Exhibit 10.O
This Information Technology Services Agreement ("Agreement"), dated as of
July 16, 1996, is by and between ADVO, Inc., a corporation having a place
of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("ADVO"), and Integrated
Systems Solutions Corporation, {d/b/a/ISSC}, a wholly owned subsidiary of
International Business Machines Corporation, having its headquarters at
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("ISSC"). ADVO and ISSC agree that the
following terms and conditions will apply to services provided by ISSC
under this Agreement. ADVO and ISSC may be referred to individually as a
"Party" and collectively as the "Parties".
1.0 Background and Objectives
ADVO desires that the Information Technology Services as described herein
and currently performed by or for ADVO be performed and managed by ISSC.
ISSC has conducted due diligence to determine its ability to perform and
manage such activities and responsibilities and desires to provide the
Information Technology Services, defined herein, to ADVO.
ADVO's objectives in entering into this Agreement are as follows:
a) establishing a price for the known scope of work so that ADVO's
expenditures on information technology services for this work would be
no higher under the Agreement than they would have been if ADVO
continued to perform the same arrangements on its own;
b) structuring the provisions concerning future services for unknown scope
or the migration of services from a mainframe environment to a mid-
range or server environment so that ADVO's costs for such future
services or costs of and after migration would be at least as favorable
to ADVO under the Agreement as they would have been if ADVO had not
entered into the Agreement and performed such future services on its
own; and
c) assuring that the Services are delivered in a way that
1) does not unnecessarily increase ADVO's dependence on ISSC, or
ADVO's costs, for New Services or for services after the
termination of this arrangement;
2) minimizes the costs and effort of ADVO's migration from ISSC at
the termination of the Agreement; and
3) does not reduce ADVO's ability to take advantage of new technology
in order to improve its services or reduce its costs.
ISSC will assist ADVO in achieving the above objectives as further set
forth herein.
After careful evaluation of ISSC's proposals and other alternatives, ADVO
agrees to purchase from ISSC the Information Technology Services during the
Term. This Agreement documents
the terms and conditions under which ADVO agrees to purchase and ISSC
agrees to provide the Services.
2.0 Definitions, Documents and Term
2.1 General Definitions
As used in this Agreement:
a) "Additional Resource Charge Rate" ("ARC Rate") means the charge for
additional utilization of a Resource Unit in excess of its Baseline, as
set forth in the Supplement and Schedule J.
b) "AD/M Services" means both Applications Development and Applications
Maintenance Services.
c) "ADVO Machines" means Machines within the Data Center and Network that
are owned, leased or rented and retained by ADVO after the Commencement
Date and that are used by ISSC so that ISSC may provide the Services.
ADVO retains financial responsibility for ADVO Machines. ADVO Machines
are listed in Schedule C.
d) "ADVO Network" means the Machines and Software located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as of the Commencement Date and any
other locations at which Machines may be installed or relocated from
time to time in accordance with this Agreement.
e) "Affiliate" means, with respect to a Party, any entity at any time
controlling, controlled by or under common control with, such Party.
The term "Control" as used in this Agreement shall mean the legal,
beneficial or equitable ownership, directly or indirectly, of more than
50% of the aggregate of all voting equity interests in such entity.
f) "Annual Services Charge" means the fixed charge to ADVO for ISSC's
provision of the Services and includes the quantity of Resource Units
set forth under Baselines in the Supplement.
g) "Applications Development" means the programming of:
1) any new applications software and changes or enhancements to such
new applications software which provide new or additional
functionality including the projects identified in Exhibit E-3 of
Schedule E;
2) regulatory/statutory mandated changes;
3) version upgrades to Applications Software; and
4) changes or enhancements to existing Applications Software, which
provide new or additional functionality, including as a project to
be specified on Exhibit E-3 of Schedule E, making those
applications identified on Schedule A as Year 2000 critical,
Year 2000 Compliant.
Programming effort shall include the pre and post development analyses,
planning, design, coding, testing, installation, provision of a single set
of program and training documentation per Applications Software program and
Training necessary to complete the task.
h) "Applications Maintenance" consists of the activities which address
changes, corrections, and additional functions that are required once
an application is put into production after development. These
activities fall into the following categories:
1) "Corrective" means actions taken which result in the fixing or
restoration of defective Applications Software features or
functions or otherwise eliminates errors or failures associated
with processing the data. This includes emergency repair and
recovery activities.
2) "Perfective" means actions taken which result in improved quality,
performance, reliability, efficiency, maintainability or usability
of the application.
3) "Vendor Release Upgrade" means actions taken which result in the
installation and available use of later or more recent releases
and/or versions of third party software.
Applications Maintenance does not include changes for correcting date-
handling problems related to the change in millennium (Year 2000); such
changes are within the scope of Applications Development.
i) Applications Software" means those programs and programming, including
all supporting documentation and media, that perform specific user
related data processing and telecommunication tasks. Applications
Software is listed in Schedule A.
j) "Baseline" means the specified quantity of resources for a resource
category included within the Annual Services Charge, as set forth in
the Supplement and Schedule J.
k) "Channel Extension Services" means the connectivity between the ISSC
Data Center and input/output devices in the ADVO Network. Channel
Extension Services includes Network Control Program ("NCP") support but
does not include maintenance for the Model 3745-170 Transmission
Control Unit.
l) "Commencement Date" means July 16, 1996.
m) "Data Center" means both the ISSC Data Center and the ADVO Network.
n) "End User Locations" means those locations within ADVO's sites at which
End User Machines, equipment and associated software
are located, which locations are facilities or floors in facilities
outside the Data Center.
o) "End Users" means users of Services who are authorized to receive such
Services within ADVO.
p) "End User Machines" means all workstations, terminals, LAN servers,
printers and associated peripheral equipment which satisfy the
following criteria:
1) owned or leased by ADVO;
2) located at End User Locations; and
3) operated by End Users.
q) "Function Points" ("FP" or "FPs") means the metric used to measure the
functional output of AD/M Services as defined by the International
Function Points Users Group ("IFPUG") Function Point Counting Practices
Manual, or IFPUG's designated successor.
r) "Information Technology Services" ("Services") means those services and
functions which ISSC agrees to provide to ADVO pursuant to this
Agreement.
s) "ISSC Data Center" means the Machines and Software to be located at an
ISSC location to include Southbury, CT and at such other locations as
ISSC may establish thereafter upon prior notification to ADVO with
information on such new location and an opportunity to comment provided
to ADVO and the data line connecting the ISSC Data Center to the ADVO
Network.
t) "ISSC Machines" means Machines within the Data Center and Network which
are provided by ISSC on or after the Commencement Date in order to meet
its obligations under this Agreement. ISSC Machines which are located
at ADVO facilities are listed in Schedule D.
u) "Licenses" means those written contractual arrangements under which
ADVO received the right to use and maintenance for software products
for which ISSC has undertaken financial and administrative
responsibility as of the Maintenance Period Date as specified on
Schedule F. Licenses are listed in Schedule F.
v) "Losses" means all losses, liabilities, damages and claims (including
taxes), and all related costs and expenses (including any and all
reasonable attorneys' fees and reasonable costs of investigation,
litigation, settlement, judgment, interest and penalties).
w) "Machines" means both ADVO Machines and ISSC Machines.
x) "Network" means all Machines, associated attachments, features and
accessories, Software, lines and cabling used to connect and
transmit data and voice.
y) "Performance Standards" means the service levels and performance
responsibilities under which the Services will be provided. The
Performance Standards are described and listed in Schedule E.
z) "Reduced Resource Credit Rate" ("RRC Rate") means the credit for
reduced utilization of a Resource Unit below the Baseline, as set forth
in the Supplement and Schedule J.
aa) "Required Consents" means any consents or approvals required for the
licensing or transfer of the right to use applicable facilities, space,
equipment, Software or third party services to ISSC.
ab) "Resource Unit" ("RU") means a particular unit of resource utilization,
as described in Schedule J, which is used to determine "Additional
Resource Charges" ("ARCs") and "Reduced Resource Credits" ("RRCs") as
described in Section 6 and Schedule J.
ac) "Software" means both Applications Software and Systems Software.
ad) "Systems Software" means those programs and programming, including all
supporting documentation and media, that perform tasks basic to the
functioning of the data processing and telecommunication equipment and
which are required to operate the Applications Software or otherwise
support the provision of Services by ISSC. Systems Software is listed
in Schedule B.
ae) "Training" means providing to an ADVO focal point such Applications
Development documentation and/or information as ADVO reasonably
determines it requires to allow the focal point to provide training to
End Users.
af) "Year 2000 Compliant" means the ability of a piece of software to
correctly interpret and manipulate the relationship between 19XX and
20XX date-related data (where "X" is an integer between 0 and 9)
without resulting in or causing logical or mathematical
inconsistencies.
2.2 Associated Contract Documents
This Agreement also includes:
a) a Supplement ("Supplement") containing the charges, Term, and certain
other necessary information; and
b) Schedules A through P which will be updated by ISSC as necessary or
appropriate during the Term; provided, however, that no changes to the
Schedules shall become effective unless agreed to in writing by both
Parties.
2.3 Term
The term of this Agreement will begin as of 12:01 a.m. on the Commencement
Date and will end as of 12:00 midnight on June 30, 2006 (the "Term"),
unless earlier terminated or extended in accordance with this Agreement.
2.4 Renewal and Expiration
ISSC agrees to notify ADVO whether it desires to renew this Agreement and
of the proposed prices and terms to govern such renewal not less than 18
months prior to the expiration of the Term. If ISSC notifies ADVO that it
desires to renew this Agreement, ADVO agrees to inform ISSC in writing
whether it desires to renew not less than six months prior to the
expiration of the Term.
If ADVO notifies ISSC that it desires to renew the Agreement, but the
Parties are unable to agree upon renewal prices, terms and conditions as of
six months prior to the expiration of the Term, this Agreement will be
extended for one year at the then current prices, terms and conditions. If
the Parties are unable to reach agreement on renewal during such extension
period, this Agreement will expire at the end of such extension period.
3.0 Overview
3.1 Transition of Services
a) There will be a transition period ("Transition Period") during which
transition shall be accomplished in accordance with the Transition Plan
more fully described in Schedule H. ISSC shall migrate the information
technology services performed by or for ADVO from ADVO to the ISSC Data
Center. During the Transition Period, ADVO will be responsible for
providing such services. The Transition Period may be extended by
mutual agreement of the Parties.
b) During the Transition Period, the Parties will commence and complete a
written plan to be mutually agreed upon that is consistent with
Schedule H. Such plan shall be set forth in Section H-2 of Schedule H
for the transition of the necessary resources from ADVO to ISSC. ADVO
will cooperate with ISSC in accomplishing all aspects of the
transition, including the commitment of the resources necessary to
complete the transition during the Transition Period. An outline of the
tasks necessary to accomplish the migration of the Services to ISSC is
set forth in Section H-1 of Schedule H.
c) The Transition Plan will provide that at least two weeks prior to the
cutover date to the ISSC Data Center from ADVO, as set out in the
Transition Plan, ISSC will have established and tested systems at the
ISSC Data Center which are capable of functionally duplicating all data
processing Services then being
performed by ADVO. Prior to cutover to the ISSC Data Center, ISSC will
implement the portion of the Transition Plan which will require testing
designed to establish that the ISSC Data Center is capable of providing
such Services.
d) ISSC shall maintain the redundancy described in subsection 3.1(c), at
no additional cost to ADVO, for at least two weeks after cutover to the
ISSC Data Center (the "Redundancy Period"). The Redundancy Period shall
end on October 19, 1996 unless there is a cutback to the redundant
facility prior to that date. If there is such a cutback, the Parties
will use all reasonable efforts to cut over on as timely a basis as
practicable. In no event shall the redundancy be maintained beyond
December 15, 1996. In order to maintain redundancy during the
Redundancy Period, ISSC will not use ADVO Machines to provide the data
processing Services, except as necessitated by a failure of the
transition to the ISSC Data Center, as set out below. As further set
out below, ISSC shall be responsible for the reasonable, necessary and
verified additional direct costs to ADVO of such redundancy, including
any such incurred software license charges during the Redundancy
Period. The Transition Plan shall include provisions for cutting back
to ADVO's system if, during the Redundancy Period, either:
1) the weekly average for Systems Availability, as defined in
Schedule E, falls below 90%; or
2) there is any single outage of greater than 8 hours in any rolling
24 hour period impacting Systems Availability.
e) The Transition Plan will provide for migration to the ISSC Data Center
on or before September 29, 1996 or October 5, 1996 as the case may be.
