REMOTE OUTSOURCING AGREEMENT
by and between
ALLTEL INFORMATION SERVICES, INC.
and
UNION ACCEPTANCE CORPORATION
July 1998
TABLE OF CONTENTS
Page
1. Scope of Services, Description of Exhibits ........... 1
1.1 Services 1
1.2 Exhibits 1
2. Term ................................................. 1
3. Responsibilities of the Parties ...................... 1
3.1 Input Forms and Output Forms ......................... 1
3.2 Delivery 1
3.3 Equipment and Communication Costs .................... 2
3.4 Client's Input Data .................................. 2
3.5 Maintaining Copies of Input .......................... 2
3.6 Compatibility of Non-ALLTEL Systems3
3.7 Audit ................................................ 3
3.8 Days of Operation 3
4. Time of Performance .................................. 4
4.1 Submission of Input .................................. 4
4.2 Acts of God and Equipment Malfunction ................ 4
4.3 Special Requests ..................................... 4
4.4 Correction of Processing Errors ...................... 4
4.5 Client Review of Reports ............................. 4
4.6 Limitation of Liability .............................. 4
5. Planning and Communication ........................... 5
6. Education ............................................ 5
7. Mergers and Acquisitions ............................... 5
8. Enchancements, Replacement Systems, New Subsystems,
New Systems, and Modifications to ALLTEL Batch and
On-Line Systems .......................................... 5
8.1 Announcement ............................................. 5
8.2 Installation of Enhancements and Replacement Systems 6
8.3 Installation of New Subsystems and New Systems ........... 6
8.4 Modifications Requested by Client ........................ 6
8.5 Client Knowledge of System Status ........................ 7
8.6 User Manuals ............................................. 7
9. Regulatory Compliance .................................... 7
10. Confidentiality .......................................... 7
10.1 Confidentiality of Client Data ........................... 7
10.2 ALLTEL Data .............................................. 7
10.3 Inspection of Records .................................... 8
10.4 Legal Process ............................................ 8
10.5 Confidential Agreement ................................... 8
11. Return of Data ........................................... 8
11.1 Program Ownership 8
11.2 Master and Transaction File Ownership .................... 9
12. Disaster Recovery and File Backup ........................ 9
12.1 Disaster Recovery 9
12.2 File Backup .............................................. 9
13. Miscellaneous Services ................................... 10
13.1 Authorized Additional Services ........................... 10
13.2 Repetitive Services ...................................... 10
14. Price Adjustment ......................................... 10
15. Payment and Billing ...................................... 10
16. Termination .............................................. 11
16.1 Right to Terminate ....................................... 11
16.2 Method of Termination .................................... 11
16.3 Data, Systems and Programs11
17. Year 2000 Compliance ..................................... 11
17.1 Responsibility and Obligation ............................ 11
17.2 Year 2000 Compliant Software ............................. 11
17.3 Year 2000 Compliance Exclusions .......................... 12
17.4 Year 2000 Corrections .................................... 12
18. No Interference with Contractual Relationship ............ 13
19. Assignment or Delegation of Duties........................ 13
20. Client and ALLTEL Employees .............................. 13
21. Qualified Personnel ...................................... 13
22. Facilities for ALLTEL Personnel .......................... 13
23. Notices .................................................. 13
24. Paragraph Titles ......................................... 14
25. Counterparts ............................................. 14
26. Increase for Taxes ....................................... 14
27. Standard Reports and Schedules ........................... 14
28. Financial Statements ..................................... 14
29. Governing Law ............................................ 14
30. Insurance ................................................ 14
31. Entire Agreement, Warranty Disclaimers ................... 15
32. Covenant of Good Faith ................................... 15
33. Informal Dispute Resolution .............................. 15
33.1 Dispute Notice ........................................... 15
33.2 Presidents' Meeting ...................................... 15
33.3 Mediation ................................................ 15
33.4 Litigation ............................................... 16
33.5 Exception ................................................ 16
EXHIBITS
A. Software Listing
B. Reports
C. Charges
D. Input/Output Schedule
E. ALLTEL Holiday Schedule
F. ALLTEL Insurance Coverage
G. Guidelines for Disaster Recovery Responsibilities
H. Branch Automation Software License Agreement
I. U.S. Year 2000 (MVS) Status
ALLTEL INFORMATION SERVICES, INC.
REMOTE OUTSOURCING AGREEMENT
This is an Agreement between ALLTEL INFORMATION SERVICES, INC., an
Arkansas corporation, whose permanent mailing address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "ALLTEL") and
UNION ACCEPTANCE CORPORATION, whose permanent mailing address is ▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. ▇▇▇▇▇ (hereinafter referred to as
"Client"). In consideration of the payments to be made and services to be
performed hereunder, the parties agree as follows:
1. Scope of Services, Description of Exhibits.
1.1 Services . In consideration for Client's payment of the fees
set forth in Exhibit C hereto, ALLTEL will provide the data
processing services (including the dedication of appropriate
resources) described in this Agreement and the Exhibits
hereto.
