EXHIBIT 10.46
VENDOR SERVICES AGREEMENT
THIS SERVICE AGREEMENT ("Agreement") is made effective as of the 1/st/ day
of January, 2001, by and between Nextel Communications of the Mid-Atlantic,
Inc., a Delaware corporation ("Nextel"), and RMH Teleservices, Inc., a
Pennsylvania corporation (the "Vendor"), with a federal tax identification
number of #.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Nextel desires to retain Vendor to provide services in the area of
Telemarketing, Telesales and Data Entry and Vendor desires to provide such
services pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which the parties hereby acknowledge, the parties
hereto hereby covenant and agree as follows:
I. THE SERVICES
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1. Appointment and Acceptance. Nextel hereby retains Vendor as a Vendor, and
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Vendor hereby accepts such appointment from Nextel, under the terms and
conditions hereinafter set forth. All other agreements or arrangements, oral or
written, between the parties in any way pertaining to the appointment of Vendor
are hereby terminated and completely merged herein.
2. Personnel. The personnel to be provided by Vendor to perform services for
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Nextel (collectively and individually, the "Personnel") are set forth in
Schedule A, attached hereto and incorporated herein. The parties hereby agree
that the Personnel are agents of Vendor and will be bound by all terms and
conditions herein set forth and binding Vendor. In the event that any Personnel
assigned by Vendor to Nextel is, in Nextel's reasonable opinion, unsatisfactory,
then upon written notice to Vendor, Nextel shall have the sole right to require
Vendor to immediately terminate such Personnel's assignment with Nextel and, at
Nextel's option, Vendor shall immediately furnish a suitable replacement.
3. Scope of Services. Vendor agrees to provide Nextel, as requested by Nextel,
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the Telemarketing, Telesales and Data Entry services (the "Services") set forth
in Schedule B, attached hereto and incorporated herein. The Services of the
Vendor may be extended or curtailed by Nextel from time to time.
4. Extent of Services. The Vendor shall devote the appropriate time,
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attention, and energies to the performance of the duties under this Agreement,.
Vendor agrees to perform the Services in a professional and timely manner, ,
using the highest degree of skill, diligence and expertise.
5. Access to Premises. Vendor shall be responsible for Vendor's Personnel
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observing Nextel's rules and regulations relating to Nextel's place of business
(the "Premises") including but not limited to safety regulations and security
requirements and for working in harmony with Nextel's employees, agents,
contractors and Vendors. In the event that Nextel determines that any person
assigned by Vendor is failing to observe such rules and/or work in such manner,
Nextel may request that the person be removed from Nextel's Premises. Upon
receipt of such request, Vendor shall ensure that such person(s) leave the
Premises promptly and, at Nextel's option, Vendor shall immediately furnish a
suitable replacement.
6. Independent Contractor. Vendor will furnish Vendor's services as an
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independent contractor and not as an employee of Nextel or of any company
affiliated with Nextel. Vendor has no power or authority to act for or bind
Nextel or any company affiliated with Nextel in any manner. Vendor shall be
solely responsible for all matters relating to employment of the Personnel
including, without limitation, compliance with all applicable worker's
compensation, unemployment compensation, medical dental, and disability
insurance, social security laws and with all withholding and all other federal,
state and local laws governing such matters. Vendor is not entitled to any
medical coverage, life insurance, participation in Nextel's savings plan, stock
purchase plan or other benefits afforded to Nextel's regular
employees or those of Nextel's affiliated companies. Vendor shall be responsible
for meeting any legal requirements imposed on Vendor as a result of this
Agreement, including but not limited to the filing of income tax returns and the
payment of taxes; and Vendor agrees to indemnify Nextel for the failure to do
so, if Nextel is required to make any such payment otherwise due by Vendor.
II. TERM
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The term of such services shall commence as of December 1, 2000 and shall expire
December 1, 2002, unless terminated earlier as provided herein. The term of
Vendor's services shall hereinafter be referred to as the "Term."
III. COMPENSATION
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1. Service Fees. Nextel shall, during the Term of this Agreement, pay to
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Vendor as basic compensation for the Services (the "Service Fee(s)") the sums
set forth in Schedule C, provided however, in the event that any individual is
terminated pursuant to Paragraph I.2, then no Service Fee shall thereafter be
due, payable and/or accrue on behalf of said individual.
2. Expenses. During the Term, Nextel shall reimburse Vendor for all
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authorized expenses incurred and paid by Vendor in the course of the performance
of the duties hereunder. Notwithstanding anything to the contrary in this
Subparagraph III.2, Vendor shall obtain Nextel's written consent prior to
incurring any single item of expense in excess of [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT] pursuant to Schedule B.
3. Payment Terms. Payments of Service Fees and expense reimbursements
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shall be made within thirty (30) days after Nextel's receipt of Vendor's
invoice. Vendor's invoices shall include an itemized account of services by
program and reimbursable expenses, together with all original receipts relating
to the reimbursable expenses, if any.