However, if during the Redundancy Period ISSC fails to complete the
Customer Test milestone, as set out in the Transition Plan, then:
1) ADVO may delay migration to the ISSC Data Center until December
15, 1996 (the "Hold Period"). During the Hold Period ISSC shall be
responsible for providing the data processing Services described
herein using the Machines, necessary personnel and facilities then
employed by ADVO.
2) During the Hold Period ADVO represents that its total liquidated
damages arising out of or related to such delay will total
$1,568,000. ISSC will proportionately credit this amount on a
monthly basis, as ADVO's sole and exclusive remedy for such delay,
against each month's portion of the Annual Services Charge during
the Hold Period.
3.2 Staff
a) ADVO will use reasonable efforts to maintain staffing of the ADVO
Network, AD/M functions, and print operations prior to and during the
Transition Period; provided, however, that ADVO shall
not be obligated to increase staffing levels.
b) During the Transition Period ISSC or its subcontractors may interview
those ADVO employees listed on Schedule O (the "Affected Associates").
All Affected Associates designated on Schedule O as "Data Center" will
be interviewed. ISSC may waive the interviews for those Affected
Associates designated on Schedule O as "Key Associate" and as "AD/M".
c) Upon the Commencement Date, if not made previously, ISSC will make
offers for employment to those ADVO employees designated on Schedule O
as "Key Associate" and "AD/M" provided they:
1) are employed by ADVO as of the date the offer is made;
2) have submitted an application for employment;
3) meet ISSC's customary preemployment screening procedures for
interviews, drug screening, and background verification; and
4) accept the offer of employment from ISSC within seven days from
the date the offer is made.
d) By no later than 90 days after the Commencement Date, ISSC will offer
employment to those Affected Associates designated on Schedule O as
"Key Associate" and as "Data Center" provided they satisfy sections
3.2.(c)(1) through 3.2.(c)(4) above. All other Affected Associates
designated on Schedule O as "Data Center" but not as "Key Associate"
will be considered for positions at other ISSC locations.
e) ISSC or its subcontractors will be solely responsible for making any
hiring decisions regarding the Affected Associates.
f) All Affected Associates remaining on ADVO's payroll shall perform their
duties under the direction and control of ADVO and will be treated as
ADVO employees for all purposes throughout the Transition Period;
provided, however, that nothing herein shall be interpreted so as to
relieve ISSC of its obligations to provide the Services as of the
Commencement Date.
g) Replacements for the Affected Associates shall be selected by ISSC as
it deems necessary consistent with Section 4.1(d), and ISSC shall have
financial responsibility for salary and benefits for replacements of
Affected Associates.
h) Each offer of employment to an Affected Associate shall include:
1) an initial base salary not less than the base salary each such
Affected Associate currently receives from ADVO; and
2) a benefits package, equivalent to the package available to ISSC
employees who have accrued the same number of years of service
with ISSC that the Affected Associate has accrued with ADVO. The
benefits package includes (i) vacation days, up to ISSC's cap, and
(ii) current participation in retirement benefits.
i) ISSC shall conduct all employment practices described herein in
accordance with all applicable laws.
3.3 Software
As of the Commencement Date, and from time to time thereafter, ADVO will
make the Software available to ISSC solely for the purpose of providing the
Services and ISSC will be responsible for managing the Systems Software
Licenses listed in Schedule F and for paying all related expenses,
including the Systems Software maintenance fees beginning after the
maintenance period date specified in Schedule F. Subject to the Parties
obtaining any Required Consents in accordance with Section 3.4, ISSC will
comply with all obligations of ADVO, including those of nondisclosure,
under any such Systems Software License to the extent such obligations were
disclosed to ISSC on or before the Commencement Date, and from time to time
thereafter, through receipt by ISSC of a copy of the relevant documents,
the receipt of which will be acknowledged by ISSC. ADVO represents and
warrants that all obligations with respect to such Software Licenses
accruing prior to the Commencement Date have been satisfied.
3.4 Required Consents
ADVO shall be responsible for obtaining all Required Consents necessary to
enable ISSC to use the Software and ADVO Machines except for Required
Consents from ISSC Affiliates, which shall be obtained by ISSC. ADVO shall
bear the costs, if any, of obtaining all Required Consents except for
Required Consents from ISSC Affiliates, the costs of which shall be borne
by ISSC. In the event that any Required Consent is not obtained with
respect to the Software Licenses and ADVO Machines, then, unless and until
such Required Consents are obtained, the Parties shall cooperate with each
other in achieving a reasonable alternative arrangement for ADVO to
continue to process its work with minimum interference to its business
operations. Such failure by ADVO to obtain any Required Consent shall not
per se be a breach of this Agreement by ADVO to the extent it participates
in the foregoing.
3.5 Agency and Disbursements
Beginning on October 1, 1996, ISSC will pay the Software vendors and
suppliers listed in Schedule F or reimburse ADVO in a timely manner for
payments made by ADVO to such vendors and suppliers for periods after the
maintenance period date specified in Schedule F.
ADVO appoints ISSC as its limited agent for the purposes of administration
and payment as it pertains to the Software Licenses and ADVO shall not
terminate, extend or amend such Software Licenses without the prior written
approval of ISSC. ADVO agrees to promptly notify all the appropriate third
parties of such appointment, such reasonable notification shall not be
deemed to violate any confidentiality obligation of ADVO to ISSC.
ISSC may terminate, cancel, substitute or change such Software Licenses as
it chooses so long as ISSC continues to perform the Services in the manner
required by this Agreement, provided ISSC (i) demonstrates to ADVO's
satisfaction that any new arrangement can be migrated upon termination of
this Agreement, and (ii) ISSC obtains ADVO's prior written consent which
consent shall not unreasonably be withheld. Further, ISSC shall promptly
pay or reimburse ADVO for any termination penalties, damages payable by
ADVO to such third parties that are directly attributable to ISSC's
decision to breach the third party agreement or to other termination
charges associated with and paid by ADVO for such action.
3.6 Joint Verification
During the 90 day period following the Commencement Date, ISSC and ADVO
reserve the right to inventory, validate and update, any information that
is reflected in or omitted from the attached Supplement or Schedules. If
discrepancies are detected during such period, the Parties shall attempt to
negotiate in good faith modifications to the Supplement or Schedules and/or
an equitable adjustment to the Annual Services Charge. If the Parties are
unable to reach agreement on modifications or an equitable adjustment, then
the Parties will submit the matter to the Joint Advisory Committee for
dispute resolution as specified in Section 16 of this Agreement.
Nothing in this Section shall prevent the Parties from exercising any other
remedies available to them at law or under this Agreement; including, but
not limited to, any termination remedies.
3.7 Other Obligations
Beginning on the earlier of the date this Agreement is executed by the
Parties or the Commencement Date, ADVO will not enter into any new or amend
any existing agreements or arrangements, written or oral, affecting or
impacting upon Affected Associates or Software Licenses, as specified in
the various Schedules to this Agreement, without the prior written consent
of ISSC, which consent shall not unreasonably be withheld.
3.8 Software Currency
The Parties agree to maintain reasonable currency for releases and versions
of Software, unless otherwise mutually agreed. For
purposes of this Section, "reasonable currency" shall mean that the
installed version or release is no more than one version or release older
than the newest commercially-available version or release, unless otherwise
agreed to by the Parties, and subject to the Change Management Procedures
outlined in Section 4.5(b). If, upon the Commencement Date, any Software is
not reasonably current, the Parties will not be obligated to bring such
Software into reasonable currency immediately. The Parties will, as part of
the AD/M Services described in Schedule E, prepare a plan for either (a)
bringing the Software into reasonable currency, or (b) replacing the
Software.
In the event either Party requests the other Party to delay upgrading of
specific Software beyond the reasonable currency period or requires
operation and maintenance of multiple versions of Software, the other Party
shall do so, provided, that if such Party:
a) is prevented from taking economic or performance advantage of
technological advancements in the industry; or
b) incurs additional costs (e.g., Software support costs due to withdrawal
of maintenance by the licensor, multiple version charges, etc.); then,
the requesting party will either update the Software to the current
level or reimburse the other party for any increased costs incurred
pursuant to the above.
In addition, in the case where ADVO is the requesting Party, ADVO shall
relieve ISSC from compliance with any related Performance Standards
until such time as the affected Software is deemed current to the
extent such failure to comply is a direct result of delayed upgrading.
3.9 ADVO Approvals and Notification
For those areas of the Services where ADVO:
a) has reserved right-of-approval or consent or agreement;
b) is required to provide notification; and/or
c) is required to perform a responsibility set forth in this Agreement;
and
such approval, consent, notification or performance is delayed or
withheld by ADVO without authorization or right (which authorization or
right shall be deemed to include the right of ADVO to reasonably object
or to deny consent) beyond the period provided in this Agreement or the
Schedules and such delay or withholding is not caused by ISSC and
affects ISSC's ability to provide the Services under this Agreement,
then ADVO will relieve ISSC of the responsibility for that portion of
the
Services affected by the delay or withholding during the period such
approval, consent, notification or performance is delayed or withheld
beyond the period provided in this Agreement or the Schedules and ADVO
will reimburse ISSC for all additional expenses, if any, incurred
during such period as a result thereof.
For purposes of this Agreement, if a time period is not specified for
such approval, consent, agreement, notification or performance, then
such time period shall be deemed to be not greater than ten business
days.
4.0 ISSC Responsibilities
4.1 ISSC Personnel
ISSC will designate, prior to the Commencement Date, an ISSC Project
Executive to whom all ADVO's communications may be addressed and who has
the authority to act for and bind ISSC and its subcontractors in connection
with all aspects of this Agreement.
a) ISSC shall cause the person assigned to the position of Project
Executive to devote substantially his or her full time and effort to
the provision of the Services under this Agreement, and to the extent
such Services are not provided from a dedicated facility, to the
operation and management of the Data Center and AD/M staff. Before
assigning an individual to the position of Project Executive, whether
the individual is initially assigned or is subsequently assigned, ISSC
shall:
1) notify ADVO of the proposed assignment;
2) introduce the individual to appropriate ADVO representatives; and
3) consistent with ISSC's personnel practices, provide ADVO with any
other information about the individual reasonably requested by
ADVO.
ISSC agrees to discuss with ADVO any objections ADVO may have to
such assignment and attempt to resolve such concerns on a mutually
agreeable basis.
b) ISSC will undertake to minimize change of the Project Executive and
will give ADVO at least 30 days advance notice of a change of the
Project Executive and will discuss with ADVO any objections ADVO may
have to such change.
c) In the event that ADVO reasonably and in good faith determines that it
is not in the best interests of ADVO for any ISSC employee or
subcontractor to continue performing any of the Services, then ADVO
shall give ISSC written notice specifying the reasons for its position
and requesting that the employee or
subcontractor be replaced. Promptly after its receipt of such a notice,
ISSC shall investigate the matters stated in such notice and, if it
determines that ADVO's concerns are reasonable, ISSC shall take
appropriate action.
d) The Parties agree that it is in their best interests to keep the
turnover rate of the ISSC and ISSC subcontractor personnel performing
the Services to a reasonably low level. Accordingly:
1) for at least the first nine months following the Commencement Date,
ISSC will not reassign any Affected Associate, for so long as the
Affected Associate continues to be employed by ISSC, in a way that
prevents him or her from spending substantially all of his or her
time performing Services hereunder unless the Affected Associate
requests reassignment or unless ADVO consents to such reassignment,
which consent shall not be unreasonably withheld; and
2) for so long as the Affected Associate continues to be employed by
ISSC, ISSC will not reassign any Affected Associate identified on
Schedule O as "Critical/System", unless the Affected Associate
requests reassignment or unless ADVO consents to such reassignment,
which consent shall not be unreasonably withheld, until the earlier
of: (i) full documentation of the system for which the Affected
Associate was responsible in a form reasonably satisfactory to
ADVO, or (ii) replacement of the system for which the Affected
Associate was responsible.
Further, if ADVO reasonably determines that the personnel turnover rate is
or may be excessive and so notifies ISSC, ISSC shall provide data regarding
the turnover rate and shall meet with ADVO to discuss the reasons for the
turnover rate. If reasonably requested by ADVO, ISSC shall submit to ADVO
its proposals for reducing the turnover rate, or seeking to prevent an
excessive turnover rate, and the Parties shall mutually agree on a program
promptly to maintain or reduce the turnover rate to an acceptable level, as
appropriate. In any event, notwithstanding transfer or turnover of
personnel, ISSC remains obligated to perform the Services without
degredation and in accordance with this Agreement.
