EXHIBIT 10.10
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT
HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
[CINGULAR WIRELESS LOGO]
Master Services Agreement No. TH120103
Between
Cingular Wireless LLC
and
Phase 2 Solutions, Inc.
for
Contracted Call Center Services
[phase 2 logo here]
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The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 1 of 22
SECTION 1. DEFINITIONS..................................................... 3
SECTION 2. AFFILIATED COMPANIES............................................ 4
SECTION 3. TERM OF AGREEMENT............................................... 4
SECTION 4. ORDERS.......................................................... 4
SECTION 5. TERMS OF PAYMENT................................................ 6
SECTION 6. PAYMENT AND RECORDS............................................. 6
SECTION 7. INVOICING....................................................... 6
SECTION 8. REPRESENTATIVES................................................. 6
SECTION 9. REPORTS......................................................... 7
SECTION 10. RECORDS AND AUDITS............................................. 7
SECTION 11. BUYER'S INFORMATION............................................ 7
SECTION 12. PRIVACY OF CUSTOMER INFORMATION................................ 8
SECTION 13. SELLER'S INFORMATION........................................... 8
SECTION 14. OWNERSHIP OF WORK PRODUCT...................................... 8
SECTION 15. PATENT AND OTHER PROPRIETARY RIGHTS INFRINGEMENT............... 9
SECTION 16. TAX............................................................ 9
SECTION 17. ASSIGNMENT BY SELLER........................................... 10
SECTION 18. ASSIGNMENT BY BUYER............................................ 10
SECTION 19. LICENSES....................................................... 10
SECTION 20. SELLER OVERDEPENDENCE.......................................... 10
SECTION 21. WARRANTY FOR SERVICES.......................................... 10
SECTION 22. NON-EXCLUSIVE RIGHTS........................................... 11
SECTION 23. PUBLICITY...................................................... 11
SECTION 24. PERFORMANCE OF WORK............................................ 11
SECTION 25. INDEPENDENT CONTRACTOR......................................... 12
SECTION 26. SECURITY....................................................... 12
SECTION 27. MBE/WBE/DVBE PARTICIPATION..................................... 12
SECTION 28. CONFLICT OF INTEREST........................................... 13
SECTION 29. CHOICE OF LAW/VENUE............................................ 14
SECTION 30. FACILITY RULES AND GOVERNMENT CLEARANCE........................ 14
SECTION 31. RIGHT OF ACCESS................................................ 14
SECTION 32. DEFAULT........................................................ 14
SECTION 33. COMPLIANCE WITH LAWS........................................... 14
SECTION 34. RELEASES VOID.................................................. 14
SECTION 35. AMENDMENTS AND WAIVERS......................................... 14
SECTION 36. SEVERABILITY................................................... 15
SECTION 37. CONTINGENCY.................................................... 15
SECTION 38. INSURANCE...................................................... 15
SECTION 39. INDEMNITY...................................................... 16
SECTION 40. SURVIVAL OF OBLIGATIONS........................................ 17
SECTION 41. ***............................................................ 17
SECTION 42. NOTICES........................................................ 17
SECTION 43. SECURITY REQUIREMENTS FOR SYSTEM OR NETWORK ACCESS BY
CONTRACTORS.................................................... 18
SECTION 44. CONSTRUCTION AND INTERPRETATION................................ 20
SECTION 45. LIMITATION OF LIABILITY........................................ 21
SECTION 46. ***............................................................ 21
SECTION 47. TECHNICAL SUPPORT.............................................. 21
SECTION 48. WORK DONE BY OTHERS............................................ 21
SECTION 49. INCORPORATION BY REFERENCE..................................... 21
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representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103
Page 2 of 22
SECTION 50. ENTIRE AGREEMENT............................................... 22
APPENDIX 1 - MBE/WBE/DVBE RESULTS REPORT FORM
APPENDIX 2 - EXECUTIVE ORDERS AND FEDERAL REGULATIONS
APPENDIX 3 - USER CERTIFICATION
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Agreement No. TH120103
Page 3 of 22
This agreement (hereinafter "Agreement") is made by and between CINGULAR
WIRELESS LLC, a Delaware limited liability company, (hereinafter "Buyer"), and
PHASE 2 SOLUTIONS, INC., a privately held Arizona corporation, (hereinafter
"Seller"), each of which may be referred to in the singular as "Party" or in the
plural as "Parties."
Whereas Buyer is desirous of obtaining call center services to be provided by
Seller, which has sufficient expertise and experience in rendering such services
to meet the particular needs of Buyer.
NOW, THEREFORE, Buyer and Seller enter into this Agreement on the following
terms and conditions.
SECTION 1. DEFINITIONS
----------------------
"Accept" or "Acceptance" means Buyer's acceptance of the Material or
Services ordered by Buyer and provided by Seller as specified in
corresponding Orders. Buyer's Acceptance shall occur no earlier than
Seller's Delivery of Material and/or Services in strict compliance with the
Specifications.
"Acceptance Date" means the date on which Buyer Accepts Material and/or
Services.
"Affiliate" means (1) a company, whether incorporated or not, which owns,
directly or indirectly, a majority interest in either Party (a "parent
company"), and (2) a company, whether incorporated or not, in which a five
percent (5%) or greater interest is owned, either directly or indirectly,
by: (i) either Party or (ii) a parent company.
"Agreement" shall have the meaning specified in the Section called "Entire
Agreement."
"Cancellation" means the occurrence by which either Party puts an end to
this Agreement or Orders placed under this Agreement for breach by the
other, and its effect is the same as that of "Termination" and, except as
otherwise provided for herein, the canceling Party also retains any remedy
for breach of the whole Agreement or any unperformed balance.
"Delivery" means Seller's obligation to provide Material and/or Services
that strictly conform to the Specifications. Seller completes Delivery: (i)
upon Buyer's possession of the Material if Seller is not required to
provide additional Services, such as installation, (ii) upon completing
such additional Services, if Seller is required to provide such Services in
connection with providing Material, or (iii) for Services, upon completing
the provision of Services. Notwithstanding the above, Delivery shall not be
deemed completed until the Seller causes the Material and Services to
strictly conform to the Specifications.
"Delivery Date" means the date on which the Parties agree Seller is
scheduled in this Agreement or an Order to complete its Delivery.
"Documentation" means all documentation, including, but not limited to,
user and system manuals and instructions and training materials in machine
readable or printed form, and Seller's written Specifications.
"Information" all ideas, discoveries, concepts, know-how, trade secrets,
techniques, designs, Specifications, drawings, sketches, models, manuals,
samples, tools, computer programs, technical information, and other
confidential business, customer or personnel information or data, whether
provided orally, in writing, or through electronic or other means.
"Laws" shall have the meaning specified in the Section called "Compliance
with Laws."
"Liability" means all losses, damages, expenses, costs, penalties, fines
and fees, including reasonable attorneys' fees, arising from or incurred in
connection with a claim or cause of action related to performance or
omission of acts under this Agreement or any Order, including, but not
limited to, claims or causes of actions brought by third parties.
"Material" means a unit of equipment, apparatus, components, tools,
supplies, material, Documentation, hardware, or firmware thereto, or
software purchased or licensed hereunder by Buyer from Seller, including
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Agreement No. TH120103
Page 4 of 22
third party Material provided or furnished by Seller in connection with the
Services provided hereunder. Material shall be deemed to include any
replacement parts.
"Order" means such purchase orders, work orders, forms, memoranda or other
written communications as may be delivered to Seller for the purpose of
ordering Services hereunder.
"Service(s)" means any and all labor or service provided in connection with
this Agreement or an applicable Order, including, but not limited to,
consultation, engineering, installation, removal, maintenance, training,
technical support, repair, and programming. The term "Service" shall also
include any Material, including any Documentation, provided by Seller in
connection with providing the Services.
"Specifications" mean (i) Seller's applicable Specifications and
descriptions, including any warranty statements, and (ii) Buyer's
requirements, Specifications, and descriptions specified in, or attached
to, this Agreement or an applicable Order, which shall control over an
inconsistency with Seller's Specifications and descriptions.
"Termination" means the occurrence by which either Party, pursuant to the
provisions or powers of this Agreement or pursuant to laws and regulations,
puts an end to his Agreement and/or Orders placed under this Agreement
other than for breach. On "Termination" all executory obligations are
discharged, but any right based on breach of performance survives except as
otherwise provided herein.
"Work" means all Material and Services, collectively, that Seller is
supplying pursuant to Orders placed under this Agreement.
SECTION 2. AFFILIATED COMPANIES
-------------------------------
2.01 Seller agrees that an Affiliate may place Orders with Seller that
incorporate the terms and conditions of this Agreement, and that the term
"Buyer" shall be deemed to refer to an Affiliate when an Affiliate places
an Order with Seller under this Agreement. Each Order constitutes a
separate, distinct and independent contract between Seller and the Buyer
placing the Order. An Affiliate will be responsible for its own
obligations, including but not limited to, all charges incurred in
connection with such Order. The Parties agree that nothing in this
Agreement will be construed as requiring Buyer to indemnify Seller, or to
otherwise be responsible, for any acts or omissions of an Affiliate, nor
shall anything in this Agreement be construed as requiring an Affiliate to
indemnify Seller, or to otherwise be responsible, for the acts or omissions
of Buyer.
SECTION 3. TERM OF AGREEMENT
----------------------------
3.01 The term of this Agreement shall be effective 11 November 2003
("Effective Date"), and shall continue until terminated by Buyer at any
time, with or without cause, upon at least thirty (30) days prior written
notice to Seller, or until terminated by either party, pursuant to the
terms hereof, upon a breach by the other.
SECTION 4. ORDERS
-----------------
4.01 This Agreement contemplates the future execution by Buyer and Seller
of one or more written Orders. Each Order shall be executed by both parties
and shall contain at a minimum the information specified in this Agreement.
All transactions between Buyer and Seller during the term of this Agreement
shall be covered by this Agreement and any applicable Order unless the
parties agree otherwise in writing.
4.02 Each properly executed Order shall be deemed, upon its execution, to
incorporate the terms of this Agreement. If the Order conflicts with the
terms and conditions of this Agreement, the terms and conditions of this
Agreement shall control unless otherwise agreed to under a "Special
Considerations" section of the Order.
4.03 Seller will furnish call center services ("Services," as defined in
Section 4 below) to Buyer as specified in Orders. Such Orders or its
respective Specification for Purchase Order, at a minimum, shall specify
the information outlined below:
a) A reference to this Agreement.
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Agreement No. TH120103
Page 5 of 22
b) A detailed description of the Services to be performed by Seller.
c) A statement defining all deliverables and their associated due
dates.
d) The name, address, and telephone number of Seller's contact
(hereinafter the "Seller Contact").
e) The name, address, and telephone number of Buyer's contact
(hereinafter the "Buyer Contact").
f) An enumeration of any items of expense authorized for
reimbursement to Seller, as well as the basis for such
reimbursement.
g) The maximum total expenditure authorized, which is understood to
mean (1) a dollar amount or time limit beyond which Seller may
not invoice for Services under a specific Order, and (2) a dollar
amount or time limit beyond which Seller is not required to
expend effort or provide Services under a specific Order without
prior written agreement to a revised amount. When this
specification of a maximum total expenditure is not feasible, at
the Buyer's option the hourly, daily or unit rate of Seller may
be substituted.
h) A statement defining the commencement and completion dates of
work to be performed.
i) Invoicing instructions.
j) A unique identifying serial number assigned by Buyer's Contact.
k) Signatures of representatives authorized by Buyer and Seller to
execute the Order.
l) Special Considerations, if appropriate.
4.04 Individual Orders may be terminated by Buyer upon fourteen (14) days
written notice to Seller.
4.05 Buyer, without prejudice to any right or remedy on account of any
failure of Seller to perform its obligations under this Agreement. may at
any time terminate the performance of the work under any Order, in whole or
in part, by written notice to Seller specifying the extent to which the
performance of the work is terminated and the date upon which such
termination becomes effective. In the event of such termination, other than
for the failure of Seller to perform its obligations under this Agreement,
Seller shall be entitled to payment for Services rendered prior to the
effective date of termination and for expenses properly reimbursable under
this Agreement; provided, however, that payment of any such amounts by
Buyer shall be subject to any provision for the limit of expenditures set
forth in the Order. The payment of such amounts by Buyer shall be in full
settlement of any and all claims of Seller of every description, including
profit.
4.06 If Seller fails to meet its service level commitments under this
Agreement Seller must present a cure notice to Buyer within three (3)
business days of breach. Said cure notice shall include action to be taken
by Seller to cure the breach and corresponding timeline for cure to become
effective. If either Party fails to cure a material default under this
Agreement or applicable Order within thirty (30) days after written notice,
then, in addition to all other rights and remedies, the Party not in
default may Cancel this Agreement and/or the Order under which the default
occurred. Notwithstanding the foregoing, if the material default is a
breach of the Compliance with Laws Section of this Agreement, the Party not
in default may, upon providing written notice, Cancel the Agreement
immediately. Additional provisions for Cancellation of Orders hereunder are
set forth in this Agreement.
4.07 In the event of termination of this Agreement or any Order issued
hereunder, affected Buyer property and work in Seller's possession shall be
forwarded promptly to Buyer.
SECTION 4. SERVICES
-------------------
4.01 "Services" as used herein shall mean Seller's inbound, outbound and
third-party verification call center services as described in properly
executed Orders. Any other contemplated Services must be ordered pursuant
to a separate, properly executed Agreement between Buyer and Seller .
Furthermore, tangible software and/or software products shall not be
ordered pursuant to this Agreement, but by a separate, properly executed
Agreement between Buyer and Seller.
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Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 6 of 22
SECTION 5. TERMS OF PAYMENT
---------------------------
5.01 Net 30 days after receipt of invoice.
5.02 Buyer may withhold payment for non-conforming and/or non-complying
Services.
SECTION 6. PAYMENT AND RECORDS
------------------------------
6.01 Buyer shall pay Seller for Services under this Agreement in accordance
with rates specified in Orders issued hereunder. Such rates, including any
applicable discount schedules, shall not exceed those shown in an Order
incorporated herein by this reference.