4. Use of Funds. Vendor represents and warrants that (a) all payments
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under this Agreement constitute compensation for services performed and (b) this
Agreement, all payments hereunder, and the use of the payments by Vendor, do not
and shall not constitute an offer, payment, promise, or authorization of payment
of any money or gift to an official, political party, or candidate for political
office in any jurisdiction within or outside the United States. These payments
may not be used to influence any act or decision of an official, party, or
candidate in any capacity, or to induce such official, party, or candidate to
use influence with a government to affect or influence any act or decision of
such government to assist Nextel in obtaining, retaining, or directing business
to Nextel or any person or other corporate entity. As used in this Paragraph,
the term "official" means any officer or employee of a government, or any person
acting in an official capacity for or on behalf of any government; the term
"government" includes any department, agency, or instrumentality of a
government.
IV. REPRESENTATIONS
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1. Representation and Agreements of the Vendor. The Vendor represents and
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warrants, knowing that Nextel is relying thereon in entering into this
Agreement, that Vendor is free to enter into this Agreement and to perform the
duties required hereunder, and that there are no employment contracts,
agreements, restrictive covenants or other restrictions preventing Vendor from
entering into this Agreement or performing the duties hereunder.
2. Conflict of Interest. During the Term of this Agreement, Vendor will
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not enter into any activity, employment, or business arrangement that conflicts
with Vendor's obligations under this Agreement. In view of the sensitive nature
of Vendor's status, Nextel shall have the option of terminating this Agreement
at any time if, in Nextel's reasonable judgment, a conflict of interest exists
or is imminent. Vendor will advise Nextel of Vendor's position with respect to
any activity, employment, or business arrangement contemplated by Vendor that
may be relevant to this
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paragraph. For this purpose, Vendor agrees to disclose any such plans to Nextel
prior to implementation. In particular, Vendor agrees to disclose and notify
Nextel in writing when a new client or business is being introduced into the
same facility that is handling the Nextel business. Vendor agrees that they will
not place a wireless competitor within the same facility as Nextel.
V. PROPRIETARY RIGHTS.
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1. Nextel Property. Title to any and all Nextel property furnished or
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provided to Vendor hereunder shall remain in Nextel.
2. Ownership. All work product of Vendor, its agents and employees
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performed pursuant to this Agreement (collectively "Work Product") shall be
deemed "works made for hire" and owned exclusively by Nextel. Any computer
software, process, database or other data or materials developed, designed or
produced by Vendor for Nextel shall be the sole and exclusive property of the
Nextel. Vendor hereby unconditionally and irrevocably transfers and assigns to
Nextel all right, title and interest in and to any and all Work Product,
including, without limitation, all patents, copyrights, trademarks, service
marks and other intellectual property rights. Vendor agrees to execute and
deliver and cause its employees and agents to execute and deliver to Nextel any
transfers, assignments, documents or other instruments which Nextel may deem
necessary or appropriate to vest complete title and ownership of any or all Work
Product, and all rights therein, exclusively in Nextel.
VI. CONFIDENTIAL INFORMATION
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1. Definitions. As used in this Section VI: (i) "Nextel" and any word
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referring to Nextel shall mean Nextel, its parent, subsidiaries and/or
affiliates; (ii) "Representative" shall mean any director, officer, employee,
agent, lender, partner or representative, including without limitation any
accountant, attorney, and financial advisor, is herein referred to as a
"Representative"; (iii) "Information" shall mean the information furnished to
Vendor as contemplated by this Agreement which is confidential, proprietary or
otherwise not generally available to the public, whether furnished by Nextel or
any of its Representatives, together with all technical, proprietary, sales,
financial data and information, whether written or oral, including but not
limited to Nextel's financial papers and statements, site lists, landlord
information, lease and/or contract terms, customer lists, research and
development activities, computer hardware and software, drawings, trade secrets,
operating procedures, marketing strategies, pricing methods, customer relations,
any method and/or procedure relating or pertaining to projects developed by
Nextel or contemplated to be developed, future plans and all written or
electronically stored documentation prepared by Vendor based on or reflecting,
in whole or in part, such information or any discussions between Nextel and
Vendor. Information includes not only written information but also information
transferred orally, visually, electronically or by any other means and copies,
abstracts, summaries, or analyses of such information prepared by Vendor or
others.
2. Nondisclosure. It is contemplated that, in the course of Vendor's
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Services, Nextel shall be supplying and/or disclosing to Vendor Information to
assist Vendor in providing Nextel with consulting services. The Information
will, during the Term of this Agreement and for a period of three (3) years
subsequent to the termination or expiration of the Agreement, be kept
confidential by Vendor, not be used by Vendor in any way detrimental to Nextel
and not used other than in connection with the provision of consulting services
hereunder. Vendor will be responsible for any improper use of the Information by
it (including, without limitation, the Personnel) or any of its employees or
Representatives. Without the prior written consent of Nextel, Vendor will not
disclose to any entity or person, the Information, that the Information has been
made available to it, or any other facts with respect to any conversations
and/or discussions between Vendor and Nextel. Vendor agrees to keep all
Information secret and confidential and agrees not to disclose it to anyone
except to the limited group of employees or Representatives who are actually
engaged in providing Teleservices to Nextel.
