Exhibit 10.43
CUSTOMER SUPPORT SERVICES AGREEMENT
This Support Services Agreement (the "Agreement") is entered into by and between
Microsoft Corporation ("Microsoft"), a Washington corporation, located at Xxx
Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx and RMH Teleservices, Inc. ("Company"), a
Pennsylvania_corporation, located at 00 Xxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
(collectively, the "Parties"), and effective as of October 1, 2000 ("Effective
Date").
R E C I T A L S
WHEREAS, Company is engaged in the business of providing call center
services to commercial customers; and
WHEREAS, Microsoft desires to engage Company to provide the specific call
center services described below during the Term for MSN Internet Access upon the
terms and conditions set forth below and in the attached exhibits hereto (as
described herein);
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company and Microsoft agree as
follows:
1. DEFINITIONS.
The capitalized terms listed below shall have the following meanings when
used in this Agreement and any exhibits, attachments, and amendments.
(a) "Abandoned Call" shall mean a Call that reaches the ACD but is terminated
prior to being answered by a Support Professional.
(b) "ACD" shall mean the automatic call distribution system located at
Company's facility.
(c) "Average Speed to Answer" or "ASA" shall mean the average time before a
Call is answered by a Support Professional. The counter starts when the
Call is presented to the ACD, and does not include the main greeting time
prior to presentation to the ACD.
(d) "Call" shall mean a telephone call routed to Company for resolution
pursuant to the terms of this Agreement.
(e) "Customer" shall mean any end-user or potential end-user of a Product.
(f) "Effective Date" shall mean the date on which this Agreement becomes
effective as set forth in the first paragraph of this Agreement.
(g) "E-mail Inquiry Response Time" shall mean the time interval between the
time at which an electronic inquiry entered the Company's mailbox and the
time at which a final response resolving the matter was sent back to the
originator of the electronic inquiry.
(h) "E-mail Inquiry Support Services" shall mean the services specified herein
to be provided by Company to Customers whose electronic messages are
directed to Company via a predetermined electronic mailbox.
Microsoft Confidential 1
(i) "Handled Calls" shall mean total Calls taken by a Support Professional, as
opposed to calls resolved or terminated in the ACD.
(j) "Offered Calls" shall mean total Calls presented to the ACD and does not
include Calls that terminate prior to reaching the ACD. This is also the
sum of total Handled Calls and Abandoned Calls.
(k) "Product" shall mean the MSN Internet Access service.
(l) "Service Level Requirements" shall be those requirements set forth in
Section 2(b).
(m) "Services" shall mean the customer support services to be provided by
Company under this Agreement as specified in the applicable Exhibit A
(Customer Service Support Services A-1, Remote Account Creation Services X-
0 and Save Support A-3).
(n) "Support Professional" shall mean any individual, including, but not
limited to, employees, agents or independent contractors, approved by
Microsoft, of Company, who has any responsibility for providing any
Services in accordance with the terms of this Agreement, including, without
limitation, supervisors and other management personnel.
(o) "Talk Time" shall mean the total time from when a Handled Call was
answered by a Support Professional until the time that the Call connection
is disconnected. "Average Talk Time" or "ATT" shall mean the total Talk
Time during the applicable period divided by the total Handled Calls during
the applicable period.
(p) "Term" shall mean the duration of this Agreement pursuant to Section 7.
2. SERVICES.
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(a) General. Company agrees to provide Services to Customers on a
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nonexclusive basis in accordance with the terms and conditions of this
Agreement. The Services shall include, without limitation, responding to all
telephone and e-mail (upon the mutual approval of the parties) inquiries from
Customers, concerning the Product. Company will be responsible for maintaining
all necessary equipment, software and services necessary to provide the Services
including, without limitation, the equipment and software necessary to handle
all Customer telephone and e-mail inquires, including all costs associated
therewith. Microsoft will be responsible for the provision and maintenance of
the telecommunication equipment which directs telephone calls from Microsoft to
Company's ACD.
(b) Performance Requirements/Escalation Procedures.
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(i) Company shall use reasonable efforts and capable expertise to
resolve Customer inquiries; provided that Company shall, at a minimum, follow
all policies and procedures set forth in any training materials as described in
Section 2(j).
(ii) Unless otherwise specified on the applicable Exhibit A1-A3,
Company shall meet or exceed the following Service Level Requirements:
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
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For telephone calls, the "Service Level" will represent the percentage of calls
presented to the Company's ACD that are answered by a Support Professional
within the specified timeframe. For e-mail inquiries, the "Service Level
Requirement" will represent the percentage of inquiries answered between the
time at which an e-mail inquiry entered the Company's mailbox and the time at
which a reasonable response resolving the matter was sent back to the originator
of the e-mail inquiry. Company's compliance with the Service Level Requirements
will be calculated on a monthly basis using the average of all of the days of
the month.
In any calendar month when Company fails to meet a particular Service Level
Requirement for a given Service (i.e. telephone call or e-mail inquiry) the
following Performance Adjustment Deduction, unless otherwise specified on the
applicable Exhibit A1-A3, will be credited against that particular month's
applicable Fees for that Service:
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
In the event, however, that the actual call volume received for a given month
exceeds 110% of the forecasted amount and Company has achieved the forecasted
number of Handled Calls as Microsoft has forecasted for that month, Company will
be relieved of all service level penalties.
Under no circumstances shall Company implement a "forced busy signal" or in any
other way block call or e-mail traffic without Microsoft's express written
consent. For any day during which unauthorized busy signals or blocking are
implemented, that day's performance will be counted as zero percent (0 %) for
the purposes of calculating a deduction in Service Fees.
(iii) Customer Surveys. Unless otherwise specified on the applicable
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Exhibit A1-A3, Company shall ensure that at least [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] of the Customers surveyed rate the service provided by
Company "Very Satisfied" (the "Single Quality Service Requirement") and at least
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] surveyed rate the service
either "Very Satisfied" or "Somewhat Satisfied" (the "Combined Quality Service
Requirement") as measured in "Quality Service Monitor Surveys." Such surveys may
be conducted by Microsoft or a third party survey vendor selected by Microsoft
("Surveyor") on a quarterly basis, or more or less frequently as reasonably
determined by Microsoft. Company shall cooperate with Surveyor in providing the
names, e-mail addresses and phone numbers of all Customers who have contacted
Company for support during the survey period, and this data shall be provided
within twenty-four (24) hours from the time of the Customer contacting Company.