4.2 Standards
ISSC agrees that:
a) all Services performed by ISSC for ADVO will be performed in a
professional and workmanlike manner in accordance with industry
standards and practices applicable to the performance of such
Services; and
b) its performance of the Services will meet or exceed each of the
applicable Performance Standards.
4.3 Efficient Use of Resources
ISSC shall take reasonable action, taking into account economic
circumstances, to efficiently use resources that will be chargeable to ADVO
under this Agreement including, but not limited to:
a) making schedule adjustments (consistent with ADVO's priorities and
schedules for the Services and ISSC's obligation to meet the
Performance Standards);
b) delaying the performance of noncritical functions within established
limits; and
c) tuning or optimizing the systems used to perform the Services.
4.4 Technological Advancements
ISSC agrees to take reasonable action, taking into account economic
circumstances, without an increase in charges to ADVO, subject to the
provisions of Section 6.5 and the Performance Standards, to provide the
Services to ADVO at a technological level that will enable ADVO to take
advantage of technological advancement in its industry.
Further, ISSC may, at ISSC's option and expense, implement technological
advancements relative to the provision of the Services; provided, however,
ISSC continues to perform the Services in accordance with the Performance
Standards set forth in this Agreement. Notwithstanding the foregoing, ISSC
shall not without ADVO's express consent, and unless only in effect during
the Term, implement any technological advancement that materially adversely
affects ADVO's ability, at expiration or termination of this Agreement, to
migrate to: (i) another technology platform, or (ii) another services
provider, or (iii) ADVO itself.
If such technological advancement(s) will have an effect on any Baseline(s)
and/or ARC/RRC Rate(s) for any resource provided under the Agreement, ISSC
will normalize such affected Baseline(s) and/or ARC/RRC Rate(s), consistent
with the rebaselining procedures set forth in Schedule J, so that ADVO
receives the same level of performance and the same price-performance as
provided under the methodology used at inception of this Agreement. ISSC
will review with ADVO the conversion methodology (e.g., benchmarking,
historical data, etc.) which ISSC used to support such adjustment(s).
ISSC will explore the implementation of technological advancements
reasonably requested by ADVO.
4.5 Management and Control
a) Within 180 days after the Commencement Date, ISSC shall provide a
manual describing the operating processes and procedures relating to
the performance of the Services (the "Procedures
Manual"). Recognizing that certain components of the Procedures Manual
need to be completed in advance of 180 days, the Parties agree to
deliver such priority components in accordance with the timeframe set
forth in Schedule H.
1) The Procedures Manual shall be provided to ADVO for review,
comment, and approval, and any reasonable comments or suggestions
of ADVO will be incorporated therein.
2) ISSC shall periodically update the Procedures Manual, subject to
ADVO's reasonable approval, to reflect any changes in the
operations or procedures described therein.
3) ISSC shall perform all Services in accordance with the Procedures
Manual.
b) Within 180 days after the Commencement Date, ISSC shall provide the
"Change Management Procedures", which shall include, at a minimum,
that:
1) ISSC will make no change which may adversely affect the business
operations of ADVO without first obtaining approval from ADVO.
2) ISSC will assure that all programs are moved from the application
development and test environments to the production environment in
a controlled and documented manner.
3) ISSC will schedule all Data Center and AD/M projects so as not to
unreasonably interrupt ADVO business operations.
4) ISSC will prepare monthly, a rolling quarterly "look ahead"
schedule for ongoing and planned Data Center and AD/M changes. The
status of changes will be monitored and tracked against the
applicable schedule.
5) ISSC will document and provide to ADVO a notification of all Data
Center and AD/M changes performed for emergency purposes or as
otherwise not precluded in Section 4.5(b)(1) as soon as
practicable, but in no event later than five business days after
change was made.
Regardless of whether the Procedures Manual or Change Management Procedures
or components thereof are completed on schedule, unless otherwise specified
in the Transition Plan in accordance with Schedule H, the above procedures
will be applicable from the Commencement Date.
The Change Management Procedures will be included in the Procedures Manual
and shall be provided to ADVO for review, comment, and approval, and any
reasonable comments or suggestions of ADVO will be incorporated therein.
c) Upon reasonable request by ADVO, ISSC will provide periodic reports to
ADVO that will include, at a minimum, the following:
1) a monthly performance report documenting ISSC's performance with
respect to the Performance Standards;
2) a weekly project schedule report containing the information
described in Section 4.5(b)(5);
3) a monthly change report setting forth a record of all changes
performed during the previous month; and
4) a monthly report describing ADVO's utilization of each particular
type of RU during such month, and comparing such utilization to
the then applicable Baseline for each RU.
ISSC will provide ADVO with such documentation and other information as may
be reasonably requested by ADVO from time to time in order to verify the
accuracy of the reports specified above.
d) The Parties will mutually determine an appropriate set of periodic
meetings to be held between representatives of ADVO and ISSC. ISSC will
attend all such meetings. The agenda will be mutually agreed upon in
advance by the Parties. At a minimum, these meetings will include the
following:
1) a weekly meeting among operational personnel to discuss ongoing
issues relating generally to daily performance and planned or
anticipated activities and changes;
2) a monthly management meeting to review the performance report, the
project schedule report, the changes report, and such other
matters as appropriate; and
3) a quarterly senior management meeting to review relevant contract
and performance issues.
All meetings will have a published agenda issued by ISSC sufficiently in
advance of the meeting to allow meeting participants a reasonable
opportunity to prepare for the meeting.
4.6 Machines
ISSC will provide the Services using ISSC and ADVO Machines. Additional or
replacement ISSC Machines, including upgrades, will be added by ISSC to the
Data Center and Channel Extension Services, as necessary to perform the
Services in accordance with the Performance Standards, subject to ARCs for
growth beyond the specified Baseline. ISSC retains all right, title and
interest in and to all ISSC Machines, subject to Section 10.4 with respect
to ADVO's rights upon termination or expiration of this Agreement.
4.7 Data Transmission (Lines/Circuits)
ISSC will undertake financial and administrative responsibility for the
necessary leased lines and circuits to provide Channel Extension Services
between the ADVO Network and ISSC Data Center.
4.8 Software Services
As part of the Services, ISSC will:
a) operate, maintain and enhance, as necessary to perform in accordance
with the Performance Standards, all Systems Software in the Data
Center, except as otherwise provided in Schedule B;
b) apply preventive maintenance and program temporary fixes to correct
defects in the Systems Software running in the Data Center;
c) in accordance with the Software currency provisions of Section 3.8,
provide or obtain new versions and releases, upgrades, replacements or
additional Systems Software as ISSC deems necessary in order to perform
the Services in accordance with the Performance Standards; and
d) operate and install new versions and releases, upgrades, replacements
and additional Applications Software in the Data Center.
4.9 Operations, Support and Maintenance
As part of the Services, ISSC will:
a) operate the Data Center using the Machines and Software;
b) provide maintenance services for ISSC Machines in the ISSC Data Center;
c) provide maintenance services for the Hitachi disk storage drives
specified on Schedule C;
d) operate and support the 3745 and all related Software and provide
Channel Extension Services;
e) provide print operations in accordance with Schedule E;
f) transmit electronic print files to the ADVO Network in accordance with
Schedule E;
g) store, maintain and provide security for storage media (tapes, disk
packs, etc.) provided to ISSC; and
h) provide reasonable system capacity to support Applications Development,
in accordance with Schedule E, the resources
utilized for which will be included when calculating RUs.
4.10 Consolidation and Relocation Services
Subject to any ADVO right to receive notice and to object set forth in the
Change Management Procedures, ISSC will install, rearrange and relocate
equipment in the ISSC Data Center as ISSC deems necessary in order to
perform in accordance with the Performance Standards and in such a manner
so as to minimize service level impact to End Users in accordance with the
Change Management Procedures.
ADVO shall receive notice with an opportunity for reasonable comment prior
to any material physical relocation of ISSC production control and key
operational liaison personnel.
4.11 Systems Management
As part of the Services, ISSC will:
a) perform capacity planning, performance analysis and tuning for the
Machines and Systems Software in the Data Center;
b) implement controls, in accordance with Schedule L and this Agreement,
to effectively manage the Data Center environments, including change
and problem management systems according to the Procedures Manual;
c) provide back-up and restore capability for data and programs maintained
in the Data Center;
d) invoke the disaster recovery plan when appropriate; and
e) provide for systems access security through the use of appropriate
security products.
4.12 Disaster Recovery
ISSC will provide disaster recovery services in accordance with Schedule G.
4.13 Production Services
As part of the Services, ISSC will:
a) schedule, control and monitor the running of production jobs in the
Data Center using scheduling and quality control procedures, as
specified in the Procedures Manual; and
b) follow procedures for scheduling and directing output of all production
work (including workload and performance balancing), as specified in
the Procedures Manual.
4.14 AD/M Services
As part of the Services, ISSC will provide Applications Development and
Maintenance as further specified in Schedule E and at the resource levels
as established in Schedule J and set forth in the Supplement.
4.15 Help Desk
ISSC will provide single point-of-contact support to End Users to assist
them with problem determination, tracking and resolution, how-to questions,
systems status, and changes which may affect them, in accordance with
Schedule M.
4.16 Audits
In accordance with this Section, SAS-70, and any other regulatory
requirements, ADVO may have an independent third party audit conducted of
the facilities. The audit objective will be to report on the internal
control structure employed by ISSC for the duration of this Agreement and
will include reviews of: computer operation procedures, backup, off-site
storage, contingency planning, DASD management controls, physical security,
software and data security, systems software support, tape library control
and other areas as reasonably deemed appropriate.
ISSC will reasonably assist ADVO in meeting its audit and regulatory
requirements and in reasonably minimizing costs associated with such
requirements, including providing access to the Data Center to enable ADVO
and its auditors and examiners to conduct appropriate audits and
examinations of the operations of ISSC relating to the performance of the
Services to verify:
a) the accuracy of ISSC's charges, other than the Annual Services Charge,
to ADVO;
b) that ISSC is exercising reasonable procedures to control the resources
provided by ADVO to ISSC such as heat, light and utilities utilized in
providing Services to ADVO; and
c) that Services are being provided in accordance with the Performance
Standards.
Such access will require 24 hours notice to ISSC and will be provided at
reasonable hours, provided that any audit does not interfere with ISSC's
ability to perform the Services in accordance with the Performance
Standards. ISSC will provide access only to information reasonably
necessary to perform the audit. ISSC will provide access to ISSC
proprietary data, subject to the provisions of Section 9. Under no
condition will ADVO have access to the data of other ISSC customers. ISSC
will also assist ADVO's employees or auditors in testing ADVO's data files
and programs, including, without limitation, installing and running audit
software, subject to the provisions of Section 6.
Subject to Section 6.5, ISSC agrees to make any changes and take other
actions which are necessary in order to maintain compliance with applicable
laws or regulations or generally acceptable accounting procedures. ADVO may
submit additional findings or recommendations to ISSC for its
consideration, and ISSC shall consider such findings and ISSC shall
implement such findings and recommendations it reasonably determines to be
appropriate.
If any audit or examination reveals that ISSC's invoices for the audited
period are not correct for such period, ISSC shall promptly reimburse ADVO
for the amount of any overcharges, or ADVO shall promptly pay ISSC for the
amount of any undercharges.
4.17 Benchmarks
Beginning in the second contract year from the Commencement Date, and no
more than once in a calendar year, ADVO reserves the right to have a third
party that has been mutually agreed upon between ADVO and ISSC, conduct a
confidential benchmark study at ADVO's expense to compare the cost, quality
and delivery of the Services being benchmarked to services provided to
other entities receiving comparable services (the "Benchmark"). The
Benchmark will be designed to provide a representative comparison of the
benchmarked services provided by vendors across various industries. Subject
to appropriate confidentiality restrictions, ISSC will reasonably cooperate
with such third party in performing the Benchmark provided ISSC receives
reasonable notice and that any Benchmark does not interfere with ISSC's
ability to perform the Services in accordance with the Performance
Standards.