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3. Exclusions. The Information required to be kept confidential by Vendor
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shall not include any Information which becomes published or is in the public
domain by other than an unauthorized disclosure by Vendor or its employees,
representatives or agents or other than an unauthorized disclosure by a third
party.
4. Return. Upon the earlier of any termination of this Agreement or upon
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notice from Nextel, Vendor will return to Nextel the Information which is in
tangible form, including any copies which Vendor may have made, and Vendor will
deliver to Nextel (or, where such delivery is not possible, destroy (but provide
Nextel with an itemized list thereof)) all abstracts, summaries thereof or
references thereto in its documents, including any Information prepared by
Vendor, and certify to Nextel that Vendor has done so, and neither Vendor nor
its employees, agents or representatives will use any of the Information with
respect to, or in furtherance of, its business, any of their respective
businesses, or in the business of anyone else, whether or not in competition
with Nextel, or for any other purpose whatsoever. Any Information not so
returned and/or delivered will remain subject to this provision. Further, upon
the expiration or termination of this Agreement, upon the termination of the
assignment of any Personnel or other individual to Nextel for any reason
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whatsoever, and/or upon any Personnel or other individual leaving the employ of
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Vendor for any reason whatsoever, the Vendor (including without limitation, any
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Personnel) shall not take any Information, drawing, blueprint, and/or other
reproductions, and/or any data, reports, programs, listings, programming
documentation, and/or any other written, graphic or recorded information
relating or pertaining to Nextel (including, without limitation, any Vendor work
product).
5. Telemarketing/Telesales Manuals. Vendor shall not allow any party to
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remove the Telemarketing or Telesales Manuals from the Vendor's facility without
prior written approval from Nextel.
6. Remedy for Breach. As a violation by the Vendor of the provisions of
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this Section could cause irreparable injury to Nextel and there may be no
adequate remedy at law for such violation, Nextel shall have the right, in
addition to any other remedies available to it at law or in equity, to enjoin
the Vendor in a court of equity for violating such provisions.
VII. ACKNOWLEDGMENT
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(a) The Vendor hereby acknowledges that (i) the Vendor is fully familiar with
restrictions, restraints and limitations imposed upon Vendor in in Sections IV,
V, and VI of this Agreement (collectively the "Restraints"); (ii) Nextel would
not continue to employ the Vendor without the imposition of the Restraints;
(iii) the imposition upon the Vendor of the restraints is necessary for the
reasonable and adequate protection of the business of Nextel; and (iv) each and
every Restraint is reasonable with respect to its subject matter, geographic
area, and length of time. (In the event that any of the Restraints are deemed to
be unreasonable or unenforceable by any court of competent jurisdiction, then
the Vendor agrees to submit to such reduction of said Restraints as the court
shall deem necessary to render the Restraints reasonable and enforceable.)
(b) In the event that the Vendor shall be in violation of any Restraints, then
the time limitation therefore shall be extended for a period of time equal to
the period of time during which such breach or breaches occurred. In the event
Nextel shall be required to seek relief in any court or other tribunal, then the
restraints shall be extended for a period of time equal to the pendency of such
proceedings, including appeals, and excluding any periods during which the court
or other tribunal has ordered the Vendor to honor the Restraints and the Vendor
has complied with such order.
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VIII. TERMINATION
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1. Termination With Cause. This Agreement shall terminate earlier than
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the Term immediately upon the mutual agreement of the Vendor and Nextel. In
addition, this Agreement may be terminated upon thirty (30) days written notice
from Nextel to the Vendor after the occurrence of any of the following events:
(a) the breach by the Vendor of any term or condition of this Agreement; (b) the
misconduct or neglect on the part of the Vendor in the performance of any
material duties that may be reasonably required; (d) the occurrence of
circumstances that make it impossible for the wireless communications business
of Nextel to be continued (f) the commission by the Vendor of an act of fraud,
misappropriation, embezzlement, dishonesty or any crime of moral turpitude; or.
With respect to any of the events described in (a), (b) above, the Vendor shall
be given a period of Thirty (30 ) days after the notice of termination to cure
the events resulting in the termination to the satisfaction of Nextel. Nextel's
obligation to compensate the Vendor shall ▇▇▇▇▇ during the cure period set forth
above and shall cease upon the termination of this Agreement due to the
occurrence of any of the above-mentioned events or upon the expiration of the
Term of this Agreement, and Nextel's only obligation to the Vendor shall be for
the payment of any unpaid compensation accrued and any permitted expenses under
paragraph II.2 that are accrued and unpaid as of the date of such termination or
expiration.