The Surveyor, at Microsoft's expense, will select the respondents, call back
after service has been delivered, administer the survey,
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calculate the results and report the results to Microsoft and Company within a
mutually agreed upon time frame. In the event that Company's actual performance
is less than the Quality Service Requirement, a deduction will be credited
against the total amount of the per minute rate applicable for that particular
month (or other time period as may be determined by Microsoft) as specified in
Section 4(a). In the event that Company's actual performance is greater than the
Quality Service Requirement, a positive adjustment will be made to the amount of
the per minute rate applicable for that particular month (or other time period
as may be determined by Microsoft) as specified in Section 4(a).
(iv) Escalation Procedures. In the event Company is unable to resolve
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an inquiry after applying reasonable efforts and capable technical expertise,
Company shall escalate the problem to Microsoft as described in the training
materials provided by Microsoft, which escalation shall in no event occur later
than twenty-four(24) hours after the time of the initial inquiry.
(c) Equipment. At all times during the Term, Company will maintain and
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use in providing the Services, at its own expense, an ACD which at a minimum
shall include automated functionality including, a voice response unit. Company
shall provide, at its own expense, all equipment, services and software
necessary to provide the Services including, without limitation, internet
access, telephones, phone lines, headsets, equipment and software needed to
operate the ACD, the tools provided by Microsoft (e.g. CSS) and personal
computers as specified on Exhibit D.
(d) Backup. Company recognizes the need to provide assistance to Customers
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in the event of any disruption in service from any cause, including but not
limited to incapacitating damage to equipment or facilities required in the
performance of the Services, caused by fire, civil disturbance, strikes, acts of
nature or similar situations. In the event Company's facility is incapacitated
for any reason, Company will follow Company's own policies and procedures,
including, but not limited to, its backup and disaster recovery procedures which
are attached as Exhibit C and shall be subject to the approval of Microsoft, in
order to resume providing Services according to the terms of this Agreement.
Microsoft shall have the right to suspend this agreement until services can be
resumed if Company is not able to resume services within 24 hours after the
disruption of service occurred.
(e) Reporting.* Unless otherwise specified on the applicable Exhibit
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A1-A3, Company shall provide Microsoft with the data and reports as specified in
this section in a format designated by Microsoft.
(i) Telephone Services. Company will provide Microsoft the following
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ACD statistics on a daily, weekly and monthly basis (as applicable):
. Service Level on Company's ACD
. Offered Calls to Company's ACD
. Calls resolved or terminated in Company's ACD
. Handled Calls on Company's ACD
. Average Speed to Answer on Company's ACD
. Average Talk Time on Company's ACD
. Number of Abandoned Calls on Company's ACD
. Percentage of Abandoned Calls to total Calls on Company's ACD
. Call incident type (at least ninety percent (90%) of Handled Calls
must be coded by the Support Professional)
. Percentage of calls logged in the Call Tracking Tool provided or
approved by Microsoft
(ii) E-mail Services. Unless otherwise specified on the applicable
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Exhibit A1-A3, Company will
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provide Microsoft the following statistics on a daily, weekly and monthly basis:
. Total number of e-mail inquiries received segregated by source
. Total number of e-mail inquiries handled/completed.
. Total number and percentage resolved within twenty-four hours of
receipt.
. Average E-mail Inquiry Response Time.
. Aging report on inquiries not resolved within twenty-four hours.
. E-mail Inquiry incident types (including cancellations).
. Explanation to Microsoft when less than ninety percent (90%) of
inquiries are resolved within twenty-four hours and for each inquiry
not resolved within seventy-two hours.
. Weekly executive summary report of center e-mail inquiry performance
* Microsoft and Company mutually agree that reporting requirements will be met
on a reasonable efforts basis during any disruptions due to Microsoft provided
tools and/or systems and, for reports tied to the CSS tool, during the CSS pilot
phase.
(iii) General Information. Unless otherwise specified on the
applicable Exhibit A1-A3, Company will provide Microsoft the following
statistics:
. Weekly report of issues escalated and aging inquiries, as well as top
ten issues.
. Daily exception report when service level targets are not met
. Weekly, monthly, and cumulative listing of the ten (10) most
frequently raised incident types.
(iv) Staffing. Company shall provide a monthly staffing report that
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identifies new hires, attrition, training hours, test results from training, a
mutually approved measurement of the Support Professionals' ability to resolve
the ten most common support issues. Company will provide a breakdown by tenure
of attrition and the reason for the loss of the employee (i.e. transfer,
promotion, left Company, etc.).
(v) Monday through Thursday daily statistics will be delivered by 7
a.m. Pacific Standard Time the next morning. Friday through Sunday daily
reports and weekly reports will be delivered by 7 a.m. Pacific Standard Time
the next Monday. Monthly reports will be issued the next business day from the
end of each month. Daily reports will include month-to-date and quarter-to-date
totals for all categories.
(vi) Company shall provide Microsoft, in the format requested by
Microsoft, with monthly business summaries, quarterly business review, weekly
executive summary of center and program performance and daily exception reports
when service level targets are not met.
(f) Onsite Inspection. Upon twenty-four (24) hours prior notice, Microsoft
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has the right to make onsite visits to any facility from which Company provides
the Services, at Microsoft's discretion, for the purpose of confirming
compliance with the terms of this Agreement. In connection with said visits,
Company will provide to Microsoft, at no charge, as and when required by
Microsoft, one office at each facility equipped with the same standard office
equipment as is provided to management personnel of Company at such facility.
(g) Subcontracting. Company will not subcontract any of its obligations or
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sublicense any of its rights hereunder without the prior written approval of
Microsoft except to RMH Teleservices International, Inc., a wholly owned
subsidiary of the Company.
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(h) Confidentiality of Service Requests/Incidents. Except as expressly
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provided herein, nothing in this Agreement shall give Company the right to
modify, reproduce, distribute and/or publish any information regarding the
Services including, without limitation, inquiries from Customers, Customer
information obtained by Company, statistics regarding customer incidents, or
Company's resolution of incidents, all of which shall be considered confidential
information under this Agreement, as further discussed in Section 9.
(i) Personnel.
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(i) Company shall be responsible for determining the number of
Support Professionals to be employed by Company for the purpose of handling all
Company obligations under the Agreement. Company shall be solely responsible for
all compensation of any nature accruing to the Support Professionals for
Services performed by the Support Professionals. Company shall collaborate with
Microsoft in the definition of the hiring profile and job skill set for Support
Professionals. Company shall ensure that all Support Professionals have
reference checks completed prior to providing services hereunder. Company shall
provide Microsoft with complete information regarding its hiring practices,
including but not limited to information regarding hiring profiles, experience
base and skills of trainers. All Support Professionals shall be competent in
personal computer use, and have the ability to support on-line applications as
set forth in the Microsoft provided Hiring Profile as updated from time to time
and provided to the Company.