1.2 Exhibits . ALLTEL will receive data from Client for processing
and will process such data and produce the reports selected by
Client pursuant to Exhibit B in accordance with the schedules
set forth in Exhibit D. Client will pay ALLTEL for its
services herein in accordance with this Agreement and Exhibit
C hereto.
2. Term.
The effective date of this Agreement is October 1, 1998 ("Effective
Date"). This Agreement will terminate on September 30, 2004 (the
"Expiration Date"). Not less than nine (9) months prior to the
Expiration Date, ALLTEL will submit to Client a renewal agreement for
the continuation of processing services and Client will promptly review
such agreement, and commence negotiations with ALLTEL, if necessary,
and accept or reject the agreement within six (6) months prior to the
Expiration Date.
3. Responsibilities of the Parties.
The parties have certain responsibilities under this Agreement as
follows:
3.1 Input Forms and Output Forms . Client will provide all input
media, output media, balance control forms, other forms and
paper stock necessary for its data processing.
3.2 Delivery . Client is responsible for entry of input data by
means of telecommunication or, where applicable, by delivery
of documents or tape by mail through contract courier or
otherwise to ALLTEL's technology center currently located at
Little Rock, Arkansas (the "ALLTEL Data Center"). Tape or
other applicable media will be delivered to an
ALLTEL-designated location at the ALLTEL Data Center. ALLTEL
will prepare output for receipt by Client and, when it is
"download" output, ALLTEL will transmit such output to Client.
Where designated by Client, ALLTEL will deliver output to the
U.S. postal service or to contract courier, as requested by
Client. ALLTEL will separate output, by application, for
delivery to Client at the times and in the manner specified in
Exhibit D. Subject to Client's responsibility to maintain
copies of original input data as defined in Section 3.5,
ALLTEL acknowledges its responsibility for safekeeping
Client's documents or data while they are in the ALLTEL Data
Center.
3.3 Equipment and Communication Costs . In connection with the use
of on-line services, Client will pay all costs associated with
the on-line transmission of input data to, and the on-line
transmission of output from, the ALLTEL Data Center, including
but not limited to communication or telephone lines, moderns,
routers, gateways, PC's, servers and all related components
and the installation and continuing costs thereof, as required
by such on-line operations. As of the Effective Date, the
Client-specific communications equipment components located in
Indianapolis consist of a 384K ALLTEL transport circuit (ID=EC
980112-001), a Visual CSU model - Multi-Protocol District ASE
AS-T1-E, a Cisco Router model 2503, five (5) SAA Gateways and
a ▇▇▇▇ personal computer. The shared communication, equipment
components located at the Technology Center in Little Rock
consist of the 384K frame relay to ATM connection from the
AENbb Hub, a Patch Panel, a Cisco Router model 7513, a token
ring connection and an MM 3172 Controller. ALLTEL reserves the
right to approve installation dates and selection of such
equipment to assure that this equipment is compatible with
ALLTEL's equipment and programs and that the installation
dates for such equipment are compatible with the ALLTEL Data
Center schedules in effect at the time of such installation.
In connection with the use of on-line services, Client will
install and maintain the required printing and file transfer
system compatible with ALLTEL's processing methods and
systems. Client will enter into hardware maintenance and
operating system software maintenance agreements directly with
the vendors from whom the equipment and software base been
purchased or leased, either directly from the vendor or
through ALLTEL or a third party.
3.4 Client's Input Data . All tapes and other input data furnished
by Client hereunder shall be in good condition, customarily
acceptable for machine reading in a form and format specified
by ALLTEL. All on-line data transmissions must be in proper
formats and input forms and data entry screens used must be in
accordance with ALLTEL's specifications, as provided to Client
in writing. Client will correct all input data not submitted
in the form and manner set forth herein.
3.5 Maintaining Copies of Input . Client will maintain copies of
all input data for processing hereunder, whether submitted to
ALLTEL directly or through third parties, to permit
reconstruction of such input data. Client assumes all risks of
loss and expenses of reconstruction of such input data, except
for loss caused by ALLTEL's negligence.
3.6 Compatibility of Non-ALLTEL Systems . If Client wishes to
utilize non-ALLTEL systems and have such systems communication
with ALLTEL software, ALLTEL shall determine the feasibility
thereof. If feasible, ALLTEL will submit a cost proposal to
Client for development and repetitive communication with the
non-ALLTEL systems. Client will provide all data input to
ALLTEL in ALLTEL's standard format as provided to the Client
in writing. Client will receive all downloaded data from
ALLTEL in ALLTEL's standard format.
