Confidential Treatment omitted and filed separately with the Exhibit 99.1
Securities and Exchange Commission. Asterisks denote omissions.
FINAL EXECUTION VERSION
FURTHER AMENDED AND RESTATED MASTER OUTSOURCING SERVICES
AGREEMENT
JULY 1, ▇▇▇▇
▇▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇
- AND -
CERTEN INC.
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PAGE
SECTION 1. DEFINITIONS AND INTERPRETATION................................................................ 2
1.1 Definitions................................................................................... 2
1.2 Exhibits...................................................................................... 10
SECTION 2. GOALS AND OBJECTIVES AND ROLE OF BELL......................................................... 11
a. Transfer on Effective Date.................................................................... 11
b. Services and Service Levels for Legacy Systems Generally...................................... 11
c. Modernization Generally....................................................................... 11
d. Billing Laboratory............................................................................ 12
e. Results of Modernization...................................................................... 12
f. Realization of Cost Savings and Efficiencies.................................................. 12
g. Improvements to Quality and Cost Effectiveness................................................ 12
h. Use of Internet Technology.................................................................... 12
i. Role of Bell - Post Amendment Effective Date - Generally...................................... 12
j. Scope of Services Generally................................................................... 12
2.2 Bell to Represent BCH Companies............................................................... 13
2.3 Bell Responsible and Liable for [**].......................................................... 13
2.4 Divestiture of BCH Company.................................................................... 13
2.5 Provision of Services by Certen............................................................... 13
a. Billing Operations Services................................................................... 13
b. Customer Care Operations Services............................................................. 13
c. Ongoing Support Services...................................................................... 14
d. Other Operations Services..................................................................... 14
e. Road Map Development Support Services......................................................... 14
f. Certen Development Support Services........................................................... 14
2.6 Additional Obligations of Certen.............................................................. 14
SECTION 3. TERM.......................................................................................... 15
3.1 Initial Term and Possible Extension........................................................... 15
SECTION 4. REQUIRED CONSENTS............................................................................. 15
4.1 BCH Companies to Obtain Required Consents..................................................... 15
4.2 Bell to Indemnify Certen for Failure to Obtain Required Consent............................... 16
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4.3 Contracts of BCH Companies Assigned to Certen................................................. 16
a. Assumption of Certain BCH Company Contracts................................................... 16
▇. ▇▇▇▇ to Provide Assistance.................................................................... 16
c. Changes to Assigned Contracts................................................................. 16
4.4 Corporate Contracts of BCH Companies.......................................................... 17
a. Access to BCH Corporate Contracts............................................................. 17
b. Benefits to be Provided to Certen as of the Amendment Effective Date.......................... 17
▇. ▇▇▇▇ to Assist Certen to Replace Contracts.................................................... 17
d. Certen May Terminate Rights Under Corporate Contracts......................................... 18
4.5 Services to be Provided by BCH Companies to Certen............................................ 18
4.6 Certen May Terminate Assigned Contracts....................................................... 18
4.7 Bell Obligation to Reimburse Certen........................................................... 19
4.8 Indemnity for Pre-Effective Date Events....................................................... 19
4.9 Completion of Exhibits........................................................................ 19
SECTION 5. TRANSFER OF LEGACY SYSTEMS AND PROVISION OF SERVICES.......................................... 19
5.1 Transfer of Legacy Systems.................................................................... 19
5.2 [**] Software................................................................................. 19
5.3 Oversight Functions to be Performed by Bell................................................... 20
5.4 Certen to Provide Services to BCH Companies................................................... 20
5.5 Service Levels - Legacy Systems............................................................... 20
5.6 Service Levels - Modernized Systems........................................................... 21
5.7 Restrictions on Changes to Hardware Platform.................................................. 21
5.8 Data Backup Storage Services.................................................................. 22
5.9 Third Party Development Support Services...................................................... 22
5.10 Disaster Recovery Services.................................................................... 22
5.12 Certen to Cooperate with Other Service Providers.............................................. 23
a. Certen to Cooperate with Other Service Providers.............................................. 23
b. [**] Agreement................................................................................ 23
c. [**] Agreements............................................................................... 23
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d. Orders to [**] or [**]........................................................................ 24
e. Effect of Breach of Agreements................................................................ 25
f. Modification of Certain Corporate Contracts................................................... 25
g. Disclosure of [**] and [**] Agreements........................................................ 25
5.13 Use of Internet Technology.................................................................... 25
5.14 Service Delivery [**]......................................................................... 25
5.15 Continuing Role of [**] Systems............................................................... 26
5.16 Continuing Arrangements with [**] Systems..................................................... 26
5.17 Viruses....................................................................................... 26
5.18 Roles and Responsibilities.................................................................... 26
5.19 Remittance Agreements......................................................................... 26
SECTION 6. [**] AND [**]................................................................................. 29
6.1 Certen as [**] Supplier....................................................................... 29
6.2 New Services.................................................................................. 30
6.3 Promotion of Services......................................................................... 30
SECTION 7. SERVICE LEVELS GUARANTEES..................................................................... 30
7.1 Service Levels................................................................................ 30
7.2 Service Level Improvements.................................................................... 30
7.3 Critical Service Level KVMs................................................................... 30
7.4 Service Level Penalties, Rebates and Bonuses.................................................. 31
7.5 Intent of Section............................................................................. 31
7.6 Failure to Meet Critical Service Level KVMs................................................... 31
7.7 Service Levels - Bell Customer Contracts...................................................... 31
7.8 Compliance with Credit and Collection Policies................................................ 31
7.9 Grace Period.................................................................................. 31
SECTION 8. QUALITY OF SERVICES GUARANTEE................................................................. 32
8.1 Right of BCH Companies to Assess, Inspect and Monitor......................................... 32
8.2 Complaints Regarding Quality of Services...................................................... 32
8.3 Certen to Manage Quality...................................................................... 32
8.4 Contractors and Subcontractors................................................................ 32
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8.5 Right to Terminate............................................................................ 32
SECTION 9. [**] FOR MODERNIZATION SYSTEMS AND PRICING.................................................... 32
9.1 Surveys to be Conducted....................................................................... 32
9.2 [**] Process.................................................................................. 32
9.3 Costs to be Shared............................................................................ 33
9.4 Certen to Implement Results................................................................... 33
9.5 Legacy Systems................................................................................ 33
9.6 [**].......................................................................................... 33
9.7 [**].......................................................................................... 33
SECTION 10. FEES AND CREDITS.............................................................................. 33
10.1 Fees.......................................................................................... 33
10.2 Volumes for [**] and [**]..................................................................... 34
10.3 Fee Adjustments............................................................................... 34
10.4 Discounts..................................................................................... 34
10.5 Taxes......................................................................................... 34
10.6 Unit Plan..................................................................................... 35
10.7 [**].......................................................................................... 35
10.8 Expiration of Unit Plan....................................................................... 35
10.9 [**] Pricing.................................................................................. 35
10.10 [**] Revenues................................................................................. 36
SECTION 11. DEVELOPMENT WORK QUALIFYING FOR SR&ED CREDITS................................................. 36
SECTION 12. INVOICING AND PAYMENT......................................................................... 37
12.1 Invoices...................................................................................... 37
12.2 Form.......................................................................................... 38
12.3 Procedures.................................................................................... 38
12.4 Transfer Taxes................................................................................ 38
SECTION 13. INTELLECTUAL PROPERTY RIGHTS.................................................................. 40
13.1 As in MLSA.................................................................................... 40
13.2 Survival...................................................................................... 40
SECTION 14. REPRESENTATIONS AND WARRANTIES................................................................ 40
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14.1 Of Certen..................................................................................... 40
14.2 Of Bell....................................................................................... 41
14.3 Survival of Representations and Warranties.................................................... 42
SECTION 15. NOTICES....................................................................................... 43
SECTION 16. CONFIDENTIAL INFORMATION...................................................................... 44
SECTION 17. INDEMNITY..................................................................................... 47
17.1 Mutual Indemnities............................................................................ 47
17.2 Indemnification Obligations of Certen......................................................... 47
17.3 Indemnification Obligations of ▇▇▇▇........................................................... 48
a. Intellectual Property......................................................................... 48
b. Failure to Obtain Required Consents........................................................... 48
c. Pre-Effective Date Duties..................................................................... 48
d. Failure to Comply with PIPEDA................................................................. 48
SECTION 18. DISPUTE RESOLUTION............................................................................ 48
18.1 Resolution by Negotiation..................................................................... 48
18.2 Arbitration................................................................................... 49
SECTION 19. INSURANCE..................................................................................... 50
SECTION 20. RELATIONSHIP/INDEPENDENT CONTRACTOR........................................................... 51
SECTION 21. TERMINATION................................................................................... 52
21.1 Convenience - Generally....................................................................... 52
21.2 Material Breach............................................................................... 53
21.3 Transition-Out................................................................................ 54
21.4 Insolvency.................................................................................... 54
21.5 Change in Control of Certen................................................................... 54
21.6 Termination for a Force Majeure Event......................................................... 54
21.7 Obligation to Pay for Services Rendered Prior to Termination.................................. 55
21.8 Termination not in Lieu of Other Remedies..................................................... 55
21.9 Return of Confidential Information............................................................ 55
SECTION 22. ORDERLY TRANSITION-OUT ON TERMINATION OR EXPIRY............................................... 55
SECTION 23. AUDIT, SECURITY............................................................................... 56
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23.1 Review Security Measures...................................................................... 56
23.2 Books and Records............................................................................. 56
23.3 a. Annual Audit Plan.......................................................................... 56
b. Audit Rights.................................................................................. 57
c. Certen to Provide Reasonable Assistance....................................................... 58
23.4 Security Procedures........................................................................... 58
23.5 PIPEDA........................................................................................ 59
SECTION 24. NON-SOLICITATION.............................................................................. 59
SECTION 25. LIMITATION OF LIABILITY....................................................................... 59
SECTION 26. FORCE MAJEURE................................................................................. 61
26.1 Force Majeure................................................................................. 61
26.2 Disaster Recovery Services; Reference to Exhibit I............................................ 63
SECTION 27. ASSIGNMENT/SUBCONTRACTING..................................................................... 63
27.1 Assignment.................................................................................... 63
27.2 Subcontracting................................................................................ 64
SECTION 28. COMPLIANCE WITH LAWS.......................................................................... 64
SECTION 29. PUBLICITY AND IDENTIFICATION.................................................................. 65
SECTION 30. AMENDMENT/CHANGES............................................................................. 65
SECTION 31. WAIVER........................................................................................ 65
SECTION 32. SEVERABILITY.................................................................................. 65
SECTION 33. SURVIVAL OF OBLIGATIONS....................................................................... 65
SECTION 34. CHOICE OF LAW AND CHOICE OF FORUM............................................................. 66
SECTION 35. DESIGNATED REPRESENTATIVES AND GOVERNANCE PROCESS............................................. 66
SECTION 36. RELEASES VOID................................................................................. 66
SECTION 37. CHANGE ORDER PROCESS.......................................................................... 67
SECTION 38. MISCELLANEOUS................................................................................. 67
38.1 Entire Agreement.............................................................................. 67
38.2 Accounting Terms.............................................................................. 67
38.3 Currency...................................................................................... 67
38.4 No Conflict................................................................................... 67
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38.5 Further Assurances............................................................................ 67
38.6 Counterparts.................................................................................. 67
38.7 [**].......................................................................................... 67
38.8 Interpretation................................................................................ 68
38.9 Time of Essence............................................................................... 68
38.10 Financial Responsibility...................................................................... 68
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2
FURTHER AMENDED AND RESTATED MASTER OUTSOURCING SERVICES AGREEMENT
This Further Amended and Restated Master Outsourcing Services Agreement (the
"AGREEMENT"), dated as of July 1, 2003, is entered into by and between ▇▇▇▇
CANADA, a company incorporated pursuant to the laws of Canada ("▇▇▇▇ CANADA")
and CERTEN INC. ("CERTEN"), a company incorporated pursuant to the laws of
Canada.
RECITALS
WHEREAS prior to the Effective Date the BCH Companies (defined below)
operated information systems and performed related services pertaining to
their billing, payment process and customer care functions;
AND WHEREAS on the Effective Date the BCH Companies transferred and/or
assigned certain personnel, equipment and contracts employed to perform
such functions to Certen, and Certen assumed such personnel, equipment,
contracts and functions, subject to the terms and conditions of the
Original MOSA (as amended and restated by the Amended MOSA) and the Asset
Transfer Agreement;
AND WHEREAS in order to increase the effectiveness of the outsourcing and
development arrangements between ▇▇▇▇ Canada and Certen, the Parties now
desire to amend and restate the Amended MOSA to provide for the following:
(i) the performance by ▇▇▇▇ Canada, commencing on the Amendment Effective
Date, of certain Oversight Functions (defined below); (ii) other
amendments as specifically set out herein to enable the BCH Companies to
meet their business needs, including ensuring the successful modernization
and operation of the systems referred to in the first recital above; and
(iii) the extension of the term of the Amended MOSA for a period of three
years;
AND WHEREAS Certen will, in accordance with the terms of this Agreement,
continue to take the necessary measures to become a provider of
information systems and information technology services in the realm of
billing production, payment process and customer care systems and related
services comparable to leading providers of similar services on a
worldwide basis;
AND WHEREAS the BCH Companies desire to receive and Certen has agreed to
provide the Services (as hereinafter defined) upon terms and conditions
set out in this Agreement;
AND WHEREAS pursuant to the Share Purchase Agreement, an Affiliate of
Amdocs, did acquire ▇▇▇▇ Canada's interest in Certen;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the
Parties agree as follows:
3
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS. In this Agreement and the Exhibits hereto, unless
specifically stated otherwise:
"2003 ROAD MAP" means (a) the statement of work together with the
associated schedule and budget for the Project known as "NMI Mobility" as
set forth in Exhibit D hereto; and (b) the work to be undertaken for the
proposed Project known as "SI ▇▇▇▇ Canada", which work is outlined in
Exhibit D, together with the associated schedule and budget for such work
as set forth in Exhibit D, and (c) Projects marked as completed, as set
forth in Exhibit D;
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling or controlled by, or under direct or indirect
common control with, such Person or one or more of the other Affiliates of
that Person (or a combination thereof). For purposes of this definition, a
Person shall control another Person if the first Person (i) owns,
beneficially or of record, more than fifty percent (50%) of the voting
securities of the other Person, or (ii) has the ability to elect a
majority of the directors of the other Person. For purposes of this
definition, "Person" does not include an individual, ▇▇▇▇'▇ Affiliates
shall be deemed to include all BCE Inc.'s Affiliates and Certen's
Affiliates shall be deemed to include all Affiliates of Amdocs Limited;
"AGREEMENT" means this Agreement together with the Exhibits attached
hereto, all as may be subsequently amended or restated from time to time;
"AMDOCS" means Amdocs Software Systems Ltd.;
"AMENDED MOSA" means the Amended and Restated Master Outsourcing Services
Agreement made between ▇▇▇▇ Canada and Certen as of April 26, 2001;
"AMENDED ROAD MAP" means the document entitled "Road Map for
Modernization" which is attached as Exhibit D to the Amended MOSA,
including all annexes attached thereto;
"AMENDMENT EFFECTIVE DATE" means July 1, 2003;
"APPLICATIONS SOFTWARE" means software programs in any format which
perform specific functions or applications, including user related data
processing functions, for the BCH Companies or their customers, together
with supporting documentation and materials;
"ARBITRATION AWARD" has the meaning ascribed thereto in Section 18.2 of
this Agreement;
"ARBITRATOR" has the meaning ascribed thereto in Section 18.2;
"ASSET TRANSFER AGREEMENT" means the asset transfer agreement dated
January 26, 2001 between Certen and ▇▇▇▇ Canada;
4
"AUDIT DEFICIENCIES" has the meaning ascribed thereto in Section 5.11;
"AUDIT PLAN" has the meaning ascribed thereto in Section 23.3a;
"BCH COMPANIES" means, individually and collectively, ▇▇▇▇ Canada and ▇▇▇▇
Mobility;
"BCH [**] OBLIGATIONS" has the meaning ascribed thereto in Section 5.12c;
"BELL" means ▇▇▇▇ Canada acting in the capacity and role, with respect to
this Agreement, specified in greater detail in Section 2.2 below. For
greater certainty, "Bell" includes ▇▇▇▇ Sympatico and the Enterprise
Division, unless specifically stated otherwise;
"▇▇▇▇ SYMPATICO" OR "SYMPATICO" means that business unit within Bell which
carries on the Sympatico Internet service provider business as formerly
operated by Bell ActiMedia Inc. as of the Effective Date and with respect
to which ▇▇▇▇ Actimedia Inc. transferred to Bell such Internet service
provider business on June 1, 2001;
"BELL NEXXIA" means the former business unit within ▇▇▇▇ Canada which
carried on the business which BCE Nexxia Inc. and its operating
subsidiaries carried on until April 1, 2003, the date upon which BCE
Nexxia Inc. amalgamated with ▇▇▇▇ Canada (Bell Nexxia has since been
superseded by the Enterprise Division);
"▇▇▇▇-[**] SERVICES" has the meaning ascribed thereto in Section 5.12c
below;
"BELL CUSTOMER CONTRACTS" means the contracts listed in Exhibit M3 between
the BCH Companies and a customer thereof which contracts are either
assigned or subcontracted to Certen, as specified in Exhibit M3;
"▇▇▇▇ MOBILITY" means ▇▇▇▇ Mobility Inc. and its operating subsidiaries
receiving the Services hereunder;
"▇▇▇▇ MOBILITY-[**] SERVICES" has the meaning ascribed thereto in Section
5.12c below;
"▇▇▇▇'▇ [**] FEES" has the meaning ascribed thereto in Section 5.12c
below;
"BILLING OPERATIONS SERVICES" has the meaning ascribed thereto in Section
2.5 of this Agreement;
"BUSINESS CASE" has the meaning ascribed thereto in Exhibit B to this
Agreement;
"BUSINESS DAY" means any day except: (i) a statutory holiday in Ontario or
Quebec; and (ii) a Saturday or a Sunday;
"[**]" has the meaning ascribed thereto in Exhibit A;
"CERTEN DEVELOPMENT SUPPORT SERVICES" has the meaning ascribed thereto in
Section 2.5;
"[**]" means [**];
5
"[**]" means the portions of the following agreements attached as Exhibits
X1 and X2, respectively: (i) [**] (the "[**]"), dated [**]; and (ii) [**]
(the "[**]"), dated [**];
"CGL" has the meaning ascribed thereto in Section 19.1b of this Agreement;
"CHANGE IN CONTROL" means a change in ownership or control of a Person
which results in a new entity either (i) owning beneficially or of record,
more than fifty percent (50%) of the voting securities of such Person, or
(ii) having the ability to elect a majority of the directors of such
Person;
"CHANGE ORDER PROCESS" has the meaning ascribed thereto in Exhibit G;
"CHANGE PROPOSAL" has the meaning ascribed thereto in Exhibit G;
"CHANGE REQUEST" has the meaning ascribed thereto in Exhibit G;
"CLAIMS" has the meaning ascribed thereto in Section 17.1 of this
Agreement;
"CLOSING DATE" means the closing date for the sale of the shares of Certen
from ▇▇▇▇ Canada to an Affiliate of Amdocs pursuant to the Share Purchase
Agreement;
"CODE" has the meaning ascribed thereto in Section 13.1 of this Agreement;
"CONFIDENTIAL INFORMATION" means any information, disclosed by one Party
(in the case of Bell, including all BCH Companies and in the case of
Certen including Certen, Amdocs and Amdocs' Affiliates) (the "DISCLOSING
PARTY") to another Party (in the case of Bell including all BCH Companies
and in the case of Certen including Certen, Amdocs and Amdocs' Affiliates)
(the "RECEIVING PARTY") orally (provided that the Disclosing Parties
identifies the oral disclosure as confidential), in writing,
electronically or in any tangible form, concerning the business and
affairs of a Disclosing Party, irrespective of the form or medium of
communication. Confidential Information shall include, without limitation,
Databases, ideas, formulas, compositions, inventors' notes, discoveries
and improvements, know-how, manufacturing and production processes and
techniques, and research and development information (whether or not
patentable), invention disclosures, unpatented blueprints, drawings,
specifications, designs, plans, proposals and technical data, business and
marketing plans and customer lists and information, as well as all notes,
analysis, computations, studies, and other material prepared by a
Disclosing Party or its representative, containing, in whole or in part,
confidential information of the other Disclosing Party;
"COOPERATE" shall mean, whenever used herein with reference to a Party's
obligations, an obligation of such Party to use every reasonable
commercial effort, but shall not be interpreted to require such Party to
enter into any agreement or undertaking to pay or otherwise confer
anything of material value to or for the benefit of a third party, to
guarantee an obligation, to make whole or hold harmless a third party or
to take any other action which would have a material adverse effect on the
business of such Party;
6
"CRITICAL SERVICE LEVEL KVMS" has the meaning ascribed thereto in Exhibit
C-1 and C-2;
"CUSTOMER CARE OPERATIONS SERVICES" has the meaning ascribed thereto in
Section 2.5 of this Agreement;
"DATABASES" means all required collections of data in any media or format
regardless of technology used to produce it provided by the BCH Companies
to Certen from time to time to allow Certen to deliver the Services;
"DECLARATION OF CESSATION" has the meaning set forth in 26.1c.;
"DEVELOP" or "DEVELOPED" has the meaning ascribed thereto in Section 13 of
this Agreement;
"DEVELOPMENT SUPPORT SERVICES" means the services to be performed by
Certen in respect of any Development Work as listed in Exhibit O-1 (Roles
and Responsibility - Delivery);
"DEVELOPMENT WORK" means any change to the Systems or the Services other
than in the course of providing the Operations Services or the Support
Services, resulting from the Change Order Process;
"DISPUTE" has the meaning ascribed thereto in Section 18.1 of this
Agreement;
"E&O" has the meaning ascribed thereto in Section 19.1 of this Agreement;
"E-▇▇▇▇" means a Service to be provided by Certen to enable customers of
the BCH Companies, who were not already receiving bills electronically, to
receive their bills electronically, rather than on paper, and by doing so
saving Certen the ▇▇▇▇ printing, postage and other costs and efforts; the
E-▇▇▇▇ calculation in Annex 1 to Exhibit B does not include ▇▇▇▇ Sympatico
customers that received bills electronically prior to the Effective Date
which number the Parties agree is [**] annually;
"EFFECTIVE DATE" means January 26, 2001;
"ELIGIBLE CONSOLIDATED BILLS" has the meaning ascribed thereto in Exhibit
B;
"ENTERPRISE DIVISION" has the meaning ascribed thereto in Exhibit B;
"EXECUTIVE PRIME" has the meaning ascribed thereto in Exhibit F;
"FEES" means any fees to be paid under this Agreement including the fees
outlined in Exhibit B "Fees";
"FORCE MAJEURE EVENT" has the meaning ascribed thereto in Section 26.1
below of this Agreement;
"GRACE PERIOD" has the meaning ascribed thereto in Exhibit C-1 and Exhibit
C-2;
7
"GUARANTEE EVENT" occurs if (i) all or a substantially all of the assets
of Amdocs Limited are in any way transferred to another Person and such
other Person has not assumed all of the obligations of Amdocs Limited
under the Guarantee between ▇▇▇▇ Canada and Amdocs Limited dated as of
July 1, 2003, in violation of Section 14(2) of such guarantee and (ii)
Certen ceases to provide the Services.
"HARDWARE" means all information and communications technology machinery
and computer equipment, together with all associated components,
connecting equipment, network, peripherals, media, firmware and other
embedded software and instructions;
"[**]" means [**];
"[**]" means [**];
"IDENTIFICATION" has the meaning ascribed thereto in Section 29.1 below of
this Agreement;
"INDEMNIFIED PARTIES" has the meaning ascribed thereto in Section 17.1
below of this Agreement;
"INDEMNIFIER" has the meaning ascribed thereto in Section 17.1 below of
this Agreement;
"INITIAL TERM" has the meaning ascribed thereto in Section 3.1 of this
Agreement;
"IN-SCOPE OPERATIONS" means all functions and responsibilities that are
included within the scope of Exhibit A and which are to be performed by
Certen in delivering the Services;
"INTELLECTUAL PROPERTY" means anything that is or may be protected by any
Intellectual Property Right such as, but not limited to works (including
computer programs), performances, discoveries, inventions, trade-marks
(including trade names and service marks), industrial designs, mask work
and integrated circuit topographies, whether or not they may also be
protected, at any given time, by rights in Confidential Information;
"INTELLECTUAL PROPERTY RIGHT" shall mean any right that is or may be
granted or recognized under any Canadian or foreign legislation regarding
patents, trade-marks, trade names, service marks, industrial designs, mask
work, integrated circuit topography, confidential information including
Confidential Information and any other statutory provision or common or
civil law principle regarding intellectual and industrial property,
whether registered or unregistered, and including rights in any
application for any of the foregoing;
"ITA" has the meaning ascribed thereto in Section 11 of this Agreement;
"LATE FACTOR" has the meaning ascribed thereto in Section 12.3b of this
Agreement;
8
"LEGACY SYSTEMS" means those Systems owned and/or used by the BCH
Companies immediately prior to the Effective Date to provide the Services
and operated by Certen, as such Systems may be updated, modified or
replaced from time to time in accordance with this Agreement;
"LINES OF BUSINESS" has the meaning ascribed thereto in Exhibit A to this
Agreement;
"LOSSES" shall mean all losses, liabilities, damages and claims (including
taxes), and all costs and expenses related thereto (including any and all
reasonable attorney fees and costs of investigation, litigation,
settlement, judgment, interests and penalties), subject to and in
accordance with Section 25 (Limitation of Liability) below;
"MASTER LICENSE AND SERVICES AGREEMENT" OR "MLSA" means the Master License
and Services Agreement dated as of July 1, 2003 among ▇▇▇▇ Canada, Amdocs
and Certen;
"MODERNIZATION" means the performance of the activities necessary to
implement the Modernized Systems;
"MODERNIZED SYSTEMS" means the Systems, other than the Legacy Systems,
used to provide the Services, as enhanced and modernized in accordance
with the 2003 Road Map;
"NEW SERVICES" shall mean billing operations services, associated ongoing
support services, customer care operations services, associated
development support services and associated or related services that are
not included within the scope of the Services;
"NOTICE OF ARBITRATION" has the meaning ascribed thereto in Section 18.2
of this Agreement;
"ONGOING SUPPORT SERVICES" has the meaning ascribed thereto in Section 2.5
of this Agreement;
"OPERATIONS PROCEDURES MANUAL" means the manual to be prepared by Certen
and approved by each of the BCH Companies, as applicable, setting out the
operations procedures to be followed by Certen in connection with the
provision of the Services;
"OPERATIONS SERVICES" means the Billing Operations Services, the Customer
Care Operations Services, the Ongoing Support Services and the Other
Operations Services;
"ORIGINAL MOSA" means the Master Outsourcing Services Agreement made
between ▇▇▇▇ Canada and Certen as of January 26, 2001;
"ORIGINAL ROAD MAP" means the document entitled "Road Map for
Modernization" which is attached as Exhibit D to the Original MOSA,
including all annexes attached thereto;
"OTHER OPERATIONS SERVICES" has the meaning ascribed thereto in Section
2.5 of this Agreement;
9
"OVERSIGHT FUNCTIONS" means those activities, functions and
responsibilities listed under the heading "Bell" in Exhibits O-1 and O-2;
"PARTY" means either Certen or ▇▇▇▇ Canada as applicable, and "PARTIES"
means Certen and ▇▇▇▇ Canada;
"PENALTY REBATE" has the meaning ascribed thereto in Section 7.4 of this
Agreement;
"PERSON" means an individual, partnership, limited liability company,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture, or other entity or a government
or any agency, department or instrumentality thereof;
"PRICE PER UNIT" means the Fee which shall be payable to Certen under this
Agreement for each Unit billed hereunder. The Price Per Unit shall be
calculated in the manner provided for in Section 3.1(a) of Exhibit B,
subject to adjustment as provided for in Section 10.3 of this Agreement
and Section 4.1 of Exhibit B;
"PROJECT" means a statement of work containing a defined set of activities
with its associated schedule and budget that has a pre-defined
commencement date and completion date;
"REMITTANCE AGREEMENTS" means the following agreements as the same may be
amended or restated from time to time:
(a) Remittance Processing Services Agreement between ▇▇▇▇ Canada and
[**] January 31, 1997;
(b) Remittance Processing Services Agreement between ▇▇▇▇ Canada and
[**] dated May 1, 1999;
(c) Remittance Processing Services Agreement between ▇▇▇▇ Canada and
[**] dated May 1, 1999;
(d) Remittance Processing Services Agreement between ▇▇▇▇ Canada and
[**] dated May 1, 1999;
(e) Remittance Processing Services Agreement between ▇▇▇▇ Canada and
[**] dated May 1, 1999;
(f) Remittance Processing Services Agreement between ▇▇▇▇ Canada and
[**] dated May 1, 1999; and
(g) Remittance Processing Services Agreement between ▇▇▇▇ Canada and
[**] dated November, 2001;
10
"REQUIRED CONSENTS" shall mean any consents or approvals, including
regulatory approvals, required , as at the Effective Date, for the
licensing or transfer of the right to use applicable space, equipment,
software, third party services or the transfer of any facilities to
Certen, and the assumption of the obligations related thereto by Certen. A
list of the Required Consents is set forth in Exhibit R;
"ROAD MAP DEVELOPMENT SUPPORT SERVICES" has the meaning ascribed thereto
in Section 2.5;
"SERVICES" has the meaning ascribed thereto in Section 2.5 of this
Agreement;
"SERVICE LEVELS" means the performance measures and service levels set out
in Exhibit C-1 and Exhibit C-2 of this Agreement and includes Critical
Service Level KVMs;
"SHARE PURCHASE AGREEMENT" means the share purchase agreement dated as of
May 28, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and an Affiliate of Amdocs;
"SOFTWARE" means, collectively, all System Software and all Applications
Software relating to the Services;
"SR&ED" has the meaning ascribed thereto in Section 11;
"[**]" means [**], a unit that is used to [**] used under the [**]
Agreement;
"SUPPLEMENTAL OBLIGATION" has the meaning ascribed thereto in Section 5.5
of this Agreement;
"SUPPORT SERVICES" means, collectively, the Road Map Development Support
Services and the Certen Development Support Services;
"SYMPATICO PROJECT" means any work performed by Amdocs for the
modernization of ▇▇▇▇ Sympatico which received the Services under the
letter of agreement dated April 9, 2000 among Amdocs and Bell;
"SYSTEMS" means the Hardware, Software and telecommunications lines and
equipment, all of which are used in connection with the delivery of the
Services, as they exist from time to time and any changes to the foregoing
Systems;
"SYSTEM SOFTWARE" means the software programs which are generally known as
operating software, utilities or system software that are used in
conjunction with the Hardware to perform tasks basic to the functioning of
a computer and which are required to operate the Applications Software,
together with supporting documentation and materials;
"TELECOM SERVICES" has the meaning ascribed thereto in Exhibit B;
"TERM" has the meaning ascribed thereto in Section 3.1;
11
"TERMINATION ASSISTANCE" has the meaning ascribed thereto in Exhibit J to
this Agreement;
"TERMINATION MANAGEMENT" has the meaning ascribed thereto in Exhibit J to
this Agreement;
"TERRITORY" means Canada as it exists on the date hereof and any further
possessions or territories thereof;
"THIRD PARTY DEVELOPMENT SUPPORT SERVICES" means Development Support
Services provided by Certen in connection with any Development Work
performed by [**] and for greater certainty [**] the Road Map Development
Support Services and the Certen Development Support Services;
"TRANSFER TAXES" has the meaning ascribed thereto in Section 10.5;
"TRANSITION AGREEMENT" means the Transition Agreement dated as of May 28,
2003 between Certen and ▇▇▇▇ Canada, and attached hereto as Exhibit V;
"TRANSITION-OUT PERIOD" has the meaning ascribed thereto in Exhibit J;
"TRANSITION-OUT WORK PLAN" has the meaning ascribed thereto in Exhibit J;
"UNIT" has the meaning ascribed thereto in Exhibit B;
"UNIT PLAN" has the meaning ascribed thereto in Section 10.6; and
"USE" means (i) any act which, if committed without the proper
authorization of an Intellectual Property Right, would constitute an
infringement of such Intellectual Property Right, and includes for greater
certainty, modification, personalization, customization, development or
enhancement and (ii) the use or disclosure of confidential information,
subject to the confidentiality provisions of this Agreement.
1.2 EXHIBITS. Subject to Section 4.9 below, the following Exhibits annexed
hereto, are incorporated in this Agreement by reference and are deemed to
be part hereof, and any references to this Agreement shall mean this
Agreement including such Exhibits:
Exhibit A - Demarcation Points and Service Definitions
Exhibit B - Fees
Exhibit C-1 - Service Levels and Reporting Requirements (Legacy Systems)
Exhibit C-2 - Service Levels and Reporting Requirements (Modernized Systems)
Exhibit D - 2003 Road Map for Modernization
Exhibit F - Governance Process
Exhibit G - Change Order Process
Exhibit I - Disaster Recovery Planning and Services
Exhibit J - Transition-Out Plan
Exhibit K - Security, Access and Interface
Exhibit L1 - List of Corporate Contracts
12
Exhibit L2 - List of services to be Provided by the BCH Companies to Certen
Exhibit M1 - List of Contracts Assigned to Certen
Exhibit M2 - List of Contracts Assigned to Certen but Managed by [**]
Exhibit M3 - Bell Customer Contracts
Exhibit O-1 - Roles and Responsibilities (Delivery)
Exhibit O-2 - Roles and Responsibilities (Production)
Exhibit P1 - Certen Non-Disclosure Agreement (for non-competitors)
Exhibit P2 - Certen Non-Disclosure Agreement (for competitors)
Exhibit Q1 - Bell Non-Disclosure Agreement (for non-competitors)
Exhibit Q2 - Bell Non-Disclosure Agreement (for competitors)
Exhibit R - Required Consents as of the Effective Date
Exhibit V Transition Agreement
Exhibit W Audit Deficiencies
Exhibit X1 [**]
Exhibit X2 [**]
Exhibit X3 [**]
SECTION 2. GOALS AND OBJECTIVES AND ROLE OF BELL
2.1 The Parties have entered into this Agreement on the basis of the following
goals and objectives, subject to the provisions of this Agreement:
a. Transfer on Effective Date. As of the Effective Date, the BCH
Companies at their cost and expense transferred to Certen (i) all
Systems, assets, documents and materials relating to the Legacy
Systems, which were the same or substantially the same Systems,
assets, documents and materials relating to the Legacy Systems, as
applicable, used by the BCH Companies immediately prior to the
Effective Date, and that were materially required and relevant in
order for Certen to provide the Services and perform its other
obligations under this Agreement with respect to the Legacy Systems;
provided, however, that if any Required Consents not obtained by
Bell prevented full compliance with the foregoing, Section 4 below
shall apply and (ii) the human resources required for Certen to
continue to provide with respect to the Legacy Systems the Services
which were provided immediately prior to the Effective Date.
b. Services and Service Levels for Legacy Systems Generally. Except as
otherwise expressly provided in this Agreement (including any
Exhibit hereto), Certen shall, from and after the Effective Date,
provide all the Services and meet the Service Levels and all other
obligations with respect to such Services and Service Levels with
respect to the Legacy Systems, [**] manner as the services, service
levels, and other obligations, as applicable, [**] by the BCH
Companies [**] to the Effective Date.
c. Modernization Generally. Certen shall, as contemplated under this
Agreement and the Master License and Services Agreement, continue to
work with Amdocs to develop and provide to the BCH Companies the
Modernized Systems, the
13
whole in accordance with the 2003 Road Map including any timelines
set forth therein, and the BCH Companies shall continue to take the
necessary steps to implement the Modernization in accordance with
the 2003 Road Map. The BCH Companies may not cease the performance
of their obligations relating to the implementation of the 2003 Road
Map until the budget for the 2003 Road Map as set forth in Exhibit D
has been fully utilized.
d. Billing Laboratory. As part of the Modernization process, Certen
will establish, if Bell so requests, a permanent "billing
laboratory" to provide "best in class" Service Levels and to test
enhanced billing solutions, capabilities and associated software,
thereby enabling the greatest customization of billing solutions for
the BCH Companies.
e. Results of Modernization. As a result of Modernization, Certen will
improve the then [**] provided to the BCH Companies and enhance
access by the BCH Companies to leading information technology
industry and processes.
f. Realization of Cost Savings and Efficiencies. Following the
Modernization, Certen will enable the BCH Companies to more rapidly
achieve ongoing cost savings and efficiencies to be realized
together with enhanced capabilities in accordance with this
Agreement. The BCH Companies will Cooperate with Certen to assist
Certen in achieving efficiencies, where applicable.
g. Improvements to Quality and Cost Effectiveness. Following the
Modernization, Certen will improve the quality and cost
effectiveness of the Services provided to the BCH Companies by
Certen.
h. Use of Internet Technology. Certen will interface and communicate
with the BCH Companies using Internet technology, such as e-mail, in
line with the BCH Companies' "web enabled" general goal and
objective.
i. Role of Bell - Post Amendment Effective Date - Generally. From and
after the Amendment Effective Date, the Parties intend that Bell
shall be responsible for (i) overall project management; (ii)
overall business and technical architecture; (iii) the business
analyst function related to ensuring that the BCH Companies'
requirements for the Systems are met; (iv) user acceptance testing
and business unit acceptance testing, and (v) oversight of
management of billing operations, all as set forth under the heading
"Bell" in Exhibit O-1 and Exhibit O-2.
j. Scope of Services Generally. The Parties acknowledge that the
relationship memorialized by this Agreement is dynamic in nature and
that such relationship will change, as the operating and business
environment of the BCH Companies shall also change, and that it is
impossible to define with absolute specificity the scope of the
Services that will be provided by Certen during the Term of this
Agreement. The Parties therefore agree that the scope of the
Services with respect to the Legacy Systems shall at all relevant
times be consistent with Section 2.1a, 2.1b and 2.1i above, and that
the scope of the Services with respect to the Systems
14
after Modernization shall at all relevant times be consistent with
Sections 2.1c to 2.1i, inclusive.
2.2 BELL TO REPRESENT BCH COMPANIES. The Parties recognize and agree that the
BCH Companies shall receive the Services from Certen in accordance with
the terms and conditions of this Agreement. It is further agreed that ▇▇▇▇
Canada, as Party to this Agreement, shall be the interface between Certen
and the BCH Companies (i.e., acting on ▇▇▇▇ Canada's own behalf and for
the other BCH Company). Notwithstanding anything else to the contrary in
this Agreement, ▇▇▇▇ Mobility shall have no right to make any Claim
hereunder against Certen, except through Bell, including but not limited
to, any Claim as third party beneficiary, provided however, that any Claim
that ▇▇▇▇ Mobility may have hereunder shall be deemed to be a Claim of
Bell.
2.3 BELL RESPONSIBLE AND LIABLE FOR [**]. In addition, Bell hereby undertakes
throughout the Term and any extension thereof, as well as during any
Transition-Out Period, to perform, and be liable for any breach or
non-performance of, the obligations, representations, warranties, and
indemnities [**] under this Agreement. This Section 2.3 shall survive
termination or expiration of this Agreement, in accordance with the
provisions of Section 33.1.
2.4 DIVESTITURE OF BCH COMPANY. In the event that Bell considers the
divestiture of any one of the BCH Companies, Bell shall, on a reasonable
commercial efforts basis, request that the potential purchaser of the
divested entity respect the [**] and [**] provisions set forth in Section
6 below; provided, however, that the foregoing shall not in any way
relieve Bell or derogate from ▇▇▇▇'▇ undertakings under this Agreement
including, but not limited to, the obligations set forth in Section 6
below. Notwithstanding the foregoing, if Bell divests a BCH Company (or
effects any reorganization) or a business unit (or any part thereof) or a
Line of Business of a BCH Company to an Affiliate of Bell, Bell shall
remain bound by the [**] and [**] provisions set forth in Section 6 below
with respect to such BCH Company, business unit (or any part thereof) or
Line of Business. Bell will take all necessary action to ensure that such
Affiliate complies with all the terms of this Agreement with respect to
such BCH Company, business unit (or any part thereof) or Line of Business.
2.5 PROVISION OF SERVICES BY CERTEN. Certen shall, pursuant to and in
accordance with the provisions of this Agreement, provide the following to
the BCH Companies:
a. Billing Operations Services. The billing operations services
described in Exhibit A, delivered in accordance with Exhibits O-1
and O-2, as applicable (the "BILLING OPERATIONS SERVICES") as such
services are amended from time to time in accordance with the Change
Order Process;
b. Customer Care Operations Services. The customer care operations
services described in Exhibit A, delivered in accordance with
Exhibits O-1 and O-2, as applicable (the "CUSTOMER CARE OPERATIONS
SERVICES"), as such services are amended from time to time in
accordance with the Change Order Process;
15
c. Ongoing Support Services. The ongoing maintenance, upgrades, updates
and support of the Systems (excluding any upgrades and updates to
provide additional functionality) and other ongoing support services
all as described in Exhibit A, delivered in accordance with Exhibits
O-1 and O-2, as applicable (the "ONGOING SUPPORT SERVICES") as such
services are amended from time to time in accordance with the Change
Order Process;
d. Other Operations Services. The (i) disaster recovery services
described in Section 5.10; (ii) the development, implementation and
administration of the policies and procedures, including the
reporting, governance, auditing and other procedures required in
this Agreement, such as the development of an Operations Procedures
Manual within such time as to be agreed by the Parties, not more
than [**] from the Amendment Effective Date; (iii) the security
obligations of Certen set forth in Section 23.4 and Exhibit K; (iv)
services performed by Certen pursuant to Section 5.5b; and (v) and
all other services described or referred to in Exhibit A, in each
case as such services are amended from time to time in accordance
with the Change Order Process (the "OTHER OPERATIONS SERVICES");
e. Road Map Development Support Services. Development Support Services
in connection with the development, integration and implementation
of features and/or changes to Services contemplated by the 2003 Road
Map, as such services are amended from time to time in accordance
with the Change Order Process (the "ROAD MAP DEVELOPMENT SUPPORT
SERVICES"); and
f. Certen Development Support Services. Development Support Services in
connection with any Development Work performed by Certen or any of
its Affiliates, other than the Road Map Development Support
Services, which Development Support Services are funded through the
Ensemble Customization Credit as set forth in Exhibit B (the "CERTEN
DEVELOPMENT SUPPORT SERVICES").
In this Agreement, the Billing Operations Services, the Customer Care Operations
Services, the Ongoing Support Services and the Other Operations Services shall
be collectively referred to as the "OPERATIONS SERVICES", and the Road Map
Development Support Services and the Certen Development Support Services shall
be collectively referred to as the "SUPPORT SERVICES". The Operations Services,
the Support Services together with New Services (once rendered by Certen after
compliance with the Change Order Process) shall be collectively referred to as
the "SERVICES". For the avoidance of doubt, the "SERVICES" do not include
Termination Assistance or Termination Management provided during the
Transition-Out Period.
2.6 ADDITIONAL OBLIGATIONS OF CERTEN. In addition to providing the Services,
Certen shall, pursuant to and in accordance with the provisions of this
Agreement:
a. perform, in conjunction with Amdocs, the Modernization as
contemplated by the 2003 Road Map in accordance with Exhibit D;
b. fund and support, as provided for in Exhibit B: (i) the development
of enhancements of and/or improvements to the Legacy Systems by
providing ▇▇▇▇
16
with monthly credits to support the performance of such work;
(ii) the development of enhancements and/or improvements to the
Modernized Systems by providing Amdocs and ▇▇▇▇ with credits to
support the performance of such work, all subject to the Master
License and Services Agreement; and (iii) the performance by ▇▇▇▇ of
architectural design, planning and user and business unit acceptance
testing by providing ▇▇▇▇ with monthly credits to support the
performance of such work; and
c. perform Third Party Development Support Services as provided for in
Section 5.9.
SECTION 3. TERM
3.1 INITIAL TERM AND POSSIBLE EXTENSION.
The term of this Agreement commenced as of the Effective Date and, unless
earlier terminated in accordance with the provisions hereof, shall continue in
effect until December 31, 2010 (the "INITIAL TERM"). For greater certainty the
Initial Term began at 12:01 am (Toronto time) on January 26, 2001 and shall end
at 11:59 pm (Toronto time) on December 31, 2010. During the period beginning on
the Effective Date and ending at 11:59 pm (Toronto time) on the day preceding
the Amendment Effective Date the provision of the Services and the relationship
of the Parties was governed by the Amended MOSA and from and after 12:01 am
(Toronto time) on the Amendment Effective Date the provision of the Services and
the relationship of the Parties shall be governed by this Agreement. ▇▇▇▇ on
behalf of all of the BCH Companies, may, prior to December 31, 2010, provide to
Certen a [**] written notice indicating that ▇▇▇▇ intends (subject to the
negotiation of satisfactory Fees and other terms and conditions for the
continuing provision of the Services) to extend this Agreement at the end of the
Initial Term for an additional three (3) year extension period (the Initial Term
together with such three (3) year extension period (if such is agreed to by
▇▇▇▇), being hereinafter collectively referred to as the "TERM").
SECTION 4. REQUIRED CONSENTS
Unless otherwise mutually agreed between the Parties, the responsibility for
Required Consents shall be as follows:
4.1 BCH COMPANIES TO OBTAIN REQUIRED CONSENTS. The BCH Companies will obtain
the Required Consents which have not previously been obtained prior to the
Effective Date and will have responsibility for all communications seeking
the Required Consents. Unless otherwise mutually agreed, [**]
responsibility for any payments required to obtain the Required Consents.
If any Required Consent was not or is not obtained with respect to any
lease, license, service or other agreement (or if the Required Consent so
obtained by ▇▇▇▇ contains additional terms or conditions, which in
Certen's good faith opinion would have an adverse affect on its business),
then [**] any such lease, license, service, or other agreements and the
rights thereunder in trust for the benefit of Certen and promptly so
notify Certen, and unless and until that Required Consent is obtained, the
BCH Companies shall promptly provide, with Cooperation from Certen, an
alternative arrangement [**] for
17
transferring to Certen, as of the Effective Date, the same or
substantially the same benefits, space, amenities, utilities,
functionalities, usefulness, levels of service and obligations, as
applicable, under the lease, license, service or other agreement for which
the Required Consent was not obtained. Without limiting Certen's other
remedies under this Agreement, in the event that the failure to obtain any
Required Consent results in the failure of Certen to comply with any of
its obligations under this Agreement, then Certen shall be excused from
such obligations.
4.2 ▇▇▇▇ TO INDEMNIFY CERTEN FOR FAILURE TO OBTAIN REQUIRED CONSENT. With
respect to any Losses arising from any failure to obtain any Required
Consent, ▇▇▇▇ shall indemnify and hold harmless Certen pursuant to Section
17.3b hereof. However, if ▇▇▇▇ expressly and specifically notifies Certen
in advance and in writing of the BCH Companies' failure to obtain a
certain Required Consent, and Certen knowingly and willfully uses any
applicable space, equipment, software or third party services dependent on
such unobtained Required Consent, ▇▇▇▇ shall not be obligated to indemnify
or hold Certen harmless from any third party claim to the extent such
claim is directly related to such use.
4.3 CONTRACTS OF BCH COMPANIES ASSIGNED TO CERTEN.
a. Assumption of Certain BCH Company Contracts. Subject to Section 5.1
of this Agreement, Certen agrees to assume all rights and
obligations of the BCH Companies arising from the assignment
hereunder of leases, software licenses, maintenance and equipment
acquisition contracts, ▇▇▇▇ Customer Contracts, including any other
contracts solely related to the Services, to Certen on or after the
Effective Date. A number of such assigned leases, licenses and
contract are listed in ▇▇▇▇▇▇▇▇ ▇▇, ▇▇, and M3. In the case of the
contracts listed in Exhibit M2, such contracts shall continue to be
[**] and be subject to the applicable terms and conditions of the
[**] Agreements.
▇. ▇▇▇▇ to Provide Assistance. In the event that the Change in Control
of Certen as of the Amendment Effective Date results in a
termination of a contract which was assigned to Certen (as described
in Section 4.3a above), or a modification thereto which has a
material adverse affect on Certen, ▇▇▇▇ undertakes to make good
faith efforts, through its existing relationship with the applicable
lessor, supplier or vendor, to assist Certen in its negotiation to
remain a party to such agreement on the same or substantially the
same terms as those in effect prior to the Amendment Effective Date.
c. Changes to Assigned Contracts. Certen shall make reasonable efforts
to provide ▇▇▇▇ with written notice prior to Certen's termination or
material modification of any such assigned third party contracts. In
addition, Certen shall indemnify and reimburse ▇▇▇▇ for any claims,
charges or penalties incurred by the BCH Companies with respect to
such assigned third party contracts to the extent such claims,
charges or penalties (excluding losses of volume discount benefiting
▇▇▇▇) are caused by Certen and do not arise out of any event, act or
omission taking place prior to the Effective Date.
18
4.4 CORPORATE CONTRACTS OF BCH COMPANIES.
a. Access to BCH Corporate Contracts. Subject to Section 5.12 below
with respect to the [**] Agreement and the [**] Agreement, the
Parties acknowledge that the BCH Companies are parties to certain
corporate contracts (a number of which with respect to ▇▇▇▇ and ▇▇▇▇
Mobility are listed in Exhibit L1) that relate to the Services but
were not assigned by the BCH Companies to Certen, the scope of such
contracts being greater than the scope of this Agreement. The BCH
Companies shall exercise any and all rights they may have under such
corporate contracts to enable Certen to fully benefit, as of the
Amendment Effective Date (or promptly thereafter), from such
corporate contracts until December 31, 2007, or such other period
with respect to each contract as the Parties may agree ("BENEFIT
PERIOD"). For corporate contracts identified in Exhibit L1 as
material, at the BCH Companies' sole cost and expense, the BCH
Companies agree to negotiate with the applicable third party the
possibility for Certen to benefit from any and all such corporate
contracts until the end of the Benefit Period. The benefits extended
to Certen by ▇▇▇▇ hereunder shall only be used in its provision of
the Services to ▇▇▇▇ under this Agreement.
▇. ▇▇▇▇ to Assist Certen to Replace Contracts. Without limiting
Certen's other remedies under this Agreement, in the event that the
BCH Companies' failure to enable Certen to fully benefit from such
material corporate contracts, as identified in Exhibit L1 (or
comparable arrangements as aforesaid) until the end of the Benefit
Period, results in the failure of Certen to comply with any of its
obligations under this Agreement, then Certen shall be excused from
such obligations. In addition, ▇▇▇▇ shall [**] enjoyed by Certen
under such material corporate contract as at the Amendment Effective
Date, despite reasonable efforts made by ▇▇▇▇ and Certen to [**]
(including, without limitation, initiation fees, increase in license
fee costs, or otherwise) until the end of the Benefit Period, but
[**].
c. Certen May Terminate Rights Under Corporate Contracts. In order to
benefit from any such corporate contracts (or comparable
arrangements, as aforesaid), Certen shall respect any contractual
obligations that may be imposed by the applicable third party until
the end of the Benefit Period. For the avoidance of doubt, Certen
shall not be obligated to continue to benefit under such corporate
contracts (or alternative arrangements, as applicable), to maintain
(or to compensate the BCH Companies for not maintaining) any [**]
from which the BCH Companies may benefit as a result of operations
of the BCH Companies that are outside the scope of the Agreement. In
the event that Certen elects at any time not to continue to benefit
under any of such corporate contracts, Certen agrees that it shall
be responsible for all liabilities in connection with Certen
entering into a new contract.
4.5 SERVICES TO BE PROVIDED BY BCH COMPANIES TO CERTEN. In order to enable
Certen to provide the Services, the BCH Companies shall provide as of the
Amendment Effective Date and continue to provide to Certen the services
listed in Exhibit L2 under the terms
19
and conditions set out in such Exhibit. The BCH Companies shall make such
services available to Certen for the Benefit Period, unless otherwise
specified in Exhibit L2; provided, however, that Certen shall be entitled
to cancel such services, in whole or in part, on reasonable written notice
to the BCH Companies, the length of such reasonable notice to be agreed to
between the Parties but which shall in no event be greater than the lesser
of (a) [**] or (b) the time remaining in the applicable [**] pertaining to
the service being terminated by Certen, and provided that ▇▇▇▇ reasonably
demonstrates to Certen that ▇▇▇▇ is committed under the applicable service
contract in such a way that a termination could reasonably be expected to
have a material adverse commercial effect on the contract or on ▇▇▇▇'▇
relationship with the third party thereunder. Absent such a showing by
▇▇▇▇, the termination notice shall be reasonable, but in no event greater
than [**]. In addition, Certen agrees that ▇▇▇▇ shall be its [**] supplier
of telecommunications services during the Term, subject to agreement on
market rates for non-regulated services; regulated services shall be at
applicable tariffed rates.
4.6 CERTEN MAY TERMINATE ASSIGNED CONTRACTS. From and after the Effective
Date: (a) Certen shall be responsible for paying the lessors, vendors and
suppliers listed in Exhibits L1 for the services or other benefits
received by Certen thereunder; and (b) Certen shall be responsible for
making any required payments and to fulfil its other obligations under the
contracts listed in Exhibits M1 and M2. Subject to its obligations to pay
applicable penalties, damages, termination or other charges, Certen may
cancel, substitute or change the lessors, vendors or suppliers (or
terminate the benefits that Certen is receiving) under the third party
agreements under Exhibit L1, M1 and M2 as it chooses, in which case,
Certen shall continue to perform the Services in the manner required by
this Agreement. Certen will make reasonable efforts to provide written
notification to the BCH Companies prior to the termination or modification
of any such third party agreement (or termination of the benefit that
Certen is receiving, as applicable) as well as in the event such
termination may have an impact on the operations of the BCH Companies.
4.7 ▇▇▇▇ OBLIGATION TO REIMBURSE CERTEN. Subject to Exhibit J, upon
termination or expiration of this Agreement, ▇▇▇▇ shall reimburse Certen
in a timely manner for any payments made by Certen to the lessors, vendors
and suppliers (whose leases, licenses or other agreements are transferred
back to the BCH Companies in accordance with this Agreement) during the
period prior to the effective date of such termination or expiration that
would apply for any period subsequent to the termination or expiration
date.
4.8 INDEMNITY FOR PRE-EFFECTIVE DATE EVENTS. ▇▇▇▇ shall remain solely liable
for and shall indemnify Certen against any Claims arising out of any
events, acts or omissions which took place prior to the Effective Date
with respect to the contracts, leases, licenses and other agreements
described in this Section 4.
4.9 COMPLETION OF EXHIBITS. The Parties recognize and agree that certain
Exhibits remain incomplete as of the Amendment Effective Date, as
expressly set forth in such Exhibits. The Parties will use all reasonable
efforts to finalize incomplete Exhibits within the period set forth in
such Exhibits for completion. Following the Amendment Effective Date, the
Parties reserve the right to perform an inventory of, and validate and
update,
20
any information that is reflected in or omitted from the attached Exhibits
(in all cases, with the final Exhibit to be agreed in writing by the
Parties).
SECTION 5. TRANSFER OF LEGACY SYSTEMS AND PROVISION OF SERVICES
5.1 TRANSFER OF LEGACY SYSTEMS. As of the Effective Date, the BCH Companies
transferred, at their cost and expense as also specified in the Asset
Transfer Agreement all of their right, title, and interest in and to (i)
the Systems (including the Legacy Systems) and assets (and the
Intellectual Property Rights therein set forth in ▇▇▇▇▇▇▇▇ ▇▇, ▇▇ and M3
to the extent of the assigned contracts specified therein, and any other
systems, assets, documents, or materials (and the Intellectual Property
Rights therein) necessary and relevant for Certen to provide the Services
with respect to the BCH Companies' Legacy Systems, which were the same or
substantially the same Systems, assets, documents, or materials, as
applicable, used by the BCH Companies immediately prior to the Effective
Date; provided, however, that if any Required Consents not obtained by the
BCH Companies prevent full compliance with the foregoing, Sections 4.1 and
4.2 above shall apply and (ii) the human resources required for Certen to
provide the Services with respect to the Legacy Systems, as such existed
immediately prior to the Effective Date. Without limiting Certen's other
remedies under this Agreement, in the event that the BCH Companies have
failed to so deliver such Systems, assets, documents, materials or human
resources, in whole or in part, as of the Effective Date, Certen shall be
excused from its obligations with respect to the Legacy Systems, to the
extent such undelivered Systems, assets, documents, materials or human
resources are required to perform such obligations.
5.2 [**] SOFTWARE. ▇▇▇▇ granted, as of the Effective Date, to Certen a
royalty-free, non-exclusive license (in object and source code) to use the
[**] Software, with a right to sub-license, in the Territory (i) for the
purpose of the delivery of the Services; and (ii) similar services to
third parties, throughout the Term. Certen shall indemnify ▇▇▇▇ for any
Claim for infringement of Intellectual Property Rights arising out of
Certen's use of the [**] Software outside of the Territory.
5.3 OVERSIGHT FUNCTIONS TO BE PERFORMED BY ▇▇▇▇. From and after the Amendment
Effective Date, ▇▇▇▇ shall assume the performance of the Oversight
Functions.
5.4 CERTEN TO PROVIDE SERVICES TO BCH COMPANIES. ▇▇▇▇ hereby confirms, as of
the Amendment Effective Date, that a substantial majority of the customers
of the BCH Companies reside in the Territory. Certen shall continue to
provide the Services to the BCH Companies, a substantial majority of the
subscribers of which shall continue to be located within the Territory.
5.5 SERVICE LEVELS - LEGACY SYSTEMS. The Services and Service Levels provided
by Certen with respect to the Legacy Systems, and all other obligations
with respect to such Services and Service Levels, shall be [**] services,
service levels, or other such obligation received by the BCH Companies
[**], except to the extent expressly provided otherwise in this Agreement
(including any Exhibit hereof).
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a. Accordingly, in the event that the BCH Companies request Certen to
perform a service, service level or other obligation with respect to
the Legacy Systems (collectively, the "SUPPLEMENTAL OBLIGATION")
that:
(i) was not performed by/for the BCH Companies immediately prior
to the Effective Date;
(ii) is not otherwise expressly set forth in this Agreement
(including any Exhibit hereof); and
(iii) (A) is not a fringe service, which is ancillary or
complimentary to Sections 5.5a(i) or 5.5a(ii) above, and (B)
the provision of such Supplemental Obligation would have no
material financial impact on Certen (provided, however, that
even if such Supplemental Obligation would have a material
financial impact on Certen, the Parties shall not consider
such impact (for purposes of this Section 5.5a) if Certen had
notice in writing from the BCH Companies of the performance of
such Supplemental Obligation through the disclosure of
materials provided by the BCH Companies during the due
diligence period prior to the Effective Date),
then such request shall be deemed a Change Request.
b. Conversely, in the event that the BCH Companies request Certen to
perform a Supplemental Obligation that:
(i) was performed by/for the BCH Companies immediately prior to
the Effective Date,
(ii) is otherwise expressly set forth in this Agreement (including
any Exhibit hereof); or
(iii) is (A) a fringe service, which is ancillary or complimentary
to subsections 5.5a or 5.5b above and (B) the provision of the
Supplemental Obligation would have no material financial
impact on Certen or if Certen had notice of the performance of
such Supplemental Obligation through the disclosure of
materials provided by the BCH Companies during the due
diligence period prior to the Effective Date),
then such request shall be performed by Certen as part of the Services
(without additional charge).