(ii) If the volume of inquiries warrants and the parties mutually
agree, then Company shall provide one person to serve as Business Analyst for
the Products (or individual products as the parties may mutually agree).
(j) Company-Provided Training.
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(i) Company is responsible for implementing training procedures for
all Support Professionals to ensure that such personnel comply with the
requirements of this Agreement. Specifically, Company shall ensure that all
Support Professionals undertake and successfully complete all applicable
training programs for the Product provided or required by Microsoft, from time
to time, as Microsoft in its sole discretion deems necessary to enable Company
to provide the Services outlined in this Agreement including, without
limitation, training on client server and Web server environments. At all times
during the Term, Company shall ensure that each Support Professional is capable
of responding to Customer inquiries regarding the Product for which Company is
currently providing Services. All training materials, courses, policies and
procedures to be implemented by Company with regard to the Services (including
the expected length of each training course) must be approved by Microsoft in
writing prior to the start of the training course. Company will designate at
least one ongoing trainer for the Services. Company shall develop both pre- and
post-training tests to measure training effectiveness, and it will use
reasonable efforts to ensure that, on an ongoing basis, all Support
Professionals can solve the ten most common support issues of the previous month
for the Product in a manner consistent with Microsoft practices.
(ii) Company will assign trainers to the Product who perform well in
a high-change environment, who demonstrate a passion for representing Microsoft
and the Product, and who achieve quality results through performance-based
teaching methods. Company will provide classrooms with systems and software
suited for hands-on learning and include activity-based learning in all
training. Company will certify a pool of trainers on the IMPACT Service Delivery
programs.
(k) Microsoft Provided Training. Microsoft will provide "train-the-
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trainer" training at no charge to Company. Such training includes but is not
limited to any scripts, product information,
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communications collateral, procedures, policies, support solutions, job aids
and/or specific guidelines by Microsoft for handling calls. Company will utilize
Supportweb as the single- source of information for the Product. Company will
educate and promote use of Supportweb. Training shall include a
Microsoft-conducted training session for Company trainers to be conducted at a
mutually agreed upon location. Company acknowledges and agrees that as a result
of Microsoft providing "train-the- trainer" training and materials, Company
shall be responsible for internal and ongoing training, per Microsoft's Training
Implementation specification, of the Support Professionals after receiving the
"train-the-trainer" training and materials. Company is granted a non-exclusive,
personal, non-transferable, non- assignable, royalty-free license to reproduce
for the Term such "train-the- trainer" materials for its internal use only, to
provide the internal and ongoing training required under the terms of this
Agreement. Microsoft's training materials may not be reproduced, adapted,
distributed, used, or made available to the public or any third party, except as
expressly licensed in this Agreement or otherwise in writing by Microsoft.
Company will ensure that all materials provided to any Support Professional
pursuant to this Agreement will be returned to Company upon termination of such
person's relationship with Company. The license grant provided for in this
section shall expire upon expiration or termination of this Agreement. Upon
expiration or termination of this Agreement, Company shall immediately return to
Microsoft, or, at Microsoft's direction, destroy, any and all materials provided
to Company by Microsoft under this Agreement, including all copies thereof.
(l) Training Quality Review and Monitoring. Company trainers and a small
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representative sample of Support Professionals shall provide input in the
definition, design and development of training materials and courses developed
by Microsoft, and of rollout plans for new training required by Microsoft, if
requested by Microsoft. Company shall provide Microsoft with information
regarding the effectiveness of the training materials and corresponding Support
Professional performance test data on a quarterly basis, as well as information
regarding planned and actual training programs conducted by Company. This
information includes but is not limited to: Support Professional skill profile
information, course evaluations, as well as knowledge and performance testing
data. Company will also provide Microsoft shall have the right to conduct random
quality checks on training materials and courses implemented by Company.
Microsoft shall have the right, upon reasonable notice, to audit Company's
training programs and training attendance records and quality statistics for
Support Professionals to ensure compliance with the training requirements in
this Agreement. Such audit rights shall include, without limitation, onsite
audits at facility where Company is providing the Services.
(m) LAN Security. Company shall comply with the terms of Exhibit B,
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Security Obligation
(n) Changes in Service.
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(i) Microsoft may request reasonable changes in the scope or manner
of performance of the Services being performed by Company hereunder. All change
requests will be submitted in writing to the Company authorized representative.
Upon receipt of each such request from Microsoft ("Change Request"), Company
will evaluate the impact that the Change Request will have on the resources
required by Company to perform the Services and the amounts then payable to
Company hereunder. Company will give written notice to Microsoft as to the
results of such evaluation ("Change Proposal") as soon as reasonably possible
following receipt of that Change Request.
(ii) To the extent that such changes set forth in the Change Request
can reasonably be performed within the Service Level Requirements then
established for the Services without a material increase (as reasonably agreed
to by Company) in the Company resources then being utilized, there will be no
adjustments to the amounts payable to Company hereunder, and Company will begin
performing the Services in accordance with the Change Request within thirty (30)
days of Microsoft's submission of such Change Request.
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(iii) If the requested changes set forth in the Change Request cannot
be performed within the Service Level Requirements then-established for the
Services without a material increase in Company resources then being utilized,
the parties agree to negotiate in good faith (and document in writing) a
mutually agreeable and fair adjustment to the amounts to be paid to Company
hereunder for the modified Services. Company shall begin performing the
requested changes after the parties have agreed on the additional amounts to be
paid to Company.
(o) Insurance.
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(i) Prior to the date on which this Agreement is executed and
throughout the entire performance of Services by Company, Company shall procure
and maintain insurance reasonably adequate to cover any and all liability that
Company may incur as a result of the performance of Services under this
Agreement. Without limiting the foregoing, Company agrees that such insurance
shall include the following lines of coverage (with minimum limits of [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per occurrence) to the extent the
Agreement creates exposures generally covered by these insurance policies:
Commercial General Liability (Occurrence Form), Automobile Liability, Workers
Compensation (statutory limits), and Employers Liability and Company shall
maintain Professional Liability; and Errors & Omissions Liability Insurance with
policy limits of not less than [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] Dollars [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] for each
claim with a deductible of not more than [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] Dollars [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] Such insurance shall include coverage for infringement of any
proprietary right of any third party, including without limitation copyright,
trade secret, and trademark infringement as related to Company's performance
under this Agreement. The insurance retroactive coverage date will be no later
than the Effective Date. Company shall maintain an extended reporting period
providing that claims first made and reported to the insurance company within
two (2) years after Microsoft's final payment for the Services will be deemed to
have been made during the policy period.
