Exhibit 10.12
CLIENT SERVICES AGREEMENT
TELETECH: TELETECH CUSTOMER CARE MANAGEMENT
(TELECOMMUNICATIONS), INC. ("TELETECH")
CLIENT: GTE CARD SERVICES INCORPORATED D/B/A GTE SOLUTIONS ("GTE")
DATE: MAY 1, 1997
SECTION I
SERVICES
1. GENERALLY. By this Client Services Agreement ("Agreement") and each
applicable Task Order which is entered into pursuant to this Agreement
(the applicable "Task Order"), GTE retains TeleTech to provide the
services ("Services") set forth in the applicable Task Order. References
to "this Agreement," "herein," "hereunder" or comparable language shall
be deemed to constitute references to this Client Services Agreement
including any applicable Task Order.
2. ADDITIONAL SERVICES. During the performance of the Services, GTE may
request TeleTech to perform services which are not described in the
applicable Task Order ("Additional Services"). In such event, TeleTech
and GTE will set forth in writing the scope of the Additional Services
that will be provided to GTE and, to the extent that the fees for the
Additional Services are not already provided for in the applicable Task
Order, the parties will negotiate in good faith the fees for any such
Additional Services. Any Additional Services shall be governed by the
terms and conditions of the applicable Task Order and this Agreement.
Where it is reasonable to do so, the term "Services" shall include the
term "Additional Services."
SECTION II
PAYMENT TERMS
3. AMOUNT OF COMPENSATION. Except as otherwise provided herein, the
amounts payable by GTE to TeleTech for the Services provided under this
Agreement are set forth in the applicable Task Order.
4. INVOICES. The procedures for invoicing and payment of invoices are set
forth below:
a. FREQUENCY OF INVOICING. TeleTech will invoice GTE monthly in
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advance for a reasonable estimate of the Services and other charges to be
incurred by GTE in the month at issue.
b. FORM OF INVOICES. The invoices will identify by description and
dollar amount the Services and other charges for which GTE is being invoiced.
c. WHEN INVOICES ARE PAYABLE. GTE will pay the undisputed amounts
set forth on the invoices within 30 calendar days after receipt of each invoice.
Any amount not paid when due (including but not limited to any disputed amount
which GTE shall ultimately be required to pay) will bear interest until paid at
the rate equal to the lesser of (I) 1.0% per month, or (ii) the maximum rate
allowable by law. GTE shall not unreasonably dispute any amount set forth on an
invoice.
d. METHOD OF PAYING INVOICES. **********************************
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e. RECONCILIATION OF ADVANCE ▇▇▇▇▇▇▇▇ WITH ACTUAL CHARGES. Within
30 days after the end of each month at issue, TeleTech will reconcile the
actual ▇▇▇▇▇▇▇▇ for such month with the amount billed in advance for such
month to determine if there has been an over-billing or an under-billing
related to that month. If there has been an under-billing, TeleTech shall
include such under-billing as a charge on the next practicable invoice. If
there has been an over-billing, TeleTech shall give a credit on the next
practicable invoice.
f. FAILURE TO INVOICE AMOUNTS. In the event that TeleTech fails to
invoice for any charge allowed hereunder, it may invoice such amount on a later
invoice. In no event, however, shall TeleTech have the right to invoice such
amount later than 120 days after the invoice on which it should have been
invoiced, except for telecom charges, if any, which may be invoiced up to one
year after the invoice on which they should have been invoiced (if the telecom
provider has the right to invoice for such amount at the applicable time).
g. NOTICE OF DISPUTED CHARGES. Unless GTE provides TeleTech with
notice in writing of a dispute regarding invoicing within 120 days after the
date of the invoice on which the invoicing appears, the invoicing shall be
deemed approved by GTE and the right to dispute any amounts invoiced shall be
deemed waived.
h. AUDIT RIGHTS. Upon written notice to TeleTech, GTE or its
authorized representative shall have the right to commence an audit at GTE's
expense. The scope of the audit shall be reasonable and limited to compliance
with the following: billing (Client Services Agreement, Section II),
restriction on transferring employees to other TeleTech call center (Client
Services Agreement, para. 46), performance (Task
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Order, para. 14), security (Task Order para. 3(m)), disaster recovery (Task
Order, para. 3(n)), quality (Task Order, para. 3(o)), processes and procedures
(Task Order, para. 3(p)), ▇▇▇▇▇▇▇▇ to GTE for Agents, including but limited to
payroll records (Task Order, para. 8), ▇▇▇▇▇▇▇▇ for Other Services (Task
Order, para. 9), ▇▇▇▇▇▇▇▇ for Additional Personnel, including but not limited
to time records (Task Order, para. 10), incentives for agents (Task Order,
para. 8(h)), training (Task Order, para. 3(g)) and any other provisions of
any applicable Task Order which provide additional audit rights. GTE shall
not be allowed to generally audit TeleTech's internal accounting, financial or
other internal proprietary matters. Any notice of an audit shall specify the
specific issues to be audited. Within 30 days of such notice, the parties
will determine the location and date of the audit and specific information and
issues to be audited. No more than one audit may be conducted in any 12 month
period. Audits will be conducted during normal business hours, and GTE shall
be entitled to review reasonable records relevant to the issues of the audit.
The audit shall be completed within 60 days of its commencement.
5. TAXES. If any governmental entity assesses, imposes, levies or charges
any taxes or fees with respect to any Services (including but not limited
to gross receipts taxes, sales or use taxes or value-added taxes) or any
other matter related to this Agreement (collectively, "Taxes"), the Taxes
will be the sole responsibility of GTE. If any such Taxes are paid by
TeleTech, GTE will be invoiced for the same as provided in this
Agreement; provided, however, that GTE will not be responsible for: a)
any net income taxes imposed on TeleTech, b) any gross receipts taxes on
revenue of TeleTech, c) real or personal property taxes on assets owned
or leased by TeleTech, d) any franchise tax imposed on TeleTech for doing
business in any state or locality; or any employment related taxes due
with respect to TeleTech's employees.
Each party shall be responsible for the withholding and/or payment, as
applicable and required by law, of all federal, state, and local tax related to
its employees. Further, each party shall comply with all federal and state
benefits laws applicable to its employees, if any, including making deductions
and contributions for social security and unemployment tax. Each party agrees
to indemnify and hold harmless the other against any and all sums that are due
and owing for withholding FICA, unemployment or other federal, state or local
taxes related to its employees.
SECTION III
TERM
6. TERM OF THIS AGREEMENT. Unless earlier terminated pursuant to the
provisions of this Agreement, the Term of this Agreement shall extend to
the termination date of the last applicable Task Order.
SECTION IV
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OPTIONS TO EXTEND
7. OPTIONS TO EXTEND. GTE is hereby granted 2 consecutive options of 1
year each to extend the Initial Term of each applicable Task Order
(collectively, the "Options to Extend").
8. FIRST YEAR OPTION. The first Option to Extend the Initial Term of an
applicable Task Order by 1 year (the "First Year Option") may be
exercised by GTE by giving written notice to TeleTech prior to 120 days
before its expiration.
9. SECOND YEAR OPTION. The second Option to Extend the Initial Term of an
applicable Task Order for a second year (the "Second Year Option") may be
exercised by GTE by giving written notice to TeleTech prior to 120 days
before the expiration of the First Year Option.
SECTION V
TELETECH'S REPRESENTATIONS AND/OR OBLIGATIONS
10. COMPLIANCE WITH LAW. TeleTech will perform its obligations under this
Agreement in compliance with all applicable federal, state, and local
laws, ordinances, and regulations.
11. INFRINGEMENT. TeleTech warrants and represents that the software and
hardware (including any documentation and training) that it will provide
related to the Services will not violate, infringe upon or misappropriate
any patent, copyright, trade secret or other intellectual property rights
(collectively "Intellectual Property Rights") of any other person or
entity. TeleTech hereby agrees to defend and indemnify and hold GTE
harmless from and against any loss, cost, liability and expense
(including reasonable attorneys' fees) arising out of any breach of this
warranty and representation.
Notwithstanding anything to the contrary contained in this Agreement
(including, but not limited to, Section XI, Indemnification and Insurance), the
provisions of this Section shall govern the rights of GTE and its affiliates,
shareholders, directors, officers, employees, contractors, agents and other
representatives to indemnification for claims of infringement, misappropriation
or violation of Intellectual Property Rights. However, the procedures set forth
in Section XI, Indemnification and Insurance shall apply in the case of any
claims of infringement, misappropriation or violation of Intellectual Property
Rights for which indemnification will be sought.
12. ACCURACY OF INFORMATION. TeleTech agrees that, when it provides or is
required to provide information related to this Agreement, such
information will be timely and materially complete and accurate. GTE
will not be liable for any delays, cost increases or other consequences
resulting from TeleTech's failure to
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provide timely, complete and accurate information. Notwithstanding any
other remedy available hereunder:
a. Any deadline adversely affected by TeleTech's failure to provide
timely, complete and accurate information shall be automatically extended by an
amount of time reasonably required to compensate for such delay; and
b. Although a deadline is extended per paragraph 12(a), TeleTech
shall reimburse GTE for any reasonable costs or expenses incurred by GTE as a
result of TeleTech's failure to provide timely, complete and accurate
information. If GTE claims that it has incurred any such additional costs or
expenses, it shall give TeleTech written notice thereof. TeleTech will
thereafter have 5 days to accept or reject those costs or expenses in writing.