5.6 SERVICE LEVELS - MODERNIZED SYSTEMS. Initially the Service Levels provided
by Certen with respect to the Modernized Systems shall be [**] Systems.
The Service Levels for the Modernized Systems shall be subject to upward
adjustment after the Amendment Effective Date as agreed to by the Parties.
5.7 RESTRICTIONS ON CHANGES TO HARDWARE PLATFORM.
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a. Certen or ▇▇▇▇ will install at the Installation Site(s) the Platform
as required for the installation and proper operation of the
Products, in accordance with a detailed configuration to be mutually
agreed upon by Certen and ▇▇▇▇ and to be specified in the DAD
document or as set forth in the Roles and Responsibilities (as such
capitalized terms used herein are defined in the Master License and
Services Agreement). Certen shall not replace or modify the BCH
Companies' Hardware platform unless new Hardware is compatible with
the Hardware platform used by the BCH Companies in their other
operations. In addition, Certen will purchase new Hardware, Software
and network resources, as required pursuant to the 2003 Road Map,
and as set forth in the applicable detailed architectural design
document in order to successfully complete the Modernization. The
BCH Companies acknowledge and agree that Certen plans to utilize a
[**] environment of one of the leading [**] suppliers.
b. For Systems required to perform the Services, Certen shall maintain
Currency for (i) the Licensed Products (as defined in the Master
License and Services Agreement) incorporated into the Modernized
System, (ii) third party Software used to provide the Services, and
(iii) Hardware. In this Agreement, "CURRENCY" or "CURRENT" means
that the Software and Hardware versions are [**] the applicable
vendor (in the case of the Licensed Products incorporated into the
Modernized System, by Certen's (or its Affiliate's) research and
development division). Notwithstanding the foregoing, if any
Software or Hardware components are not Current as of the Amendment
Effective Date, then Certen shall not have any obligation of
Currency for such components for the period of [**] from the
Amendment Effective Date. Certen will manage the incorporation of
upgrades and enhancements in accordance with Certen's business
practices which shall be comparable with those of leading suppliers
of managed operations services in North America. Certen will
consider recommendations from ▇▇▇▇ regarding the implementation of
updates and enhancements.
c. Software other than: (i) Software that is readily commercially
available from a Person which is not an Affiliate of Certen; or (ii)
Software in respect of which Certen or Amdocs has granted ▇▇▇▇ a
[**] license pursuant to the MLSA, may only be used to provide the
Services in accordance with a Change Proposal pursuant to which ▇▇▇▇
is entitled to obtain a [**] license, under the terms provided for
in the MLSA, to use such Software.
5.8 DATA BACKUP STORAGE SERVICES. Certen shall be responsible for data backup
storage services with respect to the Databases.
5.9 THIRD PARTY DEVELOPMENT SUPPORT SERVICES. If requested by ▇▇▇▇, Certen
will perform Third Party Development Support Services, which shall be
charged for [**] in accordance with Exhibit ▇. ▇▇▇▇ shall, before
obtaining any Development Work (including Software) from a third party for
operation on the Systems, consult with Certen concerning the integration
of such Development Work on the Systems. Certen has the right to test and
approve any Development Work of a third party provider prior to the
integration thereof on the Systems. Certen shall cooperate with any third
party provider
23
of such Development Work and shall provide any information reasonably
required by the third party in connection with the development, testing,
configuration or implementation of such Development Work for use on the
Systems and shall integrate the third party Development Work for operation
on the Systems on the terms set forth herein. Where ▇▇▇▇ requires Certen
to work with a third party developer, then unless otherwise agreed in
writing, Certen will not be responsible for disruption to or negative
impact on the provision of the Services by Certen which results from
defects in the Development Work provided by such third party developer.
Certen shall promptly notify ▇▇▇▇ of any defects in the Development Work
performed by the third party of which Certen is aware.
5.10 DISASTER RECOVERY SERVICES. Certen shall, as part of the Services, provide
disaster recovery services as contemplated by Exhibit I hereto. The
Parties agree to share the reasonable and necessary initial setup costs
required for the implementation of the DRPs, the ARMs and the BCRPs (as
defined in Exhibit I) (e.g., Hardware, Software, facilities, installation,
etc.) which the Parties had reasonably expected to have been in place on
the Amendment Effective Date as follows: [**]% by ▇▇▇▇ and [**]% by
Certen. Following the initial setup of the Systems as required to
implement such DRPs, ARMs and BCRPs, Certen will bear the costs associated
with adapting and maintaining the Systems and such DRPs, ARMs and BCRPs
and providing any related Services for the Modernized System during the
Term.
5.11 COMPLIANCE REQUIREMENTS DISCOVERED DURING AUDIT. Pursuant to Section 23.3,
the Parties acknowledge that certain Services that Certen is required to
provide under the Amended MOSA, or is otherwise required by law to
provide, may not have been so provided as of the Amendment Effective Date
(such deficiencies being those listed in Exhibit W and any deficiencies
identified in any audits pursuant to Section 23.3 hereof relating to
events which occurred prior to the Amendment Effective Date and which are
identified in any audit conducted in accordance with Section 23.3 prior to
the Amendment Effective Date or in any audit conducted in accordance with
an Audit Plan during the period of [**] months from the Amendment
Effective Date (the "AUDIT DEFICIENCIES"). The Parties agree to work
together to correct the Audit Deficiencies as cost-efficiently as possible
and agree that the necessary costs reasonably incurred, which shall be
agreed upon in advance by the Parties, to upgrade the Systems to the
extent required to permit Certen to correct the Audit [**] shall be paid
as follows: [**]% by ▇▇▇▇ and [**]% by Certen. After the Systems have been
upgraded as provided above, [**] will bear all of the costs associated
with providing the Services and adapting and maintaining the Systems as
required to continue to provide such Services thereafter during the Term.
5.12 CERTEN TO COOPERATE WITH OTHER SERVICE PROVIDERS.
a. Certen to Cooperate with Other Service Providers. Certen shall
reasonably cooperate with other service providers providing services
related to the Services, such as but not limited to [**] and [**],
subject to Certen's confidentiality requirements (including special
arrangements with third party competitors of Amdocs), in accordance
with Section 16 below, and subject to ▇▇▇▇'▇ reimbursement of
Certen's reasonable costs resulting from such cooperation,
24
which costs for greater certainty shall not include any costs
resulting from cooperation with Amdocs or any Affiliate of Amdocs or
Certen.
b. [**] Agreement. In order to enable Certen to benefit from the
provision of [**] services under the [**] Agreement, as such
services relate to the Services, the BCH Companies designate Certen
as an Authorized User under the [**] Agreement, as defined therein,
and Certen accepts such designation. Certen, by accepting such
designation, agrees to be bound by all applicable terms and
conditions of the [**] Agreement with the exception of [**]. The
Parties also agree that fees related to Certen's receipt of [**]
services under the [**] Agreement shall be payable by Certen to
▇▇▇▇, and such fees shall be expressed for the [**] in terms of
[**], and on [**] for the [**] as per the terms and conditions of
the [**] Agreement. ▇▇▇▇ acknowledges that its fees to [**] for the
full calendar year 2002, for that portion of the [**] services to
▇▇▇▇ which relate to the Services were [**] Canadian Dollars
(CA$[**]). Certen's projected fees in 2003 are [**] Canadian Dollars
(CA$[**]) and the projected price for such [**] is $[**] Canadian
Dollars (CA$[**]) per [**]. Notwithstanding the foregoing, if the
fees related to Certen's receipt of [**] services materially exceed
the fees budgeted in the Business Case to be paid for such services
(other than for reasons attributable to the existing pricing regime
under the [**] Agreement), the Parties will negotiate in good faith
a solution to counter such increased cost. Furthermore Certen agrees
to indemnify ▇▇▇▇ in the event of any failure by Certen to comply
with the applicable terms and conditions of the [**] Agreement ([**]
for greater certainty any [**] obligations contained therein).
c. [**] Agreements. In order to enable Certen to benefit from the
provision of [**] services under the ▇▇▇▇-[**] Agreement and under
the ▇▇▇▇-Mobility-[**] Agreement, as such services relate to the
Services (the "▇▇▇▇-[**] SERVICES" and the "▇▇▇▇ MOBILITY-[**]
SERVICES", respectively; collectively, the "[**] SERVICES"), ▇▇▇▇
designates Certen as [**] under the [**] Agreements, as applicable
and as defined therein, and Certen accepts such designation. ▇▇▇▇
represents that its fees to [**] for the full calendar year 2002 for
that portion of the [**] Services [**] fees to ▇▇▇▇ which relate to
the Services were [**] Canadian Dollars (CA$[**]) ("▇▇▇▇'▇ [**]
FEES"). ▇▇▇▇'▇ [**] Fees projected for 2003 are [**] Canadian
Dollars (CA$[**]). The Parties agree that the fees related to
Certen's receipt of the Bell-[**] Services provided to Certen shall
be payable by Certen to Bell and such fees shall be not greater than
the fees paid by Bell to [**] for such Services. Notwithstanding the
foregoing, in the event that ▇▇▇▇'▇ [**] Fees payable by Certen
materially increase, other than for reasons attributable to the
existing pricing regime under the Bell-[**] Agreement, the Parties
shall negotiate in good faith a mutually acceptable solution to
counter such increased cost and the same shall apply, mutatis
mutandis, to the fees with respect to the ▇▇▇▇ Mobility-[**]
Services. Certen shall [**], as [**] under the [**] Agreements, to
any right [**] granted by Bell or ▇▇▇▇ Mobility to [**]
(collectively, "BCH [**] OBLIGATIONS") and to which the BCH
Companies are, therefore, subject under the [**] Agreements, but
Certen acknowledges that it will receive the Bell-[**] Services and
the ▇▇▇▇ Mobility [**] Services referred to herein. Furthermore,
25
the BCH Companies [**] to do all things and take all actions which
the BCH Companies are entitled to do and take under the [**]
Agreements, including liaising directly with [**], in relation to
the services of [**] which Certen receives as [**], and Certen
accepts such appointment. Certen, by accepting such designation and
appointment agrees to be bound by the applicable terms and
conditions of the [**] Agreements, but (for the avoidance of doubt)
[**] by the BCH [**] Obligations. In addition, Certen shall have the
duty to interact directly with [**] in relation to day-to-day
matters such as work program content, [**] related to the services
Certen shall receive from [**], all as indicated in the [**]
Agreements, and to manage its relationship with [**] as it relates
to the Services. The BCH Companies shall have the right to
reasonably monitor interfaces between Certen and [**]. Certen agrees
to indemnify the BCH Companies in the event of any Claim by [**]
against the BCH Companies arising out of Certen's material breach of
its obligation as [**] under the [**] Agreements. For the avoidance
of doubt, Certen [**] Bell in the event of any Claim or Losses
arising out of the BCH [**] Obligations or any BCH Company
obligations to meet (or benefits to the BCH Companies for meeting)
[**] under the [**] Agreements.
d. Orders to [**] or [**]. The Parties agree that the BCH Companies
shall not issue any order to [**] or [**] (including but not limited
to any order issued in connection with the annual work plans with
such companies) for which Certen would be liable without the prior
written consent of Certen, which consent shall not be unreasonably
withheld.
e. Effect of Breach of Agreements. If [**] breaches the [**] Agreements
or [**] breaches the [**] Agreement, (i) the BCH Companies' remedies
with regard to such breach(es) shall be as set forth in such
agreements; and (ii) Certen's responsibilities with respect to such
breaches shall be limited to its obligations to manage and direct
the [**] Agreements, as the BCH Companies' [**], and to act in
accordance with the obligations of [**] under both the [**]
Agreements and the [**] Agreement and Certen shall have no other
liability to the BCH Companies for breaches by [**] of the [**]
Agreements or for breaches by [**] of the [**] Agreement.
f. Modification of Certain Corporate Contracts. Notwithstanding
anything to the contrary, the BCH Companies shall have no right to
modify, waive or terminate any rights in any material corporate
contracts identified in Exhibit L1 (including but not limited to the
[**] Agreement and the [**] Agreements) without Certen's prior
written consent therefor, if such extension or modification would
have a material adverse affect on the business of Certen.
g. [**] and [**] Agreements. Certen acknowledges that [**] the [**]
Agreements and the [**] Agreements [**] prior to the entering into
of this Agreement. In the event that the BCH Companies have [**] of
the [**] Agreements or [**] Agreement and [**] has a [**] on the
business of Certen, the BCH Companies shall indemnify and hold
Certen harmless against any Losses suffered by it as a result of
[**].
26
5.13 USE OF INTERNET TECHNOLOGY. Certen shall make reasonable efforts to
interface and communicate with the BCH Companies using Internet
technology, such as e-mail, as the primary technology platform for such
interfacing and communication, where applicable, e.g., for the processing
and payment of invoices between the Parties.
5.14 SERVICE DELIVERY [**]. Without derogating from any other rights of Certen
hereunder, Certen shall have the option to (a) [**] the system
administration, operational control, ▇▇▇▇ review and audit functions for
the Legacy Systems to [**], and (b) [**] the data center (including data
center operations and billing operations) in respect of the Systems using
"ENSEMBLE" technology (including system administration and operational
control) to [**], in each case provided that: (i) there is no disruption,
delay or degradation to the Services provided by Certen except to the
extent that Certen has given reasonable notice to Bell in advance of any
disruption and has taken all necessary or desirable steps to minimize
disruption to the Services, (ii) Service Levels are maintained, (iii)
disaster recovery services are fully available throughout the Term,
including the period of the [**], (iv) there will be no impact on the
compliance by Certen and the BCH Companies with the Personal Information
Protection and Electronic Documents Act (Canada) or material violation of
any other law or regulation by which any of the BCH Companies is bound,
(v) there is no increased cost or expense, either direct or indirect, to
Bell, including without limitation increased Transfer Taxes, unless Certen
reimburses Bell for such amounts; and (vi) any such [**] does not cause
any of the BCH Companies to be in breach of any corporate contract listed
on Exhibit L-1 or of any other corporate contract of one or more of the
BCH Companies, which Certen is managing for the BCH Companies or is
providing services as a subcontractor. Bell agrees to Cooperate with
Certen at Certen's expense in the performance of activities and
implementation of procedures necessary to accomplish any such [**]. For
the avoidance of doubt, if Certen so [**] any of such functions to [**],
Certen shall continue to be obligated to invoice Bell for the Services in
accordance with Section 12.1 of this Agreement.
5.15 CONTINUING ROLE OF [**] SYSTEMS. Subject to Certen's rights under Section
5.14, it is agreed that after the Amendment Effective Date, [**]will
continue to [**] in the Billing Operations Services and associated Ongoing
Support Services performed in respect of the [**] Systems as they did
immediately prior to such date and that it is in the best interests of
Bell and Certen to have these parties continue to perform functions and
deliver services after the Amendment Effective Date [**] that they did
prior to such date, in connection with the Services provided under this
Agreement. Prior to making any change to these arrangements, Certen shall,
given the broader possible impacts of such decisions on Bell, review the
proposed change with Bell. Certen shall not, except as contemplated in
Sections 4, 5 and 21, make any proposed change unless Bell has provided
its prior written consent in respect thereof, which prior written consent
shall not be withheld if such a change would be in the best interests of
both Bell and Certen, in accordance with the terms of this Agreement. The
Parties agree to preserve the original spirit of this Agreement as it
relates to [**] in the context of the Services in respect of the [**]
Systems.
5.16 CONTINUING ARRANGEMENTS WITH [**] SYSTEMS. Subject to Certen's rights
under Section 5.14, commitments made by Certen as of and since the
Effective Date in respect
27
of [**] will continue to be honoured by Certen after the Amendment
Effective Date in connection with the Billing Operations Services
performed in respect of the Systems utilizing [**] technology. Prior to
making any change to these arrangements, Certen shall, given the broader
possible impacts of such decisions on Bell, review and coordinate the
proposed change with Bell.
5.17 VIRUSES. Certen shall use all reasonable efforts to avoid viruses in
accordance with Exhibit K.
5.18 ROLES AND RESPONSIBILITIES. Each of the Parties shall perform the roles
and responsibilities assigned to it in Exhibits O-1 and O-2.
5.19 REMITTANCE AGREEMENTS. Bell is a party to the Remittance Agreements which
the Parties acknowledge are Bell Corporate Contracts. However, the
provisions set forth in this Agreement relating to corporate contracts
shall be superseded by the following with respect to the Remittance
Agreements:
a. With the prior written consent of Certen not to be unreasonably
withheld, Bell shall have the right, at its option (exercised
reasonably based on its conclusions with respect to (i) tax
implications, (ii) impact on Bell or other Bell entities based on
the scope of any Remittance Agreement being greater than the scope
of the Services) to either (i) assign the Remittance Agreements or
any one of them to Certen (an "ASSIGNMENT"), or (ii) provide Certen
with the benefits of the Remittance Agreements or any one of them
and appoint Certen as its agent (the "AGENCY APPOINTMENT"), in each
case for the sole purpose of dealing with all matters arising under
such Remittance Agreements to the extent they are part of the
In-Scope Operations other than the payment of fees and commissions
thereunder (for which Bell shall be responsible as set forth
herein). As of the Effective Date, Bell has agreed to appoint Certen
as its agent under all Remittance Agreements.
b. In the case of an Assignment, Certen will assume and perform all
obligations of Bell under the relevant Remittance Agreements to the
extent they are part of the In-Scope Operations (other than
obligations relating to the payment of fees and commissions) and
will indemnify and save the BCH Companies harmless from any Losses
suffered by them arising from Certen's failure to perform such
obligations.
c. In the case of an Agency Appointment, Certen shall act as agent for
Bell with respect to all actions required to be taken by Bell under
the Remittance Agreements to the extent they are part of the
In-Scope Operations (other than with respect to the payment of fees
and commissions) and Certen shall indemnify and save the BCH
Companies harmless of and from any Losses suffered by the BCH
Companies arising from a failure by Certen to perform such
obligations of Bell under the Remittance Agreements to the extent
such Losses (excluding Losses of any volume discounts benefiting
Bell, if applicable) are caused by Certen and do not arise from an
event, act or omission occurring prior to the Effective Date.
28
d. Certen agrees that it will not amend, modify or waive any rights or
obligations in the Remittance Agreements, whether in its capacity as
primary obligor or agent, without ▇▇▇▇'▇ prior written consent if
such amendment, modification or waiver could result in an increase
in fees or commissions thereunder or would otherwise affect Bell. In
no case shall any Remittance Agreement be extended, terminated or
replaced without the prior written consent of Bell. In addition, in
the case of an Agency Appointment, Bell shall have the option to
negotiate, renew, replace or extend the Remittance Agreements
directly or to delegate that power to Certen, in the latter case
negotiation by Certen to be performed at its own cost. Certen shall
also provide at no cost to Bell such assistance as Bell may
reasonably request in connection with any such negotiations, renewal
or extension. To the extent any modification in any Remittance
Agreement or new Remittance Agreement expands Certen's
responsibilities under the In-Scope Operations, such expansion shall
be subject to the Change Order Process.
e. In the case of an Agency Appointment, Bell shall pay the amount of
the invoice directly to the third party service provider under the
applicable Remittance Agreement (the "THIRD PARTY").
f. In the case of an Assignment, the Parties shall make all reasonable
efforts to arrange for invoices to be sent by the Third Party
directly to Bell and for Bell to continue paying the amount of the
invoice directly to the Third Party. In the event that the Parties
mutually agree that it is not feasible for invoices to be sent
directly from the Third Party to Bell, Certen shall forward each
invoice received from the Third Party to Bell within a reasonable
time of receipt thereof and Bell shall pay the amount of the invoice
to Certen, which shall in turn, pay the Third Party.
▇. ▇▇▇▇ will indemnify Certen for any Losses incurred by it as a result
of the failure of ▇▇▇▇ to pay such fees and commissions; provided,
that where, in accordance with subsection e or f above, Certen is
required but has failed to forward the invoice to Bell within the
agreed time or pay such invoices where it has received the invoice
amount from Bell and has agreed to remit same to the Third Party,
Certen shall indemnify the BCH Companies for any Losses incurred by
the BCH Companies arising from such failure.
h. For greater certainty, the Parties acknowledge and agree that Bell
and the BCH Companies shall have no obligations or liabilities in
respect of fees and commissions attributable to third party
customers of Certen. Before a Third Party charges Certen fees and
commissions attributable to third party customers, Certen shall
require such Third Party to invoice Certen separately so that the
invoices provided to Bell include only those fees and commissions
properly attributable to Bell and the BCH Companies.
i. If Certen comes into possession or control of any cheques or other
negotiable instruments payable to Bell or any of ▇▇▇▇'▇ Affiliates,
whether in connection with any Remittance Agreement or otherwise,
Certen shall hold in trust for Bell the funds represented thereby
and forward such funds as Bell may from time to time
29
direct. When processing any cheques or other negotiable instruments
for Bell, Certen shall use its best efforts to ensure that such
cheques are not lost, stolen or destroyed by any means whatsoever
and Certen shall not withhold or delay the processing of any cheque
or negotiable instrument payable to Bell that comes into its
possession or control whether in connection with any dispute or
otherwise. Bell shall have the right to require at any time that all
cheques or other negotiable instruments payable to Bell or any of
▇▇▇▇'▇ Affiliates be sent or delivered by third parties directly to
▇▇▇▇.
SECTION 6. [**] AND [**]
6.1 CERTEN AS [**] SUPPLIER. Bell agrees that throughout the Term of this
Agreement Certen shall be its [**] supplier:
a. with respect to Bell [**] Bell [**], of all Customer Care Operations
Services and associated Ongoing Support Services and of all Billing
Operations Services and associated Ongoing Support Services in each
case within the scope of Exhibit A, for all Lines of Business; and
b. with respect to Bell [**] other than Bell [**], of all Billing
Operations Services and associated Ongoing Support Services within
the scope of Exhibit A, for all Lines of Business.
c. Without derogating from any other rights of Certen, the Billing
Operations Services will comprise throughout the Term, the [**] of
the BCH Companies and their subsidiaries.
▇. ▇▇▇▇ shall [**] Certen's services to ▇▇▇▇'▇ Affiliates, including,
but not limited to the following:
(i) Bell will support Certen's efforts to market and sell services
to such companies on reasonable notice by giving endorsements
of such services, provided that such endorsements can be given
in good faith, and hosting a reasonable number of site visits
and demonstrations of such services at ▇▇▇▇'▇ sites.
(ii) Bell will introduce Certen to appropriate management and
purchasing personnel at such Affiliates, reasonably facilitate
meetings between Certen and such personnel, and attend such
meetings as agreed.
(iii) Within [**] of the end of each calendar year, a responsible
financial officer of Bell will certify to Certen in writing
that the bills prepared by Certen under this Agreement
comprise a [**] of the BCH Companies and their subsidiaries
within such calendar year. Such certification will include
sufficient detail for Certen to verify the accuracy of the
certification. If requested by Certen, ▇▇▇▇'▇ independent
auditor will also certify the correctness of such information,
at Certen's expense. At Certen's option, if in any calendar
year, the bills prepared by Certen under
30
this Agreement do not comprise the [**] of the BCH Companies
and their subsidiaries, then in the following calendar year,
the [**] Right under the Master License and Services Agreement
will be [**]% of all Products and Services with respect to
[**] to be performed in such following calendar year (as such
terms are defined under the Master License and Services
Agreement); provided that if Certen exercises this option,
this shall be Certen's [**] for ▇▇▇▇'▇ breach of Section 6.1c.
6.2 NEW SERVICES. The Parties further agree that in the event of New Services
(which for greater certainty shall not include the Services to which
Section 6.1a or 6.1b applies, or the services to which the Master License
and Services Agreement applies), [**] shall be provided with the [**] to
respond to and [**] on any request for [**] (both formal and informal
requests) issued by any of the BCH Companies for such New Services. The
BCH Companies will [**] to Certen [**] of [**] and provide Certen with the
opportunity to [**], unless, in the BCH Companies' good faith discretion,
such [**] to submit a [**] or [**] of the BCH Companies' [**]. Subject to
the foregoing, the BCH Companies shall have the good faith discretion to
determine which [**], among all of the [**], is the [**] to the BCH
Companies. In addition, the Parties acknowledge and agree that certain New
Services may have to be rendered by third party service suppliers that
have, on the Effective Date, certain contractual rights with the BCH
Companies for the performance of certain services, to the exclusion of
Certen. However, throughout the Term, the BCH Companies shall [**], which
are inconsistent with the rights granted to Certen under this Section. Any
New Services which Bell requests Certen to provide shall, at ▇▇▇▇'▇
option, (a) be included in this Agreement pursuant to terms and conditions
to be negotiated pursuant to the Change Order Process, in which case such
New Services shall be deemed to be Services for the purposes of this
Agreement except with respect to the application of Section 6.1 of this
Agreement, or (b) be provided pursuant to other agreements, the terms and
conditions of which shall be negotiated by the Parties.
6.3 PROMOTION OF SERVICES. In the event that any of ▇▇▇▇'▇ Affiliates wish to
obtain the services of Certen, such Affiliates and Certen will negotiate
the terms and conditions of the applicable Project, which terms and
conditions shall be similar to the terms and conditions applicable to the
Parties hereunder.
SECTION 7. SERVICE LEVELS GUARANTEES
7.1 SERVICE LEVELS. Subject to Sections 5.5 and 5.6, Certen will provide the
Services in accordance with or in excess of the Service Levels set forth
in Exhibit C-1 and Exhibit C-2.
7.2 SERVICE LEVEL IMPROVEMENTS. Where feasible and as part of Certen's general
business strategy with respect to all of its customers, Certen will
develop an ongoing quality improvement process in its provision of
outsourcing services. In addition, it is intended by the Parties that on
completion of the Modernization, and allowing for a stabilization period
for the Modernized System (the length of which period is subject to the
approval of the Parties), the Service Levels [**].
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7.3 CRITICAL SERVICE LEVEL KVMS. Certen will report on its compliance with the
Critical Service Level KVMs on a [**] basis, in accordance with Exhibit
C-1 and Exhibit C-2. In the event that a given Critical Service Level KVM
is not met at any time, Certen will apply the necessary resources to
analyze and resolve the problem in accordance with Exhibit C-1 and Exhibit
C-2. Certen will provide a follow-up report to the applicable BCH Company
in the month following the non-compliance, detailing the source of the
problem. The report shall include the measures Certen is taking to resolve
the problem.
7.4 SERVICE LEVEL PENALTIES, REBATES AND BONUSES. The Parties agree that each
of the BCH Companies may, in ▇▇▇▇'▇ sole discretion, apply the applicable
penalties and receive the applicable penalty rebates, to the extent
provided in Exhibit C-1 and Exhibit C-2 ("PENALTY REBATE") from Certen in
the event the actual performance of a Service provided by Certen fails to
meet any one or more of the Service Levels, and that the applicable BCH
Company shall apply and Certen will receive bonuses in the event the
actual performance of a Service provided by Certen exceeds any one or more
of the Service Levels, subject to and in accordance with Exhibit C-1 and
Exhibit C-2. Notwithstanding the foregoing, Bell hereby [**] its right to
receive Penalty Rebates until further written notice to Certen, and Certen
hereby [**] its right to receive bonuses until such written notice is
delivered to Certen.
7.5 INTENT OF SECTION. The intent of this Section is to ensure that a process
is in place for Certen to track and promptly correct any performance
deviation in respect of the Services.
7.6 FAILURE TO MEET CRITICAL SERVICE LEVEL KVMS. Subject to the waivers in
Section 7.4, during the Term of this Agreement, the failure to meet
Critical Service Level KVMs shall entitle the applicable BCH Company to:
(i) receive the applicable Penalty Rebate, and (ii) such other remedies,
in each case as expressly set forth in Exhibit C-1 and Exhibit C-2;
provided, however, that any Penalty Rebate received by the applicable BCH
Company under Exhibit C-1 and Exhibit C-2 shall be deducted from any other
award, grant or receipt of damages or compensation arising from Certen's
failure to meet the Critical Service Level KVMs, subject to the
limitations set forth in Exhibit C-1 and Exhibit C-2.
7.7 SERVICE LEVELS - BELL CUSTOMER CONTRACTS. Subject to the terms and
conditions of Exhibit C-1 and Exhibit C-2, Certen will meet the required
performance levels and service levels in all Bell Customer Contracts
(including [**]) provided such contracts were provided to Certen as of the
Amendment Effective Date. The BCH Companies shall not assign to Certen
their legal obligations pursuant to any agreement under which they are
required to provide billing services to another provider of
telecommunication services (including, without limitation, any agreements
relating to settlement or termination of telecommunication traffic and any
agreement with the [**]). Without limiting the foregoing, Certen shall be
▇▇▇▇'▇ subcontractor with respect to the contracts listed in Exhibit M3
that specify that Certen will be the subcontractor.
7.8 COMPLIANCE WITH CREDIT AND COLLECTION POLICIES. Certen agrees to comply
with ▇▇▇▇'▇ credit and collection policies, at ▇▇▇▇'▇ request, as amended
from time to time (the "CREDIT AND COLLECTION POLICY"), subject to the
Change Order Process.
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7.9 GRACE PERIOD. The Service Levels will not be applicable prior to and
during the Grace Periods set forth in Exhibit C-1 and Exhibit C-2.
SECTION 8. QUALITY OF SERVICES GUARANTEE
8.1 RIGHT OF BCH COMPANIES TO ASSESS, INSPECT AND MONITOR. The BCH Companies
may conduct ongoing assessments and reasonable inspections during normal
business hours not more than twice per year (unless an emergency situation
requires more), on reasonable prior written notice to Certen, of the
Services being performed under this Agreement (including under Exhibit C-1
and Exhibit C-2 hereof). The BCH Companies shall be permitted to monitor
the Services during the Term during normal business hours at any time on
reasonable prior written notice to Certen and without charge to the BCH
Companies.
8.2 COMPLAINTS REGARDING QUALITY OF SERVICES. In the event that the BCH
Companies make a written complaint regarding the quality of the Services
being performed at a level which is lower than that which was provided
[**] to the Effective Date, and which quality of Service is not
specifically covered or captured in Exhibit C-1 and Exhibit C-2, but which
is intended by the Parties to be an obligation of Certen, Certen shall, if
requested by the BCH Companies, acting reasonably, [**] provide the BCH
Companies with a written report, within [**] Days, stating the cause (if
then known) of the deficiency and, if applicable, stating the steps to be
taken (or that have been taken) to correct the deficiency and prevent a
recurrence.
8.3 CERTEN TO MANAGE QUALITY. Quality will be managed by Certen, as part of
Certen's general business strategy with respect to all of its customers,
to improve and adapt to the needs of the BCH Companies.
8.4 CONTRACTORS AND SUBCONTRACTORS. Certen agrees and shall ensure that its
contracts entered into with its approved contractors and their
subcontractors and assignees shall provide that the Service Levels and the
other terms and conditions set forth in this Agreement and the Exhibits
hereto shall apply, if applicable, to such approved contractors and their
subcontractors or assignees in the performance of the Services.
8.5 RIGHT TO TERMINATE. Nothing in this Section derogates from ▇▇▇▇'▇ ability
to terminate this Agreement pursuant to the relevant provisions contained
herein, including Exhibit C-1 and Exhibit C-2.
SECTION 9. [**] FOR MODERNIZATION SYSTEMS AND PRICING
9.1 SURVEYS TO BE CONDUCTED. The Parties agree to conduct [**] surveys, solely
with respect to the [**] Systems, during the [**] years of the Term of
this Agreement. The purpose of such [**] surveys is to periodically
compare the [**] against [**] provided in the market place at large as to
ensure that the [**] provided by Certen to the BCH Companies are at least
[**] than [**] or "[**]".
9.2 [**] PROCESS. The [**] process will be carried out for the [**] outlined
in Exhibit C-1 and Exhibit C-2, [**] with [**], operations volumes,
technologies (for customer care and billing systems) and [**]. [**] of the
third party expert to conduct such [**] surveys will
33
be agreed upon by the Parties, and if the Parties are not able to agree
within [**] on such [**], the BCH Companies' independent external auditors
shall select the [**] to conduct such [**] and the methodology of such
[**]. The [**] which conducts the [**] shall determine the performance
levels equal to "[**]" for the purposes of the [**].
9.3 COSTS TO BE SHARED. All costs incurred to conduct such benchmarking study
will be shared by Bell and Certen on a [**] basis.
9.4 CERTEN TO IMPLEMENT RESULTS. Results of the [**] that lead to meeting
"[**]" Service Levels and to improving the value of the Service Levels (if
applicable) for the BCH Companies, will be implemented by Certen. Hence,
Certen will provide the BCH Companies, within [**] completion, with an
action plan and schedule to implement the survey results with respect to
the Service Levels for the BCH Companies' approval. Notwithstanding any
provision to the contrary contained herein, all [**] related to the
implementation of such action plan as a result of the [**] described in
this section shall be the sole responsibility of Certen.
9.5 LEGACY SYSTEMS. Notwithstanding anything in the Agreement to the contrary,
the Legacy Systems operations will not be measured in the [**] process.
9.6 [**]. The parties recognize and agree that the [**] during the [**] year
of the Term (referenced in Section 9.1 above) may also include, at the
[**] of the BCH Companies, surveys with respect to [**] for the BCH
Companies' own informational purposes. For the avoidance of doubt, the
results of such [**] shall have [**] on this Agreement or on the Parties
and are solely for the BCH Companies' benefit to assist them in making
their own business decisions.
9.7 [**]. The parties recognize and agree that a [**]of [**] and performance
shall be conducted by an [**] during the [**] year of the Term, in
accordance with Section 3.2 of Exhibit B to establish the [**] for the
[**] year of the Term and to assist ▇▇▇▇ in determining whether to extend
the Term in accordance with Section 3.1.
SECTION 10. FEES AND CREDITS
10.1 FEES. In consideration for the Services rendered hereunder by Certen, ▇▇▇▇
shall pay the Base Fees (as such term is defined in Exhibit B) in
accordance with Exhibit B. As set forth in Exhibit A and Exhibit B, the
Parties acknowledge that the Base Fees include amounts intended to [**].
For the avoidance of doubt, charges for New Services are not included in
the Base Fees and shall be charged on [**], fixed fee basis or as
otherwise agreed by the Parties.
10.2 VOLUMES FOR [**] AND [**]. The targeted volumes for [**] and [**] for each
year of this Agreement are identified in Exhibit B. The Parties agree to
review the actual volume against the targeted volume for [**] and [**] to
determine [**], if any, which are to be passed on to ▇▇▇▇, in accordance
with Exhibit B.
10.3 FEE ADJUSTMENTS. The Parties agree that the Fees indicated in Exhibit B
shall be adjusted annually by an index blend comprised according to the
cost structure, in effect
34
as follows: (i) [**]% based on the Average Hourly Earnings for [**] as
published by the Bureau of Labour Statistics, U.S. Department of Labour;
(ii) [**]% based on annual changes in the Canadian Consumer Price Index as
established by Statistics Canada; (iii) [**]% based on changes to the cost
of the unit of Canadian [**] applied most frequently to the [**] prepared
by Certen for the BCH Companies; and (iv) [**]% based on the changes to
the cost per [**]. However, if the market conditions will justify a larger
increase (or a decrease), and only if agreed to by both Parties (with
consent not to be unreasonably withheld), the increase (or decrease) of
said rates, fees and charges may be larger (or smaller). In addition, the
Parties agree that if any or all of the BCH Companies undergo a
reorganization, such as a combination, split, or spinoff which does not
affect the ultimate ownership of the BCH Companies or business units
thereof, the Fees payable under this Section 10 shall be calculated
following such reorganization in the same manner that the applicable Fees
were calculated prior to such reorganization.
10.4 DISCOUNTS. Certen shall issue discounts to ▇▇▇▇ for amounts due from
Certen to ▇▇▇▇ in accordance with the terms set forth in Sections 9 and 10
of Exhibit B. Such discounts shall be applied against the Fees invoiced to
▇▇▇▇ as provided under Exhibit B.
10.5 TAXES.
a. The Fees referred to in Section 10.1 and described in Exhibit B do
not include any amount that is or is on account of applicable
federal or provincial taxes, imposts, levies, charges, fees and
similar charges (including any interest and penalties thereon),
including, without limitation, goods and services, harmonized sales,
Quebec sales, retail sales, social services and any other sales,
use, value added, business transfer, land transfer and similar
taxes, imposts, levies and charges, and excise tax, customs and
excise duties and similar imposts, levies, fees and charges
("TRANSFER TAXES"). For greater certainty, Transfer Taxes do not
include any federal, provincial, municipal or local income, capital
or withholding taxes.
b. Certen declares that it is registered under Part IX of the Excise
Tax Act (Canada) (commonly referred to as the GST/HST legislation)
and under the An Act Respecting Quebec Sales Tax (commonly referred
to as the QST Legislation) and that its registration numbers are as
follows: GST/HST Registration number: [**], QST Registration number:
[**].
▇. ▇▇▇▇ declares that it is registered under Part IX of the GST/HST
Legislation and the QST Legislation and that its registration
numbers are as follows: GST/HST Registration number: [**]; QST
Registration: [**].
d. The Parties acknowledge that, on the date of this Agreement, no
amounts are required to be withheld in respect of taxes under the
laws and regulations administered by the Canadian taxing authorities
from Fees and other charges payable hereunder to Certen.
e. Certen represents, warrants and covenants that Certen is and at all
times will be a resident of Canada for the purposes of the Income
Tax Act (Canada) and, in its dealings with the BCH Companies, will
act as principal and not as agent for a
35
non-Canadian resident entity. As between Certen and ▇▇▇▇ and except
as provided in this Section, Certen shall be solely responsible for
the payment of all income and other taxes assessed or levied against
Certen, any approved subcontractor or agent or their respective
employees and other representatives.
10.6 UNIT PLAN. The BCH Companies have submitted to Certen, for the initial
[**] years of the Term, an annual [**] of Units at the Price Per Unit, all
as set forth in Section 5 of Exhibit B (the "UNIT Plan").
10.7 [**]. The Unit Plan for each individual year of the initial [**] years of
the Term, shall (i) be monitored by Certen, and the latter shall report to
the BCH Companies on the Units processed by Certen in such year; and (ii)
the Parties will settle any [**] by the BCH Companies exceeding CA$[**] as
a result of a variation between the [**] and the [**] processed by Certen
during such year. Such adjustments [**], plus any adjustments applicable
under Section 10.3 above, shall be invoiced separately by Certen and will
be paid by the BCH Companies within [**] of such invoice being issued.
10.8 EXPIRATION OF UNIT PLAN. After the expiration of the initial [**] years of
the Term and for each year thereafter during the Term, Certen will report
on the Units processed in such year and shall invoice the BCH Companies in
accordance with the Base Fees (as set forth in Exhibit B) and this Section
10.
10.9 [**] PRICING. The Fees contained in Exhibit B to this Agreement are the
[**] that Certen offers any other customer in the Territory for comparable
services to those provided under this Agreement and for comparable
volumes. In the event that during the Term of this Agreement, Certen
actually offers [**] to any other customer in the Territory for services
of the comparable type and volume as those provided under this Agreement,
Certen shall make [**] available to the BCH Companies, and this Agreement
shall be modified prospectively to reflect such [**]. Among the factors
that shall be taken into consideration when making these comparisons are
the scope and nature of the commitments with respect to the [**] and [**]
elements of the particular transaction, including but not limited to, the
extent and duration of the customer's commitment to order and pay for the
various services; the nature of the services provided, [**], as well as
other related terms and conditions affecting the benefits and risks
inherent in each transaction.
10.10 [**] REVENUES. In the event the revenue generated by Certen from Services
rendered to current and future Affiliates of BCE Inc. under the Agreement
is [**] percent ([**]%) or [**] than the revenue contemplated in the [**]
on an annual basis for any given [**] (the "[**] REVENUES"), the Parties
agree to the following: If the [**] exceeds the [**] identified in the
[**] from such Services with respect to the applicable [**] by [**]
percent ([**]%) (the "[**] PORTION"), ▇▇▇▇ shall be entitled to [**]
hereunder in an [**]. The determination of [**] shall utilize the same
assumptions underlying the [**] and the hourly rates as set forth in
Exhibit C of the MLSA. Any [**] under this Section remaining at the end of
the Term shall be [**] to ▇▇▇▇.
36
To demonstrate the foregoing, if, in a given [**], the [**] identified in
the applicable [**] is [**] percent ([**]%), [**] shall occur only if [**]
percent ([**]%) or [**].
For the purposes of this Section, the Parties further agree that [**], and
[**] shall be excluded as an Affiliate. Within [**] of the end of each of
Certen's fiscal years, Certen shall provide ▇▇▇▇ with a report certified
by Certen's responsible financial officer setting forth Certen's [**] for
the preceding fiscal year and indicating if any amounts are owed by [**]
to [**] under this Section. Certen grants to ▇▇▇▇ a right of audit,
through an independent firm of auditors, who shall enter into a
non-disclosure agreement with Certen, to verify the appropriate
application of the above-mentioned mechanism. Furthermore, the parties
agree that "[**]" for the purpose of this Section shall be measured based
on [**] in accordance with the financial statements of Certen for the
Services described in this section, less the annual adjustment stated in
Section 10.3. ▇▇▇▇'▇ [**] Portion shall be provided by Certen to ▇▇▇▇
[**], to occur within the following [**] following Certen's annual report
provided to ▇▇▇▇ under this Section.
10.11 The Parties agree that Certen shall be entitled to receive additional
payments for development work as set forth in Section 3.3 of Exhibit B.
SECTION 11. DEVELOPMENT WORK QUALIFYING FOR SR&ED CREDITS.
11.1 It is recognized that the BCH Companies will be entitled to Scientific
Research and Experimental Development ("SR&ED") tax credits under the
Income Tax Act (Canada) or the equivalent Provincial statutes (the "ITA"),
on the eligible development work performed by Certen or contracted by
Certen to another party (including Amdocs or any of its Affiliates) and
funded by the BCH Companies under this Agreement.
For development work performed by Certen or contracted by Certen to
another party (including Amdocs or any of its Affiliates) prior to the
Closing Date which qualifies as SR&ED and which is funded by the BCH
Companies, Certen will take reasonable efforts to provide, [**], a
statement of the eligible SR&ED expenditures for such period. Certen
agrees, with respect to such development work, to file the necessary
agreement and supporting documentation to effect the transfer of SR&ED
qualified expenditures pursuant to subsection 127(13) of the ITA.
For development work performed by Certen or contracted by Certen to
another party (including Amdocs or any of its Affiliates) for the period
from the [**] which qualifies as SR&ED and which is funded by the BCH
Companies, Certen will take reasonable efforts to provide [**] for such
development work, the required assistance needed to determine the amount
of the Fees under Section 10 that have been paid for qualifying SR&ED
conducted by Certen or contracted by Certen to another party (including
Amdocs or any of its Affiliates) for such period.
For development work performed by Certen or contracted by Certen to
another party (including Amdocs or any of its Affiliates) for periods
after [**] which qualifies as SR&ED and which is funded by the BCH
Companies, Certen shall provide, [**] from each calendar quarter, the
required assistance needed to determine the amount of the Fees
37
under Section 10 that have been paid for qualifying SR&ED conducted by
Certen or contracted by Certen to another party (including Amdocs or any
of its Affiliates) for each calendar quarter.
Certen shall provide (i) such documentation and other information as may
reasonably be required to assist the BCH Companies in claiming such tax
incentives; and (ii) timely assistance, as may reasonably be mutually
determined by ▇▇▇▇ and Certen, during and relating to audits by tax
authorities with regard to such tax incentives.
SECTION 12. INVOICING AND PAYMENT
12.1 INVOICES. Certen shall invoice ▇▇▇▇ at the beginning of the month in which
the Services, which are the subject of the invoice, are to be provided.
The invoice shall state: (i) the estimate of amounts that will be due and
payable by ▇▇▇▇ (and broken down for each BCH Companies) pursuant to this
Agreement for the coming month and (ii) a reconciliation of the actual
Fees payable by ▇▇▇▇ for Services rendered by Certen during the previous
month(s) (versus the estimate made by Certen in the previous month's
invoice) and the appropriate adjustments for Penalty Rebates, bonuses or
credits in accordance with Section 7, Section 10 and Exhibit B. Each
charge submitted on an invoice pursuant to this Agreement shall be paid by
▇▇▇▇ (and broken down for each of the BCH Companies) within [**] of
receipt. Any amount submitted on any such invoice disputed in good faith
by ▇▇▇▇ shall be paid according to the true-up procedure described above,
and, in any case, not later than [**] after the dispute is resolved or
arbitrated in accordance with Section 18.
12.2 FORM. Each invoice submitted pursuant to this Agreement shall be in such
form as ▇▇▇▇ and Certen shall agree and shall be accompanied by such
supporting information as shall be reasonably requested by ▇▇▇▇.
12.3 PROCEDURES. The following further procedures shall apply to invoices
issued hereunder:
a. any payment to Certen from ▇▇▇▇ shall be transmitted by ▇▇▇▇ to a
designated bank account of Certen by electronic funds transfer, and
at ▇▇▇▇'▇ specific request, through Internet based technology; and
b. any payment not so forwarded shall be subject to a late payment
charge. The late payment charge shall be charged against the portion
of the amount not so received or deemed to be received multiplied by
the "LATE FACTOR". The Late Factor shall be the equivalent of [**]%
per annum, calculated daily, or as otherwise mandated by regulatory
or governmental authorities; but in no event shall the applicable
Late Factor exceed the maximum rate permitted under applicable usury
laws. Any late payment charge shall be separately itemized by Certen
in its next invoice and shall be payable by ▇▇▇▇ to Certen by the
due date for that invoice.
12.4 TRANSFER TAXES.
a. The recipient (whether ▇▇▇▇ or an Affiliate or Certen, as the case
may be, in this section referred to as "RECIPIENT") of any of the
transactions contemplated in this Agreement shall be liable and
responsible for any all applicable Transfer Taxes
38
with respect thereto. All such applicable Transfer Taxes shall be
invoiced by the supplier (whether ▇▇▇▇ or an Affiliate or Certen, as
the case may be, in this section referred to as "SUPPLIER") to
Recipient. Recipient agrees to pay all such applicable Transfer
Taxes upon receipt of an invoice or equivalent documentation from
Supplier. The Supplier agrees to provide to the Recipient an invoice
or equivalent documentation in which the Supplier will separately
state the amount of any Transfer Taxes collectable by the Supplier.
Recipient shall pay such applicable Transfer Taxes to Supplier,
unless the relevant laws permit Recipient to self-assess and/or
remit the Transfer Taxes directly to the Transfer Tax authority.
Notwithstanding the foregoing, if the relevant laws authorize
Recipient to provide to Supplier a purchase exemption certificate or
otherwise qualify for exemption from the payment of any Transfer
Tax, the Recipient may provide to Supplier a valid purchase
exemption certificate or other similar certificate, permit,
documentation or information which supports exemption from Transfer
Tax and Supplier will not collect Transfer Taxes in connection with
the transactions to which the purchase exemption certificate relates
in accordance with and subject to the limitations and/or exceptions
in the relevant laws.
b. Notwithstanding anything in this Section 12.4, where Supplier,
acting reasonably, makes a determination that a particular
transaction is subject to Transfer Taxes and Recipient disagrees,
Supplier shall charge Transfer Taxes and Recipient shall pay such
Transfer Taxes upon receipt of an invoice or equivalent
documentation from Supplier. The Supplier shall, within a reasonable
time after an inquiry by the Recipient, made in good faith, provide
the Recipient an explanation concerning any determination of
Transfer Tax treatment made by the Supplier pursuant to this
paragraph.
c. In the event Recipient pays any Transfer Taxes and a determination
is subsequently made by the relevant Transfer Tax authority that
such Transfer Taxes were (1) not applicable or (2) subject to
repayment, reduction, exemption, refund, or rebate, Recipient may
submit a written request to Supplier for a repayment, adjustment, or
credit. To the extent that any such payment, adjustment or credit
may be made by Supplier directly to Recipient pursuant to the
relevant laws, Supplier shall make a payment to Recipient or provide
an adjustment or credit to Recipient in the manner and as required
by the applicable laws. In the event that the relevant laws do not
permit Supplier to make payment to Recipient or provide an
adjustment or credit to Recipient of the Transfer Taxes, Supplier
shall cooperate with Recipient to enable Recipient to claim a
credit, reduction, exemption, refund or rebate of the Transfer Taxes
under the relevant laws.
d. Supplier and Recipient agree to fully cooperate and to provide
information to each other to: (a) enable Supplier and Recipient to
more accurately determine their respective Transfer Tax liability in
respect of the amounts that are payable by the Recipient to the
Supplier, and to minimize such liability to the extent legally
permissible; (b) without restricting the generality of paragraph
(a), Supplier shall: (1) provide to Recipient confirmation of the
Supplier's valid Sales and Related
39
Taxes registration numbers when requested by the Recipient, and (2)
provide to Recipient copies of any interpretations or rulings, if
any, obtained from any Transfer Tax authority to substantiate the
Transfer Tax treatment in respect of the amounts payable by
Recipient to Supplier, and (3) use best efforts to provide any other
information or document which reasonably may be requested by
Recipient in respect of the amounts payable by Recipient to
Supplier, including but not limited to the information or documents
specified in the Input Tax Credit (GST/HST) Information Regulations;
e. Supplier and Recipient also agree that in the event any fees or
other amounts payable hereunder become subject to Transfer Taxes or
are asserted or expected to be asserted to be taxable by any
Transfer Tax authority, Supplier and Recipient will take
commercially reasonable steps, if warranted, to restructure the
provision of those services or other items in a manner acceptable to
Recipient and Supplier which would cause those services or other
items to be exempt from Transfer Taxes. Recipient shall reimburse
and hold Supplier harmless for reasonable legal fees incurred by
Supplier to restructure the provision of such services or other
items. If the Supplier incurs other operational costs to restructure
the provision of such services or other items, the Recipient shall
negotiate with the Supplier in good faith to reimburse the Supplier
a reasonable amount of such other costs.
f. Supplier further agrees to notify Recipient promptly but no more
than [**] following the receipt of notification of an audit by a
Transfer Tax authority in respect of any amounts payable by the
Recipient to the Supplier in the time period after Closing.
SECTION 13. INTELLECTUAL PROPERTY RIGHTS
13.1 AS IN MLSA. Pursuant to this Agreement, Certen, its contractors or
subcontractors and the BCH Companies' personnel may develop, create,
modify or personalize (collectively "DEVELOP" or "DEVELOPED") certain
computer programming code, including source and object code ("CODE") and
documentation to perform the Services and may Develop other Intellectual
Property. The Parties' respective rights in respect of Intellectual
Property Developed hereunder shall be as follows:
▇. ▇▇▇▇ shall own all Intellectual Property Rights in and to all Code
and documentation resulting from Certen's modifications, additions
or changes hereunder to (i) the [**] Software; (ii) any other
Software which is proprietary to ▇▇▇▇; and (iii) any other Software
which is licensed by ▇▇▇▇ to Certen under the MLSA. Certen hereby
assigns, and covenants and agrees to assign, to ▇▇▇▇ all
Intellectual Property Rights in and to such Code and documentation.
▇▇▇▇ hereby grants to Certen a [**], worldwide, paid-up license to
Use such Intellectual Property Rights internally for the benefit of
the BCH Companies to the extent necessary to perform the Services,
during the Term.
b. Certen shall own all Intellectual Property Rights in and to all Code
and documentation resulting from Certen's modifications, additions
or changes
40
hereunder to any Software which is licensed by Certen or Amdocs to
▇▇▇▇. under the MLSA. Certen hereby grants to ▇▇▇▇ a licence in
respect of such Intellectual Property Rights, which licence shall be
equivalent in scope to the licence granted by Certen or Amdocs to
▇▇▇▇ under the MLSA in respect of the Software which Certen
modified, added to or changed in order to Develop such Code and
documentation.
Notwithstanding anything else to the contrary in this Agreement, the
parties acknowledge that, following the Amendment Effective Date, Certen
shall continue to be the owner and licensor of all Intellectual Property
of which it was an owner or licensor prior to the Amendment Effective
Date.
13.2 SURVIVAL. Notwithstanding any other provision of this Agreement, Section
13.1 shall survive termination of this Agreement and continue thereafter.
SECTION 14. REPRESENTATIONS AND WARRANTIES
14.1 OF CERTEN. Certen hereby covenants, represents and warrants to the BCH
Companies that:
a. the execution, delivery and performance by Certen of this Agreement
and other documents to which it is a signatory in connection with
the matters referred to herein do not require the approval or
consent of any other person, entity or government agency and do not
and will not result in any material breach of any agreement to which
Certen is a party or by which it is bound;
b. the execution, delivery and performance by Certen of this Agreement
and other documents to which it is a signatory in connection with
the matters referred to herein have been duly authorized by all
necessary action, and constitute legal, valid and binding
obligations of Certen, enforceable against Certen in accordance with
their respective terms;
c. except with respect to any Systems, assets, documents, materials or
items (other than the Sympatico assets developed by Amdocs under the
Sympatico Project and third party licenses, which include a warranty
and indemnity by the third party licensor against intellectual
property infringement) transferred by the BCH Companies to Certen in
accordance with this Agreement, including Section 5.1 above,
performance by Certen of its obligations under this Agreement will
not infringe upon or violate any laws or regulations or any rights
of third parties, including, but not limited to, infringement or
misappropriation of Intellectual Property Rights, in a manner that
has a material adverse effect on the BCH Companies' ability to
benefit from such performance;
d. Certen is duly organized, validly existing and in good standing
under the laws of Canada; and
e. Certen is in full compliance with the Personal Information
Protection and Electronic Documents Act (Canada).
41
14.2 OF ▇▇▇▇. ▇▇▇▇ hereby covenants, represents and warrants to Certen that:
a. the execution and delivery by ▇▇▇▇, and the performance by the BCH
Companies, of this Agreement and other documents to which ▇▇▇▇ is a
signatory (excluding the Transition Agreement) in connection with
the matters referred to herein do not require the approval or
consent of any other person and do not and will not result in any
material breach of any agreement to which the BCH Companies are a
party or by which it is bound;
b. any waivers, consents, or rights [**] (including such right or
similar rights under any agreement between the BCH Companies and
[**]) have been materially complied with, do not limit or contradict
this Agreement, and do not (and will not) adversely affect the
rights of, or create new obligations for, Certen, including but not
limited to any adverse effect following a Change in Control of
Certen;
c. the execution, delivery and performance by the BCH Companies of this
Agreement and other documents to which it is a signatory (excluding
the Transition Agreement) in connection with the matters referred to
herein have been duly authorized by all necessary action, and
constitute legal, valid and binding obligations of the BCH
Companies, enforceable against the BCH Companies in accordance with
their respective terms;
d. performance by the BCH Companies of their obligations under this
Agreement will not infringe upon or violate any laws or regulations
or any rights of third parties, including, but not limited to,
infringement or misappropriation of Intellectual Property Rights, in
a manner that has a material adverse effect on Certen's ability to
benefit from such performance; provided that the BCH Companies do
not make this representation with respect to the Sympatico assets
developed by Amdocs and third party licenses, which include a
warranty and indemnity by the third party licensor against
intellectual property infringement;
e. the BCH Companies are duly organized, validly existing and in good
standing under the laws of Canada;
f. the rights (including Intellectual Property Rights) to the Systems,
assets, documents, and/or materials transferred by the BCH Companies
under Section 5.1 are (i) the same or substantially the same rights
(including Intellectual Property Rights) to Systems, assets,
documents, materials, or services relating to the Legacy Systems, as
applicable, used by the BCH Companies immediately prior to the
Effective Date; (ii) all that are materially required and relevant
in order for Certen to provide the Services and perform its other
obligations under this Agreement with respect to the Legacy Systems,
and such Systems, assets, documents, materials and services are
sufficient to conduct the Services in the manner that is
satisfactory to the BCH Companies; and (iii) transferred to Certen
free and clear of any Liens (as such term is defined in the Asset
Transfer Agreement); and
42
g. the BCH Companies are in full compliance with the Personal
Information Protection and Electronic Documents Act (Canada).
14.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
a. The representations and warranties of Certen contained in Section
14.1 shall survive the execution and delivery of this Agreement for
a period of [**] years from the date hereof and, notwithstanding the
execution and delivery of this Agreement and any inspection or
inquiries made by or on behalf of ▇▇▇▇, shall continue in full force
and effect for the benefit of ▇▇▇▇, after which time Certen shall be
released from all obligations in respect of such representations and
warranties except with respect to any Claims asserted by ▇▇▇▇ in
writing (setting out in reasonable detail the nature of the Claim
and the approximate amount of such Claim) before the expiration of
such period.
b. The representations and warranties of ▇▇▇▇ contained in Section 14.2
shall survive the execution and delivery of this Agreement for a
period of [**] years from the date hereof and, notwithstanding the
execution and delivery of this Agreement and any inspection or
inquiries made by or on behalf of ▇▇▇▇, shall continue in full force
and effect for the benefit of Certen, after which time ▇▇▇▇ shall be
released from all obligations in respect of such representations and
warranties except with respect to any Claims asserted by Certen in
writing (setting out in reasonable detail the nature of the Claim
and the appropriate amount thereof) before the expiration of such
period.
SECTION 15. NOTICES
15.1 Any notice, demand or other communication which under the terms of this
Agreement or under any statute must or may be given or made by Certen or
the BCH Companies shall be in writing and shall be given or made, all in
readable form to the recipient, by hand delivery, telegram, tested telex,
confirmed facsimile, electronic mail or similar communication or by
certified or registered mail addressed to the respective Parties as
follows:
If to Certen, to:
CERTEN INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
If to Bell, to:
43
▇▇▇▇ CANADA
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Group President-Systems and Technology
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇
and to:
▇▇▇▇ CANADA
1000 rue de La Gauchetiere ouest
Suite 4100
Montreal, Quebec
H3B 5H8
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Legal Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇
Such notice, demand or communication shall be deemed to have been given or
made when delivered in person or when received by confirmed telegram,
facsimile, or other similar communication or five (5) Business Days after
having been deposited, postage prepaid certified or registered mail in the
Canada or US mail, as the case may be. Any notice, demand or communication
to a person other than the persons set forth in this Section 15 shall be
null and void and shall not be considered sufficient notice to bind the
receiving Party. The above addresses may be changed at any time by giving
prior written notice as above provided.
SECTION 16. CONFIDENTIAL INFORMATION
16.1 Subject to this Section 16, each Party agrees to preserve in confidence
and secrecy all Confidential Information of the other Party and will not
use same for its own purposes except for the sole purpose of fulfilling
its obligations under this Agreement and will not reveal the content or
existence of such Confidential Information to Persons not authorized in
writing by such other Party to receive the same and will take all
reasonable security precautions necessary to prevent unauthorized Persons
from obtaining such Confidential Information. The recipient of the
Confidential Information agrees to use the same care and discretion to
avoid disclosure, publication or dissemination of Confidential Information
as it uses with its own similar information that it does not wish to
disclose, publish or disseminate, and in any event, shall exercise a
reasonable degree of care with respect to Confidential Information
provided by the other Party. Notwithstanding the foregoing, a Party (the
"DISCLOSING PARTY") may disclose such information to any of its approved
agents or subcontractors involved in the performance of a Party's
obligations
44
under this Agreement, with the prior written consent of the other Party,
such consent not to be unreasonably withheld, if such disclosure is
necessary to permit the approved agent or subcontractor to perform its
duties hereunder, provided that: (i) any disclosure to such agents or
subcontractors shall be under terms and conditions set forth in the
respective non-disclosure agreements of the Parties, in accordance with
Sections 16.15 and 16.16, as applicable, below; and (ii) the Disclosing
Party shall take all necessary action to ensure compliance with such terms
and conditions by any such agent or subcontractor; and (iii) the
Disclosing Party shall assume responsibility for any unauthorized
disclosure of Confidential Information by such agent or subcontractor.
