMITTED*], EACH PARTY'S TOTAL LIABILITY FOR LOSS, DAMAGE OR EXPENSE IN
CONNECTION WITH OR ARISING FROM THIS AGREEMENT SHALL BE LIMITED TO DIRECT
DAMAGES PROVEN NOT TO EXCEED [OMITTED*] PER YEAR AND AN AGGREGATE AMOUNT OF
[OMITTED*] DURING THE INITIAL TERM OF THIS AGREEMENT.
[OMITTED*], 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. [OMITTED*]
ANY AMOUNTS FOR WHICH CONVERGYS IS LIABLE HEREUNDER SHALL BE PROVIDED TO CLIENT,
AT CLIENT'S OPTION VIA (i) CERTIFIED CHECK OR WIRE TRANSFER, (ii) CREDIT TO
CLIENT DESIGNATED CONVERGYS INVOICE, OR (iii) CONVERGYS CREDIT MEMO.
27. INSURANCE
27.1 Requirements. Convergys shall maintain and keep in force, at its own
expense, during the Term hereof, the following insurance coverage:
(i) Workers' Compensation insurance as prescribed by the law of the state in
which the work is performed;
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
(ii) employer's liability insurance with limits of at least Five Hundred
Thousand Dollars ($500,000) each occurrence;
(iii) commercial general liability insurance and, if the use of automobiles is
required, comprehensive automobile liability insurance, each with limits of at
least One Million Dollars ($1,000,000) combined single limit per occurrence for
bodily injury and property damage liability;
(iv) crime insurance covering employee dishonesty and computer fraud coverage
for loss arising out of or in connection with any fraudulent or dishonest acts
committed by the employees of Convergys, acting alone or in collusion with
others, in a minimum amount of One Million Dollars ($1,000,000) and
(v) umbrella liability coverage in an amount of at least One Million Dollars
($1,000,000) in excess of the insurance coverage designated in subsections (i)
through (iii) above.
The policy listed in subsection (iii) above shall be endorsed to name Client as
an additional insured, but only with respect to Client's vicarious legal
liability caused by Convergys' negligence. In no event shall any of the above
insurance be deemed to be a limitation of liability.
27.2 Certificates/Cancellation. The foregoing insurance shall be primary and
non-contributing with respect to any other insurance or self insurance which may
be maintained by Client. Convergys shall cause its insurers to issue
certificates of insurance to Client evidencing that the coverage and policy
endorsements required under this Agreement are maintained in force on the
Effective Date and each anniversary thereof, and that not less than thirty (30)
days written notice shall be given to Client prior to any material modification
or cancellation or non-renewal of the polices. The insurers selected by
Convergys must have a B+ rating or better from Best's Key rating guide or an
equivalent rating service that is acceptable to Client. All liability insurance
policies shall be written on an "occurrence" policy form. Convergys shall be
responsible for payment of any and all deductibles from insured claims under its
policies.
28. TERM AND TERMINATION
28.1 Term. The term of this Agreement will be five (5) years from the Effective
Date unless earlier terminated or extended as permitted herein. Client may elect
to renew this Agreement by providing Convergys with notice of its intent to
renew at least one hundred and twenty (120) days prior to the end of the Term.
28.2 Termination of Work Orders.
28.2.1 Initial Work Orders. Client may terminate the Initial Work Orders if they
are not finally accepted pursuant to Section 5.4 or if Convergys fails to meet
the deadlines set out in Section 6.1. Convergys shall have an obligation to
mitigate all costs as a result of such termination. If Client terminates the
Initial Work Orders, then Client shall have the
right to terminate this Agreement without penalty or further liability to
Convergys, and Convergys shall refund to Client all amounts paid to Convergys
through the date of such termination.
28.2.2 Release 8.0. Client may terminate the Work Order implementing Release 8.0
and this Agreement if it is not finally accepted pursuant to Section 5.4 or if
Convergys fails to meet the deadlines set out in Section 6.1. Convergys shall
have an obligation to mitigate all costs as a result of such termination. If
Client desires to terminate this Agreement under this Section 28.2.2, Client
will provide written notice to Convergys and Convergys will have sixty (60) days
after receipt of such notice to cure. If Convergys has not cured within such
sixty (60) day period, Client may immediately terminate this Agreement,
notwithstanding any other terms hereof. If Client terminates this Agreement
under this Section, Convergys shall refund to Client all amounts paid to
Convergys under the Work Order implementing Release 8.0 through the date of such
termination.