In the event that TeleTech does not reject those costs or expenses within that 5
day period, the costs or expenses will be deemed approved as claimed by GTE.
13. COMPLIANCE WITH OBLIGATIONS. TeleTech agrees that it will comply with its
obligations under this Agreement on a timely basis. GTE will not be
liable for any delays, cost increases or other consequences resulting
from TeleTech's wrongful or breaching acts or omissions or caused by the
negligence or wilful misconduct of TeleTech. Any deadline adversely
affected by TeleTech's wrongful or breaching acts or omissions or caused
by the negligence or wilful misconduct of TeleTech shall be automatically
extended by an amount of time reasonably required to compensate for such
delay. In addition, TeleTech shall reimburse GTE for any reasonable
costs or expenses incurred by GTE as a result of TeleTech's wrongful or
breaching acts or omissions or caused by the negligence or wilful
misconduct of TeleTech.
14. OPERATION OF CUSTOMER SOLUTION CENTER. TeleTech will operate the
Customer Solution Center in accordance with this Agreement and the
applicable Task Order.
15. CONVEYANCE OF PROPERTY. Except as otherwise provided in this Agreement
or the applicable Task Order or as otherwise agreed by the parties,
property conveyed by TeleTech to GTE shall be clear and free from all
encumbrances, including but not limited to claims, charges, security
interests and other liens.
16. PERMITS. Unless otherwise specifically provided for in this Agreement,
TeleTech shall obtain and maintain in full force and effect, at its
expense, any permits, licenses, consents, approvals and authorizations
("Permits") necessary for the performance of its obligations hereunder.
Upon reasonable notice by GTE, TeleTech shall submit to GTE evidence of
any Permits required by this paragraph.
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17. MAINTENANCE OF CUSTOMER SOLUTION CENTER. To the extent that TeleTech is
required to maintain any Customer Solution Center, TeleTech shall
maintain such Customer Solution Center in good repair.
SECTION VI
GTE'S REPRESENTATIONS AND/OR OBLIGATIONS
18. COMPLIANCE WITH LAW. GTE will perform its obligations under this
Agreement in compliance with all applicable federal, state and local
laws, ordinances, and regulations.
19. INFRINGEMENT. GTE warrants and represents that the software and hardware
(including any documentation and training) that it will provide related
to the Services will not violate infringe upon or misappropriate any
Intellectual Property Rights of any other person or entity. GTE hereby
agrees to defend and indemnify and hold TeleTech harmless from and
against any loss, cost, liability and expense (including reasonable
attorneys' fees) arising out of any breach of this warranty and
representation.
Notwithstanding anything to the contrary contained in this Agreement
(including, but not limited to, Section XI, Indemnification and Insurance), the
provisions of this Section (a) shall govern the rights of TeleTech and its
affiliates, shareholders, directors, officers, employees, contractors, agents
and other representatives to indemnification for claims of infringement,
misappropriation or violation of Intellectual Property Rights. However, the
procedures set forth in Section XI, Indemnification and Insurance shall apply in
the case of any claims of infringement, misappropriation or violation of
Intellectual Property Rights for which indemnification will be sought.
20. ACCURACY OF INFORMATION. GTE agrees that, when it provides or is
required to provide information related to this Agreement, such
information will be timely and materially complete and accurate.
TeleTech will not be liable for any delays, cost increases or other
consequences resulting from GTE's failure to provide timely, complete and
accurate information. Notwithstanding any other remedy available
hereunder:
a. Any deadline adversely affected by GTE's failure to provide
timely, complete and accurate information shall be automatically extended by an
amount of time reasonably required to compensate for such delay; and
b. Although a deadline is extended per paragraph 20(a), GTE will
reimburse TeleTech for any reasonable costs or expenses incurred by TeleTech as
a result of GTE's failure to provide timely, complete and accurate information.
If TeleTech claims that it has incurred any such additional costs or expenses,
it shall give GTE written notice thereof. GTE will thereafter have 5 days to
accept or reject those
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costs or expenses in writing. In the event that GTE does not reject those
costs or expenses within that 5 day period, the costs or expenses will be
deemed approved as claimed by TeleTech.
21. COMPLIANCE WITH OBLIGATIONS. GTE agrees that it will comply with its
obligations under this Agreement on a timely basis. TeleTech will not be
liable for any delays, cost increases or other consequences resulting
from GTE's wrongful or breaching acts or omissions or caused by the
negligence or wilful misconduct of GTE. Any deadline adversely affected
by GTE's wrongful or breaching acts or omissions or caused by the
negligence or wilful misconduct of GTE shall be automatically extended by
an amount of time reasonably required to compensate for such delay. In
addition, GTE shall reimburse TeleTech for any reasonable costs or
expenses incurred by TeleTech as a result of GTE's wrongful or breaching
acts or omissions or caused by the negligence or wilful misconduct of
GTE.
22. INFORMATION, LITERATURE AND OTHER MATERIALS RELATED TO GTE'S PRODUCTS.
GTE will provide to TeleTech all information, sales and product
literature (including updates and/or modifications) and other materials
related to GTE's products which are necessary for TeleTech to provide the
Services required by this Agreement. TeleTech shall have the right to
copy all such information, sales and product literature and other
materials for purposes of providing such Services under the applicable
Task Order.
23. PRODUCT SAMPLES. If applicable, GTE will provide to TeleTech sufficient
product samples necessary for TeleTech and its employees to become
familiar with any applicable product and its use.
24. CONVEYANCE OF PROPERTY. Except as otherwise provided in this Agreement
or the applicable Task Order or as otherwise agreed by the parties,
property conveyed by GTE to TeleTech shall be clear and free from all
encumbrances, including but not limited to claims, charges, security
interests and other liens.
25. PERMITS. Unless otherwise specifically provided for in this Agreement,
GTE shall obtain and maintain in full force and effect, at its expense,
any permits, licenses, consents, approvals and authorizations ("Permits")
necessary for the performance of its obligations hereunder. Upon
reasonable notice by TeleTech, GTE shall submit to TeleTech evidence of
any Permits required by this paragraph.
26. MAINTENANCE OF CUSTOMER SOLUTION CENTER. To the extent that GTE is
required to maintain any component of any Customer Solution Center, GTE
shall maintain such Customer Solution Center in good repair.
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SECTION VII
INDEPENDENT CONTRACTOR RELATIONSHIP
27. INDEPENDENT CONTRACTOR RELATIONSHIP. Unless otherwise agreed to in this
Agreement, in providing any Services, TeleTech is acting solely as an
independent contractor. Persons employed by a party shall be under the
sole and exclusive direction and control of such party and shall not be
considered employees of the other party for any purpose. Each party
shall be responsible for compliance with all laws, rules and regulations
involving its respective employees or agents, including, but not limited
to, employment of labor, hours of labor, health and safety, working
conditions and payment of wages. Nothing contained in this Agreement is
intended to give rise to a partnership, joint venture or fiduciary
relationship between the parties or to impose upon the parties any of the
duties or responsibilities of partners, joint venturers or fiduciaries.
SECTION VIII
CENTER BUY-OUT OPTION
(TELETECH OWNED CUSTOMER SOLUTION CENTER)
28. CENTER BUY-OUT OPTION. If and only if the applicable Task Order
specifically provides GTE with the right to do so, GTE shall have the
option to terminate this Agreement before its expiration without
constituting a breach, by exercising the Center Buy-out Option described
in EXHIBIT A attached hereto.
SECTION IX
FACILITIES MANAGEMENT CONTRACT TERMINATION OPTION
(GTE OWNED CUSTOMER SOLUTION CENTER)
29. FACILITIES MANAGEMENT CONTRACT TERMINATION OPTION. If and only if the
applicable Task Order specifically provides GTE with the right to do so,
GTE shall have the option to terminate this Agreement before its
expiration without constituting a breach, by exercising the Facilities
Management Termination Option which will ultimately be attached hereto as
EXHIBIT B ("FMC Termination Option"). Exhibit B will be negotiated,
agreed to and attached to this Agreement at such time as the parties
negotiate the first Customer Solution Center as a Facilities Management
Contract.
SECTION X
DEFAULT
30. EVENTS OF DEFAULT. Subject to any applicable notice and cure provisions,
the following are "Events of Default" under the applicable Task Order:
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a. FAILURE TO PAY AMOUNTS WHEN DUE. Subject to the notice and cure
provisions provided in this paragraph, GTE's failure to pay amounts when due
under the terms and conditions of this Agreement shall constitute an Event of
Default. Notwithstanding anything provided in this Agreement, however, the fact
that GTE withholds payment of an amount because of a billing dispute regarding
an invoiced amount (as opposed to withholding amounts for offset of alleged
damages, other alleged liabilities or for any other reason) ("Billing Dispute")
in good faith shall not constitute an Event of Default. To constitute a good
faith withholding for a Billing Dispute, the amount withheld must be withheld in
good faith as to both subject matter and amount. To the contrary, if GTE
withholds an amount for a Billing Dispute in bad faith (as to subject matter or
amount), TeleTech shall have the right to seek any remedy available under this
Agreement or the law or equity.
