Exhibit 10.64
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[***]," have been
separately filed with the Securities and Exchange Commission.
CALLTECH
MASTER AGREEMENT FOR
OUTSOURCING CONTACT CENTER SUPPORT
ARTICLE 1
PARTIES TO THE AGREEMENT
Section 1.1 Parties to the Agreement
THIS AGREEMENT, for contact center support outsourcing services,
effective as of August 5, 2004 ("Effective Date") is between Bluefly, Inc., a
corporation with offices located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
("BLUEFLY") and CallTech Communications, LLC ("CALLTECH"), with offices located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
Section 1.2 Priority
This Agreement shall mean this agreement together with any Statement of
Work executed pursuant to this Agreement. In the event of a conflict between
this Agreement and a Statement of Work, the Statement of Work shall prevail.
ARTICLE 2
SERVICES, HOURS OF OPERATION AND FACILITY
Section 2.1 Description of Services and Hours of Operation
CallTech will provide BLUEFLY services as detailed in the attached
Statement(s) of Work (the "Services"). From time to time during the Agreement,
BLUEFLY may request and CALLTECH may agree to provide Additional Services. Any
such Additional Services will be performed in accordance with the terms of this
Agreement and will be outlined in a Statement of Work, which will be attached
hereto and incorporated herein. Both BLUEFLY and CALLTECH must agree to and sign
the Statement of Work before any obligations are incurred by either party as to
the requested Additional Services. BLUEFLY will be entitled to make reasonable
changes to the Service Levels set forth in the Statement of Work, provided that
such changes shall not take effect for a reasonable period of time (not to
exceed 90 days) determined by CALLTECH to be necessary to implement such
changes.
Section 2.2 Facility
CALLTECH will utilize the CALLTECH Support facility located in Dublin,
Ohio ("Facility") for delivery of Services. The Facility will be equipped with
telephone systems, computer systems, and various CALLTECH support tools to be
used in the delivery of Services. CALLTECH shall bear all expenses of operating
the Facility, including all expenses for equipment and systems necessary to
connect to any telecommunications circuits or facilities utilized by BLUEFLY to
bring BLUEFLY traffic to the Facility.
ARTICLE 3
SERVICE LEVELS
Section 3.1 Definitions
Actual Handling Time: Shall mean (i) in the case of an Inbound Call
handled by a Customer Service Representative ("CSR"), the time that is
measured from when the call is physically connected to the CSR until
the call is physically terminated, plus any Wrap Time; (ii) in the case
of an Outbound Call, the time that is measured from when the call is
initiated until the call is physically terminated, plus any Wrap Time;
(iii) in the case of an E-Mail Contact or Written Contact, the time
spent actually preparing the Contact, plus any Wrap Time. The Actual
Handling Time will be measured to the second with no rounding up to an
incremental amount.
Additional Services: Shall mean any Services not yet included in a
Statement of Work at the time of the execution of this Agreement.
Additional Services shall be subject to pricing specific to those
services as outlined in the new Statement(s) of Work.
Agent: An employee of CALLTECH trained to provide Services for BLUEFLY
Statement(s) of Work.
Automated Call: Shall mean an Inbound Call that is delivered to a
CALLTECH electronic voice message or Interactive Voice Response Unit
(IVR) for the means of providing Services as described in the attached
Statement(s) of Work.
Contact: Shall mean a support incident, defined as a single in-coming
or outbound support request, via telephonic voice (a "Voice Contact"),
fax or written (a "Written Contact") or electronic correspondence (an
"E-mail Contact" or "Chat Contact") regarding any product or service.
Launch: Shall mean the first day Services are provided under each SOW.
Also referred to as Launch Date and Launch Day.
Payroll Hour: Shall include all logged time, excluding Lunch.
Statement of Work: Shall mean an article or attachment to this
Agreement specifying the requirements of both parties in the provision
of Services.
Wrap Time: Shall mean the time following the actual customer call
during which the CSR completes any required call completion
information.
Section 3.2 Escalation Procedure
BLUEFLY recognizes that there may be instances where CALLTECH will not
be able to resolve the BLUEFLY Contact without BLUEFLY's assistance. Both
parties will mutually agree to an escalation procedure for resolving support
problems that require BLUEFLY technical personnel and/or any third party vendor
of BLUEFLY. BLUEFLY agrees to provide necessary and timely resources to CALLTECH
for resolving escalated problems in a timely manner and to communicate the
resolutions to CALLTECH in a timely manner.
-2-
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[***]," have been
separately filed with the Securities and Exchange Commission.