6.02 Seller's employees' vacations and holidays shall be paid by Seller in
accordance with Seller's policies. Seller shall schedule vacations for its
employees so as not to interfere with or delay the Services to be provided
for Buyer under the Order.
6.03 Buyer may specify a limit on Services to be provided under an Order by
designating a monetary amount and/or time limit. Seller shall not perform
Services beyond the point where billing would exceed the specified limit
without additional authorization in writing from Buyer. Seller agrees to
notify the Buyer Contact when ninety percent (90%) of the limit specified
in an Order is reached.
6.04 When required, Buyer shall furnish Seller with information relative to
Buyer's applicable standards and specifications, all of which is subject to
the Section entitled "BUYER'S INFORMATION" and is to be returned to Buyer
at the expiration, cancellation or termination of the Agreement or Order,
as the case may be. All information furnished by Buyer to Seller, or
obtained by Seller hereunder or in contemplation hereof, shall remain
Buyer's property. Should Buyer desire to alter such standards or
specifications with respect to any Order after such Order has been issued
and accepted, Seller shall advise Buyer in the event adjustment of the
payment rate or time schedule referred to in the original Order is
necessitated by such alterations. In the event such adjustment is
acceptable to Buyer, Buyer shall issue a new or revised Order.
6.05 Supplier agrees to accept standard, commercial methods of payment and
evidence of payment obligation including, but not limited to, credit card
payments, procurement card payments, Buyer's purchase orders and electronic
fund transfers in connection with the purchase of the Material and
Services.
6.06 Supplier agrees to implement Buyer's procurement card solution as a
method of payment for Services rendered. This payment method will be
implemented at a time of Buyer's choosing.
SECTION 7. INVOICING
--------------------
7.01 Invoices shall reference the Order number and this Agreement number.
7.02 Buyer may, in its sole discretion and without penalty, refuse payment
on any disputed portion of an incorrect invoice. Buyer shall notify Seller
of such refusal within thirty (30) days of receipt of an incorrect invoice.
Buyer shall pay the portion of any invoice it deems correct without
forfeiting its right not to pay incorrect portions of such invoice. Seller
shall investigate and correct any disputed portions of an invoice within
thirty (30) days after notification from Buyer.
7.03 In the event a portion of an invoice is paid and subsequently disputed
by Buyer, Seller shall investigate and resolve such dispute within thirty
(30) days of notification from Buyer. Within forty-five (45) days following
notification, any overpayment discovered shall be, at Buyer's option,
refunded to Buyer or credited against amounts owed to Seller.
SECTION 8. REPRESENTATIVES
--------------------------
8.01 Services performed under this Agreement are subject to contract
administration activities by Buyer's Representatives. Such activities
include, but are not limited to, monitoring Seller's performance, Agreement
interpretation and amendment, maintenance of Agreement information in
Buyer's database, inspecting and accepting work performed, verifying work
completion, and validating charges rendered on Seller's invoices. All
Services provided by Seller under this Agreement are subject to such
activities. In
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Agreement No. TH120103
Page 7 of 22
addition to or in lieu of Buyer's Representative, contract administration
activities may be performed by the individuals designated as Buyer's
Delegate, or others as may be designated by Buyer in writing.
8.02 Buyer's Representatives shall be the Contract Manager and the Buyer
Contact listed in each individual Order.
SECTION 9. REPORTS
------------------
9.01 Seller shall render quarterly reports on or before the fifteenth
calendar day of the mouths of January, April, July and October containing
the information detailed below. Completed reports shall be sent to the
Buyer's address specified in the Section entitled "NOTICES." The following
information shall be provided for each preceding quarter:
(1) Year-To-Date total dollars invoiced
SECTION 10. RECORDS AND AUDITS
------------------------------
10.01 Seller shall maintain complete and accurate records of all amounts
billable to and payments made by Buyer under each Order in accordance with
generally accepted accounting practices. Seller shall retain such records
for a period of three (3) years from the date of final payment for Services
covered by each Order.
10.02 Buyer and its authorized agents and representatives shall have the
right to audit such records of Seller during the respective periods in
which Seller is required to maintain such records, including, without
limitation, the right of access to such records on Seller's premises,
rights to inspect and photocopy same, and the right to retain copies of
such records outside of Seller's premises with appropriate safeguards, if
such retention is deemed necessary by Buyer in its sole discretion. The
correctness of Seller's billing shall be determined from the result of such
audits. Buyer shall also have such above-described auditing rights with
respect to Seller's agents, contractors, or subcontractors.
10.03 Seller will provide Buyer quarterly and annual financial statements
consistent with GAAP upon request.
SECTION 11. BUYER'S INFORMATION
-------------------------------
11.01 Scope of Buyer's Information. Seller acknowledges that Seller may
acquire information and material that is the Buyer's confidential,
proprietary or trade secret information. As used herein, "Buyer's
Information" includes, but is not limited to, all such information and
documents disclosed by or on behalf of the Buyer, whether written or oral,
in the course of this Agreement or in contemplation hereof including,
without limitation, all Specifications, drawings, sketches, schematics,
models, samples, tools, algorithms, technical or business information,
research and development, production and engineering processes, costs,
profit and margin information, Buyer lists and marketing, production and
future business plans. Buyer's Information also includes Work Product as
defined herein.
11.02 Use of Buyer's Information. Seller agrees to take all steps
reasonably necessary to hold in trust and confidence the Buyer's
Information. Seller hereby agrees to hold Buyer's Information in strict
confidence and not to disclose it to third parties or to use it, in any
way, other than as permitted under this Agreement. Seller will limit the
disclosure of the Buyer's Information to employees with a need to know who:
(i) have been advised of the proprietary nature thereof; and (ii) have in
writing either acknowledged a specific obligation to maintain the
confidentiality of Buyer's Information or agreed to protect and keep
confidential all proprietary information to which they have access in the
scope of their employment. Seller's obligations set forth herein shall
remain in effect during the term of this Agreement and for two (2) years
thereafter, but such obligation of confidentiality will not expire for
Buyer's information considered or deemed to be a trade secret under
applicable law.
11.03 Exceptions. Notwithstanding the other provisions of this Agreement,
nothing received by Seller from Buyer will be considered to be Buyer's
Information if : (i) it has been made publicly available other than by a
breach of this Agreement; (ii) it has been rightfully and lawfully received
by Seller from a third
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Agreement No. TH120103
Page 8 of 22
party without breach of confidentiality limitations; (iii) it has been
independently developed by Seller personnel having no access to Buyer's
Information; (iv) it was known by Seller prior to its first receipt from
Buyer; (v) it is hereafter disclosed by Buyer without restriction on
further disclosure; or (vi) it is disclosed pursuant to a court order,
subpoena or by operation of law, provided Seller has given Buyer prior
advance written notice in order that Buyer may attempt to obtain a
protective order limiting disclosure and use of the information disclosed.
11.04 Seller hereby agrees that every individual person including but not
limited to employees, consultants, subcontractors, agents, representatives
and other third parties who perform under this Agreement shall execute the
appropriate documents to undertake obligations of confidentiality
consistent with the terms set forth herein. Seller hereby agrees to provide
evidence of such duly executed documents to Buyer upon request.
SECTION 12. PRIVACY OF CUSTOMER INFORMATION
-------------------------------------------
12.01 Seller hereby acknowledges that information regarding Buyer's
customers, such as their account information, (including by way of example,
name, address, telephone number, credit card information or social security
number) ("Customer Information") is subject to certain privacy laws and
regulations, as well as the requirements of Buyer. Such Customer
Information is be considered private, sensitive and confidential.
Accordingly, with respect to Customer Information, Seller agrees to:
a) Not use any Customer Information or "customer proprietary network
information" for any purpose except as expressly authorized by
Buyer in writing;
b) Make no disclosure of Customer Information to any party other
than Buyer except as expressly authorized by Buyer in writing;
c) Not incorporate any Customer Information into any database other
than in a database maintained exclusively for the storage of
Buyer's Customer Information;
d) Not incorporate any data from any of Seller's other customers,
including other Affiliates of Buyer, into the aforesaid Customer
database;
e) Make no sale, license or lease of Customer Information to any
other party;
f) Restrict access to Customer Information to only those employees
of Seller with a need to know and to use only for the purposes
set forth in this Agreement.
SECTION 13. SELLER'S INFORMATION
--------------------------------
13.01 No information including without limitation specifications, drawings,
sketches, schematics, models, samples, tools, computer or other apparatus
programs, technical or business information or data, written, oral or
otherwise (col1ectively called "Seller's Information"), provided by Seller
to Buyer under this Agreement, or in contemplation of this Agreement, shall
be considered by Seller to be confidential or proprietary.
SECTION 14. OWNERSHIP OF WORK PRODUCT
-------------------------------------
14.01 *** hereby agrees that *** shall own ***, *** and ***, including but
not limited to ***, and *** in *** and *** or ***, whether *** or ***,
which ***, or are *** or *** to *** by *** or *** or *** of its *** or ***
(collectively "***") under this Agreement ("Work Product").
14.02 *** hereby agrees that the Work Product is being developed as a "work
made for hire", provided the Work Product qualifies as such in accordance
with the United States laws. If, for any reason, *** is ever held or deemed
to be the owner of any intellectual property rights set forth herein in the
Work
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The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103
Page 9 of 22
Product, then *** hereby irrevocably assigns to *** all such right, title
and interest and agrees to execute all documents necessary to implement and
confirm the letter and intent of this section.
14.03 The Work Product is deemed to be *** Information hereunder and,
except as permitted herein, shall not be used or disclosed by *** without
*** express written approval.
14.04 To the extent necessary for *** to exercise its right, title and
interest in the Work Product, if the Work Product contains materials *** or
others previously or independently developed, patented or copyrighted and
not developed hereunder, *** hereby grants *** an irrevocable, perpetual,
world-wide, royalty-free license to use, copy, modify, distribute, publicly
display, publicly perform, import, manufacture, have made, sell, offer to
sell, exploit and sublicense such materials to the extent necessary for ***
to exercise its right, title and interest in the Work Product.
14.05 *** hereby agrees to acquire from every individual person, including
but not limited to its Associates and other third parties who perform under
this Agreement such assignments, rights and covenants as to assure that ***
shall receive and have the ability to maintain all right, title and
interest in the Work Product. *** hereby agrees to provide evidence of such
duly executed documents to *** upon request.
SECTION 15. PATENT AND OTHER PROPRIETARY RIGHTS INFRINGEMENT
------------------------------------------------------------
15.01 Seller shall indemnify, defend and hold Buyer harmless, at Seller's
expense, against any claim, suit or proceeding resulting from, relating to
or arising out of a claim that any use of the Work Product and/or Services
constitutes an infringement or contributory infringement of a patent,
copyright, trademark or other proprietary right or a misappropriation of a
trade secret of a third party. Seller's obligation to indemnify shall
include, without limitation, an obligation to pay any costs including, but
limited to, reasonable attorneys' fees, expert witness fees, expenses,
damages awarded to third parties and costs incurred by Buyer. Seller may
settle, at Seller's sole expense, any claim, suit or other action for which
Seller is responsible under this section provided that such settlement
shall not limit, unduly interfere with or otherwise adversely affect the
rights herein granted to Buyer or Seller's obligations under this Agreement
or impose any additional liability on Buyer. Buyer reserves the right to
employ counsel at its own expense and participate in the defense and/or
settlement of any claim.
15.02 Buyer shall notify Seller of any claim of infringement of which it
becomes aware and for which it believes Seller is responsible under this
section. Buyer shall provide Seller with reasonable assistance in the
defense of any such claim. Within thirty (30) days from receipt of notice
from Buyer of an alleged infringement claim, Seller shall acknowledge
receipt of such notice to Buyer in writing and provide Buyer its position
with respect to the allegations.
15.03 Upon notice of an alleged infringement and if in Seller's opinion,
such a valid claim is likely, or alternatively, if Buyer's rights hereunder
are restricted by Seller or a valid court order, then Seller shall at its
option and sole expense: (i) procure the right to continue using the
alleged infringing material; (ii) replace the material with non-infringing
material which is equivalent in features, functionality and quality; or
(iii) modify the material to make it non-infringing while retaining all
original features, functionality and quality.
SECTION 16. TAX
---------------
16.01 Seller shall add to the invoice an amount equal to any applicable
local, state or federal taxes, however designated, that may be validly
levied or based upon this Agreement or upon the Services furnished
hereunder, excluding the following taxes:
a) Ad valorem personal property taxes;
b) State and local privilege and excise taxes based on gross
revenue;
c) Taxes based on or measured by Seller's net income; and
d) Any taxes or amounts in lieu thereof paid or payable by Seller in
respect of the foregoing excluded items.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103
Page 10 of 22
16.02 Seller shall ▇▇▇▇ applicable taxes as separate items on Seller's
invoices and shall not include them in the purchase price. Buyer may have
Seller contest with the imposing jurisdiction, at Buyer's expense, any such
taxes that Buyer deems are improperly levied.
16.03 Seller must collect all appropriate state and local sales and use
taxes from Buyer on all sales of a taxable tangible personal property and
taxable services and timely remit all applicable taxes to the appropriate
taxing authorities.
16.04 Buyer shall not pay or otherwise be liable or responsible for any
penalty, additional tax, costs or interest assessed or levied by any taxing
authority resulting from Seller's failure to file any return, form, or
information statement such taxing authority requires. Seller hereby
indemnifies, defends and holds Buyer harmless against any such penalty,
additional tax, costs or interest.
SECTION 17. ASSIGNMENT BY SELLER
--------------------------------
17.01 Seller must have Buyer's written consent before Seller assigns or
otherwise delegates any work it is to perform under this Agreement, in
whole or in part, or assigns any of its rights, interests or obligations
hereunder. Seller shall deliver to Buyer written notice of Seller's intent
to assign at least thirty (30) days before assignment. Any assignment to
which Buyer has not consented shall be void, except where Seller assigns
its rights to receive monies pursuant to this Agreement. In such case,
Seller only needs to notify Buyer in writing. However, Seller cannot assign
monies due if Seller tries to transfer to the assignee any of Seller's
other rights or obligations hereunder. Seller shall not make an assignment
that prevents Buyer from dealing solely and directly with Seller on all
matters pertaining to this Agreement. Such matters include amending this
Agreement and/or settling amounts due either party by the other hereunder.