2. Termination Without Cause. Notwithstanding any provision contained in
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this Agreement to the contrary, Nextel may terminate this Agreement at any time
upon Sixty (60) days' prior written notice to the Vendor. Nextel does not agree
to any minimum level of Services in the form of production hours or programs.
Nextel shall pay all outstanding invoices and balances upon termination.
3. Effect of Termination. In the event that this Agreement expires or is
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terminated for any reason whatsoever, it is expressly agreed by the parties
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hereto that (i) all rights, duties and obligations shall terminate, except that
the restrictions and provisions imposed on the Vendor as set forth in Sections
IV, V, VI, VII hereof shall remain in effect, and (ii) no severance allowance
shall be payable by Nextel to the Vendor.
IX. INSURANCE
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Vendor shall provide and maintain at its own expense the following insurance
against liability arising in any way out of this Agreement and any other
insurance coverages which may be deemed necessary by Nextel: (i) General Public
Liability insurance with a combined single limit of [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT]; (ii) Workers' Compensation and Employers Liability
insurance sufficient and proper under the laws of the state wherein the Services
are to be performed to protect Nextel against claims under the compensation laws
of said state; (iii) Automobile Public Liability insurance covering all vehicles
used in connection with the Agreement with a combined limit of [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT]; (iv) fire, theft, and extended coverage
with respect to the Nextel equipment in Vendor's possession in an amount no less
than the replacement value of such equipment. All insurance policies shall be in
companies satisfactory to Nextel, name Nextel as an additional named insured,
and contain a waiver of subrogation clause whereby the insurer waives all rights
of subrogation it may have under such policies as related to Nextel. Each
insurance policy will contain a clause requiring the insurer to give Nextel at
least thirty (30) days prior written notice of any alteration in the terms of
such policy or the cancellation thereof. Vendor will promptly provide Nextel
with written notice thereof and make available to Nextel all information and
documentation relating thereto.
X. MUTUAL INDEMNIFICATION
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Each party shall indemnify, defend and hold the other, its representatives,
agents and assignees harmless against any liability for any claims arising out
of its performance or non-performance or its employees or agents of its or their
duties or the exercise of its or their rights pursuant to this Agreement or any
other act or omission that results in any Claim against the other, its
affiliates, employees or agents. For purposes of this indemnification, "Claims"
means and includes all obligations, such as taxes in connection with business
conducted by Vendor, actual and consequential damages, and out-of-pocket costs
reasonably incurred in the defense of any claim, such as accountants',
attorneys' and expert witness
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fees, costs of investigation and proof of facts, court costs, other litigation
expenses, travel and living expenses. Each party shall have the right to defend
any such claim against it.
XI. MISCELLANEOUS
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(a) Interpretation and Construction. The captions contained herein are for the
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convenience of the parties hereto and shall not be construed to amend or modify
any of the provisions hereof. The language in all parts of this Agreement shall
in all cases be construed in accordance to its fair meaning as if prepared by
all parties to the Agreement and not strictly for or against any of the parties.
(b) Entire Agreement. This Agreement constitutes the entire agreement and
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understanding between the parties hereto. No waiver, amendment or modification
of any provision of this Agreement shall be valid unless in writing and signed
by the parties hereto.
(c) Waiver. The failure of a party to object to, or to take affirmative action
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with respect to, any conduct of the other which is in violation of the terms of
this Agreement shall not be construed as a waiver of the violation or breach or
of any future violation, breach, or wrongful conduct. Any waiver, in whole or in
part, of any provision hereof shall not be construed as a waiver of any other
provision hereof, or as a future waiver of any subsequent breach by the Vendor.
(d) Assignment. This Agreement shall not be assignable by either party without
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the prior written consent of the other; which consent shall not be reasonably
withheld or delayed; provided, however, that this Agreement is assignable by
Nextel without prior written consent of the Vendor if such assignment is to any
entity which may acquire all or substantially all of Nextel's assets and
business, any entity with or into which Nextel may be consolidated or merged, or
any entity that is the successor entity to Nextel in a share exchange.
(e) Non-Liability. Vendor agrees that neither Nextel nor any of its
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representatives will have any liability to Vendor resulting from the use of the
Information by Vendor.
(f) Legal Representation. Each of the parties expressly acknowledges and agrees
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that it has consulted with and utilized separate counsel in connection with this
Agreement.
(g) Notices. All notices and other communications provided for or permitted
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hereunder shall be in writing and shall be made by hand delivery, first class
mail, postage prepaid, return receipt requested, or telex, telecopier, or
reliable overnight courier addressed as follows:
If to Vendor to: If to Nextel to:
RMH Teleservices, Inc. Nextel Communications of the Mid-Atlantic, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
EVP - Sales and Marketing Director of Telemarketing
With a copy to: With a copy to:
Wolf Block Nextel Communications, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Senior Corporate Counsel - Commercial
All such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; three (3) business days after
deposit in any United States Post Office in the Continental United States,
postage prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied, or the next business day if by overnight courier.