In the event that GTE fails to make any payment which constitutes an
Event of Default, TeleTech shall give GTE written notice thereof. GTE shall,
then, have 30 days to cure such breach.
b. FAILURE OF TELETECH TO MEET PERFORMANCE STANDARDS. The default
provisions with respect to the performance standards governing any applicable
Task Order shall be contained in the performance standard provisions of that
Task Order.
c. FAILURE OF A PARTY TO PERFORM ITS OTHER OBLIGATIONS. Subject to
the notice and cure provisions provided herein, a party's failure to
substantially perform any other material obligation under the applicable Task
Order shall constitute an Event of Default. In the event that a party has
materially and substantially failed to perform any of its other obligations
under the applicable Task Order, the non-defaulting party shall give the
defaulting party written notice thereof. The defaulting party shall then have 30
days to cure such default; provided that, if such default cannot practicably be
cured within such 30 day period and is susceptible to a cure, then the
defaulting party will not be considered in default if it commences to cure
within the initial 30 day period and in good faith diligently and continuously
proceeds to cure the default. In no event, however, shall the cure period extend
beyond a total of 45 days, unless otherwise agreed in writing by the parties.
d. BANKRUPTCY AND SIMILAR PROCEEDINGS. The following shall
constitute Events of Default:
i. The commencement of any involuntary proceeding in bankruptcy
or insolvency under federal or state law or the appointment of a receiver or an
assignee for the benefit of creditors for a substantial portion of a party's
assets which is not dismissed or terminated within 90 days after its
initiation; or
ii. The commencement of any voluntary proceeding in bankruptcy
or insolvency under federal or state law.
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31. TERMINATION OF PERFORMANCE. Except as otherwise provided herein, in the
event of any uncured Event of Default, the non-defaulting party may,
without waiving any other rights or remedies, terminate this Agreement.
Notwithstanding the foregoing, an uncured Event of Default shall not give
the non-defaulting party the right to terminate a Task Order unless such
Event of Default has a material effect on either: a) the defaulting
party's performance under the particular Task Order at issue; or b) the
benefits to the non-defaulting party under the particular Task Order at
issue.
32. TRANSITION SERVICES IN THE EVENT OF TERMINATION BECAUSE OF DEFAULT. In
the event that a party gives notice of termination under the applicable
Task Order because of the default of the other party and provided that
GTE complies with the advance payment provisions set forth in this
Paragraph, TeleTech shall be required (in the event of a written request
by GTE) to perform reasonable transition services for GTE for a period
not to exceed 120 days after notice of termination. As a condition
precedent to TeleTech's obligation to perform any such transition
services, GTE must pay, in advance to TeleTech by wire transfer, an
amount equal to the average monthly ▇▇▇▇▇▇▇▇ by TeleTech to GTE for the
six month period immediately before the termination no later than the
first day of each month during the transition period. If GTE fails to
make any advance payment required by this Paragraph, TeleTech shall have
no obligation to perform any such transition services and may stop the
same immediately. Within 30 days after the end of each month during the
transition period, TeleTech will reconcile the actual ▇▇▇▇▇▇▇▇ for the
month at issue with the amounts advanced for the month at issue to
determine if there has been an over-payment or an under-payment by GTE
related to that month. If there has been an under-payment, GTE shall
immediately pay to TeleTech the amount of the under-payment. If there
has been an over-payment, TeleTech, at its option, shall immediately do
one of the following: a) credit GTE the amount of the over-payment
against the estimated amount due from GTE for the next month of the
transition period; or b) refund such over-payment to GTE. GTE shall be
entitled to a reasonable final audit of the ▇▇▇▇▇▇▇▇ for the transition
services and of the reconciliation of such ▇▇▇▇▇▇▇▇ against any advance
payments.
33. CUMULATIVE REMEDIES. Except as otherwise provided in this Agreement,
upon the occurrence of an Event of Default, the non-defaulting party
may seek all remedies at law, equity or statute, and such remedies will
be cumulative.
SECTION XI
INDEMNIFICATION AND INSURANCE
34. INDEMNIFICATION BY TELETECH.
a. TeleTech shall defend, indemnify and hold harmless GTE and its
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affiliates, officers, agents and employees from all claims, suits, actions,
demands, damages, liabilities, expenses (including but not limited to reasonable
attorneys fees and costs), judgments, settlements and penalties of every kind
related to TeleTech's (either directly or through its officers, agents,
subcontractors or representatives) acts or omissions, breach of this Agreement
or the matters referred to in Subparagraph (b) below. The obligations in this
Paragraph 34 are in addition to TeleTech's duty to provide insurance and shall
not be limited by any limitation on the amount or type of damages, compensation,
or benefits payable by TeleTech under the Worker's Compensation Acts,
Longshoremen and Harborworker's Act, Disability Benefits Acts, or any other
employee benefit act.
b. Without limitation of (a) above, TeleTech shall, to the fullest
extent permitted by law, defend, indemnify and hold harmless GTE, its
affiliates, officers, agents and employees, from all claims, suits, actions,
demands, damages, liabilities, expenses (including but not limited to reasonable
attorneys fees and costs), judgments, settlements and penalties of every kind
arising from or related to the following matters:
i) TeleTech's failure to comply with all federal, state or local
laws, rules or regulations applicable to employees;
ii) TeleTech's failure to comply with the terms of Section XIII,
Confidential Information;
iii) TeleTech's failure to pay all fees and royalties for the
use of patented articles, software or methods in connection with its obligations
under this Agreement;
iv) TeleTech's failure to obtain or maintain the Permits
referred to in Section V, Permits; and
iv) Contributions to any multiemployer pension plans affecting
TeleTech's employees.
c. GTE shall promptly notify TeleTech in writing of any suits, claims
or demands covered by any indemnity required by this paragraph 34. Failure to
provide such notice shall not relieve TeleTech of its obligations under this
paragraph 34 except to the extent that TeleTech is prejudiced by the failure to
give prompt notice. Promptly after receipt of such notice, TeleTech shall
assume the defense of and reasonably defend any such claim with counsel of
TeleTech's choice which is reasonably satisfactory to GTE. Notwithstanding the
above, if GTE in its sole discretion so elects, GTE may also participate in the
defense of such claims by employing counsel at its expense, without waiving
TeleTech's obligations to indemnify or defend. TeleTech shall not settle or
compromise or consent to the entry of judgment of any such suit, claim or
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demand (with one or more prosecuting parties) without the prior written consent
of GTE which shall not be unreasonably withheld.
35. INDEMNIFICATION BY GTE.
a. GTE shall defend, indemnify and hold harmless TeleTech and its
affiliates, officers, agents and employees from all claims, suits, actions,
demands, damages, liabilities, expenses (including not limited to reasonable
attorneys fees and costs), judgments, settlements and penalties of every kind
related to GTE's (either directly or through its officers, agents,
subcontractors or representatives) acts or omissions, breach of this Agreement
or the matters referred to in Subparagraph (b) below. The obligations in this
Paragraph 35 are in addition to GTE's duty to provide insurance and shall not be
limited by any limitation on the amount or type of damages, compensation, or
benefits payable by GTE under the Worker's Compensation Acts, Longshoremen and
Harborworker's Act, Disability Benefits Acts, or any other employee benefit act.
b. Without limitation of (a) above, GTE shall, to the fullest extent
permitted by law, defend, indemnify and hold harmless TeleTech, its affiliates,
officers, agents and employees, from all claims, suits, actions, demands,
damages, liabilities, expenses (including but not limited to reasonable
attorneys fees and costs), judgments, settlements and penalties of every kind
arising from or related to the following matters:
i) GTE's failure to comply with all federal, state or local
laws, rules or regulations applicable to employees;
ii) GTE's failure to comply with the terms of Section XIII,
Confidential Information;
iii) GTE's failure to pay all fees and royalties for the use of
patented articles, software or methods in connection with its obligations under
this Agreement;
iv) GTE's failure to obtain or maintain the Permits referred to
in Section VI, Permits; and
iv) Contributions to any multiemployer pension plans affecting
GTE's employees.
c. TeleTech shall promptly notify GTE in writing of any suits, claims
or demands covered by any indemnity required by this paragraph 35. Failure to
provide such notice shall not relieve GTE of its obligations under this
paragraph 35 except to the extent that TeleTech is prejudiced by the failure to
give prompt notice. Promptly
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after receipt of such notice, GTE shall assume the defense of and reasonably
defend any such claim with counsel of GTE's choice which is reasonably
satisfactory to TeleTech. Notwithstanding the above, if TeleTech in its sole
discretion so elects, TeleTech may also participate in the defense of such
claims by employing counsel at its expense, without waiving GTE's obligations
to indemnify or defend. GTE shall not settle or compromise or consent to the
entry of judgment of any such suit, claim or demand (with one or more
prosecuting parties) without the prior written consent of TeleTech which shall
not be unreasonably withheld.