17.02 Seller agrees not to subcontract the services to be performed, in
whole or in part, without written request to and the prior written consent
of Buyer's Contract Manager designated in the Section entitled "NOTICES."
Seller shall remain primarily liable to Buyer for the performance of all
subcontracted services provided pursuant to this Agreement.
SECTION 18. ASSIGNMENT BY BUYER
-------------------------------
18.01 Buyer may assign this Agreement and its rights and may delegate its
duties under this Agreement either in whole or in part, at any time and
without Seller's consent, to any present or future Affiliated Company or
successor company of Buyer. Buyer shall give Seller written notice of such
assignment or delegation. The assignment shall not affect or diminish any
rights or duties that Seller or Buyer may then or thereafter have as to
Services ordered by Buyer before the effective date of the assignment.
Written notice to the Seller releases and discharges Buyer, to the extent
of the assignment, from all further duties under this Agreement, except
with respect to Services that Buyer ordered before the effective date of
the assignment.
SECTION 19. LICENSES
--------------------
19.01 Except as otherwise provided in this Agreement, Buyer grants no
licenses, express or implied, to Seller under any patents, copyrights,
trademarks, trade secrets or any other intellectual property.
SECTION 20. SELLER OVERDEPENDENCE
---------------------------------
20.01 Buyer has no way to know Seller's dependence on revenues from sales
to Buyer in proportion to Seller's revenues from other customers. To
protect Buyer from a situation in which Seller is too dependent upon Buyer
for said sales, Seller agrees to release and hold Buyer harmless from any
and all claims and liabilities relating to Seller's financial stability
that may result from Buyer's termination of this Agreement for any reason
whatsoever.
SECTION 21. WARRANTY FOR SERVICES
---------------------------------
21.01 Seller warrants to Buyer that the Services provided under this
Agreement shall be performed in a fully workmanlike manner to Buyer's
satisfaction and in accordance with the specifications set forth in
PRIVATE/PROPRIETARY/LOCK
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Agreement No. TH120103
Page 11 of 22
each Order. The Buyer Contact designated in any Order shall in his/her sole
discretion determine the quality and acceptability of the Services
performed pursuant to this Agreement.
SECTION 22. NON-EXCLUSIVE RIGHTS
--------------------------------
22.01 It is expressly understood and agreed that this Agreement does not
grant Seller an exclusive privilege to sell to Buyer any or all Services of
the type described in the Section entitled "Services" which Buyer may
require. Buyer reserves the right to contract with other suppliers for the
procurement of comparable services. In addition, Buyer shall determine, at
Buyer's sole discretion, the extent to which Buyer will market, advertise,
promote, support, or otherwise assist in further offerings of the Services.
SECTION 23. PUBLICITY
---------------------
23.01 Seller agrees to submit to Buyer all advertising, sales promotions,
press releases, and other publicity matters relating to this Agreement or
mentioning or implying the trade names, logos, trademarks or service marks
(collectively called "Marks") of Buyer and/or any of its Affiliated
companies or language from or by which the connection of said Marks
therewith may be inferred or implied, or mentioning or implying the names
of any personnel of Buyer and/or any of its Affiliated companies. Seller
further agrees not to publish or use such advertising, sales promotions,
press releases, or publicity matters without Buyer's prior written consent.
SECTION 24. PERFORMANCE OF WORK
-------------------------------
24.01 All work performed by Seller under any Order may be monitored through
the use of status reports. Contents of such status reports, their frequency
and the Seller's employees required to submit such status reports shall be
specified in the Order.
24.02 Seller reserves the right to make *** upon reasonable notice to the
*** at logical breakpoints of the work. In the event of any ***, *** shall
not be *** for the time required to *** the ***. The amount of ***, if any,
shall be *** and *** to by the *** Contact and the *** Contact.
24.03 When in the Seller's opinion it has completed the Services described
in an Order, Seller shall provide written notification of such fact to
Buyer. Buyer shall have an acceptance period of thirty (30) days, unless
otherwise specified in the Order, from the date of Seller's notice in which
to perform reviews to determine if the Services have been completed in
accordance with specifications. On or prior to the expiration of such
acceptance period Buyer shall have the right to give written notice of
unsatisfactory performance and rejection of same.
24.04 Seller shall *** the *** to *** any *** found by *** during the ***.
*** found to be of ***'s *** shall be *** by *** at its ***. Such *** shall
*** and be *** as *** as is reasonably possible.
24.05 If the *** are found to be not of ***'s ***, *** shall *** for the
*** and *** of (1) its ***, and (2) such *** performs, if requested by ***.
The period from the time *** is *** to make *** and *** until *** those ***
shall not be *** as *** of the ***. If *** are ***, upon *** of ***'s ***
that the *** have been ***, the *** shall *** subject to the *** as
specified above. However, in no event shall the *** of an *** of *** be
less than ***.
24.06 If such unsatisfactory Services are material and have not been
corrected within a reasonable time, Buyer may, in addition to all other
rights and remedies provided by law or this Agreement, Cancel this
Agreement and/or any affected Order.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103
Page 12 of 22
SECTION 25. INDEPENDENT CONTRACTOR
----------------------------------
25.01 Seller shall perform all work in connection with the Services
described in the Agreement as an independent contractor and not as the
agent or employee of Buyer. All persons furnished by Seller shall be for
all purposes solely the Seller's employees or agents and shall not be
deemed to be employees of Buyer for any purpose whatsoever. Seller shall
furnish, employ, and have exclusive control of all persons to be engaged in
performing Services under this Agreement and shall prescribe and control
the means and methods of performing such Services by providing adequate and
proper supervision. Seller shall be solely responsible for compliance with
all rules, laws, and regulations relating to employment of labor, hours of
labor, working conditions, payment of wages, and payment of taxes, such as
employment, Social Security, and other payroll taxes, including withholding
and timely remitting applicable contributions from such persons when
required by law.
SECTION 26. SECURITY
--------------------
26.01 Buyer may conduct, for security reasons, a background investigation
on the Seller and its principal parties or personnel. Seller shall
cooperate with Buyer in this endeavor and shall provide any necessary
information. Buyer is under no obligation to provide a copy of the
background investigation to Seller. Seller waives any and all rights it may
have in any information it provides to Buyer.
26.02 Seller shall conduct, at its expense, background investigations on
Seller's personnel prior to supplying such personnel to Buyer. Seller's
personnel shall include Seller's employees, agents and/or subcontractors.
At Buyer's request, Seller shall provide copies of the background
investigations to Buyer.
26.03 Seller shall not assign to Buyer's project(s) any personnel convicted
of a misdemeanor relating to computer security, theft, violence, or fraud
or any personnel with a record of felony conviction of any kind.
26.04 In fulfilling the obligations under this Section, Seller shall comply
with all laws, rules, and regulations about making investigative reports
and the disclosure of the information contained therein. Seller shall
indemnify, defend, and hold Buyer harmless against any wrongful disclosure
by Seller, its employees, and/or agents of said reports and the information
contained therein.
26.05 At Buyer's request, Seller shall promptly remove from Buyer's
premises any employee of Seller to whom Buyer does not wish to grant access
to its premises, or who, in Buyer's opinion, has been unacceptable,
negligent, dishonest, or otherwise unsatisfactory in performing his/her
duties hereunder. Such a request for removal from Buyer's premises shall in
no way be interpreted as a request by Buyer for Seller to discipline the
employee in any way.
SECTION 27. MBE/WBE/DVBE PARTICIPATION
--------------------------------------
27.01 Seller will strive to achieve the participation of MBE/WBE and DVBE
firms (as defined in the Paragraph entitled "MBE/WBE/DVBE Cancellation
Clause") as follows: 10% annual MBE participation; 10% annual WBE
participation; and 2% annual DVBE participation. These goals apply to all
annual expenditures by any entity pursuant to this Agreement with Seller.
Seller MBE/WBE/DVBE participation may be achieved through cost of goods
content, contract specific subcontracting or the use of value-added
resellers. The participation levels identified above will be renegotiated
to comply with any regulatory requirements imposed on Buyer.
27.02 Seller will submit a Participation Plan annually by the first week in
January. Seller will submit MBE/WBE/DVBE Results Reports quarterly by the
end of the first week following the close of each quarter, using the form
attached hereto and incorporated herein as Appendix 1. Participation Plans
and Results Reports will be submitted to the Prime Seller Results Manager.
27.03 MBE/WBE/DVBE Cancellation Clause. Seller agrees that falsification or
misrepresentation of, or failure to report a disqualifying change in, the
MBE/WBE/DVBE status of Seller or any subcontractor utilized by Seller; or
Seller's failure to cornply in good faith with any MBE/WBE/DVBE utilization
goals established by Seller; or Seller's failure to cooperate in any
investigation conducted by Buyer, or by Buyer's agent, to determine
Seller's compliance with this section, will constitute a material breach of
this
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
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representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 13 of 22
Agreement. In the event of any such, breach, Buyer may, at its option,
cancel ("Cancel") this Agreement upon thirty (30) days notice. Seller
acknowledges and agrees that Buyer's right to Cancel is absolute and
unconditional, and Buyer shall not be subject to liability, nor shall
Seller have any right to suit for damages as a result of such cancellation.
27.04 For purchases under this Agreement by any entity operating
principally in California (collectively "California Affiliates"), Minority
and Women Business Enterprises (MBEs/WBEs) are defined as businesses which
satisfy the requirements of paragraph d below and are certified as
MBEs/WBEs by the California Public Utilities Commission Clearinghouse
("CPUC-certified"). For purchases under this Agreement by any entity that
is not a California Affiliate, MBEs/WBEs are defined as businesses which
satisfy the requirements of paragraph d below and are either CPUC-certified
or are certified as MBEs/WBEs by a certifying agency recognized by Buyer.
27.05 MBEs/WBEs must be at least 51% owned by a minority individual or
group or by one or more women (for publicly-held businesses, at least 51%
of the stock must be owned by one or more of those individuals), and the
MBEs/WBEs' management and daily business operations must be controlled by
one or more of those individuals, and these individuals must be either U.S.
citizens or legal aliens with permanent residence status. For the purpose
of this definition, minority group members include male or female Asian
Americans, Black Americans, Filipino Americans, Hispanic Americans, Native
Americans (i.e., American Indians, Eskimos, Aleuts and Native Hawaiians),
Polynesian Americans, and multi-ethnic (i.e., any combination of MBEs and
WBEs where no one specific group has a 51% ownership and control of the
business, but when aggregated, the ownership and control combination meets
or exceeds the 51% rule). "Control" in this context means exercising the
power to make policy decisions. "Operate" in this context means actively
invoked in the day-to-day management of the business and not merely acting
as officers or directors.
27.06 For purchases under this Agreement by California Affiliates, Disabled
Veteran Business Enterprises (DVBEs) are defined as business concerns that
satisfy the requirements of paragraph g below and are certified as DVBEs by
the California State Office of Small and Minority Business (OSMB). The DVBE
must be a resident of the State of California, and must satisfy the
requirements of paragraph g below.
27.07 For purchases under this Agreement by any entity that is not a
California Affiliate, DVBEs are defined as any business concern that
satisfies the requirements of paragraph g below and is either a defined
DVBE for purchases by California Affiliates, or is certified as a DVBE by a
certifying agency recognized by Buyer.
27.08 The DVBE must be (1) a non publicly-owned enterprise at least 51%
owned by one or more disabled veterans; or (2) a publicly-owned business in
which at least 51% of the stock is owned by one or more disabled veterans;
or (3) a subsidiary which is wholly owned by a parent corporation, but only
if at least 51% of the voting stock of the parent corporation is owned by
one or more disabled veterans; or (4) a joint venture in which at least 51%
of the joint venture's management and control and earnings are held by one
or more disabled veterans. In each case, the management and control of the
daily business operations must be by one or ▇▇▇▇ disabled veterans. A
disabled veteran is a veteran of the military, naval or air service of the
United States with a service-connected disability. "Management and control"
in this context means exercising the power to make policy decisions and
actively involved in the day-to-day management of the business and not
merely acting as officers or directors.
27.09 Foreign-owned firms operating in the United States do not qualify as
MBE/WBE/DVBE merely by virtue of being foreign-owned. They must meet all
other definitions listed above to satisfy these requirements.
SECTION 28. CONFLICT OF INTEREST
--------------------------------
28.01 Seller represents and warrants that no officer, director, employee,
or agent of Buyer has been or will be employed, retained or paid a fee, or
otherwise has received or will receive any personal
PRIVATE/PROPRIETARY/LOCK
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Agreement No. TH120103
Page 14 of 22
compensation or consideration, by or from Seller or any of Seller's
officers, directors, employees or agents in connection with the obtaining,
arranging or negotiation of this Agreement or other documents entered into
or executed in connection with this Agreement.
SECTION 29. CHOICE OF LAW/VENUE
-------------------------------
29.01 The laws of the State of Georgia, without regard to its choice of law
provisions, shall govern the validity, construction, interpretation, and
performance of this Agreement. Each party irrevocably agrees that any legal
action, suit or proceeding brought by it arising out of this Agreement must
be brought solely and exclusively in the appropriate state or federal court
in ▇▇▇▇▇▇ County, Georgia, and each party irrevocably consents to the
jurisdiction of such court.
SECTION 30. FACILITY RULES AND GOVERNMENT CLEARANCE
---------------------------------------------------
30.01 Each party's employees and representatives shall comply with all
internal rules and regulations while they are on the other's premises. If
required by Government regulations, such compliance shall include
submission of a satisfactory clearance from the U.S. Department of Defense
and other concerned federal authorities.
SECTION 31. RIGHT OF ACCESS
---------------------------
31.01 Both Seller and Buyer shall reasonable access to the other's
facilities in connection with work hereunder. No charge shall be made for
such visits. It is agreed that prior notification will be given when access
is required. Seller agrees to remove any of its employees at Buyer's
request.
SECTION 32. DEFAULT
-------------------
32.01 If Seller breaches or defaults on any of the terms, conditions, or
covenants of this Agreement or any Order, Buyer shall give Seller written
notice of such breach or default. If such breach or default continues for
ten (10) days after Buyer gives Seller written notice, then in addition to
all other rights and remedies of law or equity or otherwise, Buyer may
cancel this Agreement or any such Order without any charge, obligation, or
liability whatsoever, except for payment of Services already received and
accepted.