28.2.3 Other Work Orders. Unless otherwise stated in a Work Order, Client will
have the right at any time to terminate, in whole or in part, any Work Order for
Professional Services (other than the Initial Work Orders and the Work Order for
Release 8.0) upon written notice to Convergys. Convergys shall have an
obligation to mitigate all costs as a result of such termination. Client shall
be responsible to pay for all costs and expenses due and payable in accordance
with Schedule 4 through the effective date of termination of the Work Order.
28.2.4 Effect of Agreement Termination. Termination of this Agreement for any
reason shall automatically terminate any pending Work Orders, except as provided
pursuant to Schedule14, "Termination Assistance."
28.3 Client Termination of Agreement
28.3.1 Breach. Client may terminate this Agreement if any of the following
events of default occur: (i) if Convergys 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 agreed to by Client) after written notice to
correct such default is received from Client; (ii) if Convergys becomes
insolvent or is unable 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 Convergys; or (iv) if such a petition is filed
by any third party, or an application for a receiver of Convergys is made by
anyone and such petition or application is not resolved favorably within sixty
(60) days. Notwithstanding anything in this Agreement to the contrary, Client
will have the right to terminate this Agreement immediately upon notice to
Convergys in the event of any Convergys material breach of (i) its obligations
to implement and maintain security as provided in Section 16 if such breach has
caused actual harm to Client or disclosure of Client Data or Confidential
Information to unauthorized third parties; or (ii) Section 22 (Confidentiality).
28.3.2 [OMITTED*]
28.3.3 Client Change in Control. If, during the Term, Client undergoes a Change
in Control with AWS or Triton PCS, Inc., then Client and its successors may
terminate this Agreement, subject to payment of the exit fees set out in
Schedule 4. Such exit fees shall not apply if Client is acquired by or succeeded
by any other person or entity. Any such acquisition party or successor shall be
bound by the terms and conditions of this Agreement for the remainder of the
Term of this Agreement.
28.4 Convergys Termination of Agreement. Convergys may terminate this Agreement
for non-payment if any such non-payment is not cured within thirty (30) days (or
such longer period as may be agreed to by Convergys) after written notice to
correct such default is received from Convergys. Convergys shall not terminate
this Agreement for non-payment if such payment amount or the Services underlying
such payment amount is being disputed in good faith by Client. Convergys will
have the right to terminate this Agreement immediately upon notice to Client in
the event of any Client material breach of Section 22 if such breach has caused
actual harm to Convergys or disclosure of Convergys Confidential Information to
unauthorized third parties (Confidentiality).
28.5 Termination Assistance. For a period up to six (6) months following
expiration or termination of this Agreement for any reason except nonpayment by
Client, except if such payment amount or the Services underlying such payment
amount is being disputed in good faith by Client, Convergys shall provide
termination assistance to Client to allow the Services to continue without
interruption or adverse effect and to facilitate the orderly transfer of
Services to Client or its designees. The termination assistance to be provided
is defined in Schedule 14, "Termination Assistance."
28.6 Return of Client Confidential Information. Upon the expiration or
termination of this Agreement and any transition period, Convergys shall
promptly deliver to Client all copies and embodiments, in whatever form, of
Client's Confidential Information or, at Client's option, destroy or erase any
embodiments of Client's 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 Client, shall provide
Client with written confirmation that all such materials have been returned or
have been destroyed.
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
28.7 Return of Convergys Confidential Information. Upon the expiration or
termination of this Agreement and any transition period, Client shall promptly
deliver to Convergys all copies and embodiments, in whatever form, of Convergys'
Confidential Information or, at Convergys' option, 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.
28.8 Survival of Rights and Obligations. To the extent applicable, Sections
14.1, 17, 22.1, 23, 25, 26, 28.5, 28.6, 28.7, 28.8 and 31 shall survive
expiration or termination of this Agreement.
29. DISPUTE RESOLUTION
29.1 Informal Dispute Resolution Procedure. During the Term and any extension
during which Convergys is providing Services to Client, 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. If either
party believes that attempts to resolve a dispute by the parties have failed,
either party may, at any time upon written notice to the other, request that
such controversy or claim be referred to the Executive Steering Committee for
negotiation and resolution. If such a request is made, the Executive Steering
Committee 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 29.1 will be reduced to writing and signed by the parties. If,
after such meeting, such attempt to resolve the dispute has failed, the parties
may pursue their available remedies at law or in equity.
29.2 Injunctive Relief. Nothing in this Section 29 is intended to restrict or
limit either party's ability to apply at any time 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 to the extent permitted by applicable law, and each party waives any
objection to the availability of such relief.
29.3 Continued Performance. Each party agrees to continue performing its
obligations under this Agreement while any dispute is being resolved, informally
or otherwise, including litigation, unless and until such obligations are
expressly terminated by this Agreement.