ADVO will determine the scope of the study and the categories to be
compared. The Parties will mutually determine necessary adjustments to
address comparability factors of the total scope of Services such as the
Term of the Agreement, complexity of the transition to ISSC's Services, and
environmental or other unique aspects of the Services. Upon request by
ADVO, the Parties will analyze the Benchmark results and ISSC, at its
expense (unless the Benchmark fails to comport with the scope of the
categories studied or adjustments as agreed between ADVO and ISSC, or the
Benchmark results can be shown to be based on factually inaccurate
assumptions or data or other inputs upon which the conclusions are based,
in which case the Benchmark can be corrected for such deviations) and
within 60 days of completion of the Benchmark, will:
a) prepare an analysis report to address any material deviations, higher
or lower, of the cost, quality, or delivery of the Services as compared
to the Benchmark results; and
b) prepare a plan for achieving higher levels of service and/or improved
price performance.
ISSC and ADVO will implement the plan when and to the extent it is
approved by ADVO to the extent such implementation is feasible.
5.0 ADVO Responsibilities
5.1 ADVO Project Executive
ADVO agrees to designate, prior to the Commencement Date, a Project Executive to
whom all ISSC communications may be addressed and who has the authority to act
for and bind ADVO and its subcontractors in connection with all aspects of this
Agreement.
5.2 Applications Software
During the Term, ADVO will be responsible for defining business requirements for
Applications Software.
ADVO will also retain responsibility for all license and related charges and for
prioritizing the AD/M workload necessary to maintain and support all
Applications Software.
ADVO shall provide ISSC, to the extent ADVO has such license rights, with source
code that matches all application load modules executed in the production
environment for Applications Software.
ADVO may reasonably audit, control and approve all new Applications Software
prior to its promotion into production.
5.3 Facilities
To enable ISSC to provide the Services, ADVO agrees:
a) to provide, at no charge to ISSC, the use of the ADVO facilities and
such additional space as may be reasonably necessary for the
performance of the Services. This includes reasonable office space for
a minimum of 60 people and individual offices for four managers,
storage space, telephone capability (but excluding long-distance
telephone charges, for which ADVO will be reimbursed by ISSC), office
support services (e.g., janitorial and security), office supplies and
furniture. ADVO shall be responsible for ensuring such ADVO facilities
provide for a safe working environment, including compliance with
national, state and local codes, ordinances, laws, authorities having
jurisdiction and nationally recognized standards;
b) to provide, for the ADVO facilities located at premises under ADVO's
management and control during the Term the utilities as may reasonably
be necessary for ISSC to perform the Services as described in this
Agreement, such as heat, light, power, air conditioning,
uninterruptible power supply, and such other similar utilities;
c) to provide access to ADVO parking and cafeteria (if any) facilities for
ISSC employees;
d) if ADVO decides to relocate its current facility from which the
Services are being provided, ADVO will provide comparable space,
facilities and resources in the new location and reimbursement of
personnel relocation for ISSC employees and subcontractors under the
same terms and conditions of this Agreement; and
e) following the expiration or termination of this Agreement, ADVO will
allow ISSC the use, at no charge, of those ADVO facilities then being
used to perform the Services for up to 60 days following the effective
date of such expiration or termination (or from the last day of any
Services Transfer Assistance period) to enable ISSC to affect an
orderly transition of ISSC resources.
It is understood that ISSC's use of the ADVO facilities does not constitute
or create a leasehold interest. When the ADVO Network and/or the other ADVO
facilities are no longer being utilized by ISSC to perform the Services,
ADVO's obligations set forth in this Section with respect to the ADVO
Network and/or the other ADVO facilities will cease.
5.4 Support Services
ADVO agrees to:
a) perform its responsibilities in accordance with the Procedures Manual
and Performance Standards and until such time as those documents are
completed, in whole or in part, in accordance with ADVO's practices and
policies as of the Commencement Date;
b) provide to ISSC, to the extent not otherwise sold, assigned or licensed
to ISSC, for the purposes of meeting its obligations under this
Agreement, full access to, and use of, Machines and Software on the
terms and conditions set forth in this Agreement;
c) supply the End User Machines and software being used by the Affected
Associates as of the Commencement Date for 180 days from the
Commencement Date. Such machines and software shall remain the property
of ADVO. Any replacement machines or software will be the
responsibility of ISSC and such replacements will be the property of
ISSC; and
d) maintain and replace as necessary any machines retained by ADVO and
required by ISSC to operate Applications Software.
5.5 Other Responsibilities
ADVO also agrees to:
a) provide data entry and coordinate such activities with ISSC's systems
design and production functions as described in Schedule
E;
b) be responsible for Network including WAN and LAN management, voice
services and voice network services;
c) be responsible for all servers except for servers operating
Applications Software for which ISSC has operational responsibility;
d) provide for maintenance of the input/output devices in the ADVO
Network;
e) designate and document application information requirements, including
report design and content, frequency of reports, and accessibility to
information;
f) provide additions, upgrades and replacements for all End User Machines
used by ADVO employees;
g) maintain and support all End User Machines used by ADVO employees;
h) provide personnel and equipment to reasonably ensure the physical
security of ADVO facilities;
i) provide all preprinted forms;
j) provide all paper forms and supplies required by End Users employed by
ADVO;
k) pay all usage fees for disaster recovery contracts, if any, until
completion of migration to the ISSC Data Center;
l) be responsible for all mail, messenger, postage, courier and print
distribution services;
m) be responsible for all costs associated with off-site data storage;
n) be responsible for such other ADVO activities and functions as are
described in this Agreement; and
o) cooperate to establish the required FP Baselines within the time
required as further set forth in Schedule E hereto, without undue
delay.
6.0 Charges and Expenses
6.1 Annual Services Charge
ADVO agrees to pay the Annual Services Charge specified in the Supplement
for each year of the Term together with the other amounts and subject to
credits as described in this Section 6 and Section 7 and set forth in the
Supplement.
6.2 Resource Charges and Credits
One month after the establishment of Baselines, other than Help Desk Baselines,
pursuant to Schedule J, and monthly thereafter, ISSC will review the quantity of
Resource Units utilized by ADVO during the preceding month, and calculate
Additional Resource Charges (ARCs) and/or Reduced Resource Credits (RRCs) in
accordance with the Supplement and Schedule J.
Six months after the establishment of Help Desk Baselines pursuant to Schedule
J, and every three months thereafter, ISSC will review the cumulative quantity
of Resource Units utilized by ADVO during the preceding three months, and
calculate Additional Resource Charges (ARCs) and/or Reduced Resource Credits
(RRCs) in accordance with the Supplement and Schedule J.
ADVO agrees to pay Additional Resource Charges in accordance with Section 7.
ISSC agrees to credit Reduced Resource Credits in accordance with Section 7.
6.3 Cost of Living Adjustment
ADVO agrees to pay ISSC a Cost of Living Adjustment ("COLA"), in accordance with
Schedule J if the actual cumulative year-to-year inflation increases.
The Parties agree to use the December unadjusted Consumer Price Index, as
published in the "Summary Data from the Consumer Price Index News Release" by
the Bureau of Labor Statistics, U.S. Department of Labor, For All Urban
Consumers, ("CPI-U"), for purposes of determining actual inflation.
6.4 New Entities
If ADVO acquires any additional Affiliate during the Term and ADVO desires that
ISSC provide Services for such Affiliate, subject to additional charges if
acceptance of such responsibilities would require New Services as described in
Section 6.5 and/or resources in excess of existing Baselines, then ISSC will
provide such Affiliate with Services in accordance with this Agreement.
6.5 New Services
In the event that ADVO requests ISSC to perform functions different from, and in
addition to, the Services ("New Services"), the charge to ADVO for ISSC
performing such functions will be determined as follows:
a) If the additional function requires only those resources which have a
current Baseline, the additional function will not be considered a New
Service and the charges for the incremental resources, if any, will be
recovered through the ARC methodology, subject to a Baseline adjustment
in accordance with
Schedule J.
b) If the additional function requires resources not covered by an
existing Baseline and/or requires additional start-up expenses, then
such additional function will be considered New Services, and prior to
performing such New Services:
1) ISSC will quote to ADVO the adjustment in the Annual Services
Charge or other payment method that will reflect such New Services,
which will be based upon the required proportional adjustment in
system and other applicable resources relative to the Annual
Services Charge; and
2) ADVO, upon receipt of such quote, may then elect to have ISSC
perform the New Services, and the Annual Services Charge and the
Baselines will be adjusted, if necessary, to reflect such New
Services.
6.6 Taxes
a) The Annual Services Charge and ARCs (if any) paid by ADVO are inclusive
of any applicable sales, use, personal property or other taxes
(exclusive of telecommunications taxes) attributable to periods on or
after the Commencement Date based upon or measured by ISSC's cost in
acquiring or providing equipment, materials, supplies or services
furnished or used by ISSC in performing or furnishing the Services,
including without limitation, all personal property and use taxes, if
any, due on ISSC Machines and Systems Software.
b) In the event that a sales, use, excise or services tax is assessed on
the provision of the Services (or any New Services) by ISSC to ADVO or
on ISSC's charges to ADVO under this Agreement, however levied or
assessed, ADVO will be responsible for and pay the amount of any such
tax. ADVO will also be responsible for paying all personal property or
use taxes due on or with respect to ADVO Machines, End User Machines
and Applications Software and for the payment of any telecommunications
taxes for network lines and circuits.
c) Each Party shall bear sole responsibility for all taxes, assessments
and other real property-related levies on its owned or leased real
property.
d) The Parties agree to reasonably cooperate with each other to more
accurately determine each Party's tax liability and to minimize such
liability to the extent legally permissible.
e) Each Party shall provide and make available to the other any resale
certificates, information regarding out-of-state sales or use of
equipment, materials or services, and other exemption certificates or
information reasonably requested by either Party. The Parties will also
work together to segregate the Annual Services Charge and ARCs into
separate payment streams:
1) that for taxable Services;
2) that for nontaxable Services;
3) that for which a sales, use or similar tax has already been paid by
ISSC; and
4) that for which ISSC functions merely as a paying agent for ADVO in
receiving goods, supplies or services (including leasing and
licensing arrangements) that otherwise are nontaxable or have
previously been subject to tax.
6.7 Extraordinary Reduction of ADVO Work
a) If, during the Term, ADVO experiences significant changes in the scope
or nature of its business which have or are reasonably expected to have
the effect of causing sustained substantial decreases in the amount of
ISSC resources used in performing the Services, provided such decreases
are not due to ADVO resuming the provision of such Services by itself
or ADVO transferring the provision of such Services to another vendor,
such changes shall be governed by this Section.
Substantial decreases shall be considered:
1) a 35% or more decrease in the amount of ISSC resources used in
performing AD/M Services; or
2) a 25% or more decrease in the total amount of ISSC resources used
in performing all Services, including AD/M Services.
Examples of the kinds of events that might cause such substantial decreases
include but are not limited to;
1) voluntary or involuntary bankruptcy;
2) changes to locations where ADVO operates;
3) changes in ADVO's products or markets;
4) mergers, acquisitions or divestitures (which in the case of mergers
or acquisitions could include the performance of some of the
Services by the surviving third-party entity of the merger or the
acquirer, or the designee of either of them, which shall be deemed
not to be the transfer of Services to another vendor, provided that
the merger or acquisition is primarily for business reasons
unrelated to ADVO's avoidance of its obligations under this
Agreement);
5) changes in the method of service delivery (other than use of
another vendor); or
6) changes in market priorities.
b) ADVO will notify ISSC of any event or discrete set of events which ADVO
believes qualifies under this Section and ISSC will identify the
changes that need to be made to accommodate the extraordinary decrease
of resource requirements in a cost-effective manner without disruption
to ADVO's ongoing operations, and the cost savings that will result
therefrom in a plan that will be submitted to ADVO for review and
acceptance.
c) Effective upon the occurrence of the event or discrete sets of events,
unless otherwise notified by ADVO, ISSC will make any applicable
adjustments to the charges and the Baselines to reflect the foregoing
and distribute an amended Supplement to the Parties.
d) ADVO may, at its option and expense, employ an accredited and
independent auditor to verify that ISSC's methodology for calculating
the savings referenced in Section 6.7(b) above conform to accepted
accounting practices, and to verify that ISSC's methodology captures,
for ADVO's benefit, any savings resulting from the extraordinary
reduction in resource requirements. ADVO may raise any discrepancy it
may have with the adjustment made pursuant to Section 6.7(c) above by
disputing the first invoice reflecting such adjustment pursuant to
Section 7.5.