36. INSURANCE PROVIDED BY TELETECH. Prior to the commencement of the Services
to be performed under any applicable Task Order and throughout the term
of this Agreement, TeleTech shall procure and maintain the following
insurance naming GTE as an additional insured. All such policies shall
be issued by reputable and financially sound insurance companies
reasonably acceptable to GTE and shall provide that no amendment or
cancellation shall be effective unless GTE receives 30 days prior
written notice.
a. COMPREHENSIVE LIABILITY INSURANCE. TeleTech shall maintain a
policy of "general," "public" or "commercial" comprehensive liability insurance
with policy limits of not less than $1,000,000 per occurrence for bodily injury
and death and $1,000,000 for each occurrence for damage to property;
b. AUTOMOBILE LIABILITY. TeleTech shall obtain a policy of
"general", "public" or "commercial" automobile liability insurance with policy
limits of not less than $1,000,000 per occurrence for bodily injury and death
and $1,000,000 for each occurrence for damage to property;
c. WORKERS' COMPENSATION INSURANCE. To the full extent applicable.
TeleTech shall at all times maintain adequate insurance to comply with all
applicable workers' compensation, occupational disease and occupational health
and safety laws, statutes and regulations in each state where the Services are
to be performed.
d. FIRE AND CASUALTY INSURANCE. TeleTech shall at all times
maintain commercially reasonable fire and casualty insurance related to each
Customer Solution Center.
The use of umbrella or excess liability insurance to achieve the above
required liability limits shall be permitted, provided that such coverage
results in the same types and amounts of coverage that are required hereunder.
All premiums for the coverage required by this paragraph shall be the
responsibility of TeleTech. At the request of GTE, TeleTech shall furnish to
GTE prior to performing Services, certificates evidencing that such policies are
in full force and effect. Each certificate so furnished shall acknowledge that
GTE is named as an additional insured under the applicable policies and shall
set forth on its face the applicable limits of liability. The failure of
TeleTech to
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*CONFIDENTIAL TREATMENT REQUESTED
furnish any such certificate shall not diminish or otherwise affect its
obligation to procure and maintain any policies of insurance contemplated by
this paragraph.
TeleTech hereby waives on behalf of itself and its insurance companies any
rights of subrogation against GTE for personal injury, death and/or property
damage; and to the extent possible, TeleTech shall obtain written waivers of
subrogation from its insurance carriers with respect to such personal injury,
death and/or property damage.
37. INSURANCE PROVIDED BY GTE. Prior to the commencement of the Services to
be performed under any applicable Task Order and throughout the term of
this Agreement, GTE shall procure and maintain the following insurance
naming TeleTech as an additional insured. All such policies shall be
issued by reputable and financially sound insurance companies reasonably
acceptable to TeleTech and shall provide that no amendment or
cancellation shall be effective unless TeleTech receives 30 days prior
written notice.
a. COMPREHENSIVE LIABILITY INSURANCE. GTE shall maintain a policy of
"general," "public" or "commercial" comprehensive liability insurance with
policy limits of not less than $1,000,000 per occurrence for bodily injury and
death and $1,000,000 for each occurrence for damage to property;
b. AUTOMOBILE LIABILITY. GTE shall obtain a policy of "general",
"public" or "commercial" automobile liability insurance with policy limits of
not less than $1,000,000 per occurrence for bodily injury and death and
$1,000,000 for each occurrence for damage to property;
c. WORKERS' COMPENSATION INSURANCE. To the full extent
applicable, GTE shall at all times maintain adequate insurance to comply with
all applicable workers' compensation, occupational disease and occupational
health and safety laws, statutes and regulations in each state where the
Services are to be performed.
d. FIRE AND CASUALTY INSURANCE. GTE shall at all times maintain
commercially reasonable fire and casualty insurance related to any Customer
Solution Center.
The use of umbrella or excess liability insurance to achieve the above
required liability limits shall be permitted, provided that such coverage
results in the same types and amounts of coverage that are required hereunder.
All premiums for the coverage required by this paragraph shall be the
responsibility of GTE. At the request of TeleTech, GTE shall furnish to
TeleTech prior to performing Services, certificates evidencing that such
policies are in full force and effect. Each certificate so furnished shall
acknowledge that TeleTech is named as an additional insured under the applicable
policies and shall set forth on its face the applicable limits of liability.
The failure of GTE to furnish any such certificate shall not diminish or
otherwise affect its
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*CONFIDENTIAL TREATMENT REQUESTED
obligation to procure and maintain any policies of insurance contemplated by
this Section.
GTE hereby waives on behalf of itself and its insurance companies any
rights of subrogation against TeleTech for personal injury, death and/or
property damage; and to the extent possible, GTE shall obtain written waivers of
subrogation from its insurance carriers with respect to such personal injury,
death and/or property damage.
SECTION XII
OWNERSHIP AND USE OF RIGHTS - MISCELLANEOUS
38. LIMITED USE OF MARKS. Each party warrants and represents that it has the
full right, title and interest in and to all trade names, trademarks,
service marks, symbols and other proprietary marks ("Marks"), which it
provides to the other, if any, for use related to the Services. During
the term of this Agreement, the providing party grants to other party
the non-exclusive right to reasonably utilize the Marks in connection
with the obligations of the parties hereunder, including but not limited
to, internally on banners (e.g., to identify GTE's portion of a call
center, if applicable), posters (e.g., for internal promotions), in
TeleTech newsletters, closed-circuit television and training. Each
receiving party agrees to designate the products and services of the
providing party properly and depict the providing party's Marks
accurately. In order to ensure proper use, the providing party will
provide to the receiving party, upon request, camera ready art, beta
quality video and/or digital tiff, eps or bitmap file of the providing
party's Marks, if applicable.
The providing party agrees to indemnify and hold harmless the receiving
party party and its officers, directors, employees, agents and contractors,
from and against any loss, damage, cost or expense (including, without
limitation, reasonable attorneys' fees) arising from any infringement or other
claims made by any third party regarding receiving party's authorized use of the
Marks. In the event of any unauthorized use of the Marks by receiving party,
the providing party shall have the right to seek injunctive relief against
receiving party in addition to any other remedies allowed hereunder.
39. OWNERSHIP OF DATA RESULTING FROM SERVICES. As between GTE and TeleTech,
GTE will own exclusively all customer data collected as a direct result
of the performance of the Services. TeleTech shall keep such data
Confidential pursuant to Paragraph 41 of this Agreement.
40. FURTHER DOCUMENTS AND COOPERATION. Each party will execute such other
documents, and provide such cooperation as the other party reasonably
requests in order to give full effect to the provisions related to
Ownership of Rights. In no event, however, shall the cooperating party be
required to expend
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*CONFIDENTIAL TREATMENT REQUESTED
any funds to do so.
SECTION XIII
CONFIDENTIALITY
41. CONFIDENTIAL INFORMATION. In order for a party to perform its
respective obligations under this Agreement, it may be necessary for that
party to disclose to the other party technical, customer, personnel
and/or business information in written, graphic, oral or other tangible
or intangible forms including, but not limited to, specifications,
records, data, computer programs, drawings, schematics, know-how, notes,
models, reports and samples. Such information may contain proprietary or
confidential material, or material subject to applicable laws regarding
secrecy of communications or trade secrets ("Confidential Information").
a. For this purpose, each party acknowledges and agrees:
i. That, as between TeleTech and GTE, all Confidential
Information acquired by a party from the other shall be and remain the exclusive
property of the disclosing party;
ii. To identify in writing as confidential or proprietary, or
▇▇▇▇ as confidential or proprietary, any information that a party reasonably
identifies as Confidential Information;
iii. That information that is disclosed orally shall not be
considered Confidential Information unless it is reduced to writing or to a
written summary that identifies the orally-disclosed topics to be considered as
Confidential Information and such writing is provided to the receiving party at
the time of disclosure or within 30 days thereafter;
iv. To receive in confidence any Confidential Information; to
limit access to such Confidential Information to authorized employees who have a
need to know the Confidential Information in order for the receiving party to
perform its obligations under this Agreement and who have been informed of the
confidential and proprietary nature; not to disclose, reveal or divulge any
Confidential Information or authorize any other person to do so except as
specifically approved in writing by the disclosing party or as required in
connection with the due and proper performance by the receiving party of its
obligations under this Agreement;
v. To use such Confidential Information only for the purposes of
performing its obligations under this Agreement and for such other purposes as
may be agreed upon between the parties in writing;
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*CONFIDENTIAL TREATMENT REQUESTED
vi. If a receiving party receives a request to disclose any
Confidential Information by any third party or entity (whether pursuant to a
valid and effective subpoena, an order issued by a court or other governmental
authority of competent jurisdiction or otherwise), on advice of legal counsel
that disclosure is required under applicable law, the receiving party agrees
that, prior to disclosing any Confidential Information, it shall notify the
disclosing party of the existence and terms of such request or advice and, if
disclosure is required, use its best efforts to negotiate a protective order or
other reliable assurance that confidential treatment will be afforded to such
portion of the Confidential Information as is required to be disclosed;
vii. That the obligations with respect to Confidential
Information shall extend for a period of 2 years following the termination of
this Agreement; and
x. That nothing contained in this Section shall be construed as a
license or permission to make, use, or sell the Confidential Information or
products derived therefrom.
b. The obligations contained in Section do not apply to Confidential
Information that:
i. Was in the receiving party's possession prior to receipt
thereof from the disclosing party;
ii. Was received by a party in good faith from a third party
not subject to a confidentiality obligation related to the disclosing party;
iii. Now is or later becomes publicly known through no breach of
the confidentiality obligations of the receiving party;
iv. Was developed by the receiving party without the developing
persons having access to any of the Confidential Information received from the
disclosing party; or
v. Is authorized in writing by the disclosing party to be
released or is designated in writing by the disclosing party as no longer being
confidential or proprietary.
c. It is agreed that a violation of any of the provisions of this
Section will cause irreparable harm and injury to the disclosing party and that
party shall be entitled, in addition to any other rights and remedies it may
have at law or in equity, to seek an injunction enjoining and restraining the
receiving party from violating or threatening to violate the provisions of this
Section.