30. HIRING OF EMPLOYEES
Convergys agrees that it will not solicit for employment Client's employees who
are involved with the work relating to this Agreement for a period of one
hundred and eighty
(180) days following termination of the employment of said employee by Client,
unless mutually agreed upon in writing. Client agrees that it will not solicit
for employment Convergys' employees who are involved with the work relating to
this Agreement for a period of one hundred and eighty (180) days following
termination of the employment of said employee by Convergys, unless mutually
agreed upon in writing. The terms of this Section 30 shall survive the
expiration or termination of this Agreement for a period of one hundred and
eighty (180) days.
31. GENERAL
31.1 Assignment. Neither party shall assign any right or obligation under this
Agreement without the prior written consent of the other party, which shall not
be unreasonably withheld, delayed or conditioned. 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, (provided that the original contracting party remains liable under this
Agreement) but without the consent of the other party. Further, either party may
assign its rights and obligations under this Agreement to an entity 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 31.1shall 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.
31.2 Force Majeure. For the purposes of this Agreement, the expression "Force
Majeure" shall mean any cause affecting the performance by a party of its
obligations arising from acts, events, omissions, happenings or non-happenings
beyond its reasonable control including (but without limiting the generality
thereof) governmental regulations (excluding changes in tax legislation and
excluding compliance with law as set out in Section 2.5 above), fire, flood, or
any disaster or the unavailability of parts or essential support for third party
products worldwide. In the case of Convergys, such cause will only be considered
Force Majeure if it is not attributable to a failure by Convergys to provide
disaster recovery services as specified in this Agreement or to utilize other
operations as a backup where reasonably practicable.
31.2.1 Neither party shall in any circumstances be liable to the other for any
loss of any kind whatsoever including but not limited to any damages or
abatement of charges whether directly or indirectly caused to or incurred by the
other party by reason of any failure or delay in the performance of its
obligations hereunder which is due to Force Majeure.
31.2.2 If either of the parties shall become aware of circumstances of Force
Majeure which give rise to or which are likely to give rise to any such failure
or delay on its part, it shall forthwith notify the other by the most
expeditious method then available and shall inform the other of the period which
it is estimated that such failure or delay shall continue.
31.2.3 It is expressly agreed that any failure by Convergys to perform or any
delay by Convergys in performing its obligations under this Agreement which
results from any failure or delay in the performance of its obligations by any
person, firm or company with which Convergys shall have entered into any
contract, supply arrangement or sub-contract or otherwise, shall be regarded as
a failure or delay due to Force Majeure only in the event that that person, firm
or company shall itself be prevented from or delayed in complying with its
obligations under such contract, supply arrangement or sub-contract or otherwise
as a result of circumstances of Force Majeure.
31.2.4 Client shall not be required to pay for Services which were not performed
by Convergys during a Force Majeure condition, and shall be entitled to deduct
the price of such Services from any payment due hereunder.
31.2.5 If a Force Majeure event occurs, the party injured by the other's
inability to perform may elect to: (a) suspend its performance for the duration
of the delaying cause, buy or sell elsewhere the items or Services to be bought
or sold hereunder during such time; or (b) resume performance once the delaying
cause ceases with an option in the injured party to extend the delivery date up
to the length of time the contingency endured. Unless such written notice is
given within thirty (30) days after such injured party is apprised of the
contingency, (b), above, shall be deemed selected. If any Force Majeure event
continues for more than sixty (60) days, the party injured by such event may
elect to terminate this Agreement without further penalty or liability to the
other party, except for any liability which arose prior to the commencement of
the Force Majeure event.
31.3 Applicable Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, excluding its
conflicts of law rules. The parties consent to the jurisdiction of any state
court located within a district which encompasses assets of a party against
which a judgment has been rendered for the enforcement of such judgment or award
against the assets of such party.
31.4 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) or by
hand delivery via a nationally recognized overnight delivery service 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.
All notices shall be deemed given as of the day they are received.
If to Client: TeleCorp PCS, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, President
Fax: (000) 000-0000
With a copy to: Xxxxx Xxxxx Xxxx Xxxxxx Glovksy & Popeo PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
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: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: General Counsel
Fax: 000-000-0000
31.5 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
having jurisdiction thereover will have the power to reform such provision to
the extent necessary for such provision to be enforceable under applicable law.
31.6 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. All rights and remedies
are cumulative and not exclusive of any other rights or remedies. Except as
expressly provided in this Agreement, no amendment, waiver or discharge of any
provision of this Agreement will be effective unless made in a 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.
31.7 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.