6.8 Services Transfer Assistance
It is the intent of the Parties that at the expiration or termination of
this Agreement, ISSC will cooperate with ADVO to assist with the orderly
transfer of the services, functions and operations provided by ISSC
hereunder to another services provider or ADVO itself. Prior to expiration
or termination of the Agreement, ADVO may request ISSC to perform and, if
so requested, ISSC shall perform (except in the event of a termination due
to a failure by ADVO to pay any undisputed amounts due and payable under
this Agreement) services in connection with migrating the work of ADVO to
another services provider or ADVO itself ("Services Transfer Assistance").
Services Transfer Assistance shall be provided until the effective date of
expiration or termination with respect to the Services, and for expiration
or termination related services other than those relating to the Services,
for up to six additional months after the effective date of expiration or
termination. Subject to Section 6.8(d) below, Services Transfer Assistance
shall include, but not be limited to, providing ADVO and its Affiliates and
their agents, contractors and consultants, as necessary, with services such
as the following:
a) Premigration Services
1) freezing all noncritical Software changes,
2) notifying all outside vendors of procedures to be followed during
the turnover phase,
3) reviewing all Software libraries (tests and production) with the
new service provider and/or ADVO,
4) assisting in establishing naming conventions for the new production
site,
5) analyzing space required for the data bases and Software libraries,
and
6) generating a tape and computer listing of the source code in a form
reasonably requested by ADVO.
b) Migration Services
1) unloading the production data bases,
2) delivering tapes of production data bases (with content listings)
to the new operations staff,
3) assisting with the loading of the data bases,
4) assisting in the execution of a parallel operation until the
effective date of expiration or termination of this Agreement.
c) Postmigration Services
1) answering questions regarding the Services on an "as needed" basis,
and
2) turning over of any remaining ADVO owned reports and documentation
still in ISSC's possession.
d) If any Services Transfer Assistance provided by ISSC requires the
utilization of additional resources for which there is a current
Baseline that ISSC would not otherwise use in the performance of this
Agreement, ADVO will pay ISSC for such usage at the then current
Agreement charges. If the Services Transfer Assistance requires ISSC to
incur expenses in addition to the expenses that ISSC would otherwise
incur in the performance of this Agreement, then:
1) ISSC shall notify ADVO of any additional expenses associated with
the performance of any additional services pursuant to this Section
prior to performing such services;
2) upon ADVO's authorization, ISSC shall perform the additional
services and invoice ADVO for such services; and
3) ADVO shall pay ISSC for such additional expenses incurred to
provide the additional services within ten business days of the
date of the invoice.
6.9 Other Expenses and Charges
ADVO will be financially responsible for all costs and expenses associated
with its responsibilities specified in Section 5. Such costs and expenses
are not included within the Annual Services Charge, ARCs or any other
charges payable by ADVO under this Agreement.
7.0 Invoicing and Payment
7.1 Annual Services Charge Invoices
ISSC will invoice ADVO on a monthly basis the proportional amount of the
Annual Services Charge for that month in advance. The portion of the Annual
Services Charge attributable to Applications Development will be separately
stated on the invoice. The invoice will state separately applicable taxes
owed by ADVO, if any, by tax jurisdiction.
7.2 ARC, RRC and COLA Invoicing
Beginning three months following the establishment of the Baselines
pursuant to Schedule J, ISSC will invoice ADVO quarterly for the amount
due, if any, for the preceding three months. The invoice will detail a
single, three-month ARC for Help Desk calls and three, one-month ARCs-less-
RRCs calculations for Resource Units other than Help Desk calls.
ISSC will invoice ADVO for COLA in accordance with Section 6.3.
7.3 Other Charges
Any amount due under this Agreement for which a time for payment is not
otherwise specified will be due and payable within 60 days after the date
of the invoice.
7.4 Invoice Payment
a) Annual Services Charge and COLA Invoices:
Beginning on or about the Commencement Date and at the beginning of each
month thereafter, ISSC will invoice ADVO for the proportional amount of the
Annual Services Charge. ADVO agrees to pay the charges within 30 days of
the date of the invoice.
b) ARC and RRC Invoices:
ADVO will pay each invoice within 60 days of the date of an invoice.
In the event that any payments for charges not disputed by ADVO in
accordance with Section 7.5 are not received by ISSC within five days
following the due date, a late fee equal to the lower of two percent of the
amount of such payment per month or the maximum amount allowed by
applicable law shall also be paid to ISSC by ADVO.
7.5 Disputed Charges
a) In the event that ADVO has reasonable cause to believe an invoiced amount
is in error, ADVO may withhold the disputed amount from the payment for
such invoice and notify ISSC of the disputed amount in writing with
appropriate documentation demonstrating ADVO's position. If ISSC agrees
that the disputed amount is not due ISSC, it will notify ADVO in writing
that it accepts ADVO's position and will correct the billing error with a
credit on the next quarter's ARC/RRC invoice, unless the Parties mutually
agree to an alternative invoice method for such correction. If ISSC
determines that the disputed amount is due ISSC, in full or in part, it
will notify ADVO in writing of the amount still due with appropriate
documentation supporting its position. If the Parties still do not agree on
the disputed amount, the matter will be addressed through the Dispute
Resolution process as described in Section 16.2. Upon resolution:
1) if the disputed amount is due ISSC, ISSC will invoice ADVO for such
amount on the next quarter's ARC/RRC invoice and ADVO will pay such
amount in accordance with the payment terms defined in Section 7.4; or
2) if the disputed amount is not due ISSC, ISSC (once the dispute is
resolved) will correct the billing error with a credit on the next
quarter's ARC/RRC invoice, unless the Parties mutually agree to an
alternative invoice method for such correction.
Notwithstanding the foregoing, the maximum amount ADVO may withhold
pursuant to this Section 7.5 shall not in the aggregate exceed one month's
payment of the Annual Services Charge hereunder. ADVO shall pay disputed
amounts above the foregoing threshold to ISSC under protest, without
waiving any of ADVO's rights to recover such disputed amounts.
b) In the event that ADVO, as the result of an audit or other examination
of its records, has reasonable cause to believe a previously-paid
amount was in error, ADVO may report the disputed amount to ISSC in
writing with appropriate documentation demonstrating ADVO's position.
1) If ISSC agrees that the disputed amount was not due ISSC, it will
notify ADVO in writing that it accepts ADVO's position and will
reimburse ADVO for the disputed amount by issuing a credit for
such amount on the next quarter's ARC/RRC invoice, unless the
Parties mutually agree to an alternative invoice method for such
correction.
2) If ISSC determines that any portion of the disputed amount was, in
fact, due ISSC, it will notify ADVO in writing of its findings
with reasons for such determination. If the Parties still do not
agree on the disputed amount, the matter will be addressed through
the Dispute Resolution process as described in Section 16.2. Upon
resolution, if any portion of the disputed
amount is due ADVO, ISSC will reimburse ADVO for such portion of
the disputed amount by issuing a credit for such portion of the
disputed amount on the next quarter's ARC/RRC invoice, unless the
Parties mutually agree to an alternative invoice method for such
correction.
In the event such credits as described in this Section 7.5(b) are not
issued to ADVO by ISSC in accordance with clause 7.5(b), a late fee equal
to the lower of two percent of the amount of such payment per month or the
maximum amount allowed by applicable law shall also be due to ADVO by ISSC.
7.6 Proration
All periodic charges under this Agreement are to be computed on a basis of
12 equal months, and will be prorated on a per diem basis for any partial
month, unless specifically stated otherwise in this Agreement.
7.7 Refundable Items
If ISSC should receive during the Term any refund, credit or other rebate
in respect of a License which is attributable to a period prior to the
Maintenance Period Date specified on Schedule F, ISSC will promptly notify
ADVO of such refund, credit or rebate and will promptly pay to ADVO the
full amount of such refund, credit or rebate.
If ADVO should receive during the Term any refund, credit or other rebate
in respect of a License which is attributable to a period on or after the
Maintenance Period Date specified on Schedule F, ADVO will promptly notify
ISSC of such refund, credit or rebate and will promptly pay to ISSC the
full amount of such refund, credit or rebate.
7.8 Other Credits
Except as otherwise set forth in this Agreement, with respect to any amount
to be paid or reimbursed to ADVO by ISSC pursuant to this Agreement, ISSC
may, at its option, pay that amount to ADVO by giving ADVO a credit against
the charges otherwise payable to ISSC hereunder at the time any such amount
is due and payable to ADVO.
8.0 Intellectual Property Rights
Pursuant to this Agreement, ISSC, its subcontractors and ADVO personnel may
develop, create, modify or personalize (collectively, "Develop") certain
computer programming code, including source and object code ("Code") and
documentation to perform the Services.
8.1 Intellectual Property Definitions
a) "Derivative Work" means a work based on one or more preexisting works,
including, without limitation, a condensation, transformation,
expansion or adaptation, which, if prepared without authorization of
the owner of the copyright of such preexisting work, would constitute a
copyright infringement.
b) "Materials" means Type I, Type II, Type III, Type IV and Type V
Materials collectively.
c) "Type I Material" means Developed Code which constitutes a Derivative
Work of software for which the copyright is owned by ADVO, and any
related Type V Materials.
d) "Type II Materials" means Developed Code funded by ADVO as an ADVO-
owned deliverable (including if so funded through FTEs and FPs as
described in Schedule J) and any related Type V Materials which are
provided as a Service hereunder and which does not constitute a
Derivative Work of any Software owned by IBM or its Affiliates or any
third party.
Type II Materials do not include Developed Code that is:
1) jointly funded by ISSC with ADVO; or
2) jointly funded by ADVO with any other customer of ISSC
to the extent such funding relationship was agreed to by the Parties. The
ownership of such jointly funded Materials and Code shall be determined by
the Parties as a part of such agreement.
e) "Type III Material" means any other Developed Code which does not
constitute a Derivative Work of any software owned by ADVO, IBM or its
Affiliates or any third party, and any related Type V Materials.
f) "Type IV Material" means Code Developed under this Agreement which
constitutes Derivative Works of software for which the copyright is
owned by IBM, its Affiliates or subcontractors, and any related Type V
Materials.
g) "Type V Material" means literary works of authorship Developed under
this Agreement, such as user manuals, charts, graphs and other written
documentation and machine-readable text and files and excludes Code.
8.2 ISSC Developed Code
With respect to any Materials whether Developed solely by ISSC or its
subcontractors, or jointly by ADVO personnel and ISSC or its
subcontractors, ownership will be as follows:
a) Type I and II Materials shall be owned by ADVO, and ISSC shall
have the following license rights:
1) an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform and distribute such Materials
internally for the sole benefit of and exclusive use by ADVO
during the Term; and
2) the right to sublicense third parties to do any of the foregoing.
b) Type III and IV Materials shall be owned by ISSC, and ADVO shall have
the following license rights:
1) an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform and distribute such Materials
internally within ADVO and its Affiliates; and
2) the right to sublicense third parties to do any of the foregoing.
8.3 ADVO Developed Code
With respect to any Materials whether or not Developed under this
Agreement, which are or have been Developed solely by ADVO personnel or as
Type I or Type II Materials, such Materials shall be owned by ADVO, and
ISSC, at ADVO's sole option, shall have the following license rights:
a) an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform and distribute such Materials for
the purpose of performing the Services for the sole benefit of ADVO
during the Term; and
b) the right to sublicense third parties to do any of the foregoing.
8.4 General Rights
a) At the expiration or earlier termination of this Agreement, so long as
ADVO has not materially breached its obligations under this Agreement,
ISSC will grant to ADVO the following license rights in the Materials
owned by ISSC:
1) an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform, modify and distribute the
Materials internally for the sole benefit of and exclusive use by
ADVO and its Affiliates; and
2) the right to sublicense third parties to do any of the foregoing.
b) Any ownership or license rights herein granted to either Party are
limited by and subject to any patents and copyrights held by, and terms
and conditions of any license agreements with,
applicable third party software providers and unless otherwise agreed
to by the Parties, the Parties shall make a diligent effort to assure
that no such license agreements unduly restrict use of such Materials
for the benefit of the other Party or unduly increase the other Party's
cost.
c) To the extent any of the Materials may not, by operation of law, be
owned by the Party to which ownership has been granted (as described in
this Section 8), each Party agrees to assign and hereby assigns,
without further consideration, the ownership of all right, title and
interest in all U.S. and foreign copyrights and mask work rights (if
any) in such Materials to the other Party, and such assignee Party
shall have the right to obtain and hold in its own name copyrights,
registrations, renewals and all other rights relating or pertinent
thereto.
d) The Parties agree to reproduce copyright legends which appear on any
portion of the Materials which may be owned by third parties.
e) This Agreement shall not preclude ISSC from developing materials or
providing services which are competitive to the Materials irrespective
of their similarity to computer programming code, documentation or
other materials or services which might be delivered pursuant to this
Agreement, except to the extent any of same may infringe any of ADVO's
patent rights or copyrights or disclose Confidential Information in
violation of Section 9.