(ii) Upon request, Company shall deliver to Microsoft proof of such
coverage. In the event that Company's proof evidences coverage which Microsoft
reasonably determines to be less than that required to meet Company's
obligations created by this Agreement, then Company agrees that it shall
promptly acquire such coverage and notify Microsoft in writing thereof.
(p) Employee Performance. Company may assign, reassign and substitute
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personnel, including, but not limited to, any Support Professional, at any time
and may provide the same or similar services and materials to other customers
upon prior written notice to Microsoft. Company shall allocate its resources in
such a manner that Microsoft shall receive sufficient quantitative and
qualitative access to Company resources to ensure that all Services required or
desired by Microsoft are provided; provided that Company shall use its
reasonable efforts to maintain the most experienced employees on the Product
account and shall provide employees assigned to the Product account with a
career path that encourages such employees to remain assigned to the Product
account. Microsoft shall have the right to require that any Support
Professional be replaced, in Microsoft's sole discretion, so long as Microsoft
provides written notice to Company allowing Company a reasonable period of time,
if appropriate under the circumstances, to substitute other appropriate
personnel.
(q) Performance Reviews. Company and Microsoft agree that (i) on a monthly
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basis, Microsoft shall make commercially reasonable efforts to provide Company
with a written status report of Company's performance and activities under the
Agreement for the preceding month, and Company shall make commercially
reasonable efforts to provide Microsoft with a written status report on
Company's performance and efforts under the Agreement for the preceding month,
and (ii) at least once every six (6) months, the Parties shall meet in a
mutually agreed upon location for a face-to-face meeting during which time the
Parties shall present to each other relevant information, statistics and other
feedback regarding the Parties' performance and activities during the preceding
six (6) month period. Each party shall be
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responsible for all costs incurred by such party in connection with the
foregoing meetings. Nothing in this paragraph shall prevent more frequent
reviews being performed by either party.
(r) Forecasting. Microsoft will provide Company with a rolling sixty (60)
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day forecast of Call volumes and average Talk Time, such forecast may be updated
no later than 30 thirty days prior to the first day of the applicable month. If
Microsoft does not provide a forecast for any month then the forecast for the
most recent preceding month shall apply.
Company acknowledges that Microsoft is not guaranteeing this volume, either
stated or implied, and Company further acknowledges that it possesses the
necessary tools, systems and expertise to properly forecast for the purpose of
ensuring that Service Level Requirements are met. In no way is this section to
be construed as a guarantee of volume to Company. Microsoft and Company will
agree on forecasted Call volumes a minimum of 30 days prior to the first day of
the following month.
(s) Facilities. Company will use its best efforts to provide all Services
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at the facilities specified within the applicable Exhibit A1-A3 throughout the
Term.
(t) Tools. Company will ensure that each Support Professional shall have
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access to all Microsoft provided tools and systems and any tools and systems
that are deemed appropriate by Company in addition to those provided by
Microsoft. Company will not modify or replace any tool or system provided by
Microsoft unless directed to do so in writing by Microsoft.
3. OWNERSHIP AND LICENSE GRANTS.
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(a) Microsoft Intellectual Property Rights. Microsoft and its suppliers
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own, and will continue to own, all right, title and interest in and to any
software, databases, and other works (including without limitation any fixes,
patches, files, updates and portions thereof, in any form) that it provides to
Company during the Term, and any enhancements to any of the foregoing. All files
so provided shall be used by Company in accordance with the terms of this
Agreement. Nothing herein shall be construed to authorize Company to modify or
make derivative works of any Microsoft proprietary material provided to Company
hereunder, except as may be specified otherwise in this Agreement. No
proprietary material of Microsoft or its suppliers may be reproduced, adapted,
distributed, used, or made available to the public or any third party, except as
expressly licensed in this Agreement or otherwise in writing by Microsoft.
(b) Customer Information. Company acknowledges and agrees that the
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information acquired by Company in connection with the provision of Services
pursuant to this Agreement, including, without limitation, customer and prospect
information, customer information, sales information, and Microsoft customer
lists and updates (including customer names, addresses and telephone numbers)
(collectively, "Customer Information") shall be considered proprietary
information of Microsoft and all right, title and interest in the Customer
Information is owned by Microsoft. Company shall use such Customer Information
only as necessary to perform the Services in accordance with this Agreement and
shall maintain such Customer Information in strict confidence in accordance with
the provisions of Section 9 hereof. Upon request from Microsoft, Company shall
provide Microsoft with all Customer Information in Company's possession. Upon
termination or expiration of this Agreement, Company shall within ten (10) days
thereafter, at Microsoft's sole discretion either (i) provide Microsoft with all
documents and materials (including any and all copies) containing Customer
Information, together with all other materials and property of Microsoft, which
are in its possession or under its control or (ii) destroy all such specified
documents and materials (including any and all copies in any and all formats)
and provide Microsoft with a certificate of destruction signed by an officer of
Company.
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(c) Use of Microsoft Name. This Agreement does not grant to Company any
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right, title, interest, or license in or to any of Microsoft's names, word
marks, logos, logotypes, trade dress, designs, or other trademarks.
4. PAYMENTS.
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(a) (i) Call Fees: Microsoft will pay to Company for Calls as specified in
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the applicable Exhibit A1-A3, an amount equal to the total Talk Time for all
Calls received by Company during the applicable month multiplied by the rate
applicable to the Average Talk Time and Quality Score for the applicable month
as set forth in the matrix below or as otherwise provided for in the applicable
Exhibit A1-A3.
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
(ii) E-mail Fees. Microsoft will pay to Company, as specified in
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Section 4(c), an amount to be mutually approved by the parties in writing for
the processing of e-mail inquiries.
(iii) Adjustments. The foregoing fees are subject to adjustments,
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deductions or credits to such amounts as provided for in this Agreement.
(b) Taxes.