31.8 Conflicting Terms. The parties agree that in the event of any conflicting
terms or conditions between this Agreement, and any Schedule or Work Order, the
order of priority and controlling terms and conditions shall be as follows: MSA,
Schedule, Work Order.
31.9 Entire Agreement. This Agreement supersedes any and all prior negotiations,
understandings and agreements with respect hereto, and, together with the
exhibits and schedules constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof.
31.10 Counterparts. This Agreement may be executed in several counterparts, all
of which taken together shall constitute one single agreement between the
parties hereto.
31.11 Relationship of Parties. Convergys, in furnishing services to Client
hereunder, is acting as an independent contractor, and Convergys has the sole
right and obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed, all work to be performed by Convergys under this
Agreement. Convergys is not an agent of Client and has no authority to represent
Client as to any matters, except as expressly authorized in this Agreement.
31.12 Third Party Beneficiaries. This Agreement is entered into solely between,
and may be enforced only by, Convergys and Client, and shall not be deemed to
create any rights in third parties, including suppliers and subscribers of a
party, or to create any obligations of a party to any such third parties.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
The parties have executed this Agreement as of the Effective Date first set
forth above.
Convergys Information Management TeleCorp Communications, Inc.
Group Inc.
By: By:
Print Name: Xxxxxx X. Xxxxxx Print Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President
Date: Date:
Tritel Communications, Inc.
By:
Print Name: Xxxxxx X. Xxxxxxxx
Title: President
Date:
EXHIBIT A: CONFIDENTIALITY AGREEMENT
See attached document.
SCHEDULE 1
STATEMENT OF WORK
1.0 Scope of Work
Convergys shall furnish to Client Professional Services and Data Processing
Services in a service bureau environment using Atlys(R), Convergys' proprietary
wireless billing and customer care system. Services include the use of
proprietary software furnished and/or owned by Convergys, a Convergys
subcontractor or by third party vendors in accordance with and subject to the
terms and conditions set forth in this Statement of Work, the Attachments hereto
("SOW") and the Master Services Agreement ("MSA"). Capitalized terms not
otherwise defined herein shall have the meanings given to such terms in the MSA.
2.0 Services to be Performed by Convergys
2.1. Data Processing Services
Unless expressly provided in the Agreement, the Data Processing Services
described herein will be provided in consideration of the Data Processing
Charges set forth on Schedule 4, with no additional charges to Client.
2.1.1. Atlys(R) System Functionality
Convergys will make available to Client the Atlys(R)
functionality listed in Attachment 1 to this SOW.
2.1.2. [OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
2.1.3. [OMITTED*]
2.1.4. [OMITTED*]
2.1.5. [OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
2.1.6. [OMITTED*]
2.1.7. [OMITTED*]
2.1.8. [OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
2.1.9. [OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
2.1.10. [OMITTED*]
2.2. Professional Services
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities and
Exchange Commission.
2.3. Software Development Services
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
2.4. Conversion Services
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
3.0 Proprietary Materials
[OMITTED*]
4.0 Commitments
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
5.0 Client Responsibilities
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
6.0 Hours of Operation
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
7.0 Performance Targets
The parties have agreed to establish and measure the performance of
Convergys' products and services, by using the SLAs set forth in Schedule
8 to the MSA.
8.0 Charges
Charges for Convergys Professional Services and Data Processing Services
shall be in accordance with the schedule of charges detailed in Schedule
4 to the MSA.
9.0 Signature
In WITNESS WHEREOF, the parties have duly executed and delivered this Statement
of Work.
Convergys Information Management TeleCorp Communications, Inc.
Group Inc.
By: By:
----------------------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President
Date Signed: Date Signed:
-------------------------------- ------------------
Tritel Communications, Inc.
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
Date Signed:
--------------------------------
SCHEDULE 1
ATTACHMENT 1
ATLYS(R) SOW
ATLYS(R) FUNCTIONAL BASELINE
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 1
ATTACHMENT 2
ATLYS(R) SOW
ATLYS(R) STANDARD USER TRAINING
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 1
ATTACHMENT 3
CREDIT CARD INTERFACE
Upon receipt of written request from Client received no later than September 14,
2001, Convergys will provide Client with a customized interface in support of
one-time and recurring credit card payments and debit card payments, in
accordance with the specifications provided by Client on or before September 14,
2001, provided, however, that the specifications provided by Client will work
within the current functionality of the Atlys graphical user interface. This
custom interface will support authorization and settlement for one-time credit
card payments, a single pre-authorization and recurring settlement for recurring
credit card payments, and settlement for debit card payments. [OMITTED*] The
interface will be provided to Client no later than May 5, 2002, unless otherwise
mutually agreed by both parties. As used in this Attachment, the term "credit
card" includes Master Card, Visa, American Express and Discover.