Notwithstanding the foregoing, a Party may disclose Confidential
Information to those employees of its Affiliates who require such
Confidential Information for the purposes of this Agreement.
Notwithstanding any other revision of this Agreement, this Section 16
shall survive termination of this Agreement and continue thereafter.
16.2 Neither Party shall make, nor permit to be made, whether by photocopy or
otherwise, any copies, abstracts or summaries of any of the other Party's
Confidential Information except in pursuance of its obligations under this
Agreement.
16.3 The obligations in Sections 16.1 and 16.2 shall not apply to:
a. Confidential Information that has been published or has otherwise
entered the public domain without a breach of this Agreement;
b. Confidential Information that is acquired on a non-confidential
basis from third parties who did not have an obligation of
confidentiality owing to the Party which owns the Confidential
Information;
c. Confidential Information that was already in the receiving Party's
possession or was known to the receiving Party before the date
disclosed to them by the Disclosing Party; or
d. Confidential Information that is independently developed by the
receiving Party without the use of the Confidential Information.
The burden of proof in respect of any exception in Section 16.3 shall be
upon the Party seeking to rely on the exception.
16.4 It is not a breach of this Agreement to:
a. disclose Confidential Information that is required to be disclosed
by law, judicial or arbitration process or by governmental
authorities so long as the Party proposing to so disclose provides
the other Party with reasonable prior notice of such requirement in
order to permit the other Party to interpose an objection or seek an
appropriate order to prevent or limit disclosure; or
b. disclose Confidential Information that is disclosed with the prior
written consent of the other Party.
45
16.5 Each Party acknowledges and agrees that, in the event of breach of any
provision of Section 16 of this Agreement by it or by its agents or
subcontractors, the other Parties may be irreparably harmed and entitled
to equitable relief, including injunction, in addition to any right at law
to damages in respect of any harm arising from such breach.
16.6 Each Party acknowledges and agrees that no license is hereby granted
directly or indirectly under any patent, trade secret, trademark or
copyright now held by, or which may be obtained by or which is or may be
licensable by the Disclosing Party with respect to Confidential
Information. Unless expressly provided herein, this Agreement shall not be
construed as granting or conferring any rights by license or otherwise,
express or implied, for any invention, discovery or improvement made,
conceived or acquired prior to or after the date of this Agreement.
16.7 This Agreement shall be considered Confidential Information for the
purposes of this Section 16, except that the Agreement can be disclosed to
each Party's bankers, directors, officers, accountants, lawyers, financial
analysts and other advisors and consultants, subject to the
confidentiality obligations under this Section 16. This Agreement may also
be disclosed in confidence to a relevant regulatory agency pursuant to an
order or directive to such effect, subject to Section 16.4a above.
16.8 All material subcontracts or material agency contracts together with any
other contracts entered into between Certen and third parties material to
the provision of the Services shall contain confidentiality provisions, as
reasonably requested by the BCH Companies. For the purposes of this
Section 16.8, whether a subcontract or agency contract is "material" shall
be determined by Bell, with reference not to the monetary value of the
relevant subcontract or contract but to the third party's access or
potential access to Confidential Information of the BCH Companies and/or
by the strategic value of such subcontract or contract to the provision of
the Services.
16.9 Each Party agrees to promptly return to the Disclosing Party, upon its
request, or certify as destroyed all Confidential Information of the
Disclosing Party in whatever form, including all electronic and magnetic
copies and notes thereof, regardless of whether such Confidential
Information was made or compiled by the receiving Party or furnished by
the Disclosing Party.
16.10 Notwithstanding anything herein to the contrary, Certen hereby agrees to
maintain as Confidential Information and to cause its agents, employees
and subcontractors to do likewise, all information concerning or in any
way related to the BCH Companies' customers and all Databases and updates
thereto provided by the BCH Companies, regardless of whether same was
disclosed to Certen or a third party by the BCH Companies, or directly by
customer, in confidence in accordance with the obligations set forth in
the Personal Information Protection and Electronic Documents Act (Canada)
and Sections 16.3a), (b), (c) and (d) even if, a priori, any of the
provisions of subsection 16.3 would apply.
16.11 Certen's possession of the BCH Companies' Confidential Information,
through recording, analyzing, copying, collecting, compiling, tabulating
or performing similar
46
functions with such Confidential Information does not mean that such
Confidential Information is "already lawfully known" to Certen, or
"independently developed, produced or generated" by Certen within the
meaning of subsection 16.3.
16.12 The BCH Companies' possession of Certen's Confidential Information,
through recording, analyzing, copying, collecting, compiling, tabulating
or performing similar functions with such Confidential Information does
not mean that such Confidential Information is "already lawfully known" to
the BCH Companies or "independently developed, produced or generated" by
the BCH Companies within the meaning of subsection 16.3.
16.13 Certen shall exclusively use Confidential Information for the purposes of
providing the Services as provided for under this Agreement and the BCH
Companies shall exclusively use Confidential Information for the purposes
of receiving the Services as provided for under this Agreement.
16.14 Certen agrees to conduct an annual review of the BCH Companies' "code of
business conduct" including its policy respecting conflicts of interest
with its employees, approved agents, or subcontractors involved in the
performance of obligations under this Agreement and implement within its
operations, also on an annual basis, a code of business conduct similar
thereto.
16.15 Any subcontractors, agents, or other third parties of the BCH Companies
who have a need to know or may have access to Certen's Confidential
Information shall first sign the non-disclosure agreement in the form
attached as Exhibit P1; provided that any such subcontractor or third
party which works for or on behalf of a competitor of Certen shall first
sign the non-disclosure agreement in the form attached as Exhibit P2.
16.16 Any subcontractors, agents, or other third parties of Certen who have a
need to know or may have access to the BCH Companies' Confidential
Information shall first sign the non-disclosure agreement in the form
attached as Exhibit Q1; provided that in respect of any such subcontractor
or third party which works for or on behalf of a competitor of the BCH
Companies, the prior written consent of Bell must be obtained and the
subcontractor or third party must first sign the non-disclosure agreement
in the form attached as Exhibit Q2.
SECTION 17. INDEMNITY
17.1 MUTUAL INDEMNITIES. Each Party (the "INDEMNIFIER") shall at all times
defend, indemnify and hold harmless, both before the expiration or
termination of this Agreement and thereafter, the other together with that
other Party's respective officers, directors, servants, agents, and
employees (together the "INDEMNIFIED PARTIES") from and against any
allegations, claims, actions, proceedings, judgements and liabilities,
losses, damages, costs and expenses, including reasonable legal fees and
expenses (collectively "CLAIMS") incurred by or rendered against any or
all of the Indemnified Parties by reason of damage to tangible property
and injuries, including death, to all persons, arising from any occurrence
caused by any negligent act or omission or willful misconduct of, or
breach of
47
any obligation, law or regulation by the Indemnifier, or its agent(s) and
subcontractor(s) thereof related to the performance of this Agreement. The
aforesaid indemnity shall also apply to any Claim on account of any
unauthorized disclosure or use of Confidential Information, whether by
Certen or the BCH Companies or any agent or any employee of any of them.
17.2 INDEMNIFICATION OBLIGATIONS OF CERTEN. Certen agrees to indemnify, defend
and hold the BCH Companies and their respective officers, directors,
employees, agents, successors and assigns harmless from and against any
and all Losses incurred by the BCH Companies arising from or in connection
with any claims of infringement or misappropriation made against the BCH
Companies of any patent, or any copyright, trademark, service ▇▇▇▇, trade
name, trade secret or similar proprietary rights conferred by contract or
by common law or by any law of Canada or any other state, alleged to have
occurred because of equipment, systems, products or other resources or
items provided to the BCH Companies by Certen; provided, however, that
Certen will have no obligation with respect to any Losses to the extent
the same arise out of or in connection with (i) the BCH Companies'
modifications of a program or a machine or the BCH Companies' combination,
operation or use with devices, data or programs not furnished by Certen or
its subcontractors; (ii) any Systems, assets, documents, materials or
items transferred by the BCH Companies to Certen in accordance with this
Agreement, including Section 5.1 above.
17.3 INDEMNIFICATION OBLIGATIONS OF BELL. Bell agrees to indemnify, defend and
hold Certen, its officers, directors, employees, agents, successors and
assigns harmless, in accordance with the terms and conditions of this
Agreement, from and against any and all Losses incurred by Certen, arising
from or in connection with:
a. Intellectual Property. Any claims of infringement or
misappropriation made against Certen of any patent, or any
copyright, trademark, service ▇▇▇▇, trade name, trade secret or
similar proprietary rights conferred by contract or by common law or
by any law of Canada, alleged to have occurred because of any
Systems, Software, assets, documents, specifications to Develop
Code, materials or any other products or other resources or items
provided to Certen by the BCH Companies hereunder, including the
[**] Software set out in Section 5.2 (other than the Sympatico
assets developed by Amdocs and third party licenses, which include a
warranty and indemnity by the third party licensor against
intellectual property infringement, transferred to Certen in
accordance with Section 5.1 above);
b. Failure to Obtain Required Consents. Subject to Section 4.2, any
failure by the BCH Companies to obtain the Required Consents in
accordance with Section 4 above;
c. Pre-Effective Date Duties. Subject to Section 4, any duties or
obligations, including financial obligations, occurring prior to the
Effective Date of the BCH Companies, arising out of or in connection
with any third party agreement, or
48
with respect to the carrying out of the services (replaced by the
Services) prior to the Effective Date; and
d. Failure to Comply with PIPEDA. Any failure by any BCH Company to
comply with the requirements of the Personal Information Protection
and Electronic Documents Act (Canada).
SECTION 18. DISPUTE RESOLUTION
18.1 RESOLUTION BY NEGOTIATION:
a. Except as set forth below, Certen and the BCH Companies agree to
promptly utilize all reasonable efforts to resolve any controversy,
claim or dispute, whether arising during the Term or, with respect
to obligations which survive termination or expiration of this
Agreement, at any time after the expiration or termination of this
Agreement, relating to the interpretation, validity, construction,
meaning, performance or effect of this Agreement or the rights or
liabilities of the Parties or any matter arising out of or in
connection with this Agreement (a "DISPUTE").
b. If a Dispute cannot be resolved by mutual agreement within a [**]
period from receipt of written notification by one Party to the
other (which notice shall set forth full details of the matter in
dispute), either Party may refer the Dispute to resolution by the
Executive Prime of Certen as Certen shall decide and the Executive
Prime of the BCH Companies (or such other officer of the BCH
Companies succeeding to that title), such resolution to occur within
a further [**] period of the referral of the matter to these two
executives
18.2 ARBITRATION. Subject to Section 3.9.3 of Exhibit C-1 and Section X of
Exhibit C-2, any Dispute (other than any Dispute with respect to Section
12.4 of this Agreement) that has not been resolved within the second [**]
period described in Section 18.1, shall be submitted for arbitration in
accordance with the laws of Ontario then in effect and the provisions
contained herein, it being understood that such forum shall have exclusive
jurisdiction to deal with such matters.
a. The arbitration procedure shall be instituted by any Party by the
sending of a written notice to that effect to the other Party
setting forth a description of the Dispute and, if appropriate, the
provision of this Agreement as to which such matter relates (the
"NOTICE OF ARBITRATION"). Any arbitration to be conducted under this
Section 18 shall be conducted by a single arbitrator (the
"ARBITRATOR") chosen by the Parties to the arbitration within [**]
following the Notice of Arbitration. The Arbitrator shall have a
minimum of five (5) years experience in the relevant subject matter
of the dispute. In the event that the Parties fail to agree upon the
appointment of the Arbitrator within the stipulated delay, then the
Arbitrator shall be selected and appointed at the request of either
Party in accordance with the Arbitration Act (Ontario). The
arbitration shall be conducted in the English language.
49
b. As soon as practicable after his/her appointment, the Arbitrator
shall convene a meeting or a telephone conference call with the BCH
Companies and Certen or their representatives to determine the
procedure to be followed in the arbitration. If the Parties cannot
agree on the procedure to be followed, the Arbitrator shall, subject
to the other provisions of this Section 18, determine his/her own
procedure, which may or may not require the submission of written
arguments by the Parties or the holding of hearings. In any event,
the Parties agree that any arbitration hearing shall take place in
the Province of Ontario.
c. Both Certen and the BCH Companies shall [**] their respective
obligations under this Agreement during any [**], with the exception
of the obligations of any Party to [**] hereunder when (and only to
the extent that) the subject matter of the arbitration concerns such
Party's [**], provided that the Arbitrator may [**] of any provision
of this Agreement to which the subject matter of the arbitration
relates if he/she deems such [**] necessary in the circumstances for
the purposes of giving full effect to this Agreement, including this
Section 18.
d. The Parties to the arbitration shall be entitled to be represented
at any arbitration hearing by legal counsel and to be accompanied by
an interpreter.
e. Notwithstanding the provisions of this Section 18, if any of the
Parties hereto believes that it is entitled to any provisional
measure or injunctive relief, such Party shall be entitled to seek
such measure or injunctive relief through civil action before any
court having jurisdiction.
f. The Arbitrator shall be entitled to appoint an expert, if necessary,
subject to agreement of the Parties. Any costs or fees charged by
experts shall form part of the costs of the arbitration and be paid
in the manner hereinafter contemplated.
g. The Arbitrator shall endeavour to render his/her decision (the
"ARBITRATION AWARD"), within thirty (30) days following the date of
commencement of the deliberation, but shall not lose jurisdiction by
reason of his/her failure to respect this delay. The Arbitration
Award must be made in writing stating the [**] and a copy thereof
must be delivered to each Party to the arbitration. The Arbitrator,
in the Arbitration Award, shall apportion costs and expenses in the
manner he sees fit, taking into consideration the intent of the
Parties as set forth in paragraph h. below.
h. The intent of the Parties is to have the Party who is [**] and [**]
for the time and [**] arbitration to be required to [**] for the
[**] thereof in order that each Party has significant [**] incentive
to work together to resolve any differences that may arise between
them.
i. The Arbitration Award shall be final and binding upon the Parties to
the arbitration for all purposes and shall preclude, in respect of
the subject matter in dispute, any further or other recourse to any
Court otherwise having jurisdiction.
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SECTION 19. INSURANCE
19.1 Certen covenants, represents and warrants that has it taken out and will
maintain in force for the duration of the Term insurance policies, on
customary, industry standard terms, which cover E&O claims and the other
possible claims which may be insured against through the policies listed
below:
a. Workers' Compensation insurance as prescribed by the law of the
provinces or nation in which the Services are performed;
b. Comprehensive General Liability ("CGL") insurance including
employer's liability for property damage, bodily injury and personal
injury, including contractual liability and broad form property
damage and non-owned automobile liability coverage;
c. Errors & Omissions Liability ("E&O") Insurance including liability
for errors, omissions or/and negligent acts arising from the
provision of Services under this Agreement; and
d. Automobile Liability insurance for owned and leased motor vehicles.
19.2 The CGL, E&O and Automobile Liability insurance policies shall each,
either alone or combined with excess liability (umbrella) insurance
policies, have an insured limit per claim of $[**];
19.3 The CGL insurance policy shall designate the BCH Companies as an
additional named insured for insured claims to the extent caused by the
negligence of Certen, its sub-contractors, agents and employees. The CGL
insurance policy shall have a cross-liability and severability of
interests clauses.
19.4 Certen shall annually furnish to Bell, insurance certificates evidencing
its E&O, CGL, and automobile liability insurance polices, and each
policy's insured limit. The certificates shall identify the BCH Companies
as additional named insured on the CGL insurance policy to the extent of
negligence of Certen, its sub-contractors agents and employees, and record
Certen's property insurance policies and their agreement to waive
subrogation rights against the BCH Companies.
19.5 The BCH Companies shall be notified in writing at least thirty (30) days
prior to cancellation of or any material change in any of the foregoing
policies. If any such policy is so cancelled, the BCH Companies may, in
its discretion, take out and maintain any such insurance and obtain
reimbursement therefor from Certen.
19.6 Notwithstanding the foregoing provisions of this Section 19, the type and
level of insurance coverage maintained by Certen as of the Amendment
Effective Date shall be deemed to fully satisfy the requirements of this
Section for the period of one (1) year from the Amendment Effective Date.
51
SECTION 20. RELATIONSHIP/INDEPENDENT CONTRACTOR
20.1 Certen is an independent contractor and has and hereby retains the right
to exercise full control of and supervision over its own performance of
the Services under this Agreement, and retains full control over the
employment, direction, compensation and discharge of all employees
assisting in the performance of such obligations. Neither Certen nor its
employees or agents shall be deemed to be the BCH Companies' employees or
agents. It is understood that Certen is an independent contractor for all
purposes and at all times. Certen is wholly responsible for withholding
and payment of all applicable federal, provincial and local income and
other payroll taxes with respect to its employees, including contributions
from them as required by law.
20.2 Bell may reject any Certen personnel for reasons relating to the
substandard performance or inappropriate behavior of such personnel which
compromises the performance of the Services by Certen by providing written
notice of rejection (for the purposes of this section, the "REJECTION
NOTICE") and the reasons therefor in reasonable detail, to Certen. If
requested by Bell, Certen shall furnish a suitable replacement with
similar qualifications, experience, skill and abilities, as soon as
reasonably practicable and subject to ▇▇▇▇'▇ reasonable approval. The
following shall apply to such rejection and replacement of Certen's
personnel:
a. upon Certen's receipt of a Rejection Notice, Certen and Bell will
agree upon the time frames for removing the relevant personnel from
the relevant project or service;
b. in the event the rejected Certen personnel has not commenced to
provide Services for Bell prior to Certen's receipt of the Rejection
Notice, such personnel shall not commence to provide any such
Services; and
▇. ▇▇▇▇ shall pay Certen for the Services provided by such personnel
until such personnel are removed from the relevant project or
Service, provided that such Services have otherwise been accepted by
Bell in accordance with this Agreement.
Notwithstanding anything to the contrary herein, Certen will remove any rejected
personnel as soon as reasonably practicable following Certen's receipt of the
Rejection Notice, in the event that non-removal of such personnel constitutes a
significant threat to any Project, the Services or any Persons.
20.3 Nothing in this Agreement shall be construed as establishing a
partnership, joint venture or employer-employee or principal and agent
relationship (except where otherwise expressly stated) between Certen on
the one hand and the BCH Companies on the other hand. Each Party hereto is
independent and may not, at any time or in any manner whatsoever, bind or
oblige the other except as may be expressly provided for in this
Agreement.
52
SECTION 21. TERMINATION
21.1 CONVENIENCE - GENERALLY.
a. Subject to the other provisions of this Agreement, Bell may
terminate this Agreement for convenience upon at least one (1) year
prior written notice to Certen. If Bell terminates this Agreement
prior to the expiration of the Initial Term, Bell agrees to pay
Certen on the effective date of the termination specified in the
notice of termination, the termination charge to be calculated in
accordance with this Section 21.1, which the Parties agree is ▇▇▇▇'▇
sole and exclusive liability for such termination. Bell shall pay
Certen, within ten (10) Business Days from the effective date of
termination, (a) the termination charges corresponding to the year
in which the notice of termination is provided by Bell, as set forth
in the chart below; and (b) any damages, fees, costs, charges,
penalties and expenses (collectively, "COSTS") required to be paid
by Certen as a result of terminating any third party contracts
arising out of the termination for convenience of this Agreement by
Bell, subject to Certen's obligation to make reasonable efforts to
mitigate such Costs:
YEAR IN WHICH NOTICE OF
TERMINATION FOR CONVENIENCE IS
GIVEN BY BELL Termination Charge
------------- ------------------
1 CA$[**]
2 CA$[**]
3 CA$[**]
4 CA$[**]
5 CA$[**]
6 CA$[**]
7-9 CA$[**] on the first
month of the 7th.
Year and decreasing
monthly, until the
end of this 36-month
period, in CA$ [**]
increments.
The Parties agree that the termination charge listed in the right
hand column above is a genuine pre-estimate of damages and does not
constitute a [**]. The termination charge is to be paid without
deduction or set off on account of mitigation. Certen is under no
obligation to mitigate damages represented by the termination
charge. This provision shall not derogate from Certen's obligation
to mitigate Costs, as set forth above in this Section.
If ▇▇▇▇ [**] the Initial Term for the [**] period set out in Section
3 above, the parties will [**] any termination for convenience
charges applicable during such [**] period.
b. Notwithstanding Section 21.1a above, ▇▇▇▇'▇ right to terminate this
Agreement for convenience shall not apply for the [**] period
following the Amendment
53
Effective Date. For greater certainty, ▇▇▇▇ may provide notice of
termination to Certen as specified in Section 21.1a during such
[**], provided that such termination will not become effective prior
to the end of such [**] period.
21.2 MATERIAL BREACH. Upon written notice, either Party may terminate this
Agreement, without charge to the terminating Party, in the event of a
material breach by the other Party. The Party seeking termination will
provide the other Party with prior written notice of such material breach
and a [**] opportunity to cure same. If the nature of any non-monetary
breach is such that it would be unreasonable to expect a cure within the
[**] period, the breaching Party shall be given an additional [**] to cure
such breach. In the event that a material breach is not cured within the
period specified above after delivery of the notice, the non-breaching
Party, after fully complying with the [**] above (subject to Section 3.9.3
of Exhibit C-1 and Section X of Exhibit C-2), may terminate this
Agreement, which termination shall be effective, as of a date specified in
such notice of termination, but in no event earlier than the expiration of
the cure period required by this Section. In addition, ▇▇▇▇ retains the
right to terminate this Agreement on grounds expressly set forth in
Exhibit C-1 and Exhibit C-2. The terminating Party shall have all rights
and remedies generally afforded by law or equity, subject to the
limitations expressed in this Agreement.
21.3 TRANSITION-OUT. It is the intent of the Parties that at the expiration or
termination, for any reason whatsoever, of this Agreement, Certen will
Cooperate with the BCH Companies to assist with the orderly transfer of
the Services, functions and operations provided by Certen hereunder to
another services provider or the BCH Companies themselves, all as set
forth in Exhibit J (Transition-Out Planning and Services).
21.4 INSOLVENCY. Without prejudice to any other rights at law or in equity or
as otherwise contemplated in this Agreement, any Party shall have the
right to terminate this Agreement, by written notice if the other (or, in
the case of Certen, any company which directly or indirectly controls it)
shall: (a) apply for or consent to the appointment of, or the taking or
possession by a receiver, custodian, trustee or liquidator of it or all or
a substantial portion of its property, whether pursuant to the laws of
Canada or any province therein or of the United States of America or any
state thereof or any other jurisdiction; (b) make a general assignment for
the benefit of creditors or any assignment in violation of Section 27; or
(c) commence a voluntary assignment or has an involuntary assignment or
petition commenced against it under the Bankruptcy and Insolvency Act
(Canada) or any similar legislation or statutory relief whether pursuant
to the laws of Canada or any province therein or of the United States of
America or any state thereof or any other jurisdiction. In any such event,
the Party exercising the foregoing right to terminate shall promptly
notify the other Parties in writing of its intent to terminate this
Agreement, and such termination shall be effective upon the date specified
in such notice.
21.5 CHANGE IN CONTROL OF CERTEN. Certen shall obtain the prior written consent
of ▇▇▇▇ to any acquisition, directly or indirectly, by a [**] within the
Territory of [**]% or more of the voting securities of Certen. If, without
first obtaining the written consent of ▇▇▇▇: (i) a [**] in the Territory
acquires, directly or indirectly [**]% or more of the voting securities of
Certen, or (ii) Certen is merged or amalgamated with or into any Person
that is a [**]
54
in the Territory to form a new Person, then, at any time after the first
to occur of such events but not later than [**] after the last to occur of
such events, ▇▇▇▇ shall have the right to terminate this Agreement,
without charge to ▇▇▇▇ (including, for greater certainty, any payment
under Section 21.1), by delivering to Certen written notice.
21.6 TERMINATION FOR A FORCE MAJEURE EVENT.
a. if:
(i) a Force Majeure Event has occurred resulting in a cessation of
the Services and continues for a period of 30 days or in the
case of a labour strike or other material labour disruption,
180 days, and ▇▇▇▇ has delivered to Certen a Declaration of
Cessation; and
(ii) within three days after the delivery of the Declaration of
Cessation, Certen has been unable to recommence performance of
such Services itself or directly engage an alternate source
which has commenced performance of such Services,
then ▇▇▇▇ may terminate this Agreement by delivering to Certen a
termination notice on not less than 24 hours notice at any time
prior to or on the effective date of termination specified in the
notice.
21.7 OBLIGATION TO PAY FOR SERVICES RENDERED PRIOR TO TERMINATION. In the event
of any termination of this Agreement in accordance with the terms hereof,
▇▇▇▇ shall pay Certen for Services rendered prior to the actual date of
termination (which amount shall be substantiated with proof reasonably
satisfactory to ▇▇▇▇); provided, however, that payment of any amounts by
▇▇▇▇ shall be subject to rights of [**] and counterclaim and any and all
other legal and equitable rights and remedies available to ▇▇▇▇, subject
to the limitations expressed in this Agreement.
21.8 TERMINATION NOT IN LIEU OF OTHER REMEDIES. Termination of this Agreement
by a Party shall not deprive such Party of any of its rights, remedies or
actions against the other party in law or in equity, subject to the
limitations expressed in this Agreement.
21.9 RETURN OF CONFIDENTIAL INFORMATION. Within [**] of termination of this
Agreement and the end of the Transition-Out Period under the
Transition-Out Work Plan each Party will return to the other all
Confidential Information of the other Party disclosed for the purposes of
or pursuant to this Agreement.
SECTION 22. ORDERLY TRANSITION-OUT ON TERMINATION OR EXPIRY
22.1 If this Agreement is terminated or expires for any reason whatsoever then:
a. the Transition-Out Plan and related services as contemplated in
Exhibit J of this Agreement, shall be implemented;
55
▇. ▇▇▇▇ shall be responsible for payment for the Services rendered
during the Transition-Out Period in accordance with the
Transition-Out Plan unless otherwise expressly provided for to the
contrary;
c. Certen and ▇▇▇▇ shall cooperate in good faith to bring about a
smooth and orderly transition-out according to the time lines and
deadlines agreed to by Certen and by ▇▇▇▇, both acting reasonably;
and
d. Certen and ▇▇▇▇ shall utilize reasonable efforts to minimize the
costs associated with the implementation of the Transition-Out Plan.
22.2 Except as otherwise provided for in this Agreement or in Exhibit J, if
this Agreement terminates or expires, each of Certen and ▇▇▇▇ shall be
responsible for [**] incurred as a result of the implementation of the
Transition-Out Plan and the termination or expiration of this Agreement.
22.3 Certen agrees that its 2003 annual report shall be prepared in accordance
with those accounting principles which are recognized as being accepted in
Canada from time to time as set out in the handbook published by the
Canadian Institute of Chartered Accountants, consistently applied.
22.4 In order to assist in a smooth and orderly transition-out in accordance
with the Transition-Out Plan, Certen shall request from lessors, vendors,
suppliers and other third party contractors, that agreements that relate
to Certen's provision of the Services be assignable to ▇▇▇▇ without the
consent of such lessors, vendors, suppliers and other third party
contractors. Notwithstanding the foregoing, Certen shall have no liability
or responsibility arising from any such agreements that are not assignable
to ▇▇▇▇ without consent.
SECTION 23. AUDIT, SECURITY
23.1 REVIEW SECURITY MEASURES. Notwithstanding any other provision of this
Agreement, the BCH Companies shall have the right, upon ten (10) days
prior written notice to Certen (unless in the event of an emergency, in
which case the BCH Companies corporate security personnel shall have the
right, (a) upon twenty-four (24) hours prior written notice to Certen, or
(b) in the case of intentional wrongdoing, upon such prior written and/or
telephone notice to Certen as is reasonably possible under the
circumstances) but without disrupting Certen's operations, and subject to
Certen's reasonable access security requirements (as the case may be), to
make visits, during normal business hours (except in the event of
emergency situations as described above), to any of Certen's premises to
inspect the Services being performed and the equipment and materials
furnished by Certen in performing the Services solely to review security
measures respecting the Services, data respecting the customers of the BCH
Companies and/or the Database. If deficiencies are identified by the BCH
Companies or the performance is not in compliance with Exhibit K, Certen
shall promptly take such action as may be necessary or desirable to bring
the performance into compliance, all at Certen's expense. At the BCH
Companies' reasonable request, reasonable assistance shall be provided by
Certen in identifying, tracking and closing
56
security exposures. Certen's obligations set forth in the Agreement shall
not be compromised or otherwise diminished regardless of the action or
non-action of the BCH Companies with respect to the aforesaid right of the
BCH Companies to visit Certen's premises. The BCH Companies will allow
access at all times to its facilities on Certen's premises for the
purposes of installation and maintenance of Certen's interfacing
facilities.
23.2 BOOKS AND RECORDS. Certen shall keep, in accordance with Canadian
generally accepted accounting principles, books, statements, accounts and
records pertaining to this Agreement and the Services. Certen shall
preserve the books, statements, accounts and records for a period of [**]
following the expiration or termination of this Agreement, or any other
shorter period if allowed under applicable law.
23.3 a. Annual Audit Plan. The BCH Companies shall propose to Certen, and
the Parties shall mutually agree upon, an annual written audit plan
(for all the BCH Companies), as same may be amended from time to
time by the agreement between the Parties. The proposed annual
written audit plan shall be initially provided to Certen at least
forty-five (45) days prior to the commencement of each calendar year
(the "AUDIT PLAN"). The BCH Companies' initial proposal for the
Audit Plan shall specify, among other things, (i) the reasonable
audit requirements of the BCH Companies for such year (i.e.,
reasonable in terms of frequency, duration, timing and scope);
(ii) the areas to be audited over the calendar year, provided that
no area shall be audited more than [**]; and (iii) the BCH
Companies' estimate of the resources required by the BCH Companies
in the performance of such audits, and in consultation with Certen
the resources required by Certen in the provision of reasonable
assistance to the BCH Companies with respect to such audits.
b. Audit Rights. All audits conducted by the BCH Companies in
accordance with this Section 23.3 shall be at the BCH Companies'
cost and expense. Subject to the agreed Audit Plan, the BCH
Companies shall have the right, upon request, to appoint an
independent auditor or auditors or ▇▇▇▇'▇ internal auditor or
auditors, who shall be given access in accordance with the Audit
Plan, and subject to each external auditor's signing a reasonable
and appropriate confidentiality agreement, to the books, statements,
accounts, records, Systems and documentation of Certen relating
directly to this Agreement, and Certen employees relating to the
performance of the Services by Certen, and the premises where same
are located. Such access shall be for the sole purposes of
determining compliance with all the terms of this Agreement to
verify, among other matters:
(i) the accuracy of Certen's charges and invoices to ▇▇▇▇ under
the Agreement;
(ii) the accuracy of any reports that Certen is obligated to
provide to ▇▇▇▇ hereunder;
(iii) that Services are being provided in accordance with this
Agreement;
57
(iv) the adequacy and sufficiency of Certen's loss control program
in respect of operational risks;
(v) the amount of any compensation payments and cost increases
pursuant to Section 4 of Exhibit B (Fees) (the audit
applicable to this item shall be performed by an independent
third party auditor);
(vi) compliance with the control and security measures relating to
the Systems, the BCH Companies Data, Intellectual Property and
the obligations of Certen and its sub-contractors hereunder
relating thereto, as specified in Exhibit K; and
(vii) the completeness and accuracy of any/all changes to BCH
Companies billing data, related Systems, processes and/or
applications, including the process for, and management
controls over, the introduction of such changes.
c. Certen to Provide Reasonable Assistance. Certen shall provide ▇▇▇▇
with all reasonable assistance for the matters referred to in this
Section 23.3 [**] ▇▇▇▇; provided, however, that if Certen is
requested to provide assistance to an extent which is not reasonable
or standard, Certen shall so advise ▇▇▇▇ and ▇▇▇▇ shall have the
option of reducing such assistance to a reasonable level which is
mutually acceptable to the Parties or of paying Certen [**] such
additional efforts. Except as provided in Section 23.3(b)(v), the
BCH Companies shall have no right to audit any cost or pricing data,
the composition of rates or fees invoiced, records and information
pertaining to any other client or Certen's accounting policies or
practices. Following the delivery to Certen of an audit or
assessment report or security review produced in accordance with
Section 22.1 above and this ▇▇▇▇▇▇▇ ▇▇.▇, ▇▇▇▇▇▇ will take timely
corrective action in respect of any deficiencies, identified by the
audit or assessment, [**] to the BCH Companies (subject to Section
5.11 of this Agreement), to the extent such deficiencies relate to
the delivery of the Services and were substantially caused by
Certen. Such action shall be documented in a formal action plan and
provide a sufficient level of detail, including as a minimum:
- description of the deficiency or finding;
- description of the action taken or proposed to be taken
to resolve the deficiency or finding;
- an implementation schedule with specific completion
dates for each action item.
All such action plans shall be submitted in writing by Certen to the BCH
Companies within a reasonable period from the date of delivery to Certen
of the audit or assessment report. Quarterly status reports shall be
provided by Certen to the BCH Companies
58
regarding all outstanding deficiencies until such deficiencies are
resolved to the satisfaction of BCH Companies, acting reasonably. In
respect of critical deliveries, the Parties may agree to more frequent
reporting based on severity.
Certen shall assist the BCH Companies auditors in their endeavors to
obtain assurance that audit or assessment findings have been
satisfactorily addressed. In the event of disagreement between Certen and
the BCH Companies regarding the need to address audit or assessment
findings or the appropriate action necessary to resolve any such findings,
such disagreement shall be resolved by arbitration in accordance with the
dispute resolution provisions of Section 18 hereof.
23.4 SECURITY PROCEDURES. Certen shall follow and shall ensure that its
employees, subcontractors, agents or other representatives follow the
security procedures described in Exhibit "K", Security, Access and
Interface (subject to contracts with subcontractors in effect prior to the
Effective Date and which were transferred to Certen by the BCH Companies,
or from which Certen benefits, in accordance with this Agreement), which
references the BCH Companies' Security Standard for Computer and Access
Control as may be amended, reasonably, from time to time by the mutual
written consent of the parties; provided that any material additional
costs resulting from such an amendment shall be dealt with in accordance
Change Order Process, with any disagreement to be resolved by arbitration
in accordance with the dispute resolution provisions of Section 18 hereof.
Certen may request the BCH Companies' consent to vary from these standards
as may be reasonably required, which consent shall not be unreasonably
withheld. The BCH Companies will follow and shall ensure that their
employees, subcontractors, agents or other representatives follow Certen's
security policy whenever visiting Certen's operations.
23.5 PIPEDA. Each Party, its agents and subcontractors and all employees or
other representatives of any of them shall comply with the Personal
Information Protection and Electronic Documents Act (Canada). In the event
of any change, modification or adoption of a new provision to the said Act
from the present version in effect on the date of this Agreement, the BCH
Companies shall request that Certen provide an estimate of the reasonable
additional costs and expenses that would be incurred by Certen to do same
and time required to implement same together with supporting documentation
to justify the estimate. The BCH Companies shall then decide whether
Certen shall effect same and if the BCH Companies does so decide Certen
shall implement same and the BCH Companies shall reimburse Certen's
reasonable and pre-approved expenses incurred in so doing.
SECTION 24. NON-SOLICITATION
24.1 Unless otherwise agreed by the Parties, (i) during the Term of this
Agreement, each Party agrees not to solicit ([**] any of the other Party's
employees or their respective subcontractors' employees who are assigned
full or part-time to [**], and (ii) during the [**] period commencing on
Amendment Effective Date each Party agrees [**] any of the other Party's
employees or their respective subcontractors' employees who are assigned
full or part-time to [**]. Notwithstanding the foregoing, a Party will not
be in breach of
59
Section 24.1(ii) if the employee is [**] and the employee was [**] by a
Party without knowledge that the restriction under Section 24.1(ii) is
applicable to such employee.
SECTION 25. LIMITATION OF LIABILITY
25.1 (A) BOTH PARTIES AGREE THAT CERTEN'S TOTAL CUMULATIVE LIABILITY, IF ANY,
TO THE BCH COMPANIES OR ANY THIRD PARTY FOR DAMAGES RELATED TO THIS
AGREEMENT, FOR ANY CAUSE WHATSOEVER, WILL BE LIMITED TO THOSE DAMAGES
ACTUALLY PROVEN AS DIRECTLY ATTRIBUTABLE TO CERTEN, AND WILL IN NO EVENT
EXCEED [**] US DOLLARS (US $[**]), LESS THE AMOUNT OF ANY PENALTY REBATES
PAID OR PAYABLE TO THE BCH COMPANIES IN ACCORDANCE WITH EXHIBIT C-1 AND
EXHIBIT C-2, OVER THE [**] PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH
THE APPLICABLE CAUSE OF ACTION FOR DAMAGES ARISES HEREUNDER.
(B) BOTH PARTIES AGREE THAT ▇▇▇▇'▇ TOTAL CUMULATIVE LIABILITY, IF ANY, TO
CERTEN OR ANY THIRD PARTY FOR DAMAGES RELATED TO THIS AGREEMENT, FOR ANY
CAUSE WHATSOEVER, WILL BE LIMITED TO THOSE DAMAGES ACTUALLY PROVEN AS
DIRECTLY ATTRIBUTABLE TO THE BCH COMPANIES, AND WILL IN NO EVENT EXCEED
[**] US DOLLARS (US $[**]).
25.2 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY (BUT SUBJECT TO
THE OTHER LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 25), THE
MEASURE OF DAMAGES CLAIMED BY ONE PARTY AGAINST THE OTHER, INCLUDING ANY
INDEMNITY LIABILITIES RESULTING FROM THIRD PARTY CLAIMS UNDER SECTION 17,
SHALL NOT INCLUDE ANY AMOUNT FOR DIRECT DAMAGES, TO THE EXTENT THE
APPLICABLE CLAIM AND THE AMOUNT DUE UNDER SUCH CLAIM IS LESS THAN [**] US
DOLLARS (US$[**]).
25.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MEASURE OF
DAMAGES CLAIMED BY ONE PARTY AGAINST THE OTHER, INCLUDING ANY INDEMNITY
LIABILITIES RESULTING FROM THIRD PARTY CLAIMS UNDER SECTION 17, EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 25.4 BELOW, SHALL NOT INCLUDE ANY AMOUNTS
FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, ECONOMIC OR PUNITIVE
DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS
OF PROFIT OR FAILURE TO REALIZE EXPECTED SAVINGS ARISING DIRECTLY OR
INDIRECTLY FROM BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR
OTHERWISE), NEGLIGENCE, ANY ACT OR OMISSION OF ANY PARTY OR ITS
REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, EVEN IF THE
AGGRIEVED PARTY HAD BEEN ADVISED OF, HAD KNOWLEDGE OF, OR REASONABLY COULD
HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF
DOUBT, AND BY WAY OF EXAMPLE ONLY, CONSEQUENTIAL DAMAGES CLAIMED BY A
THIRD PARTY AGAINST ONE OF THE INDEMNIFIED PARTIES IS NOT
60
RECOVERABLE BY AN INDEMNIFIED PARTY AGAINST THE INDEMNIFIER (EXCEPT WHERE
CONSEQUENTIAL DAMAGES ARE EXPRESSLY RECOVERABLE AS PROVIDED IN SECTION
25.4 BELOW).
25.4 THE ABOVE MENTIONED LIMITATIONS (IN SECTIONS 25.1, 25.2 AND 25.3) WILL NOT
APPLY TO: (I) ANY FAILURE BY ▇▇▇▇ TO PAY ANY ACCRUED BUT UNPAID AMOUNTS
DUE AND OWING TO CERTEN PURSUANT TO THE TERMS OF THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, THE TERMINATION CHARGES DESCRIBED IN
SECTION 21.1 ABOVE; (II) LOSSES BY EITHER PARTY FOR BODILY INJURY OR
DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY; AND (III) EITHER
PARTY'S OBLIGATIONS TO INDEMNIFY THE OTHER FOR INTELLECTUAL PROPERTY RIGHT
INFRINGEMENT AND TAX LIABILITIES; AND (IV) ▇▇▇▇'▇ BREACH OF THE [**]
PROVISIONS OF SECTION 6.1 (FOR WHICH BREACH OF SECTION 6.1, ▇▇▇▇'▇
LIABILITY WILL BE LIMITED TO AN AMOUNT EQUAL TO THE TERMINATION CHARGES
DESCRIBED IN SECTION 21.1 ABOVE).
25.5 CERTEN'S LIABILITY FOR THE FAULTS OF ANY SUBCONTRACTORS OR THEIR SYSTEMS
WHOSE CONTRACTS WITH THE BCH COMPANIES WERE EITHER ASSIGNED TO CERTEN OR
UNDER WHICH CERTEN BENEFITS (I.E., UNDER THE CORPORATE CONTRACTS LISTED IN
EXHIBIT L1) IN ACCORDANCE WITH THIS AGREEMENT AND WITH RESPECT TO THE
LEGACY SYSTEMS SHALL BE LIMITED TO CERTEN'S OBLIGATIONS TO PROPERLY MANAGE
SUCH CONTRACTS AND SUCH PARTIES IN ACCORDANCE WITH THIS AGREEMENT. IN
ADDITION, CERTEN'S INDEMNITY OBLIGATIONS HEREUNDER WITH RESPECT TO
BREACHES ARISING UNDER SUCH CONTRACTS SHALL BE LIMITED TO THE EXTENT THAT
CERTEN IS INDEMNIFIED AND HELD HARMLESS BY SUCH SUBCONTRACTORS FOR THE
APPLICABLE FAULT OR BREACH.
SECTION 26. FORCE MAJEURE
26.1 FORCE MAJEURE.
a. Neither Party shall be liable or deemed to be in default for any
delay or failure in performance under this Agreement or the Exhibits
hereto to the extent such delay or failure is directly caused by
fire, flood, explosion, war, embargo, government requirement, civil
or military authority, act of God, labour disruption, regulatory or
legislative intervention or other similar causes beyond its control
and anticipation or foreseeability and without any fault or
negligence of the delayed or non-performing Party and provided that
the delay or failure to perform could not have been prevented by
reasonable precautions and cannot be reasonably circumvented by the
non-performing Party through the use of alternate sources, work
around plans or other means (including by meeting the obligations
for performing disaster recovery services as described in Section
5.10 of this Agreement) (each, a "FORCE MAJEURE EVENT").
61
b. If a Force Majeure Event occurs, the non-performing Party shall be
excused from further performance or observance of the obligations so
affected for as long as the Force Majeure Event prevails and such
Party continues to use all commercially reasonable efforts to
recommence performance or observance without delay. Any Party so
delayed in its performance shall immediately notify the Party to
whom performance is due by telephone (to be confirmed in writing
within 24 hours of the inception of such delay) and describe at a
reasonable level of detail the circumstances causing such delay.
c. The Parties acknowledge and agree that the provision of the Services
to ▇▇▇▇ under this Agreement is critical to the overall operations
and financial performance of ▇▇▇▇ and that a substantial
interruption of the performance of the Services would materially and
adversely affect ▇▇▇▇. Accordingly, if a Force Majeure Event or a
Guarantee Event results in the cessation of the Services (other than
due to the fault of ▇▇▇▇ or a third party), then ▇▇▇▇ shall notify
Certen in writing stating a claim that a Force Majeure Event or a
Guarantee Event has occurred (a "DECLARATION OF CESSATION"), and
then the following shall apply:
(i) Certen shall immediately begin to use all commercially
reasonable efforts to engage an alternate provider (including
▇▇▇▇) to perform such Services or recommence performance of
such Services itself. Certen shall continue such efforts until
the first of the following to occur:
(A) Certen recommences performance of such Services;
(B) an alternate provider is engaged by Certen or ▇▇▇▇
pursuant to Section 26.1c(ii); or
(C) this Agreement is terminated pursuant to Section 21.6.
(ii) If, after ten (10) days following the Declaration of
Cessation, Certen has not recommenced performance of such
Services itself or engaged an alternate provider (including
▇▇▇▇), Certen will, for a five (5) day period allow ▇▇▇▇
access to Certen's facilities as necessary for ▇▇▇▇ to assist
Certen in removing the Force Majeure Event or the Guarantee
Event, as applicable. Following such five (5) day period (the
"5-Day Period"), if the Services have not recommenced, ▇▇▇▇
may undertake to identify an alternate provider from which
Certen may be able to procure such Services. If ▇▇▇▇
identifies such an alternate source, ▇▇▇▇ shall first afford
Certen a reasonable opportunity to engage such provider to
perform such Services and manage such provider's performance,
but if that is not accomplished, and the performance of the
Services has not recommenced, then ▇▇▇▇ may itself engage such
provider to perform such Services (with Certen liable for
payment for such Services from such provider for so long as
the delay in performance shall continue, provided ▇▇▇▇
continues to pay Certen under Section 26.1(c)(iii)),
alternatively, ▇▇▇▇ may itself perform the Services. In such
circumstances that a third party provider is engaged, ▇▇▇▇
will first
62
afford Certen a reasonable opportunity to manage such provider
performance, but if that is not accomplished, then ▇▇▇▇ may
itself manage such provider performance. Certen shall
reasonably cooperate with such provider and/or ▇▇▇▇, as the
case may be, including by providing access to such Systems,
Certen personnel, and information as are reasonably necessary
for such provider to perform the Services. Notwithstanding the
foregoing, if ▇▇▇▇ or a third party provider have been unable
to recommence the Services within seven (7) days of the end of
the 5-Day Period, then Certen, Bell and/or the alternative
provider, as the case may be, shall promptly cooperate as
necessary to transfer the performance of the Services back to
Certen.
(iii) Subject to Section 21.6, Bell shall continue to pay amounts
due and payable by Bell to Certen hereunder upon the
occurrence of any Force Majeure Event or the Guarantee Event,
as applicable, but Certen shall not have the right to any
additional payments from Bell for costs or expenses incurred
by Certen as a result thereof.
(iv) Upon discontinuance of the Force Majeure Event or the
Guarantee Event, as applicable, unless the Agreement has been
terminated by Bell pursuant to Section 21.6, Certen, Bell
and/or the alternative provider, as the case may be, shall
promptly cooperate as necessary to transfer the performance of
the Services back to Certen.
26.2 DISASTER RECOVERY SERVICES; REFERENCE TO EXHIBIT I. This Section does not
limit or otherwise affect Certen's obligations to provide disaster
recovery services in accordance with Exhibit I; provided, however, that
any Force Majeure Event does not also prevent Certen's provision of the
Services from the recovery centers.
SECTION 27. ASSIGNMENT/SUBCONTRACTING
27.1 ASSIGNMENT. Except as provided in Section 27.2 below, neither Party shall
assign any or all of its obligations herein, including the provision of
the Services, to any third party unless with the prior written consent of
the other Party, which consent may be unreasonably withheld. Any approved
assignee shall expressly acknowledge and accept the provisions of this
Agreement and the Exhibits hereto and agree that it is bound thereby as if
it had been an original party and signatory to this Agreement.
a. Certen, upon written notice to Bell, may assign monies due and to
become due to Certen under this Agreement provided that Bell shall
be entitled to assert against the assignee thereof all rights,
claims and defenses of every type which Bell could assert against
Certen, whether acquired prior or subsequent to such assignment.
▇. ▇▇▇▇ may assign this Agreement and any of its rights and obligations
under this Agreement to any Affiliate of Bell or of BCE Inc.,
provided that the assignee (i) is not a material competitor of
Certen or Amdocs (it being agreed that each of [**] and [**] are
competitors of Certen and/or Amdocs; however, the Parties will
63
review and update, from time to time, the applicability of this
section to [**] and [**], subject to Certen's prior written
consent); (ii) is a successor to the same or substantially the same
service business (requiring the rendering of bills) that the BCH
Companies have as of the Effective Date; and (iii) executes such
documents as Certen may reasonably require to evidence the
assumption by the assignee of such obligations under this Agreement.
In any such event no such assignment shall relieve the BCH Companies
from any liability or obligation arising hereunder. If any
assignment permitted under this Section causes any increase in
withholding tax liability, then such sums payable to Certen shall be
increased by an amount such that following all required deductions,
Certen receives the amount equal to the sum it would have received
had no such deductions been made.
c. Certen may (A) assign this Agreement and any of its rights and
obligations under this Agreement to any Affiliate of Certen which is
a resident of Canada for the purposes of the Income Tax Act (Canada)
or (B) amalgamate with any Affiliate of Certen which is a resident
of Canada for the purposes of the Income Tax Act (Canada), provided
that the assignee or amalgamating corporation (i) is not a material
competitor of the BCH Companies; and (ii) executes such documents as
the BCH Companies may reasonably require to evidence the assumption
or confirmation by the assignee or amalgamating corporation of such
obligations under this Agreement. In any such event no such
assignment shall relieve Certen from any liability or obligation
arising hereunder.
27.2 SUBCONTRACTING.
a. Certen shall not subcontract or otherwise delegate the delivery of
any material part of the Services contemplated by this Agreement to
any Person without: (a) the prior written consent of the BCH
Companies, which consent may be unreasonably withheld; and (b) the
execution by such Person of documentation satisfactory to the BCH
Companies which protects the rights of the BCH Companies under this
Agreement; except that Certen may (without the BCH Companies'
consent) subcontract to Amdocs and any of its Affiliates for the
performance of any Services or other obligations of Certen under
this Agreement.
b. The approval by the BCH Companies of any subcontractor or other
delegate, shall not relieve Certen of its obligations under this
Agreement as primary obligor, subject to Section 24 above. In
addition to its other obligations under this Agreement, Certen shall
be responsible for the direct supervision, management and control of
any approved subcontractors and other delegates and shall ensure
that all such approved subcontractors and other delegates comply
with the terms of and perform the Services in accordance with this
Agreement. Notwithstanding any such contracting or delegating,
Certen shall remain solely liable to the BCH Companies for the
provision of the Services.
64
SECTION 28. COMPLIANCE WITH LAWS
28.1 Certen and the BCH Companies shall comply at their own expense with all
applicable federal, provincial, local and foreign laws, ordinances,
regulations and codes, including identification and procurement of
required permits, certificates, licenses, insurance, approvals and
inspections in performance under this Agreement. Certen agrees to
indemnify the BCH Companies, and Bell agrees to indemnify Certen, for any
loss or damage that may be sustained by reason of any failure to do so. In
connection with the performance of this Agreement, Bell shall, at Certen's
request or expense, take steps reasonably required to facilitate Certen's
compliance with this Section and Certen shall, at ▇▇▇▇'▇ request and
expense, take steps reasonably required to facilitate ▇▇▇▇'▇ compliance
with this Section.
28.2 Without limiting the foregoing obligations, any obligations under this
Agreement shall be performed in compliance with all applicable legislation
and government agency orders and regulations prohibiting discrimination
against any employee or applicant for employment because of race, color,
religion, sex, national origin, age or handicap. Where required by law,
certificates of compliance shall be provided.
SECTION 29. PUBLICITY AND IDENTIFICATION
29.1 Certen shall not, except with the BCH Companies' written consent, engage
in promotion or publicity about either Party's participation in this
Agreement, the content(s) hereof or the relationships contemplated herein,
or, in any circumstance connected herewith, make public use of any
Identification of the BCH Companies, or any customer or supplier of any of
them. As used herein, "IDENTIFICATION", means any copy or semblance of any
trade name, trademark, service ▇▇▇▇, insignia, symbol, logo, designation
or other product or service Identification of such person, or any evidence
of inspection by or for any of them.
29.2 The BCH Companies shall not, except with Certen's written consent, engage
in promotion or publicity about Certen's participation in this Agreement,
the content(s) hereof or the relationships contemplated herein, or, in any
circumstance connected herewith, make public use of any Identification of
Certen, or any customer or supplier of any of them.
SECTION 30. AMENDMENT/CHANGES
30.1 This Agreement shall not be amended except by written instrument signed by
the Parties hereto.
SECTION 31. WAIVER
31.1 No indulgence or forbearance by either Party hereunder shall be deemed to
constitute a waiver of its right to insist on performance in full and in a
timely manner of all terms, covenants or conditions of the other Party
hereunder and any such waiver, in order to be binding upon a Party, must
be express and in writing and signed by such Party and then
65
such waiver shall be effective only in the specific instance and for the
purpose for which it was given.
SECTION 32. SEVERABILITY
32.1 If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable this entire Agreement, but rather such provision
shall be modified or severed (as the case may be) so as to maintain to the
maximum extent possible the benefits of the Parties hereunder and the
remaining provisions of this Agreement shall be unaffected thereby.
SECTION 33. SURVIVAL OF OBLIGATIONS
33.1 The obligations of the Parties under this Agreement that are stated to or
which, by their nature would continue beyond the termination, cancellation
or expiration of this Agreement, including, by way of illustration only
and not limitation, those in the Sections entitled CONFIDENTIAL
INFORMATION, INDEMNITY, AUDIT, LIMITATION OF LIABILITY, INTELLECTUAL
PROPERTY RIGHTS, DISPUTE RESOLUTION, ORDERLY TRANSITION-OUT ON TERMINATION
OR EXPIRY shall survive termination, cancellation or expiration of this
Agreement and continue in full force and effect as provided for herein.
SECTION 34. CHOICE OF LAW AND CHOICE OF FORUM
34.1 The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the laws of the Province of
Ontario (without regard to its rules on conflicts of laws) and the laws of
Canada applicable therein. For the purposes of and solely where court
action is expressly permitted under this Agreement, Certen and Bell each
submits to the exclusive jurisdiction of the courts of the Province of
Ontario. Certen further agrees to submit to the jurisdiction of any court
wherein an action is commenced against Bell based on a claim for which
Certen has agreed to indemnify the BCH Companies under this Agreement.
Bell further agrees to submit to the jurisdiction of any court wherein an
action is commenced against Certen based on a claim for which the BCH
Companies have agreed to indemnify Certen under this Agreement.
SECTION 35. DESIGNATED REPRESENTATIVES AND GOVERNANCE PROCESS
a. Each of Certen and Bell will appoint one or more representatives who
will (a) be familiar with this Agreement, (b) be responsible for the
ongoing management of this Agreement, including billing activities,
and (c) act as the primary point of contact for such Party. The
representatives appointed by Bell shall be referred to herein as the
"BELL DESIGNATED REPRESENTATIVES" and the representatives appointed
by Certen shall be referred to herein as the "CERTEN DESIGNATED
REPRESENTATIVES". The Bell Designated Representatives and the Certen
Designated Representatives shall be identified in separate
communication between and acknowledged by the Parties. The Bell
Designated Representatives and the Certen Designated Representatives
will communicate directly with each
66
other and will be responsible for responding in a timely manner to
all requests made by the other. Each of Certen and Bell may
designate new or replacement Bell Designated Representatives or
Certen Designated Representatives, as the case may be, from time to
time by providing written notice to the other of such designation.
b. The Parties agree to follow the governance process set forth in
Exhibit F in the implementation and administration of this
Agreement.
SECTION 36. RELEASES VOID
Neither Party shall require: (i) waivers or releases of any personal rights or
(ii) execution of documents, which conflict with the terms of this Agreement
from employees, representatives or customers of the other in connection with
visits to its premises and both Parties agree that no such releases, waivers or
documents shall be pleaded by them or third persons in any action or proceeding.
SECTION 37. CHANGE ORDER PROCESS
The Change Order Process specified in Exhibit G shall be used to make changes to
the Services, including the addition of any New Services.
SECTION 38. MISCELLANEOUS
38.1 ENTIRE AGREEMENT. This Agreement, including all Exhibits attached hereto,
as the same are in effect from time to time, constitutes the entire
agreement between Certen and Bell with respect to the subject matter
hereof, and, with effect from 12:01 am (Toronto time) on the Amendment
Effective Date, supersedes and replaces the Amended and Restated Master
Outsourcing Services Agreement dated April 26, 2001. Other than as
expressly provided herein, both Certen and Bell agree that no prior or
contemporaneous oral representations form any part of this Agreement.
Additional or different terms inserted in this Agreement by a Party, or
deletions thereto, whether by alterations, addenda, or otherwise, shall be
of no force and effect, unless expressly consented to by the other Party
in writing.
38.2 ACCOUNTING TERMS. All accounting terms not specifically defined herein
shall be construed in accordance with Canadian generally accepted
accounting principles.
38.3 CURRENCY. All references to currency are deemed to mean lawful money of
Canada unless expressed to be in some other currency.
38.4 NO CONFLICT. In the event of a conflict or inconsistency between the terms
and conditions of an Exhibit hereto and the terms and conditions of this
Agreement, the terms and conditions of this Agreement shall prevail.
38.5 FURTHER ASSURANCES. The Parties shall with reasonable diligence hold all
meetings, perform all acts, execute and deliver all documents and
instruments, do all things and
67
provide all such further reasonable assurance as may be reasonably
necessary or desirable to give effect to the provisions of this Agreement.
38.6 COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts (including counterparts by facsimile), each of which shall be
deemed to be an original as against any Party whose signature appears
thereon, and all of which together, shall constitute one and the same
Agreement.
38.7 [**]. Each of Bell and Certen shall have the right to satisfy any amount
from time to time owing by it to the other of them hereunder by way of
[**] (subject first to compliance with the dispute resolution procedures
set forth in Section 18 above) against any amount from time to time owing
by the other of them to it hereunder.
38.8 INTERPRETATION.
a. In this Agreement and the Exhibits hereto, the rule of construction
that a document is to be construed more strictly against the Party
who itself or through its agent prepared it shall not apply as it is
agreed that the Parties, together, through themselves and their
agents have prepared this Agreement and its Exhibits. The terms
"hereof", "hereto", "herein", "hereunder" and similar expressions
refer to this Agreement and not to any particular Article, Section,
Subsection or Exhibit and include any agreement supplemental hereto.
b. The division of this Agreement into Articles, Sections, Subsections
and Exhibits and the insertion of recitals and headings are for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
c. In the event that any date on which any action is required to be
taken hereunder by any of the Parties is not a Business Day, such
action shall be required to be taken not later than on the next
succeeding Business Day, unless otherwise provided in this
Agreement.
d. Wherever in this Agreement the context so requires, the singular
number shall include the plural number and vice versa and any gender
herein used shall be deemed to include the feminine, masculine or
neuter gender.
38.9 TIME OF ESSENCE. Time shall be of the essence in this Agreement.
Notwithstanding the foregoing: (a) the remedies for failure to meet timing
and/or scheduling obligations shall be only as expressly provided in this
Agreement; and (b) the foregoing "time is of the essence" clause shall not
be in effect with respect to Exhibit C-1 or Exhibit C-2, which already
reflects the agreed time limitations and remedies with respect to the
Service Levels.
38.10 FINANCIAL RESPONSIBILITY. Financial responsibility relating to a
particular function lies with the Party who has the responsibility of
performing that function unless otherwise indicated in this Agreement.
68
IN WITNESS WHEREOF, Certen and Bell have executed this Agreement.
CERTEN INC.