SECTION 33. COMPLIANCE WITH LAWS
--------------------------------
33.01 Seller shall comply with all applicable federal, state, county and
local laws, orders, rules, ordinances, regulations and codes including, but
not limited to, Seller's obligations as an employer regarding the health,
safety and payment of its employees. Seller further agrees to comply with
all applicable Executive and Federal regulations as set forth in "Executive
Orders and Federal Regulations," a copy of which is attached as Appendix 2
and by this reference made a part of this Agreement. Seller's compliance
shall also include identifying and procuring the required permits,
certificates, approvals, and inspections in Seller's performance under this
Agreement. Notwithstanding whether a specification is furnished under this
Agreement, Seller shall comply with all applicable laws regarding the
furnishing of Services. Seller shall indemnify, defend and hold Buyer
harmless against any claim, loss, liability, cost or damage sustained
because of Seller's noncompliance.
SECTION 34. RELEASES VOID
-------------------------
34.01 Neither party shall require waivers or releases of any personal
rights from representatives of the other in connection with visits to such
party's premises. Neither party shall require any representative of the
other party to sign a personal "nondisclosure agreement." Neither Seller
nor Buyer shall plead any such releases or waivers in any action or
proceeding.
SECTION 35. AMENDMENTS AND WAIVERS
----------------------------------
35.01 This Agreement and any Orders placed hereunder may be amended or
modified only by a written document signed by the authorized representative
of the Party against whom enforcement is sought; provided that Buyer may,
at any time, make changes to the scope of Work, and Seller shall not
unreasonably withhold or condition its consent. An equitable adjustment
shall be made if such change substantially affects the time of performance
or the cost of the Work to be performed under this Agreement.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 15 of 22
Such cost adjustment shall be made on the basis of the actual cost of the
Work, unless otherwise agreed in writing. No waiver or failure to exercise
any option, right or privilege under the terms of this Agreement on any
occasion or occasions shall be construed to be a waiver of the same or any
other option, right, or privilege on any other occasion.
SECTION 36. SEVERABILITY
------------------------
36.01 If any of the provisions of this Agreement shall be invalid or
unenforceable under the laws of the jurisdiction applicable to the entire
Agreement, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement but rather the entire Agreement
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations of
Seller and Buyer shall be construed and enforced accordingly.
SECTION 37. CONTINGENCY
-----------------------
37.01 Neither Seller nor Buyer shall be held responsible for any delay or
failure in performance of any part of this Agreement to the extent that
such delay or failure is caused by fire, flood, explosion, war, strike,
embargo, government requirement, civil or military authority, act of God,
or other similar causes beyond Seller's or Buyer's control (each
hereinafter a "Condition"). If any such Condition occurs, the party delayed
or unable to perform shall give immediate notice to the other party, and
the party affected by the other's delay or inability to perform may elect
to: (1) terminate this Agreement or part thereof as to Services not already
received; (2) suspend this Agreement for the duration of the Condition, buy
or sell elsewhere services comparable to those to be obtained under this
Agreement, and deduct from any Seller commitment the quantity bought or for
which commitments with other suppliers have been made; or (3) resume
performance of this Agreement once the Condition ceases with an option in
the affected party to extend the period of this Agreement up to the length
of time the Condition endured. Unless written notice is given within thirty
(30) days after the affected party is notified of the Condition, option
"(2)" shall be deemed selected.
SECTION 38. INSURANCE
---------------------
38.01 With respect or performance hereunder, and in addition to Seller's
obligation to indemnify, Seller agrees to maintain, at all times during the
term of this Agreement, the following minimum insurance coverages and
limits and any additional insurance and/or bonds required by law:
a) Workers' Compensation insurance with benefits afforded under the
Laws of the state in which the Services are to be performed and
Employers Liability insurance with minimum limits of $100,000 for
Bodily Injury-each accident, $500,000 for Bodily Injury by
disease-policy limits and $100,000 for Bodily Injury by
disease-each employee.
b) Commercial General Liability insurance with minimum limits of:
$2,000,000 General Aggregate limit; $1,000,000 each occurrence
sub-limit for all bodily injury or property damage incurred in
any one occurrence; $1,000,000 each occurrence sub-limit for
Personal Injury and Advertising; $2,000,000 Products/Completed
Operations Aggregate limit, with a $1,000,000 each occurrence
sub-limit for Products/Completed Operations. Fire Legal Liability
sub-limits of $300,000 are required for lease agreements. Buyer
and its Affiliated companies will be listed as an Additional
Insured on the Commercial General Liability policy.
c) If use of a motor vehicle is required, Automobile Liability
insurance with minimum limits of $1,000,000 combined single
limits per occurrence for bodily injury and property damage,
which coverage shall extend to all owned, hired and non-owned
vehicles.
38.02 Buyer requires that companies affording insurance coverage have a
rating of B+ or better and a Financial Size Category rating of VII or
better rating, as rated in the A.M. Best Key Rating Guide for Property and
Casualty Insurance Companies.
PRIVATE/PROPRIETARY/LOCK
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Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 16 of 22
38.03 A certificate of insurance stating the types of insurance and policy
limits provided the Seller must be received prior to commencement of any
Work. If a certificate is not received, Seller hereby authorizes Buyer, and
Buyer may, but is not required to, obtain insurance on behalf of Seller as
specified herein. Buyer will either invoice Seller for the costs incurred
to so acquire insurance or will reduce by an applicable amount any amount
owed to Seller.
38.04 The cancellation clause on the certificate of insurance will be
amended to read as follows:
"THE ISSUING COMPANY WILL MAIL THIRTY (30) DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER PRIOR TO CANCELLATION OR A MATERIAL CHANGE TO
POLICY DESCRIBED ABOVE."
38.05 The Seller shall also require all subcontractors performing Work on
the project or who may enter upon the work site to maintain the same
insurance requirements listed above.
SECTION 39. INDEMNITY
---------------------
39.01 Seller agrees to indemnify, defend, and hold Buyer harmless from any
and all iabilities, causes of action, lawsuits, penalties, claims or
demands (including the costs, expenses and reasonable attorneys' fees on
account thereof) that may be made by:
a) Anyone for injuries of any kind, including but not limited to
personal injury, death, property damage and theft, arising in
whole or in party out of or resulting in whole or in part from
Seller's or its agents' or subcontractors' negligent or willful
acts or omissions or those of persons furnished by Seller, its
agents or its subcontractors or resulting from use of Material,
Software, Documentation and/or Services furnished hereunder or
resulting from Seller's or its agents' or subcontractors' failure
to perform its or their obligations hereunder;
b) Any of either Seller's, its agents' or its subcontractors'
employees or former employees for which the Seller's, its agents'
or its subcontractors' liability to such employee or former
employee would otherwise be subject to payments under the state
Workers' Compensation laws or an Employer's Liability policy,
premises liability principles or any other law or form of legal
duty or obligation; and
c) Either Seller's, its agents' or its subcontractors' employees or
former employees, including applicants at Buyer's job site, for
any and all claims arising out of the employment relationship
with respect to performing under this Agreement. This includes,
but is not limited to, employment discrimination charges and
actions arising under Title VII of The Civil Rights Act of 1964,
as amended; The Equal Pay Act; The Age Discrimination Act, as
amended; The Rehabilitation Act; The Americans with Disabilities
Act; The Fair Labor Standards Act; The National Labor Relations
Act; and any other applicable law.
39.02 Seller, at its own expense, agrees to defend Buyer, at Buyer's
request, against any such liability, cause of action, lawsuit, penalty,
claim, or demand, administrative proceeding or lawsuit, including any in
which Buyer is named as an "employer" or "joint employer" with Seller.
Buyer shall notify Seller promptly of any written claims or demands against
Buyer for which Seller is responsible hereunder. The foregoing indemnity
shall be in addition to any other indemnity obligations of Seller set forth
in this Agreement.
39.03 Notwithstanding the foregoing, Seller shall have no obligation to
indemnify, defend, and hold Buyer harmless from and against any liability,
cause of action, lawsuit, penalty, claim, or demand, administrative
proceeding or lawsuit resulting solely from the negligence or willful
conduct of Buyer, and Buyer shall indemnify Seller in such cases.
PRIVATE/PROPRIETARY/LOCK
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representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 17 of 22
SECTION 40. SURVIVAL OF OBLIGATIONS
-----------------------------------
40.01 Buyer's and Seller's respective obligations hereunder which by their
nature would continue beyond the termination, cancellation or expiration of
this Agreement or any Order shall survive. This includes, by way of example
but not limitation, the obligations provided in the sections entitled
"BUYER'S INFORMATION"; "PRIVACY OF CUSTOMER INFORMATION"; "OWNERSHIP OF
WORK PRODUCT; "INDEMNITY"; "LICENSES"; "PATENT AND OTHER PROPRIETARY RIGHTS
INFRINGEMENT"; "PUBLICITY"; and "WARRANTY FOR SERVICES."
SECTION 41. ***
---------------
41.01 Upon cancellation, Termination or expiration of this Agreement,
Seller shall provide *** which *** be *** by Buyer ("***") to allow Buyer
and the *** of the Services to *** to the Buyer, including but not limited
to *** all *** for *** a or *** to *** the ***. Such *** will be *** at ***
to ***. Seller shall provide Buyer with an itemized estimate of ***
required to support Buyer's *** at least *** prior to the date of
Cancellation, Termination or expiration or as otherwise agreed by the
parties.
SECTION 42. NOTICES
-------------------
42.01 Except as otherwise provided herein, any notices or demands which are
required by law or under the terms of this Agreement shall be given or made
by Seller or Buyer in writing and shall be given by hand delivery, telegram
or similar communications, or by certified or registered mail, and
addressed to the respective parties set forth below. Such notices shall be
deemed to have been given in the case of telegrams or similar
communications when sent, and in the case of certified or registered mail
when deposited in the United States mail with postage prepaid.
To Buyer: Cingular Wireless LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Contract Manager
Copy To: Cingular Wireless LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: Chief Counsel-SCM, Fl. 17
To Seller: Phase 2 Solutions, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇, Director of Business
Development
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103
Page 18 of 22
42.02 The above addresses may be changed at any time by giving thirty (30)
days prior written notice as above provided.
SECTION 43. SECURITY REQUIREMENTS FOR SYSTEM OR NETWORK ACCESS BY CONTRACTORS
-----------------------------------------------------------------------------
43.01 Contractors and their personnel who qualify as Users hereunder must
comply with these security requirements ("Requirements") prior to being
allowed access to Buyer's computers, computer peripherals, computer
communications networks, computer systems/applications/software, network
elements and their support systems, and the information stored,
transmitted, or processed using these resources ("Information Resources.")
"Contractor" means a person or business entity with a written agreement
("Agreement") to perform services for Buyer. "User" means any individual
performing services under the Agreement, whether as an employee, approved
subcontractor, or agent of Contractor. "Buyer Sponsor" means the Buyer
management employee responsible for the oversight of the services provided
by Contractor.
43.02 Compliance with Policies, Laws and Agreement. Contractor agrees that
--------------------------------------------
compliance with Buyer's forthcoming Corporate Information Security Policies
is of the utmost importance and will negotiate in good faith to be in
compliance with those policies enacted or revised by Buyer from time to
time. Contractor and User must protect Buyer Information Resources and
Buyer proprietary or confidential data or information in accordance with
the terms and conditions of the Agreement (including any separate
confidentiality agreements), and must comply with all applicable
international, federal, state, and local laws and regulations related to
use of Information Resources and protection of Buyer's data or information.
Contractor is responsible for ensuring that all Users comply with these
Requirements.
43.03 Contractor General Responsibilities
-----------------------------------
a) Contractor shall ensure that all Users are covered by a legally
binding obligation that protects Buyer's proprietary and
confidential information.
b) Contractor shall submit to the Buyer Sponsor a form (attached as
Appendix 3) for each User to verify that User is bound by such
confidentiality obligations to Contractor and has been briefed on
these Requirements.
c) Contractor shall perform a criminal background check on each User
prior to allowing the User to access an Information Resource, and
shall not allow such access if the User has been convicted of or
is currently awaiting trial for a felony offense or a misdemeanor
related to computer security, theft, fraud or violence.
d) Notwithstanding any agreement to the contrary, Contractor shall
not subcontract any part of the work under the Agreement whereby
the subcontractor will have access to Buyer's Information
Resources without written approval of Buyer.
43.04 Audits. Upon at least one week's notice from Buyer, and subject to
------
reasonable security requirements of Contractor, Contractor shall provide
Buyer's designated representatives, if under a commercially reasonable
nondisclosure agreement with both Buyer and Contractor, with access to and
any assistance that it may require with respect to the Contractor's
facilities, systems and software for the purpose of performing commercially
reasonable tests and audits to determine compliance with these
Requirements, including intellectual property audits if applicable, data
privacy and security audits, and audits or inspections of the services and
related operational processes and procedures, and access to any SAS-70
audits performed during the term of the Agreement. If Contractor is advised
that it is not in compliance with any aspect of these Requirements,
Contractor shall promptly take actions to comply with the audit findings.
If Contractor is substantially in nonconformance with the foregoing, in
addition to any remedies that Buyer may have, Contractor shall bear the
reasonable cost of a re-audit after Contractor indicates to Sponsor that
the audit findings have been remedied. Buyer may audit or inspect any
computer hardware or software used by Users in the performance of work for
Buyer, and may periodically review or monitor any use of Information
Resources by User. Any User using Buyer Information Resources in an
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 19 of 22
inappropriate manner may be subject to removal from the Buyer account, and
to any other legal remedies Buyer may have.