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 1
ATTACHMENT 4
ATLYS TAXATION PROCESSING
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 2
IMPLEMENTATION AND CUSTOMIZATION WORK ORDER
1.0 Incorporation
This Implementation and Customization Work Order ("Work Order 001") is made
pursuant to the Master Services Agreement dated September 5, 2001 ("Agreement"
or "MSA") between Convergys Information Management Group Inc. ("Convergys") and,
TeleCorp Communications, Inc. and Tritel Communications, Inc. (collectively
"Client"). The Agreement is incorporated herein by reference and the terms and
conditions of the Agreement shall apply to all work performed under this Work
Order. Capitalized terms not otherwise defined herein shall have the meanings
given to such terms in the MSA.
2.0 Term
This Work Order is effective as of September 5, 2001, ("Effective Date") and
extends until all work has been completed and accepted by Client in accordance
with the acceptance terms as defined in the MSA Section 5.
3.0 Scope of Work
Convergys will provide Client with Professional Services associated with the
integration, testing, implementation and customization of Atlys(R) for Client.
3.1. Charges for Implementation and Customization Services shall be in
accordance with Schedule 4 of the Agreement.
3.1.1. Implementation of Release 7.0 as defined in Attachment A to
Schedule 1 for TDMA shall be included in the Implementation,
Customization and Conversion Fee set forth in Schedule 4 of
the Agreement.
3.1.2. Customization Services described in section 4.3 hereof and
defined in Attachment B shall be included in the
Implementation, Customization and Conversion Fee set forth in
Schedule 4 of the Agreement, unless otherwise provided in
Attachment B.
4.0 Services to be Performed by Convergys
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
5.0 Project Milestones
[OMITTED*]
6.0 Deliverables
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
7.0 Client Responsibilities
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
8.0 Signatures
In WITNESS WHEREOF, the parties, by their authorized representatives, have
executed this Work Order as of the date first written above.
Convergys Information Management TeleCorp Communications, Inc
Group Inc.
By: By:
-------------------------------- -------------------------------------
Print: Xxxxxx X. Xxxxxx Print: Xxxxxx X. Xxxxxxxx
Title: President Title: President
Date: Date:
------------------------------ -----------------------------------
Tritel Communications, Inc.
By:
--------------------------------
Print: Xxxxxx X. Xxxxxxxx
Title: President
Date:
------------------------------
SCHEDULE 2
ATTACHMENT A
STANDARD INTERFACES
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 2
ATTACHMENT B
CUSTOM FEATURES
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 2
ATTACHMENT C
PROJECT MILESTONES
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 2
ATTACHMENT D
REFERENCE DATA RESPONSIBILITY
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 3
CONVERSION WORK ORDER
1.0 Incorporation
This Conversion Work Order ("Work Order 002") is made pursuant to the
Master Services Agreement dated September 5, 2001, ("Agreement") between
Convergys Information Management Group Inc. ("Convergys") and TeleCorp
Communications, Inc. and Tritel Communications, Inc. (collectively
"Client"). The Agreement is incorporated herein by reference and the terms
and conditions of the Agreement shall apply to all work performed under
this Work Order. Capitalized terms not otherwise defined herein shall have
the meanings given to such terms in the MSA.
2.0 Term
This Work Order is effective as of September 5, 2001, ("Effective Date")
and shall extend until all work has been completed and accepted by
TeleCorp in accordance with the acceptance terms as defined in the MSA
Section 5.
3.0 Scope of Work
3.1. Convergys will provide Client with Professional Services for the
purpose of converting and shall convert all active subscribers at
the time of conversion in existing TeleCorp and Tritel markets from
current billing and collection systems, BSCS and RSI for TeleCorp
and HO for Tritel ("Source Systems") to Atlys(R), Convergys'
proprietary wireless billing, collection and customer care system.
Existing TeleCorp and Tritel markets are defined in Attachment A.
3.2. Charges for Conversion Services shall be included in the
Implementation, Customization and Conversion Fee set out in Schedule
4 to the Agreement.
4.0 Services to be Performed by Convergys
Convergys shall provide the Conversion Services in accordance with
Schedule 2 Attachment C - Project Milestones. Communication between the
parties regarding the Conversion Services will be managed in accordance
with the Joint Program Management Office.
4.1. [OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
5.0 Conversion Deliverables
[OMITTED*]
6.0 Conversion Project Schedule
The objective of the conversion process is to identify the data to be
converted, the process to do this and the actual conversion in order to
minimize the business impact to Client. A detailed project plan will be
jointly developed.