Per: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ c/s
----------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
PRESIDENT & CHIEF EXECUTIVE OFFICER
▇▇▇▇ CANADA
Per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ c/s
----------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
GROUP PRESIDENT - SYSTEMS AND TECHNOLOGY
FINAL
EXHIBIT A
DEMARCATION POINTS AND SERVICE DEFINITIONS
1. PART A - RECITALS
1.1 INTRODUCTION
1.1.1 The purposes of this Exhibit A to the Agreement are as follows:
A. to define all demarcation points that identify the services
that are within the scope of the Services provided by Certen;
B. to describe the Services;
C. to define all existing applications that will be the baseline
definition of the Services for Certen's operation; and
D. to define all functions and responsibilities which are to be
performed by Certen in delivering the Services.
1.1.2 This Exhibit A specifies the Services affecting the Legacy Systems,
and Modernized Systems, which Services are the same or substantially
the same as the customer care and billing services and operations
provided internally or received by the BCH Companies (including ▇▇▇▇
Sympatico and Bell Nexxia) just prior to the Effective Date.
Notwithstanding the foregoing, only the customer care services which
Certen agreed to provide to Bell (not including ▇▇▇▇ Sympatico and
Bell Nexxia) as of the Effective Date form part of the Services
hereunder. After the Amendment Effective Date, the Parties shall
review this Exhibit A and modify the description of the Services
(including the Demarcation Tables in Annex I, as necessary) to the
extent it has changed as a result of (i) the transfer of the
Oversight Functions to Bell; and (ii) the work performed to date on
the Modernization. The Parties shall complete such review and
modification by December 31, 2003. After completion of
Modernization, the Parties shall further review this Exhibit A and
adjust the description of the Services only to the extent it has
changed as a result of further Modernization. The Parties
acknowledge that Exhibits O-1 and O-2 represent the most current
statement of each Party's roles and responsibilities.
1.2 FINALIZING THE EXHIBIT
As of the date of signing, this Exhibit A contains incomplete or
partial information regarding the Annexes hereto (including the
Envelope
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Parameters) and the description of the Services as noted in Section
1.1.2 above Accordingly, the Parties will, as soon as practicable
after the Amendment Effective Date and in any event prior to
December 31, 2003, negotiate in good faith to resolve and complete
all missing data items or other information marked by "***" in this
Exhibit A and take the steps set out in Section 1.1.2 above.
1.3 DEFINITION OF TERMS
Unless otherwise defined herein, capitalized terms used in this
Exhibit shall have the meaning ascribed to them in the Agreement.
The following terms shall have the following meanings:
"[**]" has the meaning set forth in Section 2.1 of Exhibit A.
"DEVIATION" means any deviation in the Envelope Parameters described
above, being a result of a cause attributable to the Services
provided to the BCH Companies;
"ENVELOPE PARAMETERS" means the service factors that define the
boundaries of the functions, responsibilities and volume of Services
to be provided by Certen for the [**] as set out in Exhibit A. Any
[**] (as defined below) from these parameters, whether in the event
of a [**], a change in any Service and/or an [**] in the [**] or
requirements thereof (to the extent provided for within any [**],
subject to the guiding principles set out in Section 4), or
otherwise, may result in the work being handled within the Change
Order Process, which may have an effect on the cost of Services, as
set forth in Exhibit B;
"LINES OF BUSINESS" means all existing, as of the Amendment
Effective Date, lines of business of the BCH Companies, whether
retail or wholesale, including, but not limited to, the following
lines of business: (1) Wireline; (2) Cellular; (3) Wireless; (4)
Long distance; (5) International; (6) Paging; (7) Local; (8)
Internet; (9) Toll free; (10) IP; (11) VOIP; (12) PABX extensions;
(13) Data services (including, but not limited to, via cable); (14)
Custom corporate solutions; (15) Business ISP; (16) Broad band
services; (17) 900/976; (18) Terminal equipment; (19) Directory
service charges feed; and (20) Pre-paid subscriptions to the
foregoing. Any additional Lines of Business that are not referenced
above will be agreed between the Parties in accordance with the
Change Order Process.
"PRICE PER UNIT" has the meaning ascribed thereto in Exhibit B to
the Agreement.
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"USE CASES" means the sub-processes or sub-services set forth in
Annex 2 to Exhibit A, the purpose of which is to assist the Parties
to analyze the demarcation lines of the Services (as defined in
Annex 1 to Exhibit A). Each Use Case is a subset of a Service
describing a sequence of actions that represents a business process.
"THIRD PARTY CUSTOMERS" has the meaning set forth in Section 2.2.2
of Exhibit A.
2. PART B - ORGANIZATION
2.1 INTRODUCTION
This part of Exhibit A refers to the procedures for Certen's receipt
of all relevant information concerning the operational organizations
of the BCH Companies, along with the operational organizations of
the [**], listed in Section 2.2.2 below ("[**]") and other third
party customers of Bell under Bell Customer Contracts, to whom
Certen will provide continuing services to satisfy ▇▇▇▇'▇
obligations under the applicable third party contracts with the [**]
and such other Third Party Customers of Bell, as set forth in
Section 2.2.2 below in accordance with the Agreement.
This Part B refers to the procedures for Certen's receipt of all
relevant information concerning the operational organizations that
will be replaced, or interfaced with, as a result of Certen's
In-Scope Operations responsibilities.
2.2 RECIPIENTS OF THE SERVICES
2.2.1 BCH COMPANIES
At Certen's request, Bell shall promptly provide all relevant
information to Certen concerning applicable Lines of Business of the
BCH Companies, the applicable contact person for the BCH Companies,
and any other information requested by Certen which is relevant for
purposes of Certen's provision of the Services.
2.2.2: THIRD PARTY CUSTOMERS UNDER BELL CUSTOMER CONTRACTS
The table below provides the list of all third party customers under
the Bell Customer Contracts, comprised of the (i) [**]; and (ii)
other third party customers of Bell, as of the Amendment Effective
Date, each of which shall receive the Services, to the extent
provided by Bell as of the Amendment Effective Date, as described in
this Exhibit A (collectively, the "THIRD PARTY CUSTOMERS"). For the
avoidance of doubt, the contracts between Bell and the [**] and Bell
and the other third party customers of Bell shall not be assigned or
otherwise transferred to Certen.
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--------------------------------------------------------------------
Contract Acquired
Company Name with Services Remarks
--------------------------------------------------------------------
[**]:
--------------------------------------------------------------------
1. [**] ▇▇▇▇ [**] [**]
--------------------------------------------------------------------
2. [**] ▇▇▇▇ [**] [**]
--------------------------------------------------------------------
3. [**] Bell [**] [**]
--------------------------------------------------------------------
4. [**] Bell [**] [**]
--------------------------------------------------------------------
OTHER THIRD PARTY
CUSTOMERS UNDER BELL
CUSTOMER CONTRACTS:
--------------------------------------------------------------------
1. [**] ▇▇▇▇ [**] [**]
--------------------------------------------------------------------
2. [**] ▇▇▇▇ [**] [**]
--------------------------------------------------------------------
3. [**] Bell [**] [**]
--------------------------------------------------------------------
2.3 OPERATIONAL ORGANIZATION
At Certen's request, Bell shall promptly provide all relevant
information to Certen concerning the organization structure, as well
as descriptive and quantitative information related to the BCH
Companies and the Third Party Customers above as may be necessary to
provide the Services and subject to applicable confidentiality
restrictions on ▇▇▇▇'▇ ability to disclose such information.
2.4 BILLING USERS
At Certen's request, Bell shall promptly provide all relevant
information to Certen concerning the names, titles and
responsibilities of all users in the BCH Companies and the Third
Party Customers that will have a direct working relationship with
Certen personnel.
2.5 BCH COMPANIES' LINES OF BUSINESS
At Certen's request, Bell shall promptly provide detailed
information concerning the Lines of Business of each of the BCH
Companies and the Third Party Customers under Bell Customer
Contracts listed in Section 2.2.2 above as may be necessary to
provide the Services and subject to applicable confidentiality
restrictions on ▇▇▇▇'▇ ability to disclose such information.
3. PART C - SERVICES
3.1 INTRODUCTION
This Section 3.1 describes and refers to the annexes which define
all Services to be provided by Certen to the BCH Companies and the
Third Party Customers under this Exhibit A. The Parties recognize
and agree that all of these Services were being
-5-
provided internally or received by the BCH Companies and/or the
Third Party Customers immediately prior to the Effective Date.
Notwithstanding the foregoing or anything else in the Agreement, the
Parties assume that the current [**] with respect to [**] (i.e.,
[**] Operations Services delivery to Bell) [**] will be [**] on the
Amendment Effective Date from those [**] during the year prior to
the Amendment Effective Date. [**] made by Certen in accordance with
the Agreement prior to the Amendment Effective Date which are part
of the [**] will [**] in place and will [**] to be honoured by
Certen. Likewise, Bell shall not be required to have Certen perform
and Certen will not be required to perform activities that [**] are
[**] by Certen (i.e., that are not part of the [**]) provided that
this will not excuse Certen from implementing commitments that prior
to the Amendment Effective Date under the Agreement are to be
implemented only at a date following the Amendment Effective Date.
Each of these Services is further broken down, and described, at the
levels of Use Cases.
Annex 1 to this Exhibit contains the demarcation tables.***
Annex 1A to this Exhibit contains a description of the Ongoing
Support Services.
Annex 2 to this Exhibit contains Use Cases.***
Annex 3 to this Exhibit contains demarcation forms.***
Annex 4 to this Exhibit contains the Logical Interfaces between (i)
Certen and each of the BCH Companies (ii) Certen and Third Party
Customers, and (iii) Certen and certain third party vendors, all as
were available to the Parties as of the Amendment Effective Date.***
Annex 5 to this Exhibit contains the Envelope Parameters for the
Legacy Systems and the Modernized Systems, along with definition and
value setting guidelines to guide the Parties in the process of
defining and detailing all relevant Envelope Parameters. ***
3.2 SCOPE OF CERTEN'S [**]
The Services defined below are the Services for which Certen has
[**] under Section 6 of the Agreement:
3.2.1
a. Customer Care Operations Services, Billing Operations
Services and associated Ongoing Support Services for
[**]
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as detailed in Table A1 (Demarcation Matrix) of Annex 1,
for all Lines of Business; and
b. Billing Operations Services and associated Ongoing
Support Services for [**], as detailed in Table A1
(Demarcation Matrix) of Annex 1, for all Lines of
Business.
3.2.2 For greater certainty, the Parties recognize and agree that,
for purposes of the scope of Certen's [**] set forth in
Section 6.1 of the Agreement, the demarcation matrix set forth
in Table A1 of Annex 1:
(a) shall not be subject to reduction; and
(b) shall apply to Certen's provision of the various
services enumerated therein, irrespective of the Systems
on which such services are delivered (or any
modernizations or upgrades of such Systems), including
but not limited to, the Legacy Systems, the Modernized
Systems, and any other billing and/or customer care
Systems, whether acquired, licensed, leased, or
otherwise used by the BCH Companies throughout the Term,
and irrespective of the Lines of Business which are the
subject of such services.
3.2.3 At anytime after the Effective Date, should any service
performed by or benefiting the BCH Companies fall within the
scope of Section 3.2.1 or 3.2.2, e.g., whether because such
service was not previously identified or is required as a
result of the acquisition by or use of the BCH Companies of
any System or application, such services shall be [**] to be
in [**] (subject to Certen's [**] under Section 6.1 of the
Agreement), and the BCH Companies shall transfer such
services, applications or systems to Certen, including any
relevant employees, in accordance with the Change Order
Process (as defined in Exhibit G) as applicable, unless the
Parties mutually agree in writing that, in the [**] of the BCH
Companies and Certen, such services, applications or systems
(including any related employees) shall not be transferred to
[**] and shall therefore be treated as [**] services for the
purpose of this Agreement.
3.2.4 For greater certainty, BCH web site(s) strategy, including
look and feel and customer experience
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requirements for the billing and customer care customer
facing/interfaces, [**] for Certen. The billing and customer
care applications (excluding customer care for Wireline but
including web presentment/ interfaces where relevant) that
link to the BCH web sites [**] for Certen.
4. PART D - ENVELOPE PARAMETERS
4.1 A detailed table with the Envelope Parameters for all the BCH
Companies is set forth in Annex 5 to this Exhibit A. The
Parties agree to observe and comply with the following
"Guiding Principles" in connection with the Envelope
Parameters:
(a) Envelope Parameter [**] will be reported [**]
(b) Baseline values for the Envelope Parameters for the
Modernized Systems set out in Annex 5 will be
established during the applicable completion period set
out in Section 4.2 below (the "COMPLETION PERIOD".);
(c) The Parties shall negotiate in good faith to jointly
define the Envelope Parameters for the Legacy Systems
and the baseline values therefor by [**]. A table
setting out agreed Envelope Parameters and baseline
values for the Legacy Systems shall be attached hereto
as Annex 5A.
(d) all Envelope Parameters will be measured in terms of
variation from the agreed-to baseline values;
(e) The Parties agree that the following parameters are not
included in the Envelope Parameter list set forth in
Annex 5 to this Exhibit A. However, the Parties agree to
measure these parameters on an ongoing basis and discuss
the need for these parameters on the first annual review
of the Envelope Parameters:
(i) [**]; and
(ii) "[**]".
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4.2 The Parties shall negotiate in good faith to jointly define,
within the applicable Completion Period as set out below, the
baseline values for the Envelope Parameters relating to the
Modernized Systems.
--------------------------------------------------------------
TYPES OF COMPLETION PERIOD
ENVELOPE
PARAMETER
BASELINES
-------------------------------------------------------------
A [**] Within [**] of the Amendment Effective
Date.
-------------------------------------------------------------
B [**] Within [**] of the Amendment Effective
Date, or within [**]post-normalization
in the case of new applications.
-------------------------------------------------------------
C [**] [**] of representative
post-normalization data to be
available in order to set baseline
value; baseline value to be set
within [**]of availability.
-------------------------------------------------------------
4.3 In the event that a Deviation in any one or more of the
Envelope Parameters shall occur, the impact of such Deviation
and other changes shall be assessed as provided for in Section
4.1 of Exhibit B.
4.4 A change in an Envelope Parameter may affect various
operational components of Certen, including, but not limited
to, the Data Center resources, quality assurance costs, and
human resources at various professional levels.
4.5 The Parties acknowledge that changes in the Envelope
Parameters may affect various Key Value Measures and service
level commitments set forth in Exhibit C-1 and Exhibit C-2
(collectively, "PERFORMANCE MEASURES" or "PMS"). During the
Completion Period, the Parties shall negotiate in good faith
to link applicable Envelope Parameters listed in Annex 5 to
one or more relevant PMs.
-9-
4.6 Detailed tables with the Envelope Parameters for the
Modernized Systems and the Legacy Systems applicable to all
the BCH Companies and the Third Party Customers shall be set
forth in Annex 5 and Annex 5A to this Exhibit A.
4.7 The Envelope Parameter values will be reviewed by the Parties
[**] in the [**] period following [**] the Amendment Effective
Date, and adjusted to reflect the actual values achieved [**]
reviews will be based on [**] of data; however, for the
purposes of the first review of Envelope Parameter Values
hereunder relating to the Modernized Systems, Bell
acknowledges and agrees that the review of the Envelope
Parameters will be based on [**] of data.
4.8 Certen will send Bell a monthly report of the raw data
collected for the each Envelope Parameter.
4.9 The Parties agree that the following parameters are not
included in the Envelope Parameters. However, the Parties
agree to measure these parameters on an ongoing basis and
discuss the need for these parameters on the first annual
review of the Envelope Parameters:
a) [**]; and
b) [**].
4.10 The Parties agree that, as processing accounts with many
subscribers ("big BANs") consumes more resources than accounts
with few subscribers, the Parties will collaborate to balance
cycles in order to minimize Certen's cost.
5. PART E - OTHER DEMARCATION POINTS
Other demarcation points, as set forth below, shall be mutually
developed and agreed by the Parties, at such time as is relevant and
applicable.
5.1 Hardware Demarcation Points
5.2 Telecommunications demarcation Points other than demarcation
points for the Services.
5.3 Application Demarcation Points
-10-
5.4 Operational Demarcation Points
5.5 Miscellaneous Demarcation Points
6. PART F - RESPONSIBILITIES AND OBLIGATIONS
Roles and responsibilities of the Parties with respect to
Development Work and Operations Services are set forth in Exhibits
O-1 and O-2 of the Agreement, respectively, and are incorporated
herein by reference.
-11-
ANNEX 1 - DEMARCATION TABLES
TABLE A1 - DEMARCATION MATRIX
TABLE A2 - APPLICATION DEMARCATION
TABLE A3 - PROCESS/ SUB PROCESS DEMARCATION ASSOCIATED WITH THE ORGANIZATIONAL
UNITS
-12-
ANNEX 2 - USE CASES
USE CASES ARE ATTACHED AS A SEPARATE FILE, AS FOLLOWS:
-13-
ANNEX 3 - DEMARCATION FORMS
The Parties recognize and agree that the Demarcation Forms are attached to this
Exhibit for reference purposes only to illustrate the methodology used for
demarcation due diligence and the methodology which may be used for analyzing
future service demarcations between the Parties.
DEMARCATION FORMS ARE ATTACHED AS A SEPARATE FILE, AS FOLLOWS:
-▇▇-
▇▇▇▇▇ ▇ - ▇▇▇▇▇▇ EXTERNAL LOGICAL INTERFACES
CERTEN EXTERNAL LOGICAL INTERFACES ARE ATTACHED AS A SEPARATE FILE, AS FOLLOWS:
-▇▇-
▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇ PARAMETERS FOR THE MODERNIZED SYSTEMS ***
Current Envelope Parameters relating to the Modernized Systems as of the
Amendment Effective Date - values to be completed.
ENVELOPE PARAMETERS TABLE FOR THE MODERNIZED SYSTEM IS ATTACHED AS A SEPARATE
FILE, AS FOLLOWS:
-▇▇-
▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇▇▇ PARAMETERS FOR THE LEGACY SYSTEMS ***
ENVELOPE PARAMETERS TABLE FOR THE LEGACY SYSTEMS WILL BE ATTACHED AS
ANNEX 5A BY [**]
FINAL
EXHIBIT B
FEES
TABLE OF CONTENTS
Section 1: Recitals
Section 2: Definitions
Section 3: Base Fees and One Time Fees
Section 4: Compensation for Exceeding Envelope
Parameters (Scope of Services)
Section 5: 2003 and 2004 [**]
Section 6: E-▇▇▇▇ and Eligible Consolidated Bills [**]
Section 7: Adjustment of Base Fees and Rates
Section 8: Time and Materials Rates
Section 9: [**] Ensemble Credit Pots
Section 10: Other Credits
ANNEXES
Annex 1 - E-bills and Eligible Consolidated Bills [**]
Annex 2 - Business Case
Annex 3 - List of Enterprise Accounts
2
1. RECITALS
1.1 INTRODUCTION
1.1.1 The purpose of this Exhibit B to the Agreement is:
(a) to specify the Fees and payment scheme produced and
agreed by the Parties, based on the Business Case ground
rules;
(b) to maintain a balance between the [**] model and the
[**] necessary to meet the BCH Companies' business
requirements; this balance is maintained through the
Envelope Parameters, as specified below;
1.1.2 Under the ground rules of the Business Case, the Parties have
agreed that the [**] should not be [**] below the [**] set
forth in Section 3.1(a) of this Exhibit B as a result of
Certen's efforts to [**] its operational [**].
1.1.3 The Business Case on which this Agreement is based is included
as Annex 2 to this Exhibit.
2. DEFINITIONS
2.1 Unless otherwise defined herein, capitalized terms used in this
Exhibit shall have the meaning ascribed to them in the Agreement.
"2001 OPERATIONAL YEAR" means the period commencing as of the beginning of
January 26, 2001 and concluding at the end of December 31, 2001.
"2002 ENTERPRISE BILLS" means the [**] Enterprise Bills that the Parties
have agreed were prepared by Certen during the 2002 Operational Year for
the customers of BCE Nexxia Inc. The customers of BCE Nexxia Inc. for whom
Enterprise Bills were prepared during the 2002 Operational Year are to be
listed in Annex 3 to this Exhibit B within [**] of the Amendment Effective
Date.
"2002 OPERATIONAL YEAR" or "2ND OPERATIONAL YEAR" means the period
commencing as of the beginning of January 1, 2002 and concluding at the
end of December 31, 2002.
"2003 ACTUAL NUMBER OF UNITS" means the actual number of Units billed by
Certen for each Line of Business referred to in the table in Section 5.1
during the 2003 Operational Year plus the actual number of Units billed by
Certen for such Lines of Business during January of the 2004 Operational
Year.
3
"2003 [**] NUMBER OF UNITS" means the total [**] number of Units for each
Line of Business set forth in the Table in Section 5.1.
"2003 MONTHLY UNIT [**]", with respect to each month in the 2003
Operational Year, and with respect to January of 2004, means the [**]
number of Units set forth in the column which relates to such month in the
table set forth in Section 5.1 of Exhibit B.
"2003 OPERATIONAL YEAR" or "3RD OPERATIONAL YEAR" means the period
commencing as of the beginning of July 1, 2003 and concluding at the end
of December 31, 2003.
"2003 [**]" means, with respect to each Line of Business referenced in the
Table in Section 5.1, [**] the [**] for the 2003 Operational Year
multiplied by the number of Units, if any, by which the 2003 [**] Units
for that Line of Business [**] the 2003 [**] Units for that Line of
Business.
"2003 VALUES" shall mean such fees and other prices adjusted from December
2002 onward, in accordance with the fee adjustment mechanism set forth in
Section 10.3 of the Agreement.
"2004 OPERATIONAL YEAR" or "4TH OPERATIONAL YEAR" means the period
commencing at the beginning of January 1, 2004 and concluding at the end
of December 31, 2004.
"2005 OPERATIONAL YEAR" or "5TH OPERATIONAL YEAR" means the period
commencing at the beginning of January 1, 2005 and concluding at the end
of December 31, 2005.
"2006 OPERATING [**]" means the average Operating [**] of
Amdocs Ltd., and
its operating subsidiaries [**]). The 2006 Operating [**] shall be stated
as a percentage of the revenue [**]. Such percentage shall [**] than [**]%
and shall not exceed [**]%.
"2006 OPERATIONAL YEAR" or "6TH OPERATIONAL YEAR" means the period
commencing at the beginning of January 1, 2006 and concluding at the end
of December 31, 2006.
"2007 OPERATIONAL YEAR" or "7TH OPERATIONAL YEAR" means the period
commencing at the beginning of January 1, 2007 and concluding at the end
of December 31, 2007.
"2008 ENTERPRISE ▇▇▇▇ COSTS" means [**] of the costs actually incurred by
Certen in order to provide the Billing Operations Services and the
Customer Care Services provided with respect to the Enterprise Accounts
and Enterprise Bills during the period from[**] as calculated by the
external auditors of Certen and, subject to the provisions set forth
below, reviewed by the external auditors of ▇▇▇▇ Canada. For avoidance of
doubt with
4
respect to the calculation of the 2008 Enterprise ▇▇▇▇ Costs: (i) the
costs associated with the operation of the Systems used to prepare
Enterprise Bills and other bills shall be allocated, based on the actual
[**] usage and [**] usage, among all of the bills (Enterprise Bills and
the other bills prepared using such Systems); and (ii) the 2008 Enterprise
▇▇▇▇ Costs will include any costs of a nature which are, in accordance
with generally accepted accounting principles, applied in a manner
consistent with those applied to prepare the annual report referred to in
the definition of 2006 Operating [**], in connection with operations of
the Subsidiaries and operating units of Amdocs Limited (or its successor)
to calculate such Operating [**] figures. The 2008 Enterprise ▇▇▇▇ Costs
shall be calculated and delivered by Certen's external auditors to ▇▇▇▇
Canada's external auditors no later than [**]. Any questions raised by
▇▇▇▇ Canada's external auditors with respect to the method of calculation
shall be promptly addressed by Certen's external auditors and if not
resolved within [**], shall be referred to the [**] set forth in Section
18.1 of the Agreement and if not resolved within [**] shall be referred to
arbitration in accordance with the mechanism provided in Section 18.2 of
the Agreement. The Parties agree that, until such time as the Arbitrator
determines the 2008 Enterprise ▇▇▇▇ Costs, the applicable 2008 Enterprise
▇▇▇▇ Costs shall be the average of the 2008 Enterprise ▇▇▇▇ Costs as
calculated by Certen's external auditors and the estimate provided by ▇▇▇▇
Canada's external auditors (the "AVERAGE 2008 ENTERPRISE ▇▇▇▇ COSTS"). The
2008 Enterprise ▇▇▇▇ Costs determined by the Arbitrator shall apply [**]
to the [**] 2008 Operational Year, and there will be a one-time payment or
credit in the amount of the difference between the 2008 Enterprise ▇▇▇▇
Costs, as ultimately determined by the Arbitrator, and the Average 2008
Enterprise ▇▇▇▇ Costs.
"2008 ENTERPRISE ▇▇▇▇ ▇▇▇▇▇" means [**]
"2008 OPERATIONAL YEAR" or "8TH OPERATIONAL YEAR" means the period
commencing at the beginning of January 1, 2008 and concluding at the end
of December 31, 2008.
"2009 ENTERPRISE ▇▇▇▇ ▇▇▇▇▇" means the 2008 Enterprise ▇▇▇▇ ▇▇▇▇▇ as
Indexed at the beginning of the 2009 Operational Year.
"2009 OPERATIONAL YEAR" or "9TH OPERATIONAL YEAR" means the period
commencing at the beginning of January 1, 2009 and concluding at the end
of December 31, 2009.
"2010 ENTERPRISE ▇▇▇▇ ▇▇▇▇▇" means [**]
5
"ACTUAL 2008 WORK" means the Additional Work with respect to the entire
2008 Operational Year.
"ACTUAL ENTERPRISE BILLS", with respect to a month, means the number of
bills prepared for Enterprise Accounts by Certen in respect of that month.
"ACTUAL UNITS", with respect to a month, means the number of Units
actually billed by Certen during such month.
"ADDITIONAL PAYMENTS" has the meaning ascribed thereto in Section 3.3.
"ADDITIONAL WORK" means revenue recognizable by Certen or its Affiliates
according to GAAP in respect of the products or services provided to the
BCH Companies, weighed as described below, [**]
"BASE FEES" with respect to a month, means the fees payable to Certen in
respect of the number of Units and the Enterprise Accounts which Certen
has billed that month, calculated in the manner set forth in Section 3.1
of Exhibit B.
"BUSINESS CASE" means the document entitled "Business Case" attached as
Annex 2 to this Exhibit.
"[**]" has the meaning set forth in Exhibit A.
"COMBINED NET BILLS", with respect to a month, means [**]
"ELIGIBLE CONSOLIDATED BILLS" means [**]
"ENTERPRISE ▇▇▇▇", with respect to each month in an Operational Year,
means the number of bills which are prepared by Certen in respect of the
Enterprise Accounts.
"ENTERPRISE DIVISION" means the Enterprise Division of ▇▇▇▇ Canada (and
includes any division or corporate successor of the Enterprise Division of
▇▇▇▇ Canada) being the business unit of ▇▇▇▇ Canada which provides, among
others, a majority of the services previously provided by BCE Nexxia Inc.
"ENTERPRISE ACCOUNT" means a Periodic payment obligation with respect to a
service or multiple services offered by the Enterprise Division which was,
during the 2002 Operational Year, or would have been (in accordance with
the usual practice of the BCE Nexxia Inc. during the 2002 Operational
Year), billed by Certen on behalf of BCE Nexxia Inc. [**]. For the
avoidance of doubt, the definition of Enterprise Account set
6
forth in this Agreement is based upon and is intended to reflect the
average number of Enterprise Bills produced each month during the 2002
Operational Year for BCE Nexxia Inc.
"ENTERPRISE ACCOUNT SET UP FEES" means a payment obligation associated
with the development of a [**] for a new Enterprise Account.
"ENVELOPE PARAMETERS" means the service factors and quantitative
measurements that define the boundaries of the In-Scope Operations, as of
the Effective Date, as described in Exhibit A.
"ESTIMATED NET BILLS", with respect to a month, means the Combined Net
Bills for the preceding month.
"ESTIMATED UNITS", with respect to a month, means the Actual Units for the
preceding month.
"INDEXED", with respect to fees or other prices, means that such fees or
other prices shall be adjusted [**] using the fee adjustment mechanism set
forth in Section 10.3 of the Agreement (applied to the fees and other
prices charged during the[**] Operational Year).
"JANUARY MONTHLY UNIT [**]", with respect to January of the 2004
Operational Year, means the [**] number of Units set forth in the column
which relates to January, 2004 in the table set forth in Section 5.1 of
Exhibit B.
"OPERATING [**]" means the operating [**] with respect to the consolidated
results of the operations of all of its Subsidiaries and operating units
as presented in Amdocs Limited (or its successor) audited reports
submitted to the SEC, excluding any one-time nature extraordinary items
and amortization expense. For example, the 2002 operating [**] will be
[**]%, based on the following calculation: [**]. It is understood that,
for reporting purposes, Amdocs Limited does not [**] separately.
"OPERATIONAL YEAR" has the meaning ascribed thereto in Exhibit C to the
Agreement.
"OUT-OF-SCOPE OPERATIONS" means all functions and responsibilities that
are not included within the scope of Exhibit A, and which are subject to
the Change Order Process.
"PERIODIC" means such average frequency as was customary during the period
immediately prior to the Amendment Effective Date.
"PRICE PER UNIT" has the meaning ascribed thereto in Section 3.1 of this
Exhibit and shall be calculated as set forth therein.
7
"UNINDEXED", with respect to fees, prices or other amounts, means that the
nominal or face value of such fees, prices or other amounts shall be paid
or applied as stated and that such fees, prices or other amounts shall not
be Indexed.
8
"UNIT" means a [**] to a service or services [**] of being [**] via [**]
on its own or as part of a collective multiple-line of [**] and which was,
[**] to the [**] of such service or services in a [**]. For illustration
purposes only, it is the [**] that each [**] service shall be [**] to the
[**] in a [**]. Similarly, for illustration purposes only, an additional
subscriber to a service under an existing [**] (for example: the addition
of a cellular [**] to an existing [**] which already includes two cellular
[**]) may be considered as [**] depending on the [**] of the BCH Companies
[**] . For the avoidance of doubt, the definition of [**] set forth in
this Agreement is based upon and is intended to reflect the number of [**]
to the [**] for the different Lines of Business including [**] for the
[**] but excluding [**]. A [**] may include different services (for
example, [**] etc.) to the extent that such different services were, prior
to the [**], or would have in accordance with the [**] of the BCH
Companies [**], included in [**], but any [**] in the numbers of [**]
(other than those resulting from [**] in the [**]), whether as a result of
[**] shall not result in a [**] in the number of [**] (for example, for
illustration purposes only: [**] separate [**] issued following the
Effective Date are [**]. In the event that the [**] were to become at some
later date [**] - this [**] shall be considered, for the purposes hereof,
as [**] For avoidance of doubt, [**] which are [**] by way of [**] shall
not be considered or included in [**].
"WO" means Additional Work with respect to the period commencing as of the
Amendment Effective Date and ending on December 31, 2007.
"WOE" means the BCH Companies' reasonable good faith estimate of the
portion of the Additional Work for the entire 2008 Operational Year.
2.2 Unless stated otherwise in this Exhibit B, all fees and other prices stated
in this Exhibit B shall be stated in values of the 2001 Operational Year and
shall be indexed for [**] at the beginning of [**] using the fee adjustment
mechanism set forth in Section 10.3 of the Agreement (applied to the Fees and
other prices charged during the previous Operational Year).
3. BASE FEES AND ONE TIME FEES
3.1 [**]
(a) CALCULATION OF [**]. The Parties agree that the [**], which shall be used
to calculate the Base Fees in accordance with Section 3.1(b), shall be
calculated as set forth below in this Section 3.1(a):
(i) [**] IN THE 2003 TO 2007 OPERATIONAL YEARS. With respect to the 2003
Operational Year and each successive Operational Year up to and
including the
9
2007 Operational Year, the [**] shall be the [**] (in 2001 values)
which corresponds to such Operational Year as set forth in the
following table:
Operational Year 3rd 4th 5th 6th 7th
---------------- --- --- --- --- ---
[**] [**] [**] [**] [**] [**]
(ii) [**] IN THE 2008 OPERATIONAL YEAR. With respect to the 2008
Operational Year, Bell shall provide to Certen the WOE at least [**]
prior to the beginning of the 2008 Operational Year and Certen
shall, after the end of the 2007 Operational Year, use [**] to
calculate the 2003 Value of the [**] for the 2008 Operational Year,
which,
[**] = [**] X [**]
----------
(2003 VALUE) [**]
(iii) [**] IN THE 2009 OPERATIONAL YEAR. With respect to the 2009
Operational Year, Certen shall, after the end of the 2008
Operational Year, use the WO and the Actual 2008 Work to
calculate the 2003 Value of the [**] for the 2009 Operational
Year, which as follows:
[**] = [**] X [**]
----------
(2003 VALUE) [**]
(b) PAYMENT OF BASE FEES. The Parties agree that the Base Fees, calculated as
set forth below in this Section 3.1(b), shall be payable by the BCH
Companies for the Services at the end of each month (based on an invoice
which is to be provided by Certen at the beginning of such month) from the
Amendment Effective Date until the end of the 2010 Operational Year as
follows:
(i) With respect to the first month of the 2003 Operational Year, the
Base Fees shall equal (A) $[**], plus (B) [**].
(ii) With respect to the second and each subsequent month of the 2003
Operational Year, the Base Fees shall equal (A) $[**], plus (B)
[**].
(iii) With respect to January 2004, the Base Fees shall equal (A) $[**],
plus (B) [**].
(iv) With respect to February 2004, the Base Fees shall equal (A) $[**],
plus (B) [**].
10
(v) With respect to March 2004 and each subsequent month in the 2004
Operational Year, the Base Fees shall equal (A) $[**], plus (B) [**]
plus (or minus, as applicable) (C) [**].
(vi) With respect to January 2005, the Base Fees shall equal (A) $[**],
plus (B) [**], plus (or minus, as applicable) (C) [**].
(vii) With respect to February 2005 and each successive month of each
Operational Year up to and including the 2007 Operational Year, the
Base Fees for each month of such Operational Year shall equal (A)
$[**], plus (B) [**] plus (or minus, as applicable) (C) [**].
(viii) With respect to January 2008, the Base Fees shall equal (A) [**],
plus (B) [**], plus (or minus, as applicable) (C) [**].
(ix) With respect to February 2008 and each successive month of the 2008
Operational Year, the Base Fees shall equal (A) [**], plus (B) [**],
plus (or minus, as applicable) (C) [**].
(x) With respect to January 2009, the Base Fees shall equal (A) [**],
plus (B) [**], plus (or minus, as applicable) (C) [**], plus (or
minus, as applicable) (D) [**].
(xi) With respect to February 2009 and each successive month of the 2009
Operational Year, the Base Fees shall equal (A) [**], plus (B) [**],
plus (or minus, as applicable) (C) [**].
(xii) With respect to January 2010, the Base Fees shall equal (A) [**],
plus (B) [**], plus (or minus, as applicable) (C) [**].
(xiii) With respect to February 2010 and each successive month of the 2010
Operational Year, the Base Fees shall equal (A) [**] plus (B) [**],
plus (or minus, as applicable) (C) [**].
(xiv) With respect to January 2011 the Base Fees shall equal the product
of [**].
(c) ENTERPRISE ACCOUNT SET-UP FEES
Without derogating from any of the payments made in accordance with
Sections 3.1(b) above, the BCH Companies shall pay Certen the Enterprise
Account Set Up Fees within [**] from the end of the month in which such
set up services were provided to the BCH Companies.
3.2 [**] 2010 OPERATIONAL YEAR.
The [**] for the 2010 Operational Year shall be determined as set forth
below.
11
The parties recognize and agree that a [**]of the [**] shall be conducted by an
[**] during the 2009 Operational Year to establish the [**] for the 2010
Operational Year and to assist Bell in determining whether to [**] the Term in
accordance with Section 3.1 of the Agreement (the "[**]"). The [**] shall be
conducted in accordance with the following:
(i) It is the Parties' intention that the [**] be conducted by [**]
selected jointly by the Parties no later than [**]. However, in the
event that the Parties are unable to agree with respect to the
identity of the [**], after escalation of this matter to their
respective Executive Primes, then Bell shall, after consultation
with Certen, select the [**] from the list of organizations
(attached to the Agreement as Exhibit Y) which provide [**]
services, provided that the [**] shall not be a direct or indirect
competitor of Amdocs or Certen or any of their respective
Affiliates. All of the fees and expenses of the [**] will be paid by
the BCH Companies, [**], and by Certen, [**]. Certen will provide
reasonable access and cooperation to the [**] during the [**] at
Certen's cost and expense and shall have reasonable opportunities to
provide submissions to the [**] with respect to the Services.
(ii) In conducting the [**], the [**] will obtain and examine information
relating to [**] the performance of Services similar in scope,
nature, complexity, volume and type, and having service levels
similar to those provided with respect to the Billing Operations
Services and the Customer Care Operations Services, provided on an
outsourced basis in Canada and the United States by a well managed
information technology service provider. The [**] will also
consider, as part of its examination the unique environment and
conditions under which the Services are provided. The [**] will
collect information concerning the outsourcing of services which are
of a similar nature (including service level commitments), type and
aggregate volume to the Billing Operations Services and the Customer
Care Operations Services then being provided by Certen hereunder
from credible, well managed information technology service providers
for the provision of services similar to such Services in order to
establish meaningful [**]
(iii) In reviewing the aggregate [**] will be entitled to make whatever
equitable adjustments it determines to be necessary or desirable
(e.g., adjustments to reflect differences in the cost of providing
services [**]). Upon making such adjustments, the [**] for each of
the [**] will be aggregated and then averaged to provide [**] for
the [**]. The results of the review conducted by the [**] shall be
set out in a formal report to be delivered to Bell and Certen no
later than [**].
12
(iv) Certen shall be provided a period of [**] (or such longer period as
may be agreed to by the Parties taking into account the nature of
the findings) to review and respond to the findings of the [**]
conducting the [**];
(v) if Certen disagrees with the findings of the [**], the dispute will
be referred to internal dispute resolution pursuant to Section 18.1
of the Agreement (but not pursuant to Section 18.2). If the Parties
agree, as a result of such internal dispute resolution process, to
make a change to the [**] then such change will be reflected in the
[**] and the findings of the independent third party will be amended
to reflect any changes agreed to by Bell and Certen; and
(vi) the [**] and final report of the [**] shall then be employed to [**]
3.3. Certen shall be entitled to additional payments with respect to
development work under this Agreement that qualifies as SR&ED under the
ITA ("Additional Payments"). Such Additional Payments shall be equal to
[**]% of the SR&ED tax credits arising from the development work performed
by Certen or contracted by Certen to another party (including Amdocs or
any of its Affiliates) net of the proportionate share of agreed external
costs incurred to prepare the claims. In calculating the Additional
Payments, the BCH companies will only consider the SR&ED tax credits
claimed pursuant to this Agreement and utilized, or able to be utilized,
by the BCH Companies against their taxes otherwise payable.
The BCH Companies shall only remit such payments to Certen within [**]of
final audit of such SR&ED claims by the taxing authorities.
4. COMPENSATION FOR EXCEEDING ENVELOPE PARAMETERS (SCOPE OF SERVICES)
4.1 ENVELOPE PARAMETERS.
Subject to the provisions of this Exhibit B, the Base Fees described above will
be in effect, along with all other terms and conditions of the Agreement, for
the entire duration of the Agreement, for the services and quantifiers of the
Envelope Parameters, as described in Exhibit A. In the event of a net increase
in the cost incurred by Certen in providing the Services to any of the BCH
Companies, except for the Enterprise Division, caused as a result of a Deviation
(as defined in Exhibit A) in the Envelope Parameters, [**] ("MATERIAL COST
INCREASE"), the Parties [**] an appropriate remedial measures or a compensation
mechanism reflective of such Deviation, to be promptly paid by the BCH Companies
to Certen for any such increase in cost. This procedure shall be undertaken
[**].
5. 2003 AND 2004 [**]
5.1 [**].
13
The [**] volumes of Units per Line of Business for the 2003 Operational Year and
January 2004 are set forth in the following table:
UNIT [**](THOUSANDS)
LINES OF JULY AUG SEPT OCT NOV DEC JAN. TOTAL
BUSINESS 2003 2003 2003 2003 2003 2003 2004
[**] [**] [**] [**] [**] [**] [**] [**]
[**]
[**] [**] [**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**] [**] [**]
TOTAL [**] [**] [**] [**] [**] [**] [**] [**]
[**] VOLUME OF UNITS
Throughout the 2003 Operational Year and January 2004, Bell, [**]
agree to pay Base Fees based on a [**] Unit Plan, as presented (in
thousands of Units) in the table above, and in accordance with
Sections 10.6 and 10.7 of the Agreement.
6. E-BILLS AND ELIGIBLE CONSOLIDATED BILLS [**]
In accordance with Section 10.2 of the Agreement, Bell will [**] for
achieving certain E-Bills and Eligible Consolidated Bills [**] that will
[**] the volumes set forth in Annex 1 of this Exhibit B (the "E-BILLS AND
ELIGIBLE CONSOLIDATED BILLS [**]").
7. ADJUSTMENT OF BASE FEES AND RATES
14
Unless otherwise specifically provided in this Exhibit B or agreed by the
Parties, the [**], the Base Fee and other amounts set forth in this
Exhibit B shall be Indexed and the time and material rates shall be
subject to indexation based on the index of [**] as published by the
Bureau of Labour Statistics, U.S. Department of Labour, in accordance with
Section 22.6 of the Master License and Services Agreement.
8. TIME AND MATERIALS RATES
The following provisions will apply to Projects:
8.1 HOURLY RATES FOR NON-ENSEMBLE SYSTEMS PROJECTS.
For Development Support Services, other than those performed with respect
to Ensemble or IAF Systems, which are performed during 2003 Operational
Year and subsequent Operational Years during the Term, other than charges
included in the [**] payments, the rate to be charged to the BCH Companies
for Services provided by Certen is CA$[**] per hour. All Development Work
and related services (other than Development Support Services for Legacy
Systems), including Development Work which is funded hereunder, will be
performed under the Master License and Services Agreement.
8.2 SUBCONTRACTORS' HR FEES
In the event that Certen employs independent contractors or subcontractors
for [**] Operations, the fees of such external resources will be
determined based on [**].
8.3 OTHER FEES AND EXPENSES
8.3.1 Per-diem and Travel Expenses.
Certen will be reimbursed by the BCH Companies for travel and
per diem expenses of Certen personnel who are required to
travel out of their daily, regular place of work, in order to
provide Services to the BCH Companies.
- Airfare:
TRIP DEFINITION FEES (CA$)
Round-trip travel within Canada [**]
For round-trip travel to/from other locations, airfare
will be reimbursed to Certen on the basis of [**].
15
All air fare rates are based on economy class fares.
- Hotel/ground transportation and per diem:
CA$ [**] per day.
8.3.2 Cost of Notifications/Notifiers.
16
The parties agree that Certen shall charge the BCH
Companies at Certen's actual cost and expense for the
performance of the Services respecting the issuance of
notifications to customers of the BCH Companies. For
greater certainty, the Base Fees set out in Section 3.2
and 3.3 shall not apply to such Services.
9. [**] ENSEMBLE CREDIT POTS
Certen has included in each of its yearly budgets for the [**] Operational Year
to and including the [**] Operational Year specified amounts (the "ENSEMBLE
CUSTOMIZATION CREDIT") as set forth in the table below, which are reserved to
[**] Projects which involve principally Ensemble Customizations (as defined
under the Master License and Services Agreement). This yearly [**], as detailed
in the following table, together with the Legacy Credit Pot (described in
following Section of this Exhibit B) and the remaining 2003 Road Map budget
(described in Exhibit D to this Agreement) both of which are excluded from the
following table, is included in the Business Case and is to be funded from [**]
paid by the BCH Companies (as described above) and additional payments made by
the BCH Companies and Certen. Projects which involve principally Ensemble
Customizations may be performed by Certen under the Master License and Services
Agreement and may be funded using either the [**] portions of the Ensemble
Customization Credit. Unspent amounts of the Ensemble Customization Credit may
be carried forward from one Operational Year to the next and may be spent in a
subsequent Operational Year. In addition, the [**] portions of the Ensemble
Customization Credit may be used to fund Projects involving principally Ensemble
Customizations performed by Third Party [**] (as described in the Master License
and Services Agreement) in which case Certen shall, upon receipt of evidence of
such expenditures, provide the BCH Companies with a credit which may be set-off
by the BCH Companies against any amounts owed by the BCH Companies to Certen. In
the event that the BCH Companies have not, by the end of the [**] Operational
Year, used the full amount of the Ensemble Customization Credit, any such unused
amount shall be paid by Certen to the BCH Companies within [**] after the end of
the [**] Operational Year. Notwithstanding Section 8.1 of this Exhibit, the time
and materials rate applicable to Development Work and related services which is
funded hereunder and under Section 10 of this Exhibit shall be performed: (i) by
Certen (excluding Amdocs and its Affiliates) at its [**](i.e., at a time and
materials rate of CA$[**] per hour); (ii) on behalf of Certen by Amdocs and its
Affiliates (other than Certen) on a [**] basis at the rates charged to Bell in
accordance with the Master License and Services Agreement; and (iii) on behalf
of Certen by its other (non-Affiliate) subcontractors at the rates [**].
The Parties acknowledge that, as of the Amendment Effective Date, there are no
outstanding amounts accrued under the Ensemble Customization Credit or the
Legacy Credit Pot .
17
MONTHLY [**]
ENSEMBLE COMMITMENT
NUMBER OF CUSTOMIZATION (75% OF [**]
OPERATIONAL YEAR MONTHS CREDIT ** CREDIT) (25% OF CREDIT) TOTAL
---------------- ------ --------- ------- --------------- -----
3 [**]* [**] [**] [**] [**]
4 [**] [**] [**] [**] [**]
5 [**] [**] [**] [**] [**]
6 [**] [**] [**] [**] [**]
7 [**] [**] [**] [**] [**]
Total [**] [**] [**]
* Starting as of [**]
** All sums in the above table are in $CA thousands and are Unindexed.
10. OTHER CREDITS
Certen will provide the BCH Companies with the following credits which shall be
used by the BCH Companies, on a yearly basis, for Projects related to customer
care and billing services, as follows (all amounts are in CA$, in nominal values
and Unindexed):
OPERATIONAL NUMBER OF OTHER
YEAR MONTHS MONTHLY CREDIT
3rd* July 1 [**]
3rd* Aug 1 [**]
3rd* Sept 1 [**]
3rd* Oct 1 [**]
3rd* Nov 1 [**]
3rd* Dec 1 [**]
4th 12 [**]
5th 12 [**]
6th 12 [**]
7th 12 [**]
* starting as of [**]
18
ANNEX 1
E-BILLS AND ELIGIBLE CONSOLIDATED BILLS [**]
Set forth in the table below is the targeted number of E-bills and Eligible
Consolidated Bills for the 4th to 7th Operational Years (Numbers are per year
and in thousands bills):
Operational Year 4 TO 7
E-Bills [**]
Eligible Consolidated Bills [**]
The BCE Companies shall be entitled to a yearly [**] equal to $[**] (2003
Values) multiplied by the numbers of the E-Bills produced by the BCH Companies
and Eligible Consolidated ▇▇▇▇ exceeding the numbers of E-Bills and Eligible
Consolidated Bills set forth in the table above.
The E-bills and Eligible Consolidated Bills [**] will be paid by Certen
annually, with respect to each Operational Year, at any time within [**] from
the end of such Operational Year
Notwithstanding the above, the maximum amount that will be paid by Certen as
E-▇▇▇▇ and Eligible Consolidated ▇▇▇▇ [**] during the above specified
Operational Years shall not exceed in any case, on an aggregated basis, $[**]
([**] Canadian Dollars) (in 2003 Values).
19
ANNEX 2
BUSINESS CASE
[to be provided]
20
ANNEX 3
LIST OF ENTERPRISE ACCOUNTS
[to be provided]
FINAL
EXHIBIT C-1
SERVICE LEVELS AND REPORTING REQUIREMENTS
(LEGACY SYSTEMS)
1. RECITALS
1.1 INTRODUCTION
The purpose of this Exhibit C-1 to the Agreement is to detail
the methods, measurements and goals of service level
monitoring for Services delivered by Certen to the BCH
Companies relating to the Legacy Systems and to that effect,
to be consistent with the Services as they are outlined in
Exhibit A. Should there be any gap between this Exhibit and
Exhibit A, the parties shall review such gap and amend this
Exhibit C-1 accordingly.
1.2 DEFINITION OF TERMS
Unless otherwise defined herein, capitalized terms used in
this Exhibit C-1 shall have the meaning ascribed to them in
the Agreement. In addition, in this Exhibit C-1, the following
capitalized terms shall have the following meanings:
"AVAILABILITY" means a measure of the total time that an
application is available for use in a given [**], and is
stated as the resulting percentage figure when the actual
number of hours that the application is available for use is
divided by the total number of hours the application is [**]
available in a given [**].
"BILLING ACCURACY" means a Critical Service Level KVM in which
the number of all erroneous bills (as a result of one or more
billing inaccuracies caused by Certen) generated in one [**],
for a given Line of Business, is measured against the total
number of all bills generated, in the same [**] by Certen for
the same Line of Business.
"BONUS" means a dollar value credited or paid by the BCH
Companies to Certen, based on Certen exceeding certain defined
threshold levels within the Critical Service Level KVMs, as
specified in Section 3.3 of this Exhibit..
"BONUS % THRESHOLD" means the performance level for each
Critical Service Level KVM that Certen has to meet in order to
be eligible for a Bonus with respect to that Critical Service
Level KVM.
-2-
"[**]" has the meaning set forth in Exhibit A.
"CRITICAL SERVICE LEVEL KVMS" means the service level
parameters, and the measurement methods for each Line of
Business as defined under the column entitled "Key Value
Measures" in Section 3.3.
"CUSTOMER" means a customer of a specific BCH Company.
"CUSTOMER CARE" means a series of service levels specified for
each Line of Business in Section 3.3.1(E) hereof.
"DATA SUCCESSFUL BILLING" means to capture and transmit the
data billing files to the appropriate [**] within [**] from
the delivery by Bell of any data services and is stated as the
resulting percentage figure when the actual number of
error-free data records transmitted in a given period of time
is divided by the total number of data records transmitted in
the same period of time.
"DELIVERY BY DAY [**]" (for Bell) (or such lesser time period
for ▇▇▇▇ Sympatico, ▇▇▇▇ Mobility, or such other time period
for the Enterprise Division as set out in this Exhibit) means
the total number of all bills generated by Certen in a given
calendar [**], for any given Line of Business, that are
delivered either to a post office (or posted in a mail box) or
delivered electronically to the Customer within [**] calendar
days (or such other time period as indicated above) (inclusive
of the [**] day, or such other time period as indicated above)
after the date on which the ▇▇▇▇ generation and approval
process are completed for the specific BCH Company other than
Bell and in the case of Bell, from the billing date as
established by the applicable Canadian Radio-television and
Telecommunications Commission (CRTC) requirements.
"GRACE PERIOD" is a period of [**] commencing upon completion
of the execution of the Transition-In Plan.
"LINE OF BUSINESS" means Bell, [**]
"MATERIAL DEVIATION" has the meaning set forth in Section
3.9.3 below.
"MISS" is an event in which Certen fails to achieve (subject
to the occurrence of a Dependency or Dependencies, as
specified in Section 3.8 below) any Critical Service Level KVM
for [**].
"MISTAKE" means a ▇▇▇▇ containing a mistake that has a
material impact on the successful delivery or payment of the
billed amount or results in inaccurately reflecting the amount
due.
-3-
"NUMBER OF MISTAKES" means the number of bills which have one
or more Mistakes.
"NUMBER OF TOTAL BILLS" means the number of all bills
generated by Certen for a specific Line of Business in any
given [**].
"OPERATIONAL YEAR" HAS THE MEANING DEFINED IN EXHIBIT B (FEES)
TO THIS AGREEMENT.
"PAYMENT RECEIVED & PROCESSED SAME DAY" means the total
number of ▇▇▇▇ payments by Customers that are received and
processed by Certen for any given Line of Business on any
given day. As used herein, "processed" means performing all
required operations for such process, as specified in Exhibit
A.
"PENALTY REBATE % THRESHOLD" means that level of performance
by Certen for each Critical Service Level KVM which will, if
not achieved, result in Certen being penalized with a
Performance Penalty Rebate with respect to that Critical
Service Level KVM.
"PERFORMANCE PENALTY REBATES" or "PENALTY REBATES" means the
dollar value credited to BCH Companies in each case that
Certen has at least [**] misses of the same Critical Service
Level KVM for the same Line of Business, as specified in this
Exhibit.
"PERFORMANCE THRESHOLDS" means the Penalty Rebate % Threshold
and the Bonus % Threshold
"PERFORMANCE SCORECARD" shall have the meaning set forth in
Section 2.5.1 below, and as demonstrated in Annex 2 to this
Exhibit.
"PROJECT SERVICE LEVEL KVMS" means those service levels that
apply specifically to Projects, as set forth in Section 2.5.3
hereof.
"RELIABILITY" means a measure of the total number of [**]
files ([**] processed in a given day or other period of time
without a failure, and is stated as the resulting percentage
figure when the actual number of [**] files in a given period
of time without requiring intervention to correct a failure is
divided by the total number of [**] files processed in the
same period of time.
"SERVICE LEVELS" means the Service Level KVMs and Critical
Service level KVMs provided for hereunder.
"SERVICE LEVEL KEY VALUE MEASURE" or "SERVICE LEVEL KVMS" have
the meaning set forth in Section 1.5 below.
"SUM OF THE FAILED SAME DAY PROCESSING OVER [**] PERIOD" means
the total number of payments received by Certen which failed
to be processed on the day such payments arrived during any
[**] (an amount used, for
-4-
purposes of this Exhibit C-1, to monitor Payment Received &
Processed Same Day).
"TARGET KVM %" means the target performance threshold for each
Critical Service Level KVM that Certen has to meet each [**]
throughout the Term.
"TOTAL NUMBER OF PAYMENTS RECEIVED OVER [**] PERIOD" means the
total number of payments received during any [**] (an amount
used for monitoring the Payment Received & Processed Same
Day).
"TRANSITION-IN PLAN" has the meaning ascribed thereto in the
Amended MOSA.
"VOICE BILLING TRANSMISSIONS" means the delivery of billing
files to the appropriate [**] to allow for local invoicing,
the Target KVM % in respect of which is stated as the
resulting percentage figure when the number of voice billing
transmissions completed [**] in a given period of time is
divided by the total number of voice billing transmissions in
the same period.
"VOICE SUCCESSFUL BILLING" means to capture and transmit the
voice billing files to the appropriate [**] within [**] from
the delivery of voice services from Bell, the Target KVM % in
respect of which is stated as the resulting percentage figure
when the number of voice records completed [**] in a given
period of time is divided by the total number of voice records
in the same period.
1.4 RESPONSIBILITIES OF THE BCH COMPANIES
BCH Company responsibilities, directly relating to the
operation of the various Services, are specified in the
Agreement and in Exhibit A (Demarcation Points and Service
Definitions) and Exhibit O-2 (Roles and
Responsibilities-Production).
1.5 SERVICE LEVEL KEY VALUE MEASURES
1.5.1 Service Level KVMs are comprised of either:
A. Project Service Level KVMs; or
B. Critical Service Level KVMs.
1.5.2 The Critical Service Level KVMs set forth below are
measured and reported as specified in Section 3 below.
-5-
NO. CRITICAL SERVICE LEVEL KVMS MEASUREMENT
FREQUENCY
1 Billing Accuracy [**]
2 Delivery by Day [**] (for Bell, or such lesser time [**]
period for [**] or such other time period for the [**]
as set out in this Exhibit)
3 Payment Received & Processed Same Day [**]
4 Voice Billing Transmission [**]
5 Voice Successful Billing [**]
6 Data Successful Billing [**]
7 Customer Care Systems [**]
1.6 PENALTY REBATE/BONUS PAYMENT SCHEDULE
[NOTE : From the Amendment Effective Date, Bell has agreed to
[**] the Penalty Rebates/Bonuses calculation. Bell is
permitted during the Term, by giving Certen [**] written
notice to [**] the Penalty Rebates/Bonuses calculation
hereunder. Accordingly, the provisions in this Exhibit
relevant to Penalty Rebates/Bonuses calculations will only
apply [**] Bell.]
1.6.1 Actual payment or crediting of accumulated Performance
Penalty Rebates/Bonuses will be made at the time that
the BCH Companies' final payment in respect of an
Operational Year is due and payable under the
Agreement. Penalty Rebates/Bonuses are calculated [**]
by multiplying [**] by the [**] (as defined in Exhibit
B to this Agreement) for Services received by Certen,
associated with the applicable [**] generating the
Penalty Rebate/Bonus, during the [**] in which the
Performance Penalty Rebate/Bonus is incurred/earned.
Penalty Rebates/Bonuses shall not be applied under
both Exhibit C-2 and Exhibit C-1 for the same Miss.
1.6.2 If the aggregate of all Performance Penalty Rebates
due to the BCH Companies within a particular
Operational Year less the aggregate of all Bonuses due
to Certen from the BCH Companies in the same
Operational Year is positive, Certen will credit the
BCH Companies with the amount calculated, which credit
shall be applied to the Fees chargeable by Certen
commencing in the next Operational Year, and all
Performance Penalty Rebate/Bonus balances for the BCH
Companies will be reduced to zero for the next
Operational Year.
1.6.3 If the aggregate of all Performance Penalty Rebates
due to the BCH Companies within a particular
Operational Year less the aggregate of all Bonuses due
to Certen from the BCH Companies in the same
-6-
Operational Year is negative, the Performance Penalty
Rebate balance will be reduced to zero, while the
amount calculated (i.e., the difference of Bonuses
minus Performance Penalty Rebates) will be carried
forward as an opening Bonus for the next Operational
Year.
1.6.4 With respect to the last Operational Year of the
Agreement (or any portion thereof if such Operational
Year is not a full twelve (12) calendar months), any
outstanding amount due to Certen (i.e., the difference
of aggregate Bonuses minus aggregate Performance
Penalty Rebates for that Operational Year or portion
thereof), will be paid by the BCH Companies up to (but
not exceeding) an amount equal to the aggregate sum of
all Performance Penalty Rebates credited to the BCH
Companies at the end of all previous Operational Years
of the Agreement.
2. FRAMEWORK FOR SERVICE LEVELS AND PERFORMANCE CREDITS
2.1 INTRODUCTION
This section sets forth the implementation and management of
the Service Levels.
2.2 CRITICAL SERVICE LEVEL KVM IMPLEMENTATION
2.2.1 The agreed Critical Service Level KVMs shall be based
on the assumption that the information provided by
▇▇▇▇ documenting the service levels reached by ▇▇▇▇
with respect to operations existing immediately prior
to the Effective Date (including but not limited to
the Performance Scorecard results, performance
history, and other measurements) is complete and
accurate.
2.2.2 In the event that either party has notice or knowledge
that any such information is or may be materially
incomplete or inaccurate, it shall promptly so notify
the other.
2.2.3 If the information referenced in Section 2.2.1 above
is not complete or accurate, the parties will promptly
update the Critical Service Level KVMs, including but
not limited to the Critical Service Level KVMs, the
Target KVMs, the Performance Thresholds, and the
Performance Scorecard results.
-7-
2.3 SERVICE LEVEL PLANNING
2.3.1 Service Levels are subject to review on the following
occasions throughout the Term:
- Optional [**] Review : Within [**] of the
Amendment Effective Date and every [**]
thereafter, the parties will have the option
to meet and review the Service Levels.