43.05 Privacy of Customer Information. Contractor and User acknowledge that
-------------------------------
information regarding Buyer's customers, such as their account information,
(including by way of example, name, address, telephone number, credit card
information or social security number) ("Customer Information") are subject
to certain privacy laws and regulations, as well as the requirements of
Buyer. Such Customer Information is to be considered private, sensitive and
confidential. Accordingly, with respect to Customer Information, Contractor
and User agree to:
a) not use any Customer Information or "customer proprietary network
information" for any purpose except as expressly authorized by
Buyer in writing.
b) make no disclosure of Customer Information to any party other
than Buyer except as expressly authorized by Buyer in writing;
c) not incorporate any Customer Information into any database other
than in a database maintained exclusively for the storage of
Buyer's Customer Information;
d) not incorporate any data from any of Contractor's other
customers, including other Affiliates of Buyer, into the
aforesaid Customer database;
e) make no sale, license or lease of Customer Information to any
other party;
f) restrict access to Customer Information to only those employees
of Contractor with a need to know and to use only for the
purposes set forth in this Agreement.
43.06 Encryption. Neither Contractor nor User shall transmit Buyer's
----------
information across a public network or outside or Buyer's data centers
without Buyer's permission, and then only pursuant to Buyer's encryption
standards.
43.07 Viruses. Contractor and User will use best efforts to ensure that no
-------
viruses, worms or other forms of destructive code are introduced into the
Information Resources.
43.08 Social Engineering. Users shall be aware that "social engineers" may
------------------
impersonate others to obtain information in a fraudulent manner. Users
shall provide information only to persons known or verified to have a need
to know such information for a Buyer-approved purpose. If a caller does not
appear to be legitimate, User should report the incident to the Buyer
Sponsor or Buyer Security.
43.09 User ID's and Passwords. User ID's and passwords must be kept private
-----------------------
and not shared with others. Contractor shall notify Buyer immediately of
the termination or redeployment of a User which may no longer require
access to Buyer applications or systems in order to deactivate and/for
remove access for that User.
43.10 Access Control. Contractor and Users shall not conduct any
--------------
unauthorized pinging or exploring of Information Resources, nor make any
attempt at hacking or gaining unauthorized access to Information Resources.
This includes any form of system penetration such as probing, sniffing,
browsing, or looping. Neither Contractor nor User shall connect any device
to Buyer's Information Resource without permission. Users shall not leave
system access devices signed on when they are unattended. Users shall only
access the actual Buyer Information Resources necessary to accomplish work
under the Agreement. Contractor and User must have express permission for
remote access to Information Resources and remote access shall be in
accordance with Buyer's policy. Any access device, such as a SecurID card,
shall be returned to Buyer when Contactor or User has ended its work.
43.11 Return or Destruction of Data. At the termination or expiration of
-----------------------------
the Agreement or when there is no longer a business need or data retention
requirement, or at the request of Buyer, Contractor and User will either
return or purge and destroy at Buyer's direction, all Buyer data, including
Customer Information
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 20 of 22
from Contractor's and User's own information resources, according to Buyer
standards, and will notify Buyer when this has been accomplished.
43.12 Notification of Security Breach. Contractor or User will immediately
-------------------------------
notify Buyer Sponsor of any breach of these Requirements, including any
breach that allows or could allow a third party to have access to any
Customer Information, including but not limited to the following:
Social Security Number
Driver License Number
Home Address
Credit Card number
Credit card expiration date
Date of birth
Visa / passport number
Checking account number
Savings account number
Debit card number
Mother's maiden name
Application PIN or password
Tax identification number
Credit information
Buyer Account Information
43.13 Changes. These Requirements are subject to change and revision by
-------
Buyer from time to time. Contractor and Users are responsible for complying
with the policies and underlying standards, as revised. If Contractor is
unable to comply with the Requirements as revised, it may seek a waiver
within a reasonable time following the change, and will thereafter remain
bound to comply with the unchanged version.
43.14 Waiver. If Contractor wishes to provide Buyer with services that are
------
not in full compliance with this Policy, it shall request and negotiate
with the Buyer Sponsor a written waiver of this Policy.
43.15 Remedies. Failure of Contractor to comply with this policy may result
--------
in Buyer's terminating the Agreement and exercising any other legal rights
it may have.
43.16 Conflicts/Non-Integration. These Requirements are intended to
-------------------------
supplement and not replace any written agreements that the Contractor may
enter into with Buyer. In the event of a conflict between these
Requirements and a signed written agreement between the parties, unless
otherwise stated herein, the signed written agreement shall control. In the
event there is a conflict between these Requirement and any oral agreement
between the parties, these Requirements shall control.
SECTION 44. CONSTRUCTION AND INTERPRETATION
-------------------------------------------
44.01 The language of this Agreement shall in all cases be construed
simply, as a whole and in accordance with its fair meaning and not strictly
for or against any Party. The Parties agree that this Agreement has been
prepared jointly and has been the subject of arm's length and careful
negotiation. Each Party has been given the opportunity to independently
review this Agreement with legal counsel and other consultants, and each
Party has the requisite experience and sophistication to understand,
interpret and agree to the particular language of the provisions.
Accordingly, in the event of an ambiguity in or dispute regarding the
interpretation of this Agreement, the drafting of the language of this
Agreement shall not be attributed to either Party.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Page 21 of 22
44.02 Article, section and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. The use of the word "include" shall mean
"includes, but is not limited to." The singular use of words shall include
the plural and vice versa. Except as otherwise specified, Seller's price
for Material and Services includes the price for all related Material or
Services necessary for Buyer to use the Material and/or Services for its
intended purpose, as well as all other Seller obligations under this
Agreement. All obligations and rights of the Parties are subject to
modification as the parties may specifically provide in an Order.
"Services" and "Software" shall be treated as "goods" for purposes of
applying the provisions of the Uniform Commercial Code ("UCC"). If there is
an inconsistency or conflict between the terms in this Agreement and in an
Order, the terms in the Order shall take precedence.
44.03 Whenever any Party is entitled to interest under this Agreement, the
amount of interest shall be the lower of twelve percent (12%) per annum, or
the highest amount allowed by the governing state law, pursuant to Section
29, "Choice of Law/Venue," of this Agreement.
SECTION 45. LIMITATION OF LIABILITY
-----------------------------------
45.01 Neither Buyer not Seller will be liable for consequential,
incidental, special or punitive damages, or for loss of revenue or profit
in connection with the performance or failure to perform regardless of
whether such Liability arises from breach of contract, tort, or any other
theory of Liability.
SECTION 46. ***
---------------
46.01 Seller represents and warrants that ***, and other *** and *** in
this Agreement are and will *** be *** than *** or which *** by ***. ***
shall *** and have an *** of its *** its *** with this Section to *** upon
***. This *** shall be sent to Buyer's representative listed under the
Section called "Notices."
SECTION 47. TECHNICAL SUPPORT
-----------------------------
47.01 Seller will provide, at no additional cost to Buyer, full and
complete technical assistance to Buyer for the Material and Services
provisioned under this Agreement, including ongoing technical support and
field Service and assistance, provision of technical bulletins and updated
user manuals, and telephone assistance to assist with installation,
operation, maintenance and problem resolution. The availability or
performance of this technical support will not be construed as altering or
affecting Seller's obligations as set forth in the Warranty for Services
section or as provided elsewhere in this Agreement. Field service and
technical support, including emergency support (service affecting), will be
provided on site twenty-four (24) hours a day. Seller will provide to
Buyer, and keep current, an escalation document that includes names, titles
and telephone numbers, including after-hours telephone numbers, of Seller
personnel responsible for providing technical support to Buyer. Seller will
maintain a streamlined escalation process to speed resolution of reported
problems.
SECTION 48. WORK DONE BY OTHERS
-------------------------------
48.01 If any part of Seller's Work is dependent upon work performed by
others, Seller shall inspect and promptly report to Buyer any defect that
renders such other work unsuitable for Seller's proper performance.
Seller's silence shall constitute approval of such other work as fit,
proper and suitable for Seller's performance of its Work.
SECTION 49. INCORPORATION BY REFERENCE
--------------------------------------
49.01 The terms and conditions contained in Appendices 1 through 3,
referred to in this Agreement and attached hereto, are an integral part of
this Agreement and are fully incorporated herein by this reference.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103
Page 22 of 22
SECTION 50. ENTIRE AGREEMENT
----------------------------
50.01 This Agreement, and any Order placed hereunder, shall constitute the
entire agreement between Buyer and Seller relating to this Agreement or a
particular Order and may not be modified or amended other than by a written
instrument executed by both parties. With the exception of those
pre-printed provisions included as a part of this Agreement, any other
pre-printed provisions on Seller's and Buyer's forms shall be deemed
deleted. An Order placed by Buyer hereunder shall incorporate the typed,
stamped, or written provisions or data found thereon and in subordinated
documents (such as shipping releases) so long as the typed, stamped, or
written provisions or data merely supplement but do not vary the provisions
of this Agreement. Whenever typed, stamped, or written provisions of an
accepted Order conflict with this Agreement, this Agreement shall control
unless otherwise agreed to under a "Special Considerations" section of the
Order.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives in one or more counterparts, each of which shall
constitute an original but all of which together shall constitute only one
agreement, on the date set forth in Section 3.
PHASE 2 SOLUTIONS, INC. CINGULAR WIRELESS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------- ------------------------------------
(Authorized Signature) (Authorized Signature)
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------- ----------------------------------
(Print or Type) (Print or Type)
Title: CFO/COO Title: EO GP&S
------------------------------ ---------------------------------
Date: 2/24/2004 Date: 2/23/2004
------------------------------- ----------------------------------
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Appendix: 1
MBE/WBE/DVBE RESULTS REPORT FORM
Page: 1
Appendix 1
----------
MBE/WBE/DVBE RESULTS REPORT FORM
--------------------------------
Seller will submit M/WBE-DVBE Results Reports *** by the end of the first week
following the close of each ***, using the form attached hereto and incorporated
herein as Appendix 1. Participation Plans and Results Reports will be submitted
to the Prime Seller Results Manager.
INSERT EXCEL FORM
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
TIER II M/WBE-DVBE *** RESULTS REPORT
Direct and Indirect Spend
Note: Subcontracting Results should reflect ONLY M/WBE-DVBE dollars directly
traceable to sales DURING THE REPORT ***
Results must be reported individually for each Cingular affiliate
------------------------------------------------------------------------------------------------------------------------------
THIS SUMMARY REPORT SHOULD BE E-MAILED TO: ***@▇▇▇▇▇▇▇▇.▇▇▇
Note: Questions and requests for assistance may be directed ***, SUPPLIER DIVERSITY MANAGER
to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ FAX#: ***
------------------------------------------------------------------------------------------------------------------------------
1. REPORTING COMPANY: 2. REPORT ***:
This report reflects the utilization of Minority Business
Enterprise/Women Business Enterprise/Disabled Veterans
Company Name: _________________________________ Enterprise
participation for period
Address: _________________________________ ___________________________________ through
___________________________________
(Please indicate dates)
City, State, Zip: _________________________________
Contact Name: _________________________________
Title: _________________________________
E-mail: _________________________________
Date: _________________________________
Telephone: _________________________________
Signature:
---------------------------------
------------------------------------------------------------------------------------------------------------------------------
PARTICIPATION GOAL PARTICIPATION ACHIEVEMENT
------------------------------------------------------------------------------------------------------------------------------
3 4
A. DIRECT - Payments reported to Cingular by a primary
supplier who has subcontracted work to M/W/DVBEs on behalf
of the primary supplier's contract with Cingular.
B. INDIRECT-Primary supplier's M/W/DVBE spend not related
to the Cingular contract.
Cingular % of total Revenues (U.S. revenues only
---------------
Total Indirect Diversity Spend (in US) $
---------------
Total Diversity Contribution #VALUE!
---------------
Total Diversity Spend to Cingular #VALUE!
---------------
------------------------------------------------------------------------------------------------------------------------------
Cingular - SUBCONTRACTING RESULTS
------------------------------------------------------------------------------------------------------------------------------
5. M/WBE/DVBE SUBCONTRACTOR(S) Ethnic Gender Total Dollars
(Direct Spend Only) ------------- -------------
Name: ___________________________________________
Address: ________________________________________
City, State, Zip: _______________________________
Telephone: ______________________________________
Goods Or Services: ______________________________
------------------------------------------------------------------------------------------------------------------------------
To add additional subcontractors, copy the entire light ▇▇▇▇ area and paste directly below this line
------------------------------------------------------------------------------------------------------------------------------
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103
Appendix: 2
Executive Orders and Federal Regulations
Page: 1
Appendix 2
----------
EXECUTIVE ORDERS AND FEDERAL REGULATIONS
----------------------------------------
Work under this Agreement may be subject to the provisions of certain Executive
Orders, federal laws, state laws and associated regulations governing
performance of this Agreement including, but not limited to: Executive Order
11246, Executive Order 11625, Executive Order 11701 and Executive Order 12138,
Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era
Veteran's Readjustment Assistance Act of 1974. To the extent that such Executive
Orders, federal laws, state laws and associated regulations apply to the Work
under this Agreement, and only to that extent, Seller (also referred to as
"Contractor") agrees to comply with the provisions of all such Executive Orders,
federal laws, state laws and associated regulations, as now in force or as may
be amended in the future, including, but not limited to, the following:
1. EQUAL EMPLOYMENT OPPORTUNITY DUTIES AND PROVISIONS OF GOVERNMENT CONTRACTORS
In accordance with 41 C.F.R. Section 60-1.4(a), the parties incorporate herein
by this reference the regulations and contract clauses required by that section,
including, but not limited to, Seller's agreement that it will not discriminate
against any employee or applicant for employment because of race, color,
religion, sex or national origin. Seller will take affirmative action to ensure
that applicants are employed, and that employees are treated during employment,
without regard to their race, color, religion, sex or national origin.
2. AGREEMENT OF NON SEGREGATED FACILITIES
In accordance with 41 C.F.R. Section 60-1.8, Seller agrees that it does not and
will not maintain or provide for its employees any facilities segregated on the
basis of race, color, religion, sex or national origin at any of its
establishments, and that it does not, and will not, permit its employees to
perform their services at any location, under its control, where such segregated
facilities are maintained. The term "facilities" as used herein means waiting
rooms, work areas, restaurants and other eating areas, time clocks, rest rooms,
washrooms, locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees; provided that separate or single-user
restrooms and necessary dressing or sleeping areas shall be provided to assure
privacy between the sexes.
3. AGREEMENT OF AFFIRMATIVE ACTION PROGRAM
Seller agrees that it has developed and is maintaining an Affirmative Action
Plan as required by 41 C.F.R. Section 60-1.4(b).