The planning of the conversion process parallels the implementation
process.
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
6.1. Responsibilities of Convergys
Additional Responsibilities of Convergys can be found in Attachment
C - Conversion Team Responsibilities. Schedule 2 Attachment C -
Project Milestones provides the timelines for these deliverables.
6.2. Responsibilities of the Client
Additional Responsibilities of Client can be found in Attachment C -
Conversion Team Responsibilities.
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
6.3. Responsibilities of Both Parties
Additional responsibilities of both parties can be found in
Attachment C - Conversion Team Responsibilities.
Client and Convergys will form a Joint Project Management Office,
("JPMO") which must mutually agree to project affecting changes
until the data migration is complete. The JPMO governs items such as
the migration strategy, changes to the source system data
structures, and the data mapping specifications. Changes may result
in delays and additional cost. Schedule 2 Attachment C - Project
Milestones provides the timelines for these deliverables. Neither
the JPMO nor Convergys may make any changes to the project plan that
would add cost or may delay either HO or BSCS conversion without
prior written approval of Client's Chief Information Officer.
7.0 Scope Assumptions
The fees and timeline associated with this Work Order are based on the
assumptions as outlined in Attachment B - Client Atlys Conversion
Assumption Document. Any alternative to these assumptions may entail
changes to the fee structure and/or the committed timeline.
8.0 IN WITNESS WHEREOF, the parties have duly executed and delivered this Work
Order as of the date first written above.
CONVERGYS INFORMATION TELECORP
MANAGEMENT GROUP INC. COMMUNICATIONS, INC.
By: By:
--------------------------- -----------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President
Date Signed: Date Signed:
------------------ --------------
TRITEL COMMUNICATIONS, INC.
By:
---------------------------
Name: Xxxxxx. X. Xxxxxxxx
Title: President
Date Signed:
------------------
SCHEDULE 3
ATTACHMENT A
TELECORP AND TRITEL MARKETS
TeleCorp Territory:
Market BTA Market Designator
I. From New Orleans MTA
Baton Rouge, LA 32
Lafayette-New Iberia, LA 000
Xxx Xxxxxxx, XX 000
Xxxxxxxxxx, XX 000
Xxxxx-Xxxxxxxxxx, XX 000
Xxxxxxx, XX 180
II. From Dallas-Forth Worth MTA
Portions of the Monroe, LA BTA: 000
Xxxxxx, XX
Xxxxxxxx, XX
Xxxxxxxxx, XX
III. From Houston, MTA
Beaumont, TX 34
Lake Charles, LA 238
IV. From St. Louis MTA
Cape Giradeau-Sikeston, MO 66
Xxxxxxxxxx-Xxxxxx, XX 00
Xxxxxxxx, XX 00
Xxxxxxxxx Xxxx, XX 000
Xxxxxxxxxx, XX 000
Xxxxx Xxxxxx-Xxxxxxxxx, XX 000
Xxxxxx Xxxxx, XX 000
Xxxxxx, XX-Xxxxxxxx, XX 367
Rolla, MO 000
Xxxxxxxxxxx, XX 000
Xxxx Xxxxxx, XX 470
V. From Little Rock MTA
El Dorado-Magnolia-Camden, AR 125
Fayetteville-Springdale-Rogers, AR 000
Xxxx Xxxxx, XX 000
Xxxxxxxx, XX 000
Xxx Xxxxxxx, XX 193
Jonesboro-Paragould, AR 000
Xxxxxx Xxxx, XX 000
Xxxx Xxxxx, XX 348
Russellville, AR 387
VI. From Memphis-Xxxxxxx MTA
Blytheville, AR 49
Dyersburg-Union City, TN 000
Xxxxxxx, XX 000
Xxxxxxx, XX 290
VII. From Louisville-Lexington-Evansville
MTA
Evansville, IN 135
Paducah-Xxxxxx-Mayfield, KY 339
VIII. Portions of the Puerto Rico-U.S. Virgin
Islands MTA
San Xxxx-Arecibo, Humacao 488
Mayaguez Aguadilla-Ponce 489
U.S. Virgin Islands 491
IX. From Xxxxxxxxx XXX
Xxxxxxxxx 000
Xxxxxxxx-Xxxxxxx, XX 00
Xxxx xx Xxx, XX 000
Xxxxx Xxx, XX BTA 000
Xxxxxxxxxx-Xxxxxx, XX 000
Xxxxxxx, XX 272
Manitowoc, WI 276
Sheboygan, WI 417
Portions of Marquette, MI 282
Escabana, MI 000
Xxxxxxx Xxxxx-Xxxxxxxxxx, XX 432
Portions of the La Crosse, WI-
Winona, MN 234
X. From Des Moines-Quad City, IA MTA
Fort Dodge, IA 000
Xxxxxxxx-Xxxxx Xxxxx, XX 000