3.7 Audit.
(a) ALLTEL will provide an annual audit of its operations
at the ALLTEL Data Center by an independent
accounting firm. A copy of the related audit report
will be furnished to Client.
(b) In addition, ALLTEL will cooperate fully with Client
or its internal or external auditors for the purpose
of audit and regulatory compliance. Promptly
following any such audit of Client, whether conducted
by either internal or external auditors, Client will
instruct its auditors to conduct an exit conference
with ALLTEL and to provide ALLTEL as soon as
thereafter as is reasonably possible a copy of each
report prepared as a result of such audit examination
whether in draft or final form. In addition, Client
will provide and instruct its external auditors to
provide ALLTEL with a copy of that portion of each
written report containing comments concerning ALLTEL
or the services performed by ALLTEL pursuant to this
Agreement.
3.8 Days of Operation . ALLTEL will "batch process" and update
Client's data five (5) days per week, such days being Monday
through Friday in accordance with Exhibit D. At Client's
election and subject to adequate implementation time and for
additional fees, ALLTEL will process Client's data six (6)
days per week, such days being Monday through Saturday. At the
time of such election, Exhibit D will be revised to reflect
the new on-line availability and processing windows resulting
from six (6)-day processing. On-line service hours are defined
separately in Exhibit D. ALLTEL will observe the holiday
schedule shown in Exhibit E.
At Client's election and subject to adequate implementation
time and for additional fees, ALLTEL will revert to processing
Client's data five (5) days a week, Monday through Friday. At
the time of such election, Exhibit D will be revised once
again to reflect five (5)-day processing on-line availability
and processing windows. Client agrees that it will not request
a change in the number of processing days more than one time
per calendar year.
4. Time of Performance.
The parties agree that timely and accurate submission of input and
output is essential to satisfactory performance under this Agreement.
4.1 Submission of Input . Client agrees that its failure to submit
input data in the form prescribed in Section 3 or in
accordance with the schedules set forth in Exhibit D shall
enlarge ALLTEL's time of performance hereunder if and to the
extent reasonably necessary.
4.2 Acts of God and Equipment Malfunction . If an act of God,
other disaster, malfunction of equipment or other event beyond
the reasonable control of ALLTEL prevents timely data
processing hereunder, Client agrees that ALLTEL's time of
performance shall be enlarged if and to the extent reasonably
necessary.
4.3 Special Requests . Special requests by Client or any
governmental agency authorized to regulate or supervise Client
which impact ALLTEL's normal processing schedule shall result
in an enlargement of ALLTEL's time of performance hereunder if
and to the extent reasonably necessary.
4.4 Correction of Processing Errors . In the event of an error in
processing Client's data, ALLTEL will correct such error
within a reasonable time, including the rebuilding of any data
files damaged or destroyed by error. Error correction or
rebuilding of data files shall be without charge to Client if
due to the fault of ALLTEL. Client will pay for the cost of
correcting errors and rebuilding data files unless such
correcting and/or rebuilding is caused by the fault of ALLTEL.
If faulty programs generate any such error, ALLTEL will
provide Client with evidence, as Client may reasonably
require, which will verify the complete and proper execution
of corrections to applicable program routines.
4.5 Client Review of Reports . Client will carefully review and
inspect all reports prepared by ALLTEL and balance promptly to
the control totals mutually established by Client and ALLTEL,
and within two (2) business days after any error or
out-of-balance condition could be detectable, Client will
notify ALLTEL of any erroneous processing. If Client fails to
so notify ALLTEL, it shall be deemed to have waived its rights
with respect to such error and to have assumed all risks
related thereto, including any increase in the cost of
connection, to the extent that ALLTEL shall establish that the
same could have been avoided by earlier detection of such
error.
4.6 Limitation of Liability . Except for claims or expenses
arising out of ALLTEL's gross negligence or willful
misconduct. IF ALLTEL SHALL BREACH ANY COVENANT, AGREEMENT OR
UNDERTAKING REQUIRED OF IT BY THIS AGREEMENT, ALLTEL'S
LIABILITY FOR ANY LIABILITIES, LOSSES, COSTS, DAMAGES AND
EXPENSES IN ASSOCIATION WITH ANY CLAIM OR ACTION RELATED TO,
IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER
IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO CLIENT'S
DIRECT DAMAGES, ACTUALLY INCURRED. IN NO EVENT SHALL ALLTEL BE
LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, FOR LOSS OF
REVENUES OR LOSS OF PROFITS OR FOR THE CLAIMS OR DEMANDS MADE
BY ANY THIRD PARTIES.