For any Materials developed by ISSC personnel directly supporting ADVO
during the Term, excepting ISSC Data Center operators, ISSC will use its
reasonable good faith efforts to identify and provide information
concerning such Materials to ADVO, and if ADVO notifies ISSC that such
Materials contain or may contain information or materials or know-how
unique to ADVO's type of business and/or proprietary to ADVO (but not in
any instance network management or general data processing information or
materials or know-how) (the "Sensitive Materials"), ADVO may request a
review of such Materials to determine if they, in fact, contain such
information or materials or know-how. If ADVO can reasonably make a showing
that the Materials are Sensitive Materials, then ISSC shall limit its use
of such Materials in the telecommunications and media industry to its own
internal use; any other use of the Materials shall first be reviewed and
approved by ADVO and such approval shall not be unreasonably withheld or
delayed. Any disputes arising under this Section 8.4(e) shall be resolved
in accordance with the dispute resolution provisions of Section 16.2.
The employees of each Party during the Term may further develop their
general knowledge, skills and experience. The subsequent use by such
employees of such general knowledge, skills and expertise in the ordinary
course of business does not constitute a breach of this Agreement provided
it does not infringe any
intellectual property rights of the disclosing Party (including any
intellectual property rights granted hereunder). However, except for the
licenses expressly granted under this Section 8, neither this Agreement nor
any disclosure made hereunder grants any license to either Party under any
patents or copyrights of the other Party.
f) Each Party shall cooperate with the other Party, at such other Party's
expense, in registering or renewing copyrights or patent rights for
Materials of which the ownership by the other Party is identified in
this Section 8.
9.0 Confidentiality/Data Security
9.1 Confidential Information
ISSC and ADVO each acknowledge that the other possesses and will continue
to possess information that has been created, discovered, developed by or
provided to it by a third party and in which property rights have been
assigned or otherwise conveyed to it, which information has commercial
value in its business and is not in the public domain. Except as otherwise
specifically provided by the Parties, "Confidential Information" shall
mean:
a) all information marked or otherwise identified as confidential (whether
or not specifically enumerated in this Section 9), restricted, or
proprietary by either Party; and
b) ADVO's customer lists, customer information, account information, and
information regarding business planning and operations of ADVO and
ADVO's administrative, financial or marketing activities.
9.2 Obligations
a) ISSC and ADVO will protect Confidential Information residing on the
system in accordance with the responsibilities set forth in Schedule L.
b) With respect to all other Confidential Information (e.g., hardcopy, E-
Mail, fax) provided by one Party to the other, each will use the same
care to prevent disclosing to third parties such Confidential
Information of the other as it employs to avoid disclosure, publication
or dissemination of its own information of a similar nature.
c) Notwithstanding the foregoing, the Parties may disclose such
information to subcontractors involved in providing Services under this
Agreement, or to others with a reasonable need to know, where:
1) such disclosure is necessary to permit the subcontractor to
perform its duties hereunder;
2) the disclosing Party assumes full responsibility for the acts or
omissions of its subcontractor, no less than if the acts or
omissions were those of the disclosing Party; and
3) pursuant to a mutually satisfactory confidentiality agreement.
d) Without limiting the generality of the foregoing, neither Party will
publicly disclose the terms of this Agreement, except to the extent
permitted by Section 9.3 and Section 15, without the prior written
consent of the other. Furthermore, neither ISSC nor ADVO will:
1) make any use of the Confidential Information of the other except
as contemplated by this Agreement;
2) acquire any right in or assert any lien against the Confidential
Information of the other; or
3) refuse to promptly return, provide a copy of or destroy such
Confidential Information upon the request of the other Party;
provided, however, that the employees of each Party during the Term may
further develop their general knowledge, skills and experience. The
subsequent use by such employees of such general knowledge, skills and
expertise in the ordinary course of business does not constitute a breach
of this Agreement provided it does not infringe any intellectual property
rights of the disclosing party.
e) These obligations shall apply during the Term and for a period of five
years thereafter.
9.3 Exclusions
Notwithstanding the foregoing, this Section will not apply to any
information which ISSC or ADVO can demonstrate was:
a) at the time of disclosure to it, in the public domain (provided however
that any compilation of information in the public domain shall not
itself per se be considered to be in the public domain);
b) after disclosure to it, published or otherwise becomes part of the
public domain through no fault of the receiving Party;
c) in the possession of the receiving Party at the time of disclosure to
it;
d) received after disclosure to it from a third party who had a lawful
right to disclose such information to it; or
e) independently developed by the receiving Party without reference to
Confidential Information of the furnishing Party.
Further, either Party may disclose Confidential Information of the other to
the extent required by law or order of a court or governmental agency;
provided, however, that the recipient of such Confidential Information must
give the discloser prompt notice and make a reasonable effort to obtain a
protective order or otherwise protect the confidentiality of such
information, all at the discloser's cost and expense. It is understood that
the receipt of Confidential Information under this Agreement will not limit
or restrict assignment or reassignment of employees of ISSC and ADVO within
or between the respective Parties and their Affiliates.
9.4 Loss of Confidential Information
In the event of any disclosure or loss of Confidential Information, the
receiving Party will notify the furnishing Party immediately.
9.5 Limitation
ISSC will not be responsible for corruption, loss or mistransmission of
data or for the security of data during transmission via public
telecommunications facilities, provided ISSC has performed its obligations
under this Agreement with respect to such data.
10.0 Termination
10.1 Termination for Convenience
Subject to the other provisions of this Agreement, ADVO may terminate this
Agreement beginning three years after the Commencement Date upon at least
180 days prior written notice to ISSC. If ADVO terminates this Agreement
prior to the expiration of the Term, other than as specified in Section
10.2, ADVO agrees to pay ISSC on the effective date of the termination, the
Termination Charge, as specified in the Supplement, which the Parties agree
is ADVO's sole and exclusive liability for such termination. Any
termination charge will be prorated according to the following formula:
[{(A-B) / 12 months} x C] + B = Prorated Termination
Charge.
where:
A = the Termination Charge specified in the Supplement for the year in
which termination is effective;
B = the Termination Charge specified in the Supplement for the year after
the year in which termination is effective; and
C = the number of months remaining during the year in which termination
is effective.
10.2 Termination for Cause
Upon written notice, either Party may terminate this Agreement, or to the
extent reasonably practicable a portion thereof, without charge to the
terminating Party, in the event of a material breach by the other. However,
the Party seeking termination will provide the other Party with sufficient,
reasonable written prior notice of such material breach and the opportunity
to cure same, as follows:
a) in the event of a failure to pay any amount due and payable under this
Agreement when due, at least thirty (30) days in the first instance of
such failure and ten (10) days in any subsequent instance of such
failure within any 12 month period; and
b) in the event of any other material breach, at least 45 days in the
first instance of such failure and thirty (30) days in any subsequent
instance of such failure within any twelve month period.
If the nature of any first occurrence in any twelve month period of any
nonmonetary breach is such that it would be unreasonable to expect a cure
within a 45 day period, the breaching Party shall be given an additional 15
days to cure such breach. In the event the material breach is not cured
within the periods specified above after delivery of the notice, the
nonbreaching Party may terminate this Agreement, which termination shall be
in writing, as of a date specified in such notice of termination. The
terminating Party shall have all rights and remedies generally afforded by
law or equity, subject to the limitations expressed in this Agreement.
10.3 Extension of Services
Except in the case of a termination of this Agreement due to a material
breach by ADVO, ADVO may once request and ISSC will extend the provision of
Services for a period not to exceed 180 days beyond the effective date of
termination or expiration. Such request must be in the form of a written
notice received by ISSC not less than 60 days prior to the effective date
of termination or expiration of the Agreement.
ADVO will reimburse ISSC for all additional expenses, if any, incurred by
ISSC as a result of ISSC's provision of such extended Services from the
effective date of Termination which are not otherwise covered by the Annual
Services Charge, ARCs or other charging methodology described herein.
10.4 Other Rights Upon Termination
Provided ADVO has not materially breached its obligations under this
Agreement:
a) ADVO may request to purchase and ISSC may consider to sell, at its
reasonable discretion, the ISSC-owned machines then currently being
used by ISSC on a dedicated basis to perform the Services at fair
market value, as determined by a mutually agreed upon appraisal. ADVO
shall be responsible for any taxes associated with the purchase of, as
well as the costs for any appraisals of, such equipment.
b) For Software proprietary to ISSC or its Affiliates (if necessary to be
used to provide the Services) and not otherwise owned by or licensed to
ADVO in accordance with Section 8 and not generally commercially
available:
1) ISSC will provide a license to ADVO, for its internal use only,
upon terms and prices to be mutually agreed upon by the Parties
that are comparable to, and in the case of prices, that do not
exceed, the prices and terms for similar commercial software. If
such similar commercial software does not exist, such license will
be provided at a price intended to generally compensate ISSC for
its investment in such software as such compensation would be
implemented in its commercial products; or
2) at ADVO's option, ISSC will recommend a mutually agreeable
commercially available substitute to perform the same function.
c) ISSC will use reasonable efforts to obtain the right to transfer all
Software licenses used in support of ADVO to ADVO at the termination or
expiration of the Term without charge. If this is not possible, ISSC
will notify ADVO prior to obtaining such Software and subject to ADVO's
acceptance of any applicable vendor terms and conditions and payment by
ADVO of any transfer fee, license fee or other charges imposed by such
vendor:
1) with respect to generally commercially available Software, if ISSC
has licensed or purchased and is using any such Software solely
for providing the Services to ADVO at the date of expiration or
termination, ISSC will transfer the requested Software to ADVO and
ADVO will reimburse ISSC for initial license or purchase charges
for such Software in an amount equal to the remaining unamortized
cost of such Software, if any, depreciated over a five year life;
2) with respect to generally commercially available Software, if ISSC
has licensed or purchased and is using any such Software for
providing the Services to ADVO and other ISSC customers in a
shared environment at the date of expiration or termination, ISSC
will assist ADVO in obtaining licenses for such Software; and
3) ISSC will transfer or assign to ADVO or its designee, upon ADVO's
request, on mutually acceptable terms and conditions, any
contracts applicable solely to the Services being provided to ADVO
(i.e., maintenance, disaster recovery services and other necessary
third party services with the exception of subcontractor services)
then being used by ISSC to perform the Services.
d) ISSC will further use its reasonable efforts, where necessary or
appropriate, to obtain new Software licenses in ADVO's name and through
the Change Management Procedures, during the Term.
e) ISSC will provide Services Transfer Assistance pursuant to Section 6.8.
11.0 Liability
11.1 General Intent
Each Party's and each of its subcontractor's entire liability to the other
Party and their exclusive remedies are set forth in this Section and
Section 13. Subject to the specific provisions of this Section, it is the
intent of the Parties that each Party will be liable to the other Party for
any damages incurred by the nonbreaching Party as a result of the breaching
Party's failure to perform its obligations in the manner required by this
Agreement.
11.2 Damages
a) Each Party's and each of its subcontractor's entire liability for
actual, direct damages resulting from such party's performance or
nonperformance under this Agreement, regardless of the form of action,
and whether in contract, tort (including, without limitation,
negligence), warranty or other legal or equitable grounds, will be
limited in the aggregate for all claims to an amount equal to:
1) the amount actually paid by ADVO to ISSC for the Services during
the six months prior to the occurrence of the first event which is
the subject of the first claim; or
2) in the case where less than six months of the Term have elapsed at
the time of an event which is the subject of a claim, the actual
charges during the first six months of the Term.
b) This limitation will not apply to:
1) any obligation or failure by ADVO to pay any amounts due or past
due and owing to ISSC pursuant to the terms of this Agreement;
2) Losses by either Party for bodily injury or damage to real
property or tangible personal property, as described in Section
13.3;
3) Losses incurred by a Party caused by or arising out of the
inaccuracy or untruthfulness of the representations and warranties
of the other Party contained in this Agreement;
4) either Party's obligation to indemnify the other for patent and
copyright infringement Losses and Losses relating to tax
liabilities, as provided in Sections 13.1(a) and (f) and 13.2(a)
and (c), respectively; and
5) Losses incurred by either Party arising under the indemnity by the
other Party under Section 13.1(d) and (e) and 13.2(d).
c) In no event will either Party have any liability whether based on
contract, tort (including, without limitation, negligence), warranty or
any other legal or equitable grounds, for any loss of interest, profit
or revenue by the other Party or for any consequential, indirect,
incidental, special, punitive or exemplary damages suffered by the
other Party, arising from or related to this Agreement, even if such
Party has been advised of the possibility of such losses or damages;
provided, however, that this clause will not prevent either Party from
recovering amounts owed under this Agreement.
d) In no event will ISSC or its subcontractors be liable for any damages
if and to the extent caused by ADVO's failure to perform its
responsibilities, nor shall ADVO be liable for any damages if and to
the extent caused by any failure to perform by ISSC or its
subcontractors.