- [**] Review : The parties shall set a
mutually agreed date to conduct [**] reviews
of the Service Levels and Certen's
performance with respect to the Service
Levels. At a minimum, the [**] review will
include :
- Comprehensive review of the previous[**]
performance;
- Revision of the Service Levels, if any,
based upon mutual agreement; and
- review of the Critical Service Level KVM
definitions, methods of measurement,
targets and thresholds, credit/bonuses
procedures, and any other relevant
parameter, mechanism, or portion of
this Exhibit C-1.
No changes to any Service Levels shall
become effective without the written
approval of each Party's Operational Prime
(as defined in Exhibit F). Upon the written
mutual consent of the parties and in
accordance with Exhibit G (Change Order
Process), the parties shall adjust any part
of the Critical Service Level KVMs and/or
Performance Penalty Rebates/Bonuses. The
parties acknowledge that they are or may
become party to service level documents,
defining the parameters of Service Levels,
which documents are external to this
Exhibit. Such documents may be altered by
the mutual determination of the parties upon
written agreement of each party's
responsible Service Level Coordinator and
Service Level Manager.
2.3.2 The BCH Companies recognize and agree that each BCH
Company's strategy for transition to Modernization
will likely include several planned rollouts, during
which both the Legacy Systems and the Modernized
Systems will be used in parallel. During such
period(s) of parallel use, the parties will agree on
ways to adjust (in accordance with this Section 2.3)
the Performance
-8-
Penalty Rebate/Bonus computation model set forth
herein and in Exhibit C-2 to the changing environments
of the BCH Companies.
2.3.3 When considering such Critical Service Level KVM
adjustments, the parties will consider the impact of
improved and measurable performance capabilities due
to Systems that have been implemented by Certen
through the provision of Services and the
Modernization. In addition, the parties will consider
the impact of following circumstances:
A. Development of a plan for improving Critical
Service Level KVMs based on mutually acceptable
changes to the Systems;
B. New and different Services requested by the BCH
Companies;
C. Addition or removal of Critical Service Level
KVMs, as appropriate, to reflect the ongoing
requirements of the BCH Companies;
D. Additional performance levels for Services with
regard to which Certen will regularly measure and
report to the BCH Companies.
2.3.4 Modernization, if applicable, shall provide improved
Critical Service Level KVMs [**] to ▇▇▇▇.
2.4 CRITICAL SERVICE LEVEL KVMS REPORTING
2.4.1 Unless otherwise agreed by the parties in writing,
Certen will produce and make available to ▇▇▇▇ [**]
the reports and/or measurement results in connection
with the Critical Service Level KVMs.
2.4.2 This includes usage of the same format and content
type used before the Effective Date for [**] reports
on Critical Service Level KVMs, which communicate
performance standards versus actual performance levels
achieved.
2.4.3 A sample of such reports and measurement methods and
the format and content types used with such reports
and measurements is attached to this Exhibit as Annex
1.
2.5 MEASUREMENT AND PERFORMANCE SCORECARD
2.5.1 Certen will use the results and methods of the
measurement and performance scorecard existing
immediately prior to the Effective
-9-
Date, copies of which shall be attached hereto as
Annex 2, or, if non-existent, then as developed
mutually by Certen and the applicable BCH Company
(collectively, the "PERFORMANCE SCORECARD"), to track
and evaluate [**] performance in the following areas:
BILLING & PAYMENT PROCESSING
- Accuracy
- Timeliness
2.5.2 For each Project, as part of the statement of work
relating thereto, the parties shall agree upon service
levels with regard to budget, timelines and delivery
(the "PROJECT SERVICE LEVELS KVMS"). During the term
of the Agreement, Certen shall provide each BCH
Company with [**] reports with respect to all Projects
carried out thereby for each BCH Company [**].
2.6 PRE-EFFECTIVE DATE SERVICE LEVEL AGREEMENTS WITH [**]
Certen will meet the required service levels in all BCH
Company contracts with the [**], as listed in Exhibit M3 of
the MOSA provided that (i) Certen's performance with respect
to such service levels shall not be subject to the Penalty
Rebate/Bonus mechanism referred to herein; (ii) and that such
contracts are presented to Certen. Following the Amendment
Effective Date, no such contract will be signed, renewed or
modified without the prior written approval of Certen. The
contracts between the BCH Companies and the [**] shall not be
assigned or otherwise transferred to Certen.
2.7 TRANSITION-OUT PERIOD FOR CRITICAL SERVICE LEVEL KVMS
2.7.1 The Critical Service Level KVMs, including but not
limited to, the Performance Penalty Rebate/Bonus
mechanism described herein, became applicable
commencing upon expiration of the Grace Period.
2.7.2 The Critical Service Level KVMs shall no longer be in
effect upon commencement of, and throughout, the
Transition-Out Period. Subject to and without limiting
the foregoing, Certen will [**] the Critical Service
Level KVMs during the Transition-Out Period.
- 10 -
2.8 UNDERTAKING TO PERFORM CRITICAL SERVICE LEVEL KVMS
2.8.1 Critical Service Level KVMs are described in Section 3 below
and will be updated by the parties in accordance with Sections
2.2 and 2.3 above.
2.8.2 Certen will meet or exceed the Critical Service Level KVMs,
subject to (A) the agreed interdependencies of the parties, as
specified in Exhibit A (Demarcation Points and Service
Definitions) and Exhibit O-1 (Roles and
Responsibilities-Delivery) and Exhibit O-2 (Roles and
Responsibilities-Production) of the Agreement; and (B) the
Performance Penalty Rebate/Bonus mechanism described in this
Exhibit.
2.8.3 If and when Certen exceeds any Bonus % Threshold for any of
the [**], the [**] shall credit Certen with a Bonus, in the
amounts and according to the terms and conditions set forth in
this Exhibit.
2.8.4 Subject to Section 7.4 of the Agreement, and when Certen fails
to meet any Penalty Rebate % Threshold for [**], Certen shall
credit the BCH Companies with a Penalty Rebate, in the amounts
and according to the terms and conditions set forth in this
Exhibit.
3. CRITICAL SERVICE LEVEL KVM METRICS
The parties agree to the following Critical Service Level KVM metrics:
3.1 DETAILED CRITICAL SERVICE LEVEL KVMS
The detailed Critical Service Level KVMs and schemes for each of the
BCH Companies are specified below.
3.3 CRITICAL SERVICE LEVEL KVM PARAMETER VALUES
A-BILLING ACCURACY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] [**] [**]
- 11 -
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
[**] [**]
[**] [**]
[**] [**]
[**] [**]
B-DELIVERY BY DAY [**]
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] see following table see following table
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
KVM Target met day [**] or earlier [**]
KVM Target met day [**] [**]
KVM Target met day [**] [**]
KVM Target met day [**] [**]
KVM Target met day [**] or later [**]
C-PAYMENT RECEIVED & PROCESSED SAME DAY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] [**] [**]
D) [**] BILLING SERVICES
DESCRIPTION TARGET KVM % BONUS/PENALTY
----------- ------------ -------------
VOICE BILLING [**] N/A
TRANSMISSION
VOICE SUCCESSFUL [**] N/A
TRANSMISSION
DATA SUCCESSFUL BILLING [**] N/A
NOTE: ▇▇▇▇ Canada is bound to these Target KVMs under Schedule A-13 of the
Operations Support Services of January 1, 2000 with the [**]. These
- 12 -
commitments are passed on to Certen. Given that the OSS agreement does not
provide for bonuses or penalties, none is applicable to Certen.
E) CUSTOMER CARE TARGET KVMS
THE CUSTOMER CARE KVMS WILL BE REVIEWED AFTER MODERNIZATION.
DESCRIPTION TARGET KVM % BONUS/PENALTY
----------- ------------ -------------
PERCENTAGE AVAILABILITY [**] N/A
ARICS
PERCENTAGE AVAILABILITY [**] N/A
CUBS
PERCENGTAGE AVAILABILITY [**] N/A
- NIBS - MTCE
PERCENTAGE RELIABILITY [**] N/A
ARICS
PERCENTAGE RELIABILITY [**] N/A
CUBS
PERCENTAGE RELIABILITY - [**] N/A
NIBS - MTCE
NOTE: Target KVMs have been set at identical levels to the ones found in
the [**] Agreement. Bonuses and penalties to be determined on the basis
of overall ▇▇▇▇ Canada applications, not by individual applications.
3.3.2 [**]
A-BILLING ACCURACY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] [**] [**]
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
[**] [**]
[**] [**]
[**] [**]
[**] [**]
- 13 -
B-DELIVERY BY DAY [**]
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] see following table see following table
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
KVM Target met day [**] or earlier [**]
KVM Target met day[**]or later [**]
C-PAYMENT RECEIVED & PROCESSED DAME DAY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] [**] [**]
D) CUSTOMER CARE TARGET KVMS
THE CUSTOMER CARE KVMS WILL BE REVIEWED AFTER MODERNIZATION.
DESCRIPTION TARGET KVM % BONUS/PENALTY
----------- ------------ -------------
TO BE DOCUMENTED PENDING
THE FINALIZATION OF THE
[**] SLA. DATE TBD.
3.3.3 [**]
A-BILLING ACCURACY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
------------- --------- ---------
[**] [**] [**]
- 14 -
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
[**] [**]
[**] [**]
[**] [**]
[**] [**]
B-DELIVERY BY DAY[**]
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] see following table see following table
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
KVM Target met day [**] or earlier [**]
KVM Target met day [**] [**]
KVM Target met day [**] [**]
KVM Target met day [**] [**]
KVM Target met day [**] or later [**]
C-PAYMENT RECEIVED & PROCESSED DAME DAY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] [**] [**]
D-CUSTOMER CARE TARGET KVMS
THE CUSTOMER CARE KVMS WILL BE REVIEWED AFTER MODERNIZATION.
DESCRIPTION TARGET KVM % BONUS/PENALTY
----------- ------------ -------------
CUSTOMER CARE KVMS TO BE
ESTABLISHED.
- 15 -
3.3.4 [**]
A-BILLING ACCURACY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] [**] [**]
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
[**] [**]
[**] [**]
[**] [**]
[**] [**]
B-DELIVERY BY DAY [**]
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] see following table see following table
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
KVM Target met day [**] or earlier [**]
KVM Target met day [**] [**]
KVM Target met day [**] [**]
KVM Target met day [**] [**]
KVM Target met day [**] or later [**]
C-PAYMENT RECEIVED & PROCESSED SAME DAY
- 16 -
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
[**] [**] [**]
D) CUSTOMER CARE TARGET KVMS
THE CUSTOMER CARE KVMS WILL BE REVIEWED AFTER MODERNIZATION.
DESCRIPTION TARGET KVM % BONUS/PENALTY
----------- ------------ -------------
PERCENTAGE AVAILABILITY [**] N/A
- LINK
PERCENTAGE AVAILABILITY [**] N/A
- CNBS
PERCENTAGE AVAILABILITY [**] N/A
- CTA
NOTE: Target KVMs have been set at identical levels to the ones found in
the [**] Agreement. Bonuses and penalties to be determined on the basis
of individual applications.
[**]
A-BILLING ACCURACY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
▇▇▇ ▇▇▇ TBD
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
TBD
B-DELIVERY BY DAY X
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
TBD see following table See following table
- 17 -
ACTUAL PERFORMANCE BONUS/PENALTY %
------------------ ---------------
KVM Target met day X or earlier
KVM Target met day X
KVM Target met day X
KVM Target met day X
KVM Target met day X or later
C-PAYMENT RECEIVED & PROCESSED SAME DAY
TARGET KVM (%) BONUS % PENALTY REBATE %
THRESHOLD THRESHOLD
-------------- --------- ---------
TBD
D) CUSTOMER CARE TARGET KVMS
DESCRIPTION Target KVM % BONUS/PENALTY
----------- ------------ -------------
3.4 CRITICAL SERVICE LEVEL KVM PERFORMANCE COMPUTATION METHOD
The formulas defined in sections 3.4.1 through 3.4.6 below shall
apply to the computation of the Critical Service Level KVMs, as
applicable for each Line of Business separately.
Upon completion of Modernization, the Critical Service Level KVM
computation methods shall be reviewed by the parties for each BCH
Company separately, with the objective of improving such methods.
3.4.1 BILLING ACCURACY
A. The Number of Total Bills, [**], less the Number of
Mistakes, [**], divided by the Number of Total Bills for
the same Line of Business, over a [**] period. This result
(%)
- 18 -
shall be compared against the relevant Target KVM %,
Bonus % Threshold, and Penalty Rebate % Threshold.
B. If the result is equal to or lower than the relevant
Penalty Rebate % Threshold, the Performance Penalty
Rebate's dollar value shall be calculated as per Section
3.3 above.
C. If the result is equal to or higher than the relevant
Bonus % Threshold, the Bonus's dollar value shall be
calculated according to Section 3.3 above.
3.4.2 DELIVERY BY DAY [**] (for ▇▇▇▇ Canada or such lesser/other
time period for the other Lines of Business as set out in this
Exhibit)
A. The Number of Total Bills actually delivered, [**], less
the number of bills billed after the end of DAY [**] (or
such lesser/other) time period as mentioned above),
divided by the Number of Total Bills actually delivered
[**], over a [**] period. This result (%) shall be
compared against the relevant Target KVM %.
B. If the Target KVM % is met earlier than DAY [**] (or
such lesser/other time period as mentioned above),
Certen is eligible for a Bonus.
C. The dollar value of the Bonus for each day earlier than
DAY [**] (or such lesser/other time period as mentioned
above) will be as provided for in Section 3.3 above.
D. If the Target KVM % is met later than DAY [**] (or such
lesser/other time period as mentioned above), the BCH
Companies will be eligible for a Performance Penalty
Rebate resulting from Certen's failure to meet a Critical
Service Level KVM, as provided for in Section 3.3 above.
3.4.3 PAYMENT RECEIVED & PROCESSED SAME DAY
A. The Total Number of Payments Received Over [**] Period,
[**], less the Sum of the Failed Same Day Processing Over
[**] Period, [**], divided by the Total Number of Payments
Received Over [**] Period. This result (%) shall be
compared against the relevant Target KVM %, Penalty Rebate
% Threshold, and Bonus % Threshold.
- 19 -
B. If the result is equal to or lower than the relevant
Penalty Rebate % Threshold, the Performance Penalty
Rebate's dollar value shall be calculated according to
Section 3.3 above.
C. If the result is equal to or higher than the relevant
Bonus % Threshold, the Bonus's dollar value shall be
calculated according to Section 3.3 above.
3.4.4 VOICE BILLING TRANSMISSION
As per definition in Section 1.3. The result, expressed as a
percentage, shall be compared against the relevant Target KVM
% and reported by Certen on a [**] basis.
3.4.5 VOICE SUCCESSFUL BILLING
As per definition in Section 1.3. The result, expressed as a
percentage, shall be compared against the relevant Target KVM
% and reported by Certen on a [**] basis.
3.4.6 DATA SUCCESSFUL BILLING
As per definition in Section 1.3. The result, expressed as a
percentage, shall be compared against the relevant Target KVM
% and reported by Certen on a [**] basis.
3.4.7 CUSTOMER CARE
The applicable formulas to the computation of the customer
care service levels are provided for in Section 3.3 above.
3.5 [INTENTIONALLY DELETED.]
3.6 PROCESS FOR CORRECTION AND ANALYSIS
3.6.1 NEGATIVE FACTOR CORRECTION
In the event that the parties mutually determine that certain
Critical Service Level KVM factors as determined by the [**]
to the Agreement, shall have a material negative impact on the
one of the Critical Service Level KVMs' measured values, then
the parties shall designate the problem as a "Negative
Factor", and then the parties shall proceed as follows:
- 20 -
A. The BCH Companies and Certen shall promptly form
a joint team to determine corrective action.
Certen shall be responsible for initially
determining what remedial actions are to be
taken, but shall consult with the BCH Companies
as to such course of action. If the cause of the
problem is substantially outside of Certen's
responsibility and control, then Certen and the
BCH Companies shall mutually agree on the
corrective action, subject to the requirements
of Exhibit G (Change Order Process).
B. If the cause of the Negative Factor is due to
factors substantially within Certen's
responsibility and control:
1. Certen shall implement the remedial
action and correct the Negative Factor
as soon as reasonably possible, taking
into account the urgency of the
situation and the appropriate staff for
the job.
2. Certen shall determine and keep a
designated representative of the BCH
Companies advised at all relevant times
of the [**] Negative Factor resolution
and resumption of operations.
3. The BCH Companies shall develop a
business communications plan, and Certen
shall provide such assistance and
cooperation as may be reasonably
necessary to enable the BCH Companies to
develop and implement such a plan.
4. The joint team shall monitor progress on
resolution of a Negative Factor and
update the communications plan. If the
Negative Factor is not resolved within
the estimated time frame, then the joint
team will reassess what further or
different corrective action may be
required.
5. Each of Certen and the BCH Companies
must sign-off and agree on the final
resolution of the Negative Factor.
3.6.2 PERFORMANCE REVIEW PROCESS
In the event that:
A. any one of the actual Critical Service Level
KVMs achieved and measured by Certen during the
previous [**] period fail to meet the relevant
prescribed Critical Service Level KVMs and
Penalty Rebate % Threshold, subject to Section
3.8 below; or
- 21 -
B. a Negative Factor (the cause of which is
substantially within Certen's responsibility and
control) is declared by the parties during the
previous [**] in accordance with Section 3.6.1
above, subject to Section 3.8 below, then a
Performance Review process, which incorporates
the following steps, will be triggered:
1. Certen shall conduct a Post Mortem
analysis and review the results with the
BCH Companies;
2. [**], following the review, Certen
shall, [**], develop and implement
corrective actions and/or modify
existing processes and procedures or
create new processes and/or procedures
to prevent any recurrence and when this
is not reasonably possible, then Certen
shall prepare and submit to the BCH
Companies a plan indicating how and when
any such action, process or procedure
will be in place to prevent any
recurrence;
3. If a contributing cause of a problem or
delay in implementing a remedy to a
problem was substantially within the
control of a third party, then the
parties shall determine a course of
action to prevent a recurrence; and,
4. The BCH Companies and Certen will sign
off on the conclusions resulting from
the review process.
3.7 MECHANISM FOR PENALTY REBATES OR BONUSES
3.7.1 ALLOCATION OF PERFORMANCE PENALTY REBATES
A. Certen will issue [**] Performance Penalty
Rebates to the applicable BCH Company, at the
dollar value calculated in accordance with
Section 3.3 above, if Certen Misses the Critical
Service Level KVM [**] for [**] in an
Operational Year. The dollar value will be
calculated using the [**] attained during the
[**] period.
B. After issuing [**] Performance Penalty Rebates
to the applicable BCH Company in accordance with
Section 3.7.1A above, Certen will issue [**]
Performance Penalty Rebate to the applicable BCH
Company, at the dollar value calculated in
accordance with Section 3.3 above, if Certen
Misses the Critical Service Level KVM (upon
which the [**]
- 22 -
Performance Penalty Rebates issued under Section
3.7.1A above were based) for [**] in any other
[**] of that Operational Year.
3.7.2 ALLOCATION OF PERFORMANCE BONUSES
▇. ▇▇▇▇ will issue [**] Bonuses, at the dollar
value calculated in accordance with Section 3.3
above, if Certen meets or exceeds the Bonus %
Threshold for the same critical service Level
KVM [**] for [**] in an Operational Year. The
dollar value will be calculated using the [**]
attained during the [**] period.
B. After issuing [**] Bonuses to Certen in
accordance with Section 3.7.2A above, Bell will
issue [**] Bonus to Certen, at the dollar value
calculated in accordance with Section 3.3 above,
if Certen meets or exceeds the Bonus % Threshold
(upon which the [**] Bonuses issued under
Section 3.7.2A above were based) for Certen in
any other [**] of that Operational Year.
3.8 DEPENDENCIES
The following events, should they occur, shall not be included
in the calculation of Certen's performance in relation to the
Critical Service Level KVMs (and accordingly, no Performance
Penalty Rebates/Bonuses shall result from such events), but
shall be reported in writing to the BCH Companies, on a [**]
basis from the Effective Date, in a format to be defined and
agreed to by the parties:
- 23 -
3.8.1. A Force Majeure Event (as defined under the
Agreement);
3.8.2 A failure resulting from the acts or omissions of (a)
[**]; (b) [**]; or (c) any other third party
supplier, vendor, or other contractor, excluding
third parties under contracts that were fully
assigned to Certen, in fulfilling its obligations to
the BCH Companies or to Certen;
3.8.3 A failure of one of the BCH Companies (or any of the
[**] ) to fulfill its (or their) part in the
Services, according to the dependencies of the
parties set forth in Exhibit A, or the roles and
responsibilities of the parties set forth in Exhibits
O-1 and O-2 of the Agreement (or the dependencies
and/or roles and responsibilities set forth in such
third party contracts referenced in Section 2.6
above); or
3.8.4 A failure arising out of an error or defect in [**],
not caused by Certen or any third party under
Certen's responsibility and control.
3.9 REMEDIES FOR MISSES
3.9.1 [Intentionally Deleted.]
3.9.2 DIRECT DAMAGES ON SUCCESSIVE OR AGGREGATE MISSES OF
CRITICAL SERVICE LEVEL KVMS
A. Subject to Section 3.8 above, in the event
that Certen causes, an aggregate of [**]
Misses of the same Critical Service Level KVM
[**], within the same Operational Year, then,
subject first to compliance with the Dispute
Resolution procedures set forth in Section 18
of the Agreement, and further subject to the
limitation of liability provisions of the
Agreement, Certen shall credit the BCH
Companies in the amount of [**].
B. All Penalty Rebates previously credited to
the BCH Companies under this Exhibit C-1
shall be deducted from [**]. The BCH
Companies shall not have grounds for
termination of the Agreement based on the
successive or aggregate Misses described in
this Section 3.9.2, subject to Section 3.9.3.
- 24 -
3.9.3 MATERIAL BREACH
Subject to the following -
(i) compliance with the Dispute Resolution procedures
set forth in Section 18.1 of the Agreement, and
(ii) if following such procedures corrective measures
are not taken, the parties shall attempt to resolve
the dispute within an additional period of [**] in
which they shall refer the dispute to executive
officers of their shareholders, and
(iii) the limitation of liability provisions of the
Agreement,
Bell shall have the right to terminate the Agreement
by giving notice of termination to Certen without
Certen having recourse to the arbitration procedure
set out in Section 18.2 thereof, if Certen causes,
subject to Section 3.8 above:
1. [**] successive Misses of the same Critical
Service Level KVMs [**] within the same
Operational Year; and
2. each of such Misses materially deviates
from the Penalty Rebate Threshold
("MATERIAL DEVIATION"); and
3. the [**] consecutive Misses, taken as a
whole, have materially adversely affected
the delivery of the Services under the
Agreement;
provided, however, that Certen shall have the
right to dispute such termination pursuant to
the provisions of Section 17.2 of the Agreement.
4. SERVICE LEVELS FOR PROJECTS
The parties may agree in any statement of work for a specific future Project to
add Project Service Level KVMs. As part of the statement of work, the parties
may, where applicable, agree on certain penalties and bonuses for missing or
exceeding such Project Service Level KVMs. See Annex 6 for details on the
measurements put in place.
5. BILLING AND CUSTOMER CARE IS/IT SERVICE LEVELS METRICS
A list of applications as per Exhibit A and the applicable contracts
and service levels thereto has been provided to Certen. Any questions
which the parties may
- 25 -
have on the enforcement of billing and customer care ISIT service
levels shall be handled through the governance process as per Exhibit F
to this Agreement.
6. LIST OF SERVICE LEVEL DOCUMENTATION INCORPORATED BY REFERENCE IN THIS
EXHIBIT
Applicable contracts are listed in Annex 4A.
Billing IS/IT SLAs are listed in Annex 4B.
EXHIBIT C-2
MODERNIZED SYSTEM
KVMS AND SLS
ANNEXES
Annex I - SL Agreement Template. The Parties shall work diligently and negotiate
in good faith to settle the form of this Annex as soon as practicable following
the Amendment Effective Date and in any event within 60 days of the Amendment
Effective Date.
I. INTRODUCTION
The purpose of this Exhibit C-2 to the Agreement is to detail the methods,
measurements and goals of service level monitoring for Services delivered by
Certen to the BCH Companies relating to the Modernized System, and to that
effect, to be consistent with the Services as they are outlined in Exhibit A.
Should there be any gap between this Exhibit and Exhibit A, the Parties shall
review such gap and amend this Exhibit C-2 accordingly. The terms of this
Exhibit C-2 apply to the Modernized Systems and the terms of Exhibit C-1
apply to the Legacy Systems. The chart below outlines the Key Value Measures
(hereinafter referred to in this Exhibit C-2 as "Critical Service Level KVMs"
or "KVMs"), and Business/IT Operational Service Levels (hereinafter referred
to as "SLs") referenced in this document (hereinafter collectively referred
to as the "Performance Measures" (PMs) throughout this document). Capitalized
terms in this Exhibit C-2, not otherwise defined herein, shall have the
meanings set forth in the Agreement and in Exhibit C-1.
ITEM MEASURE
APPENDIX I KEY VALUE MEASURE (KVM)
1. Billing Accuracy
2. Billing Delivered by Day X
3. Payment Received and Processed Same Day
APPENDIX II BUSINESS OPERATIONAL SL
4. [**] ▇▇▇▇ Date Billing Cycle confirmed by Work Day
[**] (WD [**])
5. Billing Services and Queries
6. Payment Process Quality
7. Event error correction
APPENDIX III IT OPERATIONAL SL
8. Online Availability
9. Online Response Time
10. Service Response
11. Service Resolution
-1-
The Parties agree to negotiate in good faith the completion of Appendix II
(Business Operational SL) and Appendix III (IT Operational SL) as soon as
practicable following the Amendment Effective Date and in any event prior to
[**]. The Parties agree that additional SLs may be included in Appendix II
and III upon the agreement of the Parties but, as a minimum, the SLs
identified in Appendix II and III shall be included in Appendix II and III.
II. MEASUREMENT STRUCTURE
Each KVM and SL shall be measured using a "Blue-Green-Yellow-Red" (BGYR) traffic
light mechanism (the "Individual KVM/SL BGYR State"), with "Blue" representing
the highest level of performance and "Red" representing the lowest level of
performance. The tables below represent the mechanism for KVMs and SLs in this
document.
KVMs
-----------------------------------------------------------
Individual KVM Penalty/Bonus Level Penalty/Bonus
BGYR State Multipliers in %
-----------------------------------------------------------
Blue [**] [**]
Light Blue [**] [**]
Green [**] [**]
Yellow [**] [**]
Red [**] [**]
The minimum and maximum bonus thresholds set out above shall be referred to
herein as the applicable "Bonus Threshold" and the minimum and maximum penalty
thresholds set out above shall be referred to herein as the applicable "Penalty
Rebate Threshold".
SLs
----------------------------
Individual SL PM
BGYR State
----------------------------
Blue -
Green -
Yellow -
Red -
-2-
III. GRACE PERIODS
The Parties have agreed that for certain specified time periods based on
calendar days (each a "Grace Period") Certen's obligation to perform the
Services in accordance with some or all of the PMs will be suspended (such
KVMs/SLs referred to hereinafter as the "Suspended PM") upon the occurrence
of certain events that the Parties recognize will negatively impact Certen's
ability to perform the Services in accordance with the PM ("PM Suspension
Events"). A "Suspended PM" means the KVM, if applicable, will not draw a
bonus or penalty during the Grace Period. Certen shall be required to perform
the Services measured by such Suspended PM, and measure and report on its
performance against each Suspended PM, in a timely, accurate and professional
manner. Set forth below is a table summarizing the PM Suspension Events and
the related Suspended PM and Grace Periods:
No. Suspension Grace Period Suspended KVM Suspended SL
Event
1. [**] [**] [**] [**]
2. [**] [**] - [**]
3. [**] [**] - [**] [**]
4. [**] [**] [**] [**]
IV. PENALTY REBATE/BONUS PAYMENT SCHEDULE FOR KVMS
NOTE: From the Amendment Effective Date, Bell has agreed to [**] the Penalty
Rebates/Bonuses calculation. Bell is permitted during the Term, by giving
Certen [**] prior written notice to [**] the Penalty Rebates/Bonuses
calculation hereunder. Accordingly, the following provisions relevant to
Penalty Rebates/Bonuses calculations will only apply [**] Bell.
Actual payment or crediting of accumulated Penalty Rebates/Bonuses will be
made at the time that the BCH Companies' final payment in respect of an
Operational Year is due and payable under the Agreement. Penalty
Rebates/Bonuses are calculated [**] by multiplying [**] by the [**] (as
defined in Exhibit B to this Agreement) for Services received by Certen
associated with the applicable [**] generating the Penalty Rebate/Bonus
during the [**] in which the Performance Penalty Rebate/Bonus is
incurred/earned. Penalty Rebates/Bonuses shall not be applied under both
Exhibit C-2 and Exhibit C-1 for the same Miss.
If the aggregate of all Penalty Rebates due to the BCH Companies within a
particular Operational Year less the aggregate of all Bonuses due to Certen
from the BCH Companies in the same Operational Year is positive, Certen will
credit the BCH Companies with the amount calculated, which credit shall be
applied to the Fees chargeable by Certen commencing in the next Operational
Year, and all Penalty Rebate/Bonus balances for the BCH Companies will be
reduced to zero for the next Operational Year.
If the aggregate of all Penalty Rebates due to the BCH Companies within a
particular Operational Year less the aggregate of all Bonuses due to Certen
from the BCH Companies in the same Operational Year is negative, then the
Penalty Rebate balance will be reduced to zero, while the amount calculated
(i.e., the difference of Bonuses minus Performance Penalty Rebates) will be
carried forward as an opening Bonus for the next Operational Year.
With respect to the last Operational Year of the Agreement (or any portion
thereof if such Operational Year is not a full twelve (12) calendar months),
any outstanding amount due to Certen (i.e., the amount equal to the aggregate
Bonuses minus aggregate Penalty Rebates for that Operational Year or portion
-3-
thereof), will be paid by the BCH Companies up to (but not exceeding) an
amount equal to the aggregate sum of all Penalty Rebates credited to the BCH
Companies at the end of all previous Operational Years of the Agreement.
V. MECHANISM FOR PENALTY REBATES OR BONUSES
1. ALLOCATION OF PENALTY REBATES
A. Certen will issue [**] Penalty Rebates to the applicable BCH Company, at
the dollar value calculated in accordance with the applicable Penalty Rebate
Threshold, if Certen Misses the KVM for [**] in an Operational Year. The
dollar value will be calculated using the [**] attained during the [**]
period.
B. After issuing [**] Penalty Rebates to the applicable BCH Company in
accordance with Paragraph 1A above, Certen will issue [**] Penalty Rebate to
the applicable BCH Company, at the dollar value calculated in accordance with
applicable Penalty Rebate Threshold, if Certen Misses the KVM (upon which the
[**] Penalty Rebates issued under Paragraph 1A above were based) for the [**]
in any other [**] of that Operational Year.
2. ALLOCATION OF PERFORMANCE BONUSES
▇. ▇▇▇▇ will issue [**] Bonuses, at the dollar value calculated in accordance
with applicable Penalty Rebate Threshold, if Certen meets or exceeds the
Bonus % Threshold for the same KVM for the [**] for [**] in an Operational
Year. The dollar value will be calculated using the [**] attained during the
[**] period.
B. After issuing [**] Bonuses to Certen in accordance with Paragraph 2A
above, Bell will issue [**] Bonus to Certen, at the dollar value calculated
in accordance with applicable Penalty Rebate Threshold, if Certen meets or
exceeds the Bonus % Threshold (upon which the [**] Bonuses issued under
Paragraph 2A above were based) for Certen in any other [**] of that
Operational Year.
3. OPERATIONAL YEAR ADJUSTMENT
For the purposes of this Section only, the calculation of [**] in an
Operational Year shall include the [**] of the prior Operational Year. That
is, if Certen Misses, meets or exceeds (as applicable) KVMs in the [**] or
[**] (as applicable) of an Operational Year and in the [**] (as applicable)
of the next Operational Year, then, where there are Misses for [**], the
Performance Penalty Rebate or Bonus (as applicable) will apply to any [**] in
the new Operational Year where the KVM is Missed, met or exceeded (as
applicable).
4. TRANSITION-OUT PERIOD
The KVMs shall [**] upon commencement of, and throughout, the Transition-Out
Period. Subject to and without limiting the foregoing, Certen will [**] meet
the KVMs during the Transition-Out Period.
VI. [**] REPORTS
On a [**] basis, Certen shall provide a written report to Bell which includes
the following information (the "[**] Measures Report"): (i) Certen's
quantitative performance for each KVM/SL; (ii) each Individual KVM/SL BGYR
State and the overall KVM/SL Score; (iii) a "root-cause analysis" and
corrective action plan with respect to any KVM/SL where the Individual KVM/SL
BGYR State was "Red" during the preceding [**]; and (iv) trend or statistical
analysis with respect to each KVM/SL as requested by Bell. The [**] Measures
Report shall be due [**]. Separate reports will be generated for each
platform Line of Business (LOB) applicable.
-4-
VII. REVIEW AND CHANGE PROCESS
PMs are subject to review on the following occasions throughout the Term:
- OPTIONAL [**] REVIEW: Within [**] months of the Amendment Effective Date
and every [**] thereafter, the Parties will have the option to meet and
review the PMs.
- ANNUAL REVIEW: Certen and Bell shall set a mutually agreed date to conduct
annual reviews of the PMs and Certen's performance with respect to the
PMs. At a minimum, the annual review will include:
- Comprehensive review of the previous year's performance;
- Revision of the PMs, if any, based upon mutual written
agreement; and
- The methods of measurement, targets and thresholds,
credit/bonuses procedures, and any other relevant parameter,
mechanism or portion of this Exhibit C-2.
No changes to any PM shall become effective without the written approval of
each Party's Operational Prime (as defined in Exhibit F) Committee members.
Upon the written mutual consent of the Parties and in accordance with Exhibit
G (Change Order Process), the Parties shall adjust any part of the PMs and/or
Penalty Rebates/Bonuses. The Parties shall prepare SL documents, defining the
parameters of SLs, which documents are external to this Exhibit. Such
documents may be altered by the mutual determination of the Parties upon
written agreement of each Party's responsible Service Level Coordinator and
Service Level Manager.
-5-
VIII. DEFINITIONS
Unless otherwise defined herein capitalized terms used in this Exhibit shall
have the meaning ascribed thereto in the Agreement (including Exhibit C-1).
In addition, in this Exhibit C-2, the following capitalized terms shall have
the following meanings:
TERM DEFINITION
Additional Means Planned and managed upgrades, changes and or fixes
Release to the production environment ensuring that the business
interests are taken into consideration (eg.; peak period,
training, methodology, etc) and version control of the
production software or hardware is maintained.
Delivery by Means the total number of all bills generated by Certen
Day X in a given [**], for any given Line of Business, that are
delivered either to a post office (or posted in a mail box) or
delivered electronically to the customer within X calendar days
(inclusive of the Xth day, or such other time period as
indicated above) after the date on which the ▇▇▇▇ generation and
approval process are completed for the specific Line of Business
other than ▇▇▇▇ Canada and in the case of ▇▇▇▇ Canada, from the
billing date as established by the applicable Canadian
Radio-television and Telecommunications Commission (CRTC)
requirements. Billing by Day X counts Business Days; weekends
and official holidays are not included.
Disaster As defined in Exhibit I.
Measurement Normally a [**] with the exception of Grace Periods or
Period other exclusions.
Steady State Means the systems and the data have been set up and are
running in production at the original or a new "permanent" site
as agreed to by both Parties following a Disaster. The upstream
and downstream interfaces are accessible and data operations are
running as per the Certen BC/RP (Business Continuity/ Resumption
plan), if available.
Severity Level The system, component or application is down or unusable
1 resulting in a complete loss of service, [**] Critical
deliverables, schedules and business operations will be
impacted.
Incidents are worked continuously and escalated to other
technical personnel and management as required until service is
restored via a workaround or fix resulting in the problem being
either closed or downgraded.
Severity Level The system, component or application is functioning
2 poorly. The response from the system, component or
application results in a degraded service, [**]. Critical
deliverables and schedules will be impacted but to a lesser
extent than a Severity 1 The result negatively impacts some
business operations.
Incidents are worked on and assigned to other technical
personnel and management as required during extended business
hours (as defined in the SL Agreement for the applicable
application) until service is restored via a workaround or fix.
-6-
TERM DEFINITION
Severity Level The system, component or application is difficult to use.
3 [**]. There is minimal impact to the business operations.
Thresholds The same thresholds that apply to the SLs under the Legacy
Systems will be applied to the SLs under the Modernized Systems.
For new KVMs and SLs the following process is be observed:
Certen will collect measurement data for [**]after the Amendment
Effective Date, after which time the Parties will within [**],
negotiate in good faith, a set of on-going measures and
thresholds.
IX. DEPENDENCIES
The following events, should they occur, shall not be included in the
calculation of Certen's performance in relation to the KVMs/SLs (and
accordingly, no Penalty Rebates shall result from such events), but shall be
reported in writing to the BCH Companies, on a [**] basis from the Amendment
Effective Date, in a format to be defined and agreed to by the parties:
(a) A Force Majeure Event (as defined under the Agreement);
(b) A failure resulting from the acts or omissions of (a) [**]; (b) [**];
or (c) [**] BCH Companies or to Certen;
(c) A failure of one of the BCH Companies ([**]) to fulfill its (or their)
part in the Services, according to the dependencies of the parties set forth
in Exhibit A, or the roles and responsibilities of the parties set forth in
Exhibits O-1 and O-2 of the Agreement (or the dependencies and/or roles and
responsibilities set forth in such third party contracts referenced in
paragraph (b) above);
(d) A failure arising out of an error or defect in the Legacy Systems and/or
Modernized System, not caused by Certen or any third party under Certen's
responsibility, control and management; or
(e) Exceeding Envelope Parameters that are indicated in Exhibit A as being
dependencies for specific KVMs/SLs;
X. REMEDIES FOR MISSES
[**] SUCCESSIVE OR AGGREGATE MISSES OF KVMS
A. Subject to Section IX (Dependencies) above, in the event that Certen
causes an aggregate of [**] Misses of the same KVM for the same Line of
Business, [**] then, subject first to compliance with the Dispute Resolution
procedures set forth in Section 18 of the Agreement, and further subject to
the limitation of liability provisions of the Agreement, Certen shall credit
the BCH Companies in the amount [**]. No Penalty Rebates/Bonuses or damages
shall apply to Misses of SLs.
B. All Penalty Rebates previously credited to the BCH Companies under this
Exhibit C-2 shall be deducted from [**]. The BCH Companies shall not have
grounds for termination of the Agreement based on the successive or aggregate
Misses described in this Section, subject to the occurrence of a Material
Breach (defined below).
MATERIAL BREACH
Subject to the following-
(i) compliance with the Dispute Resolution procedures set forth in Section
18.1 of the Agreement; and
(ii) if, following such procedures, corrective measures are not taken, the
Parties shall attempt to resolve
-7-
the dispute within an additional period of [**] in which they shall refer the
dispute to the Parties' executive officers; and
(iii) the limitation of liability provisions of the Agreement,
▇▇▇▇ shall have the right to terminate the Agreement by giving notice of
termination to Certen without Certen having prior recourse to the arbitration
procedure set out in Section 18.2 thereof, if Certen causes, subject to
Section IX (Dependencies) above:
1. [**] successive Misses of the same KVMs for the same Line of Business
within[**]; and
2. each of such Misses materially deviates from the applicable Penalty Rebate
Threshold ("Material Deviation"); and
3. the [**] consecutive Misses, taken as a whole, have materially adversely
affected the delivery of the Services under the Agreement;
provided, however, that Certen shall have the right to dispute, pursuant to
the provisions of Section 18.2 of the Agreement, such termination after the
effective date of the termination as set out in the termination notice.
The parties undertake to negotiate in good faith, as soon as practicable
following the Amendment Effective Date and in any event by [**] measurements
of the Material Deviation threshold for purposes of measurement of Material
Deviation as of the Amendment Effective Date.
XI. COMPUTING THE MEASUREMENT SCORE (ROUNDING)
The measured result for each measure may require rounding in order to align with
the defined scoring criteria. Where applicable, a simple rounding practice will
be used. Two-decimal place accuracy will be used as the rounding precision,
unless otherwise specified.
SAMPLE CALCULATION:
Using the Online Availability SL measured result: [**]%
Apply the following SL scoring matrix:
Individual SL Production
BGYR State Environment
GE = Greater than or
equal to
LT = Less than
Blue GE [**]%
Green GE [**]%
Yellow GE [**]%
Red LT [**]%
The rounding algorithm for this sample employs two-decimal place accuracy. The
measurement result after rounding is [**]%, which yields a Green score.
-8-
APPENDIX I
(KEY VALUE MEASURES)
This section of the document provides detailed definitions of the KVMs.
1.0 BILLING ACCURACY
Specification: Billing Accuracy
Definition: The number of all bills that do not contain Errors
divided by the total number of bills generated in
one [**], for a given BCH Company. "Errors" are
mistakes that have a material impact on successful
delivery or payment of the billed amount or result
in inaccurately reflecting the amount due.
KVM Formula: A. [**]
B. [**].
C. [**]
Measurement [**]
Period:
Frequency of [**]
Collection:
Special Subscribers that are [**] shall be excluded
Exclusions from this KVM calculation.
If Certen, in its discretion, pays the applicable
BCH Company for [**] then the related Miss shall not
be calculated as a Miss under this Exhibit.
-10-
1.1 KVM MEASURES
Set forth below is a chart depicting the KVM measures and related
Individual KVM BGYR States for Billing Accuracy:
ID Line of Business (LOB)
A [**]
B [**]
C [**]
D [**]
E
F
Individual Threshold % per LOB
KVM BGYR --------------------------------------------------------
State A B C D E F
Blue GE [**] GE [**] GE [**] GE [**] [**] [**]
Light Blue [**] [**] [**] [**] [**] [**]
Green [**] [**] [**] [**] [**] [**]
Yellow [**] [**] [**] [**] [**] [**]
Red LE [**] LE [**] LE [**] LE [**] LE [**] LE [**]
GE = GREATER THAN OR EQUAL TO.
LE = LESS THAN OR EQUAL TO.
2.0 BILLING DELIVERED BY DAY X
Specification: Billing Delivered by Day X
Definition: If ▇▇▇▇ is responsible for [**] all hours
associated with the [**] will be subtracted from
the total hours and will not be reflected against
Certen scoring against the KVM.
If Certen is responsible for a [**], all hours
associated with the [**] will be added to the
total hours and counted against [**] and will be
reflected against Certen scoring against the
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KVM.
In the event of a Certen operational error that
occurs during a [**] that is required due to
▇▇▇▇'▇ action, then all time spent [**] because of
the Certen error will not be subtracted from total
Billing Cycle Time.
KVM Formula: A. [**]
B. [**]
C. [**]
D. [**]
Measurement [**]
Period:
Frequency of [**]
Collection:
Special If Certen operates more than Y concurrent
Exclusions [**], or [**] for which ▇▇▇▇ was
responsible, then [**] shall not be counted
against Certen for the ▇▇▇▇▇▇▇▇ that occurred
during this time of excess. Y is to be determined
by the Parties as soon as practicable following
the Amendment Effective Date and, in any event, by
no later than [**].
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2.1 KVM MEASURES
Set forth below is a chart depicting the KVM measures and related
Individual KVM BGYR States for Billing Delivery Time:
ID Line of Business Value of Target
X Percentage
A [**] [**] [**]
B [**] [**] [**]
C [**] [**] [**]
D [**] [**] [**]
E
F
Individual KVM Targets
BGYR State
Blue [**]
Light Blue [**]
Green [**]
Yellow [**]
Red [**]
3.0 PAYMENT RECEIVED AND PROCESSED SAME DAY
Specification: Payment Received and Processed Same Day
Definition: Payment Received and Processed Same Day
KVM Formula: A. [**]
B. [**].
C. [**]
Measurement [**]
Period:
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Frequency of
Collection: Throughout Measurement Period
The calculation will measure processing of
Special payments received Monday through Friday
Exclusions: before [**]. Payments received after such
time shall be processed on the following
Business Day.
The calculation will exclude any measurements that
have been delayed due to outages or agreed upon
extended maintenance periods.
[**] measurements shall be excluded on a given day
from the calculation of this KVM if any of the
following conditions apply:
- ▇▇▇▇ requests that Certen temporarily delay
its [**] to confirm for correct [**]. For
example, ▇▇▇▇ may request Certen delay the
start [**]due to files it sends to Certen
[**]
[**] processes will be reviewed on a [**] basis and
excluded from the KVM measurements, subject to the
Parties' joint agreement.
3.1 KVM MEASURES
Set forth below is a chart depicting the KVM measures and related Individual KVM
BGYR States for this KVM. Penalty Rebates/Bonuses are not applicable to this
KVM:
Individual Payment Received Threshold %
KVM BGYR and Processed
State Same Day
Penalty/Bonus
Level
Green Target KVM [**]
-14-
APPENDIX II
(BUSINESS OPERATIONAL SERVICE LEVELS)
This section of the document lists the type of the Business Operational SLs
Certen will provide, the individual measurements are recorded in external
"Service Level Agreement" documents. Versions of the external "Service Level
Agreement" documents are to be maintained and mutually agreed upon by both
Parties and version history shall be maintained.
The Parties will define, clarify and determine the values and measurements for
the following Business Operational Service Levels and the other terms of this
Appendix II by negotiating the same in good faith as soon as practicable
following the Amendment Effective Date and, in any event, [**].
1.0 [**] ▇▇▇▇ DATE BILLING CYCLE CONFIRMED BY WORK DAY [**]
Specification: The [**] ▇▇▇▇ date billing cycle to be
confirmed by Work Day [**]
Definition: [**]% of billing confirmed By Work Day [**]
2.0 BILLING SERVICES REQUESTS AND QUERIES
Specification: Certen Response interval to BCH Company
billing service requests and queries
Definition: ▇▇▇▇ and Certen shall agree on response
intervals for key categories of billing
services requests and billing inquiries
[TBD]
3.0 PAYMENT PROCESS QUALITY
Specification: Quality of Payments processed
Definition: ▇▇▇▇ and Certen shall agree on a quality
Index that will measure the quality of
payments processed by Certen either directly
or through third parties that they manage.
This measure is intended to measure the
quality of application to the correct
account and the effectiveness on the
investigation of [**] payments eg, [**] that
is in Certen's accountability.
-15-
4.0 EVENT ERROR CORRECTION
Specification: Effectiveness of usage events error
correction
Definition: Certen is responsible to correct events in a
specific interval [TBD]
-16-
APPENDIX III
(IT OPERATIONAL SERVICE LEVELS)
This section of the document lists the type of the IT Operational SLs Certen
will provide; the individual measurements are recorded in external "Service
Level Agreement" documents. Versions of the external "Service Level Agreement"
documents are to be maintained and mutually agreed upon by both Parties and
version history shall be maintained.
The Parties will define, clarify and determine the values and measurements for
the following IT Operational Service Levels and the other terms of this Appendix
III by negotiating the same in good faith as soon as practicable following the
Amendment Effective Date and, in any event, by [**]
1.0 ONLINE AVAILABILITY
1.1 OPERATIONAL MEASURE
Specification: Online Availability
Definition: Online Availability shall be calculated by
subtracting [**]Time, as described below, during the
Measurement Period from the [**], as described below,
in the Measurement Period, dividing this amount by
the total number of [**] in the Measurement Period,
and multiplying the resulting decimal by 100.
[**] are the number of minutes elapsed
outside the maintenance period. [**] (i.e.,
[**]) shall be calculated as follows for all
but the last calendar day of the [**]:
Outage exemptions from the SL formula are handled
case-by-case. Certen shall maintain a list of
authorized "requestors" for outages, and similarly
▇▇▇▇ shall maintain a list of authorized "approvers"
who review and grant outage approvals and exemptions
as applicable.
Special The time associated with Testing or
Exclusions: Alterations to the Production System, during
normal online hours, by ▇▇▇▇ will be excluded.
▇▇▇▇ equipment or system failures that impact the
Certen systems will be excluded unless the failure is
caused by Certen. For example: the ICN network is
under ▇▇▇▇'▇ control.
Note: An [**] of maintenance per Build, shall
be allowed for periodic Builds to be placed
into the Production Environment as required.
These Build installations must be scheduled
and approved in advance by ▇▇▇▇.
-17-
2.0 ONLINE RESPONSE TIME
2.1. OPERATIONAL MEASURE
Specification: Online Response Time
Definition: The amount of time required for a requested
Transaction to be completed.
This SL applies to that portion of transaction
processing for which Certen is responsible.
[Demarcation lines and values TBD]
[User Response time" definition refers to the
transaction processing time from when a request is
received by the Certen environment to when it is
released back from its environment. The environment
includes the servers which make up the Solution.
The Online Response Time percentage is derived by
dividing the [**] that occurred within the
threshold, by the [**] and multiplying the result by
100.
Special A small number (x% of the best and x% of the
Exclusions: worst) transaction times shall be excluded from
the calculation for this SL in order to remove
statistical anomalies.
▇▇▇▇ and Certen agree to mutually review and where
appropriate agree to exclude anomalous transaction
time measurements during each Measurement Period.
Maintenance Periods - Online response time
measurements will not be collected during agreed
upon maintenance periods.
Online response time will not be collected during
availability outages.
Online Response Time calculation shall exclude
measurement of transaction time that passes through
Third Party interfacing systems in situations where
▇▇▇▇ is responsible for the relationship with the
Third Party. In such transactions, Certen shall
measure, and this SL shall apply to, only the
portion of the transaction for which Certen is
responsible.
3.0 SERVICE RESPONSE TIME
Specification: Service Response Time
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Definition: The time Certen has to acknowledge tickets
from the various Severity Levels. Certen
and ▇▇▇▇ shall jointly agree, acting
reasonably, to reprioritize Issues for
resolution and for SL measurement from time
to time, acting reasonably. Acknowledgement
of tickets by Certen will occur by way of a
system generated auto reply, or verbal or
other electronic means of communication.
The time interval shall be measured from the time
the [**] until the time at which the end user
receives [**]
The Service Response Time percentage is derived by
dividing the number of tickets that missed the
threshold by the total number of tickets and
multiplying the result by 100.
4.0 SERVICE RESOLUTION
Specification: Service Resolution
Definition: Certen's unencumbered time to repair each Issue
during the Measurement Period. The measurement
time for this SL begins when [**]. The
measurement time ends when the repair is
implemented or scheduled in accordance with the
parties' joint consent, for implementation in
production. Certen ticketing measures
unencumbered time automatically on the basis of
status inputs by Certen' Help Desk personnel,
and the resulting data is made available in the
[**] end reporting.
Certen and ▇▇▇▇ shall jointly agree to reprioritize
incidents for resolution and for SL measurement,
acting reasonably.
Priority breakdown needs to be clear.
The Service Resolution Time percentage is derived by
dividing the number of tickets that missed the
threshold by the total number of tickets and
multiplying the result by 100.
-19-
Special Time consumed and qualified as encumbered by
Exclusions Certen waiting for any of the following from
▇▇▇▇:
- Responses to inquiries
- Additional required details relating to
the Issue (e.g., specific billing
account number (BAN) identifier)
- Problem clarification
shall be excluded from the calculation for this SL.
Only Certen unencumbered time shall be included in
the calculation of this SL.
Defects that are found during a billing audit and
measured against the Billing Delivery KVM will be
excluded from the calculation.
-20-
FINAL
EXHIBIT D
2003 ROAD MAP
1 INTRODUCTION
The purpose of this Exhibit is to specify the (i) projects completed prior
to the Amendment Effective Date (the "COMPLETED PROJECTS"), and (ii) scope
of the outstanding 2003 Road Map Projects as of the Amendment Effective
Date together with the work and services to be performed in respect
thereof, the estimated timetables and estimated budgets with respect
thereto; all in connection with the modernization of certain billing
functions for the BCH Companies (the "ROAD MAP PROJECTS"). The 2003 Road
Map will [**]
The Parties recognize that the implementation of the 2003 Road Map set out
in this Exhibit [**].
Changes to the 2003 Road Map shall be subject to the change order process
set out in Section 19 of the Master License and Services Agreement and any
agreed Change Authorization Order (as defined in such agreement) shall
include the impacts that such change(s) would have on the delivery
schedule, DFS and Deliverables, Project milestones, operations, Fees and
other impacts, if any).
2 ROAD MAP STATUS
The table below describes the status of the projects detailed in the
Amended Road Map and the projects ordered in addition to the Amended Road
Map:
2
START AT THE FINISH (ACCEPTANCE)
BCH MODERNIZATION PROJECT BEGINNING OF: AT THE END OF: STATUS*
------------------------- ------------- -------------- -------
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
(*) Following is a clarification of the various statuses:
- Completed - delivered, accepted and used in production (in
operational use).
- Outstanding - The project started (except for [**] Project, as
detailed below) but not completed yet.
- Note: [**]
3 COMPLETED PROJECTS
The Completed Projects are set forth in Annex 1 attached to this Exhibit
D.
4 SCOPE, ESTIMATED BUDGETS AND ESTIMATED TIMETABLES OF OUTSTANDING PROJECTS
FOR THE BCH COMPANIES
4.1 [**] PROJECT
The Scope (defined below), estimated schedule and estimated 2003 budget
for the Project known as [**] together with the work and services to be
performed in respect thereof are set out in Annexes 2 and 3 to this
Exhibit D (the "[**] PROJECT"). Certen shall perform the work and services
comprising the [**] Project in accordance with the terms of this Exhibit
D, and the Master License and Services Agreement including Exhibit O-1
attached thereto. For the avoidance of doubt all amounts referred to
herein are in Canadian dollars.
(i) Scope: The scope of the [**] Project consists of [**] (the "Scope").
Any [**] the Scope, [**] the Scope. For example, a [**] and [**]
existing
3
Scope, [**] and therefore [**] to the existing Scope.
(ii) Budget: The estimated total 2003 budget which has been spent since
January 1, 2003 or which is available to be spent on the [**]
Project, which has been estimated as of June 18, 2003 on the basis
of assumptions detailed in the budget and the estimated schedule
attached as Annex 3 and the Scope as defined in Annex 2, is $[**] in
accordance with the items detailed in Annex 3 attached to this
Exhibit D (the "TOTAL AMOUNT"). The Total Amount is divided into (i)
Certen costs of $[**] which reflects amounts to be expended or costs
to be incurred by Certen (the "CERTEN COST"), and (ii) $[**] which
reflects amounts to be expended or costs to be incurred by the BCH
Companies (the "NON-CERTEN COSTS"). The breakdown of costs between
the BCH Companies and Certen reflects a credit payable in accordance
with the terms of Exhibit B to this Agreement, by Certen to ▇▇▇▇
relating to the Oversight Functions associated with the [**]
Project. The Certen Costs have been fully funded as of the Amendment
Effective Date by the Parties (and/or their Affiliates) in
accordance with Annex 3.
(iii) Timetable: The key milestones of the [**] Project are set out in
Annex 3, including the targeted launch date ("TARGET LAUNCH DATE")
of [**] for operating [**] in production and beginning normalization
(iv) Budget and Timetable Overruns- Added Scope:
With respect to any increase in the budget/costs/expenditures beyond
the Total Amount that is due to items that ▇▇▇▇ requests to add to
the Scope (whether or not such items cause a delay in the Actual
Launch Date past the Target Launch Date):
(a) [**]; and
(b) [**].
For the avoidance of doubt, [**].
(v) Budget and Timetable Overruns - Delays
If there are any delays to the [**] Project which are not due to
items that ▇▇▇▇ requests to add to the Scope , and which postpone
the actual date on which the [**] Project is put into production
("Actual Launch Date") past the Target Launch Date, and which result
in additional expenditures and costs not covered by the Total Amount
and if ▇▇▇▇ determines to continue performance of the [**] Project
beyond the Target Launch Date, then such additional
4
expenditures and costs resulting from such delays shall be dealt
with as follows:
(a) [**];
(b) [**];
(c) [**];
(d) [**]; and
(e) [**].
(f) [**]
No amounts payable by ▇▇▇▇ under Sections 4.1(v)(d) or (e)
[**]
(g) Roles and Responsibilities
The [**] Project shall continue, after the Amendment Effective
Date, to be managed under the same management structure and
roles and responsibilities framework that were in place prior
to the Amendment Effective Date. [**]
5
For the avoidance of doubt, [**]
(vi) Budget and Timetable Overruns - Other
Until the Actual Launch Date (whether or not it was delayed
beyond the Target Launch Date) any increase in the
budget/costs/expenditures beyond the Total Amount which is not
dealt with in accordance with Section 4.1(iv) or 4.1(v) above
, shall be dealt with as follows:
(a) [**];
(b) [**]; and
(c) [**].
The work and services performed under this sub-section (vi)
[**].
(vii) [**]
Bell shall be entitled [**]
(viii) Certen Functions: For the purposes of this Section 4.1 of Exhibit
D, "Certen Functions" shall mean the functions performed in support
of the [**] Project by the following individuals: (a) former
employees of Certen who had transitioned to Bell effective as of the
Amendment Effective Date to perform the Oversight Functions or
personnel replacing such employees; (b) consultants and other
independent contractors of Certen who had transitioned to Bell
effective as of the Amendment Effective Date to perform the
Oversight Functions or personnel replacing such consultants or other
independent contractors; and (c) other employees or subcontractors
(other than Amdocs or other Affiliates of Certen) of Certen or
personnel replacing such employees or subcontractors who are
performing work of a nature which, had it been performed prior to
the Amendment Effective Date, would have been performed by Certen or
such subcontractors.
4.2 [**] PROJECT
The Parties acknowledge that the proposed Project known as [**], and also
as "[**]" or "[**]" and "[**]" (referred to herein as the "[**] PROJECT")
which is intended to further evolve the [**], is currently undergoing a
feasibility study.
6
(i) Scope: [**]
(ii) Budget: the total budget which is available to be spent on the [**]
Project is currently $[**], which amount has been fully funded by
the Parties (and/or their Affiliates) but may be reduced by Bell as
a result of the transfer of funds to the [**] Project, provided that
the remaining funded budget amount (the "REMAINING [**] BUDGET") for
the [**] Project shall not be reduced below $[**].
(iii) Timetable: The parties shall diligently and in good faith endeavour
to specify the scope of the [**] Project by not later than [**].
(iv) Additional Work: Only the work and services which can be completed
within the Remaining [**] Budget shall be included in the scope of
the [**] Project. That portion of the 2003 Road Map comprised by the
[**] Project shall be considered completed upon the expenditure of
the Remaining [**] Budget. If Bell wishes to have additional work or
services performed after the expenditure of the Remaining [**]
Budget, then such work and services shall be considered a new
Project, and shall be considered Ensemble Customizations, Legacy
Modifications, or New Products, as applicable, as defined in the
Master License and Services Agreement, shall be subject to the
applicable terms and conditions thereof relating thereto, and shall
be counted as Additional Work if such additional work or services
are performed by Certen.
5 ATTACHMENTS
Attached to this Exhibit are the following documents:
Annex 1- Description of Completed Projects
Annex 2 - Document entitled "[**] Scope". All documents referenced therein
are included in the definition of "[**] Project" but due to their
volume are not attached hereto
The Parties shall diligently and in good faith endeavour to (i) develop by
[**] the acceptance criteria for transitioning [**] from acceptance
testing into production for normalization and (ii) develop within [**]
following the beginning of production, the acceptance criteria for exiting
normalization.