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SECTION XIV
EXCLUSIVITY
42. The provisions related to exclusivity, if any, are set forth in the
applicable Task Order.
SECTION XV
NON-SOLICITATION OF TELETECH EMPLOYEES
43. NON-SOLICITATION OF EMPLOYEES BY GTE. Except as otherwise provided
herein, during the term of the applicable Task Order and for a period of
24 months after its termination for any reason, GTE will not solicit, for
employment in any capacity, any person who is an employee of TeleTech
during the term of the applicable Task Order.
TeleTech shall indemnify and hold harmless GTE from and against any
employee claims (including but not limited to damages, attorneys' fees and
litigation costs) which may result from a TeleTech employee claiming that the
restrictions contained in this paragraph violate the law; provided that, GTE
shall give to TeleTech timely notice of the facts and circumstances of the
occurrence of any such claim and TeleTech shall have the right to defend any
such claim at TeleTech's expense. Notwithstanding the above, if GTE in its sole
discretion so elects, GTE may also participate in the defense of any such claim
by employing counsel at its expense, without waiving TeleTech's obligations to
indemnify or defend.
44. NON-SOLICITATION OF EMPLOYEES BY TELETECH. Except as otherwise provided
herein, for a period of 24 months after the termination of the applicable
Task Order as a result of any applicable Center Buy-out or Facilities
Management Contract Termination Option, TeleTech will not solicit, for
employment in any capacity, any person who is transitioned from being an
employee of TeleTech to being an employee of GTE as a result of any such
Center Buy-out or Facilities Management Contract Termination Option.
GTE shall indemnify and hold harmless TeleTech from and against any
employee claims (including but not limited to damages, attorneys' fees and
litigation costs) which may result from a GTE employee claiming that the
restrictions contained in this paragraph violate the law; provided that,
TeleTech shall give to GTE timely notice of the facts and circumstances of the
occurrence of any such claim and GTE shall have the right to defend any such
claim at GTE's expense. Notwithstanding the above, if TeleTech in its sole
discretion so elects, TeleTech may also participate in the defense of any such
claim by employing counsel at its expense, without waiving GTE's obligations to
indemnify or defend.
45. RESTRICTION ON TRANSFERRING EMPLOYEES TO OTHER TELETECH CALL CENTERS.
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*CONFIDENTIAL TREATMENT REQUESTED
During the term of the Task Order applicable to the GTE Customer Solution
Center at issue, TeleTech will not have the right to transfer any
Permanent Employee who has been dedicated on a full time basis to that
GTE Customer Solution Center to any Non-GTE Call Center. For purposes of
this Agreement, the term "Permanent Employee" will mean a TeleTech
employee who has been permanently assigned by TeleTech at any GTE
Customer Solution Center for less than 18 months. The restrictions
contained in this paragraph will not apply to any of the following: a)
transfers of any employees who are part of TeleTech corporate
administration; b) subject to the reasonable approval of GTE, transfers
made at the request of an employee; or c) employees that are assigned to
a GTE Customer Solution Center on a temporary basis or related to a
temporary project ("Permitted Transfers"). Permitted Transfers of Agents
shall be considered part of Negative Attrition for the purposes of the
Task Order applicable to the GTE Customer Solution Center at issue.
GTE shall indemnify and hold harmless TeleTech from and against any
employee claims (including but not limited to damages, attorneys' fees and
litigation costs) which may result from a TeleTech employee claiming that the
restrictions contained in this paragraph violate the law; provided that,
TeleTech shall give to GTE timely notice of the facts and circumstances of the
occurrence of any claim hereunder and GTE shall have the right to defend any
such claim or action at GTE's expense. Notwithstanding the above, if TeleTech
in its sole discretion so elects, TeleTech may also participate in the defense
of any such claim by employing counsel at its expense, without waiving GTE's
obligations to indemnify or defend.
46. REMEDIES. In the event that a party solicits and hires an employee in
violation of the non-solicitation restrictions contained in paragraph 43
or 44 or TeleTech violates the provisions of paragraph 45 (the "violating
party"), the non-violating party will incur damages, including, but not
limited to, lost investment in training, lost opportunities and
administrative costs, all of which are difficult to determine at this
time. Therefore, the violating party agrees to pay to the non-violating
party as liquidated damages an amount equal to 4 times the hired
employee's most recent annualized gross salary and benefits at the
employment with the non-violating party. The violating party
acknowledges that the foregoing amount is a reasonable estimate of the
non-violating party's damages and costs resulting from the violating
party soliciting and hiring such employee and is not a penalty. Further,
in the event of any such violation, then the non-violating party is
likely to suffer irreparable injuries for which monetary damages may be
insufficient. Therefore, in addition to any other remedies provided at
law, equity, statute or this Agreement, the non-violating party will be
entitled to seek injunctive relief, without the requirement for the
posting of a bond.
47. EXCEPTIONS TO THE NON-SOLICITATION RESTRICTIONS CONTAINED IN THIS
SECTION. The restrictions contained in the paragraphs contained this
Section shall not apply to the following:
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*CONFIDENTIAL TREATMENT REQUESTED
a. To the extent that any such employee has ceased to be employed by
a party for at least 6 months prior to being solicited.
b. To the extent that an employee approaches a party for employment
without being solicited.
c. To the extent that any such employee is transferred from one
TeleTech GTE Customer Solution Center to another TeleTech GTE Customer Solution
Center.
d. To the extent that the solicitation of an employee is authorized
by the exercise of a Buy-out/Termination Option.
SECTION XVI
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FORCE MAJEURE
48. FORCE MAJEURE. For purposes of this Agreement, the following provisions
shall apply to any Force Majeure as defined below:
a. A "Force Majeure" shall mean a cause beyond a party's reasonable
control (and not involving any fault or negligence of the party affected),
including, without limitation, acts of God, acts of war, revolution, riots,
civil commotion, acts of a public enemy, embargo, acts of government in its
sovereign capacity, strikes, lockouts, boycotts, fire, communication line or
utility failures, power failures, earthquakes, floods or other natural disasters
(a "Force Majeure").
b. Changes in business circumstances or business objectives shall not
constitute a "Force Majeure."
c. Upon the occurrence of a Force Majeure, the affected party shall
give prompt notice to the other party. Actual knowledge on the part of the
party not subject to the Force Majeure shall obviate the need for giving any
such written notice.
d. The party affected by the occurrence of a Force Majeure shall be
excused, on a day-to-day basis, during the continuance of the Force Majeure,
from its obligations under the applicable Task Order only to the extent that its
ability to perform such obligations is adversely affected by the Force Majeure.
The other party shall also be excused from its obligations under the applicable
Task Order to the extent that its ability to perform such obligations is
affected by the affected party's inability to perform.
e. In the event of the occurrence of any Force Majeure, the parties
shall use their reasonable best efforts to avoid or remove the inability to
perform obligations under the applicable Task Order.
f. In the event that the Force Majeure continues for a period of more
than 60 days and such effects of the Force Majeure cannot be reasonably removed,
either party may terminate the applicable Task Order by giving written notice
thereof to the other party.