Xxxxxxxxx, XX - Xxxxxx, XX 105
Dubuque, IA 000
Xxxx Xxxx, XX 000
Xxxxxxxxxx, XX 61
Clinton, IA - Sterling, IL 86
Des Moines, IA 000
Xxxxxxxx Xxxx, IA(3) 283
Xxxxx City, LA(3) 000
Xxxxxxx, XX(0) 000
Xxxxx Xxxxxx, XX (4) 70
Sioux City, IA (3) 421
Tritel Territory
Market BTA Market Designator
I. From Atlanta MTA
Xxxxxxx County, GA (1)
Xxxxxxxx County, GA (2)
Opelika-Auburn, AL 000
Xxxxxxxxxxx, XX 000
Xxxxxxxxx, XX 000
Xxxxxx, XX 000
XxXxxxxx, XX 000
Xxxx, XX 384
II. From Knoxville MTA
Knoxville, TN 232
III. From Louisville-Lexington-Evansville MTA
Xxxxxxxxxx, XX 000
Xxxxxxxxx, XX 000
Xxxxxxx Xxxxx-Xxxxxxx, XX 052
Xxxxxxxxx, XX 000
Xxxxxx, XX 000
Xxxxxxxx, XX 000
Xxxxxxxxxxxx, XX 000
XX. Xxxx Xxxxxxx-Xxxxxxx XXX
Xxxxxxxxxx Xxxxxx, XX (2)
Jackson, MS 210
Tupelo-Corinth, MS 449
Greenville-Greenwood, MS 000
Xxxxxxxx, XX 000
Xxxxxxxx-Xxxxxxxxxx, XX 000
Xxxxxxx, XX 000
Xxxxxxxxx, XX 455
V. From Nashville MTA
Nashville, TN 000
Xxxxxxxxxxx, XX-Xxxxxxxxxxxx, XX 083
Cookeville, TN 096
VI. From Birmingham MTA
Anniston, AL 017
Birmingham, AL 044
Decatur, AL 000
Xxxxxx-Xxxxxxxxxx, XX 000
Xxxxxxxx, XX 146
Gladsden, AL 000
Xxxxxxxxxx, XX 000
Xxxxxxxxxx, XX 000
Xxxxx, XX 000
Xxxxxxxxxx, XX 450
VII. From New Orleans MTA
Biloxi-Gulfport-Pascagoula, MS 000
Xxxxxxxxxxx, XX 000
Xxxxxx, XX 246
McComb-Brookhaven, MS 269
Mobile, AL 302
(1) Xxxxxx County and Xxxxxxxx County are both located within the Atlanta BTA
(B024).
(2) Montgomery County is located within the Memphis BTA (B290).
SCHEDULE 3
ATTACHMENT B
TELECORP ATLYS CONVERSION ASSUMPTION DOCUMENT
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 3
ATTACHMENT B
EXHIBIT 1
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 3
ATTACHMENT C
CONVERSION TEAM RESPONSIBILITIES
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 4
CHARGES
Capitalized terms not otherwise defined herein shall have the meanings given to
such terms in the MSA.
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 5
CHANGE CONTROL PROCESS
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 6
ATLYS PRODUCT RELEASE PROCESS
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 7
SCOPE CHANGE AND ISSUE MANAGEMENT
This document provides for a system of identifying the severity of and the
response to and resolution of problems arising from the performance of the
Services, and sets forth certain parameters for Convergys maintenance as well as
procedures for introducing and processing changes in the scope of the Services.
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 8
SERVICE LEVEL AGREEMENTS
Convergys will provide TeleCorp by the tenth (10th) business day of each month
the Reports specified in Section 9.3 of the MSA that will detail Convergys'
previous month actual performance against the performance metrics and their
related targets as detailed in this Schedule.
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 9
KEY CONVERGYS PERSONNEL
The following positions are designated as Key Convergys Personnel:
1. Program Director
2. Program Manager
3. Conversion Director
4. Conversion Manager
5. Implementation Director
6. Implementation Manager
7. Solution Test Manager
SCHEDULE 11
THIRD PARTY SOFTWARE
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 12
DISASTER RECOVERY PLAN
Document Definition
This document describes Convergys' disaster recovery approach and plan.
Plan Description
Convergys will provide a cold site disaster recover plan (the "Disaster Recovery
Plan" or "DRP") to provide for the continued Services of this Agreement after an
initial recovery period as set forth in the Disaster Recovery Plan. Convergys
will perform simulated disaster recovery testing on an annual basis. Convergys
will keep the Disaster Recovery Plan current and provide updates to Client with
each software enhancement release.