The Parties shall record the operational processes relating to [**] in the
Operations Procedures Manual.
7
Annex 3 - Estimated Budget and Estimated Timetable for [**] Project
Annex 4 - Scope of [**]
6 MODERNIZATION IMPLEMENTATION ACTIVITIES FOR THE 2003 ROAD MAP
This Section outlines the main assumptions regarding the performance of
implementation activities for the 2003 Road Map by both parties. The
successful implementation of the 2003 Road Map set out herein is dependent
upon the Parties working together and Cooperating in exerting required
efforts in order to perform and carry out the implementation activities;
all in accordance with the Roles and Responsibilities defined in Exhibit
O-1 to the Master License and Services Agreement and in this Exhibit D.
FOLLOWING ARE THE MAIN UNDERLYING ASSUMPTIONS FOR THE IMPLEMENTATION
ACTIVITIES:
[ ] [**]
[ ] [**]
[ ] [**]
[ ] CONVERSION
FOLLOWING ARE THE MAIN UNDERLYING ASSUMPTIONS FOR THE CONVERSION
ACTIVITIES:
[ ] [**]
[ ] [**]
[ ] [**]
[ ] [**]
7 GENERAL ASSUMPTIONS WITH RESPECT TO 2003 ROAD MAP
[ ] [**]
[ ] [**]
FINAL
EXHIBIT F - GOVERNANCE
The purpose of this Exhibit F is to define the governance process to
be followed by the Parties (Certen and/or Amdocs on the one hand and Bell
on the other hand) in the implementation and administration of the work to
be performed under the Further Amended and Restated Master Outsourcing
Agreement dated as of July 1, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and Certen Inc.
(the "FARMOSA") and the the work to be performed under Master License and
Services Agreement dated as of July 1, 2003 between ▇▇▇▇ Canada, Certen
Inc. and Amdocs Software Systems Ltd. (the "MLSA"), in each case as
amended or restated from time to time (collectively, the "Agreements").
Unless otherwise defined in this Exhibit F, initially capitalized terms
used in this Exhibit shall have the meaning ascribed thereto in the
FARMOSA or the MLSA, as applicable.
1.1 APPOINTMENT OF REPERENTATIVES
Each of Bell and Amdocs shall appoint the appropriate
representatives (including, an Executive Prime and a Delivery Prime
for each Party) as required to manage within such Party's
organization the obligations of such Party under the Agreements and
to constitute the Relationship Management Committee. Each Party
shall identify in writing to the other Party the name of its
Executive Prime and the names of its Relationship Management
Committee representatives.
1.2 MLSA PROJECT MANAGEMENT OFFICE
CREATION OF PROJECT MANAGEMENT OFFICE . Each of Bell and Certen shall create a
Project Management Office within such Party's organization. Each Party's Project
Management Office shall communicate regularly with the other Party's Project
Management Office and shall meet with such other Party's Project Management
Office as required. Certen's Project Management Office shall generate a regular
status and progress report regarding those activities for which Certen is
responsible and shall provide on a regular basis a summary of such report and
related information to the Relationship Management Committee. The Project
Management Office of Bell and the Project Management Office of Certen shall make
good faith efforts to resolve issues and concerns with respect to the relevant
Projects and shall escalate any unresolved material issues and concerns to the
Relationship Management Committee.
2 FORUMS, COUNCILS AND COMMITTEES
2.1 RELATIONSHIP MANAGEMENT COMMITTEE
(a) FORMATION. Bell and Certen hereby create a Relationship Management
Committee. (the "RELATIONSHIP MANAGEMENT COMMITTEE"). Each of Bell and Certen
shall appoint up to four representatives to the Relationship Management
Committee. One
-2-
representative of each party shall be designated as co-chairperson of the
Relationship Management Committee for that party (each a "Co-Chairperson").
Meetings of the Relationship Management Committee in any calendar year will be
moderated by one party's Co-Chairperson; in the following year, meetings will be
moderated by the other party's Co-Chairperson. Each of Bell and Certen will
appoint as its representatives to the Relationship Management Committee persons
who are typically responsible for the following functions:
(i) BELL: (i); [**] (ii), [**] (iii) [**] and (iv) [**]; or such other
representatives as may be appointed by Bell from time to time.
(ii) CERTEN:
(i); [**], (ii) [**]; (iii)[**]; and (iv) [**]; or such other
representatives as may be appointed by Certen from time to time.
(iii) Each Party appoints its Relationship Management Committee
representatives to act as the Designated Representatives of such
Party in accordance with Section 35(a) of the FARMOSA. BELL shall
authorize one of its Relationship Management Committee
representatives to act as ▇▇▇▇'▇ Authorized Representative (as
defined in the MLSA) and CERTEN shall authorize one of its
Relationship Management Committee representatives to act as CERTEN's
Authorized Representative (as defined in the MLSA)
(c) ROLE. The Relationship Management Committee will:
(i) review on a monthly basis the overall status of the relationship
between Certen and Bell, including the status and progress of the
various aspects of the implementation of the work performed under
the Agreements, issues related to delivery of the Services under the
Agreements, service level measurement and performance under the
Agreements, 2003 Road Map implementation (including milestones and
timeframes), Projects initiated by the Parties, Orders under the
MLSA, and the implementation of objectives, measurements,
accomplishments, going forward plans and priorities issues;
(ii) discuss improvements and changes to the processes and procedures
relating to the Agreements;
(iii) address such other matters as may be brought before it in relation
to the Agreements;
-3-
(iv) consider and resolve by mutual consent (or attempt to resolve) any
disputes that have not been resolved by the Project Management
Offices of both Parties. Any disputes not resolved by the
Relationship Management Committee will be escalated to the Steering
Committee;
(v) evolve the overall relationship between the Parties, subject to
mutual consent of both Parties; and
(vi) issue to the Steering Committee on a quarterly basis an executive
summary of the reports of the Project Management Office, to be
reviewed by the Steering Committee.
(d) MEETINGS. The Relationship Management Committee will meet monthly or less
frequently as agreed by the Parties. Additional meetings of the Relationship
Management Committee may be requested by either Party's Co-Chairperson in order
to attempt to resolve specific outstanding and material issues related to the
relationship between the Parties or the Agreements. Upon receipt of any such
request, the Parties will use good faith efforts to meet in a timely manner in
order to attempt to resolve any such issues. .
2.2 CHANGE CONTROL BOARD
The Parties agree that a Change Control Board will be established to coordinate
Change Requests initiated in accordance with the Agreements. Both Parties will
be equally represented in this Change Control Board and will discuss in good
faith its procedures, and frequency of meetings.
2.3 STEERING COMMITTEE
(a) FORMATION. Bell and Certen hereby create a Steering Committee (the
"STEERING COMMITTEE"). Each of Bell and Certen shall appoint up to three
representatives to the Steering Committee. One representative of each party
shall be designated as co-chairperson of the Steering Committee for that party
(each, a "Co-Chairperson"). Meeting of the Steering Committee in any calendar
year will be moderated by one party's Co-Chairperson; in the following year,
meetings will be moderated by the other party's Co-Chairperson. Each of Bell and
Certen will appoint as its representatives to the Steering Committee persons who
are typically responsible for the following functions:
(i) BELL:
(i) [**], (ii) [**], and (iii) another officer to be designated; or
such other senior representatives as may be appointed by Bell from
time to time; and
-4-
(ii) CERTEN:
(i) [**]; (ii) [**], and (iii) another officer of Amdocs to
be designated; or such other senior representatives as may be
appointed by Certen from time to time.
(c) ROLE. The Steering Committee will:
(i) review the quarterly status and progress report submitted to it by
the Relationship Management Committee and review, on a quarterly
basis, performance, objectives and measurements of this Agreement
and the Services provided under the Agreements;
(ii) discuss proposed major changes to the relationship between the
Parties and objectives, subject to the prior written approval of
both Parties;
(iii) address such other matters as may be brought before it in relation
to this Agreement; and
(iv) consider and resolve by mutual consent of both Parties (or attempt
to resolve) any disputes that are not resolved by the Relationship
Management Committee.
(d) MEETINGS. The Steering Committee will meet quarterly. In addition, each
Co-Chairperson of the Steering Committee may request, by prior written
notice, additional meetings of the Steering Committee in order to attempt
to resolve specific outstanding and material issues related to the
relationship between the Parties or the Agreements. Upon receipt of a
request for an additional meeting, the Steering Committee members shall
meet within the time period specified in the applicable notice (which
shall be a reasonable time period in the circumstances).
FINAL
EXHIBIT G - CHANGE ORDER PROCESS
1. INTRODUCTION
1.1 The procedure set out below (the "CHANGE ORDER PROCESS") will be used for
(i) the addition of any services, including a New Service, which are out
of the scope of the Services set forth in the Agreement, and (ii) any
changes to the Services. All changes to the Services shall be made in
compliance with the Change Order Process with the exception of any
temporary changes reasonably made by Certen in connection with a disaster
or emergency. Certen shall promptly document and report any temporary
change made in connection with a disaster or emergency to Bell. For
greater certainty, the Change Order Process shall not apply in respect of
Development Work or Projects relating to the Services. Such work will be
performed under the Master License and Services Agreement.
1.2 All capitalized terms used in this Exhibit and not otherwise defined
herein shall have the meaning ascribed to those terms in the Agreement.
2. BELL INITIATED CHANGES
2.1 ▇▇▇▇ may request changes to the Services at any time and from time to time
during the Term of the Agreement by completing and delivering to Certen a
change request substantially in the form attached hereto as Attachment 1
("CHANGE REQUEST"). Each such Change Request shall be executed by the Bell
Designated Representative and shall set out the scope, intent,
description, objective, expected impact on existing Services, expected
implementation date and any other relevant matters relating to the
proposed change.
2.2 Certen shall respond to a Change Request, unless otherwise agreed by the
Parties, within such time period as reasonably determined by Bell, not to
be less than [**] Business Days of the delivery to Certen of the Change
Request, by delivering to Bell a change proposal substantially in the form
attached hereto as Attachment 2 ("CHANGE PROPOSAL"). Each Change Proposal
shall be executed by the Certen Designated Representative, and shall be
reasonably sufficient to permit informed evaluation of the proposed
change, and shall address scope, intent, description, objective, expected
implementation date of the proposed Change Request and including but not
limited to the impact of change to the FARMOSA, including a proposed
adjustment to the Services and Fees and/or other amounts payable by Bell
as a result of such changes, if any, and any other relevant matters raised
in the Change Request.
2.3 Upon receipt of the Change Proposal issued by Certen, ▇▇▇▇ may:
a. accept the Change Proposal by signing and returning the signed
Change Proposal to Certen which shall constitute an amendment to the
Agreement;
-2-
b. request from Certen additional information that Bell requires in
order to evaluate the Change Proposal or the proposed change;
c. propose modifications to any aspect of the Change Proposal that Bell
finds unacceptable by notifying Certen in writing. In this event,
Certen shall submit a revised Change Proposal within [**] Business
Days of Bell notifying Certen of such proposed modifications (or
such longer period as Bell and Certen may agree); or
d. reject the Change Proposal by notifying Certen in writing of such
decision.
Bell reserves the right to accept or reject, in its sole and absolute
discretion, any Change Proposal submitted by Certen.
2.4 Certen agrees that:
a. it shall provide Bell with any information requested pursuant to
Section 2.3b;
b. it shall promptly implement any changes provided for in an accepted
Change Proposal executed by both Parties, in accordance with the
schedule agreed by the Parties and specified in the accepted Change
Proposal; and
c. there shall be no increase in the [**] except increases which
reflect ongoing net increases in the [**] which are reasonably
expected to result from the implementation of the accepted Change
Proposal provided that Certen shall be entitled to payment for
implementing the accepted Change Proposal [**] basis as provided for
in Exhibit B.
3. CERTEN INITIATED CHANGES
3.1 Certen may, on its own initiative, prepare and deliver to Bell a Change
Proposal which will be reviewed and considered by Bell in accordance with
paragraph 2.3 above and in accordance with the terms of the Agreement.
4. GENERAL
4.1 Subject to this Section 4.1, each Party shall be responsible for its own
costs related to the evaluation and preparation of a Change Request or a
Change Proposal, including the costs incurred in conducting any
investigations in connection therewith. The preparation of any Change
Request or a Change Proposal relating to New Services or any other
services, the result of which would be to increase the scope of the
Services provided by Certen to Bell hereunder, shall be at each Party's
costs. However, Certen's preparations relating to a Change Proposal, the
result of which would be not to increase the scope of the Services, will,
[**] at the fees/rates set forth in Exhibit B, [**] (the "Bell Costs"). At
▇▇▇▇'▇ request, the Bell Costs shall be subject to a maximum amount of
money, as mutually agreed between the Parties, payable by Bell to Certen.
-3-
4.2 Subject to Section 4.1 above, Bell shall only be responsible for those
costs/Fees expressly agreed to in any Change Proposal, if any, and shall
not be responsible for any other additional fees, costs and/or expenses
incurred in connection with the change involved in the Change Order
Process.
4.3 Certen and Bell agree that any change implemented as a result of a Change
Proposal shall not relieve either Party of its other obligations under the
Agreement unless the Parties agree in writing otherwise.
4.4 Certen shall maintain a record of each Change Request, Change Proposal and
all other material documentation relating thereto.
FINAL
ATTACHMENT 1 TO EXHIBIT "G"
CHANGE REQUEST
CHANGE REQUEST #: _______ DATE:
TO: Certen Inc. ("CERTEN")
FROM: ▇▇▇▇ Canada ("BELL")
SUBJECT: Change Order Process under the Further Amended and Restated
Master
Outsourcing Services Agreement dated - , 2003 made between Bell and
Certen (the "FARMOSA").
*************************
This Change Request is made pursuant to and is subject to the terms and
conditions of the FARMOSA (including Exhibit G thereof), except as otherwise
specified herein, and is not binding until both Bell and Certen have executed
and agreed to a Change Proposal prepared by Certen in response to this Change
Request.
1. Statement of Scope and Intent:
(To be completed )
2. Description of Requested Change:
(To be completed )
3. Objective of Requested Change:
(To be completed )
4. Expected Impact on Existing Services:
(To be completed )
5. Implementation Date:
(To be completed )
6. Other Relevant Matters:
(To be completed )
-2-
▇▇▇▇ CANADA
BY: _________________________________
Authorized signature
_________________________________
Name of authorized representative (Print)
_________________________________
Title
_________________________________
Date
FINAL
ATTACHMENT 2 TO EXHIBIT "G"
Change Proposal
CHANGE PROPOSAL #: _______ DATE:
TO: ▇▇▇▇ Canada ("BELL")
FROM: Certen Inc. ("CERTEN")
SUBJECT: Change Order Process under the Further Amended and Restated
Master
Outsourcing Services Agreement dated - , 2003 made between Bell and
Certen (the "FARMOSA").
*************************
This Change Proposal is made pursuant to and is subject to the terms and
conditions of the FARMOSA (including Exhibit G thereof) and is binding only when
both Bell and Certen have executed this Change Proposal. Upon execution by Bell
and Certen of this Change Proposal, this Change Proposal shall constitute an
amendment to the FARMOSA.
1. Description of the proposed solution: (To be completed)
2. Proposed implementation approach and, if applicable, contingency
procedures: (To be completed)
3. Proposed implementation schedule (including implementation dates and
approximate times): (To be completed)
4. Evaluation of the extent to which the implementation of the change would
impact the Services, Service Levels and/or Fees:
(To be completed).
5. Impact of the change to the FARMOSA:
(To be completed)
6. Outline of any other matters relevant to the change:
(To be completed)
-2-
CERTEN INC.
BY: _________________________________
Authorized signature
_________________________________________
Name of authorized representative (Print)
_________________________________
Title
_________________________________
Date
AGREED TO BY BELL THIS _______ DAY OF ____________________, _________
▇▇▇▇ CANADA
BY: _________________________________
Authorized signature
_________________________________________
Name of authorized representative (Print)
_________________________________ _________________________________
Title Title
_________________________________ _________________________________
Date Date
FINAL
EXHIBIT I
DISASTER RECOVERY PLANNING AND SERVICES
1.0 DEFINITIONS
Unless otherwise defined herein, capitalized terms used in this Exhibit shall
have the meaning ascribed to them in the Agreement. The following terms shall
have the following meanings:
1.1 "APPLICATION RECOVERY MANUALS" or "ARMS" means any manual,
documentation, procedure or plan that provides for the recovery of
any specific application.
1.2 "BUSINESS CONTINUITY/RESUMPTION PLANS" or "BCRPS" means any manual,
documentation, procedure or plan to be implemented by the BCH
Companies or Certen, as applicable, to resume critical functions in
a timely and organized manner in the event of a Disaster, and are
typically applied or performed concurrently with the performance of
any disaster recovery and application recovery processes or in case
of inaccessibility to the whole or parts of the BCH Companies' or
Certen's, as applicable, normal business location.
1.3 "DISASTER" means a state of operation in which a Service or System
is actually rendered inoperable or unusable as a result of any
unexpected or unplanned event, as notified by one Party to the other
Party, based on the notifying Party's assessment of the impact and
duration of such unexpected or unplanned event.
1.4 "DISASTER RECOVERY PROCEDURES" means the procedures, plans and
documentation relating to disaster recovery activities, which
procedures will be assumed, maintained and improved by Certen during
the Term in accordance with Section 5.10 of the Agreement and this
Exhibit.
1.5 "DISASTER RECOVERY SERVICES" means those Services to be performed by
Certen relating to disaster recovery which are described in this
Exhibit and in any ARM, DRP or BCRP and which include, for greater
certainty, the activities and tasks to be performed by Certen under
any ARM, DRP or BCRP upon the occurrence of a Disaster.
1.6 "DISASTER RECOVERY SERVICE PROVIDERS" includes [**] or any other
third party having a contract between Certen or any of the BCH
Companies that falls within the scope of this Agreement, under which
DRPs or ARMs are contemplated or provided for the benefit of Certen
or any of the BCH Companies, as the case may be.
1.7 "DISASTER RECOVERY PLAN" or "DRP" means any manual, documentation,
procedure, or plan that provides for the recovery of any overall
hardware and/or operating system.
- 2 -
1.8 "MAXIMUM TOLERABLE OUTAGE" or "MTO" means the maximum length of time
that a business can tolerate having any applications, hardware
and/or operating system actually inoperable or unusable as
determined based on business or Canadian Radio-television and
Telecommunications Commission ("CRTC") requirements.
2.0 SCOPE OF EXHIBIT I
2.1 This Exhibit states the obligations of Certen and the BCH Companies
with respect to the Disaster Recovery Services as part of Certen's
obligation to deliver the Services and ▇▇▇▇'▇ obligation to deliver
other services under this Agreement.
2.2 Unless specifically agreed to between the Parties or specifically
stated in this Exhibit, the scope, parameters and content of the
Disaster Recovery Services described in this Exhibit as they apply
to the [**] shall be [**] the Effective Date. Further, the intent of
this Exhibit is [**] of the Disaster Recovery Service Providers as
they apply to the [**].
2.3 For the avoidance of any doubt, the Disaster Recovery Services
described in this Exhibit (a) apply to the [**], and (b) with
respect to the Modernized Systems, they shall apply as follows (i)
to the extent that Certen provided any Disaster Recovery Services
with respect to the Modernized Systems prior to the Amendment
Effective Date, it [**] to provide such services [**] the Amendment
Effective Date, unless and until such Disaster Recovery Services are
replaced or enhanced under Section 2.3(b)(ii) below, and (ii) Certen
shall have the obligation (A) during the period commencing on the
Amendment Effective Date and ending on [**], with ▇▇▇▇'▇ input, to
develop new Disaster Recovery Services, and related DRPs and ARMs
and, as applicable, BCRPs with respect to the Modernized Systems,
and (B) thereafter to provide, maintain, manage and enhance such
Disaster Recovery Services, and related DRPs and ARMs and, as
applicable, BCRPs with respect to the Modernized Systems, to provide
disaster recovery protection to the BCH Companies which is [**] as
that provided under the [**] Disaster Recovery Services and related
DRPs, ARMs, BCRPs applicable to the [**] and as outlined in this
Exhibit, the whole as part of Certen's obligation to deliver the
Services and ▇▇▇▇'▇ obligation to deliver other services under the
Agreement. To that effect, the Parties shall amend this Exhibit as
necessary to reflect any changes required to the Disaster Recovery
Services and related DRPs, ARMs, BCRPs in the Modernized Systems
environment. The Parties have set forth in Section 5.10 of the
Agreement their agreement regarding additional fees payable by the
BCH Companies to Certen relating to changes to the Disaster Recovery
Services and the DRPs, ARMS, BCRPs as they apply to the Modernized
Systems.
2.4 The DRPs and ARMs shall at all times be consistent with any
hardware, operating systems, applications described or falling
within the scope of Exhibit A
- 3 -
"Demarcation Points and Service Definitions." For greater certainty,
in case of any inconsistency between the DRPs, ARMs and BCRPs lists
referred to below and Exhibit A, the latter shall prevail.
2.5 An inventory list of the DRPs, ARMs and BCRPs as they existed
immediately prior to the Effective Date with respect to the [**] is
set out respectively in Section 5 below and attached to this Exhibit
as Table 1 and Table 2. An inventory list of the DRPs and ARMs as
they existed immediately prior to the Amendment Effective Date with
respect to the Modernized Systems is attached to this Exhibit as
Table 3. The BCH Companies and Certen shall hereafter update Section
5 below, Table 1, Table 2 and Table 3 as necessary to take into
account any changes to the hardware, operating systems or
applications. Any new version of Table 1, Table 2 and Table 3
approved in writing by the Parties shall replace the existing
version of such Table and upon such replacement, this Exhibit I
shall be amended accordingly.
3.0 OBLIGATIONS OF CERTEN AND THE BCH COMPANIES REGARDING THE DRPS, ARMS,
BCRPS AND OTHER DISASTER RECOVERY SERVICES
3.1 DRPs and ARMs - Certen Obligations
As part of Certen's obligation to deliver the Services, Certen shall
maintain, manage, enhance, upgrade, replace (to reflect any changes
to hardware, operating systems, applications and business
facilities) and implement either directly or through the applicable
Disaster Recovery Service Providers:
3.1.1 any DRPs that relate to any hardware or operating systems
which (i) are listed in or fall within the scope of Exhibit A
to the Agreement, and (ii) are owned, controlled or managed by
Certen and which relate to the provision of the Services;
3.1.2 any ARMs that relate to any application that (i) is listed in
or falls within the scope of Exhibit A to the Agreement, and
(ii) that is owned, controlled or managed by Certen and which
relate to the provision of the Services.
3.2 DRPs and ARMs - ▇▇▇▇ Obligations.
▇▇▇▇ shall be responsible to maintain, manage, enhance, upgrade,
replace and implement any DRPs that relate to any hardware or
operating systems that are owned or controlled and managed by ▇▇▇▇
and that are part of any services provided by ▇▇▇▇ to Certen
hereunder. Similarly, ▇▇▇▇ shall be responsible to maintain, manage,
enhance, upgrade, replace and implement any ARMs that relate to any
applications that are owned or controlled and managed by ▇▇▇▇ and
that are part of any services delivered by ▇▇▇▇ to Certen under this
Agreement.
3.3 BCRPs.
- 4 -
As part of Certen's delivery of the Services, Certen shall
establish, maintain, manage, enhance, upgrade, replace and implement
adequate and comprehensive BCRPs in accordance with the principles
set out in this Exhibit. As part of ▇▇▇▇'▇ obligation to deliver
certain services to Certen in accordance with this Agreement, ▇▇▇▇
shall establish, maintain, manage, enhance, upgrade, replace and
implement adequate and comprehensive BCRPs in accordance with the
principles set out in this Exhibit.
3.4 Disaster Recovery Trials.
It is understood by the Parties that disaster recovery trials are
scheduled from time to time and that Certen will be responsible to
participate in these trials with [**] level of support and
participation as provided immediately prior to the Amendment
Effective Date. These trials are [**] for [**], and [**], if
requested by ▇▇▇▇. Certen's and the BCH Companies' respective
obligations for such trials shall be in accordance with Certen's
obligation to deliver the Services and ▇▇▇▇'▇ obligation to deliver
other services under this Agreement.
3.5 Additional Disaster Recovery Services.
Subject to ▇▇▇▇ ensuring that the appropriate provisions in the [**]
Agreement continue to remain in full force and effect throughout the
Term without any change or amendment being made to said provisions,
Certen shall provide the BCH Companies with the additional disaster
recovery services detailed in Appendix 1 of this Exhibit with
respect to the [**].
3.6 Actual Disaster.
Certen will participate in the execution of, and carry out its
responsibilities under, the DRPs, ARMs and BCRPs as applicable, and
perform the other Disaster Recovery Services set out in Appendix 1
hereto relevant to an actual Disaster, upon the occurrence of an
actual Disaster.
4.0 CHANGES TO THE DRPS, ARMS AND BCRPS
The costs associated with changes to the DRPs, ARMs and BCRPs which are
initially required as Modernized Systems are introduced shall be dealt with in
accordance with Section 5.10 of the Agreement. Any costs associated with changes
made thereafter with respect to the Modernized Systems or any changes made with
respect to the [**], shall be treated in accordance with Sections 4.1 to 4.3
below.
4.1 Any change to the DRPs, ARMs or BCRPs resulting from a change of
hardware, operating systems and/or applications as part of the
Services shall be implemented by Certen as part of its obligations
to deliver the Services to the BCH Companies, [**] to the BCH
Companies.
- 5 -
4.2 Any change to the DRPs, ARMs or BCRPs that is required as a result
of a change in the Services made pursuant to an accepted Change
Proposal shall be addressed and implemented by Certen in accordance
with such accepted Change Proposal. Such accepted Change Proposal
shall address [**], associated with such change. The Parties shall
amend this Exhibit as necessary.
4.3 Any change in any of the parameters to the DRPs or ARMs other than
as a result of a change described in Section 4.1 or 4.2 above,
including appropriate corrections required to remain within the
Maximum Tolerable Outage defined in the disaster recovery
documentation existing on the Effective Date, shall be made in
accordance with and subject to the Change Order Process, and where
applicable, within the framework of the agreements made prior to the
Effective Date between the BCH Companies and the Disaster Recovery
Service Providers referred to above.
4.4 If Certen wishes to make changes to replace the disaster recovery
services currently provided by [**] to the BCH Companies and Certen
relating directly or indirectly to the Services, Certen agrees, and
will be responsible to ensure, that any replacement disaster
recovery services shall be the same as or shall exceed the disaster
recovery services currently provided by [**] under the [**]
Agreement. [**] will be Certen's responsibility. In the event that,
for any reason not due to Certen's actions, the benefits under the
[**] Agreement are no longer available to Certen, then Section 4.4
of the Agreement shall apply.
5.0 DISASTER RECOVERY PLANS EXISTING ON THE AMENDMENT EFFECTIVE DATE
The following is a partial inventory of the DRPs applicable to the
Services as they existed on the Effective Date and applicable to the
services provided by ▇▇▇▇ hereunder.
Recovery site determined at
[**] time of Disaster [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**]:
[**] [**] [**] [**]
6.0 ARMS AND BCRPS
6.1 Table 1 attached to this Exhibit lists the ARMs and DRPs [**]
6.2 Table 2 attached to this Exhibit lists the BCRPs [**]
6.3 Table 3 attached to this Exhibit lists the ARMs and DRPs [**]
- 6 -
APPENDIX 1
CERTEN DISASTER RECOVERY RESPONSIBILITIES RELATED TO THE LEGACY SYSTEMS
1.0 CERTEN RESPONSIBILITIES - DISASTER RECOVERY SERVICES
As part of the Disaster Recovery Services and subject to Section 3.5 of this
Exhibit I above, Certen's responsibilities shall include the following:
1.1 create adequate offsite backup copies of data required to restore
the operating environment at the Recovery Centre (defined in Section
2.1 below) (including system software, tools and databases) and
arrange for storage at the third party offsite storage vendor
location;
1.2 perform ongoing disaster recovery capacity planning and
configuration management;
1.3 develop and maintain Disaster Recovery Procedures (to include
detailed hardware and operating system configurations) and work to
improve the Disaster Recovery Procedures on an ongoing basis, and
store copies in an offsite location;
1.4 update the Disaster Recovery Procedures (and any related technical
recovery scripts) to reflect any relevant changes that have been
implemented, no later than [**] after such change has been
implemented;
1.5 provide the overall coordination between Certen and the BCH
Companies in the execution of the Disaster Recovery Procedures;
1.6 work with the BCH Companies to develop and document the application
recovery and synchronization process and determine the optimum
recovery points depending on time of Disaster;
1.7 provide assistance and technical advice to the BCH Companies
regarding Disaster Recovery Procedures;
1.8 develop, coordinate and execute disaster recovery trials with the
BCH Companies, [**] in a manner that is consistent with the BCH
Companies' practice;
1.9 document and report results of disaster recovery trials to the BCH
Companies, identifying any problems, the actions taken or to be
taken to resolve such problems and any opportunities for
improvement;
1.10 develop and implement, in a timely manner, corrective action and
improved procedures (including revisions to the Disaster Recovery
- 7 -
Procedures) to respond to the results of the disaster recovery
trials described above;
1.11 respond to any declaration of a Disaster and provide the applicable
Disaster Recovery Services;
1.12 provide the required Services to continue processing at the Recovery
Centre during a Disaster, for up to [**]; after the Recovery Centre
becomes available;
1.13 during a Disaster, when the Recovery Centre is used to run the
Services, if required, Certen and the BCH Companies will work
together to identify a suitable new location at which to repatriate
the Services, and develop and implement repatriation plans including
the acquisition of the required equipment to run the Services;
1.14 provide the overall coordination between Certen and the BCH
Companies in the execution of the repatriation of the Services from
the Recovery Centre to the new location or back to the original data
centre;
1.15 arrange for travel of Certen personnel and for the transfer of data
and programs to and from the Recovery Centre; and
1.16 work with any other providers of recovery centre services to provide
Disaster Recovery Services as agreed to by the Parties.
2.0 CERTEN RESPONSIBILITIES - RECOVERY CENTRE SERVICES
Subject to Section 3.5 of this Exhibit I above:
2.1 Certen will make available to the BCH Companies an alternate data
processing facility (the "RECOVERY CENTRE") at the locations
specified in Section 5 above (or such other location as Certen may
designate, with the BCH Companies' approval) and shall:
2.1.1 in the event of a Disaster, restore applications required by
the BCH Companies to maintain the BCH Companies' business
continuity; and
2.1.2 perform tests in accordance with the Disaster Recovery
Procedures;
2.2 Certen will configure the Recovery Centre in a manner that provides
equivalent or greater functionality and performance;
2.3 If the BCH Companies or Certen declares a Disaster, Certen shall
take immediate action to prepare the Recovery Centre and to restore
- 8 -
applications to maintain the BCH Companies' business continuity.
Certen shall make the Recovery Centre immediately available from the
time BCH or Certen declares a Disaster. If the BCH Companies or
Certen declares a Disaster and the Recovery Centre is not available,
Certen shall make available another recovery centre or another
processing facility of Certen or any of its Affiliates (to be
determined by Certen, with the BCH Companies' approval);
2.4 Certen shall allow the BCH Companies access to the Recovery Centre
in order to perform tests in accordance with the Disaster Recovery
Procedures. In the event that another customer of Certen has
declared a Disaster which reasonably prevents the BCH Companies from
performing such tests, Certen may, in its reasonable discretion,
reschedule the BCH Companies' test time in order to accommodate the
other customer;
2.5 If any Party wishes to make any change to the configuration of the
Recovery Centre, it shall do so in accordance with the Change Order
Process. If the change involves upgrade or replacement of Hardware,
Certen shall install the Hardware within [**] the date the
applicable Change Proposal was accepted by the BCH Companies in
accordance with the Change Order Process. If the BCH Companies or
Certen declares a Disaster prior to the expiry of the [**] period
and the applicable Hardware has not yet been installed, Certen shall
use commercially reasonable efforts to find alternate Hardware or to
expedite the installation;
2.7 Certen will provide basic working space at the Recovery Centre for
the BCH Companies' use during testing or upon declaration of a
Disaster;
2.8 To assist the BCH Companies during the restore process after a
Disaster has been declared or during a test by the BCH Companies,
Certen shall perform [**] at the Recovery Centre; and
2.9 Certen will provide the appropriate disaster recovery skills and
expertise including operational assistance, technical assistance and
problem determination assistance while the BCH Companies are using
the Recovery Centre.
3.0 BCH COMPANIES RESPONSIBILITIES
The BCH Companies shall:
3.1 perform their obligations, as set out in the Disaster Recovery
Procedures;
3.2 comply with any additional Recovery Centre procedures, including
those relating to safety and security;
- 9 -
3.3 perform all [**] disaster recovery (if applicable or if owned by the
BCH Companies).
▇▇▇▇ Canada Draft: June 24, 2003
Exhibit J
CERTEN INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
July 1, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Group President - Systems and Technology
Dear Sirs:
RE: EXHIBIT J (TRANSITION-OUT PLAN) (THE "EXHIBIT") TO THE FURTHER
AMENDED AND RESTATED
MASTER OUTSOURCING SERVICES AGREEMENT
BETWEEN ▇▇▇▇ CANADA AND CERTEN INC. DATED AS OF JULY 1, ▇▇▇▇
(▇▇▇ "▇▇▇▇▇▇▇▇▇")
▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇") and Certen Inc. ("Certen") have entered, or
will enter concurrently herewith, the Agreement for the provision by Certen of
certain services on an outsourced basis to ▇▇▇▇. In connection with the
Agreement, this letter sets out the agreement between ▇▇▇▇ and Certen with
respect to matters relating to the completion of a new Exhibit J (Transition-Out
Plan) and development of a Transition-Out Work Plan following the execution of
the Agreement.
Certen agrees that it shall provide, at ▇▇▇▇'▇ request, appropriate
termination and transition assistance services to ▇▇▇▇ on a commercially
reasonable basis at commercially reasonable fees in connection with and
following the termination or expiry of the Agreement, for no longer than the
Transition-Out Period (as defined in Exhibit J).
In connection with the foregoing, Certen agrees that it shall work
diligently and in good faith, using commercially reasonably efforts, with ▇▇▇▇
following the execution of the Agreement to complete a new Exhibit J
(Transition-Out Plan), and the Transition-Out Work Plan to be contemplated
thereunder, no later than [**] from the Amendment Effective Date (as that term
is defined in the Agreement).
At minimum, the new Exhibit J (Transition-Out Plan) shall address
and contain appropriate provisions relating to ▇▇▇▇'▇ ability, upon termination
or expiry of the Agreement, to [**] and to have [**] and [**] ▇▇▇▇ [**] terms.
2
If the Parties are unable to reach agreement on the terms of a new
Exhibit J prior to the date of termination or expiration of the Agreement, then
the terms of the existing Exhibit J shall apply as modified by the second
paragraph of this letter.
Please sign below to indicate your agreement with the above and
return a duplicate signed copy to Certen, to the attention of the undersigned at
the above address.
Yours very truly,
CERTEN INC.
By: _______________________
Name:
Title:
▇▇▇▇ hereby agrees with the above and has indicated such agreement by signing
below as of the 1st day of July, 2003.
▇▇▇▇ CANADA
By: _______________________
Name:
Title:
FINAL
EXHIBIT K
SECURITY, ACCESS AND INTERFACE
1. GENERAL
Subject to the terms and conditions of this Exhibit, Certen will continue to
perform or cause to be performed, the same or substantially the same security
functions provided by the BCH Companies, or any third party on their behalf,
just prior to the Effective Date, including those security functions listed in
Appendix 1, and such other security functions set out in this Exhibit K, at any
facility where the Services are performed under this Agreement (all in a manner
consistent with contracts with subcontractors, such as [**] and ▇▇▇▇, in effect
prior to the Amendment Effective Date which are to be used by, or transferred
to, Certen in accordance with the Agreement).
2. DEFINITIONS
In this Exhibit K, unless the context otherwise requires, all capitalized terms
shall have the meaning ascribed thereto in the body of the Agreement or in this
Exhibit, as the case may be. In addition, the following words and terms shall
have the following meanings:
2.1 "BCH COMPANY DATA" means all data, information and materials relating to
any BCH Company or any supplier, licensor, customer, contractor,
consultant or agent of any BCH Company contained in any form, including
data files, records, notes, correspondence or other materials or
information, provided to Certen or its Affiliates or any contractor,
consultant or agent of Certen or its Affiliates pursuant to or relating to
this Agreement or the provision of Services.
2.2 "OPERATIONAL PRIME" has the meaning set forth (and is identified) in
Exhibit F (Governance).
3. ACCESS AND SECURITY
3.1 All BCH Company Data shall be and remain the exclusive property of the BCH
Company to which it relates or such BCH Company's suppliers or licensors,
as the case may be. Except as otherwise provided under this Agreement, the
BCH Companies shall be permitted electronic access to BCH Company Data (i)
at all times for use by BCH Company "End Users" (as defined in this
Section 3.1 below) in the normal course of business, using the relevant
application utilized for such purpose, and (ii) within a reasonable period
of time following receipt by Certen of a request by the BCH Companies (and
in any event, unless otherwise agreed by the Parties, within [**] of such
receipt) for any access other than access by an End User (the
circumstances of such access by a BCH Company representative, including
the arrangements for monitoring by Certen personnel, to be coordinated in
advance), which access, in each case, shall not be restricted except where
restrictions on access are required by other provisions in this
- 2 -
Agreement, scheduling requirements, or by a period of repair or
maintenance provided for in this Agreement. Certen shall be [**] to the
extent caused by the BHC Companies' requirements for access pursuant to
Section 3.1(ii), other than access required to address a failure of Certen
to perform its obligations under this Agreement. "End Users" shall mean
those Persons determined by the BCH Companies to require access to BCH
Company Data in the normal course of business. Certen shall not:
(a) possess or assert any ownership right, encumbrance or similar right
in the BCH Company Data; or
(b) sell, disclose, copy, assign, lease or otherwise dispose of, or
commercially exploit, any BCH Company Data, even in the event of a
Dispute between the Parties or upon the termination or expiration of
the Term or any Final Transition-Out Period, without the appropriate
BCH Company's prior written consent thereto.
3.2 Upon written request by ▇▇▇▇ at any time or upon the termination or
expiration of the Term or any Final Transition-Out Period, as defined in
Exhibit J, Certen will return to ▇▇▇▇ or its designee all BCH Company Data
(or, in the case of a written request by the BCH Companies, all of the BCH
Company Data referred to in such request) in all of Certen's then existing
machine readable formats (or other machine readable format reasonably
requested by ▇▇▇▇) and media types and related Application Software (for
which the BCH Companies have a license under the Agreement) necessary for
the applicable BCH Companies to efficiently use their data with the
applicable systems. Certen will also securely erase (e.g., delete/format
and securely overwrite) any BCH Company Data from any hardware, media or
other material within its control that is to be no longer used in
connection with the provision of the Services, provided that Certen will
not erase any BCH Company Data from any Hardware, media or other material
that is to be sold, leased or otherwise made available to the BCH
Companies or their designee upon the termination or expiration of this
Agreement or of any Final Transition-Out Period.
3.3 At no time will any of the computer or other files or other materials or
information containing BCH Company Data be stored or held in a form or
manner not accessible to the BCH Companies in accordance with Section 3.1
above. Subject to restrictions contained in any relevant contracts, Certen
will provide to ▇▇▇▇'▇ Operational Prime or such other Person or Persons
as may be designated in writing by ▇▇▇▇ all such files and other materials
promptly upon the request of ▇▇▇▇, including [**] (if any) and any other
specification or information necessary for ▇▇▇▇ or any BCH Company to
retrieve, read, revise and/or maintain such files and information. Upon
the request of ▇▇▇▇'▇ Operational Prime, Certen will certify, to the best
of its knowledge, information and belief, the completeness of all files
and other information provided to ▇▇▇▇ or any BCH Company and that no
material element, amount or other fraction of such files or other
information to
- 3 -
which ▇▇▇▇ may, acting reasonably, request access or review has been
deleted, withheld, disguised or encoded in a manner inconsistent with the
purpose and intent of providing access to any BCH Company as contemplated
by Section 3.1 of this Exhibit and otherwise in this Agreement.
3.4 Certen shall, at all times:
(a) meet and enforce the BCH Companies' physical and logical access
control policies, standards and procedures for all BCH Company
environments under its management and control, provided that such
policies, standards and procedures, and any amendments thereto, are
provided to Certen by the BCH Companies immediately upon the
adoption by the BCH Companies of such policies, standards and
procedures;
(b) protect the BCH Companies' proprietary information, including, but
not limited to, customer and employee data and information;
(c) screen and security clear its employees in accordance with the
policies of Amdocs, provided that such policies from time to time
are at least as stringent as (i) those Amdocs policies in effect as
of the Amendment Effective Date, and (ii) those policies applied by
Certen as of the Amendment Effective Date;
(d) give the BCH Companies, acting reasonably, access, accompanied by
Certen's designated personnel, in accordance with Section 23 of the
Agreement, to the applicable Applications Software or Systems used
by Certen, for the benefit of the BCH Companies, for the purpose (i)
of conducting security reviews of such Applications Software or
Systems and BCH Company Data only, and (ii) of ensuring compliance
with BCH Companies corporate security policies and standards;
(e) maintain adequate audit trails for all security-related functions
and tasks in which Certen is involved;
(f) research and respond to actual and threatening security problems on
all BCH Companies environments under its management and control and
report such problems promptly to ▇▇▇▇. ▇▇▇▇ shall provide to Certen
the name and contact information of the applicable authorized ▇▇▇▇
representative in this regard;
(g) provide incident investigation support to BCH Companies;
(h) provide Applications Software security support and consulting as may
be reasonably requested by BCH Companies to the same extent such
support and consulting services were provided by ▇▇▇▇ prior to the
Effective Date; if the BCH Companies' requirements in respect of
such support and
- 4 -
consulting services change in a manner which results in increased
costs to Certen then any such change, together with additional fees,
if any, in respect thereof, shall be dealt with in accordance with
the Change Order Process;
(i) hold all BCH Company Data segregated [**] from that of any other
entity to which Certen provides services; upon reasonable request,
not to exceed [**], Certen shall provide satisfactory evidence to
the BCH Companies that the BCH Company Data is held in accordance
with the foregoing requirement. Notwithstanding the foregoing, ▇▇▇▇
may additionally request, upon providing Certen with reasonably
satisfactory evidence that BCH Company Data may not have been
segregated in accordance with the foregoing, and Certen shall
provide, additional satisfactory evidence to the BCH Companies that
the BCH Company Data is in fact held in accordance with the
foregoing requirement; and
(j) Certen shall ensure that the security features and standards of the
Legacy Systems and Modernized Systems developed, implemented or
operated by Certen for the BCH Companies, as well as the protection
levels applicable to such Legacy Systems and Modernized Systems and
BCH Company Data, meet the BCH Companies' security policies and
procedures as provided to Certen from time to time. Certen shall
provide the opportunity to ▇▇▇▇ to review Applications Software
together with associated documentation at the appropriate stage of
development in order to determine whether such security features,
standards and protection levels as required by ▇▇▇▇ will be
effectively implemented prior to the use of such Applications
Software in production.
3.5 ▇▇▇▇ shall:
(a) retain authority and responsibility for:
(i) approval procedures with respect to access to BCH Company Data
together with all changes to such procedures;
(ii) [**];
(iii) [**];
(b) notify Certen of any changes to the BCH Companies' security policies
respecting security features, standards and protection levels that
the BCH Companies may expect Certen to comply with. If Certen's
compliance with any such change results in increased costs to
Certen, the Parties shall address such costs through the Change
Order Process.
- 5 -
3.6 During the Term and any Final Transition-Out Period, Certen shall maintain
recognized industry standard safeguards against the destruction,
degradation, loss, disclosure or alteration of BCH Companies Intellectual
Property and BCH Company Data in the possession or under the management of
Certen or the destruction or alteration of any component of the System,
which safeguards shall be the same, or substantially the same, as those
employed by the BCH Companies, or any third party on their behalf, just
prior to the Amendment Effective Date, and any additional computer
security policies and procedures employed prior to the Amendment Effective
Date which are contained in the Operations Procedures Manual if any. Such
safeguards shall be continually updated, in accordance with Section 23.4
of the Agreement (including with respect to reference made therein to
possible additional costs which shall be addressed in accordance with the
Change Order Process), including through the implementation of industry
standard security software and other equipment in order to afford maximum
protection to the System and the BCH Company Data in a commercially
reasonable manner.
3.7 Certen personnel shall not attempt to access, or allow access to any data,
files or programs within the IS environment to which they are not entitled
under this Agreement. If such access is attained, Certen shall immediately
report the incident to ▇▇▇▇'▇ Operational Prime, describe in detail any
accessed materials and the method of access and, upon request, provide to
▇▇▇▇'▇ Operational Prime copies of any accessed materials.
3.8 Certen shall institute recognized industry standard system security
measures to guard against the unauthorized access, alteration or
destruction of Software, Intellectual Property, third party Software and
BCH Company Data. Such measures with regard to the Legacy Systems shall be
the same or substantially the same measures in place just prior to the
Amendment Effective Date. System security measures for all Legacy Systems
and Modernized Systems shall (i) require all users to enter a unique user
identification code (ID) and password prior to gaining access to the
Systems, and (ii) control user access to areas and features of the
Systems. ▇▇▇▇ acknowledges that such security measures in respect of the
Legacy Systems were in place immediately prior to the Amendment Effective
Date.
3.9 If any BCH Company Data is lost or damaged as a result of the
non-compliance by Certen, Certen employees, agents or subcontractors
(other than [**] or [**]) with the terms or conditions of this Agreement
including this Exhibit K, including the obligation of Certen to maintain
safeguards against the destruction, loss, disclosure or alteration of BCH
Company Data in the possession of Certen in accordance with Section 3.7,
3.8, or 3.9 herein, Certen shall assist the BCH Companies in replacing or
regenerating such lost or damaged data by providing any additional
resources reasonably required by the BCH Companies without additional
charge or expense (e.g., employee overtime) and shall not require the
- 6 -
BCH Companies to pay for any increased Certen resource usage resulting
from the replacement or regeneration of such lost or damaged data.
3.10 Certen shall ensure that the ▇▇▇▇ Software, Intellectual Property and
third party Software under its care are properly managed by using
recognized industry standards.
3.11 For the avoidance of any doubt, the BCH Companies and any third party on
their behalf shall not acquire any right in any data other than the BCH
Company Data, and shall not be permitted to access any data within
Certen's custody or control, including without limitation, data regarding
services provided by Certen to third parties (collectively, the "CERTEN
DATA"), other than the BCH Company Data and all in accordance with the
provisions of Section 23 of the Agreement.
3.12 To the extent that any portion of the Certen Data resides on any systems
of the BCH Companies, which are under the custody or control of the BCH
Companies, Certen shall be permitted to access such Certen Data under the
same terms and conditions applicable to the BCH Company Data, and such
Certen Data shall be maintained by Certen in accordance with the same
security measures applicable to the BCH Company Data, as set forth in this
Section 3.
3.13 For so long as Certen [**] Certen shall [**] Certen [**] ▇▇▇▇ and Certen
shall designate respective employees who shall be responsible to oversee
all matters under this Exhibit and to interface with respect to such
matters with the designated employee of the other Party.
3.14 Certen acknowledges that the security functions described in this Exhibit
K [**] terms and conditions [**] and [**], Certen shall continue to be
responsible for the provision of the security functions as set forth in
this Exhibit [**].
4. PHYSICAL SECURITY FOR FACILITIES
Subject to Section 23 of the Agreement, Certen will perform or cause to be
performed, in conformity with the BCH Companies security standards for
physical security, the same or substantially the same physical security
functions provided by the BCH Companies just prior to the Amendment
Effective Date, including those physical security functions listed in
Appendix 1, and such other security functions set out in this Exhibit K,
at any facility where the Services are performed under this Agreement.
Such procedures provide the necessary physical security to support
Certen's obligations to provide information security under this Agreement.
Such safeguards shall be continually updated, in accordance with Section
23.4 of the Agreement, including through the implementation of industry
standard security software and other equipment in order to afford maximum
protection to the System and the BCH Company Data in a commercially
reasonable manner.
- 7 -
5. INFORMATION SECURITY
5.1 Certen and the BCH Companies will perform the following functions in
carrying out their respective responsibilities, the whole as applied by
the BCH Companies just prior to the Amendment Effective Date and in
conformity with the BCH Companies' security standards for logical security
and under the direction of the BCH Companies' coordination function:
(a) Ensure that all users of the processing environment have authorized
access. Monitor, review and respond to any violation and/or
suspected violation; report such violations and/or suspected
violations to ▇▇▇▇ or to Certen, as the case may be. Review the
severity of any violations with appropriate management. Determine
and implement activities to deter subsequent violations.
(b) Capture data for audit trail purposes of all access exceptions, and
make data available to the BCH Companies, or to Certen, as the case
may be, as part of the periodic status report.
(c) Provide ongoing operational support of system security processes to
supported environments.
(d) Initiate corrective actions to ensure violation will not occur
again. Each party shall prepare and retain documentation of
violation investigations and provide copies to ▇▇▇▇ or to Certen, as
the case may be.
(e) Recover from impact of security violations that result in
lost/damaged information, when technically possible and commercially
reasonable.
(f) Certen, in consultation with ▇▇▇▇, will identify security risks, and
recommend procedures to minimize them. When approved by ▇▇▇▇, Certen
will implement such procedures at ▇▇▇▇'▇ cost and expense.
6. VIRUS PROTECTION
6.1 For the workstation and server environments, which Certen supports, and
for all other Software, which it uses in delivering the Services, Certen
will:
(a) install and maintain virus control tools;
(b) update virus Software and virus definition files so as to remain
current with the selected supplier of virus Software; and
(c) recover virus corrupted files as required and commercially
reasonable.
- 8 -
6.2 ▇▇▇▇ will take reasonable steps to ensure that data (whether BCH Company
Data or otherwise) entered onto the Systems which are under its
responsibility will be free of viruses.
FINAL
EXHIBIT L1
LIST OF CORPORATE CONTRACTS
APPLICATION -
VENDOR IMPACTED AGREEMENT TYPE COMMENTS
------ ------------- -------------- --------
[**] [**] [**] [**]
[**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
Except for the agreements with [**]., all of the above listed corporate
contracts require consent for extension to Certen.
* indicates a material corporate contract for the purposes of Section 4.4 of
the Agreement.
FINAL
EXHIBIT L2
List of services to be provided by the BCH Companies to Certen
1. In this Exhibit L2, unless otherwise defined in this Exhibit, all
capitalized terms shall have the meaning ascribed thereto in the Further
Amended and Restated
Master Outsourcing Services Agreement between ▇▇▇▇
and Certen, effective as July 1, 2003 (the "FARMOSA").
2. The Parties hereby agree in accordance with Section 4.5 of the Agreement,
that, in order to enable Certen to provide the Services, the BCH Companies
shall provide to Certen, unless otherwise agreed by the Parties, the
services described in this Exhibit L2 on the terms and conditions set
forth in this Exhibit L2. Certen shall pay the BCH Companies only for such
services which are actually agreed upon by the Parties and which are
provided to Certen by the BCH Companies. With respect to services
identified in Tables 3.1A and 3.1B below, as applicable, BCH will work
with Certen during the 4th QTR of each year to establish the services
required and costs for the next year.
3. The services listed in Table 3.1A and Table 3.1B below shall be provided
by the BCH Companies for the Benefit Period (as defined in the FARMOSA),
unless otherwise set forth in this Exhibit L2, until such time as Certen
shall terminate any service (in which case the BCH Companies shall have no
further obligation to provide such service):
3.1 according to the scope of such services, as agreed by the parties in
writing, and as such scope is revised by written agreement of the parties
from time to time; and
3.2 at amounts not to [**] if the scope or duration of the service
received by Certen is not equivalent to the scope or duration of the
service received by the applicable BCH Companies.
It is understood that in certain instances, ▇▇▇▇ can only provide [**], which
are provided to Certen under this Exhibit L2 using the [**], for as long as
Certen continues to use the [**], and that ▇▇▇▇ will be relieved of its
obligation to provide these services after Certen has migrated off the [**].
TABLE 3.1A : DESCRIPTION OF SERVICES
The description of services below is not intended to be exhaustive. Complete
details are to be found in the relevant individual contracts with ▇▇▇▇
(including [**], or third party. For the avoidance of doubt, the details set
forth below with respect to a specific service provided by ▇▇▇▇ are correct and
accurate and do not contradict the relevant provisions in the respective
agreement to which they relate.
(a) [**] :
SERVICES PERIOD
-------- ------
[**] UP TO [**]
- Capture [**]
- Manage and [**]
- Process [**]
- Reconcile[**]
- Third Party [**]
- Year-end [**]
- Payroll [**]
- WSIB/CSST [**]
- Issuance/Validation [**]
- Reconcile Benefit [**]
[**] UP TO [**]
- Call Center[**]
- Organisation [**]
- Net Credited [**]
- Maintain [**]
[**] UP TO [**]
- Disability [**]
(b) [**] :
SERVICES PERIOD
-------- ------
[**] UP TO [**]
- Process [**]
- Process [**]
- Perform [**]
- Process [**]
- Stuff and Mail [**]
- Perform [**]
[**] UP TO [**]
- Perform[**]
- Prepare [**]
[**] UP TO [**]
- Maintain [**]
- Support [**]
SERVICES PERIOD
[**] UP TO [**]
- Process [**]
- Prepare [**]
[**] UP TO [**]
[**] UP TO [**]
- Prepare [**]
- Prepare [**]
- Prepare [**]
[**] UP TO [**]
- Monitor [**]
- Recognize[**]
- Perform [**]
- Depreciate [**]
[**] UP TO [**]
- Input [**]
(c) OTHER:
SERVICES PERIOD
--------------------------------------------------------- ------------------
UP TO [**]
[**]
- Leasing [**]
- Real estate [**]
- Project [**]
- Space [**]
- Facility/property [**]
- Client [**]
UP TO [**]
- Certen [**]
UP TO [**]
- Certen [**]
TABLE 3.1B : ADDITIONAL SPECIFIC SERVICES
SERVICE PERIOD
---------------------------------------------------------- ------
[**] Services from [**] [**]
[**]: [**]
Services from [**] under the [**] Agreement, [**] as per
the terms and conditions of the [**] Agreement. [**]
[**]: [**]
That portion of [**] Services [**] Services [**] under the
[**] Agreements [**]
[**]: [**]
▇▇▇▇ [**]:
- [**]
SERVICE PERIOD
---------------------------------------------------------- ------
[**]:
Data network access [**] Certen acknowledges and agrees [**]
[**] and to comply with its obligations under the
FARMOSA. The level of usage of this service as of the
Effective Date is specified in [**]
[**]: [**]
- Estimated [**]
[**]: [**]
Through [**] provides the following services to the users:
[**]
[**]: [**]
- Through [**]
(d) CONTRACTS
[**]
[**]
[**]: [**]
Use of the existing [**]
[**]
[**] Use of the existing [**]
[**]:
Certen manages [**] The costs incurred by ▇▇▇▇ [**] With
respect to the [**], [**]
[**]
[**]
THE LEVEL OF USAGE OF THIS SERVICE AS OF THE EFFECTIVE DATE
IS FURTHER SPECIFIED IN ANNEX 2 HEREOF.
4. Any increase in the charges for the services, systems (including software)
and/or facilities set forth above shall [**]
FINAL
EXHIBIT M1
LIST OF ASSIGNED CONTRACTS
COMPANY APPLICATION VENDOR NAME OF CONTRACT
------- ----------- ------ ----------------
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
FINAL
EXHIBIT M2
LIST OF CONTRACTS TO BE ASSIGNED TO CERTEN BUT MANAGED BY [**]
COMPANY APPLICATION VENDOR NAME OF CONTRACT
------- ----------- ------ ----------------
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**]
[**] [**] [**]
FINAL
EXHIBIT M3
▇▇▇▇ CUSTOMER CONTRACTS
COMPANY CUSTOMER NAME OF CONTRACT
------- -------- ----------------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
FINAL ( July 1, 2003)
EXHIBIT O-1 - ROLES AND RESPONSIBILITIES
INTRODUCTION
This Exhibit O-1 describes the respective roles and responsibilities of ▇▇▇▇ and
CERTEN with respect to Projects under the Agreement.
This Exhibit O-1 consists of two parts, namely:
Part I - the "Delivery Roles and Responsibilities" matrix (the
"DELIVERY R&R MATRIX"), [**]; and
Part II - [**] used in the Delivery R&R Matrix.
PART I - DELIVERY R&R MATRIX
EXPLANATORY NOTES
In the following Delivery R&R Matrix, [**]
Although the Delivery R&R Matrix [**].