4. AGREEMENT OF FILING
Seller agrees that it will file, per current instructions, complete and accurate
reports on Standard Form 100 (EE0-1), or such other forms as may be required
under 41 C.F.R. Section 60-1.7(a).
5. AFFIRMATIVE ACTION FOR HANDICAPPED PERSONS ANTI DISABLED VETERANS, VETERANS
OF THE VIETNAM ERA.
In accordance with 41 C.F.R. Section 60-250.20, and 41 C.F.R. Section 60-741.20,
the parties incorporate herein by this reference the regulations and contract
clauses required by those provisions to be made a part of government contracts
and subcontracts.
6. UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
CONCERNS
As prescribed in 48 C.F.R., Ch. 1, 19.708(a):
(a) It is the policy of the United states that small business concerns, small
business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women shall have the maximum practicable opportunity to participate in
performing contracts let by any Federal agency, including contracts and
subcontracts for systems, assemblies, components and related services for major
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Appendix: 2
Executive Orders and Federal Regulations
Page: 2
systems. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment amounts due
pursuant to the terms of the subcontracts with small business concerns, small
business concerns owned and controlled by socially and economically
disadvantaged individuals and small business concerns owned and controlled by
women.
(b) Seller hereby agrees to carry out this policy in the awarding of
subcontracts to the fullest extent consistent with efficient contract
performance. Seller further agrees to cooperate in any studies or surveys as may
be conducted by the United States Small Business Administration or the awarding
agency of the United States as may be necessary to determine the extent of
Seller's compliance with this clause.
(c) As used in this Agreement, the term "small business concern" shall mean a
small business as defined pursuant to Section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto. The term "small business
concern owned and controlled by socially and economically disadvantaged
individuals" shall mean a small business concern (i) which is at least fifty-one
percent (51%) unconditionally owned by one or more socially and economically
disadvantaged individuals, or, in the case of any publicly owned business, at
least fifty-one percent (51%) of the stock of which is unconditionally owned by
one or more socially and economically disadvantaged individuals; and (ii) whose
management and daily business operations are controlled by one or more such
individuals. This term shall also mean a small business concern that is at least
fifty-one percent (51%) unconditionally owned by an economically disadvantaged
Indian tribe or Native Hawaiian Organization, or a publicly owned business
having at least fifty-one percent (51%) of its stock unconditionally owned by
one of these entities which has its management and daily business controlled by
members of an economically disadvantaged Indian tribe or Native Hawaiian
Organization, and which meets the requirements of 13 CRF part 124, Seller shall
presume that "socially and economically disadvantaged individual" includes Black
Americans, Hispanic Americans, Native Americans, Asian- Pacific Americans,
Subcontinent Asian Americans and other minorities, or any other individual found
to be disadvantaged by the Administration pursuant to Section 8(a) of the Small
Business Act. Seller shall presume that socially and economically disadvantaged
entities also include Indian Tribes and Native Hawaiian Organizations.
(d) The term "small business concern owned and controlled by women" shall mean a
small business concern (i) which is at least fifty-one percent (51%) owned by
one or more women, or, in the case of any publicly owned business, at least
fifty-one percent (51%) of the stock of which is owned by one or more women, and
(ii) whose management and daily business operations are controlled by one or
more women; and
(e) Suppliers acting in good faith may rely on written representations by their
subcontractors regarding their status as a small business concern, a small
business concern owned and controlled by socially and economically disadvantaged
individuals or a smalll business concern owned and controlled by women.
SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUBCONTRACTING PLAN.
The subcontractor will adopt a plan similar to the plan required by 48 CFR Ch. 1
at 52.219-9.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Appendix: 3
USER CERTIFICATION
Page 1
Appendix 3
----------
USER CERTIFICATION
User should complete Section 1. Contractor should complete Section 2.
Contractor should then return completed form to its Buyer Sponsor.
Buyer Sponsor shall retain this form for one year after User's work has ended
and shall provide a copy to Sponsor's security contact.
Section 1. User Certification
------------------
I have read and acknowledge, and hereby agree, that I will perform in accordance
with the Buyer Security Requirements for System or Network Access by
Contractors. I acknowledge that I have received a copy of these Requirements.
User: (signature)
----------------------
Name: (print)
--------------------------
Date of Birth:
-------------------------
Date:
----------------------------------
Section 2. Contractor Certification
------------------------
The above-named User is
( ) employed by Contractor
( ) employed by __________________ and retained by Contractor as a subcontractor
( ) other, please specify:
Contractor has provided User with a copy of the Buyer Security Requirements for
System or Network Access by Contractors. User is covered by a legally binding
nondisclosure obligation between User and Contractor to protect Buyer
confidential and proprietary information. Contractor has performed the required
criminal background check on User.
User will be engaged with the following project (describe):
Length of engagement: _________________
I am aware of terms of binding nondisclosure between Contractor and Buyer.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103
Appendix: 3
USER CERTIFICATION
Page 2
Contractor Representative (signature):
---------------------
Name (print):
----------------------------------------------
Title:
-----------------------------------------------------
Contractor (company) name:
---------------------------------
Date:
------------------------------------------------------
Name of Buyer Sponsor:
-------------------------------------
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
[Cingular Logo]
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 1 of 18
Specification for Purchase Order No. 3
This Specification for Purchase Order No. 3 ("Specification") is issued pursuant
to the Master Services Agreement No. TH120103 ("Agreement") between Cingular
Wireless LLC ("Buyer") and eTelecare Global Solutions, Inc., formerly Phase 2
Solutions, Inc. ("Seller").
Buyer hereby authorizes Seller to perform the following Services:
1 SCOPE OF WORK
1.1 Seller shall perform call center inbound customer care and support
services for Buyer's wireless handset Exchange By Mail program (the
"Services"). These support services include but are not limited to the
following;
PRIMARY SERVICES
o Access the *** application (***)
o Create a *** (***) as required
o Troubleshoot to *** or *** and ***
o *** of *** to ***
o *** pursuant to above services
SECONDARY SERVICES
o *** and *** through ***
o *** and *** and *** (***)
o Provide *** management (***)
1.2 The Services described herein shall be performed by Seller at the
following locations: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ (as capacity
permits), ▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇, 1330 20th Ave SW, Minot, ND,
Colonnade Center, 51 Interstate, and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇. Seller will provide up to 1250 seats in the
provisioning of Services pursuant to this Specification between these
locations. Seller will obtain Buyer's written permission prior to
moving Services to another facility. Each of Seller's locations
utilized for delivery of the Services shall be adequately equipped
with telephone systems, computer systems, and various support tools
(such as quality assurance tools, documentation and knowledge bases),
and such tools and systems shall be used by Seller in the satisfactory
delivery of Services required by this Specification.
1.3 Seller will *** at least *** percent *** available during the hours of
operation of this program.
1.4 Seller shall advise the Buyer Contact and/or Vendor Manager when any
Buyer-provided system is down for more than 15 minutes. Seller shall
provide an escalation plan with mitigating action in the event of
systems disruption to be approved by Buyer by Services launch.
1.5 Services shall be performed from 7 a.m. to 12 a.m. Monday through
Friday, 9 a.m. to 9 p.m. on Saturdays, and 12 p.m. to 9 p.m. on
Sundays. All times are EST/EDT. Hours of operation may be changed with
written order between both parties per Section 3 below. Buyer reserves
the right to modify (decrease or increase) Services hours of operation
upon twenty (20) calendar days written notice to Seller. Buyer agrees
to utilize the Change in Scope procedures to effect this change.
1.6 Seller shall invoice Buyer based on a target average handle time
("TAHT") of *** over the *** with a maximum of ***. For example, if
the TAHT for the month of May was ***, Seller
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 2 of 18
would *** by the *** based on ***. Seller would *** for the *** over the
*** TAHT maximum.
1.7 Seller shall not ▇▇▇▇ Buyer for any programming hours that are not
specifically programming tasks related to this program. Buyer shall be
informed prior to commencement of any billable programming efforts.
2 DEFINITIONS
2.1 "Customer Service Representative" or "CSR" means a Seller employee or
agent who is contacted by and speaks with Buyer's customers either via
telephone or email on behalf of Buyer. A CSR provides support, answers
questions and solves problems related to Buyer's Products or Programs.
2.2 "Product" or "Program" means Buyer's wireless services and customer
support services related thereto.
2.3 "Critical Time Range" means the time range where expected call volume
is forecasted to be 20% higher than other scheduled hours.
2.4 "Pilot Program" means the Buyer's Program which launched February 2,
2004, and which Buyer's Program shall continue up to the start of the
National Program.
2.5 "National Program" means the Program that follows the end of the Pilot
Program. Commencement of the National Program will begin on the
Effective Date of this Specification No. 3.
2.6 "Target Average Handle Time" is defined as the total time a CSR is in
talk time plus after-call wrap time plus hold time divided by the
number of calls taken by that CSR in the measured period of time.
2.7 "Service Level" is defined as the percentage of Buyer's Customers who
will have access to a live CSR within the specified amount of time, as
a percentage of total calls offered.
2.8 "*** Minutes" is defined as each minute of time for *** for *** under
this Specification which is *** and includes *** and *** up to a ***
Target Average Handle Time (per call) within a given billing period.
2.9 "Quality Assessment" is based upon the quality observations outlined
in Section 18 of this Order. Total score is the average of all
observation scores performed within the performance period minus the
two lowest scores.
2.10 "Productivity" is defined as talk time, plus after-call wrap time,
plus hold time, plus outbound call time divided by total CSR sign-on
time.
2.11 "Attrition" is defined as the turnover in the number of CSRs (or other
Seller appointed representatives) who have been assigned to perform
Services for Cingular under this Specification. Such turnover shall be
calculated by dividing the beginning headcount within a specific
ninety (90) day period by ending headcount within that same specific
ninety (90) day period.
3 CHANGE IN SCOPE
3.1 Changes in scope shall be managed in the manner outlined in Exhibit A
"Management Procedures for Changes in Scope" which is attached hereto
and fully incorporated herein by this reference.
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The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 3 of 18
4 BUYER RESPONSIBILITIES
4.1 Buyer and Seller collectively will develop, maintain and update
training materials as necessary. One complete set of all required
software, technical notes, technical documentation and all additional
training materials for all Products, and all updates, upgrades and
revisions (collectively the "Training Materials") excluding any
Intellectual Property developed by Seller thereto, will be provided by
Buyer to Seller, and all such materials shall remain the property of
Buyer. Any Seller modification to the Training Materials must be
approved by the Buyer and shall become property of the Buyer.
5 PRIMARY CONTACT INFORMATION
5.1 Seller will provide a main point of contact at a Director level or above
that is dedicated full-time to the Buyer's Program under this
Specification. Current lists of contacts attached hereto as Exhibit E. Any
changes in the reflected point of contact must be pre-approved by Buyer.
Seller will designate a full-time National Account Manager who will be
assigned to Buyer's Program(s) for the duration of this Specification. Such
National Account Manager must be equipped with, and must be available via a
wireless phone at Seller's sole expense.
6 TERM
6.1 The term of this Specification shall commence on the date of the last
signature executing this Specification (the "Specification Effective
Date"), and shall continue in effect for a period of one (1) year,
unless sooner terminated as allowed in Master Services Agreement No.
TH120103 (the "MSA") or as otherwise allowed in this Specification.
This Specification may be extended at the existing terms, conditions
and pricing for an additional one (1) year period at Buyer's sole
discretion, by Buyer Providing Seller with written notice of its
intent to renew this Specification for an additional one (1) year
period within thirty (30) days of the expiration of this
Specification.
6.2 Buyer shall have the right to terminate this Specification (and its
associated Purchase Order) at any time, with or without cause, upon
giving Seller at least 30 days written notice of such termination.
6.3 This Specification (and associated Purchase Order) will cover the
National Program as defined above.
7 SERVICE SPECIFICATIONS AND REQUIREMENTS
7.1 Seller will be routed and will receive calls and other communications,
including but not limited to e-mail, on behalf of Buyer ("Customer
Inquiries"). Such calls will be from Buyer's customers seeking
customer support that shall include (but is not limited to), responses
to questions regarding Buyer's Products or Programs, and problem
resolution on technical problems with Buyer's Products or Programs.
7.2 Seller will respond to Customer Inquiries in accordance with the
Performance Standards described herein, which may be amended from time
to time upon written notification by Buyer. Seller shall further
conform to all of Buyer's requirements concerning call disposition.
7.3 Seller will populate the *** and Trouble Ticket fields for all
Customer Inquiries in accordance with Buyer's specifications, which
may be amended from time to time upon written notice to Seller.
7.4 Seller will *** to *** in-house customer care centers via "***" all
Customer Trouble Tickets that require advanced assistance. *** will
answer the calls using the same performance standards required of
Seller. Advanced Assistance includes those issues *** the ***. Such
Trouble Tickets will be transferred in accordance with procedures as
specified by Buyer, as same may be amended from time to time upon
written notice to Seller. All such activity will be monitored for
adherence to the methods and procedures established by Buyer. Seller
may instruct its CSRs to complete a *** any time the hold time in
queue at Buyer's
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The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 4 of 18
call center exceeds ***. Seller must check and monitor hold times
every ***.
7.5 The Deliverables to be delivered by Seller to Buyer pursuant to this
Specification are listed in Exhibit B "Deliverables Matrix".
8 SELLER RESPONSIBILITIES
8.1 Seller will provide qualified and adequately trained resources to
answer all Customer Inquiries in accordance with the Performance
Standards herein. Customer Inquiries shall occur when a live CSR
answers the call, and not upon the Customer reaching a voice response
system.
8.2 Seller will be responsible for supplying all adequately trained
personnel, facilities, tools, equipment, services and materials
necessary to perform the Services in accordance with the terms and
conditions set forth in this Specification.
8.3 Seller shall be responsible for the recruiting, hiring, and attrition
training of required personnel to satisfactorily perform the Services
described herein at no additional charge to Buyer, Seller shall
acquire resources that possess the appropriate skill sets for the work
being performed. Seller shall be responsible for all costs associated
with recruiting and hiring personnel required to perform the Services.