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
SCHEDULE 13
BENCHMARKING
[OMITTED*]
* This material has been omitted pursuant to a request for confidential
treatment and such material has been filed separately with the Securities
and Exchange Commission.
Schedule 14
TERMINATION ASSISTANCE
1. Introduction. Beginning on the delivery of any notice of termination by
either party, or six (6) months prior to expiration of the term of the
Agreement, regardless of the reason for such expiration or termination (except
for termination by Convergys for Client's intentional breach of its
confidentiality obligations or non-payment in accordance with the MSA),
Convergys will cooperate with Client and provide Client with the assistance
described in this Schedule 14 for the length of time denoted in Section 28.5 of
the Agreement ("Termination Assistance"). Convergys shall provide Termination
Assistance at the Professional Services Fee rate set forth in Schedule 4. The
purpose of the Termination Assistance, and Convergys' goal in providing it, is
(i) to enable Client to obtain from another vendor, or provide for itself,
services and other work to substitute for or replace those provided by
Convergys, and (ii) to minimize any adverse effect of transferring Subscribers
to a new provider or providers selected by Client.
2. Termination Transition Plan. If Client assumes primary responsibility
for billing services, Convergys will assist Client in the development of a plan
for transition of Subscribers and Client Data from Convergys to Client, which
assistance at a minimum will include preparing that portion of the transition
plan detailing Convergys' responsibilities, including schedules and resource
commitments. If Client designates a third party (the "designee") to assume
primary responsibility for the billing services, Convergys will support Client's
preparation and implementation of a transition plan by providing the designee
with reasonable information necessary to transition Subscribers and Client Data
provided that the third party provider executes a nondisclosure agreement
acceptable to Convergys agreeing to protect Convergys' Confidential Information.
3. Other Termination Assistance. If and to the extent that Client and/or a
designee (including a third party provider) assumes responsibility for billing
services for Client, Convergys will provide Termination Assistance to Client
and/or its designee. The Termination Assistance will include:
(a) Performing the specific Services and obligations listed in Schedule
28-1.
(b) Making available equipment in accordance with the MSA.
(c) Using commercially reasonably efforts to minimize or eliminate any
potential transfer fees or taxes that might be incurred as a result
of the transition.
(d) Providing Client and its designee with other information necessary
to transition Subscribers and Client Data to the new provider's
system subject to an acceptable non disclosure agreement from any
third party provider receiving such information.
(e) Providing copies of all Client Data on tape.
SCHEDULE 14-1
SPECIFIC TERMINATION ASSISTANCE SERVICES
The specific Termination Assistance to be provided by Convergys under
Schedule 14to this Agreement will include the following:
1) Pre-Migration Services and other Work
(a) Provide Client with any Client problem logs from WMS (as defined in
Schedule 7) that Client does not already have, reporting back at
least two years prior to the effective date of termination or
expiration;
(b) Freeze all discretionary Custom Development, other than
modifications necessary to address processing problems;
(c) Provide and coordinate assistance in notifying Convergys' outside
vendors of the procedures to be followed during the turnover phase;
(d) Assist Client or its designee in the analysis of the space required
for data file libraries;
(e) Provide asset listings for all leased equipment used by Convergys
primarily to perform Services for Client;
(f) Provide reasonable access to Key Personnel who were performing
Services; and
(g) Provide interim tapes of Client Data, as reasonably requested.
2) Migration Services and other Work
(a) Deliver to Client all requested Client Data files and other Client
Confidential Information;
(b) In conjunction with Client or its designee, conduct a rehearsal of
the migration prior to cutover as scheduled by Client;
(c) Deliver content listings of all requested data files to Client or
its designee;
(d) Provide reasonable assistance to Client or its designee in loading
the data files including assistance in understanding and
interpreting fields for data conversion and transfer;
(e) Provide all reasonable assistance to Client or its designee with the
movement of data from the then existing databases to the new
environment;
(f) Provide reasonable assistance to Client or its designee with the
data communications turnover; and
(g) Provide reasonable assistance to Client or its designee in the
execution of parallel testing.
3. Post-Migration Services and other Work.
Convergys shall return to Client, at Client's request, any remaining
property of Client in Convergys' possession or under Convergys' control. This
shall include any remaining reports, data, materials and other Confidential
Information of Client and its customers. At Client's request, Convergys will
erase, wipe clean or otherwise destroy any remaining copies of Client system or
data files and all other Confidential Information, and provide, at Client's
election, an affidavit affirming such action signed by an officer of Convergys.