5. Planning and Communication.
ALLTEL and Client agree that effective planning and communication are
necessary to provide direction to data processing, and that they will
work to promote a free and open exchange of information between ALLTEL
personnel, Client executive management and Client user departments.
6. Education.
ALLTEL will make available to Client and its personnel, its standard
application software training courses, which are generally held in
Little Rock, Arkansas, in accordance with ALLTEL's education and
training department schedule, a current copy of which will be provided
to Client upon request. Client personnel may attend such courses, which
are generally offered by ALLTEL to its customers, upon payment of
ALLTEL's then current standard published course fee. Client
acknowledges that enrollment of Client personnel in any courses offered
by ALLTEL shall be subject to normal space availability requirements
and compliance with ALLTEL's standard registration and enrollment
deadlines and procedures. Client also will complete any and all class
prerequisites prior to attending class. Travel expenses incurred by
Client personnel attending any such classes shall be borne by Client.
7. Mergers and Acquisitions.
Upon written request by Client, ALLTEL will process additional data
resulting from any merger or acquisition involving either Client or any
of Client's affiliates; subject, however, to agreement on the
processing and conversion charges applicable thereto. Client will
notify ALLTEL of any such proposed merger or acquisition as soon as
reasonably practicable.
8. Enchancements, Replacement Systems, New Subsystems, New Systems, and
Modifications to ALLTEL Batch and On-Line Systems.
8.1 Announcement . A current list of all enhancements, replacement
systems, new subsystems, and new systems developed by ALLTEL
and made generally available to customers of the ALLTEL Data
Center is posted at ALLTEL's Internet website:
▇▇▇▇▇▇▇▇.▇▇▇▇▇▇.▇▇▇. At Client's request, ALLTEL will furnish
such listings to Client. An enhancement refers to a scheduled
upgrade of a current system. A replacement system refers to a
system developed to replace an older version of that same
system. New subsystems and new systems refer to subsystems and
systems newly developed and released to the ALLTEL network of
data centers.
8.2 Installation of Enhancements and Replacement Systems . With
respect to systems and subsystems listed in Exhibit A, ALLTEL
will install and Client will accept all such ALLTEL-developed
enhancements and replacement systems. If Client declines to
accept an enhancement or a replacement system, Client may be
required to pay the cost of processing for the stand-alone
system, said cost to be determined at the time. Subsequent to
the installation of an ALLTEL-developed replacement system,
ALLTEL will no longer provide enhancements to the replaced
version of that ALLTEL system. Installation of enhancements
and replacement systems will be provided by ALLTEL without
installation charge except for Client-specific programming
requirements and unless program modifications previously
installed by ALLTEL, at Client's request, have created a
condition which would result in excess installation time over
the normal installation time, in which event the related
excess hours of programmer time, client services time,
computer time and computer operator time will be charged
Client using ALLTEL's Hourly Rates as defined herein.
8.3 Installation of New Subsystems and New Systems . New
subsystems or new systems will be provided by ALLTEL at
Client's option for a license fee, if applicable, and the
installation charge described below. ALLTEL will present the
features of such new subsystems or new systems to Client and
inform Client of any fees related to such installation. Client
will pay the costs of education of Client's employees, new
user documentation, file conversions and a reasonable increase
in repetitive processing charges (if any) associated with new
subsystems or systems. ALLTEL will present the features,
installation and education costs, and additional processing
charges (if any) to Client at least ninety (90) days prior to
the scheduled implementation of the new subsystem or system.
Any programmer, client services, computer operator, or
computer time required by ALLTEL for modification to such new
subsystem or system requested by Client will be charged to
Client using ALLTEL's Hourly Rates as defined herein.
8.4 Modifications Requested by Client . During the term of this
Agreement, Client may request modifications to the programs
installed for Client. If ALLTEL agrees to make such
modifications, computer, computer operator, client services,
and programmer time used by ALLTEL to implement such
Client-authorized modifications will be charged to Client
using ALLTEL's Hourly Rates as defined herein. Requested
modifications may increase the cost to Client of subsequently
installing and/or processing ALLTEL-developed enhancements,
replacements systems, new subsystems, or new system releases.
With respect to modifications of ALLTEL's application bank
control records (BCR's), Client shall have the ability to make
on-line certain BCR modifications as agreed upon by Client and
ALLTEL. ALLTEL shall made other Client requested BCR
modifications, without charge, except for modifications which
require programming time. Client will pay for chargeable BCR
modifications, at ALLTEL's Hourly Rates.
8.5 Client Knowledge of System Status . Client acknowledges its
responsibility to remain informed of the direction and status
of the software, including attendance at necessary education
classes and workshops. ALLTEL will make product information
available via ALLTEL's Internet website and/or on other media
as appropriate.