SECTION XVII
ARBITRATION
49. ALTERNATIVE DISPUTE RESOLUTION. Except for certain limited exceptions
and even though this Agreement or any applicable Task Order has been
terminated, the parties desire to resolve any disputes, controversies
and claims related to this Agreement without litigation. Accordingly,
except in the case of (I) injunctive relief or provisional remedies
related to this Agreement, or (ii) a suit, action or proceeding to compel
either party to comply with the dispute resolution procedures set forth
herein, the parties agree to use the following alternative
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procedures as their sole remedy ("Arbitrable Dispute").
a. In the event of an Arbitrable Dispute, the parties attempt to
reach a negotiated resolution by engaging in an executive escalation process as
follows:
i. Either party may commence this executive escalation process
by giving the other party written notice of its desire to do so.
ii. Each party shall promptly designate uninvolved
representatives who have binding authority to resolve the Arbitrable Dispute.
iii. Such representatives shall meet and attempt to agree upon
a resolution of the Arbitrable Dispute.
iv. If the parties agree, the representatives may utilize other
alternative dispute resolution procedures such as mediation to assist in the
negotiations. Discussions and correspondence among the representatives for
purposes of these negotiations shall be treated as confidential information
developed for purposes of settlement, shall be exempt from discovery and
production, and shall not be admissible in the arbitration or any lawsuit
related to this Agreement without consent of the parties. Documents identified
in or provided related to these discussions and correspondence which are not
prepared for purposes of the negotiations, are not so exempted and may, if
otherwise admissible, may be admitted into evidence.
v. Unless the representatives agree otherwise, if the parties
have not agreed upon a resolution within 30 days after the date notice is given
under subsection (a)(I) above, then the executive escalation process shall be
deemed to be completed.
b. If the Arbitrable Dispute is not resolved through the executive
escalation process described above or the parties do not elect to invoke the
executive escalation process, either party may notify the other party of its
intention to submit an Arbitrable Dispute to arbitration, which notice shall
include the name of an experienced arbitrator selected by such party. Within 10
days after the notice is served upon other party, that party may give notice to
the first party either to allow the designated arbitrator to be the sole
arbitrator or name a second experienced arbitrator. If a second experienced
arbitrator is named, the 2 arbitrators shall designate a third experienced
arbitrator. The arbitration shall be heard by the single arbitrator or the
panel of 3 arbitrators, as the case may be (the "Arbitration Panel"). In the
event the Arbitration Panel consists of 3 arbitrators the resolution of the
dispute shall be determined by a majority vote of the Arbitration Panel. The
Arbitrable Dispute shall be conducted pursuant to the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") then in effect (the
"Rules"). Each member of the Arbitration Panel must, for all Arbitrable
Disputes regardless of the amount in controversy, meet the Panel Qualification
Criteria for serving in AAA's Large, Complex Dispute Resolution Program.
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Any judgment upon the award rendered by the Arbitration Panel may be entered by
any court of competent jurisdiction necessary to enforce the award. The place
of the arbitration shall be Wilmington, Delaware. The Arbitration Panel shall
control the scheduling so as to process the matter expeditiously. If there is
any conflict between either the Rules and the terms of this Section, then the
terms of this Section shall control.
c. Subject to subsection (h) hereof relating to tolling of time
limitations, any claim by either party shall be time-barred unless the asserting
party commences an escalation or arbitration proceeding with respect to such
claim within the time limit for commencement of litigation specified by
applicable law. In no event, however, shall such time limit be in excess of two
years after the later of: a) the date the claim arises or b) the date upon
which the asserting party knew or should have known about the existence of the
claim.
d. With respect to any arbitration proceeding, no discovery will be
allowed, other than the production of documents, the responses to which must be
received within 10 days after any written request and no later than 10 days
prior to the arbitration hearing. All pretrial proceedings may be conducted by
telephone conference.
e. All decisions and awards by the Arbitration Panel shall be in
writing and shall include findings of fact, conclusions of law and the reasoning
on which the decisions and award rests. The Arbitration Panel shall not have
the authority to award economic consequential damages or incidental or punitive
damages. Notwithstanding anything provided in this Agreement, neither party
shall in any way be prevented from or limited in recovering benefit of the
bargain damages to the full extent provided by law, equity and/or statute. The
Arbitration Panel shall have no power or authority to issue any determination
except in accordance with this Section. The Arbitration Panel shall rule on the
Arbitrable Dispute by issuing a written opinion within 30 days after the final
arbitration hearing. The times specified in this Section may be extended upon
mutual agreement of the parties or by the Arbitration Panel upon a showing of
good cause.
f. The determination by the Arbitration Panel shall be final,
binding and conclusive unless it either clearly factually or legally erroneous.
g. To the extent permitted by law, any determination or award made
by the Arbitration Panel shall not be RES JUDICATA or have any binding effect in
any unrelated litigation or arbitration in which any party to this Agreement may
also be a party.
h. All applicable statutes of limitation and defenses based upon the
passage of time shall be tolled while the escalation and/or arbitration
procedures specified in this Section are pending.
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i. Unless otherwise determined by the Arbitration Panel, the parties
shall equally share the fees and costs of the Arbitration Panel.
SECTION XVIII
MISCELLANEOUS PROVISIONS
50. JOINT DRAFTING. The parties agree that this Agreement has been jointly
negotiated and drafted by the parties and that it will not be construed
either for or against either party based upon who drafted any part of it.
51. APPLICABLE LAW, VENUE AND JURISDICTION. This Agreement will be governed
by the laws of the State of Delaware, other than that state's choice of
law rules. To the extent allowed by this Agreement and subject to the
Arbitration provisions of paragraph 48, the parties agree that venue for
any legal or equitable action for claims, debts or obligations arising
out of, or to enforce the terms of this Agreement shall be proper in
either Federal or State Court in Delaware, and the parties agree and
submit to jurisdiction of such courts.
52. WAIVERS. Failure to enforce compliance with any term or condition of
this Agreement shall not constitute a waiver of such term or condition.
In the event that any waiver shall be deemed to have occurred, such
waiver shall not be construed as a waiver of any other matter.
53. ASSIGNMENT. Except for assignment to a "Related Entity," neither party
may assign any of its rights or obligations under this Agreement, in
whole or in part, without the prior written consent of the other party.
"Related Entity" as used in this paragraph means any corporation,
partnership, limited liability company or other entity which TeleTech or
GTE controls or by which TeleTech or GTE is controlled. For purposes of
this paragraph, "control" shall mean an ownership interest in excess of
50%.
54. SURVIVAL. Any and all obligations under this Agreement which, by their
very nature, should reasonably survive the termination or expiration of
this Agreement, will so survive, including, without limitation, those
arising from the confidentiality and non-solicitation provisions of this
Agreement.
55. SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or
if any provision is held to be invalid by any arbitrator or court having
jurisdiction over disputes related to this Agreement, such provision
will, if reasonable to do so, be restated to reflect as nearly as
possible the original intentions of the parties in accordance with
applicable law or, if not reasonable to do so, be deemed to be excluded
from the agreement. In any event, all other provisions of this Agreement
will remain in full force and effect.
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56. NOTICES. All notices required or permitted by this Agreement will be
deemed delivered (i) 3 days after being sent by registered mail, postage
pre-paid, return receipt requested, (ii) upon hand-delivery, or (iii) 1
day after being sent by overnight delivery with signed receipt, addressed
as follows (or to such other address as a party may specify in writing):
TeleTech Customer Care Management (Telecommunications), Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
GTE Card Services Incorporated d/b/a GTE Solutions
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Director of Contract Management
57. REQUIRED FILINGS AND PUBLICITY. Neither party will use publicly the
other's name or refer to the other in any way in or with the media,
including without limitation, in advertising, without the other party's
prior written consent; provided, however, that either party may make such
disclosures or filings required to comply with applicable laws, including
filings with regulatory agencies, such as the United States Securities
and Exchange Commission ("SEC"), or disclosures or filings required to
comply with the rules of a national securities exchange or automated
quotations systems such as the National Association of Securities
Dealer's Automated Quotations (NASDAQ).
Only for purposes of the filing a copy of this Agreement or any applicable
Task Order with the SEC or any agency or body, TeleTech will provide GTE with a
reasonable opportunity to identify portions of this Agreement or any applicable
Task Order with respect to which GTE reasonably requests confidential treatment.
For any such provision identified by GTE, TeleTech will cooperate in seeking
confidential treatment from the SEC, agency or body. However, nothing contained
herein, shall be construed to prevent TeleTech from disclosing information or
filing a copy of this Agreement or any applicable Task Order if required by law.
58. ATTORNEYS' FEES AND COSTS. The prevailing party in any dispute arising
under this Agreement (including but not limited to arbitration) will be
entitled to recover from the non-prevailing party all reasonable
attorneys fees and costs.
59. AMENDMENTS. This Agreement, including any exhibits, may not be modified
except in a writing signed by a duly authorized representative of the
party to be charged.
60. INTEGRATION. The exhibits constitute a part of this Agreement. This
Agreement,
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including its exhibits, constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement and
supersedes all prior agreements, discussions, proposals, representations
or warranties, whether written or oral on this subject matter.
61. AUTHORITY. Each party hereto represents and warrants on its own behalf
that the individual signing this Agreement on its behalf is fully
authorized to sign on behalf of and bind it, and that it has the power
and authority to enter into this Agreement.
62. HEADINGS. The headings used in this Agreement have been inserted for
convenience and reference only and do not define or limit the provisions
of this Agreement.
63. COUNTERPARTS. This Agreement may be signed in multiple counterparts,
each of which will be considered an original, and all of which will be
considered one and the same document. This Agreement may be executed by
facsimile signature.
64. CONFLICT WITH TASK ORDER. In the event of any conflict between the
language of this Agreement and the applicable Task Order which is
incorporated into it or incorporates it, the language of the applicable
Task Order will prevail.