8.4 Seller shall notify Buyer of the hiring of additional personnel or
removal of personnel from Buyer's Program. Such notification shall be
in writing and will occur on the date of hiring for staff additions,
and within twenty-four (24) hours for staff deletions. The
notification specified herein will allow Buyer to manage system login
access. In the event that any of Seller's personnel performing
Services under this Specification are found to be unacceptable to
Buyer for any reason, including but not limited to, a reasonable
belief that he or she is not qualified to perform or is not performing
the Services as required by this Specification, Buyer shall notify
Seller of such fact in writing, setting forth such cause. Seller shall
then immediately remove said employee from performing Services under
the Specification and, if requested by Buyer, shall immediately
provide a qualified replacement. Buyer is the sole judge as to
performance capability but shall exercise its discretion reasonably.
8.5 Seller agrees to provide adequate space at any facility where the
Services are to be performed to accommodate three (3) full-time Buyer
staff members ("Vendor Managers").
8.6 Seller will provide necessary hardware and software at Seller's site
(excluding any Buyer owned and supplied T1 components) from the point
of demarcation to switch for voice path communications.
8.7 Seller shall require that personnel with access to Buyer's network,
systems, property (including information or assets), sign an
acknowledgement form documenting that such personnel understands and
agrees to safeguard against loss, damage, misuse, or theft of Buyer's
assets or property. Seller shall maintain a complete file of all
signed acknowledgement forms in accordance with the "Security
Requirements for System or Network Access by Contractors" clause of
the MSA. Seller's access to Buyer's networks, systems, property and
assets shall at all times be subject to the terms and conditions of
the MSA and this Specification.
8.8 Seller will maintain a *** to *** of no more than *** to *** full-time
equivalents ("FTEs").
8.9 It is the Seller's responsibility to manage Customer escalations
through the Seller's management chain. Technical problems shall be
forwarded to the Buyer through the ticketing process established in
the methods and procedures.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 5 of 18
8.10 Seller agrees to relinquish ownership at no cost to Buyer of any and
all toll-free numbers associated with the Program to Buyer or another
party specified by Buyer within forty-eight (48) hours of Buyer
request. Seller will transfer to Buyer, and Buyer will maintain sole
ownership of all toll-free numbers associated with the Program under
this Specification.
8.11 Each month Seller and Buyer shall collaborate on a written rolling
ninety (90) day forecast ("Rolling Forecast") of the expected number
of calls on a per hour basis with a Critical Time Range specified,
based historical call volumes and/or expected market launch dates.
Buyer will approve all forecasts. It is Seller's responsibility to
staff to meet forecast and agreed upon service levels.
8.12 Seller agrees to relay to Buyer Contact / Vendor Manager all
information related to recurring problems, errors or other handset
issues, and the recommended resolution of said problems, if
applicable, discovered or developed in conjunction with this Project
so that such information may be added to Buyer's CIQ customer care
application.
9 PROGRAM MANAGEMENT
9.1 Seller shall ensure that Buyer's Projects have an Assigned team-of
Seller supervisors and operations representatives. "Assigned"
personnel shall mean individuals who will serve as Buyer's primary
points of contact in connection with the Services to be performed
under this Specification.
9.2 Seller shall provide Buyer with a dedicated Project Manager assigned
solely to Buyer's account. Seller's dedicated Project Manager shall
assume central responsibility for all aspects of Buyer's account. The
Project Manager shall act as the day-to-day liaison with Buyer and
shall be 100% dedicated to Buyer's account. The Project Manager shall
be responsible for ensuring that Seller is achieving the Performance
Standards and will serve as Buyer's primary point of contact.
9.3 Seller's account manager shall monitor daily activity to ensure that
Program goals are met. The account manager shall audit the daily
reports before sending said reports to Buyer to assure that accurate
reports are received. The account manager shall monitor the CSRs on
their program, assuring the Quality Assessment standards detailed in
Section 18 are met.
9.4 Program reviews will be conducted quarterly. Dates, times and
locations will be set in advance and agreed to by both parties. As a
standard practice, Seller will engage in continuous process
improvement initiatives on behalf of the Buyer. These initiatives may
provide various results, such as strengthening and improving the
delivery of service and/or reducing talk times. The progress of any
and all such initiatives will be a standard part of the quarterly
review process.
10 PERFORMANCE STANDARDS
10.1 Buyer and Seller have developed the following standards (hereinafter
"Performance Standards") to ensure the delivery of high quality,
efficient customer service. Exhibit C, which is attached hereto and
fully incorporated by reference, details the Performance Standards
which shall apply to the Services being performed under this
Specification.. In addition, said Exhibit C outlines each Performance
Standard and its related deduction and incentive, as applicable, which
are to become effective upon National Program launch.
a) Service Level of *** percent (***%) of all calls answered within
-------------
*** or less. Service level will be determined by *** the *** of
*** within *** and the *** of ***. For Example: If *** were ***
said *** were *** in *** or higher, the *** would be ***%. Calls
handled include all *** taken *** plus *** in *** and higher.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 6 of 18
Calls Answered in *** or Less
-----------------------------
(Total Calls Handled by Agent + Abandoned Calls in Queue *** or More)
b) Target Average Handle Time not to exceed ***. Further, Seller
--------------------------
shall *** to decrease *** to ***. The average target handle time
will be calculated by the dividing the total calls (less the time
spent performing a ***) by the total target handle time of all
calls answered. For example: if *** calls were answered that had
the following target handle's times *** (***) the TAHT would be
calculated by adding the three call processing times, less the
***, and dividing the sum by the total calls (***) ((***) -
***)/(Total Calls) = TAHT.
(Target Handle Time of All Calls - ***)
---------------------------------------
Total Number of Calls
c) Abandonment Rate not to exceed *** percent for ***% of *** by
----------------
***. The abandonment rate will be calculated by dividing the
total calls abandoned after call in queue by the total calls
offered. For example: If *** calls were offered and *** were
abandoned with the following abandon times (*** and ***) the
abandon rate would be two percent.
(Total Abandoned Calls - Total Abandoned within ***)
----------------------------------------------------
Total Calls Offered
d) First Call Resolution: ***% of calls resolved on the first call.
----------------------
A call is considered resolved if there is not a repeat call
regarding the same reason and resolution within 30 days. First
call resolution will be calculated by taking the inverse of the
number of repeat calls with the same reason and resolution
disposition within a *** period divided by the total number of
calls during the *** period. For example: if *** unique customers
called in *** days and their names were located in ***
dispositions, signifying *** calls for *** issue, the 1st call
resolution would be ***% (***)). This will be calculated by ***
each day for customers who appear on records remarked with the
same disposition. If First Call Resolution rate is lower than
***%, *** a *** with *** cause *** within the *** of the
following ***.
Number of Repeat Calls with same Disposition
--------------------------------------------
Total Number of Calls
e) Customer Satisfaction / Service Delivery. Seller agrees to
-----------------------------------------
provide *** and *** to *** or *** to a *** for *** and ***
results. In instances when *** are *** to *** the *** due to ***
(i.e., *** is not *** for the ***, etc.), *** will be *** on ***.
Seller may *** and *** to *** and *** said ***. The overall
satisfaction rating will be calculated by *** the *** of *** of
all ***. For the *** agents will *** as part of the *** outlined
***. Buyer and Seller agree to *** by *** agents within *** of
*** of ***. *** are *** as *** where *** mandate that *** or ***
are denied ***. *** may
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 7 of 18
*** by *** of *** that would *** that *** the ***.
f) After Call Wrap Time. Average after-call wrap time *** of ***.
---------------------
After call wrap time will be defined by the *** into *** and ***.
This will be determined by the ***. For example: If the average
talk time was *** or ***, the *** would not ***. (*** * ***%) =
maximum wrap time.
Average After-Call Wrap Time < 10%
---------------------------- -
Target Average Handle Time
g) Wireless Network Outage Notification. Seller agrees to *** to a
-------------------------------------
*** of *** from the *** of *** of *** from *** to *** of ***
being *** prior to ***. These queue messages will *** of *** to
the *** being *** to a *** and will reduce *** through *** and
***. This will be calculated by *** by the ***. For example: If
***requests were made in a month where *** request was fulfilled
within *** and the other was made within ***, the average time
for posting would be ***.
Sum of Speed of all Postings <***
---------------------------- -
Number of Postings
h) Disposition Log. Seller shall log *** percent (***%) of calls
----------------
answered in the ***, and ***, or unless *** to in *** by ***
prior to *** a *** that does not ***. The "Call Logging Ratio"
will be determined by calculating the ratio of all dispositions
into Seller systems and the total calls handled. For example: Of
*** calls *** calls were dispositioned into Seller system and
there were *** out-of-scope call transfers, the Call Logging
Ratio would be ***%.
Number of Calls Logged/Dispositioned
------------------------------------
(Total Calls - Transfers)
i) *** Attrition: Seller shall take reasonable action to promote an
--------------
*** of no more than *** percent (***%) *** month for *** with
***. During periods of *** may not exceed the rate of ***. If ***
is higher than ***%, *** a *** with *** cause *** within the ***
of the following ***.
No. of *** at start -No. of *** at end
--------------------------------------
No. of *** at start
-------------------
j) The Performance Standards outlined in this Section 10 may be ***
by *** at its ***, upon *** days *** to *** per the procedure
outlined in Exhibit A, Management Procedures for Change in Scope.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 8 of 18
11 PRICE
11.1 Services shall be compensated by Buyer to Seller pursuant to the rates
and charges detailed in Exhibit D which is attached hereto and fully
incorporated herein by this reference. Such rates and charges include
all applicable taxes. Payment terms are net thirty (30) days.
11.2 Seller shall *** for all *** according to the definition of ***
Minutes described in Section 2 ("Definitions").
11.3 Seller shall be responsible for all telecommunications setup charges
incurred. Such setup shall include all internal queue and message
setup.
12 TRAINING
12.1 Seller agrees that the successful completion of the Scope of Work as
specified in this Specification may require training that is specific
to knowledge transfer to Buyer and Buyer's personnel who are engaged
in this initiative. Such training shall be managed in accordance with
the Agreement and shall be completed at no charge to Buyer.
12.2 Any training of Seller's personnel for non-Buyer related activities or
purposes will be at no charge to Buyer, including, but not limited to:
trainer's training time, trainees' training time, professional fees,
general expenses, materials or other direct or indirect training
costs.
12.3 Seller shall make sufficient copies of the Training Materials provided
by Buyer to train Seller's representatives performing Services under
this Specification. All Training Materials shall remain the sole
property of Buyer, and shall not be used for any purpose other than
the performance of the Services under this Specification. Seller shall
not make any changes to the training materials without the written
consent of Buyer.
12.4 Seller agrees to *** and *** of *** of ***, and such personnel will
perform the Services described in this Specification. Notwithstanding
the foregoing, if mutually agreed between the parties, Buyer may
provide Buyer *** for initial ***.
12.5 Seller agrees to provide ***, and *** at *** to ***.
12.6 If requested in writing by Buyer, Seller may develop curriculum for
Buyer's new programs ("Curriculum"). All Curriculum developed by
Seller must be reviewed and approved in writing by Buyer prior to
being used in training Seller's representatives performing the
Services. All Curriculum developed by Seller for Buyer shall be
considered "Work Product" as described in the MSA, and shall be the
sole property of Buyer.
13 INVOICING
13.1 Invoices detailing fees and expenses, which will include a reference
to the Agreement and the number of the Specification, shall be
submitted to the Buyer Contact listed in Section 5 of this
Specification and are payable in accordance with the payment terms set
forth in Section 11 ("Price").
13.2 Seller shall invoice Buyer monthly. Invoices shall be issued within
five (5) days of the end of each calendar month. Invoices shall detail
the number of *** Minutes multiplied by the per-minute rate, and such
additional information as Buyer may reasonably request.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 9 of 18
14 PREMISES VISITS
14.1 Seller shall allow Buyer representatives, at no charge, to inspect the
locations where Services are performed following at least twenty-four
(24) hours prior notice to Seller. Such inspection shall include (but
is not limited to) the opportunity to observe the performance of the
Services and interview Seller CSRs who perform Services for Buyer as
well as to answer and/or monitor live calls, provided this activity
does not significantly interfere with the primary Service activity.
15 REMOTE SILENT MONITORING
15.1 Seller will provide unlimited hosted monitoring to Buyer during all
performed hours during which Service is provided. Seller shall further
use a highly accessible toll-free remote monitoring function (or
option to dial out) by providing remote monitoring for the performed
hours of Services. If technically available, Seller shall make said
function available to Buyer via a computer and modem to allow Buyer to
watch the CSR or operator interact with Seller's computer screens.
Buyer's representatives will be permitted to monitor the performance
of the Seller's CSR by auditory technology or through retrieving all
non-archived call recordings and/or data from the switch without
notice. Recordings of calls that have been archived will be accessible
through Seller's Project Manager within 48 hours of Buyer request.
16 CALL FLOW AND SCRIPT APPROVAL
16.1 Buyer must approve scripts, order forms, ***, and report formats to be
used by Seller for Services provided pursuant to this Specification.
If Seller desires any changes whatsoever to the aforementioned
scripts, forms or formats, then Seller must obtain Buyer's prior
written approval for implementing such changes prior to incorporating
the change(s).
17 WORK PRODUCT OWNERSHIP AND ***
17.1 Buyer will have ownership of all call flows, including handset
trouble-shooting call flows, scripts, training materials and customer
care processes developed by Buyer and Seller and used in conjunction
with this Project. Buyer shall be required to pre-approve such
scripts, call flows, training materials and customer care processes
prior to their use in accordance with this Specification.
17.2 Seller shall provide *** which *** be *** by Buyer *** to facilitate
the *** of *** to a *** if Buyer reaches ***% of *** of ***, including
but not limited to *** all records, any work product *** in *** of
this ***, and *** for *** or *** to *** the ***. Such *** will be ***
at *** to ***. Seller shall provide Buyer with an itemized ***
required to support *** at least *** prior to the date of ***.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 10 of 18
18 QUALITY ASSESSMENT / PERFORMANCE CRITERIA
18.1 Seller will provide enough Quality Assessment ("QA") agents relative
to the total number of assigned CSRs to meet the minimum number of
observations monthly. Each CSR is *** and supervisors are required to
*** of the *** for *** with the ***. QA agents will *** while *** the
*** the *** being *** are ***. *** between *** and *** will be *** to
*** and *** to *** is ***. *** percent (***%) of the required
observations above will be provided by ***. If Seller *** to*** in
***, Seller will be *** of such *** and Seller will have *** to bring
*** to ***. Buyer and Seller may mutually agree to modify the
standards upon written agreement signed by both parties.