--------
Delivery Roles and Responsibilities Matrix
This document describes the Delivery Roles and Responsibilities. This matrix
will apply to [**]
[**]
[**]
[**]
DELIVERY R&R
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
--- ---- ---- ------ ----- ---- ------ ----- ----- ------------
1 [**] [**]
1.1 [**] [**] [**] [**]
1.1.1 [**] [**] [**] [**]
1.1.2 [**] [**] [**] [**] [**] [**]
1.1.3 [**] [**] [**] [**] [**]
1.1.4 [**] [**] [**] [**]
1.1.5 [**] [**] [**] [**] [**]
1.2 [**] [**]
1.2.1 [**] [**] [**] [**] [**] [**]
1.2.2 [**] [**] [**] [**] [**]
1.2.3 [**] [**] [**] [**] [**] [**]
1.2.4 [**] [**] [**] [**] [**] [**]
1.2.5 [**] [**] [**] [**] [**] [**]
1.2.6 [**] [**] [**] [**] [**] [**]
1.2.7 [**] [**] [**] [**] [**]
1.2.8 [**] [**] [**] [**] [**] [**] [**] [**]
1.2.9 [**] [**] [**] [**] [**] [**] [**] [**]
1.2.10 [**] [**] [**] [**] [**] [**]
1.3 [**] [**] [**] [**]
1.3.1 [**] [**] [**] [**] [**] [**]
1.3.2 [**] [**] [**] [**] [**] [**]
1.3.3 [**] [**] [**] [**] [**]
1.3.4 [**] [**] [**] [**] [**] [**] [**] [**]
1.3.5 [**] [**] [**] [**] [**] [**] [**] [**]
1.3.6 [**] [**] [**] [**] [**] [**]
1.3.7 [**] [**] [**] [**] [**] [**]
1.3.8 [**] [**] [**] [**] [**] [**]
1.3.9 [**] [**] [**] [**] [**] [**]
1.3.10 [**] [**] [**] [**] [**]
1.3.11 [**] [**] [**] [**] [**] [**]
1.3.12 [**] [**] [**] [**] [**]
1.3.13 [**] [**] [**] [**] [**]
1.3.14 [**] [**] [**] [**]
1.3.15 [**] [**] [**] [**] [**] [**]
1.3.16 [**] [**] [**] [**] [**] [**] [**] [**]
1.3.17 [**] [**] [**] [**] [**] [**]
1.3.18 [**] [**] [**] [**] [**] [**]
1.3.19 [**] [**] [**] [**] [**] [**]
1.3.20 [**] [**] [**] [**] [**] [**]
1.3.21 [**] [**] [**] [**] [**] [**]
1.3.22 [**] [**] [**] [**] [**] [**]
1.4 [**] [**] [**] [**]
1.4.1 [**] [**] [**] [**] [**] [**] [**]
1.4.2 [**] [**] [**] [**] [**]
1.4.3 [**] [**] [**] [**] [**] [**]
1.4.4 [**] [**] [**] [**] [**] [**] [**] [**]
1.4.5 [**] [**] [**] [**] [**]
1.4.6 [**] [**] [**] [**] [**] [**]
1.4.7 [**] [**] [**] [**] [**] [**]
1.4.8 [**] [**] [**] [**] [**]
1.4.9 [**] [**] [**] [**] [**] [**]
1.4.10 [**] [**] [**] [**] [**]
Page 3
DELIVERY R&R
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
--- ---- ---- ------ ----- ---- ------ ----- ----- ------------
1.4.11 [**] [**] [**] [**] [**] [**]
1.4.12 [**] [**] [**] [**] [**] [**]
1.5 [**] [**]
1.5.1 [**] [**] [**] [**]
1.5.2 [**] [**] [**] [**]
1.5.3 [**] [**] [**] [**]
1.5.4 [**] [**] [**] [**]
1.5.5 [**] [**] [**] [**]
1.5.6 [**] [**] [**] [**]
1.5.7 [**] [**] [**] [**]
1.5.8 [**] [**] [**] [**]
1.5.9 [**] [**] [**] [**]
1.6 [**] [**]
1.6.1 [**] [**] [**] [**] [**]
1.6.2 [**] [**] [**] [**] [**]
1.6.3 [**] [**] [**] [**] [**] [**]
1.6.4 [**] [**] [**] [**] [**] [**]
1.6.5 [**] [**] [**] [**] [**]
1.6.6 [**] [**] [**] [**] [**] [**]
1.6.7 [**] [**] [**] [**] [**] [**]
1.6.8 [**] [**] [**] [**]
1.6.9 [**] [**] [**] [**]
1.6.10 [**] [**] [**] [**]
1.6.11 [**] [**] [**] [**] [**] [**]
1.6.12 [**] [**] [**] [**] [**]
1.6.13 [**] [**] [**] [**] [**] [**]
1.6.14 [**] [**] [**] [**] [**] [**] [**] [**]
1.6.15 [**] [**] [**] [**] [**] [**] [**] [**]
1.7 [**] [**]
1.7.1 [**] [**] [**] [**] [**] [**] [**]
1.7.2 [**] [**] [**] [**] [**]
1.7.3 [**] [**] [**] [**] [**] [**]
1.8 [**] [**]
1.8.1 [**] [**] [**] [**] [**]
1.8.2 [**] [**] [**] [**] [**] [**]
1.8.3 [**] [**] [**] [**] [**] [**] [**]
1.8.4 [**] [**] [**] [**] [**]
1.8.5 [**] [**] [**] [**] [**]
1.8.6 [**] [**] [**] [**] [**]
1.8.7 [**] [**] [**] [**] [**]
1.8.8 [**] [**] [**] [**]
1.8.9 [**] [**] [**] [**] [**]
1.8.10 [**] [**] [**] [**] [**]
1.8.11 [**] [**] [**] [**] [**] [**]
1.8.12 [**] [**] [**] [**] [**]
1.8.13 [**] [**] [**] [**] [**] [**] [**] [**]
1.8.14 [**] [**] [**] [**] [**] [**] [**] [**]
1.9 [**] [**]
1.9.1 [**] [**] [**] [**] [**] [**]
1.9.2 [**] [**] [**] [**] [**]
1.9.3 [**] [**] [**] [**] [**] [**]
1.9.4 [**] [**] [**] [**] [**] [**]
Page 4
DELIVERY R&R
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
--- ---- ---- ------ ----- ---- ------ ----- ----- ------------
1.9.5 [**] [**] [**] [**] [**] [**] [**] [**]
1.9.6 [**] [**] [**] [**] [**] [**] [**] [**]
1.9.7 [**] [**] [**] [**] [**] [**]
1.10 [**] [**]
1.10.1 [**] [**] [**] [**] [**] [**] [**] [**]
1.10.2 [**] [**] [**] [**] [**] [**]
1.10.3 [**] [**] [**] [**] [**] [**] [**] [**]
1.10.4 [**] [**] [**] [**] [**] [**]
1.10.5 [**] [**] [**] [**] [**]
1.10.6 [**] [**] [**] [**] [**] [**]
1.10.7 [**] [**] [**] [**] [**]
1.10.8 [**] [**] [**] [**] [**] [**] [**] [**]
1.10.9 [**] [**] [**] [**] [**] [**] [**] [**]
1.10.10 [**] [**] [**] [**] [**] [**]
1.11 [**] [**]
1.11.1 [**] [**] [**] [**] [**] [**]
1.11.2 [**] [**] [**] [**] [**] [**]
1.12 [**] [**]
1.12.1 [**] [**] [**] [**] [**] [**] [**] [**]
1.12.2 [**] [**] [**] [**]
1.12.3 [**] [**] [**] [**]
1.12.4 [**] [**] [**] [**] [**] [**]
2 [**]
2.1 [**]
2.1.1 [**] [**] [**] [**] [**]
2.1.2 [**] [**] [**] [**] [**]
2.1.3 [**] [**] [**] [**] [**] [**]
2.1.4 [**] [**] [**] [**] [**] [**]
2.1.5 [**] [**] [**] [**] [**]
2.1.6 [**] [**] [**] [**] [**] [**]
2.2 [**]
2.2.1 [**] [**] [**] [**] [**]
2.2.2 [**] [**] [**] [**] [**]
2.3 [**]
2.3.1 [**] [**] [**] [**] [**]
2.3.2 [**] [**] [**] [**] [**]
3 [**] [**]
3.1 [**] [**] [**] [**] [**] [**] [**] [**]
3.2 [**] [**]
3.2.1 [**] [**] [**] [**] [**] [**] [**] [**]
3.2.2 [**] [**] [**] [**] [**] [**]
3.2.3 [**] [**] [**] [**] [**] [**]
3.2.4 [**] [**] [**] [**] [**] [**] [**] [**]
3.2.5 [**] [**] [**] [**]
3.2.6 [**] [**] [**] [**] [**] [**]
3.2.7 [**] [**] [**] [**]
3.2.8 [**] [**] [**] [**] [**] [**]
3.2.9 [**] [**] [**] [**]
3.2.10 [**] [**] [**] [**]
3.2.11 [**] [**] [**] [**] [**] [**] [**] [**]
Page 5
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
--- ---- ---- ------ ----- ---- ------ ----- ----- ------------
3.3 [**] [**] [**] [**] [**]
3.3.1 [**] [**] [**] [**] [**] [**] [**] [**]
3.3.2 [**] [**] [**] [**] [**] [**] [**] [**]
3.3.3 [**] [**] [**] [**] [**] [**]
3.4 [**] [**] [**]
3.4.1 [**] [**] [**] [**] [**] [**]
3.4.2 [**] [**] [**] [**] [**] [**]
3.4.3 [**] [**] [**] [**] [**] [**]
3.4.4 [**] [**] [**] [**] [**]
3.4.5 [**] [**] [**] [**] [**] [**]
3.4.6 [**] [**] [**] [**] [**] [**]
3.4.7 [**] [**] [**] [**] [**]
3.4.8 [**] [**] [**] [**] [**] [**]
3.4.9 [**] [**] [**] [**] [**]
3.4.10 [**] [**] [**] [**] [**] [**] [**] [**]
3.5 [**] [**]
3.5.1 [**] [**] [**] [**] [**] [**] [**] [**]
3.5.2 [**] [**] [**] [**] [**] [**] [**] [**]
3.5.3 [**] [**] [**] [**] [**] [**] [**] [**]
4 [**]
4.1 [**] [**] [**] [**] [**] [**] [**]
4.2 [**] [**] [**] [**] [**] [**] [**]
4.3 [**] [**] [**] [**] [**] [**] [**]
4.4 [**] [**] [**] [**] [**] [**] [**]
4.5 [**] [**] [**] [**] [**]
5 [**]
5.1 [**] [**] [**]
Page 6
EXHIBIT O-2 - ROLES AND RESPONSIBILITIES (PRODUCTION)
INTRODUCTION
This Exhibit O-2 consists of the "Production Roles and Responsibilities" matrix
(the "PRODUCTION R&R MATRIX"), which sets forth the respective roles and
responsibilities of ▇▇▇▇ and Certen in relation to the provision by Certen of
the Services and the New Services pursuant to the Agreement.
EXPLANATORY NOTES
In the following Production R&R Matrix, [**]
EXHIBIT O1 "ROLES AND RESPONSIBILITIES"- PART II -FINAL
PART II. TERMINOLOGY
The following words and terms which are used in the roles and responsibilities
matrix forming Part I of this Exhibit O1 shall have the meanings so defined:
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
EXHIBIT O1 "ROLES AND RESPONSIBILITIES"- PART II -FINAL
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**] [**]
[**] [**]
[**]
Delivery Roles and Responsibilities Matrix
This document describes the Delivery Roles and Responsibilities. This matrix
will apply to [**]
[**]
[**]
[**]
DELIVERY R&R
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
----- ---- ---- ------ ----- ---- ------ ----- ----- ------------
1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.1.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.1.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.1.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.1.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.1.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.2.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.11 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.12 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.13 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.14 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.15 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.16 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.17 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.18 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.19 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.20 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.21 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.3.22 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
DELIVERY R&R
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
----- ---- ---- ------ ----- ---- ------ ----- ----- ------------
1.4.11 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.4.12 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.5.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.11 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.12 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.13 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.14 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.6.15 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.7.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.7.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.7.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.11 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.12 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.13 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.8.14 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.9.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.9.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.9.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.9.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
DELIVERY R&R
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
----- ---- ---- ------ ----- ---- ------ ----- ----- ------------
1.9.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.9.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.9.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.10.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.11 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.11.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.11.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.12 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.12.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.12.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.12.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
1.12.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.1.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.1.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.1.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.1.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.1.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.1.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.2.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.2.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.3.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
2.3.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.2.11 [**] [**] [**] [**] [**] [**] [**] [**] [**]
DELIVERY R&R
DEVELOPMENT PRIMED BY CERTEN DEVELOPMENT PRIMED BY ▇▇▇▇
---------------------------- --------------------------
WBS AREA ▇▇▇▇ CERTEN NOTES ▇▇▇▇ CERTEN NOTES PHASE ACTION ITEMS
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3.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.3.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.3.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.3.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.6 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.7 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.8 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.9 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.4.10 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.5.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.5.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
3.5.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
4.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
4.2 [**] [**] [**] [**] [**] [**] [**] [**] [**]
4.3 [**] [**] [**] [**] [**] [**] [**] [**] [**]
4.4 [**] [**] [**] [**] [**] [**] [**] [**] [**]
4.5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
5 [**] [**] [**] [**] [**] [**] [**] [**] [**]
5.1 [**] [**] [**] [**] [**] [**] [**] [**] [**]
PRODUCTION R&R [ ** ]
[ ** ]
WBS BCH CERTEN NOTES RELATED ITIL PROCESS ACTION ITEMS
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1
1.1 [**] [**] [**] [**] [**] [**]
1.1.1 [**] [**] [**] [**] [**] [**]
1.1.2 [**] [**] [**] [**] [**] [**]
1.1.3 [**] [**] [**] [**] [**] [**]
1.1.4 [**] [**] [**] [**] [**] [**]
1.2 [**] [**] [**] [**] [**] [**]
1.2.1 [**] [**] [**] [**] [**] [**]
1.2.2 [**] [**] [**] [**] [**] [**]
1.2.3 [**] [**] [**] [**] [**] [**]
1.3 [**] [**] [**] [**] [**] [**]
1.3.1 [**] [**] [**] [**] [**] [**]
1.3.2 [**] [**] [**] [**] [**] [**]
1.3.3 [**] [**] [**] [**] [**] [**]
1.3.4 [**] [**] [**] [**] [**] [**]
1.3.5 [**] [**] [**] [**] [**] [**]
2 [**] [**] [**] [**] [**] [**]
2.1 [**] [**] [**] [**] [**] [**]
3 [**] [**] [**] [**] [**] [**]
3.1 [**] [**] [**] [**] [**] [**]
3.1.1 [**] [**] [**] [**] [**] [**]
3.1.2 [**] [**] [**] [**] [**] [**]
3.1.3 [**] [**] [**] [**]
3.1.4 [**] [**] [**] [**] [**] [**]
3.2 [**] [**] [**] [**] [**] [**]
3.2.1 [**] [**] [**] [**] [**] [**]
3.2.2 [**] [**] [**] [**] [**] [**]
3.2.3 [**] [**] [**] [**] [**] [**]
3.3 [**] [**] [**] [**] [**] [**]
3.3.1 [**] [**] [**] [**] [**] [**]
3.3.2 [**] [**] [**] [**] [**] [**]
3.3.3 [**] [**] [**] [**] [**] [**]
3.3.4 [**] [**] [**] [**] [**] [**]
3.3.5 [**] [**] [**] [**] [**] [**]
3.3.6 [**] [**] [**] [**] [**] [**]
3.3.7 [**] [**] [**] [**] [**] [**]
3.3.8 [**] [**] [**] [**] [**] [**]
Page 1
PRODUCTION R&R [ ** ]
[ ** ]
WBS BCH CERTEN NOTES RELATED ITIL PROCESS ACTION ITEMS
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3.4 [**] [**] [**] [**] [**] [**]
3.4.1 [**] [**] [**] [**] [**] [**]
4 [**] [**] [**] [**] [**] [**]
4.1 [**] [**] [**] [**] [**] [**]
4.1.1 [**] [**] [**] [**] [**] [**]
4.1.2 [**] [**] [**] [**] [**] [**]
4.1.3 [**] [**] [**] [**] [**] [**]
4.1.4 [**] [**] [**] [**] [**] [**]
4.1.5 [**] [**] [**] [**] [**] [**]
5 [**] [**] [**] [**] [**] [**]
5.1 [**] [**] [**] [**] [**] [**]
5.2 [**] [**] [**] [**] [**] [**]
5.2.1 [**] [**] [**] [**] [**] [**]
5.2.2 [**] [**] [**] [**] [**] [**]
5.2.3 [**] [**] [**] [**] [**] [**]
5.2.4 [**] [**] [**] [**] [**] [**]
5.2.5 [**] [**] [**] [**] [**] [**]
5.2.6 [**] [**] [**] [**] [**] [**]
5.2.7 [**] [**] [**] [**] [**] [**]
5.2.8 [**] [**] [**] [**] [**] [**]
5.2.9 [**] [**] [**] [**] [**] [**]
5.2.10 [**] [**] [**] [**] [**] [**]
6 [**] [**] [**] [**] [**] [**]
6.1 [**] [**] [**] [**] [**] [**]
6.2 [**] [**] [**] [**] [**] [**]
7 [**] [**] [**] [**] [**] [**]
7.1 [**] [**] [**] [**] [**] [**]
7.1.1 [**] [**] [**] [**] [**] [**]
7.1.2 [**] [**] [**] [**] [**] [**]
7.1.3 [**] [**] [**] [**] [**] [**]
7.1.4 [**] [**] [**] [**] [**] [**]
7.1.5 [**] [**] [**] [**] [**] [**]
7.1.6 [**] [**] [**] [**] [**] [**]
7.1.7 [**] [**] [**] [**] [**] [**]
7.1.8 [**] [**] [**] [**] [**] [**]
7.1.9 [**] [**] [**] [**] [**] [**]
7.1.10 [**] [**] [**] [**] [**] [**]
7.1.11 [**] [**] [**] [**] [**] [**]
7.1.12 [**] [**] [**] [**] [**] [**]
7.1.13 [**] [**] [**] [**] [**] [**]
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PRODUCTION R&R [ ** ]
[ ** ]
WBS BCH CERTEN NOTES RELATED ITIL PROCESS ACTION ITEMS
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7.1.14 [**] [**] [**] [**] [**] [**]
7.1.15 [**] [**] [**] [**] [**] [**]
7.1.16 [**] [**] [**] [**] [**] [**]
7.2 [**] [**] [**] [**] [**] [**]
7.2.1 [**] [**] [**] [**] [**] [**]
7.2.2 [**] [**] [**] [**] [**] [**]
7.2.3 [**] [**] [**] [**] [**] [**]
7.3 [**] [**] [**] [**] [**] [**]
7.3.1 [**] [**] [**] [**] [**] [**]
7.3.2 [**] [**] [**] [**] [**] [**]
7.3.3 [**] [**] [**] [**] [**] [**]
7.3.4 [**] [**] [**] [**] [**] [**]
7.3.5 [**] [**] [**] [**] [**] [**]
7.3.6 [**] [**] [**] [**] [**] [**]
7.4 [**] [**] [**] [**] [**] [**]
7.4.1 [**] [**] [**] [**] [**] [**]
7.4.2 [**] [**] [**] [**] [**] [**]
7.4.3 [**] [**] [**] [**] [**] [**]
7.4.4 [**] [**] [**] [**] [**] [**]
7.4.5 [**] [**] [**] [**] [**] [**]
7.4.6 [**] [**] [**] [**] [**] [**]
7.4.7 [**] [**] [**] [**] [**] [**]
7.4.8 [**] [**] [**] [**] [**] [**]
7.4.9 [**] [**] [**] [**] [**] [**]
7.4.10 [**] [**] [**] [**] [**] [**]
7.4.11 [**] [**] [**] [**] [**] [**]
7.4.12 [**] [**] [**] [**] [**] [**]
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PRODUCTION R&R [**]
[**]
WBS BCH CERTEN NOTES RELATED ITIL PROCESS ACTION ITEMS
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7.4.13 [**] [**] [**] [**] [**] [**]
7.4.14 [**] [**] [**] [**] [**] [**]
7.4.15 [**] [**] [**] [**] [**] [**]
7.4.16 [**] [**] [**] [**] [**] [**]
7.4.17 [**] [**] [**] [**] [**] [**]
7.4.18 [**] [**] [**] [**] [**] [**]
7.5 [**] [**] [**] [**] [**] [**]
7.5.1 [**] [**] [**] [**] [**] [**]
7.5.2 [**] [**] [**] [**] [**] [**]
7.5.3 [**] [**] [**] [**] [**] [**]
7.5.4 [**] [**] [**] [**] [**] [**]
7.6 [**] [**] [**] [**] [**] [**]
7.6.1 [**] [**] [**] [**] [**] [**]
7.7 [**] [**] [**] [**] [**] [**]
7.7.1 [**] [**] [**] [**] [**] [**]
7.7.2 [**] [**] [**] [**] [**] [**]
7.7.3 [**] [**] [**] [**] [**]
7.8 [**] [**] [**] [**] [**] [**]
7.8.1 [**] [**] [**] [**] [**] [**]
7.8.2 [**] [**] [**] [**] [**] [**]
7.8.3 [**] [**] [**] [**] [**] [**]
7.9 [**] [**] [**] [**] [**] [**]
7.9.1 [**] [**] [**] [**] [**] [**]
7.9.2 [**] [**] [**] [**] [**] [**]
7.9.3 [**] [**] [**] [**] [**] [**]
Page 4
FINAL
EXHIBIT P1
NON-DISCLOSURE AND
CONFIDENTIALITY AGREEMENT
[FOR USE WITH NON-COMPETITORS OF CERTEN]
THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT ("Agreement") is made as of
the ______ day of _____________, 200[]
BY AND BETWEEN:
CERTEN INC., a company organized and existing under the laws of Canada, having
offices in the city of Montreal, Province of Quebec, Canada (hereinafter
referred to as "CERTEN");
AND
_____________________________, a corporation organized and existing under the
laws of ___________________, having its principal offices at
______________________ (hereinafter referred to as "RECEIVING PARTY").
WHEREAS CERTEN (or any of its affiliated companies) is the owner and/or the
author of and/or has the right to license certain valuable proprietary routines,
computer programs, documentation, trade secrets, systems, methodology, know-how,
marketing and other commercial knowledge, techniques, specifications, plans and
other proprietary information, all of which, including any related ideas and
look-and-feel, are referred to in this Agreement as the "CERTEN PROPRIETARY
INFORMATION";
For the purposes of this Agreement, CERTEN Proprietary Information shall
include, without limitation, (i) any technical, financial or business
information, data, idea, concept or know-how that is considered and treated as
being confidential by CERTEN; (ii) the fact discussions between the parties
hereto have been or are taking place; (iii) the fact that confidential
information will be disclosed to the Receiving Party; and (iv) the existence or
terms and conditions of this Agreement. CERTEN Proprietary Information disclosed
in tangible or electronic form may be marked or otherwise identified by CERTEN
or any of its affiliated companies with a legend as being confidential, but in
no event shall the absence of such ▇▇▇▇ or legend relieve the Receiving Party of
the obligation to treat as confidential information which would be considered
confidential by a person exercising reasonable business judgment; and
WHEREAS CERTEN has been engaged by ▇▇▇▇ Canada to provide _______________ [name
of applicable BCH COMPANY] (the "BCH COMPANY") information systems and
information technology services ("OUTSOURCING SERVICES") in the realm of billing
production, payment process and customer care systems (the "CC&B SYSTEMS"); and
WHEREAS Receiving Party has been engaged by the BCH Company to provide the BCH
Company with the following services in connection with the Outsourcing Services
provided to the BCH Company by CERTEN:
-2-
___________________________________ [To Be Added] (hereinafter referred to as
the "CONSULTING SERVICES"); and
WHEREAS the BCH Company has asked CERTEN to allow Receiving Party access to the
CERTEN Proprietary Information for the purpose of Receiving Party providing the
Consulting Services; and
WHEREAS CERTEN agrees to provide Receiving Party with the requested access to
the specific CERTEN Proprietary Information required for Receiving Party to
perform the Consulting Services, but only subject to Receiving Party first
becoming obligated to confidentiality by signing this Agreement; and
WHEREAS CERTEN and Receiving Party wish to evidence by this Agreement the manner
in which the CERTEN Proprietary Information will be treated;
NOW, THEREFORE, the parties agree as follows:
1. Receiving Party agrees to hold strictly confidential the CERTEN
Proprietary Information and shall not copy, distribute, disseminate or
otherwise disclose the CERTEN Proprietary Information to anyone other than
to its employees or employees of CERTEN who have a need to know such
information for purposes of providing the Consulting Services. For
avoidance of doubt, such employees shall have access to only the specific
CERTEN Proprietary Information required for provision of the Consulting
Services. In the event that Receiving Party would like to disclose the
CERTEN Proprietary Information to any other party, such other party must
first sign a written agreement with CERTEN binding such other party to
terms and conditions substantially similar to those of this Agreement.
2. Furthermore, Receiving Party hereby undertakes:
(a) not to use the CERTEN Proprietary Information for any purposes other
than as may be necessary in order to perform the Consulting
Services; furthermore, Receiving Party undertakes not to use outside
of the scope of the Consulting Services any knowledge, information
or expertise with respect to the CERTEN Proprietary Information
gained, learned or obtained as a result of its providing Consulting
Services;
(b) not to make the CERTEN Proprietary Information available to, and not
to permit its use by, any third party, directly or indirectly, with
the exception of its employees and CERTEN as permitted in accordance
with Section 1;
(c) not to sell, grant or in any other way allow any third party to use
the CERTEN Proprietary Information;
(d) not to use the CERTEN Proprietary Information received by Receiving
Party in connection with the Consulting Services:
-3-
(i) in developing products which are competitive with the CC&B
Systems being used by CERTEN to provide the Outsourcing
Services;
(ii) in competing with CERTEN in the area of the Outsourcing
Services; and/or
(iii) in providing software development, maintenance or support
services with respect to the CC&B Systems being used by CERTEN
to provide the Outsourcing Services, other than the Consulting
Services.
3. Upon the termination and/or expiration of this Agreement for any reason
and/or upon the conclusion of the Consulting Services and/or at the
request of CERTEN, Receiving Party shall:
(a) return to CERTEN any document or other material in tangible form in
its possession being part of the CERTEN Proprietary Information;
and/or
(b) destroy any document or other material in tangible form that
contains the CERTEN Proprietary Information together with
proprietary information of the BCH Company, and confirm such
destruction in writing to CERTEN.
4. Disclosure of the CERTEN Proprietary Information to Receiving Party may be
made in writing, in any tangible form, electronically or orally, by
CERTEN.
5. Disclosure of the CERTEN Proprietary Information to Receiving Party shall
in no way serve to create, on the part of Receiving Party, any proprietary
right in, the CERTEN Proprietary Information or in any other proprietary
product, trade ▇▇▇▇, copyright or other right of CERTEN. Furthermore,
disclosure of the CERTEN Proprietary Information to Receiving Party will
only entitle Receiving Party to use such information for purposes of
providing the Consulting Services.
6. Any use by Receiving Party of the CERTEN Proprietary Information permitted
under this Agreement is conditioned upon Receiving Party first taking the
safeguards and measures required to secure the confidentiality of such
information. Without limiting the generality of the foregoing, Receiving
Party shall draw to the attention of its employees, who shall have access
to the CERTEN Proprietary Information, all the obligations contained in
this Agreement.
7. The confidentiality obligations of Receiving Party regarding the CERTEN
Proprietary Information shall not apply to such information which
Receiving Party can prove:
(a) becomes public domain without fault on the part of Receiving Party;
-4-
(b) is lawfully and on a non-confidential basis obtained by Receiving
Party from any source other than CERTEN free of any obligation to
keep it confidential;
(c) by documentary and competent evidence was previously known to
Receiving Party without an obligation to keep it confidential;
(d) is expressly released in writing from such obligations by CERTEN; or
(e) is required to be disclosed pursuant to law, regulation, judicial or
administrative order or request by a governmental or other entity
authorized by law to make such request; provided, however, that
Receiving Party first notifies CERTEN to enable it to seek relief
from such requirement, and renders reasonable assistance requested
by CERTEN (at CERTEN's expense) in connection therewith.
8. This Agreement shall be in full force and effect for a period commencing
on the date first stated above and ending either four (4) years after the
conclusion of the Consulting Services referred to herein or seven (7)
years from the date first stated above, whichever occurs later. However,
the provisions of Sections 2 and 5 shall survive the termination or
expiration of this Agreement for any reason.
9. In the event that Receiving Party discloses, disseminates, releases or
uses any part of CERTEN Proprietary Information, except as provided for in
this Agreement, such disclosure, dissemination, release or use, or the
threat thereof, shall be deemed to be a material breach of this Agreement.
In the event of any material breach of this Agreement by Receiving Party
(including but not limited to the foregoing), Receiving Party, upon demand
from CERTEN, shall immediately discontinue access to the CERTEN
Proprietary Information and immediately return to CERTEN all CERTEN
Proprietary Information, including any copies thereof. In the event that a
copy of any part of the CERTEN Proprietary Information cannot be returned
as a result of physical impossibility, such copy shall be promptly
destroyed and such destruction shall be certified in writing by Receiving
Party. The provisions of this paragraph are in addition to any other legal
or equitable rights and remedies that CERTEN may have.
10. Receiving Party acknowledges that a breach of this Agreement may cause
CERTEN extensive and irreparable harm and damage, and agrees that CERTEN
shall be entitled to specific performance and injunctive relief or other
equitable to prevent use or disclosure of the CERTEN Proprietary
Information not authorized by this Agreement, in addition to any other
remedy available to CERTEN under applicable law.
11. Furthermore, Receiving Party hereby acknowledges that any breach of this
Agreement may result in the termination of its agreement to provide the
Consulting Services to the BCH Company as a result of CERTEN's activities
to protect its rights under this Agreement, and agrees that it shall have
no
-5-
recourse or cause of action against CERTEN and/or the BCH Company based
upon or in connection with such activities.
12. This Agreement constitutes the entire Agreement between the parties and
supersedes any prior or contemporaneous oral or written representation
with regard to the subject matter hereof. This Agreement may not be
modified except by a written instrument signed by both parties.
13. If, however, any provision of this Agreement is determined to be invalid
or unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement, but rather the entire
Agreement shall be construed as if not containing the particular invalid
or unenforceable provision, and the rights and obligations of the parties
shall be construed and enforced accordingly. In addition, the parties
hereby agree to cooperate with each other to replace the invalid or
unenforceable provision with a valid and enforceable provision which will
achieve the same result (to the maximum legal extent) as the provision
determined to be invalid or unenforceable.
14. The validity, performance, construction and effect of this Agreement shall
be governed by the laws of the Province of
Ontario (without regard to its
rules on conflicts of laws) and the laws of Canada applicable therein.
15. CERTEN does not make any representation or warranty as to the accuracy or
completeness of CERTEN Proprietary Information. Receiving Party agrees
that CERTEN will not have any liability to Receiving Party resulting from
any use of CERTEN Proprietary Information by Receiving Party.
16. This Agreement may not be assigned by Receiving Party, in whole or in
part, without CERTEN's prior written consent. Assignment shall not relieve
Receiving Party of its obligations hereunder.
17. A term or condition of this Agreement can be waived or modified only by
written consent of both parties. No failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege
hereunder.
18. No single or partial exercise of any right or remedy under this Agreement
shall preclude any other or further exercise of any other right or remedy
in this Agreement or as provided at law or in equity. Rights and remedies
provided in this Agreement are cumulative and not exclusive of any right
or remedy provided at law or in equity.
19. This Agreement may only be amended by a written agreement duly executed by
authorized representatives of the parties.
20. Any notice, demand or other communication which under the terms of this
Agreement or under any statute must or may be given or made by any party
hereto shall be in writing and shall be given or made, all in readable
form to the recipient, by hand delivery, telegram, tested telex, confirmed
facsimile,
-6-
electronic mail or similar communication or by certified or registered
mail addressed to the respective Parties as follows:
If to Certen, to:
CERTEN INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
If to Receiving Party, to:
[ - ]
Such notice, demand or communication shall be deemed to have been given or
made when delivered in person or when received by confirmed telegram,
facsimile, or other similar communication or five (5) Business Days after
having been deposited, postage prepaid certified or registered mail in the
Canada or US mail, as the case may be. Any notice, demand or communication
to a person other than the persons set forth in this Section shall be null
and void and shall not be considered sufficient notice to bind the
receiving Party. The above addresses may be changed at any time by giving
prior written notice as above provided.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first stated above.
__________________________ CERTEN INC.
("Receiving Party") ("CERTEN")
By _______________ By: _______________
Name: _______________ Name: _______________
Title:_______________ Title:_______________
Date: _______________ Date: _______________
FINAL
EXHIBIT P2
NON-DISCLOSURE AND
CONFIDENTIALITY AGREEMENT
[FOR USE WITH COMPETITORS OF CERTEN]
THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT ("Agreement") is made as of
the ______ day of _____________, 200[]
BY AND BETWEEN:
CERTEN INC., a company organized and existing under the laws of Canada, having
offices in the city of Montreal, Province of Quebec, Canada (hereinafter
referred to as "CERTEN");
AND
_____________________________, a corporation organized and existing under the
laws of ___________________, having its principal offices at
______________________ (hereinafter referred to as "RECEIVING PARTY").
WHEREAS CERTEN (or any of its affiliated companies) is the owner and/or the
author of and/or has the right to license certain valuable proprietary routines,
computer programs, documentation, trade secrets, systems, methodology, know-how,
marketing and other commercial knowledge, techniques, specifications, plans and
other proprietary information, all of which, including any related ideas and
look-and-feel, are referred to in this Agreement as the "CERTEN PROPRIETARY
INFORMATION";
For the purposes of this Agreement, CERTEN Proprietary Information shall
include, without limitation, (i) any technical, financial or business
information, data, idea, concept or know-how that is considered and treated as
being confidential by CERTEN; (ii) the fact discussions between the parties
hereto have been or are taking place; (iii) the fact that confidential
information will be disclosed to the Receiving Party; and (iv) the existence or
terms and conditions of this Agreement. CERTEN Proprietary Information disclosed
in tangible or electronic form may be marked or otherwise identified by CERTEN
or any of its affiliated companies with a legend as being confidential, but in
no event shall the absence of such ▇▇▇▇ or legend relieve the Receiving Party of
the obligation to treat as confidential information which would be considered
confidential by a person exercising reasonable business judgment; and
WHEREAS CERTEN has been engaged by ▇▇▇▇ Canada to provide _______________ [name
of applicable BCH COMPANY] (the "BCH COMPANY") information systems and
information technology services ("OUTSOURCING SERVICES") in the realm of billing
production, payment process and customer care systems (the "CC&B SYSTEMS"); and
WHEREAS Receiving Party has been engaged by the BCH Company to provide the BCH
Company with the following services in connection with the Outsourcing Services
provided to the BCH Company by CERTEN: ___________________________________ [To
Be Added] (hereinafter referred to as the "CONSULTING SERVICES"); and
-2-
WHEREAS the BCH Company has asked CERTEN to allow Receiving Party access to the
CERTEN Proprietary Information for the purpose of Receiving Party providing the
Consulting Services; and
WHEREAS CERTEN agrees to provide Receiving Party with the requested access to
the specific CERTEN Proprietary Information required for Receiving Party to
perform the Consulting Services, but only subject to Receiving Party first
becoming obligated to confidentiality by signing this Agreement; and
WHEREAS CERTEN and Receiving Party wish to evidence by this Agreement the manner
in which the CERTEN Proprietary Information will be treated;
NOW, THEREFORE, the parties agree as follows:
1. Receiving Party agrees to hold strictly confidential the CERTEN
Proprietary Information and shall not copy, distribute, disseminate or
otherwise disclose the CERTEN Proprietary Information to anyone other than
to its employees or employees of CERTEN who have a need to know such
information for purposes of providing the Consulting Services. For
avoidance of doubt, such employees shall have access to only the specific
CERTEN Proprietary Information required for provision of the Consulting
Services. In the event that Receiving Party would like to disclose the
CERTEN Proprietary Information to any other party, such other party must
first sign a written agreement with CERTEN binding such other party to
terms and conditions substantially similar to those of this Agreement.
2. Furthermore, Receiving Party hereby undertakes:
(a) not to use the CERTEN Proprietary Information for any purposes other
than as may be necessary in order to perform the Consulting
Services; furthermore, Receiving Party undertakes not to use outside
of the scope of the Consulting Services any knowledge, information
or expertise with respect to the CERTEN Proprietary Information
gained, learned or obtained as a result of its providing Consulting
Services;
(b) not to make the CERTEN Proprietary Information available to, and not
to permit its use by, any third party, directly or indirectly, with
the exception of its employees and CERTEN as permitted in accordance
with Section 1;
(c) not to sell, grant or in any other way allow any third party to use
the CERTEN Proprietary Information;
(d) not to use the CERTEN Proprietary Information received by Receiving
Party in connection with the Consulting Services:
(i) in developing products which are competitive with the CC&B
Systems being used by CERTEN to provide the Outsourcing
Services;
-3-
(ii) in competing with CERTEN in the area of the Outsourcing
Services; and/or
(iii) in providing software development, maintenance or support
services with respect to the CC&B Systems being used by CERTEN
to provide the Outsourcing Services, other than the Consulting
Services.
3. Any Receiving Party personnel who provide the Consulting Services and who
receive, or are otherwise granted access to, the CERTEN Proprietary
Information during the course of providing the Consulting Services, shall
be listed in an annex to this Agreement, which shall be updated by the
parties as required from time to time. Such personnel shall not be
assigned by Receiving Party to any projects involving the performance of
any software development, maintenance or support services relating to any
part of the CC&B Systems being used by CERTEN to provide the Outsourcing
Services for any third parties for a period of two (2) years following
conclusion of the applicable personnel's involvement in the Consulting
Services, or to the selling or licensing of, or provision of software
services with respect to, other software systems in competition with the
CC&B Systems being used by CERTEN to provide the Outsourcing Services,
unless expressly agreed otherwise with CERTEN in writing.
4. Upon the termination and/or expiration of this Agreement for any reason
and/or upon the conclusion of the Consulting Services and/or at the
request of CERTEN, Receiving Party shall:
(a) return to CERTEN any document or other material in tangible form in
its possession being part of the CERTEN Proprietary Information;
and/or
(b) destroy any document or other material in tangible form that
contains the CERTEN Proprietary Information together with
proprietary information of the BCH Company, and confirm such
destruction in writing to CERTEN.
5. Disclosure of the CERTEN Proprietary Information to Receiving Party may be
made in writing, in any tangible form, electronically or orally, by
CERTEN.
6. Disclosure of the CERTEN Proprietary Information to Receiving Party shall
in no way serve to create, on the part of Receiving Party, any proprietary
right in, the CERTEN Proprietary Information or in any other proprietary
product, trade ▇▇▇▇, copyright or other right of CERTEN. Furthermore,
disclosure of the CERTEN Proprietary Information to Receiving Party will
only entitle Receiving Party to use such information for purposes of
providing the Consulting Services.
7. Any use by Receiving Party of the CERTEN Proprietary Information permitted
under this Agreement is conditioned upon Receiving Party first taking the
safeguards and measures required to secure the confidentiality of such
information. Without limiting the generality of the foregoing, Receiving
Party shall draw to the attention of its employees, who shall have access
to the
-4-
CERTEN Proprietary Information, all the obligations contained in this
Agreement.
8. The confidentiality obligations of Receiving Party regarding the CERTEN
Proprietary Information shall not apply to such information which
Receiving Party can prove:
(a) becomes public domain without fault on the part of Receiving Party;
(b) is lawfully and on a non-confidential basis obtained by Receiving
Party from any source other than CERTEN free of any obligation to
keep it confidential;
(c) by documentary and competent evidence was previously known to
Receiving Party without an obligation to keep it confidential;
(d) is expressly released in writing from such obligations by CERTEN; or
(e) is required to be disclosed pursuant to law, regulation, judicial or
administrative order or request by a governmental or other entity
authorized by law to make such request; provided, however, that
Receiving Party first notifies CERTEN to enable it to seek relief
from such requirement, and renders reasonable assistance requested
by CERTEN (at CERTEN's expense) in connection therewith.
9. This Agreement shall be in full force and effect for a period commencing
on the date first stated above and ending either four (4) years after the
conclusion of the Consulting Services referred to herein or seven (7)
years from the date first stated above, whichever occurs later. However,
the provisions of Sections 2 and shall survive the termination or
expiration of this Agreement for any reason.
10. In the event that Receiving Party discloses, disseminates, releases or
uses any part of CERTEN Proprietary Information, except as provided for in
this Agreement, such disclosure, dissemination, release or use, or the
threat thereof, shall be deemed to be a material breach of this Agreement.
In the event of any material breach of this Agreement by Receiving Party
(including but not limited to the foregoing), Receiving Party, upon demand
from CERTEN, shall immediately discontinue access to the CERTEN
Proprietary Information and immediately return to CERTEN all CERTEN
Proprietary Information, including any copies thereof. In the event that a
copy of any part of the CERTEN Proprietary Information cannot be returned
as a result of physical impossibility, such copy shall be promptly
destroyed and such destruction shall be certified in writing by Receiving
Party. The provisions of this paragraph are in addition to any other legal
or equitable rights and remedies that CERTEN may have.
11. Receiving Party acknowledges that a breach of this Agreement may cause
CERTEN extensive and irreparable harm and damage, and agrees that CERTEN
shall be entitled to specific performance and injunctive relief or other
equitable to prevent use or disclosure of the CERTEN Proprietary
-5-
Information not authorized by this Agreement, in addition to any other
remedy available to CERTEN under applicable law.
12. Furthermore, Receiving Party hereby acknowledges that any breach of this
Agreement may result in the termination of its agreement to provide the
Consulting Services to the BCH Company as a result of CERTEN's activities
to protect its rights under this Agreement, and agrees that it shall have
no recourse or cause of action against CERTEN and/or the BCH Company based
upon or in connection with such activities.
13. This Agreement constitutes the entire Agreement between the parties and
supersedes any prior or contemporaneous oral or written representation
with regard to the subject matter hereof. This Agreement may not be
modified except by a written instrument signed by both parties.
14. If, however, any provision of this Agreement is determined to be invalid
or unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement, but rather the entire
Agreement shall be construed as if not containing the particular invalid
or unenforceable provision, and the rights and obligations of the parties
shall be construed and enforced accordingly. In addition, the parties
hereby agree to cooperate with each other to replace the invalid or
unenforceable provision with a valid and enforceable provision which will
achieve the same result (to the maximum legal extent) as the provision
determined to be invalid or unenforceable.
15. The validity, performance, construction and effect of this Agreement shall
be governed by the laws of the Province of
Ontario (without regard to its
rules on conflicts of laws) and the laws of Canada applicable therein.
16. CERTEN does not make any representation or warranty as to the accuracy or
completeness of CERTEN Proprietary Information. Receiving Party agrees
that CERTEN will not have any liability to Receiving Party resulting from
any use of CERTEN Proprietary Information by Receiving Party.
17. This Agreement may not be assigned by Receiving Party, in whole or in
part, without CERTEN's prior written consent. Assignment shall not relieve
Receiving Party of its obligations hereunder.
18. A term or condition of this Agreement can be waived or modified only by
written consent of both parties. No failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege
hereunder.
19. No single or partial exercise of any right or remedy under this Agreement
shall preclude any other or further exercise of any other right or remedy
in this Agreement or as provided at law or in equity. Rights and remedies
provided in this Agreement are cumulative and not exclusive of any right
or remedy provided at law or in equity.
-6-
20. This Agreement may only be amended by a written agreement duly executed by
authorized representatives of the parties.
21. Any notice, demand or other communication which under the terms of this
Agreement or under any statute must or may be given or made by any party
hereto shall be in writing and shall be given or made, all in readable
form to the recipient, by hand delivery, telegram, tested telex, confirmed
facsimile, electronic mail or similar communication or by certified or
registered mail addressed to the respective parties as follows:
If to Certen, to:
CERTEN INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
If to Receiving Party, to:
[ - ]
Such notice, demand or communication shall be deemed to have been given or
made when delivered in person or when received by confirmed telegram,
facsimile, or other similar communication or five (5) Business Days after
having been deposited, postage prepaid certified or registered mail in the
Canada or US mail, as the case may be. Any notice, demand or communication
to a person other than the persons set forth in this Section shall be null
and void and shall not be considered sufficient notice to bind the
receiving party. The above addresses may be changed at any time by giving
prior written notice as above provided.
-7-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first stated above.
__________________________ CERTEN INC.
("Receiving Party")
By _______________ By: _______________
Name: _______________ Name: _______________
Title:_______________ Title:_______________
Date: _______________ Date: _______________
FINAL
EXHIBIT Q1
NON-DISCLOSURE AND
CONFIDENTIALITY AGREEMENT
[FOR USE WITH NON-COMPETITORS OF BELL]
THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT ("Agreement") is made as of
the ______ day of _____________, 200[ ]
BY AND BETWEEN:
CERTEN INC., a company organized and existing under the laws of Canada, having
offices in the city of Montreal, Province of Quebec, Canada (hereinafter
referred to as "CERTEN");
AND
_____________________________, a corporation organized and existing under the
laws of ___________________, having its principal offices at
______________________ (hereinafter referred to as "RECEIVING PARTY").
AND
▇▇▇▇ CANADA, a company organzied and existing under the laws of Canada
(hereinafter referred to as "BELL")
WHEREAS BELL has engaged CERTEN to provide to BELL and some of its affiliates
(the "BCH COMPANIES") information systems and information technology services in
the realm of billing production, payment process and customer care systems
("OUTSOURCING SERVICES"); and
WHEREAS BELL (or any of its affiliated companies) is the owner and/or the author
of and/or has the right to license certain valuable proprietary routines,
computer programs, documentation, trade secrets, systems, methodology, know-how,
marketing and other commercial knowledge, techniques, specifications, plans and
other proprietary information, all of which, including any related ideas and
look-and-feel, are referred to in this Agreement as the "BELL PROPRIETARY
INFORMATION"; and
WHEREAS For the purposes of this Agreement, BELL Proprietary Information shall
include, without limitation, (i) any technical, financial or business
information, data, idea, concept or know-how that is considered and treated as
being confidential by BELL or any or its affiliated companies; (ii) the fact
discussions between the parties hereto have been or are taking place; (iii) the
fact that confidential information will be disclosed to the
-2-
Receiving Party; and (iv) the existence or terms and conditions of this
Agreement. BELL Proprietary Information disclosed in tangible or electronic form
may be marked or otherwise identified by BELL or any of its affiliated companies
with a legend as being confidential, but in no event shall the absence of such
▇▇▇▇ or legend relieve the Receiving Party of the obligation to treat as
confidential, information which would be considered confidential by a person
exercising reasonable business judgment; and
WHEREAS Receiving Party has been engaged by CERTEN to provide CERTEN with the
following services in connection with the Outsourcing Services provided by
CERTEN to BELL: ___________________________________ [To Be Added] (hereinafter
referred to as the "CONSULTING SERVICES"); and
WHEREAS CERTEN has asked BELL to allow Receiving Party access to the BELL
Proprietary Information for the purpose of Receiving Party providing the
Consulting Services; and
WHEREAS BELL recognizes that the Receiving Party will be provided with the
requested access to the specific BELL Proprietary Information required for
Receiving Party to perform the Consulting Services, but only subject to
Receiving Party first becoming obligated to confidentiality by signing this
Agreement; and
WHEREAS CERTEN and Receiving Party wish to evidence by this Agreement the manner
in which the BELL Proprietary Information will be treated;
NOW, THEREFORE, the parties agree as follows:
1. Receiving Party agrees to hold strictly confidential the BELL Proprietary
Information and shall not copy, distribute, disseminate or otherwise
disclose the BELL Proprietary Information to anyone other than to its
employees or employees of CERTEN who have a need to know such information
for purposes of providing the Consulting Services. For avoidance of doubt,
such employees shall have access to only the specific BELL Proprietary
Information required for provision of the Consulting Services. In the
event that Receiving Party would like to disclose the BELL Proprietary
Information to any other party, such other party must first sign a written
agreement with CERTEN AND BELL binding such other party to terms and
conditions substantially similar to those of this Agreement.
2. Furthermore, Receiving Party hereby undertakes:
(a) not to use the BELL Proprietary Information for any purposes other
than as may be necessary in order to perform the Consulting
Services; furthermore, Receiving Party undertakes not to use outside
of the scope of the Consulting Services any knowledge, information
or expertise with respect to the BELL Proprietary Information
gained, learned or obtained as a result of its providing Consulting
Services;
-3-
(b) not to make the BELL Proprietary Information available to, and not
to permit its use by, any third party, directly or indirectly, with
the exception of its employees and CERTEN as permitted in accordance
with Section 1;
(c) not to sell, grant or in any other way allow any third party to use
the BELL Proprietary Information;
(d) not to use the BELL Proprietary Information received by Receiving
Party in connection with the Consulting Services in any manner
whatsoever except as expressly permitted hereunder;
3. Upon the termination and/or expiration of this Agreement for any reason
and/or upon the conclusion of the Consulting Services and/or at the
request of BELL, Receiving Party shall:
(a) return to BELL any document or other material in tangible form in
its possession being part of the BELL Proprietary Information;
and/or
(b) destroy any document or other material in tangible form that
contains the BELL Proprietary Information together with proprietary
information of CERTEN, and confirm such destruction in writing to
BELL.
4. Disclosure of the BELL Proprietary Information to Receiving Party may be
made in writing, in any tangible form, electronically, or orally by BELL.
5. Disclosure of the BELL Proprietary Information to Receiving Party shall in
no way serve to create, on the part of Receiving Party, any proprietary
right in, the BELL Proprietary Information or in any other proprietary
product, trade ▇▇▇▇, copyright or other right of BELL or any affiliated
company. Furthermore, disclosure of the BELL Proprietary Information to
Receiving Party will only entitle Receiving Party to use such information
for purposes of providing the Consulting Services as provided hereunder.
6. Any use by Receiving Party of the BELL Proprietary Information permitted
under this Agreement is conditioned upon Receiving Party first taking the
safeguards and measures required to secure the confidentiality of such
information. Without limiting the generality of the foregoing, Receiving
Party shall draw to the attention of its employees, who shall have access
to the BELL Proprietary Information, all the obligations contained in this
Agreement.
7. The confidentiality obligations of Receiving Party regarding the BELL
Proprietary Information shall not apply to such information which
Receiving Party can prove:
(a) becomes public domain without fault on the part of Receiving Party;
-4-
(b) is lawfully and on a non-confidential basis obtained by Receiving
Party from any source other than BELL, a BCH Company and CERTEN free
of any obligation to keep it confidential;
(c) by documentary and competent evidence was previously known to
Receiving Party without an obligation to keep it confidential;
(d) is expressly released in writing from such obligations by BELL; or
(e) is required to be disclosed pursuant to law, regulation, judicial or
administrative order or request by a governmental or other entity
authorized by law to make such request; provided, however, that
Receiving Party first notifies BELL to enable it to seek relief from
such requirement, and renders reasonable assistance requested by
BELL in connection therewith.
8. This Agreement shall be in full force and effect for a period commencing
on the date first stated above and ending either four (4) years after the
conclusion of the Consulting Services referred to herein or seven (7)
years from the date first stated above, whichever occurs later. However,
the provisions of Sections 2 and 5 shall survive the termination or
expiration of this Agreement for any reason.
9. In the event that Receiving Party discloses, disseminates, releases or
uses any part of BELL Proprietary Information, except as provided for in
this Agreement, such disclosure, dissemination, release or use, or the
threat thereof, shall be deemed to be a material breach of this Agreement.
In the event of any material breach of this Agreement by Receiving Party
(including but not limited to the foregoing), Receiving Party, upon demand
from BELL OR CERTEN, shall immediately discontinue access to the BELL
Proprietary Information and immediately return to BELL all BELL
Proprietary Information, including any copies thereof. In the event that a
copy of any part of the BELL Proprietary Information cannot be returned as
a result of physical impossibility, such copy shall be promptly destroyed
and such destruction shall be certified in writing to BELL by Receiving
Party. The provisions of this paragraph are in addition to any other legal
or equitable rights and remedies that BELL may have.
10. (a) Receiving Party acknowledges that a breach of this Agreement may cause
BELL and/or CERTEN extensive and irreparable harm and damage, and agrees
that BELL and/or CERTEN shall be entitled to specific performance and
injunctive relief or other equitable relief to prevent use or disclosure
of the BELL Proprietary Information not authorized by this Agreement, in
addition to any other remedy available to BELL and/or CERTEN under
applicable law.
(b) Furthermore, Receiving Party hereby acknowledges that any breach of
this Agreement may result in the termination of its agreement to provide
the Consulting Services to CERTEN as a result of CERTEN's activities to
protect its
-5-
rights under this Agreement, and agrees that it shall have no recourse or
claim of action against BELL and/or CERTEN based upon or in connection
with such activities.
11. This Agreement constitutes the entire Agreement between the parties and
supersedes any prior or contemporaneous oral or written representation
with regard to the subject matter hereof. This Agreement may not be
modified except by a written instrument signed by both parties.
12. If, however, any provision of this Agreement is determined to be invalid
or unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement, but rather the entire
Agreement shall be construed as if not containing the particular invalid
or unenforceable provision, and the rights and obligations of the parties
shall be construed and enforced accordingly. In addition, the parties
hereby agree to cooperate with each other to replace the invalid or
unenforceable provision with a valid and enforceable provision which will
achieve the same result (to the maximum legal extent) as the provision
determined to be invalid or unenforceable.
13. The validity, performance, construction and effect of this Agreement shall
be governed by the laws of the Province of
Ontario (without regard to its
rules on conflicts of laws) and the laws of Canada applicable therein.
14. Neither BELL nor CERTEN makes any representation or warranty as to the
accuracy or completeness of BELL Proprietary Information. Receiving Party
agrees that neither BELL nor CERTEN will have any liability to Receiving
Party resulting from any use of BELL Proprietary Information by Receiving
Party.
15. This Agreement may not be assigned by Receiving Party, in whole or in
part, without BELL AND CERTEN's prior written consent. Assignment shall
not relieve Receiving Party of its obligations hereunder.
16. A term or condition of this Agreement can be waived or modified only by
written consent of both parties. No failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege
hereunder.
17. No single or partial exercise of any right or remedy under this Agreement
shall preclude any other or further exercise of any other right or remedy
in this Agreement or as provided at law or in equity. Rights and remedies
provided in this Agreement are cumulative and not exclusive of any right
or remedy provided at law or in equity.
18. This Agreement may only be amended by a written agreement duly executed by
authorized representatives of the parties.
-6-
19. Any notice, demand or other communication which under the terms of this
Agreement or under any statute must or may be given or made by any of the
parties hereto shall be in writing and shall be given or made, all in
readable form to the recipient, by hand delivery, telegram, tested telex,
confirmed facsimile, electronic mail or similar communication or by
certified or registered mail addressed to the respective Parties as
follows:
If to Certen, to:
CERTEN INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
If to Bell, to:
▇▇▇▇ CANADA
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Group President-Systems and Technology
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇
and to:
▇▇▇▇ CANADA
1000 rue de La Gauchetiere ouest
Suite 4100
Montreal, Quebec
H3B 5H8
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Legal Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇
if to Receiving Party, to:
[ - ]
Such notice, demand or communication shall be deemed to have been given or made
when delivered in person or when received by confirmed telegram, facsimile, or
other
-7-
similar communication or five (5) Business Days after having been
deposited, postage prepaid certified or registered mail in the Canada or US
mail, as the case may be. Any notice, demand or communication to a person other
than the persons set forth in this Section shall be null and void and shall not
be considered sufficient notice to bind the receiving Party. The above addresses
may be changed at any time by giving prior written notice as above provided.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first stated above.
__________________________ CERTEN INC.
("Receiving Party")
By _______________ By: _______________
Name: _______________ Name: _______________
Title:_______________ Title:_______________
Date: _______________ Date: _______________
▇▇▇▇ CANADA
By: _______________
Name: _______________
Title:_______________
Date: _______________
FINAL
EXHIBIT Q2
NON-DISCLOSURE AND
CONFIDENTIALITY AGREEMENT
[FOR USE WITH COMPETITORS OF BELL]
THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT ("Agreement") is made as of
the ______ day of _____________, 200[ ]
BY AND BETWEEN:
CERTEN INC., a company organized and existing under the laws of Canada, having
offices in the city of Montreal, Province of Quebec, Canada (hereinafter
referred to as "CERTEN");
AND
_____________________________, a corporation organized and existing under the
laws of ___________________, having its principal offices at
______________________ (hereinafter referred to as "RECEIVING PARTY").
AND
▇▇▇▇ CANADA, a company organized and existing under the laws of Canada
(hereinafter referred to as "BELL");
WHEREAS BELL has engaged CERTEN to provide to BELL and some of its affiliates
(the "BCH COMPANIES") information systems and information technology services in
the realm of billing production, payment process and customer care systems
("OUTSOURCING SERVICES"); and
WHEREAS BELL (or any of its affiliated companies) is the owner and/or the author
of and/or has the right to license certain valuable proprietary routines,
computer programs, documentation, trade secrets, systems, methodology, know-how,
marketing and other commercial knowledge, techniques, specifications, plans and
other proprietary information, all of which, including any related ideas and
look-and-feel, are referred to in this Agreement as the "BELL PROPRIETARY
INFORMATION"; and
WHEREAS For the purposes of this Agreement, BELL Proprietary Information shall
include, without limitation, (i) any technical, financial or business
information, data, idea, concept or know-how that is considered and treated as
being confidential by BELL or any or its affiliated companies; (ii) the fact
discussions between the parties hereto have been or are taking place; (iii) the
fact that confidential information will be disclosed to the Receiving Party; and
(iv) the existence or terms and conditions of this Agreement.BELL
-2-
Proprietary Information disclosed in tangible or electronic form may be marked
or otherwise identified by BELL or any of its affiliated companies with a legend
as being confidential, but in no event shall the absence of such ▇▇▇▇ or legend
relieve the Receiving Party of the obligation to treat as confidential
information which would be considered confidential by a person exercising
reasonable business judgment ; and
WHEREAS Receiving Party has been engaged by CERTEN to provide CERTEN with the
following services in connection with the Outsourcing Services provided by
CERTEN to BELL: ___________________________________ [To Be Added] (hereinafter
referred to as the "CONSULTING SERVICES"); and
WHEREAS CERTEN has asked BELL to allow Receiving Party access to the BELL
Proprietary Information for the purpose of Receiving Party providing the
Consulting Services; and
WHEREAS BELL recognizes that the Receiving Party will be provided with the
requested access to the specific BELL Proprietary Information required for
Receiving Party to perform the Consulting Services, but only subject to
Receiving Party first becoming obligated to confidentiality by signing this
Agreement; and
WHEREAS CERTEN and Receiving Party wish to evidence by this Agreement the manner
in which the BELL Proprietary Information will be treated;
NOW, THEREFORE, the parties agree as follows:
1. Receiving Party agrees to hold strictly confidential the BELL Proprietary
Information and shall not copy, distribute, disseminate or otherwise
disclose the BELL Proprietary Information to anyone other than to its
employees or employees of CERTEN who have a need to know such information
for purposes of providing the Consulting Services. For avoidance of doubt,
such employees shall have access to only the specific BELL Proprietary
Information required for provision of the Consulting Services. In the
event that Receiving Party would like to disclose the BELL Proprietary
Information to any other party, such other party must first sign a written
agreement with CERTEN AND BELL binding such other party to terms and
conditions substantially similar to those of this Agreement.
2. Furthermore, Receiving Party hereby undertakes:
(a) not to use the BELL Proprietary Information for any purposes other
than as may be necessary in order to perform the Consulting
Services; furthermore, Receiving Party undertakes not to use outside
of the scope of the Consulting Services any knowledge, information
or expertise with respect to the BELL Proprietary Information
gained, learned or obtained as a result of its providing Consulting
Services;
(b) not to make the BELL Proprietary Information available to, and not
to permit its use by, any third party, directly or indirectly,
-3-
with the exception of its employees and CERTEN as permitted in
accordance with Section 1;
(c) not to sell, grant or in any other way allow any third party to use
the BELL Proprietary Information;
(d) not to use the BELL Proprietary Information received by Receiving
Party in connection with the Consulting Services in any manner
whatsoever except as expressly permitted hereunder, including in
competing with BELL;
3. Any Receiving Party personnel who provide the Consulting Services and who
receive, or are otherwise granted access to, the BELL Proprietary
Information during the course of providing the Consulting Services, shall
be listed in an annex to this Agreement, which shall be updated by the
parties as required from time to time.
4. Upon the termination and/or expiration of this Agreement for any reason
and/or upon the conclusion of the Consulting Services and/or at the
request of BELL, Receiving Party shall:
(a) return to BELL any document or other material in tangible form in
its possession being part of the BELL Proprietary Information;
and/or
(b) destroy any document or other material in tangible form that
contains the BELL Proprietary Information together with proprietary
information of CERTEN, and confirm such destruction in writing to
BELL.
5. Disclosure of the BELL Proprietary Information to Receiving Party may be
made in writing, in any tangible form, electronically or orally, by BELL.
6. Disclosure of the BELL Proprietary Information to Receiving Party shall in
no way serve to create, on the part of Receiving Party, any proprietary
right in, the BELL Proprietary Information or in any other proprietary
product, trade ▇▇▇▇, copyright or other right of BELL or any affiliated
company. Furthermore, disclosure of the BELL Proprietary Information to
Receiving Party will only entitle Receiving Party to use such information
for purposes of providing the Consulting Services as provided hereunder.
7. Any use by Receiving Party of the BELL Proprietary Information permitted
under this Agreement is conditioned upon Receiving Party first taking the
safeguards and measures required to secure the confidentiality of such
information. Without limiting the generality of the foregoing, Receiving
Party shall draw to the attention of its employees, who shall have access
to the BELL Proprietary Information, all the obligations contained in this
Agreement.