12.0 Warranty
12.1 Claims
ADVO warrants it has no knowledge or notice of any actual or threatened
claim or action by, on behalf of or related to, any of the Affected
Associates, including, but not limited to, claims arising under the
Occupational Safety and Health Administration, Equal Employment Opportunity
Commission, National Labor Relations Board or Fair Labor Standards Act, or
other applicable federal, state or local laws or regulations, except as
such claims or actions are identified in Schedule P.
12.2 Ownership of ADVO Machines
ADVO represents that ADVO is either the owner of each ADVO Machine or is
authorized by its owner to include it under this Agreement.
12.3 Environmental
a) ADVO represents that:
1) ADVO is authorized to permit ISSC access to and use of the ADVO
Network and other ADVO facilities used in connection with
performing the Services, (the "Facilities"), and ISSC is
performing the Services for ADVO at the Facilities at ADVO's
request; and
2) the Facilities are in compliance with all material applicable
federal, state and local laws governing the storage, existence,
discharge and handling of Hazardous Materials. ADVO is responsible
for any waste generated at its Facilities and, if applicable, the
proper manifest of any hazardous waste to appropriate disposal
sites under ADVO's name and identification number.
b) "Hazardous Materials" means:
1) any "hazardous substance" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended from time to time (42 U.S.C. 9601 et seq.) and the
regulations promulgated thereunder;
2) any asbestos or asbestos-containing materials;
3) petroleum, crude oil or any fraction thereof, natural gas or
synthetic gas used for fuel; and
4) any additional substances or materials which at such time are
classified or considered to be hazardous or toxic under the laws
of the state wherein the Facilities are located.
c) In the event that Hazardous Materials are present at the Facilities
during the Term of this Agreement, ISSC may cease the performance of
that portion of the Services affected by their presence if, in the
reasonable judgment of ISSC, ISSC's ability to perform such portion of
the Services safely and properly is adversely impacted by the presence
of such Hazardous Materials. ADVO shall be responsible for causing any
violation of federal, state or local law with respect to the presence
of such Hazardous Materials to be remedied, it being understood that
matters relating to the investigation, detection, abatement and
remediation of any Hazardous Materials present at the Facilities are
not within the scope of this Agreement and that ISSC shall not be
liable or responsible for any expense incurred by ADVO in this
connection, unless ADVO's investigation reveals that the presence of
the Hazardous Materials was caused by the conduct of an ISSC employee,
invitee, or subcontractor. In such event, the limitations of this
paragraph will not apply.
12.4 Noninfringement
The Parties represent and warrant that they will perform their
responsibilities under this Agreement in a manner that does not infringe,
or constitute an infringement or misappropriation of, any patent, trade
secret, copyright or other proprietary right of any third party.
12.5 Compliance with Obligations
Each Party represents and warrants that its entry into this Agreement does
not violate or constitute a breach of any of its contractual obligations
with third parties.
12.6 Disclaimer
a) ISSC does not warrant the accuracy of any advice, report, data or other
product delivered to ADVO which is produced with or from data and/or
Software provided by ADVO. Such products are delivered AS IS, and ISSC
shall not be liable for any inaccuracy thereof.
b) Subject to the obligations of ISSC contained in this Agreement, ISSC
does not assure uninterrupted or error-free operation of the Machines.
c) EXCEPT AS PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER EXPRESS
WARRANTIES AND THERE ARE NO IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
12.7 Authorization and Enforceability
Each Party hereby represents that:
a) it has all requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby;
b) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of each Party;
and
c) this Agreement has been duly executed and delivered by such Party and
(assuming the due authorization, execution and delivery hereof by the
other Party) is a valid and binding obligation of such Party,
enforceable against it in accordance with its terms.
12.8 Regulatory and Corporate Proceedings
Each Party agrees to obtain all necessary regulatory approvals applicable
to its business, obtain any necessary permits, and comply with any
regulatory requirement applicable to the performance of the Services.
13.0 Indemnities
13.1 Indemnity by ISSC
ISSC, for itself and on behalf of its subcontractors, where applicable,
agrees to indemnify, defend and hold ADVO, its Affiliates and their
respective officers, directors, employees,
agents, successors and assigns harmless, in accordance with the procedures
described in Section 13.6 from and against any and all Losses incurred by
ADVO arising from or in connection with:
a) any claims of infringement made against ADVO of any United States
letters patent, or any copyright, trademark, service ▇▇▇▇, trade name
or similar proprietary rights conferred by contract or by common law or
by any law of the United States or any state, alleged to have occurred
because of equipment, systems, products or other resources or items
provided to ADVO by ISSC; provided, however, that ISSC will have no
obligation with respect to any Losses to the extent the same arise out
of or in connection with ADVO's modification of a program or a machine
or ADVO's combination, operation or use with devices, data or programs
not furnished by ISSC or its subcontractors;
b) any duties or obligations accruing on or after the Commencement Date
arising out of or in connection with any Licenses, subject to Sections
3.3 and 3.4;
c) any claims by ADVO Affiliates against ISSC related to the Services;
d) any claim or action by, on behalf of, or related to, an Affected
Associate (except as set forth in Section 4.1(c)), including claims
arising under applicable federal, state or local laws or regulations,
including without limitation workers' compensation laws, relating to
ISSC's employment, offer of employment, or other ISSC obligations in
Section 3.2 hereof, of the Affected Associates on or after the
Commencement Date;
e) any claim or action by, on behalf of, or related to, any Affected
Associate not hired by ISSC arising directly out of the fact that such
Affected Associate was not hired by ISSC, including claims arising
under applicable federal, state or local laws or regulations; and
f) any amounts, such as taxes, interest and penalties, assessed against
ADVO which are obligations of ISSC pursuant to Section 6.6.
13.2 Indemnity by ADVO
ADVO agrees to indemnify, defend and hold ISSC, its Affiliates and their
respective officers, directors, employees, agents, successors and assigns
harmless, in accordance with the procedures described in Section 13.6, from
and against any and all Losses, arising from or in connection with:
a) any claims of infringement made against ISSC of any United States
letters patent, or any copyright, trademark, service ▇▇▇▇, trade name
or similar proprietary rights conferred by contract or by common law or
by any law of the United States or any state, alleged to have occurred
because of equipment,
systems, products or other resources or items provided to
ISSC by ADVO hereunder, provided, however that ADVO will have no
obligation with respect to any Losses to the extent that, unless
required by ADVO hereunder, the same arise out of or in connection with
ISSC's modification of a program or a machine or ISSC's combination,
operation or use with devices, data or programs not furnished by ADVO;
b) any duties or obligations accruing prior to the Maintenance Period Date
specified on Schedule F by ADVO arising out of or in connection with
any Licenses;
c) any amounts, including but not limited to taxes, interest and
penalties, assessed against ISSC which are obligations of ADVO pursuant
to Section 6.6;
d) any claim or action by, on behalf of, or related to, the Affected
Associate, including but not limited to claims arising under applicable
federal, state or local laws or regulations, including without
limitation workers' compensation laws, relating to ADVO's employment of
the Affected Associates prior to their employment by ISSC; and
e) any environmental claim arising out of this Agreement or as a result of
the Services performed at ADVO's Facilities unless ISSC has caused the
environmental damage by actions unrelated to and unauthorized by this
Agreement.
13.3 Cross Indemnity and Contribution
Each Party agrees to contribute to the amount paid or payable by the other
Party for any and all Losses for which such Party is legally liable and in
proportion to such Party's comparative fault in causing such Losses,
arising in favor of any person, corporation or other entity, including the
Parties hereto and their employees, contractors and agents, on account of
personal injuries, death or damage to tangible personal or real property in
any way incident to, or in connection with or arising out of:
a) this Agreement;
b) the Services provided by ISSC hereunder;
c) the presence of such Party, its employees, contractors or agents on the
premises of the other Party; or
d) the act or omission of such Party, its employees, contractors or
agents.
13.4 Subrogation
In the event that an Indemnifying Party shall be obligated to indemnify an
Indemnified Party pursuant to Sections 13.1, 13.2 or 13.3, the Indemnifying
Party shall, upon payment of such indemnity in full, be subrogated to all
rights of the Indemnified Party with respect to the claims and defenses to
which such indemnification relates.
13.5 Exclusive Remedy
The indemnification rights of each Indemnified Party pursuant to Sections
13.1, 13.2 or 13.3, together with any equitable remedies, shall be the
exclusive remedies of such Indemnified Party with respect to the claims to
which such indemnification directly relates.
13.6 Indemnification Procedures
a) If any civil, criminal, administrative or investigative action or
proceeding (any of the above being a "Claim") is commenced against any
Party entitled to indemnification under Sections 13.1, 13.2 or 13.3 (an
"Indemnified Party") written notice thereof shall be given to the Party
that is obligated to provide indemnification under such Sections (the
"Indemnifying Party") as promptly as practicable. After such notice, if
the Indemnifying Party shall acknowledge in writing to such Indemnified
Party that this Agreement applies with respect to such Claim, then the
Indemnifying Party shall be entitled, if it so elects, in a written
notice delivered to the Indemnified Party not fewer than 10 days prior
to the date on which a response to such Claim is due, to take control
of the defense and investigation of such Claim and to employ and engage
attorneys to handle and defend the same, at the Indemnifying Party's
sole cost and expense after providing the Indemnified Party advance
written notice of the counsel to be retained and allowing for
reasonable comment. The Indemnified Party shall cooperate in all
reasonable respects with the Indemnifying Party and its attorneys in
the investigation, trial and defense of such Claim and any appeal
arising therefrom; provided, however, that the Indemnified Party may,
at its own cost and expense, participate, through its attorneys or
otherwise, in such investigation, trial and defense of such Claim and
any appeal arising therefrom. No settlement of a Claim that involves a
remedy other than the payment of money by the Indemnifying Party
without contribution by the Indemnified Party shall be entered into
without the consent of the Indemnified Party, which consent will not be
unreasonably withheld.
b) After notice by the Indemnifying Party to the Indemnified Party of its
election to assume full control of the defense of any such Claim, the
Indemnifying Party shall not be liable to the Indemnified Party for any
legal expenses incurred thereafter by such Indemnified Party in
connection with the defense of that Claim. If the Indemnifying Party
does not assume full control over the defense of a Claim subject to
such defense as provided in this Section 13.6, the Indemnifying Party
may participate in such defense, at its sole cost and expense, and the
Indemnified Party shall have the right to defend the Claim in such
manner as
it may deem appropriate, at the cost and expense of the Indemnifying
Party.
14.0 Insurance and Risk of Loss
14.1 Insurance
When this Agreement requires performance by ISSC's or ADVO's employees or
subcontractors on the other Party's premises, the performing Party shall
carry and maintain Worker's Compensation Insurance, including Employers
Liability Insurance, covering its employees and subcontractors engaged in
such performance in amounts no less than required by law in the applicable
location.
14.2 Risk of Loss
ADVO is responsible for risk of loss of, or damage to, Machines located on
ADVO's premises and any loss of or damage to Software in ADVO's possession
at the time of such loss or damage. ISSC is responsible for risk of loss
of, or damage to, Machines located on ISSC's premises and any loss of or
damage to Software in ISSC's possession at the time of such loss or damage.
The foregoing shall not be interpreted to relieve ISSC of any of its
express obligations otherwise set forth in this Agreement.
15.0 Publicity
Each Party will submit to the other all advertising, written sales
promotion, press releases and other publicity matters relating to this
Agreement in which the other Party's name or ▇▇▇▇ is mentioned or language
from which the connection of said name or ▇▇▇▇ ▇▇▇ be inferred or implied,
and will not publish or use such advertising, sales promotion, press
releases, or publicity matters without prior written approval of the other
Party. However, either Party may include the other Party's name and a
factual description of the work performed under this Agreement on employee
bulletin boards, in its list of references and in the experience section of
proposals to third parties, in internal business planning documents and in
its annual report to stockholders, and whenever required by reason of
legal, accounting or regulatory requirements.