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(i) The amounts to be paid by Microsoft to Company herein do not
include any foreign, U.S. federal, state, local, municipal or other governmental
taxes, duties, levies, fees, excises or tariffs, arising as a result of or in
connection with the transactions contemplated under this Agreement including,
without limitation, (A) any state or local sales or use taxes now or hereafter
imposed on the provision of goods and services to Microsoft by Company under
this Agreement, (B) taxes imposed or based on or with respect to or measured by
any net or gross income or receipts of Company, (C) any franchise taxes, taxes
on doing business, gross receipts taxes or capital stock taxes (including any
minimum taxes and taxes measured by any item of tax preference), (D) any taxes
imposed or assessed after the date upon which this Agreement is terminated, (E)
taxes based upon or imposed with reference to Company's real and/or personal
property ownership and (F) any taxes similar to or in the nature of those taxes
described in (A), (B), (C), (D) or (E) above, now or hereafter imposed on
Company (or any third parties with which Company is permitted to enter into
agreements relating to its undertakings hereunder) (all such amounts,
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together with any penalties, interest or any additions thereto, collectively
"Taxes"). Microsoft is not liable for any Taxes incurred in connection with or
related to the sale of goods and services under this Agreement, and all such
Taxes shall be the financial responsibility of Company, provided that Microsoft
shall pay to Company Collected Taxes in accordance with subsection (ii) below.
Company agrees to indemnify, defend and hold Microsoft harmless from any Taxes
(other than Collected Taxes) or claims, causes of action, costs (including,
without limitation, reasonable attorneys' fees) and any other liabilities of any
nature whatsoever related to such Taxes.
(ii) Any sales or use taxes described in (i)(A) above that (A) are
owed by Microsoft solely as a result of entering into this Agreement, the
provision of services by Company under this Agreement, and the payment of the
fees hereunder, (B) are required to be collected from Microsoft by Company under
applicable law, and (C) are based solely upon the amounts payable under this
Agreement (such taxes the "Collected Taxes"), shall be stated separately as
applicable on Company's invoices and shall be remitted by Microsoft to Company,
and as required Company shall remit to Microsoft official tax receipts
indicating that such Collected Taxes have been paid by Company. Microsoft may
provide to Company an exemption certificate acceptable to the relevant taxing
authority (including without limitation a resale certificate) in which case
Company shall not collect the taxes covered by such certificate. Company agrees
to take such steps as are reasonably requested by Microsoft to minimize such
Collected Taxes in accordance with all relevant laws and to cooperate with and
assist Microsoft, at Microsoft's request and cost, in challenging the validity
of any Collected Taxes or taxes otherwise paid by Microsoft. Company shall
indemnify and hold Microsoft harmless from any Collected Taxes, penalties,
interest, or additions to tax arising from amounts paid by Microsoft to Company
under this Agreement, that are asserted or assessed against Microsoft to the
extent such amounts relate to amounts that have already been paid to or
collected by Company from Microsoft under this section. If any taxing authority
refunds any tax to Company which Microsoft originally paid to Company, or
Company otherwise becomes aware that any tax was incorrectly and/or erroneously
collected from Microsoft, or Company otherwise receives an economic benefit
(such as an audit offset) as the result of incorrectly and/or erroneously
receiving Collected Taxes from Microsoft, then Company shall promptly remit to
Microsoft an amount equal to such refund, incorrect collection or tax benefit as
the case may be.
(iii) If taxes are required to be withheld on any amounts otherwise
to be paid by Microsoft to Company, Microsoft will deduct such taxes from the
amount otherwise owed and pay them to the appropriate taxing authority. At
Company's written request and expense, Microsoft will use reasonable efforts to
cooperate with and assist Company in obtaining tax certificates or other
appropriate documentation evidencing such payment, provided, however, that the
responsibility for such documentation shall remain with Company.
(iv) This tax section shall govern the treatment of all taxes
arising as a result of or in connection with this Agreement notwithstanding any
other section of this Agreement.
(c) Invoices. Payment terms are net [REDACTED DUE TO REQUEST FOR
--------
CONFIDENTIAL TREATMENT] days after receipt of a valid invoice. A valid invoice
shall: (i) be printed on official Company letterhead; (ii) be in hard copy; and
(iii) include backup documentation reasonably acceptable to Microsoft that
reconciles the amount(s) summarized in the invoice. Company shall submit each
invoice to Microsoft no later than [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] days after the last day of the applicable calendar month. Failure by
Company to submit any invoices as required herein for a period in excess of
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] days shall, at Microsoft's
option, relieve Microsoft of its obligation to pay for said invoices. In
addition, Company shall provide an estimate of charges for the month in
accordance with the dates outlined in conjunction with Microsoft's fiscal
calendar. If Microsoft and Company disagree on the amount indicated as due in an
invoice, then Microsoft will pay all undisputed portions of the invoice in
accordance with this Section (c) and will provide Company with written notice of
the disputed amount within [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
days of Microsoft's receipt of the applicable invoice and a representative from
each of Company and Microsoft shall meet within [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] days of such written notice and shall negotiate
Microsoft Confidential 11
in good faith to resolve such dispute within five (5) days. Any resolution of
such dispute shall not preclude Microsoft from performing an audit as specified
in Section 11. Payment by Microsoft of any invoices furnished pursuant to this
Agreement shall not preclude Microsoft from questioning the correctness thereof
at any time, up to one (1) year after receipt of the applicable invoice, and in
the event that any mistake is discovered in any such invoice, and Company is
apprised of it, Company shall immediately rectify the mistake.
5. WARRANTIES AND LIMITATION OF LIABILITY.
--------------------------------------
(a) Warranties
----------
(i) Company warrants that:
(A) It possesses all necessary authority to enter into this
Agreement, and that by so doing it does not violate any other agreements to
which it is a party;
(B) The Services it will provide shall conform in all material
respects with all requirements set forth in this Agreement including,
without limitation, those Service requirements set forth in Exhibit A;
(C) The Services will be performed by Company's employees or
independent contractors, approved by Microsoft, of Company who have signed
confidentiality agreements with Company that require such parties to comply
with confidentiality obligations substantially similar to those imposed on
Company by this Agreement, including, but not limited to, Section 9 of this
Agreement;
(D) In providing Services to Customers, Company shall make no
representations to Customers or any other party or undertake any
obligations on behalf of Microsoft (or any of its affiliates) concerning
the Product beyond those provided to Company by Microsoft in advance in
writing. In providing the Services, Company, including all Support
Professionals, shall conform to and comply with all applicable laws and
government rules and regulations. Company assumes all responsibility for
providing to the Support Professionals any training that may be required to
ensure compliance with such laws; and
(E) Any and all materials Company publishes as part of its
Services under this Agreement do not to the best of its knowledge and will
not infringe any intellectual property or other proprietary rights owned by
Microsoft, its suppliers or affiliates, or any third party, including, but
not limited to, any copyright, patent, trademark or trade secret rights.