8.6 User Manuals . ALLTEL will ensure that Client is provided with
a full set of documentation, via electronic media where
available, applicable to the systems listed in Exhibit A.
Client is responsible for the personalization, the subsequent
maintenance, reproduction and distribution of all user
manuals.
9. Regulatory Compliance.
To comply with the requests of applicable regulatory authorities,
ALLTEL agrees that Client's processing will have priority over
processing for ALLTEL's non-financial customers, if any. ALLTEL will
provide, at the prescribed times, all required letters of assurance to
the appropriate regulatory authorities. During the term of this
Agreement, ALLTEL agrees that ALLTEL's programs will comply with the
mandatory federal data processing output requirements specified by the
federal regulatory authorities applicable to Client. Client will make
ALLTEL aware of any applicable local or state regulatory requirements
that have requirements different than those of federal regulatory
authorities. Any changes required by such state or local requirements
which ALLTEL shall endeavor to obtain consents to share the costs of
such charges required by such state and local requirements among the
ALLTEL clients affected.
10. Confidentiality.
10.1 Confidentiality of Client Data . All information concerning
Client, its business or customers submitted to ALLTEL pursuant
to this Agreement shall be held in confidence by ALLTEL and
shall not be disclosed. No person or entity shall be permitted
to have access to Client's data without the written
authorization of Client. All of Client's data shall be
available for examination by Client, at any time during
regular business hours, without notice.
10.2 ALLTEL Data . All information concerning ALLTEL, its software,
related documentation or its business submitted by ALLTEL to
Client pursuant to this Agreement shall be held in confidence
by Client and Client will safeguard such information with the
same degree of care that it exercises with respect to its own
proprietary and confidential information. Client agrees that
no such information will be disclosed or made available to any
third party for any reason except for employees of Client on a
"need-to-know" basis, for auditing purposes by independent
certified accountants, and for complying with applicable
governmental laws, regulations or court orders. Client
covenants and agrees that, except as ALLTEL may specifically
approve in writing, in advance, it will not utilize any such
information, except as contemplated by this Agreement.
10.3 Inspection of Records . No person shall be permitted to have
access to Client's data without the written authorization of a
properly designated officer of Client which authorization
shall specify the data to which such persons may have access.
ALLTEL agrees that all of Client's data shall be available for
examination, at any time during regular business hours,
without notice. Except as provided in Section 10.2, no person
shall be permitted access to any information concerning
ALLTEL, its software, related documentation or its business
without the prior written authorization of a properly
designated officer of ALLTEL, which authorization shall
specify the information to which such persons may have access.
10.4 Legal Process . If one party receives any legal process
requiring it to produce the other party's data or that of any
of the other party's customers, such party shall notify the
other party promptly and deliver copies of such orders to the
other party, immediately and prior to compliance with such
process at such party's address first listed in this
Agreement. Any such notice to ALLTEL shall be sent to the
attention of General Counsel.
10.5 Confidential Agreement . This Agreement (and any Exhibits
hereto) is a confidential document. In no event may this
Agreement be reproduced or copied or shown to any third
parties by either Client or ALLTEL without the prior written
consent of the other party, except as may be necessary by
reason of legal, audit or regulatory requirements beyond the
reasonable control of ALLTEL or Client, as the case may be.
11. Return of Data.
At Client's request and upon payment by Client to ALLTEL at ALLTEL's
Hourly Rates, ALLTEL will provide to Client all data and files, in
machine-readble form or otherwise, belonging to Client in ALLTEL's
possession at any time. Client's right to request and receive such data
and files is absolute and shal not be affected by any default of Client
under this Agreement or for any other reason.
11.1 Program Ownership . ALLTEL's proprietary programs and related
documentation will remain its property both during and
subsequent to the term of this Agreement. Any programs and
related documentation owned by Client that are used by ALLTEL
to process Client's data will remain the property of Client
and ALLTEL may not use such programs for any purpose without
Client's prior written permission.
11.2 Master and Transaction File Ownership . Client's master and
transaction files are the property of Client and will be made
available to Client by ALLTEL, promptly upon the request of
Client. Such data will be made available in its then present
format, copied onto magnetic tapes supplied by Client. Charges
for such services will be at ALLTEL's Hourly Rates then in
effect. Client will pay all charges for the delivery of such
data to the Client.
12. Disaster Recovery and File Backup.
12.1 Disaster Recovery . ALLTEL shall provide disaster recovery
services for its batch and on-line processing obligations to
Client at a dedicated facility which is equipped to handle the
ALLTEL Data Center processing in the event disaster recovery
is needed. Client agrees to provide data communication access
to the disaster recovery facility, including payment of
communication expense to the disaster recovery facility.