(h) Governing Law. This Vendor Agreement will be governed by and construed in
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accordance with the laws of the State of Virginia, without giving affect to the
principles of conflict of laws thereof.
(i) Attorney's Fees. In the event that a dispute arises with respect to this
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Agreement, the party prevailing in such dispute shall be entitled to recover all
expenses, including, without limitation, reasonable attorneys' fees and
expenses, incurred in ascertaining such party's rights under this Agreement,
whether or not it was necessary for such party to institute suit.
(j) Number and Gender. Whenever the singular number is used in this Agreement
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and when required by the context, the same shall include the plural. The
masculine gender shall include the feminine and neuter genders, and the word
"person" shall include a corporation, firm, partnership, or other form of
association.
(k) Unenforceable Terms. If any provision of this Agreement is illegal or
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unenforceable, its invalidity shall not affect the other provision of this
Agreement that can be given effect without the invalid provision. If any
provision of this Agreement does not comply with any law, ordinance or
regulation, such provision to the extent possible shall be interpreted in such a
manner to comply with such law, ordinance or regulation, such provision to the
extent possible shall be interpreted in such a manner to comply with such law,
ordinance or regulation, or if such interpretation is not possible, it shall be
deemed to satisfy the minimum requirements thereof.
(l) Binding Effect. This Agreement shall bind and inure to the benefit of the
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parties hereto and their respective heirs, legal representatives, successors and
permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
VENDOR:
RMH Teleservices, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: EVP - Sales and Marketing
Date: 2-2-01
NEXTEL:
NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC,
INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director Telemarketing
Date: 2-10-01
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SCHEDULE A
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PERSONNEL
I. MINIMUM REQUIREMENTS:
Vendor shall supply personnel to provide Services determined in Schedule B.
These personnel shall include but not be limited to:
A. 1 Dedicated Account Manager for each program
B. 1 Dedicated Quality Manager
C. 1 Dedicated on Site Program Manager for each program that Vendor
provides Services. Separate programs shall be defined by Nextel.
D. 1 Dedicated IT Project Manager
E. 1 Dedicated on Site Trainer with a team of trainers in a ratio of
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] TSRs to Trainer
F. Dedicated Monitoring Agents [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] TSR to Monitoring Agent Ratio
G. [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] Supervisor to
Telemarketing Sales Representative (TSR) Ratio
H. Recruiting and HR Personnel as deemed reasonably necessary by Nextel
I. An adequate number of TSR's to meet forecasted service levels and meet
Nextel's satisfaction to support high market activity, new product
introduction and promotion followed by interim periods of no
advertising.
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SCHEDULE B
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SERVICES
I. INBOUND TELEMARKETING AND TELESALES
A. Description:
1) Vendor shall perform Inbound Telemarketing Services for the purpose of
selling and/or servicing Nextel's products and services through
Vendor's Telemarketing Sales Representatives (TSRs), supervisors and
Account Managers. Vendor shall provide the internal organizational
structure and all hardware necessary to handle inbound calls for
Nextel Programs. Vendor shall answer inbound calls meeting service
levels defined below using and maintaining a graphical interface to an
ACD with ANI and DNIS capability, screens scripts, disposition coding,
lead preparation and all other operational systems required.
2) Vendor shall review and comply with the Telephone Consumer Protection
Act/Direct Marketing Association ("TCPA/DMA") compliance standards,
which are incorporated herein by this reference. Vendor shall review
and comply with all local, state and national "Do Not Call"
legislation as required by law.
3) Vendor shall not reproduce any Nextel Client list for purposes of
distribution to outside parties.
4) Except required by law, Vendor shall maintain the policy that its
TSR's, supervisors, Account Managers and other personnel shall keep
confidential what they hear when handling communications with Clients.
Nextel's Clients must be secure in the knowledge that the content of
communications and records thereof will be kept confidential and
private. Nextel's policy of confidentiality extends to the identity of
the parties to the communication and even to the fact that the
communication took place.
5) Both Vendor and Client agrees to be familiar with, understand the
requirements of, and will always comply with all laws and government
regulations governing telemarketing practices in all states within
which Vendor performs Services for Nextel, including, but not limited
to, the telemarketing-marketing and Consumer Fraud and Abuse
Prevention Act. Vendor shall indemnify Nextel for any violations by
Vendor of applicable laws or regulations. Vendor shall have the right
to defend or compromise any claim based upon a violation by it of any
such law or regulation. Nextel agrees to provide reasonable
cooperation with regard to the defense of any such claim.