18.2 Calibrating the scoring for the Quality Assessment Tool will be
conducted in regular monthly meetings between Buyer and Seller
representatives.
18.3 Buyer will have the right to request removal of any CSR from
performing the Services with or without cause. Buyer may exercise this
right by notifying Seller in writing of Buyer's desire to remove a
particular CSR from its program. Thereafter, Seller shall immediately
remove such CSR(s) from Buyer's Program. Notwithstanding the
foregoing, if mutually agreed between the parties, Seller may take
corrective action to remedy the defects in the performance of any
CSR(s) if the removal was predicated solely upon defective
performance.
18.4 Seller agrees to notify Buyer in writing or by email immediately of
any non-Customer impacting Service problems, which might inhibit
Seller from achieving the Performance Standards as outlined herein.
18.5 If, during a CSR observation, Seller identifies conduct that is not in
conformance with standards (i.e. providing incorrect information to a
Buyer's customer), Seller shall immediately intervene with such CSR.
As technology may become available at Seller's centers, Seller shall
provide system capability for Supervisors to e-mail CSRs while
conducting quality observation.
18.6 Buyer has the right to perform an audit of performance at any time.
Buyer and Seller shall mutually agree to audit criteria. Buyer shall
provide Seller with all audit reports.
19 SELLER ***
19.1 If Buyer reaches ***% of *** of Seller on an ***, then Seller *** to
*** to a *** of *** choice and *** and *** so that *** can ***. Seller
must *** within *** of ***% *** of Seller, to be calculated by *** and
*** to *** on a ***.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
[Cingular Logo]
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 11 of 18
IN WITNESS WHEREOF, the parties have caused this Specification to be executed by
their duly authorized representatives:
eTelecare Global Solutions, Inc. Cingular Wireless LLC
(formerly known as Phase 2
Solutions, Inc.)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Printed Name: ▇▇▇▇ ▇▇▇▇▇▇
----------------------- --------------------------
Title: CFO Title: President + CEO
------------------------------ ---------------------------------
Date: 3/23/05 Date:
------------------------------- ----------------------------------
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 12 of 18
Exhibit A
Management Procedures for Change in Scope
1) Buyer shall have the right to make changes in the scope of the work, the
associated pricing and in the Specification to be performed under the
Agreement as set forth in a corresponding Order. All changes shall be
authorized in writing by Buyer Contact through a Project Change Notice. If
Buyer's changes affect Seller's pricing, such changes will be negotiated
and agreed upon (as part of the change process) prior to the implementation
of the proposed change.
2) Seller shall not make any changes in the scope of the work or Specification
to be performed under this Specification which have not been authorized in
writing by the Buyer Contact.
3) If Seller received instructions, directions or requests to make any change
or changes that will result in a change in the scope of the work to be
performed under this Agreement or an Order from anyone other than the Buyer
Contact, Seller shall promptly notify the Buyer Contact and provide a
description of the proposed change, or changes, the length of the delay, if
any, that will result from the change or changes and the increased cost, if
any, that will result from such change or changes.
4) If Seller receives instructions, directions, or requests from Buyer Contact
to make any change or changes that will result in a change in the scope of
the work to be performed under this Agreement or an Order, Seller shall
promptly provide Buyer Contact with the length of the delay, if any, that
will result from the change or changes and the increased cost, if any, that
will result from such change or changes. Seller shall not proceed to
implement any such change without the written approval of Buyer Contact. To
the extent the development work is delayed as a result of Seller having no
written authority to proceed with a change or changes to the development
project, Seller shall not be responsible therefore. Any such changes that
are made by Seller without written approval of Buyer Contact, other than at
the urging or other affirmative act by the Buyer Contact, shall not excuse
any delay in a delivery date or form the basis for any claim or rationale
to increase Seller's pricing.
5) Any delays indirectly or directly affecting the dates in the Deliverables
Matrix that are approved in writing by the Buyer Contact shall be excused,
and any increase in the cost must be approved in writing by the Buyer
Contact and shall be added to the Seller's price.
PROJECT CHANGE NOTICE NEXT PAGE
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 13 of 18
[Exhibit A continued]
PROJECT CHANGE NOTICE
DATE:
CLIENT:
PROJECT:
--------------------------------------------------------------------------------
DESCRIPTION OF CHANGE:
ALL SUPPORTING MATERIALS ATTACHED? YES [ ] NO [ ]
DATE:
--------------------------------------------------------------------------------
DATE:
IMPLEMENTATION PLAN? YES [ ] NO [ ]
--------------------------------------------------------------------------------
COST OF CHANGE (if any): $
DATE:
--------------------------------------------------------------------------------
APPROVALS
eTelecare Global Solutions, Inc Cingular Wireless, LLC
(formerly known as Phase 2 Solutions,
Inc.)
By: By:
--------------------------------- ------------------------------------
Printed Name: Printed Name:
----------------------- --------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 14 of 18
Exhibit B
DELIVERABLES MATRIX
Deliverables/Specifications/Requirements Delivery Date Evidence of Success
---------------------------------------- ------------- -------------------
Deliverable Set # 1 - Reporting All reporting *** and *** is *** on *** for *** by ***
to begin ***
*** Reporting: set of *** that will be available through the following the
-------------- parties
*** or *** on an *** basis: *** Report; *** Report; *** execution of
Report; ***; ***; *** Reporting; ***; *** Report;*** Report; this
*** Report; *** Specification
*** Scorecard: Seller will provide *** report on the
-------------
following items in scorecard format *** of *** of *** Calls;
***; *** Assessment; *** Time; *** Notification; ***
Dispositions *** System
*** Scorecard: Seller will provide *** report including the
following: *** Number of ***; *** v.***); *** *** of *** to
*** of *** of ***
----------------------------------------------------------------------------------------------------------------
Deliverable Set # 2 - Quarterly Program Reviews Quarterly Evidence of Success:
reviews as -------------------
o Seller will conduct *** reviews *** at *** to *** scheduled
activity, *** analysis, *** and *** programs that were o *** are held as scheduled
*** and their ***, and to *** that *** upon *** are
being met ***. If *** are not *** met, *** must *** an
*** to be *** within *** to *** within ***.
----------------------------------------------------------------------------------------------------------------
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 15 of 18
Exhibit C
NATIONAL AGREEMENT PERFORMANCE STANDARDS SCORECARD
o Seller shall earn the applicable level of payment compensation as defined
in Exhibit D ("Pricing") attached hereto. Seller must meet and will be
compensated for the applicable Performance Standard requirements achieved
for the month (applied to the current month's invoice).
SCM
CHARAC PERFORMANCE
TERISTIC OBJECTIVE MEASURE STANDARD WEIGHT CALCULATION EXCEPTION
--------------------------------------------------------------------------------------------------------------------------------
*** Answer calls in *** Level *** ***% Calls answered in Call volume
such a manner that Service level of ***% *** or less / (Total estimates missed by
***% of all calls of all calls answered calls handled by more than ***%
are answered within *** agent + Abandoned
within *** calls in queue ***
or more)
--------------------------------------------------------------------------------------------------------------------------------
*** Answer calls in a Abandonment Rate Not to exceed 4% ***% (Total abandoned Call volume
such a manner that after call in queue calls - total estimates missed by
*** remains low abandoned within more than ***%
***) / Total calls
offered
--------------------------------------------------------------------------------------------------------------------------------
*** Keep the customer Customer TBD by BI baseline ***% *** Seller will ***
satisfied with the Satisfaction survey
*** (75% surveyed in top
3 boxes)
--------------------------------------------------------------------------------------------------------------------------------
*** / *** Solve the First Call ***% or greater ***% Number of repeat Any repeat caller
customer's problem Resolution calls from customer within a *** period
with a *** for the same reason resulting in a
within *** / Total different inquiry
number of calls (i.e., billing,
sales, collections,
etc.) will be
excluded from the
repeat rate
calculation
--------------------------------------------------------------------------------------------------------------------------------
*** Keep call handle TAHT Target *** TAHT ***% (Target Handle Time If Buyer changes the
times *** while Set a Target Average of All Calls - *** call flow or the
meeting the *** Handle Time for Minutes) / Total Specification, a new
inbound calls Number of Calls TAHT standard will
be negotiated, up or
down (IVR)
--------------------------------------------------------------------------------------------------------------------------------
*** Minimize the *** Less than or equal to ***% No. of Warranty Recall or product
number of *** ***% of *** Exchanges less advisory situation
through Product recall that generates
troubleshooting advisories / exchanges beyond
Beginning of Period Seller's control
Subscriber Base
(orange billing
system only)
--------------------------------------------------------------------------------------------------------------------------------
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 16 of 18
Exhibit D
Price
a) The table below outlines *** pricing as it relates to this Specification:
APPLICABLE *** PRICING
-----------------------------------------------------------------------------------------------------
*** Per *** *** *** *** ***
Below a *** Between a *** Between a *** score Above a *** (*** to the
*** score *** score (*** to the (*** for the ***) *** for the ***)
(*** to the *** *** for the ***)
for the ***)
-----------------------------------------------------------------------------------------------------
Below *** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
***-*** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
Above *** $ *** $ *** $ *** $ ***
-----------------------------------------------------------------------------------------------------
b) The appropriate *** rate shall be applied to the Target Average Handle Time
(TAHT) of all *** the *** up to *** minute TAHT. For example, the TAHT for
the *** is *** minutes *** for *** calls. Buyer would be invoiced *** (***
minutes * *** calls * ****) for *** with *** for ***.
c) *** rates in the table above are *** to the *** for ***. For example, ***
in *** month *** be *** at the *** for all *** with those *** calls.
d) *** and *** $***/Hour. Must be *** by *** / *** or *** on *** or *** prior
to ***. *** is defined as *** and/or *** that is *** for ***.
e) Buyer agrees to pay *** per hour ($***/Hour) for ***, including *** support
to *** as requested by *** on an ***. Buyer and Seller agree to ***
associated with *** that are *** over and above the *** and ***.
f) Buyer agrees to pay for *** calls at the *** determined by ***. For
example, the *** is ***, and ***
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 17 of 18
*** averaging *** were made. Buyer would be invoiced $*** (*** minutes* ***
calls* $***) for ***.
g) Buyer agrees to pay $*** per minute *** for *** that result from ***.
h) Buyer agrees to pay the *** per minute rate per the table above for all ***
minutes.
i) Buyer agrees to pay a *** of *** dollars ($***) per hour for up to*** days
(*** hours in total) of *** for each *** who is *** and *** as a direct ***
of *** when the *** in *** over *** exceeds *** percent (***%). For
purposes of this paragraph, *** shall be defined as an *** of *** who has
*** been a *** or *** of *** within the last *** months. Costs associated
with *** of *** shall be *** by ***.
j) Buyer will be responsible for *** relative to the *** of *** and *** from
the *** of *** to *** for ***.
k) In the event Seller must incur *** in order to provision the *** by this
***, Seller shall *** such *** on to *** as such *** are actually ***.
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Agreement No. TH120103-03
Specification for Purchase Order No. 3
Page 18 of 18
Exhibit E
Staffing Plans
-------------------------------------------------------------------------------------------------------------------------------
Name Title Phone Email Role
-------------------------------------------------------------------------------------------------------------------------------
Cingular Wireless, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ Sr. Manager *** ***@▇▇▇▇▇▇▇▇.▇▇▇ Sr Logistics/Repair Mgr
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ Vendor Mgr General Dept *** ***@▇▇▇▇▇▇▇▇.▇▇▇ Vendor Manager Team Lead
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇. Contract Manager *** ***@▇▇▇▇▇▇▇▇.▇▇▇ Contract Manager
-------------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇ IT Project Manager *** ***@▇▇▇▇▇▇▇▇.▇▇▇ IT and Data Integration
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Channel Master *** ***@▇▇▇▇▇▇▇▇.▇▇▇ Market/Channel Communications
-------------------------------------------------------------------------------------------------------------------------------
eTelecare Global Solutions, Inc (formerly known as Phase 2 Solutions, Inc) ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ VP - Customer Service *** ***@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Primary Account Director
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ Dir - Business Development *** ***@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Sales Contact
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ VP of Information Systems *** ***@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Network Contact
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Director of Application *** ***@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Software Development and
Development Reporting Contact
-------------------------------------------------------------------------------------------------------------------------------
PRIVATE/PROPRIETARY/LOCK
The information contained in this Agreement is not for use or disclosure outside
Cingular Wireless, Seller, their affiliated companies and their third party
representatives, except under written Agreement by the contracting Parties.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
[Cingular Logo]
--------------------------------------------------------------------------------
May 1, 2006
VIA DHL AND FACSIMILE TO 480.477.XXXX
-------------------------------------
eTelecare Global Solutions, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇, CFO
RE: Notice of Intent to Renew
Specification for Purchase Order No. 3 ("Specification") to
Master Services Agreement No. TH120103 between Cingular Wireless
LLC, on behalf of itself and its Affiliates ("Cingular"), and
eTelecare Global Solutions, Inc. ("eGS")
Dear ▇▇▇▇▇▇:
The letter is to notify eGSI that Cingular hereby exercises it option to renew
the above-referenced Specification pursuant to Paragraph 6.1 (Term) thereof.
For purposes this notice, the Parties hereby stipulate that the Effective Date
of this Specification is June 15, 2005 and that such Effective Date supercedes
and replaces the "Specification Effective Date" as set forth in Paragraph 6.1.
The Parties agree that this renewal period will commence and be effective as of
June 15, 2006 and will continue in effect until June 15, 2007.
Sincerely,
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Executive Director - Supply Chain
CINGULAR WIRELESS LLC
Agreed
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
eTelecare Global Solutions, Inc.
Signature: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President, Philippine Operations
Date: June 15, 2005
--------------------------------------------------------------------------------
Cingular Wireless o [address illegible]