8. The confidentiality obligations of Receiving Party regarding the BELL
Proprietary
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Information shall not apply to such information which Receiving Party can
prove:
(a) becomes public domain without fault on the part of Receiving Party;
(b) is lawfully and on a non-confidential basis obtained by Receiving
Party from any source other than BELL, a BCH Company and CERTEN,
free of any obligation to keep it confidential;
(c) by documentary and competent evidence was previously known to
Receiving Party without an obligation to keep it confidential;
(d) is expressly released in writing from such obligations by BELL; or
(e) is required to be disclosed pursuant to law, regulation, judicial or
administrative order or request by a governmental or other entity
authorized by law to make such request; provided, however, that
Receiving Party first notifies BELL to enable it to seek relief from
such requirement, and renders reasonable assistance requested by
BELL in connection therewith.
9. This Agreement shall be in full force and effect for a period commencing
on the date first stated above and ending either four (4) years after the
conclusion of the Consulting Services referred to herein or seven (7)
years from the date first stated above, whichever occurs later. However,
the provisions of Sections 2 and 6 shall survive the termination or
expiration of this Agreement for any reason.
10. In the event that Receiving Party discloses, disseminates, releases or
uses any part of BELL Proprietary Information, except as provided for in
this Agreement, such disclosure, dissemination, release or use, or the
threat thereof, shall be deemed to be a material breach of this Agreement.
In the event of any material breach of this Agreement by Receiving Party
(including but not limited to the foregoing), Receiving Party, upon demand
from BELL OR CERTEN, shall immediately discontinue access to the BELL
Proprietary Information and immediately return to BELL all BELL
Proprietary Information, including any copies thereof. In the event that a
copy of any part of the BELL Proprietary Information cannot be returned as
a result of physical impossibility, such copy shall be promptly destroyed
and such destruction shall be certified in writing to BELL by Receiving
Party. The provisions of this paragraph are in addition to any other legal
or equitable rights and remedies that BELL may have.
11. (a) Receiving Party acknowledges that a breach of this Agreement may cause
BELL and/or CERTEN extensive and irreparable harm and damage, and agrees
that BELL and/or CERTEN shall be entitled to specific performance and
injunctive relief or other equitable relief to prevent use or disclosure
of the BELL Proprietary Information not authorized by this Agreement, in
addition to any other remedy available to BELL and/or CERTEN under
applicable law.
-5-
(b) Furthermore, Receiving Party hereby acknowledges that any breach of
this Agreement may result in the termination of its agreement to provide
the Consulting Services to CERTEN as a result of CERTEN's activities to
protect its rights under this Agreement, and agrees that it shall have no
recourse or claim of action against BELL and/or CERTEN based upon or in
connection with such activities.
12. This Agreement constitutes the entire Agreement between the parties and
supersedes any prior or contemporaneous oral or written representation
with regard to the subject matter hereof. This Agreement may not be
modified except by a written instrument signed by both parties.
13. If, however, any provision of this Agreement is determined to be invalid
or unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement, but rather the entire
Agreement shall be construed as if not containing the particular invalid
or unenforceable provision, and the rights and obligations of the parties
shall be construed and enforced accordingly. In addition, the parties
hereby agree to cooperate with each other to replace the invalid or
unenforceable provision with a valid and enforceable provision which will
achieve the same result (to the maximum legal extent) as the provision
determined to be invalid or unenforceable.
14. The validity, performance, construction and effect of this Agreement shall
be governed by the laws of the Province of
Ontario (without regard to its
rules on conflicts of laws) and the laws of Canada applicable therein.
15. Neither BELL nor CERTEN makes any representation or warranty as to the
accuracy or completeness of BELL Proprietary Information. Receiving Party
agrees that neither BELL nor CERTEN will have any liability to Receiving
Party resulting from any use of BELL Proprietary Information by Receiving
Party.
16. This Agreement may not be assigned by Receiving Party, in whole or in
part, without BELL AND CERTEN prior written consent. Assignment shall not
relieve Receiving Party of its obligations hereunder.
17. A term or condition of this Agreement can be waived or modified only by
written consent of both parties. No failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege
hereunder.
18. No single or partial exercise of any right or remedy under this Agreement
shall preclude any other or further exercise of any other right or remedy
in this Agreement or as provided at law or in equity. Rights and remedies
provided in this Agreement are cumulative and not exclusive of any right
or remedy provided at law or in equity.
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19. This Agreement may only be amended by a written agreement duly executed by
authorized representatives of the parties.
20. Any notice, demand or other communication which under the terms of this
Agreement or under any statute must or may be given or made by any of the
parties hereto shall be in writing and shall be given or made, all in
readable form to the recipient, by hand delivery, telegram, tested telex,
confirmed facsimile, electronic mail or similar communication or by
certified or registered mail addressed to the respective Parties as
follows:
If to Certen, to:
CERTEN INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇
If to Bell, to:
▇▇▇▇ CANADA
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Group President-Systems and Technology
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇
and to:
▇▇▇▇ CANADA
1000 rue de La Gauchetiere ouest
Suite 4100
Montreal, Quebec
H3B 5H8
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Legal Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇
if to Receiving Party, to:
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[ - ]
Such notice, demand or communication shall be deemed to have been given or made
when delivered in person or when received by confirmed telegram, facsimile, or
other similar communication or five (5) Business Days after having been
deposited, postage prepaid certified or registered mail in the Canada or US
mail, as the case may be. Any notice, demand or communication to a person other
than the persons set forth in this Section shall be null and void and shall not
be considered sufficient notice to bind the receiving Party. The above addresses
may be changed at any time by giving prior written notice as above provided.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first stated above.
__________________________ CERTEN INC.
("Receiving Party")
By _______________ By: _______________
Name: _______________ Name: _______________
Title:_______________ Title:_______________
Date: _______________ Date: _______________
▇▇▇▇ CANADA
By: _______________
Name: _______________
Title:_______________
Date: _______________
FINAL
EXHIBIT R
REQUIRED CONSENTS
PARTIES AGREEMENT CONSENT / NOTICE REQUIRED
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Exhibit V
TRANSITION AGREEMENT
THIS AGREEMENT made as of the 28th day of May, 2003.
BETWEEN:
▇▇▇▇ CANADA, a corporation incorporated pursuant
to the laws of Canada ("▇▇▇▇")
- and -
CERTEN INC., a corporation incorporated pursuant
to the laws of Canada ("CERTEN")
RECITALS:
1. WHEREAS Certen and Bell entered into a Master Outsourcing Services Agreement
dated as of January 26, 2001 whereby Certen agreed to provide to Bell and
certain other companies related to Bell certain services pertaining to their
billing, payment process and customer care functions, as amended and restated by
the Amended and Restated Master Outsourcing Agreement made between Bell and
Certen as of April 26, 2001;
2. AND WHEREAS it is a condition of the Share Purchase Closing (as defined
hereinafter) that Certen and Bell will have entered into the Further Amended and
Restated MOSA (as de fined hereinafter), pursuant to which, inter alia, Bell
will agree to perform the Oversight Functions in connection with Certen's
provision to Bell of the Services (as such terms are defined in the Further
Amended and Restated MOSA);
3. AND WHEREAS in connection with the performance by Bell of the Oversight
Functions, Bell has agreed to make offers of employment to the Affected
Employees (as de fined hereinafter) and to assume responsibility for the
Contractors (as defined hereinafter) and Certen has agreed to transfer to Bell
the Independent Contractors Agreements and certain assets used by the Affected
Employees and the Contractors in the performance of their functions and
responsibilities, all in accordance with the terms and conditions set out
herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the parties
hereby agree as follows:
ARTICLE 1
1. INTERPRETATION.
1.1. DEFINITIONS.
In this Agreement, the following terms shall have the meanings set
out below unless; the context requires otherwise:
(a) "[**]" has the meaning set forth in Section 4.5(j).
(b) "AFFECTED EMPLOYEES" means the employees of Certen listed in
Schedule 4.5(o) hereto .
(c) "AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such Person or
one or more of the other Affiliates of that Person (or a
combination thereof). For purposes of this definition, a
Person shall control another Person if the first Person (i)
owns, beneficially or of record, more the fifty percent (50%)
of the voting securities of the other Person, (ii) has the
ability to elect a majority of the directors of the other
Person. For purposes of this definition, "Person" does not
include an individual, ▇▇▇▇'▇ Affiliates shall be deemed to
include all BCE Inc. Affiliates and Certen's Affiliates shall
be deemed to include all Affiliates of Amdocs Limited;
(d) "AGREEMENT" means this Agreement, including the Schedules to
this Agreement, as it or they may be amended or supplemented
from time to time, and the expressions "HEREOF", "HEREIN",
"HERETO", "HEREUNDER", "HEREBY" and similar expressions refer
to this Agreement and not to any particular Section or other
portion of this Agreement.
(e) "AMDOCS" means Amdocs Holdings ULC.
(f) "APPLICABLE LAW" means, with respect to any Person, property,
transaction, event or other matter, any Law relating or
applicable to such Person, property, transaction, event or
other matter. Applicable Law also includes, where appropriate,
any interpretation of the Law (or any part) by any Person
having jurisdiction over it, or charged with its
administration or interpretation
(g) "ASSET TRANSFER RATIO" means the ratio of the [**] held by
Certen's Pension Plan plus any cash balances and accrued or
receivable [**] to the sum of the amount determined under
Section 4.5(e) and the higher of the [**] or the [**] of the
pension, deferred pensions, ancillary benefits or pension
benefits for which Certen has retained responsibility.
(h) "ASSUMED CONTRACTUAL LIABILITIES" means the obligations
accruing from and after the date hereof under the Contracts.
(i) "BELL BENEFIT PLANS" has the meaning set forth in Section 4.5.
(j) "BELL PENSION PLAN" has the meaning set forth in Section 4.5.
(k) "BUSINESS DAY" means any day except Saturday, Sunday or any
day on which banks are generally not open for business in the
cities of Montreal or Toronto.
(l) "CANADIAN DOLLARS" means the lawful currency of Canada.
(m) "CERTEN BENEFIT PLANS" has the meaning set forth in Section
4.5.
(n) "CERTEN PENSION PLAN" has the meaning set forth in Section
4.5.
(o) "CONTRACTORS" means those independent contractors listed in
Schedule 4.6(o).
(p) "CONTRACTS" means the contacts, leases and agreements to be
listed in a Schedule to be prepared by Bell and Certen, acting
reasonably, and approved by Amdocs, acting reasonably, prior
to the Time of Transfer pursuant to Section 2.1(a) and which
shall be attached hereto as Schedule 2.1(a).
(q) "FURTHER AMENDED AND RESTATED MOSA" means the Further Amended
and Restated Master Outsourcing Services Agreement to be
entered Into between Bell and Certen.
(r) "GOING CONCERN PENSION LIABILITIES" means the going concern
liabilities of the Certen Pension Plan in respect of the
Transferred Employees determined as of the Time of Transfer in
accordance with Section 4.5.
(s) "INCLUDING" means "including without limitation", and
"includes" means "includes without limitation".
(t) "INDEPENDENT CONTRACTOR AGREEMENTS" means the contacts between
Certen and the Contractors.
(u) "LAW" means any law, rule, statute, regulation, order,
judgment, decree, treaty or other requirement having the force
of law.
(v) "LIEN" means any lien, mortgage, charge, hypothec, pledge,
security interest, prior assignment, option, warrant, lease,
sublease, right to possession, encumbrance, claim, right or
restriction which affects, by way of a conflicting ownership
interest or otherwise, the right, title or interest in or to
any particular property.
(w) "PARTY" means a party to this Agreement and any reference to a
Party includes its successors and permitted assigns; and
"Parties", means every Party.
(x) "[**]"' has the meaning set forth in Section 4.5.
(y) "PERSON" is to be broadly interpreted and includes an
individual, a corporation, a partnership, a trust, an
unincorporated organization, the government of a country or
any political subdivision thereof, or any agency or department
of any such government, and the executors, administrators or
other legal representatives of an individual in such capacity.
(z) "PURCHASE PRICE" has the meaning given in Section 2.2.
(aa) "[**]" has the meaning set forth in Section 4.5.
(bb) "SHARE PURCHASE AGREEMENT" means the share purchase agreement
dated as of May 28, 2003 between Amdocs Holdings ULC and Bell.
(cc) "SHARE PURCHASE CLOSING" means the closing of the purchase and
sale of the shares of Certen pursuant to the Share Purchase
Agreement.
(dd) "SOLVENCY PENSION LIABILITIES" means the solvency liabilities
of the Certen Pension Plan in respect of the Transferred
Employees determined as of the Time of Transfer in accordance
with Section 4.5.
(ee) "TIME OF TRANSFER" has the meaning set forth in Section
2.1(a).
(ff) "TRANSFER TAXES" means all federal or provincial taxes,
imposts, levies, charges. fees and similar charges, including,
without limitation, goods and services. harmonized sales,
Quebec sales, retail sales, social services, education and
health, and any other sales, use, value added, business
transfer, land transfer and simile. taxes, imposts, levies and
charges, and excise tax, customs and excise duties and similar
imposts, levies, fees and charges. For greater certainty,
Transfer Taxes does not include any federal, provincial,
municipal or local income, capital or withholding taxes.
(gg) "TRANSFERRED ASSETS" means:
(i) the furniture, telephones and office equipment of Certen
which are used by the Transferred Persons in their
workstations in connection with the performance by the
Transferred Persons of the Oversight Functions (as such
term is defined in the Further Amended and Restated
MOSA) or such other functions as such Transferred
Persons may have performed as employees of Certen
immediately prior to the Time of Transfer, Including the
assets listed in a Schedule to be prepared by Bell and
Certen, acting reasonably, and approved by Amdocs,
acting reasonably, prior to the Time of Transfer and
which shall be attached hereto as Schedule 2.1(a);
(ii) the Contracts; and
(iii) the right to use and exploit as required for the
Oversight Functions: (i) data files or other information
stored in the Transferred Assets, and (ii) any
information concerning processes, know how or other
matters in the knowledge of the Affected Employees
and/or Contractors; all only to the extent previously
used by the Transferred Persons in the performance of
the Oversight Functions and required for the performance
of the Oversight Functions following the Time of
Transfer and subject to Section 16 of the Further
Amended and Restated MOSA regarding confidentiality;
(It is acknowledged that the Independent Contractor
Agreements will also, not as part of the Transferred
Assets, be transferred by Certen to Bell in accordance
with the provisions of Article 4); and
(hh) "TRANSFERRED EMPLOYEES" means the Affected Employees who are
actually employed by Bell pursuant to Section 4.1.
(ii) "TRANSFERRED PERSONS" means the Transferred Employees and the
Contractors whose contracts are actually assumed by Bell
pursuant to Section 4.1, collectively.
(jj) "TRANSITIONAL PERIOD" has the meaning set forth in Section
4.5.
1.2. HEADINGS AND TABLE OF CONTENTS.
The division of this Agreement into Articles and Sections, the
insertion of headings, and the provision of any table of contents
are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
1.3. NUMBER AND -GENDER.
Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing gender include
all genders.
1.4. BUSINESS DAYS.
If any payment is required to be made or other action is required to
be taken pursuant to this Agreement on a day which is not a Business
Day, then such payment or action shall be made or taken on the next
Business Day.
1.5. CURRENCY AND PAYMENT OBLIGATIONS.
Except as otherwise expressly provided in this Agreement:
(a) all dollar amounts referred to in this Agreement are stated in
Canadian Dollars;
(b) any payment contemplated by this Agreement shall be made by
cash, certified cheque or any other method that provides
immediately available funds; and
(c) except in the case of any payment due on the date hereof any
payment due on a particular day must be received end available
not later than 2:00 p.m. (Toronto time) on the due date and
any payment made after that time shall be deemed to have been
made and received on the next Business Day.
1.6. CALCULATION OF INTEREST.
In calculating interest payable under this Agreement for any period
of time, the first day of such period shall be included and the
last day of such period shall be excluded.
1.7. STATUTE REFERENCES.
Any reference in this Agreement to any statute or any section
thereof shall, Guess otherwise expressly stated, be deemed to be a
reference to such statute or section as amended, restated or
re-enacted from time to time.
1.8. SECTION AND SCHEDULE REFERENCES.
Unless the context requires otherwise, references in this Agreement
to Sections or Schedules are to Sections or Schedules of this
Agreement. The Schedules to this Agreement are as follows:
SCHEDULES
2.1(a) List of Transferred Assets (including Contracts)
2.1(b) List of Shared Assets
2.6 List of Subleases
4.5(e) Actuarial Assumptions and Processes
4.5(o) List of Affected Employees and Independent Contractors
ARTICLE 2
2. TRANSFER OF ASSETS
2.1. TRANSFER OF TRANSFERRED ASSETS.
Subject to the provisions of this Agreement:
(a) Certen agrees to convey, transfer and assign to ▇▇▇▇ and ▇▇▇▇
agrees to acquire from Certen, immediately prior to the Share
Purchase Closing (the "TIME OF TRANSFER") all of the right,
title and interest of Certen in, to and under the: Transferred
Assets on an "as is" basis; and
(b) At the Time of Transfer, Certen agrees to ▇▇▇▇▇ ▇▇▇▇ the right
to use the office: equipment and furniture (including
photocopiers, scanners and printers) of Certen which are, at
the Time of Transfer, used by the Transferred Employees and
the: Contractors in common with other employees of Certen (the
"SHARED ASSETS"). ▇▇▇▇ and Certen agree to prepare a list of
the Shared Assets which will be approved by Amdocs between the
date hereof and the Closing to be attached to this Agreement
as Schedule 2.1(b).
(c) At the Time of Transfer, with respect to any third party
software licenses which are installed on the Transferred
Assets and which are off-the-shelf third party software
licenses or which may be used by the Transferred Persons in
their performance of the Oversight Functions and that are held
solely by Certen and not by ▇▇▇▇, Certen shall ▇▇▇▇▇ ▇▇▇▇, to
the extent possible under such tilted party licenses, a right
to use such third party licenses; provided that Certen shall
not have to bear any additional cost due to the grant to ▇▇▇▇
of such right to use.
If the Share Purchase Closing does not occur by October 1, 2003,
then this Agreement shall automatically terminate with no liability
on the part of either Party and ▇▇▇▇ shall not hire any of the
Affected Employees or Contractors and the transfer of the
Transferred Assets, Affected Employees and Contractors will not
occur.
2.2. PURCHASE PRICE.
The purchase price payable to Certen at the Time of Transfer for the
Transferred Assets (the "PURCHASE PRICE") shall be equal to the fair
market value thereof which the Parties agree is an amount equal to
the sum of $[**].
2.3. PAYMENT OF PURCHASE PRICE.
At the Time of Transfer, ▇▇▇▇ shall pay the Purchase Price to
Certen.
2.4. ALLOCATION OF PURCHASE PRICE.
The Purchase Price shall be allocated among the Transferred Assets
by province: in such manner as Certen and ▇▇▇▇ shall determine,
acting reasonably.
2.5. PAYMENT OF TAXES.
▇▇▇▇ shall be responsible for and pay all applicable Transfer Taxes
including any filing or recording fees payable in connection with
the transfers to ▇▇▇▇ contemplated pursuant to this Agreement,
including the transfers of the Transferred Assets and the
instruments of transfer provided for in this Agreement. Certen will
invoice ▇▇▇▇ separately in respect of any Transfer. Taxes
collectible by Certen pursuant to Applicable Law. ▇▇▇▇ agrees to pay
all such applicable Transfer Taxes to Certen or to the relevant
governmental authority in accordance with Applicable Law upon
receipt of the appropriate documentation from Certen.
2.6. DELIVERY OF TRANSFERRED ASSETS.
At the Time of Transfer, Certen shall (i) execute and deliver to
▇▇▇▇ all such assignments, transfers, instruments, deeds, consents
and other documents as shall be necessary to effectively transfer to
▇▇▇▇ all of Certen's right, title and interest in, to and under, or
in respect of. the Transferred Assets in a form which is acceptable
to the Parties, acting reasonably; and (ii) deliver to ▇▇▇▇
possession of, and title to, the Transferred Assets.
2.7. SUBLEASED SPACE.
Certen and ▇▇▇▇ acknowledge and agree that the Affected Employees
and the Contractors occupy premises which are subleased by ▇▇▇▇ to
Certen pursuant to the subleases between ▇▇▇▇ and Certen (the
"SUBLEASES"). As soon as practicable following the Time of
Transfer, the Parties agree to make such amendments, effective as
of the Time of Transfer, to the Subleases and to obtain all
required consents thereto so as to remove therefrom the space
occupied by the Transferred Persons and to reduce rental payments
under the Sublease accordingly.
2.8. NON-TRANSFERABLE AND NON-ASSIGNABLE TRANSFERRED ASSETS.
To the extent that any of the Transferred Assets transferred to ▇▇▇▇
pursuant to the terms hereof or any claim, right or benefit arising
under or resulting from such Transferred Asserts (collectively, the
"RIGHTS") is not capable of being transferred without the approval,
consent or waiver of any third Person, or if the transfer of a Right
would constitute a breach of any obligation under, or a violation
of, any Applicable Law unless the approval, consent or waiver of
such third Person is obtained, then this Agreement shall not
constitute an agreement to transfer such Rights unless and until
such approval, consent or waiver has been obtained. After the
execution and delivery of this Agreement and until all such Rights
are transferred to ▇▇▇▇, Certen shall:
(a) maintain its existence and hold the Rights in trust for ▇▇▇▇;
(b) comply with the terms and provisions of the Rights as agent
for the ▇▇▇▇ at ▇▇▇▇'▇ cost and for the ▇▇▇▇'▇ benefit;
(c) cooperate with ▇▇▇▇ in any reasonable and lawful arrangements
designed to provide the benefits of such Rights to ▇▇▇▇; and
(d) enforce, at the request of ▇▇▇▇ and at the expense and for the
account of ▇▇▇▇, any rights of Certen arising from such Rights
against any third Person, including the right to elect to
terminate any such rights in accordance with the terms of such
rights upon the written direction of ▇▇▇▇.
In order that the fall value of the Rights may be realized for the
benefit of ▇▇▇▇, Certen shall, at the :request and expense and under
the direction of ▇▇▇▇, in the name of Certen or otherwise as ▇▇▇▇
may specify, take all such action and do or cause to be done all
such things as are, in the opinion of ▇▇▇▇, necessary or proper in
order that the obligations of Certen under such Rights may be
performed in such manner that the value of such Rights is preserved
and enures to the benefit of Cell, and that any moneys due and
payable and to become due and payable to ▇▇▇▇ in and under the
Rights are received by ▇▇▇▇. Certen shall promptly pay to ▇▇▇▇ all
moneys collected by or paid to Certen in respect of every such
Right. ▇▇▇▇ shall indemnify and hold Certen harmless from and
against any claim or liability under or in respect of such Rights
arising because of any action of Certen taken pursuant to this
Section.
2.9. ASSUMED CONTRACTUAL LIABILITIES.
Subject to the other provisions of this Agreement, ▇▇▇▇ shall, as of
the Time of Transfer, assume and agree to fulfill and perform, and
shall indemnify and save harmless Certen in respect of, the Assumed
Contractual Liabilities and agrees that the Transferred Assets are
▇▇▇▇'▇ responsibility commencing at the Time of Transfer. Subject to
the foregoing and except as otherwise provided in this Agreement,
▇▇▇▇ does not assume and shall not be responsible for any
liabilities, debts and obligations of Certen other than the Assumed
Contractual Liabilities. For greater certainty, Certen shall fulfill
and perform and indemnify and save harmless ▇▇▇▇ in respect of the
obligations accruing prior to the date hereof under the Contracts
and ▇▇▇▇ shall fulfill and perform and indemnify and save harmless
Certen in respect of the Assumed Contractual Liabilities.
2.10. WAIVER OF BULK SALES LEGISLATION.
▇▇▇▇ hereby waives compliance by Certen with respect to the bulk
sales legislation in jurisdictions where such provisions are
applicable to the transactions contemplated in this Agreement.
ARTICLE 3
3. REPRESENTATIONS, AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF CERTEN.
Certen covenants, represents and warrants to ▇▇▇▇ as follows:
(a) Incorporation and Power. Certen is a corporation duly
incorporated and validly subsisting and in good standing under
the laws of Canada. Certen has the corporate power and
authority and is qualified to own and dispose of the
Transferred Assets.
(b) Due Authorization. Certen has the corporate power, authority
and capacity to enter into this Agreement and all other
agreements and instruments to be executed by it as
contemplated by this Agreement and to carry out its
obligations under this Agreement and such other agreements and
instruments. The execution and delivery of this Agreement and
such other agreements and instruments and the completion of
the transactions contemplated by this Agreement and such other
agreements and instruments have been duly authorized by all
necessary corporate action on the part of Certen.
(c) Enforceability of Obligations. This Agreement constitutes a
valid and binding obligation of Certen enforceable against
Certen in accordance with its terms subject, however, to
limitations on enforcement imposed by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of the
Rights of creditors or others and to the extent that equitable
remedies such as specific performance and injunctions are only
available in the discretion of the court from winch they are
sought. Certen is not an insolvent person within the meaning
of the Bankruptcy
and Insolvency Act (Canada), and will not become an insolvent
person as a result of the execution and delivery of this
Agreement.
3.2. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇.
▇▇▇▇ represents and warrants to Certen as follows:
(a) Incorporation and Power. ▇▇▇▇ is a corporation duly
Incorporated under the laws of Canada and is duly organized,
validly subsisting and in good standing under such laws.
(b) Due Authorization. ▇▇▇▇ has all necessary corporate power,
authority and capacity to enter into this Agreement and all
other agreements and instruments to be executed by it as
contemplated by this Agreement and to carry out its
obligations under this Agreement and such other agreements and
instruments. The execution and delivery of this Agreement and
such other agreements and instruments and the completion of
the transactions contemplated by this Agreement and such other
agreements and instruments have been duly authorized by all
necessary corporate action on the part of ▇▇▇▇.
(c) Enforceability of Obligations. This Agreement
constitutes a valid and binding obligation of ▇▇▇▇
enforceable against ▇▇▇▇ in accordance with its terms
subject, however, to limitations on enforcement imposed
by bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of the rights of creditors or
others and to the extent that equitable remedies such as
specific performance and injunctions are only available
in the discretion of the court from which they are
sought.
3.3. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations and warranties of Certen contained in
Section 3.1 shall survive the execution and delivery of this
Agreement for a period of [**] from the Time of Transfer and,
notwithstanding the execution and delivery of this Agreement
and any inspection or inquiries made by or on behalf of
Certen, shall continue in full force and effect for the
benefit of ▇▇▇▇, after which time Certen shall be released
from all obligations in respect of such representations and
warranties except with respect to any Claims asserted by ▇▇▇▇
in writing (setting out in reasonable detail the nature of the
Claim and the appropriate amount thereof before the expiration
of such period.
(b) The representations and warranties of ▇▇▇▇ contained in
Section 3.2 shall survive the execution and delivery of this
Agreement for a period of [**] from the Time of Transfer and,
notwithstanding the execution and delivery of tins Agreement
and any inspection or inquiries made by or on behalf of ▇▇▇▇,
shall continue in full force and effect for the benefit of
Certen, after which time ▇▇▇▇ shall be released from all
obligations in respect of such
representations and warranties except with respect to any
Claims asserted by Certen in writing (setting out in
reasonable detail the nature of the Claim and the appropriate
amount thereof before the expiration of such period.
ARTICLE 4
4. AFFECTED EMPLOYEES AND BENEFIT PLANS
4.1. EFFECTED EMPLOYEES AND CONTRACTORS.
▇▇▇▇ shall make a written offer of employment with ▇▇▇▇ to each of
the Affected Employees employed by Certen with effect as of the Time
of Transfer. Such offers shall be on terms [**] with respect to
wages and salaries, and [**] as to benefits, [**] the offer is made.
The offers of employment made by ▇▇▇▇ to the Affected Employees
whose terms and conditions of employment are governed by a
collective agreement will comply with the collective agreement in
question. Subject to such offer being made by ▇▇▇▇ in accordance
with the terms set forth above, ▇▇▇▇ shall [**]. Certen shall render
[**] each Affected Employee to accept ▇▇▇▇'▇ offer of employment. In
addition, at the Time of Transfer, Certen will (i) to the extent
permitted by the terms thereof assign to ▇▇▇▇ all of its rights, and
▇▇▇▇ will assume Certen's obligations, under the Independent
Contractor Agreements and [**] shall concurrently send a letter to
each Contractor and to Certen confirming the assignment to ▇▇▇▇ by
Certen of the applicable Independent Contractor Agreement, and (ii)
in all other cases, cause the Contractors, to the extent permitted
by the terms of the Independent Contractor Agreements, to provide
their services to ▇▇▇▇ [**] as such services were provided to Certen
immediately before the Time of Transfer. Subject to Section 4.5,
▇▇▇▇ agrees to [**] ▇▇▇▇ [**] ▇▇▇▇ [**] Certen and including [**]
Certen [**].
4.2. COOPERATION.
(a) Certen and ▇▇▇▇ shall cooperate with each other in order to
ensure the orderly transition of the Affected Employees and
the Contractors,[**], as applicable.
(b) Certen and ▇▇▇▇ agree that ▇▇▇▇ shall have the right, within a
[**], to negotiate with Certen the Transfer from Certen to
▇▇▇▇ of additional employees where such employees have the
skill set required for ▇▇▇▇ to perform the [**] (as such term
is defined in the Further Amended and Restated MOSA), on such
terms as the Parties may agree and Certen and ▇▇▇▇ agree to
act reasonably in such negotiations; provided that if any such
employee is unwilling to transfer employment neither Party
shall be obligated hereunder nor shall either Party attempt to
influence such employee to accept such a Transfer.
(c) Certen and ▇▇▇▇ agree that Certen shall have the right, within
a [**], to negotiate with ▇▇▇▇ the transfer from ▇▇▇▇ to
Certen of employees where
such employees have the skill set required for Certen to
perform the [**] as defined in the Further Amended and
Restated MOSA, on such terms as the Parties may agree and
Certen and ▇▇▇▇ agree to act reasonably in such negotiations;
provided that if any such employee is unwilling to transfer
employment neither Party shall be obligated hereunder nor
shall such Party attempt to influence such employee to accept
such a transfer.
4.3. PERSONNEL RECORDS.
Subject to Applicable Law, Certen agrees to transfer to ▇▇▇▇ all
personnel records of the Transferred Employees on the Time of
Transfer. Certen shall be entitled to have access to those personnel
records after the Time of Transfer if and when required for all
matters related to prior employment with Certen, the whole subject
to the Applicable Law regulating such access. Subject to Applicable
Law, ▇▇▇▇ shall be entitled to have access to necessary personnel
records from and after the date of this Agreement. Subject to
Applicable Law and to the Independent Contractor Agreements, Certen
shall provide ▇▇▇▇ with all records of the Contractors, including
copies of all Independent Contractor Agreements.
4.4. EMPLOYEE LIABILITIES.
(1) ▇▇▇▇ covenants and agrees to assume as of the Time of
Transfer, and thereafter to pay, perform, discharge and fully
satisfy, the following employee liabilities, except as may be
otherwise provided in Section 4.5:
(a) all liabilities regarding employee expenses, salaries,
wages, commissions, vacation and holiday pay, bonuses,
workers' compensation levies, withholding deductions for
federal and provincial income taxes and other payroll
deductions including Canada Pension Plan and Employment
Insurance for the Transferred Employees incurred after
the Time of Transfer;
(b) all liabilities which become due and payable to
Transferred Employees after the Time of Transfer for
injury, disability, death or workers' compensation
relating to any Transferred Employee arising from or
related to employment by ▇▇▇▇ after the Time of
Transfer; and
(c) all liabilities for severance pay, notice of termination
of employment or pay in lieu of such notice, damages for
wrongful or unjust dismissal and any obligations in
connection therewith (statutory, contractual or at
common law) or other employee benefits or claims
relating to any Transferred Employee relating to any
termination of any Transferred Employees that occurs
after the Time of Transfer.
For farther clarity, ▇▇▇▇ agrees that it will bear the cost of any and all [**]
of any Transferred Employee that is terminated by ▇▇▇▇ following the Transfer of
such Transferred Employee to employment with ▇▇▇▇ [**].
(2) Certen covenants and agrees that it will be entirely
responsible for and pay, perform, discharge and fully satisfy
the following employee liabilities:
(a) all liabilities regarding employee expenses, salaries,
wages, commissions, holiday pay, bonuses, workers'
compensation levies, withholding deductions for federal
and provincial income taxes and other payroll deductions
including Canada Pension Plan and Employment Insurance
for the Transferred Employees payable prior to the Time
of Transfer;
(b) all liabilities which become due and payable to
Transferred Employees prior to the Time of Transfer for
injury, disability, death or workers' compensation
relating to any Transferred Employee arising from or
related to employment by Certen prior to the Time of
Transfer; and
(c) all liabilities for severance pay, notice of termination
of employment or pay in lieu of such notice, damages for
wrongful or unjust dismissal and any obligations in
connection therewith (statutory, contractual or at
common law) or other employee benefits or claims
relating to any Transferred Employee relating to any
termination of any Transferred Employees that occurred
prior to the Time of Transfer.
With respect to the payment of vacation pay, Certen covenants and
agrees that it will [**] Transferred Employees up to the Time of
Transfer, with the exception of vacation pay that has been banked by
Transferred Employees for the purposes of retirement.
4.5. PENSION AND OTHER BENEFIT PLANS.
The Parties covenant and agree as follows:
(a) Effective as of the Time of Transfer, the Transferred
Employees shall cease to participate in and accrue benefits
under the Certen Inc. Pension Plan (the "CERTEN PENSION
PLAN").
(b) Effective as and from the Time of Transfer, the Transferred
Employees shall participate in and accrue benefits under the
▇▇▇▇ Canada Pension Plan (the "▇▇▇▇ PENSION PLAN") in
accordance with and subject to the terms of the ▇▇▇▇ Pension
Plan.
(c) ▇▇▇▇ shall cause the ▇▇▇▇ Pension Plan to recognize, effective
as and from the Time of Transfer, years of employment of the
Transferred Employees with Certen or years of service credited
to the Transferred Employees under the Certen Pension Plan for
eligibility, vesting and locking-in purposes under the ▇▇▇▇
Pension Plan to the extent such service was recognized for
such purposes under the Certen Pension Plan.
(d) Subject to the completion of the pension asset Transfer
contemplated in this Section 4.5, ▇▇▇▇ shall cause the ▇▇▇▇
Pension Plan to provide defined benefit pension benefits to
the Transferred Employees with respect to their credited
service under the Certen Pension Plan up to the Time of
Transfer in accordance with [**] and for their period of
employment with ▇▇▇▇ following the Time of Transfer.
(e) Subject to Applicable Law, regulatory requirements and
necessary approvals, Certen shall take all such actions as may
be necessary (including making additional contributions to the
Certen Pension Plan) so as to transfer or cause to be
transferred from the pension fund of the Certen Pension Plan
to the pension fund of the ▇▇▇▇ Pension Plan an amount equal
to [**].
Such amount is referred to herein as the "[**]".
For the purposes of the above calculations, the Going Concern
Pension Liabilities and the Solvency Pension Liabilities shall be
determined using the actuarial methods, actuarial assumptions and
processes for selecting assumptions set out in Schedule 4.5(e).
All the calculations shall be performed by [**] and shall be subject
to review and shall be subject to review and agreement of [**]. If
[**] does not approve [**] calculations of either or both of the
Going Concern Pension Liabilities or the Solvency Pension
Liabilities, the final and binding determination shall he made by an
independent third party actuary acceptable to both Certen and ▇▇▇▇
based on the actuarial methods, assumptions and processes for
selecting assumptions contemplated above in this Section 4.5(e). The
cost of such fecal determination(s) shall be borne equally by Certen
and ▇▇▇▇.
The [**] shall be [**] (the "[**]").
(f) Notwithstanding the resolution of any judicial, arbitral or
other legal proceeding relating to ▇▇▇▇ or Certen, the Parties
agree and acknowledge that Certen has and shall continue to
have sole and exclusive responsibility for ensuring that the
Certen Pension Plan is funded in accordance with Applicable
Law, the terms of the Certen Pension Plan and any applicable
collective bargaining or other union agreement.
(g) As soon as practicable after the Time of Transfer, but in any
event [**] after the Time of Transfer, Certen shall initiate
the procedure for effecting the Transfer of the [**] to the
▇▇▇▇ Pension Plan. Following notification by Certen to ▇▇▇▇ of
the [**], ▇▇▇▇ will have [**] to review the determination and
notify Certen of any dispute in the determination of the [**].
(h) Certen shall be responsible for the preparation of such
notices and other regulatory filings as may be required in
accordance with Applicable Law, including the preparation of
the relevant actuarial reports in order to effect the transfer
of the [**]. These reports shall be completed as soon as
practicable following the Time of Transfer and a copy of these
reports, together with all relevant data and other information
as ▇▇▇▇ may reasonably request to review the determination of
the Going Concern Pension Liabilities and the Solvency Pension
Liabilities, shall be delivered to ▇▇▇▇ for its review and
approval pursuant to Section 4.5(e) and in any event prior to
their filing with the relevant regulatory authorities.
(i) Except as otherwise required by Applicable Law, Certen shall
not make, or promise to make, without the prior consent of
▇▇▇▇, any modification to the Certen Pension Plan between the
date hereof and the date of the actual transfer of the [**] if
such modifications would affect the Going Concern Pension
Liabilities or the Solvency Pension Liabilities, the benefits
of the Transferred Employees or the contributions with respect
to such benefits.
(j) Certen shall continue to administer the benefits of the
Transferred Employees under the Certen Pension Plan between
the Time of Transfer and the actual transfer of the [**] (the
("TRANSITIONAL PERIOD"). The [**] or the [**], as the case may
be shall be adjusted for benefits payments and other
disbursements during the Transitional Period, [**] and, except
as otherwise required by the relevant regulatory authority,
during the Transitional Period, [**], as the case may be, [**]
(the "[**]").
As soon as practicable following the date on which the
applicable regulatory authority approves the transfer provided
under Section 4.5(e), Certen shall cause the funding agent of
the Certen Pension Plan to transfer to the pension fund of the
▇▇▇▇ Pension Plan [**].
(k) Upon the completion of the Transfer contemplated above, the
Certen Pension Plan shall be completely discharged of all of
its obligations with respect to the defined benefit pension
benefits accrued by the Transferred Employees under the said
plan up to the Time of Transfer.
(l) Effective as of the Time of Transfer, the Transferred
Employees will cease to participate in and receive benefits
from Certen's [**] (the "CERTEN BENEFIT PLANS") and, without
derogating from Section 4.1, Bell will, subject to Section
4.5(m), enroll, and provide benefit coverage to, the
Transferred Employees in its [**] (the "BELL BENEFIT PLANS")
in accordance with and subject to the terms thereof.
(m) Bell [**] Bell Benefit Plans [**] Transferred Employees [**]
Certen Benefit Plans. Bell [**] by the Transferred Employees,
[**], under the Certen Benefit Plans [**] with the Bell
Benefit Plans. Bell [**] Transferred Employees [**] in
accordance with the terms of the Bell Benefit Plans and
Applicable Law.[**]Certen will [**] in accordance with the
terms of the Certen Benefit Plans and with Applicable Law.
For greater certainty, the date on which a benefit claim is
incurred or arises will be: (i) in the case of a death claim,
the date of death; (ii) in the
case of a disability claim, the date on which the event
causing the disability occurred; (iii) in the case of a claim
for extended health care benefits, including, without
limitation, dental and medical treatments, the date of
treatment; and (iv) in the case of a claim for drug or vision
care benefits, the date the prescription is filled.
(n) Bell will [**] from Bell [**] in accordance with the terms
thereof.
(o) Schedule 4.5(o) to this Agreement is a list of the Affected
Employees and a list of the Contractors setting forth their
names, addresses and compensation. It is acknowledged that
Schedule 4.5(o) is not attached hereto and a copy thereof has
been delivered to each of Bell and Certen.
ARTICLE 5
5. INDEMNIFICATION
5.1. INDEMNITY BY BELL.
Subject to Section 5.4, Bell shall indemnify and hold Certen, its
directors, officers, employees, agents, representatives and Certen's
Affiliates and their respective directors, officers, employees,
agents, representatives harmless in respect of any claim, demand,
action, cause of action, damage, loss, cost, liability or expense
(hereinafter referred to as a "CLAIM") which may be made or brought
against an Indemnified Party or which it may suffer or incur
directly or indirectly as a result of in respect of or arising out
of:
(1) any incorrectness in or breach of any representation or
warranty of Bell contained in this agreement or under any
other agreement, certificate or instrument executed and
delivered pursuant to this Agreement; or
(2) any breach of or any non-fulfillment of any covenant or
agreement on the part of Bell under this Agreement or under
any other agreement, certificate or instrument executed and
delivered pursuant to this Agreement.
5.2. INDEMNITY BY CERTEN.
Certen shall indemnify and hold Bell, its directors, officers,
employees, agents, representatives and ▇▇▇▇'▇ Affiliates and their
respective directors, officers and employees harmless in respect of
any Claire which may be made or brought against an Indemnified Party
or which it may suffer or incur directly or indirectly as a result
of, in respect of or arising out of:
(1) any breach or non-fulfillment of any covenant or agreement on
the part of Certen under this Agreement or under any other
agreement, certificate or instrument executed and delivered
pursuant to this Agreement;
(2) [**] percent ([**]%) of the amount of any Claim which ▇▇▇▇ may
suffer or incur as a result of non-compliance by Certen with
such bulk sales legislation as may be applicable to the
transactions contemplated by this Agreement; and
(3) any non-compliance by Certen with Section 6 of the Retail
Sales Tax Act (Ontario) as may be applicable to the
transactions contemplated by this Agreement. Notwithstanding
the foregoing, Certen's liability with respect to any Claim
arising hereunder shall not exceed the amount obtained by
multiplying the Purchase Price by [**]%.
5.3. LIMITATIONS.
Certen shall not shall indemnify and hold Bell, its directors,
officers, employees, agents, representatives and ▇▇▇▇'▇ Affiliates
and their respective directors, officers and employees harmless in
respect of any Claim which may be made or brought against an
Indemnified Party or which it may suffer or incur directly or
indirectly as a result of, in respect of or arising out of:
(1) any incorrectness in or breach of any representation or
warranty of Certen contained in this Agreement or under any
other agreement, certificate or instrument executed and
delivered pursuant to this Agreement; or
(2) any incorrectness in the list of Affected Employees and
Independent Contractors attached hereto as Schedule 4.1(o).
5.4. NOTICE OF CLAIM.
If an Indemnified Party becomes aware of a Claim in respect of which
indemnification is provided for pursuant to either of Section 5.1 or
5.2, as the case may be, the Indemnified Party shall promptly give
written notice of the Claim to the Indemnifying Party. Such notice
shall specify whether the Claim arises as a result of a claim by a
Person against the Indemnified Party (a "THIRD PARTY CLAIM") or
whether the Claim does not so arise (a "DIRECT CLAIM"), and shall
also specify with reasonable particularity (to the extent that the
information is available):
(a) the factual basis for the Claim; and
(b) the amount of the Claim, if known.
If, through the fault of the Indemnified Party after having
knowledge of the Claim, the Indemnifying Party does not receive
notice of any Claim in time effectively to contest the determination
of any liability susceptible of being contested, then the liability
of the Indemnifying Party to the Indemnified Party under this
Article shall be reduced by the amount of any losses incurred by the
Indemnifying Party resulting from the Indemnified Party's failure to
give such notice on a timely basis.
5.5. DIRECT CLAIMS.
In the case of a Direct Claim, the Indemnifying Party shall have
[**] from receipt of notice of the Claim within which to make such
investigation of the Claim as the Indemnifying Party considers
necessary or desirable. For the purpose of such investigation, the
Indemnified Party shall make available to the Indemnifying Party the
information relied upon by the Indemnified Party to substantiate the
Claim, together with all such other information as the Indemnifying
Party may reasonably request. If both parties agree at or before the
expiration of such [**] period (or any mutually agreed upon
extension thereof to the validity and amount of such Claim, the
Indemnifying Party shall immediately pay to the Indemnified Party
the full agreed upon amount of the Claim, failing which the matter
shall be referred to binding arbitration in such manner as the
parties may agree or shall be determined by a court of competent
jurisdiction.
5.6. THIRD PARTY CLAIMS.
In the case of a Third Party Claim, the Indemnifying Party shall
have the right, at its expense, to participate in or assume control
of the negotiation, settlement or defense of the Claim. If the
Indemnifying Party elects to assume such control, the Indemnifying
Party shall reimburse the Indemnified Party for all of the
Indemnified Party's out-of-pocket expenses incurred as a result of
such participation or assumption. The Indemnified Party shall have
the right to participate in the negotiation, settlement or defense
of such Third Party Claim and to retain counsel to act on its
behalf, provided that the fees and disbursements of such counsel
shall be paid by the Indemnified Party unless the Indemnifying Party
consents to the retention of such counsel at its expense or unless
the representation of both the Indemnifying Party and the
Indemnified Party by the same counsel would be inappropriate due to
the actual or potential differing interests between them (such as
the availability of different defenses). The Indemnified Party shall
cooperate with the Indemnifying Party so as to permit the
Indemnifying Party to conduct such negotiation, settlement and
defense and for this purpose shall preserve all relevant documents
in relation to the Third Party Claim, allow the Indemnifying Party
access on reasonable notice to inspect and take copies of all such
documents and require its personnel to provide such statements as
the Indemnifying Party may reasonably require and to attend and give
evidence at any trial or hearing in respect of the Third Party
Claim. If, having elected to assume control of the negotiation,
settlement or defense of the Third Party Claim, the Indemnifying
Party thereafter fails to conduct such negotiation, settlement or
defense with reasonable diligence, then the Indemnified Party shall
be entitled to assume such control and the Indemnifying Party shall
be bound by the results obtained by the Indemnified Party with
respect to such Third Party Claim.
5.7. SETTLEMENT OF THIRD PARTY CLAIMS.
If the Indemnifying Party fails to assume control of the defense of
any Third Party Claim, the Indemnified Party shall have the
exclusive right to contest, settle or pay the amount claimed.
Whether or not the Indemnifying Party assumes control of the
negotiation, settlement or defense of any Third Party
Claim, the Indemnifying Party shall not settle any Third Party Claim
without the written consent of the Indemnified Party, which consent
shall not be unreasonably withheld or delayed; provided, however,
that the liability of the Indemnifying Party shall be limited to the
proposed settlement amount if it is determined that the final
settlement or judgment is less favorable taken as a whole than the
proposed settlement taken as a whole and any such consent to such
proposed settlement.
5.8. INTEREST ON CLAIMS.
The amount of any Claim submitted under Section 5.1 or Section 5.2
as damages or by way of indemnification shall bear interest from and
including the date any Indemnified Party is required to make payment
in respect thereof at the Prime Rate calculated from and including
such date to but excluding the date reimbursement of such Claim by
the Indemnifying Party is made, and the amount of such interest
shall be deemed to be part of such Claim.
ARTICLE 6
6. GENERAL
6.1. PUBLIC NOTICES.
All public notices to third parties and all other publicity
concerning the matters contemplated by this Agreement shall be
jointly planned and co-ordinated by the Parties and no Party shall
act unilaterally in this regard without the prior approval of the
other Parties, except where the Party making such notice is required
to do so by law or by the applicable regulations or policies of any
regulatory agency of competent jurisdiction or any stock exchange,
provided that such party will use reasonable efforts to notify the
other Party in advance of such disclosure so as to permit the other
Parties to seek a protective order or otherwise contest such
disclosure.
6.2. EXPENSES.
Each Party to this Agreement shall pay its respective legal,
accounting and other professional advisory fees, costs and expenses
incurred in connection with the negotiation, preparation or
execution of this Agreement and all documents and instruments
executed or delivered pursuant to this Agreement.
6.3. FURTHER ASSURANCES.
The Parties shall do all such things and actions and provide all
such reasonable assurances as may be required to consummate the
transactions contemplated by this Agreement, and each Party shall
provide such further documents or instruments required by any other
party as may be reasonably necessary or desirable to effect the
purpose of this Agreement and carry out its provisions.
6.4. ASSIGNMENT AND ENUREMENT.
Neither this Agreement nor any benefits or duties accruing under
this Agreement shall be assignable by any Party without the prior
written consent of the other Party; provided that each of the
Parties may assign this Agreement after the Time of Transfer to one
of its Affiliates without the prior written consent of the other
Party, provided that the assigning Party shall remain liable for,
and shall not be released from, its obligations under this Agreement
and any documents delivered pursuant to this Agreement. Subject to
the foregoing, this Agreement shall enure to the benefit of and be
binding upon the Parties and their respective successors (including
any successor by reason of amalgamation of any Party) and permitted
assigns.
6.5. ENTIRE AGREEMENT
This Agreement, together with any Schedules and Exhibits attached
hereto and any documents delivered pursuant to this Agreement,
constitutes the entire agreement between the Parties with respect to
the matters herein and supersedes all prior agreements,
understandings, negotiations, discussions representations, promises
or statements, whether oral or written relating to the subject
matter hereof. This Agreement shall not be amended, altered or
qualified except by written agreement signed by all of the Parties.
6.6. WAIVER.
Except as otherwise expressly set out herein, no waiver of any
provision of this Agreement shall be binding unless it is in
writing. No indulgence or forbearance by a Party shall constitute a
waiver of such Party's right to insist on performance in full and in
a timely manner of all covenants in this Agreement. Waiver of any
provision shall not be deemed to waive the same provision
thereafter, or any other provision of this Agreement at any time.
6.7. NOTICES.
All payments and communications which may be or are required to be
given by any party to any other Party, shall be in writing and (i)
delivered personally, (ii) sent by prepaid courier service or mail,
or (iii) sent by prepaid telecopier or other similar means of
electronic communication to the Parties at their following
respective addresses:
For Bell:
▇▇▇▇ Canada
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
MEG 2E1
Attention: Vice President, IT Practices and Outsourcing
Telecopier:
with a copy to:
▇▇▇▇ Canada
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
MEG 2E1
Attention: Vice President and General Counsel
Telecopier:
For Certen:
▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: Chief Executive Officer
Telecopier:
Any such notice so given shall be deemed conclusively to have been
given and received when so personally delivered or delivered, by
courier or on the day on which termination is confirmed if sent by
telecopier or other electronic communication or on the fifth day
following the sending thereof by mail. Any party may from time to
time change its address hereinbefore set forth by notice to the
other parties in accordance with this Section.
6.8. SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such prohibition or enforceability and shall be
severed from the balance of this Agreement, all without affecting
the remaining provisions of this Agreement or affecting the validity
or enforceability of such provisions in any other jurisdiction.
6.9. EXECUTION BY FACSIMILE.
The signature of any of the Parties hereto may be evidenced by a
facsimile copy of this Agreement bearing such signature.
6.10. COUNTERPARTS.
This Agreement may be signed in one or more counterparts, each of
which so signed shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument.
Notwithstanding the date of execution of any counterpart, each
counterpart shall be deemed to bear the effective date set forth
below.
6.11. GOVERNING LAW.
The construction, interpretation and performance of this Agreement
and all transactions under it shall be governed by the laws of the
Province of Ontario
(without regard to its rules on conflicts of laws) and the laws of
Canada applicable therein. For the purposes of and solely where
court action is expressly permitted under this Agreement subject to
Section 6.12 below, Certen, and Bell each submits to the exclusive
jurisdiction of the courts of the Province of Ontario .
6.12. DISPUTE RESOLUTION.
The provisions of Section 18 (Dispute Resolution) of the Further
Amended and Restated MOSA shall apply, mutatis mutandis, to any
dispute, claim or controversy arising under this Agreement.
6.13. CONSENT
Where a provision of this Agreement requires an approval or consent
by a Party to this Agreement and written notification of such
approval or consent is not delivered within. the applicable time in
accordance with this Agreement, then the Party whose consent or
approval is required shall be conclusively deemed to have withheld
its approval or consent.
6.14. LANGUAGE.
The Parties confirm that it is their wish that this Agreement, as
well as any other documents relating to this Agreement, including
notices, schedules and authorizations, have been and shall be drawn
up in the English language only. Les Parties aux presentes
confirment leur volonte que cette convention, de meme que tous les
documents, y compels tous avis, decules et autorisations s'y
rattachant, soient rediges en anglais seulement.
6.15. TENDER OF DOCUMENTS AND PAYMENT OF MONEY.
Any tender of documents or money under this Agreement may be made
upon the Parties or their respective counsel and money shall be
tendered by wire transfer or other method that provides immediately
available funds.
6.16. NON-MERGER.
Each Party agrees that all provisions of this Agreement, other than
the representations and warranties contained in Article 3 hereof
(which shall be subject to the special arrangements provided in such
Article) shall forever survive the execution, delivery and
performance of this Agreement, Closing and the execution, delivery
and performance of any and all documents delivered in connection
with this Agreement.
- Signature Pages to follow -
IN WITNESS WHEREOF the Parties have hereunto duly executed this Agreement
on the date first above written.
▇▇▇▇ CANADA
Per:
--------------------------------
Authorized Signing Officer
CERTEN INC.
Per:
--------------------------------
Authorized Signing Officer
SCHEDULE 2.1(A)
LIST OF TRANSFERRED ASSETS (INCLUDING CONTRACTS)
To be attached prior to the Time of Transfer.
SCHEDULE 2.1(B)
LIST OF SHARED ASSETS
To be attached prior to the Time of Transfer.
SCHEDULE 2.6
LIST OF SUBLEASES
LOCATION
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[**]
[**]
[**]
[**]
[**]
[**]
SCHEDULE 4.6(E)
ACTUARIAL METHODS, ACTUARIAL ASSUMPTIONS AND PROCESSES FOR SELECTING ASSUMPTIONS
Actuarial Cost Method
[**]
FINAL
AMENDMENT TO TRANSITION AGREEMENT
WHEREAS the parties hereto (the "PARTIES") have entered into a
Transition Agreement dated as of May 28, 2003 (the "AGREEMENT");
AND WHEREAS the Parties wish to hereby amend the Agreement;
NOW THEREFORE in consideration of the mutual agreements hereinafter
contained and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged), the Parties agree as follows:
1. Schedule 2.1(a) (List of Transferred Assets (including Contracts))
of the Agreement is hereby amended by deleting the Schedule 2.1(a) attached to
the Agreement and replacing it with the attached form of Schedule 2.1(a) (List
of Transferred Assets (including Contracts)).
2. Schedule 2.1(b) (List of Shared Assets) of the Agreement is hereby
amended by deleting Schedule 2.6 attached to the Agreement and replacing it with
the attached form of Schedule 2.1(b) (List of Shared Assets).
3. Schedule 2.6 (List of Subleases) of the Agreement is hereby amended
by deleting Schedule 2.6 attached to the Agreement and replacing it with the
attached form of Schedule 2.6 (List of Subleases).
4. Pursuant to Section 4.5(o) of the Agreement, the Parties acknowledge
that Schedule 4.5(o) (List of Affected Employees and Contractors) was not
attached to the Agreement and that a copy thereof had been delivered to each of
the Parties. The Parties acknowledge and agree that (i) Schedule 4.5(o) (List of
Affected Employees and Contractors) that was previously delivered to each of the
Parties has been amended and the amended Schedule 4.5(o) is attached hereto; and
(ii) the original Schedule 4.5(o) is replaced by the amended form of Schedule
4.5(o) attached hereto.
5. Certen and Bell acknowledge and agree that Certen and Bell [**].
Certen's [**]. At the request of Bell, in order to [**], Certen [**] by Bell,
[**]. Bell shall [**] Certen [**] by Certen on [**] Without adding to or
detracting from ▇▇▇▇'▇ obligations under Section 4.4(1) of the Agreement, Bell
covenants and agrees to [**]. Further, Bell covenants and agrees [**] Transition
Agreement, [**] Certen [**] Certen's [**]. For greater certainty, [**].
6. The Parties agree that the Time of Transfer under the Transition
Agreement shall be 11:59 p.m. on the day immediately preceding the date of the
Share Purchase Closing (as defined in the Agreement).
7. Except to the extent amended hereby, the Parties confirm that all
terms and conditions of the Agreement are and remain in full force and effect.
8. This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
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9. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario.
DATED as of this 1st day of July, 2003
▇▇▇▇ CANADA
By:
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Group President - Systems and Technology
CERTEN INC.
By:
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: President
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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1 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
2 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
3 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
4 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
5 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
1 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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6 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
7 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
8 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
9 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
2 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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REF # BILLING FINDING ACTION PLAN PRIORITY RPT & PRIME OTHER CONT. ORIGINAL REVISED TARGET STATUS BENEFIT WORK ISSUE
STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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10 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
11 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
12 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
3 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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REF # BILLING FINDING ACTION PLAN PRIORITY RPT & PRIME OTHER CONT. ORIGINAL REVISED TARGET STATUS BENEFIT WORK ISSUE
STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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13 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
14 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
15 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
16 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
17 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
18 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
4 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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REF # BILLING FINDING ACTION PLAN PRIORITY RPT & PRIME OTHER CONT. ORIGINAL REVISED TARGET STATUS BENEFIT WORK ISSUE
STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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19 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
20 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
21 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
22 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
23 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
24 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
5 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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REF # BILLING FINDING ACTION PLAN PRIORITY RPT & PRIME OTHER CONT. ORIGINAL REVISED TARGET STATUS BENEFIT WORK ISSUE
STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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25 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
26 [**] [**] [**] [**] [**] [**] [**] [**] [**]
27 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
28 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
29 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
30 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
31 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
6 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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32 [**] [**] [**] Closed [**] [**] [**] [**] [**] [**]
33 [**] [**] [**] A [**] [**] [**] [**] [**] [**] [**]
34 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
35 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
7 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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REF # BILLING FINDING ACTION PLAN PRIORITY RPT & PRIME OTHER CONT. ORIGINAL REVISED TARGET STATUS BENEFIT WORK ISSUE
STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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36 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
37 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
38 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
39 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
40 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
41 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
42 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
8 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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REF # BILLING FINDING ACTION PLAN PRIORITY RPT & PRIME OTHER CONT. ORIGINAL REVISED TARGET STATUS BENEFIT WORK ISSUE
STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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43 [**] [**] [**] [**] [**] [**] [**] [**] [**]
44 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
45 [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
46 [**] [**] [**] [**] [**] [**] [**]
47 [**] [**] [**] [**] [**]
48 [**] [**] [**] [**] [**]
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52 [**] [**] [**] [**] [**]
53 [**] [**] [**] [**] [**] [**]
54 [**] [**] [**] [**] [**] [**]
55 [**] [**] [**] [**] [**] [**]
9 of 10
Exhibit W - Audit Deficiencies (to be corrected after Amendment Affective Date)
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STREAM REC.# TARGET DATE DATE STREAM DOMAIN
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56 [**] [**] [**] [**] [**] [**]
57 [**] [**] [**] [**] [**]
58 [**] [**] [**] [**] [**]
59 [**] [**] [**] [**] [**]
60 [**] [**] [**] [**] [**] [**]
[**]
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66 [**] [**] [**] [**]
52 [**] [**]
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60 [**] [**]
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Note: Amdocs, Inc. is not a party to the ▇▇▇▇ Canada exhibits below. Pursuant to
Item 601 of Regulation S-K, such exhibits are not being filed herewith.
EXHIBIT X1
[**]
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EXHIBIT X2
[**]
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EXHIBIT X3
[**]