16.0 Review Committee and Dispute Resolution
16.1 Joint Advisory Committee
ISSC and ADVO agree to create a Joint Advisory Committee consisting of four
people of the following titles from each Party:
ISSC
1) Director, ISSC Media Industry
2) Project Delivery Executive, ISSC Media Industry
3) ISSC Project Executive
ADVO
1) Vice President and Chief Information Officer
2) ADVO Finance Director
3) ADVO Project Executive
The Joint Advisory Committee will:
a) conduct quarterly reviews of the progress on projects;
b) annually review the operating and strategic plans prepared by the
Project Executives;
c) review, on an annual basis, performance objectives and measurements;
d) provide advice and direction on technology changes; and
e) resolve disputes between the Parties.
16.2 Dispute Resolution
a) Any dispute between the Parties either with respect to the
interpretation of any provision of this Agreement or with respect to
the performance by ISSC or by ADVO hereunder shall be resolved as
specified in this Section 16.2.
1) Upon the written request of either Party, each of the Parties will
appoint a designated representative who does not devote
substantially all of his or her time to performance under this
Agreement, whose task it will be to meet for the purpose of
endeavoring to resolve such dispute.
2) The designated representatives shall meet as often as necessary to
gather and furnish to the other all information with respect to
the matter in issue which is appropriate and germane in connection
with its resolution.
3) Such representatives shall discuss the problem and negotiate in
good faith in an effort to resolve the dispute without the
necessity of any formal proceeding relating thereto.
4) During the course of such negotiation, all reasonable requests
made by one Party to the other for nonprivileged information
reasonably related to this Agreement, will be honored in order
that each of the Parties may be fully advised of the other's
position.
5) The specific format for such discussions will be left to the
discretion of the designated representatives but may include the
preparation of agreed upon statements of fact or written
statements of position furnished to the other Party.
b) If the designated representatives cannot resolve the dispute, then the
dispute shall be escalated to the President of ADVO and the President
of ISSC, for their review and resolution. If the dispute cannot be
resolved by such officers, then the Parties may initiate formal
proceedings; however, formal proceedings for the judicial resolution of
any such dispute may not be commenced until the earlier of:
1) the designated representatives concluding in good faith that
amicable resolution through continued negotiation of the matter in
issue does not appear likely; or
2) 30 days after the initial request to negotiate such dispute; or
3) 30 days before the statute of limitations governing any cause of
action relating to such dispute would expire.
16.3 Continued Performance
Except where clearly prevented by the area in dispute, both Parties agree
to continue performing their respective obligations under this Agreement
while the dispute is being resolved unless and until such obligations are
terminated or expire in accordance with the provisions hereof.
17.0 General
17.1 Control of Services
a) This Agreement shall not be construed as constituting either Party as
partner of the other or to create any other form of legal association
that would impose liability upon one Party for the act or failure to
act of the other or as providing either Party with the right, power or
authority (express or implied) to create any duty or obligation of the
other Party.
b) Each Party shall be responsible for the management, direction and
control of its employees and such employees shall not be employees of
the other Party.
c) Except where this Agreement expressly provides that ISSC will perform
certain identified Services as agent for ADVO, the Services will be
under the control, management and supervision of ISSC.
17.2 Right to Perform Services for Others
Each Party recognizes that ISSC personnel providing Services to ADVO under
this Agreement may perform similar services for
others and this Agreement shall not prevent ISSC from using the personnel
and equipment provided to ADVO under this Agreement for such purposes. ISSC
may perform its obligations through its subsidiaries, Affiliates or through
the use of ISSC-selected independent contractors; provided, however, that:
a) ISSC will obtain the advance approval of ADVO (which approval shall not
be unreasonably withheld or delayed) prior to bringing any
subcontractor on ADVO premises;
b) ISSC will obtain the advance approval of ADVO (which approval shall not
be unreasonably withheld or delayed) prior to subcontracting any
Services requiring a direct interface between the subcontractor and
ADVO; and
c) ISSC will not be relieved of any of its obligations under this
Agreement by use of any such subsidiaries, Affiliates or
subcontractors.
For the purposes of this Section, any subcontractors listed on Schedule
K shall be considered to have been approved by ADVO.
17.3 Scope of Services
The Services provided under this Agreement are for Machines and facilities
located within the United States, Puerto Rico or Guam.
17.4 Amendments and Revisions
No changes or modifications to this Agreement, its Supplement and Schedules
may be made orally, but only by a written amendment or revision signed by
both Parties.
Any terms and conditions varying from this Agreement, its Supplement and
Schedules on any order or written notification from either Party are void.
17.5 Force Majeure
a) Neither Party shall be liable for any default or delay in the
performance of its obligations hereunder:
1) if and to the extent such default or delay is caused, directly or
indirectly, by fire, flood, earthquake, elements of nature or acts
of God, acts of war, terrorism, riots, civil disorders, rebellions
or revolutions in the United States, strikes, lockouts, or labor
difficulties, or any other similar cause beyond the reasonable
control of such Party; or
2) provided such default or delay could not have been prevented by
reasonable precautions and cannot reasonably be circumvented by
the nonperforming Party through the use of alternate sources,
work-around plans or other means,
(individually, each being a "Force Majeure Event").
b) In such event, the nonperforming Party will be excused from any further
performance or observance of the obligation(s) so affected for as long
as such circumstances prevail and such Party continues to use
commercially reasonable efforts to recommence performance or observance
whenever and to whatever extent possible without delay. Any Party so
delayed in its performance will immediately notify the other by
telephone (to be confirmed in writing within five days of the inception
of such delay) and describe at a reasonable level of detail the
circumstances causing such delay.
c) If any Force Majeure Event substantially prevents, hinders, or delays
perfor-▇▇▇▇▇ of the Services necessary for the performance of ADVO's
critical functions for more than 30 consecutive days, then at ADVO's
option:
1) ADVO may procure such Services from an alternate source and ISSC
will be liable for payment for such Services in excess of ISSC's
charges under this Agreement for up to 180 days; or
2) this Agreement will terminate as of a date specified by ADVO in a
written notice of termination to ISSC and ADVO will pay ISSC any
unrecovered start-up costs, anticipated profit prorated to the
date of termination, and any reasonable out-of-pocket expenses
associated with ramp down transition costs, all subject to
independent audit.
d) This Section 17.5 does not limit or otherwise affect ISSC's obligation
to provide disaster recovery services in accordance with Schedule G;
provided, however, that such Force Majeure Event does not also prevent
ISSC's provision of the Services from the recovery center(s).
e) With the exception of charges for the directly affected portion of
Services, this Section 17.5 does not limit or otherwise relieve ADVO's
obligation to pay any monies due ISSC under the terms of this
Agreement.
17.6 Nonperformance
To the extent any Party is not able to perform its nonmonetary obligations
under this Agreement as a result of the other Party's failure to perform
its obligations under this Agreement, such nonperformance shall be excused.
17.7 Remarketing
ADVO may not remarket all or any portion of the Services provided under
this Agreement, or make all or any portion of the Services available to any
party other than ADVO or its Affiliates, without the prior written consent
of ISSC.
17.8 Waiver
No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof.
17.9 Severability
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and such
provision shall be deemed to be restated to reflect the original
intentions of the Parties as nearly as possible in accordance with
applicable law(s).
17.10 Limitations Period upon Termination
Neither Party may bring an action, regardless of form, arising out of this
Agreement more than two years after the cause of action was discovered or
four years from the date the cause of action reasonably should have been
discovered.
17.11 Counterparts
This Agreement shall be executed in duplicate counterparts. Each such
counterpart shall be an original and both together shall constitute but
one and the same document.
17.12 Governing Law
This Agreement shall be governed by the laws of the State of New York as
such laws are applied to contracts which are entered into and performed
entirely within the State of New York. The Parties agree that the
exclusive jurisdiction for any dispute arising hereunder shall be in the
federal district court with appropriate jurisdiction in the State of
Connecticut, or if there is no jurisdiction in federal district court,
then in the state court in Connecticut with appropriate jurisdiction.
17.13 Survival, Binding Nature and Assignment
Any terms of this Agreement which by their nature extend beyond its
expiration or termination remain in effect until fulfilled. This Agreement
will be binding on the Parties and their respective successors and
permitted assigns. For purposes of this Agreement, a change in Control of
a Party or a sale of all or substantially all of the assets of a Party
shall be deemed an assignment of this Agreement.
Neither Party may, or will have the power to, assign this Agreement
without the prior written consent of the other, except that either Party
may assign its rights and obligations under this Agreement, without the
approval of the other, to an
Affiliate or to any party acquiring all or substantially all of ADVO's
assets which expressly assumes such Party's obligations and
responsibilities hereunder, provided that the assigning Party remains
fully liable for and shall not be relieved from the full performance of
all obligations under this Agreement.
Any attempted assignment that does not comply with the terms of this
Section shall be null and void. Any Party assigning its rights or
obligations to an Affiliate in accordance with this Agreement shall,
within three business days of such assignment, provide written notice
thereof to the other Party together with a copy of the assignment
document.
17.14 Notices
Under this Agreement whenever one Party is required or permitted to give
notice to the other, such notice will be deemed given when delivered in
hand, one day after being given to an express courier with a reliable
system for tracking delivery, or three days after the day of mailing, when
mailed by United States mail, registered or certified mail, return receipt
requested, postage prepaid, or when sent by facsimile and thereafter
delivered by one of the foregoing methods of delivery. Notifications will
be addressed as follows:
1) For termination, breach or default, notify:
In the case of ISSC:
ISSC Project Executive
c/o ADVO
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
ISSC General Counsel
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
In the case of ADVO:
Vice President and CIO
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
ADVO General Counsel
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
2) For all other notices:
In the case of ISSC:
ISSC Project Executive
c/o ADVO
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
In the case of ADVO:
Vice President and CIO
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Either Party hereto may from time to time change its address for
notification purposes by giving the other prior written notice of the new
address and the date upon which it will become effective.
17.15 No Third Party Beneficiaries
Except as specified in Section 11 with respect to either Party's
contractors or subcontractors, the Parties do not intend, nor will any
clause be interpreted, to create for any third party any obligations to or
benefit from either ISSC or ADVO.
17.16 Other Documents
On or after the Commencement Date and the date(s) of any amendments or
revisions hereto and at the request of the other Party, each Party shall
furnish to the other such certificate of its Secretary, certified copy of
resolutions of its Board of Directors, or opinion of its counsel as shall
evidence that this Agreement or any amendment or revision hereto has been
duly executed and delivered on behalf of such Party.
During the Term and at the reasonable request of the other Party, each
Party shall furnish to the other a certificate stating that:
1) this Agreement is in full force and effect; and
2) the other Party is not materially in breach hereof at such time.
The Parties will execute and deliver or cause to be delivered such further
documents and other reasonable supporting documentation as is necessary to
make a showing, to the reasonable satisfaction of the other Party, that a
Party is able to meet its obligations hereunder, as may reasonably be
required for the purposes of assuring and confirming the rights hereby
created, on a current and prospective basis, or for facilitating the
performance of the terms of the Agreement.
17.17 Headings
All headings herein and the table of contents are not to be considered in
the construction or interpretation of any provision of this Agreement.
This Agreement was drafted with the joint participation of both Parties
and shall be construed neither against nor in favor of either, but rather
in accordance with the fair meaning thereof. In the event of any apparent
conflicts or inconsistencies between this Agreement or any Supplements,
Schedules, Exhibits or other Attachments to this Agreement, to the extent
possible such provisions shall be interpreted so as to make them
consistent, and if such is not possible, the provisions of this Agreement
shall prevail.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT,
AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE PARTIES
AGREE THAT THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN
THE PARTIES RELATING TO THIS SUBJECT SHALL CONSIST OF 1) THIS AGREEMENT,
2) THE SUPPLEMENT AND 3) THE SCHEDULES, INCLUDING THOSE MADE EFFECTIVE BY
THE PARTIES IN THE FUTURE. THIS STATEMENT OF THE AGREEMENT SUPERSEDES ALL
PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER
DESCRIBED IN THIS AGREEMENT.
Accepted by: Accepted by:
Integrated Systems Solutions Corporation ADVO, Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ July 16, 1996 By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ July 16, 1996
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