ALLTEL is responsible for locating at the disaster recovery
facility the necessary communications devices (including, but
not limited to routers, CSU's/DSU's, modems, etc.) to
facilitate such communication. ALLTEL shall designate and
design such backup network for Client. Throughout the term of
this Agreement, ALLTEL will maintain in effect contracts
and/or arrangements for disaster recovery, which are
substantially equivalent to those that are currently in
effect.
Client acknowledges that disaster recovery arrangements are
designed to deal with circumstances that are expected to cause
a substantial portion of the capabilities at the ALLTEL Data
Center to be unavailable for a period exceeding seventy-two
(72) consecutive hours.
ALLTEL will test its disaster recovery capabilities at least
once per calendar year. Client shall be required to
participate in the disaster recovery test when deemed
appropriate by ALLTEL.
Guidelines to assist the parties in understanding their
respective general responsibilities and areas of cooperation
with respect to disaster recovery are set forth in Exhibit G
attached hereto.
12.2 File Backup . ALLTEL will provide and maintain adequate backup
files of Client's data received by ALLTEL and all programs
utilized to process Client's data.
13. Miscellaneous Services.
13.1 Authorized Additional Services . Client may authorize and
ALLTEL may agree to perform certain services not included in
this Agreement. Authorized services such as the use of ALLTEL
programmers or non-repetitive computer and operator time or
clerical function will be charged to Client by multiplying the
actual hours used by the appropriate ALLTEL hourly rates (the
"Hourly Rates") set forth in Exhibit C hereto.
13.2 Repetitive Services . Client also may request ALLTEL to
prepare price quotations for services of a repetitive nature.
If ALLTEL agrees to perform such services, ALLTEL will provide
Client with a written fee quotation. Upon written
authorization from Client, ALLTEL promptly will initiate such
services in accordance with the mutually agreed upon schedule.
14. Price Adjustment.
The parties acknowledge that ALLTEL's costs of providing services
pursuant to this Agreement are likely to increase, particularly in the
areas of data processing salaries and operating system maintenance. The
fees and charges reflected in this Agreement will be increased, but not
decreased, to compensate ALLTEL for such inflation based upon changes
in the Consumer Price Index for All Urban Consumers - Other Goods and
Services (the "CPI-U") as published by the U.S. Department of Labor,
Bureau of Labor Statistics. Effective October 1, 1999 (the thirteenth
contract month), such fees and charges shall be increased by the
percentage increase in the CPI-U over the one (1)-year period ended May
31, 1999 (the eighth contract month). Annually thereafter, such fees
and charges shall be further increased by the percentage increase in
the CPI-U for the corresponding twelve (12)-month period ending May
31st of each year.
15. Payment and Billing.
All amounts payable pursuant to this Agreement shall be payable in U.S.
currency. ALLTEL shall ▇▇▇▇ the Base Processing Fee as set in Section
1.1 of Exhibit C, on the first day of each month for services to be
provided during that month. ALLTEL will ▇▇▇▇ all additional incremental
fees, reimbursable expenses and other charges on the first day of each
month, for services rendered during the preceding month. All such
▇▇▇▇▇▇▇▇ shall be due upon receipt. If Client fails to pay any invoice
within thirty (30) days from the mail date of invoice, ALLTEL shall
notify Client that such invoice is past due and ALLTEL shall charge a
late penalty equal to one and one-half percent (1.5%) per month on the
outstanding balance owed by Client. If Client is past due in any
payment for more than sixty (60) days from mail date of invoice, ALLTEL
may terminate this Agreement by giving thirty (30) days' written notice
to Client.
16. Termination.
This Agreement may be terminated prior to the Expiration Date, as
follows:
16.1 Right to Terminate . In addition to any other rights which
either party may have in law or equity, either ALLTEL or
Client may terminate this Agreement if the defaulting party
fails to cure any default hereunder within thirty (30) days of
written notice from the other party, specifying the nature and
extent of any such default.
16.2 Method of Termination . Exercise of the right to terminate
under this Section must be accomplished by specifying in such
written notice to the defaulting party, the nature and extent
of such default and fixing a date, on the last day of a month,
not less than one hundred eighty (180) days following the date
of receipt of such notice, for cessation of services hereunder
(the "Termination Date").
16.3 Data, Systems and Programs . If this Agreement expires, or if
Client terminates by virtue of ALLTEL default, the Branch
Automation Software shall remain subject to Exhibit G. In
addition, upon Client's request, ALLTEL agrees to provide to
Client copies of Client's data files, records and programs on
magnetic media.