(F) Company represents and warrants that (i) any software,
hardware or firmware provided by Company to Microsoft or used by Company in
connection with the services provided by Company to Microsoft under this
Agreement, accurately manipulate, process, compare, display and calculate
date or time data from, into, and between the twentieth and twenty-first
centuries, including leap years; and (ii) the information technology,
financial, operational, communication and other systems and processes used
by Company, its subcontractors, agents, and other third parties in
connection with Company's business and/or relationship with Microsoft shall
not be interrupted or adversely affected by the manipulation, processing,
comparison, display or calculation of dates from, into and between the
twentieth and twenty-first centuries, including leap years. Additionally,
Company agrees to work with Microsoft and provide all necessary information
and resources, including but not limited to consulting resources, in a
prompt manner should Microsoft have any inquires regarding the Year
Microsoft Confidential 12
2000 readiness of Company or any of the information or technology that is
the subject of this Section.
(ii) Microsoft warrants that:
(A) it possesses all necessary authority to enter into this
Agreement, and that by so doing it does not violate any other agreements to
which it is a party;
(B) to the best of its knowledge, all information supplied by
Microsoft to Company shall be accurate and complete; and
(C) any and all materials provided to Company by Microsoft do
not to the best of its knowledge and will not infringe any intellectual
property or other proprietary rights owned by any third party, including
but not limited to any copyright, patent, trademark or trade secret rights.
(b) THIS SECTION 5 CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE
BY EITHER PARTY. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY
EXCLUDED AND DECLINED. EACH PARTY DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR
NON-INFRINGEMENT, WHETHER AS TO THE SERVICES OR ANY DELIVERABLES.
(c) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR
RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE
LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS SECTION 5(c) SHALL NOT APPLY TO EITHER PARTY'S (A) ABILITY TO OBTAIN
INJUNCTIVE OR OTHER EQUITABLE RELIEF; (B) CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 9; AND (C) THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.
6. INDEMNIFICATION.
---------------
(a) Company General Indemnification. Company agrees to indemnify, defend,
--------------------------------
and hold Microsoft and its holding companies, affiliates, successors, officers,
directors and employees harmless from and against any and all third party
claims, actions, causes of action, demands, costs, liabilities, expenses, and
damages (including reasonable attorneys' fees and expenses) arising out of or in
connection with: (i) Company's breach of any provision of this Agreement,
including the representations and warranties set forth in Section 5 above; (ii)
any negligent, reckless or willful act or omission of Company or its employees
and temporary employees, independent contractors or agents in connection with
the Services provided under this Agreement; (iii) any obligation or liability to
employ or assume the obligations to or liabilities of any Company employee that
may arise as a result of the transfer or termination of such Company employees
(regular or temporary) and/or any act or omission of Company relating to such
transfer or termination; or (iv) any claim that any materials Company publishes
as part of its Services under this Agreement infringe any intellectual property
or other proprietary rights owned by any third party, including, but not limited
to, any copyright, patent, trademark or trade secret rights.
(b) Microsoft General Indemnification. Microsoft agrees to indemnify,
--------------------------------
defend, and hold Company and its holding companies, affiliates, successors,
officers, directors and employees harmless from and against any and all third
party claims, actions, causes of action, demands, costs, liabilities,
Microsoft Confidential 13
expenses, and damages (including reasonable attorneys' fees and expenses)
arising solely out of or in connection with: (i) Microsoft's breach of any
provision of this Agreement, including the representations and warranties set
forth in Section 5 above, and (ii) any materials or products provided by
Microsoft to Company for use in providing the Services under this Agreement,
provided that Company has used such materials strictly in accordance with any
and all instructions provided by Microsoft.
(c) Indemnification Process. If any action shall be brought against
------------------------
either party (the "Claimant") in respect to which indemnity may be sought from
the other party (the "Indemnifying Party") pursuant to the provisions of this
Section 6, the Claimant shall promptly notify the Indemnifying Party in writing,
specifying the nature of the action and the total monetary amount sought or
other such relief as is sought therein. The Claimant shall cooperate with the
Indemnifying Party at the Indemnifying Party's expense in all reasonable
respects in connection with the defense of any such action. The Indemnifying
Party may upon written notice to Claimant undertake to conduct all proceedings
or negotiations in connection therewith, assume the defense thereof, and if it
so undertakes, it shall also undertake all other required steps or proceedings
to settle or defend any such action, including the employment of counsel which
shall be satisfactory to Claimant, and payment of all expenses. Claimant shall
have the right to employ separate counsel and participate in the defense. The
Indemnifying Party shall reimburse Claimant upon demand for any payments made or
loss suffered by it at any time after the date of tender, based upon the
judgment of any court of competent jurisdiction or pursuant to a bona fide
compromise or settlement of claims, demands, or actions, in respect to any
damages to which the foregoing relates.
7. Term, Termination and Discontinuation of Services.
--------------------------------------------------
(a) Term. This Agreement shall commence the Effective Date of this
----
Agreement and shall continue for a period of one 1) year ("Initial Term"),
unless earlier terminated by either party as provided in this Agreement.
(b) Renewal.
-------
(i) If Company is not in material default under the terms of this
Agreement, and provided Company is meeting its Performance Requirements (as
defined in Section 8(a) below) at the end of the Initial Term or any
Renewal Term (as defined below), then Microsoft may elect to renew this
Agreement for an additional one (1) year term ("Renewal Term") with
respect to Company's performance of Services by giving Company notice in
writing not less than ninety (90) days before the date of expiration of the
then-current term hereof.
(ii) Any renewal pursuant to this Section shall be on the same terms
and conditions contained in this Agreement save and except that the rates
of the fees payable by Microsoft to Company pursuant to the applicable
Exhibits A1-A3 (the "Service Fees") for the Renewal Term shall be
established by mutual agreement of the parties. In the event that the
parties have not agreed on the rates of the Service Fees for any Renewal
Term when the Renewal Term begins, Service Fee rates agreed to subsequently
shall be applied retroactively to all Services performed during the
applicable Renewal Term. If, within 60 days of the commencement of the
Renewal Term the parties have not agreed on Service Fee rates for the
Renewal Term, the Service Fee rates applicable during the immediately
preceding term (i.e., the Initial Term or preceding Renewal Term, as
appropriate) shall apply retroactively to all Services performed during the
then-current Renewal Term and for the remainder thereof, and either party
shall have the right to terminate the Agreement on sixty (60) days prior
written notice.