B. Location:
The Vendor shall perform the services described hereunder at the following
location and only by Customer's prior written approval shall Contractor
change locations:
RMH Teleservices Sarnia Call Center
Modeland Center
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
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C. Charges:
1) The Service Charges are set forth in Schedule C. Nextel shall only be
obligated to reimburse or pay Vendor for the charges incurred during
the performance of Services set forth in this Schedule B and I.3. The
invoicing and payment terms of the Agreement shall apply for the
Services rendered. All charges must include any associated taxes.
Vendor shall invoice Nextel on a monthly basis using separate invoices
for each program.
2) Subject to provisions of the Agreement, Nextel shall reimburse Vendor
for reasonable expenses directly related to the Vendors performance of
Services covered by this Schedule. Such reimbursement shall occur only
if Vendor sends Nextel printed itemized bills having sufficient detail
to justify the amount billed. Vendor shall ▇▇▇▇ Nextel for such
expenses "at cost" at the end of each month during which the expense
was incurred.
3) Vendor understands that Nextel is not obligated nor expected to offer
special incentives or promotions to encourage Vendor's TSRs to perform
Services. However, when or if these incentives are offered and
provided, Nextel will specify use and contest guidelines. Vendor will
provide a summarization illustrating statistics regarding winners and
qualifying criteria and an analysis of any impact on the performance
or designated objective.
4) Unless otherwise stated in writing, Nextel's maximum potential Service
fee obligation shall be composed of rates and charges described in
Schedule C.
5) Nextel shall receive credits to Service Fees due to penalties as
determined in Schedule C when Vendor has met all Service Level
Requirements for all programs as determined in Schedule B, I. D. 10.
D. Performance of Services:
1) Staffed Hours of Operation for Inbound Telemarketing Call Center
a) Nextel Direct--24 hours/day, 7 days/week
2) Telecommunications Infrastructure and Call Blocking: Vendor shall not
perform any "call blocking" to offer busy signals to inbound Nextel
calls. If "call blocking" is performed either through capacity on the
T-1s or manual switching, penalties outlined in Schedule C will be
exercised. Vendor shall provide infrastructure with the ability to
maintain operational trunk capacity without returning a busy signal.
Vendor shall be responsible for setting up and maintaining the
Telecommunications Infrastructure from the Local POP to the Call
Center to include all Local Loop expenses.
3) Forecasting: Nextel will provide general inbound call forecasting on
the 5th day of every month for the next three calendar months. Vendor
shall determine daily, weekly and monthly schedule using an approved
work performance software package. Vendor shall determine appropriate
staffing model and submit to Nextel on the 15/th/ day of every month
for the next three calendar months. This model will show projected
attrition, forecasted TSR requirements and scheduled training classes.
4) Monitoring: Vendor shall monitor TSRs three times per week, rate the
TSR using a scoring system agreed upon by Nextel and provide results
to Nextel on a weekly basis. Representatives
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whose monitor scores fall below standard are to be monitored 3
additional times within that week and are subject to possible campaign
removal. Supervisors are expected to monitor reps continuously
throughout operations a minimum of twice per shift.
Vendor shall provide remote monitoring ports for all inbound programs
that are available to Nextel 24 hours/day, 7 days/week.
5) Reporting: Vendor shall provide daily reports, designed and agreed
upon by Nextel, by 2:00pm EST the following business day. Weekly
reports shall be due on Monday for the previous business week by
4:00pm EST. These reports shall include, but not be limited to:
(a) Daily half hour switch reports,
(b) Daily call statistics,
(c) Daily data entry stats and updates
(d) Daily sales reports,
(e) Daily "Special Billing Issues" report that identifies customer
billing issues,
(f) Weekly switch reports showing availability, utilization and wrap
time by rep,
(g) Weekly Conversion rates by rep including rep hours and start date
on campaign,
(h) Weekly Return and exchange reporting,
(i) Weekly QA/Monitor reports,
(j) Weekly Welcome Call reports,
(k) Weekly Qualitative Feedback,
(l) Training Test Scores for each subject and class,
(m) Monthly Market Sales reports for each sales program,
(n) Ad hoc reports as needed.
6) Telco/Switch Programming: Vendor shall provide and maintain DNIS
programming, welcome messages and hold messages on the switch. DNIS
programming requests must be fulfilled by the next business day. There
must always be a certified switch technician available during regular
business hours (9:00am to 5:00pm EST) and on-call after hours. This
certified technician must be able to change welcome and hold messages
and program DNIS. The power supply for the switch must be backed up by
a Universal Power Supply (UPS).
7) Internet Access: Vendor shall access the Internet through a Tier 1 ISP
with a minimum connection of a full T1, scaling with growth as
appropriate (approximately 1.5MB/sec. per 200 users). Vendor shall
supply all TSRs with Internet access to ▇▇▇▇▇▇.▇▇▇ and T-1 access to
Nextel's Customer Database (NEWT). Personnel assigned to data entry
and manager's approval will have access to Nextel's fulfillment
website as determined by Nextel.