17. Year 2000 Compliance.
17.1 Responsibility and Obligation . This Section addresses
ALLTEL's responsibility and obligation for Year 2000
compliance solely of the ALLTEL software identified on the
Schedule titled "U.S. Year 2000 (MVS) Status" (the
"Schedule"). The version which is current as of the Effective
Date is attached to and made a part of this Agreement as
Exhibit 1. The Schedule is updated regularly and updated
versions can be accessed at ALLTEL's Internet website,
▇▇▇▇▇▇▇▇.▇▇▇▇▇.▇▇▇. The software identified on the Schedule is
referred to herein as the "Y2K Software". Year 2000 compliance
of any other software or any hardware, equipment or services
provided by or through ALLTEL or any of its affiliates is
beyond the scope of this Section and is outside the
responsibility and obligation of ALLTEL hereunder.
17.2 Year 2000 Compliant Software . ALLTEL will make available, at
no additional charge, updates, modifications, corrections and
enhancements to the Y2K Software which when properly installed
on a Year 2000 compatible operating system and/or hardware
environment will cause the Y2K Software to be "Year 2000
Compliant". The Y2K Software will be considered "Year 2000
Compliant" if the Y2K Software manages and manipulates data
involving dates, including single-century, cross-century and
leap year formulas, and date values without resulting in the
generation of incorrect or invalid values involving such
dates, or causing an abnormal ending.
17.3 Year 2000 Compliance Exclusions . The representations
contained in this Section shall have no effect and shall not
apply if:
(a) the failure of the Y2K Software to be Year 2000
Compliant is the result, in whole or in part, of the
interaction between the Y2K Software and any other
software which may pass data into or accept data from
Client's system or the Y2K Software (including,
without limitation, all third-party software),
including any failures relating to interfaces between
the Y2K Software any other software; or
(b) the operating system and/or hardware environment is
not owned and operated by ALLTEL and is not Year 2000
compatible; or
(c) there have been modifications of the Y2K Software,
unless the modifications or customization are
re-applied by ALLTEL after each installation of
additional updates, corrections, modifications or
enhancements to make such modifications or
customization Year 2000 Compliant; or
(d) the Year 200 updates to the Y2K Software are either
not installed by ALLTEL or not properly installed by
Client's organization according to ALLTEL
specifications; or
(e) the Y2K Software which is not Year 2000 Complaint is
behind the "Minimum Year 2000 Release Levels"
specified in the Schedule or Client's organization
fails to properly install or have installed any other
necessary updates, modifications, corrections and
enhancements (including, but not limited to,
additional code posted on the ALLTEL Internet website
and additional tapes made available by ALLTEL in
accordance with ALLTEL specifications; or
(f) this Agreement expires or is terminated prior to the
failure of the Y2K Software to Year 2000 Complaint.
17.4 Year 2000 Corrections . In the event that the updated Y2K
Software is not Year 2000 Compliant, subject to the
limitations contained this Section, ALLTEL will correct and
repair the Y2K Software to make it Year 2000 Complaint,
ALLTEL's liability (including, without limitation, all
liability related to Year 2000) is limited as provided in this
Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE YEAR 2000
COMPLIANCE OF THE Y2K SOFTWARE, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE
HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
18. No Interference with Contractual Relationship.
Client warrants that, as of the date hereof, it is not subject to any
contractual obligation that would prevent Client from entering into
this Agreement, and that ALLTEL's offer to provide such service in no
way caused or induced Client to breach any contractual obligation.
19. Assignment or Delegation of Duties.
Neither party hereto shall assign, subcontract, or otherwise convey or
delegate its rights or duties hereunder to any other party without the
prior written consent of the other party to this Agreement.
20. Client and ALLTEL Employees.
During the term of this Agreement and for a period of one (1) year
thereafter, both Client and ALLTEL agree not to solicit nor offer
employment to any employee of the other without the prior written
consent of the other.
21. Qualified Personnel.
ALLTEL personnel providing services to Client will possess at least
that degree of skill and expertise required to perform the services
contemplated by this Agreement and generally held by persons of similar
employment, Client may establish, and ALLTEL will adhere to, the
priority of tasks to be accomplished by ALLTEL personnel. ALLTEL shall
select the members of ALLTEL's staff. Members of the staff are not
employees or agents of Client for any purpose.
22. Facilities for ALLTEL Personnel.
To the extent ALLTEL personnel may require access to Client's premises,
Client will provide office space, office supplies and secretarial
assistance for ALLTEL staff. ALLTEL will comply with Client's security
procedures and rules with respect to access to Client's premises and
use of Client's facilities.
23. Notices.
All notices, requests and demands, other than routine operational
communications under this Agreement, shall be in writing and shall be
deemed to have been duly given when delivered in person or by contract
courier or three (3) business days following deposit in the United
States mail, registered or certified postage prepaid, and addressed to
the other party at the address first herein shown above. Notice of
changes of address, if any, shall be given in like manner.