65. TOURS OF DEDICATED CALL CENTERS. Without the permission of GTE,
TeleTech will not give, to any existing or potential client of TeleTech
(including but not limited to the employees and agents of any such
existing or potential client), any tours of any Customer Solution Center
which is dedicated to GTE.
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Date:________________________________
TELETECH CUSTOMER CARE MANAGEMENT
(TELECOMMUNICATIONS) INC.
By:__________________________________
Name:________________________________
Title:_______________________________
GTE CARD SERVICES INCORPORATED
d/b/a GTE SOLUTIONS
By:__________________________________
Name:________________________________
Title:_______________________________
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EXHIBIT A
CENTER BUY-OUT OPTION
(TELETECH-OWNED FACILITY)
The Center Buy-out Option means that GTE has the option to buy from
TeleTech the Customer Solution Center described in the applicable Task Order and
terminate the performance of TeleTech's Services under the applicable Task Order
(collectively the "Center Buy-out"). The terms and conditions of the Center
Buy-out are as follows:
1. GTE COMPLIANCE WITH ITS OBLIGATIONS: GTE will not have the right to
take any of the steps set forth in paragraphs 2 or 3 below at any time that an
Event of Default by GTE has occurred and is continuing. The Closing of the
Center Buy-out will also not occur in the event that an Event of Default by GTE
has occurred and is continuing on the Center Buy-out Closing Date.
2. STEPS TO COMPLETE CENTER BUY-OUT. To the extent applicable, the
following are the steps necessary to complete a Center Buy-out under this
Exhibit A:
a. DUE DILIGENCE NOTICE DATE. The Due Diligence Notice Date is the
date upon which GTE delivers to TeleTech written notice of its intention to
exercise the Center Buy-out Option subject to certain conditions. In the Due
Diligence Notice, GTE shall specify whether it intends to complete and close the
Center Buy-out on either the 3rd or 4th anniversary of the Operational Date set
forth in the Task Order ("Scheduled Closing Date"). In no event shall the Due
Diligence Notice Date be less than 180 days before the Scheduled Closing date.
b. MEETING TO DETERMINE WHAT THIRD PARTY CONSENTS ARE REQUIRED.
Within 10 days after the Due Diligence Notice Date, the parties shall meet to
discuss and determine what third party consents are required to complete the
Center Buy-out. At that meeting, TeleTech shall deliver to GTE copies of all
material leases, and maintenance and service contracts which are to be included
in the Purchased Assets as defined herein.
c. COMMENCEMENT AND COMPLETION OF DUE DILIGENCE. For 60 days
after the Due Diligence Notice Date ("Due Diligence Period"), GTE will be
permitted to conduct and complete whatever due diligence inquiries, inspections
and other investigations regarding the Center Buy-out as are reasonably
necessary. TeleTech will cooperate in providing GTE with access and information
related to such reasonable due diligence inquiries, inspections and other
investigations.
d. THIRD PARTY CONSENT DEADLINE DATE. The Closing of the Center
Buy-out shall be contingent upon GTE obtaining any material third party
consents
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1
necessary to complete the Center Buy-out, including, but not limited to, any
material leases or material contracts which are not assignable ("Third Party
Consents"). TeleTech agrees to reasonably cooperate with GTE to obtain such
Third Party Consents. However, TeleTech shall not be required make any
payments or give any consideration to any third party to obtain any Third
Party Consents.
The Third Party Consents will include but not be limited to the
termination or expiration of any applicable waiting period under the ▇▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇ Antitrust Improvements Act of 1974, as amended ("HSR Act Waiting Period
Expiration").
All such Third Party Consents shall be obtained no later than 120 days
following the Due Diligence Notice Date. If all Third Party Consents have been
obtained within such 120 day period except for the HSR Act Waiting Period
Expiration, such 120 day period shall be extended for a reasonable period if
requested by GTE. The termination of such 120 day period (as extended for the
HSR Act Waiting Period Expiration) shall be referred to in this Exhibit A as the
"Third Party Consent Deadline Date."
Except for consents required by law (including, but not limited to,
the HSR Act Waiting Period Expirations) and subject to GTE's indemnification
obligations set forth herein, GTE shall have the right to waive any applicable
Third Party Consents.
e. NOTICE OF EXERCISE OF CENTER BUY-OUT OPTION. GTE shall not
deliver Notice of the Exercise of the Center Buy-out Option until such time as
all applicable Third Party Consents have been obtained or waived. For a period
of 15 days after the Third Party Consent Deadline Date, GTE will have the
right to give written Notice of Exercise of the Center Buy-out Option. If GTE
fails to give Notice of Exercise of the Center Buy-out Option within such
period, the Center Buy-out Option shall expire and be null, void and of no
effect. Subject to the satisfaction of the Closing Conditions (as defined
herein), after giving Notice of Exercise of the Center Buy-out Option, GTE and
TeleTech shall be obligated to complete and close the Center Buy-out.
f. CENTER BUY-OUT CLOSING DATE. The Center Buy-out Closing Date
shall be the later of the following two dates: I) the Scheduled Closing Date;
or ii) 75 days after the Notice of Exercise of the Center Buy-out Option is
delivered.
3. REDELIVERY OF DUE DILIGENCE NOTICE. GTE shall not deliver more than
one Due Diligence Notice during the term of any applicable Task Order; provided,
however, that, if a prior Due Diligence Notice was delivered but the Center
Buy-out was not consummated as a result of the failure to obtain a Third Party
Consent, notwithstanding the delivery of such prior Due Diligence Notice, GTE
shall not be prohibited from delivering one additional Due Diligence Notice if
GTE has reasonable cause to believe that any such Third Consent is likely to be
obtained.
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2
4. CLOSING DELIVERIES; ASSETS TO BE SOLD: At the Center Buy-out Closing
Date, TeleTech will execute and deliver to GTE such bills of sale, assignments
and other documents of conveyance, in form reasonably satisfactory to GTE, as
are necessary to transfer and assign to GTE, as of the Center Buy-out Closing
Date, all of TeleTech's right, title and interest in and to the following assets
(collectively, the "Purchased Assets"):
a. All tenant improvements, equipment and furnishings located at the
Customer Solution Center owned by TeleTech and used by TeleTech in the
operation of the Customer Solution Center;
b. All leases of real property relating to the site of the Customer
Solution Center;
c. All leases of personal property located at the Customer Solution
Center used by TeleTech in the operation of the Customer Solution
Center;
d. All service and maintenance contracts for the Customer Solution
Center;
e. All books and records (or copies thereof) reasonably necessary to
the operation of the Customer Solution Center; and
f. All other material assets and properties of any nature located at
the Customer Solution Center used by TeleTech in the operation of the
Customer Solution Center (except for the Excluded Items, as defined
below).
As used in this Exhibit B, "Excluded Items" mean (a) any software or other
property of GTE used by TeleTech in the operation of the Customer Solution
Center; (b) the Platform Technology (which will be licensed to GTE pursuant to
the provisions of Section 12(c) of the Task Order); and -C- all TeleTech general
administrative, accounting financial, billing, e-mail, payroll, inventory
control, pension and benefits administration, corporate communications network,
systems networked with outside corporate management and similar systems and
software owned by TeleTech which are not part of the Platform Technology.
At the Center Buy-out Closing, TeleTech also shall execute and deliver to
GTE a certificate containing the following representations:
a. The Purchased Assets are being conveyed to GTE free and clear of
all liens and encumbrances;
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b. The physical property included in the Purchased Assets is in
reasonable operating condition;
c. The Purchased Assets (together with the Excluded Items)
constitute substantially all assets used by TeleTech in the operation
of the Customer Solution Center;
d. Except as otherwise provided in this Exhibit A regarding waiver
of Third Party Consents, TeleTech is not in default under any material
lease or contract being assigned to GTE on the Center Buy-out Closing
Date; and
e. Except as otherwise provided in this Exhibit A regarding waiver
of Third Party Consents, the transfer and assignment of the Purchased
Assets to GTE at the Center Buy-out Closing does not conflict with or
violate the provisions of TeleTech's charter or bylaws or any material
agreement to which TeleTech is a party or by which any of the
Purchased Assets are bound.
5. COVENANTS. TeleTech covenants and agrees that:
a. From and following the Notice of Exercise of the Center Buy-out
Option and until the Center Buy-out Closing Date, TeleTech will operate the
Customer Solution Center in the ordinary course of business and in a manner
consistent with its prior practice;
b. TeleTech shall not enter into or permit to exist any agreement
prohibiting TeleTech conveying the Purchased Assets to GTE free and clear of all
liens or creating any material lien or encumbrances on the Purchased Assets.
This restriction shall not prohibit TeleTech from incurring purchase money
liens which will be discharged by TeleTech at the Center Buy-out Closing or from
entering into agreements which prevent the assignment of such agreements without
the consent of the other contracting parties; and
c. TeleTech shall not enter into or materially modify any real
property lease relating to the Customer Service Center except on terms
reasonably satisfactory to GTE. This covenant shall not apply to the dedicated
Customer Solutions Center for the Bundled Services project in Thornton,
Colorado.