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8) Sales Verification: All calls must be recorded on digital media. Calls
shall be stored and saved for a 30 day period. All sales must be
identified and saved for a 2 year period. Digital recordings shall
record all sales for the entire length of the call. Digital recordings
should be able to be retrieved and sent to Nextel via e-mail as a wave
file within 24 hours of request.
9) Service Level Goals:
(a) [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] of all calls
should be answered in [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] seconds or less
(b) Less than [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] abandonment
10) Service Level Requirements:
After the initial call start date on or around February 5, 2001, Vendor
will have a sixty (60) day grace period before any penalties will apply.
Vendor also agrees to use commercially reasonable efforts to achieve the
stated SLA's.
(a) All orders should be entered and verified for accuracy ("Manager
Approved") into Nextel's activation system within 4hours of time
of sale. If this requirement is not met, a financial penalty will
be applied (see Schedule C).
(b) Quality for Data Entry into the website after the Manager
Approval process must be [REDACTED DUE TO REQUEST FOR
CONFIDENTIAL TREATMENT]. All entries must be formatted per Nextel
standards and include all relevant Nextel required fields. If
this requirement is not met, a financial penalty will be applied
(see Schedule C).
(c) All return and exchange orders shall be sent to Nextel's
Activation Center and/or fulfillment vendor within 24 hours of
receipt of customer call. If this requirement is not met, a
financial penalty will be applied (see Schedule C).
(d) Quality for data entry into the return and exchange logs must be
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]. All entries
must be formatted per Nextel standards and include all relevant
Nextel required fields. If this requirement is not met, a
financial penalty will be applied (see Schedule C).
(e) If a Nextel prospect or customer needs to be escalated to the
field via the "Manager's Desk", Vendor will begin escalation
process within 3 business hours of initial call. If this
requirement is not met, a financial penalty will be applied (see
Schedule C).
E. IT Requirements:
All IT work performed by Vendor for Nextel will be treated as "work for
hire". Nextel will own all software and said software coding designed by
Vendor for Nextel including, but not limited to: the GUI TSR interface, any
data entry program built for Nextel, any database schema, any backend
process software designed for Nextel. Nextel personnel will have access to
the code at any time.
1) Vendor shall send inbound lead files twice daily to destinations
determined by Nextel by 6:00am EST and 8:00pm EST. If there is a delay
in sending this inbound lead file, Vendor will notify entire
distribution of problem and estimated time for resolution.
II. OUTBOUND TELEMARKETING AND TELESALES
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Vendor and Client agree that future programs for Outbound Telemarketing and
Telesales will be addressed under separate addenda to this Agreement.
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SCHEDULE C
----------
SERVICE FEE
I. NEXTEL DIRECT PROGRAM
After the initial call start date on or around February 5, 2001, Vendor will
have a sixty (60) day grace period before any penalties will apply. Vendor also
agrees to use commercially reasonable efforts to achieve the stated SLA's.
A. Nextel Direct per Minute Talk Time Pricing. Talk time must be confirmed
with switch data to show actual TSR talk time, rather than switch log-in
time.
1) Up to [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] production
hours per month, per minute talk time price of [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT]
2) From [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] production
hours per month, per minute talk time price of [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT].
3) From [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] production
hours per month, per minute talk time price of [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT].
B. Nextel Direct Bonus Structure: A bonus shall be due to Vendor as part of
the Service Fee if Vendor meets all required Service Level Requirements for
each program as determined in Schedule B, Section I. D. 10.
1) Order conversion is determined by Total Orders (Unit Orders, NOL
Upgrades and Rate Plan Changes)/Convertible Calls. Convertible calls
is defined as "Orders" plus "Info Request/Shoppers" + "Escalations".
2) Should Vendor provide Services within Service level goals as
determined in Schedule B and Order Conversion is higher than [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT], a bonus of [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT]/talk time minute shall be due
as a Service fee.
3) Should Vendor provide Services within Service level goals as
determined in Schedule B and Order Conversion is higher than [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT], a bonus of [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT]/talk time minute shall be due
as a Service fee.
4) Should Vendor provide Services within Service level goals as
determined in Schedule B and Order Conversion is higher than [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT], a bonus of [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT]/talk time minute shall be due
as a Service fee.
5) Should Vendor provide Services within Service level goals as
determined in Schedule B and Order Conversion is higher than [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT], a bonus of [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT]/talk time minute shall be due
as a Service fee.
6) Should Vendor provide Services within Service level goals as
determined in Schedule B and Order Conversion is higher than [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT], a bonus of [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT]/talk time minute shall be due
as a Service fee.
7) Should Vendor provide Services within Service level goals as
determined in Schedule B and Order Conversion is higher than [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] +, a bonus of [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT]/talk time minute shall be due
as a Service fee.