(c) Termination by Microsoft. In addition, Microsoft may terminate this
------------------------
Agreement as follows:
Microsoft Confidential 14
(i) For Failure to Meet Performance Requirements. Microsoft may
--------------------------------------------
terminate this Agreement pursuant to the provisions of Section 8 for
Company's failure to satisfy the Performance Requirements.
(ii) For Convenience. Microsoft may terminate this Agreement for
---------------
convenience (for any or no reason) by giving Company sixty (60) days prior
written notice.
(iii) For Breach. In the event Company materially breaches any
----------
provision of this Agreement other than failure to meet the Performance
Requirements (breach of which is addressed in Section 8), Microsoft may
terminate this Agreement upon sixty (60) days prior written notice which
notice shall specify the breach; provided such breach has not been
corrected during such sixty (60) day notice period.
(d) Immediate Termination by Either Party. This Agreement may be
-------------------------------------
terminated immediately by either party in the event that:
(i) The other party is in material breach of Section 9; or
(ii) The other party becomes insolvent or makes any assignment for the
benefit of creditors or similar transfer evidencing insolvency; or suffers
or permits the commencement of any form of insolvency or receivership
proceeding; or has any petition under any bankruptcy law filed against it,
which petition is not dismissed within sixty (60) days of such filing; or
has a trustee or receiver appointed for its business or assets or any part
thereof.
(e) Termination by Company for Breach. In the event Microsoft materially
---------------------------------
breaches any provision of this Agreement, Company may terminate this Agreement
upon sixty (60) days prior written notice provided such breach is not corrected
during the sixty (60) day notice period.
(f) Other Remedies. All remedies set forth in this Section 7 shall be
--------------
in addition to and not in lieu of all other remedies available under this
Agreement, at law or in equity, subject to Section 4(b).
(g) Effect of Termination. In the event of termination or expiration of
---------------------
this Agreement for any reason each and every clause which by its nature is
intended to survive the termination of this Agreement including, without
limitation, Sections 1, 3, 5, 6, 7(g), 9, 10, 11 and 12 shall survive
termination. Upon termination both parties shall, upon written request, return
or certify destruction of Confidential Information of the other party. Neither
party shall be liable to the other for damages of any sort resulting solely from
terminating this Agreement in accordance with its terms.
(h) Transition. Upon the expiration or earlier termination of this
----------
Agreement, Company shall cooperate with Microsoft to assist in the orderly
transition of Services to Microsoft, or as Microsoft may direct, in a
professional manner, with no disruption to the Services.
8. Default in Performance Requirements and Remedies.
-------------------------------------------------
(a) In the event there is a failure by Company to meet any of the
performance requirements for one or more of the Service Level Areas (a "Service
Level Area" is either customer support telephone calls or customer support
e-mail inquiries) and customer satisfaction service requirements as specified in
Section 2(b) (collectively, the "Performance Requirements") for the monthly
measurement period, Company shall within five (5) business days of such failure
provide Microsoft with an outline of a corrective action plan for the applicable
Performance Requirement, including training and staff plans, in such detail as
is reasonably practicable having regard to the circumstances. Microsoft shall
review and
Microsoft Confidential 15
approve or provide required changes to Company on such corrective action plan
within five (5) business days from its receipt of such plan.
(b) If Company does not provide a corrective action plan for such
Performance Requirement to Microsoft in accordance with this section, Microsoft
shall have the right to terminate this Agreement immediately upon written notice
to Company.
(c) In the event Company does not commence the implementation of the
corrective action plan as approved and/or modified by Microsoft for such
Performance Requirement within ten (10) business days following Microsoft's
approval or modification, Microsoft may terminate this Agreement immediately
upon written notice to Company.
(d) In the event that Company fails to meet any of the Performance
Requirements, for the applicable month, two (2) or more times during the Term of
this Agreement, the Services may be deemed unacceptable by Microsoft, and
Microsoft shall have the right to terminate this Agreement immediately upon
written notice to Company, regardless of whether Company has provided or
implemented corrective action plans for such Performance Requirement.
9. CONFIDENTIALITY AND PUBLICITY.
-----------------------------
(a) Subject to the prior written approval of the other party, either party
may use the name of such other party in a press release or public
announcement(s) relating to the rights and obligations set forth in this
Agreement and/or the relationship established by this Agreement; provided that
neither party shall issue any such press release or make any public
announcement(s) without the express prior written consent of the other party.
(b) The parties acknowledge and agree that the Microsoft Non-Disclosure
Agreement dated as of ____________________ ("NDA") entered into by and between
the parties applies to each party's disclosures under this Agreement as if fully
set forth herein and that all of the terms of this Agreement (including but not
limited to its existence) and all discussions and negotiations related thereto
are considered Confidential Information under the NDA.
(c) Notwithstanding Section 9(b) above, each party further agrees that the
restrictions in the NDA with respect to Confidential Information (as defined in
the NDA and including any Confidential Information disclosed in connection with
this Agreement) shall survive the termination of this Agreement. Each party may
disclose the terms and conditions of this Agreement to its employees, affiliates
and its immediate legal and financial consultants as required in the ordinary
course of that party's business, provided that such employees, affiliates and/or
legal and/or financial consultants agree in writing in advance of disclosure to
be bound by the NDA and this Section 9, and may disclose Confidential
Information as required by government or judicial order, provided each party
gives the other party prompt notice of such order and complies with any
protective order (or equivalent) imposed on such disclosure.
(d) Each party acknowledges that monetary damages may not be a sufficient
remedy for unauthorized disclosure or use of Confidential Information and that
each party may seek, without waiving any other rights or remedies, such
injunctive or equitable relief as may be deemed proper by a court of competent
jurisdiction.