6. PURCHASE PRICE: The purchase price of the Center Buy-out (the
"Purchase Price") will be the sum of the following:
a. The Net Book Value of all Purchased Assets MULTIPLIED by *****,
PLUS;
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b. The Average Monthly ▇▇▇▇▇▇▇▇ (as defined herein) multiplied by
***** and the Number of Months in the Remaining Initial Term of the applicable
Task Order (as defined herein). In other words, the formula is: Average
Monthly ▇▇▇▇▇▇▇▇ x ***** x Number of Months in the Remaining Initial Term. For
purposes of this calculation, "Average Monthly ▇▇▇▇▇▇▇▇" will mean the average
of all monthly ▇▇▇▇▇▇▇▇ from TeleTech (as reflected on the invoices, as finally
resolved in the case of any amounts which were disputed) for the 12 months prior
to the date that GTE delivers to TeleTech Notice of Exercise of the Center
Buy-out Option. For purposes of this calculation, "the Number of Months in the
Remaining Initial Term" shall mean the number of months or portion of a month
between the Center Buy-out Closing Date and the end of the Initial Term of the
applicable Task Order, excluding any Option periods set forth in the applicable
Task Order.
7. PAYMENT OF PURCHASE PRICE: GTE will pay the Purchase Price to
TeleTech, by wire transfer, on the Center Buy-out Closing Date. At such time,
GTE shall also pay to TeleTech by wire transfer all other unpaid amounts owed to
TeleTech under the applicable Task Order for periods prior to the Closing Date.
8. CLOSING CONDITIONS. The conditions to the Center Buy-out Closing are
as follows:
a. TeleTech's obligation to consummate the Center Buy-out Closing is
conditioned upon GTE's compliance in all material respects with its obligations
set forth in this Exhibit A;
b. GTE's obligation to consummate the Center Buy-out Closing is
conditioned upon TeleTech's compliance in all material respects with its
obligations set forth in this Exhibit A.
c. The obligations of both parties to consummate the Center Buy-out
Closing are conditioned upon the absence of any injunction or order of any court
or governmental entity that would prohibit the consummation of the transactions
contemplated by this Exhibit A.
9. DELIVERY OF POSSESSION: On the Center Buy-out Closing Date, TeleTech
will deliver to GTE possession of the Customer Solution Center.
10. OFFER OF EMPLOYMENT TO EMPLOYEES OF TELETECH: Following delivery by
GTE to TeleTech of the Notice of Exercise of the Center Buy-out Option and prior
to the Center Buy-out Closing Date, GTE will have the right to solicit for
employment and offer to hire (as of the Center Buy-out Closing Date and on terms
as GTE may elect) any and/or all employees of TeleTech whose employment is
dedicated to the Customer Solution Center and whose situs of employment is the
Customer Solution Center. GTE
*CONFIDENTIAL TREATMENT REQUESTED
5
understands that TeleTech has no ability to compel any of such employees to
become employees of GTE. However, TeleTech will assist and cooperate with
GTE in its efforts to solicit for employment and hire such employees.
TeleTech's obligations to assist and cooperate with GTE regarding the
solicitation and hiring of Customer Solution Center employees will end on the
Center Buy-out Closing Date.
GTE shall not notify such employees of its intention to exercise or
complete the Center Buy-out Option prior to giving the Notice of Exercise of the
Center Buy-out Option.
11. ASSUMPTION OF LIABILITIES: Except as provided in the immediately
following sentence, GTE will not, as a result of this Exhibit A, assume any
liabilities or obligations of TeleTech of any nature, whether such liabilities
or obligations arise with respect to the Purchased Assets, the Customer Solution
Center or otherwise (including without limitation any liabilities or obligations
of TeleTech relating to employees of TeleTech or employee benefit plans for the
benefit of such employees). Notwithstanding the foregoing, upon the
consummation of the Center Buy-out Closing, GTE will assume the contractual
obligations of TeleTech under any leases or contracts assigned to GTE (but only
to the extent such obligations arise from and following the Center Buy-out
Closing Date).
12. INSURANCE: Beginning with the Center Buy-out Closing Date, it will
be GTE's sole responsibility to maintain all necessary insurance related to the
Customer Solution Center, and TeleTech will have no longer have any
responsibility whatsoever to do so.
13. TERMINATION OF TELETECH'S OBLIGATIONS TO PERFORM SERVICES UNDER THE
TASK ORDER AS OF THE CLOSING DATE. Subject to the provisions of paragraph 18
of this Exhibit A related to transition services by TeleTech, TeleTech's rights
and obligations to perform future Services under the applicable Task Order shall
terminate on the Center Buy-out Closing Date. All other past and future
rights and obligations of the parties under the Applicable Task Order and the
Client Services Agreement which should reasonably survive the termination of
such future Services shall continue to survive. Subject to the provisions of
paragraph 18 of this Exhibit A related to transition services by TeleTech, after
the Center Buy-out Closing Date, it will be GTE's sole obligation to staff,
maintain, repair, manage and otherwise operate the Customer Solution Center.
14. PRORATIONS: Personal property and real property taxes, utility fees
and payment and obligations related to leases and contracts which are assigned
to GTE and any similar items will be prorated as of the Center Buy-out Closing
Date.
15. SUBJECT TO GOVERNMENTAL RESTRICTIONS: The conveyance of all things
purchased by or assigned to GTE related to the Center Buy-out will be subject to
any restrictions provided by applicable federal, state, and local laws,
ordinances, and
*CONFIDENTIAL TREATMENT REQUESTED
6
regulations, including but not limited to zoning and land use laws.
16. DELIVERY OF PERMITS AND CERTIFICATES: TeleTech will provide to GTE at
the Center Buy-out Closing Date the permits and certificates related to all
mechanical systems, facilities and other things related to the Customer Solution
Center; however, it will be GTE's sole responsibility to renew such permits and
certificates to the extent necessary.
17. REPAIR AND MAINTENANCE OF FACILITIES AND EQUIPMENT AFTER CLOSING: It
will be GTE's sole responsibility to repair and maintain the facilities and
equipment after the Center Buy-out Closing Date.
18. TRANSITION SERVICES BY TELETECH: In the event that GTE wishes for
TeleTech to continue to provide services related to the Customer Solution Center
after the Center Buy-out Closing Date, GTE and TeleTech will negotiate in good
faith an agreement to do so.
19. INDEMNIFICATION BY TELETECH: TeleTech shall defend, indemnify and
hold harmless GTE and its affiliates, officers, agents and employees from all
claims, suits, actions, demands, damages, liabilities, expenses (including but
not limited to reasonable attorneys' fees and costs), judgments, settlements and
penalties of every kind related to or arising out of (a) TeleTech's ownership of
the Purchased Assets and TeleTech's operation of the Customer Solution Center
prior to the Center Buy-out Closing Date (including but not limited to any
actions or liabilities of TeleTech with respect to any of its employees or any
employee benefit plans for the benefit of such employees other than WARN Act
liabilities under paragraph 20(d)), (b) TeleTech's violation of any
environmental law or regulation, or any liability under any environmental law or
regulation arising with respect to the Purchased Assets or operation of the
Purchased Assets prior to the Center Buy-out Closing Date, or -C- any breach by
TeleTech of any of its representations set forth in this Exhibit A.
Nothing contained in this paragraph is intended to supersede or modify
TeleTech's obligations under any indemnification provision contained in the
applicable Task Order or the Client Services Agreement.
20. INDEMNIFICATION BY GTE: GTE shall defend, indemnify and hold harmless
TeleTech and its affiliates, officers, agents and employees from all claims,
suits, actions, demands, damages, liabilities, expenses (including but not
limited to reasonable attorneys' fees and costs), judgments, settlements and
penalties of every kind related to or arising out of (a) GTE's ownership of the
Purchased Assets and operation of the Customer Solution Center following the
Center Buy-out Closing Date; (b) the failure to obtain any Third Party Consent
if GTE waived the requirement for such consent; -C- GTE's violation of any
environmental law or regulation, or any liability under any environmental law or
regulation arising with respect to the Purchased Assets or
*CONFIDENTIAL TREATMENT REQUESTED
7
operation of the Purchased Assets after the Center Buy-out Closing Date, and
(d) any liability under the WARN Act, if any, caused by the transition
and/or termination of employees resulting from the completion and closing of
the Center Buy-out Option.
Nothing contained in this paragraph is intended to supersede or modify
GTE's obligations under any indemnification provision contained in the
applicable Task Order or the Client Services Agreement.
21. REASONABLE ACCESS TO THE CUSTOMER SOLUTION CENTER BEFORE CLOSING.
Subject to the restrictions set forth in paragraph 10 of this Exhibit A
regarding contacting employees of the Customer Solution Center before the giving
of the Notice of Exercise of the Center Buy-out Option, TeleTech shall provide
GTE with such access to the Customer Solution Center and personnel as is
reasonably necessary to accomplish the completion and closing of the Center
Buy-out Option and orderly transfer of the Customer Solution Center and its
operation to GTE at the Center Buy-out Closing Date.
*CONFIDENTIAL TREATMENT REQUESTED
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