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II. SERVICE LEVEL REQUIREMENTS PENALTIES
After the initial call start date on or around February 5, 2001, Vendor will
have a sixty (60) day grace period before any penalties will apply. Vendor also
agrees to use commercially reasonable efforts to achieve the stated SLA's.
All Penalties shall be incurred on the monthly invoice for the program
affected.
A. All orders should be entered and verified for accuracy ("Manager Approved")
into Nextel's activation system within 2 hours of time of sale. If Nextel's
activation system has been operational and this requirement has not been
met, a penalty of [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per
order will be applied to the month end invoice in the form of a credit to
the program that was affected.
B. Quality for Data Entry into the website after the Manager Approval process
must be [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]. All entries
must be formatted per Nextel standards and include all relevant Nextel
required fields. If this Service Level Requirement is not met, then a
penalty of [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per order
for every order over the [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] requirement will be applied to the month end invoice in the form
of a credit to the program that was affected.
C. All return and exchange orders shall be sent to Nextel's Activation Center
and/or fulfillment vendor within 24 hours of receipt of customer call. If
Return/Exchange file is not transmitted in required time, then a penalty of
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] for every hour over
the 24-hour requirement will be applied to the month end invoice in the
form of a credit proportionately to the program that was affected.
D. Quality for data entry into the return and exchange logs must be [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]. All entries must be formatted
per Nextel standards and include all relevant Nextel required fields. If
this Service Level Requirement is not met, then a penalty of [REDACTED DUE
TO REQUEST FOR CONFIDENTIAL TREATMENT] per order for every order over the
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] requirement will be
applied to the month end invoice in the form of a credit to the program
that was affected.
E. If a Nextel prospect or customer needs to be escalated to the field via the
"Manager's Desk", Vendor will begin escalation process within 3 business
hours of initial call. If this requirement is not met then a penalty of
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per lead for lead not
meeting the Service Level Requirement will be applied to the month end
invoice in the form of a credit to the program that was affected.
F. Quality for Pricing Quotes: Vendor shall incur the costs of any credit
issued to a Nextel Client due to validated TSR misquote when such an error
exceeds [REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] in customer
credit and is the second or greater error within a thirty (30) day period
by the same TSR.
I. CALL BLOCKING PENALTIES
After the initial call start date on or around February 5, 2001, Vendor will
have a sixty (60) day grace period before any penalties will apply. Vendor also
agrees to use commercially reasonable efforts to achieve the stated SLA's.
All Penalties shall be incurred on the monthly invoice for the program
affected.
Nextel Clients should not receive busy signals when attempting to reach a
toll free number hosted by the Vendor. The Vendor should be monitoring use
of trunks coming into the Call Center to prevent any Client from
experiencing a busy signal. If it is identified that incoming calls are
receiving busy signals due to lack of capacity on the Local Loop, Vendor
will incur a penalty of [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] for every 1 hour time block that receives a busy signal as
determined by the telecommunications provider. If it
16
is identified that incoming calls are receiving busy signals due to "Call
Blocking" at the switch, Vendor will incur a penalty of [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] for every 1 hour time block that
incurred a blocked call.
For example, if Nextel Clients receive busy signals from 12:00 to 3:00 (a
three hour time period), regardless of the number of busies received,
Vendor will be penalized for three hours of blocking.
III. IT REQUIREMENTS PENALTIES
After the initial call start date on or around February 5, 2001, Vendor will
have a sixty (60) day grace period before any penalties will apply. Vendor also
agrees to use commercially reasonable efforts to achieve the stated SLA's.
All Penalties shall be incurred on the monthly invoice for the program
affected.
A. Call Dispositioning: All Calls Handled must be dispositioned appropriately
using the Nextel Call Dispositioning system. If less than [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT] of calls handled for a particular
programmed are not dispositioned, the percentage of missing dispositions
will be deducted from the invoice for that program. For example, if
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] of the calls handled
by Nextel Direct are not dispositioned and reported, the Nextel Direct
invoice will be reduced by [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT]. Each program will be reviewed for percentage of calls
dispositioned.
B. DNIS Programming: All DNIS programming requests must be completed within 24
hours (Monday through Friday). For each hour past 24 hours past the time of
the request, Vendor will incur a [REDACTED DUE TO REQUEST FOR CONFIDENTIAL
TREATMENT] penalty.
IV. DATA ENTRY
All data entry production hours shall be documented and billed at [REDACTED
DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]/hour.
V. TRAINING
All training of TSRs shall be documented and billed at [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT]/hour and be accompanied by test scores.
Nextel will not be responsible for attrition training. For example, Nextel
will pay for training 10 reps--if 2 reps quit and need to be replaced by 2
additional reps, Nextel will not pay for this training. Nextel will pay for
additional required headcount training.
VI. PROGRAMMING
Switch programming, application development, network configuration and
Vendor shall ▇▇▇▇ maintenance programming at a rate of [REDACTED DUE TO
REQUEST FOR CONFIDENTIAL TREATMENT]/hour.
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