10. NOTICES AND REQUESTS.
--------------------
All notices and requests in connection with this Agreement shall be deemed
given as of the day they are received either by messenger, delivery service, or
in the United States of America mails, postage
Microsoft Confidential 16
prepaid, certified or registered, return receipt requested, and addressed as
follows,
NOTICES TO Company: NOTICES TO Microsoft:
------------------ --------------------
RMH Teleservices, Inc. Microsoft Corporation
00 Xxxxxx Xxx. Xxx Xxxxxxxxx Xxx
Xxxx Xxxx, XX 00000 Xxxxxxx, XX 00000-0000
Attn.: Xxxx Xxxxx Attn.: Xxxxx Xxxxxxx
Telephone: 000-000-0000 Telephone: (000)000-0000
Fax: 000-000-0000 Fax: (000)000-0000
Copy to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
000 Xxxx Xxxxxx Copy to: Microsoft Law & Corporate
Xxx Xxxx, XX 00000 Affairs
Attn.: Xxxxx Xxxxxxxx, Esq. Fax: (000) 000-0000
Telephone: 000-000-0000
Fax: 000-000-0000
or to such other address as the party to receive the notice or request so
designates by at least ten (10) days prior written notice to the other.
11. AUDIT.
-----
During the Term of this Agreement and for two (2) years thereafter, Company
agrees to keep all usual and proper records and books of account and all usual
and proper entries relating to Company's performance of Services under this
Agreement, including, without limitation, reporting obligations under section
2(e) of this Agreement. During the Term and for a period of two (2) years
following the expiration or termination of this Agreement, Microsoft shall have
the right to cause an audit and/or inspection to be made of the applicable
Company records and facilities in order to verify statements issued by Company
and Company's compliance with the terms of this Agreement. Any such audit shall
be conducted by an independent certified public accountant selected by Microsoft
(other than on a contingent fee basis). Any audit and/or inspection shall be
conducted during regular business hours at Company's facilities with or without
notice. Company agrees to provide Microsoft's designated audit or inspection
team access to the relevant Company records and facilities. Such audits shall
be made no more often than once every twelve (12) months. If an audit reveals
that Company has over-billed Microsoft by five percent (5%) or more of the
amounts billed for any audited period of time, Company agrees, in addition to
recomputing and making immediate payment to Microsoft of all amounts over-
billed, plus interest at the highest prime rate set forth from time to time in
the Wall Street Journal in the United States plus two percentage points (or, if
less, at a rate equal to the highest rate permitted under applicable law), based
on the actual and true amounts over billed, to pay Microsoft all reasonable
costs and expenses incurred by Microsoft in conducting such audit, including,
but not limited to, any amounts paid to any auditor or attorney.
12. GENERAL.
-------
(a) Governing Law. This Agreement shall be governed by the laws of the
-------------
State of Washington as though entered into by Washington residents and to be
performed entirely within the State of Washington. Company consents to exclusive
jurisdiction and venue in the state and federal courts
Microsoft Confidential 17
sitting in King County, Washington. In any action or suit to enforce any right
or remedy under this Agreement or to interpret any provision of this Agreement,
the prevailing party shall be entitled to recover its costs, including
reasonable attorneys' fees.
(b) Independent Contractors. The Parties' relationship to each other in
-----------------------
the performance of this Agreement is that of independent contractors. Nothing
contained in this Agreement will place the Parties in the relationship of
partners, joint ventures, principal-agent, or employer-employee, and neither
party will have any right to obligate or bind the other in any manner whatsoever
nor represent to third parties that it has any right to enter into any binding
obligation on the other party's behalf. It is expressly understood, acknowledged
and agreed that Support Professionals and their supervisors, and managers and
other employees of Company providing the Services shall remain under the
direction and control of Company. All compensation of Support Professionals,
including payroll taxes and benefits shall be the responsibility of Company, and
Support Professionals shall have no right to any benefits granted to any
Microsoft employees.
(c) Entire Agreement. This Agreement, including Exhibits, constitutes the
----------------
entire agreement between the Parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements or communications with
respect to the subject matter hereof. This Agreement shall not be modified
except by a written agreement dated subsequent to the date of this Agreement and
signed on behalf of Company and Microsoft by their respective duly authorized
representatives.
(d) Third Party Beneficiaries. This Agreement shall not provide any person
-------------------------
or entity not a party to this Agreement with any remedy, claim, liability,
reimbursement, cause of action or other right.
(e) Waiver. No waiver of any breach of any provision of this Agreement
------
shall constitute a waiver of any prior, concurrent, or subsequent breach of the
same or any other provisions hereof, and no waiver shall be effective unless
made in writing and signed by an authorized representative of the waiving party.
(f) Enforceability. In the event that any provision of this Agreement
--------------
conflicts with governing law or if any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent jurisdiction, (i) such
provision shall be deemed to be restated to reflect as nearly as possible the
original intentions of the Parties in accordance with applicable law, and (ii)
the remaining terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect. This Agreement has been negotiated by the
parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party.
(g) Assignment. This Agreement and any rights and/or obligations hereunder
----------
may be assigned by Microsoft but may not be assigned by Company (except to its'
wholly-owned subsidiaries) without Microsoft's prior written approval. Any
attempted assignment, sub-license, transfer, encumbrance or other disposal
without such consent shall be void and shall constitute a material default and
breach of this Agreement. Except as otherwise provided, this Agreement shall be
binding upon and inure to the benefit of the parties' successors and lawful
assigns.
(h) Headings. The section headings used in this Agreement are intended for
--------
convenience only and shall not be deemed to affect in any manner the meaning or
intent of this Agreement or any provision hereof.
(i) Not an Offer. This Agreement does not constitute an offer by either
------------
party and shall not be effective until signed by both Parties.
Microsoft Confidential 18
(j) Inability to Perform. If either party is unable to perform under this
--------------------
Agreement due to circumstances or causes beyond its reasonable control, and
which could not by reasonable diligence have been avoided, such party shall have
the option subject to the approval of the other party, which approval shall not
be unreasonably withheld, without liability, of suspending performance of its
obligations under this Agreement for the duration of such contingency upon
written notice to the other party; provided, however, that if Company suspends
its performance pursuant hereto, Microsoft's obligations to make any payments to
Company shall be suspended until Company resumes rendering the Services in
accordance with the terms of this Agreement. Such causes shall include without
limitation acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, communication line
failures, failures of third party vendors, power failures, earthquakes, floods
or other natural disasters. In the event of delays for sixty (60) days or more,
either party may terminate this Agreement by giving written notice thereof to
the other party.
Microsoft Corporation RMH Teleservices, Inc.
/s/ xxxx xxxx /s/ Xxxx X. Xxxxxxx
------------------------------ ---------------------------------
Signature Signature
xxxx xxxx Xxxx X. Xxxxxxx
------------------------------ ---------------------------------
Name (print) Name (print)
General Manager EVP Sales and Marketing
------------------------------ ---------------------------------
Title Title
12/14/00 12-1-00
------------------------------ ---------------------------------
Date Date
Microsoft Confidential 19