24. Paragraph Titles.
Paragraph titles as to the subject matter of particular paragraphs
herein are for convenience only and are in no way to be construed as
part of this Agreement or as a limitation of the scope of the
particular paragraphs to which they refer.
25. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which shall constitute
one and the same instrument.
26. Increase for Taxes.
Client will pay directly, or reimburse ALLTEL for, all taxes however
designated, levied or based on the charges hereunder or on this
Agreement, including state and local sales, use, privilege or excise
taxes based on gross revenues or taxes on services rendered; excluding,
however, any taxes levied on the personal property or net income of
ALLTEL and Indiana gross income tax. The provisions of this Section 26
shall survive the termination of this Agreement.
27. Standard Reports and Schedules.
All processing for Client and each of its subsidiaries or facilities
will be identical in terms of applications processed (Exhibit A),
reports produced (Exhibit B), and input-output schedules (Exhibit D).
28. Financial Statements.
Annually, within one hundred twenty (120) days following the close of
its fiscal year, each of ALLTEL and Client will provide to the other a
copy of its financial statement for the most recent year.
29. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Indiana. The parties that exclusive
jurisdiction and venue for the resolution of disputes under this
Agreement shall be the state or federal courts located in ▇▇▇▇▇▇
County, Indiana.
30. Insurance.
A schedule of ALLTEL's current insurance coverage is attached hereto as
Exhibit F. ALLTEL may alter such coverage at ALLTEL's discretion.
However, ALLTEL will not eliminate any such coverage if, in light of
the related risks, costs of insurance and ALLTEL's then-existing
financial condition, it would not be prudent to do so.
31. Entire Agreement, Warranty Disclaimers.
This Agreement constitutes the entire agreement between Client and
ALLTEL. This Agreement may not be amended in any fashion except by
written instrument, executed by the parties hereto, specifically
providing for amendment thereof. ALLTEL MAKES NO WARRANTIES EXPRESS OR
IMPLIED, OTHER THAN THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT.
NO REPRESENTATION OR STATEMENT NOT EXPRESSLY CONTAINED IN THIS
AGREEMENT OR INCORPORATED HEREIN BY REFERENCE SHALL BE BINDING UPON
ALLTEL AS A WARRANTY OR OTHERWISE.
32. Covenant of Good Faith.
ALLTEL and Client agree that, in their respective dealings arising out
of or related to this Agreement, they shall act fairly and in good
faith.
33. Informal Dispute Resolution.
If any dispute should arise concerning performance under or
interpretation of this Agreement, then, prior to, and as a condition to
a party's right to initiate any litigation in respect thereof, the
parties shall take the following steps in an attempt to informally
resolve any such dispute.
33.1 Dispute Notice . At the request of either party, the senior
managers of the parties assigned to the data processing
matters contemplated by this Agreement shall meet in person
and shall present to each other a written summary, reflecting
in reasonable detail the nature and extent of the dispute in
question (the "Dispute Notice"). Such a meeting shall take
place within five (5) days after the receipt of the request.
33.2 Presidents' Meeting . If within three (3) days following the
meeting held pursuant to paragraph 33.1 above, said dispute is
not resolved, or if for any reason the meeting contemplated by
paragraph 33.1 has not been held as contemplated thereby, then
the matter in dispute shall be presented to the president of
ALLTEL and to the president of Client for resolution. Said
presidents (or their appointed designees) shall meet in person
within three (3) business days following a written request by
either party. Such meeting shall include a presentation of the
written descriptions of the dispute contemplated by paragraph
33.1.
33.3 Mediation . If any dispute remains unresolved after ten (10)
business days following the initial request for informal
dispute resolution, then either party may refer the matter to
the American Arbitration Association ("AAA") for mediation by
an individual with subject matter expertise in the area of
dispute, and both parties shall cooperate in the mediation
process for thirty (30) days. The costs of the mediation shall
be borne equally by both parties.
33.4 Litigation . If the dispute remains unresolved after forty
(40) days following the initial request for informal dispute
resolution, then either party may initiate appropriate
litigation in respect thereof.
33.5 Exception . Notwithstanding the foregoing, if the parties are
able to resolve disputes without litigation in a court of law
and without resorting to the procedures described in
paragraphs 33.1 through 33.4 of this Section 33, they shall
not be obligated to follow such procedures.
IN WITNESS WHEREOF, the undersigned representatives of the parties have executed
this Agreement, thereunto duly authorized, as of the Effective Date.
ALLTEL INFORMATION SERVICES, INC. UNION ACCEPTANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------- ---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President Title: Chief Information Officer
Date: 8-6-98 Date: 7-31-98