ARTICLE 4
CALL VOLUME FORECASTING AND STAFFING
Section 4.1 Forecasting Requirements
BLUEFLY will provide monthly and daily Contact forecasting information
to assist CALLTECH in its workforce and resource planning efforts. Such forecast
shall be provided by BLUEFLY to CALLTECH no later than the fifth day of each
month with data elements pertaining to the next calendar month; the forecast
shall include all available media schedules that are known to drive Contact
volume. The forecast shall detail Contact volumes for each Contact type and for
each Statement of Work. The forecast shall be a "rolling" forecast of
anticipated Contact volume by day for the following three (3) months, based on
business judgment and reasonable expectations. For the period from the Launch
Day to the end of the calendar month in which the three-month anniversary of the
Launch Day occurs (the "First Three Months"), staffing levels will be based upon
estimated Contact volumes mutually agreed upon by BLUEFLY and CALLTECH.
Section 4.2 Staffing Levels
Services priced on an hourly basis will have a minimum staffing level
of [***] Agents per Hour of Operation. Staffing levels will be determined by
CALLTECH, using industry standard staffing methodologies. Staffing levels will
be based upon the number of Agents required to meet Service Levels based on the
Contact volumes provided in the monthly forecasting information delivered by
BLUEFLY (or, during the First Three Months, the forecasting information agreed
to by BLUEFLY and CALLTECH) in accordance with Section 4.1. Staffing levels will
be detailed in a monthly staffing plan, showing the recommended number of Agents
to be staffed each hour of each day for the month. The monthly staffing plan
will be provided to BLUEFLY by CALLTECH no more than five (5) days after receipt
of the monthly forecast. BLUEFLY shall reserve the right to adjust the staffing
levels in the monthly staffing plan providing that adjustments that are not
communicated to CALLTECH within five (5) days of receipt of the monthly staffing
plan shall only be implemented to the extent that CALLTECH can do so without
incurring additional expenses as a result of unplanned increases or decreases in
staffing levels.. Should BLUEFLY request CALLTECH reduce the labor hours
recommended for the program for a month, CALLTECH will not be held accountable
to Service Level commitments that relate to speed of answer or abandonment for
the month after making the recommended staffing change.
Staffing levels for Services priced on a per-minute basis will be
determined by CALLTECH, using industry standard staffing methodologies. Staffing
levels will be based upon the number of Agents required to meet Service Levels
based on the Contact volumes provided in the monthly forecasting information
delivered by BLUEFLY (or, during the First Three Months, the forecasting
information agreed to by BLUEFLY and CALLTECH) in accordance with Section 4.1.
In the event that CALLTECH reasonably believes, based upon the Contact volume
during the course of a month, that the total Actual Handling Time logged by its
Agents during the month will be less than [***]% of the Actual Handling Time
forecast by the latest monthly forecast delivered pursuant to Section 4.1 (the
"Forecasted Actual Handling Time"), it will inform BLUEFLY of such shortfall and
BLUEFLY will provide CALLTECH with work that will allow its Agents to log Actual
Handling Time equal to at least [***]% of the Forecasted Actual Handling Time.
Forecasted Actual Handling Time will be calculated based on the average Actual
Handling Time for Contacts handled for that particular month.
ARTICLE 5
TOOLS, TELECOMMUNICATIONS AND TRAINING
Section 5.1 Tools
BLUEFLY agrees to provide CALLTECH with sufficient copies of Products
and related materials, including, but not limited to, scripts, copies of
software, documentation, licenses and Product information as
-3-
reasonably necessary to provide Services for the Products. These BLUEFLY tools
are listed in the Statement(s) of Work. CALLTECH acknowledges that its use of
such tools may be subject to the terms of license agreements required by BLUEFLY
or its third party suppliers, and CALLTECH agrees to abide by all the terms and
conditions of such licenses in connection with its use of such tools. Bluefly's
third party licensors (including, without limitation, Blue Martini and eShare)
shall be considered third party beneficiaries of CALLTECH's obligations to abide
by such licenses. BLUEFLY shall only be obligated to supply one copy of any
documentation or other such written materials relating to any such tools, and
CALLTECH may make such number of copies (and only such number of copies) of such
materials as are necessary for it to provide Services hereunder.
Section 5.2 Telecommunications
BLUEFLY assumes all expenses related to the sending of Contacts to
CALLTECH, including the costs for the provision of telecommunication lines and
the bearing of network costs associated with (i) routing Inbound Calls to the
Facility, and (ii) transporting outbound calls conducted in fulfillment of the
Services detailed in the Statement(s) of Work. CALLTECH is responsible for
properly equipping the Facility with the necessary hardware to receive and
handle Contacts. CALLTECH will implement the necessary processes and safeguards
to insure that the telecommunication lines provisioned for BLUEFLY's use are
used solely for the business purposes stated in the Statement(s) of Work and are
protected against unlawful use by outside entities. CALLTECH will implement the
necessary security measures to isolate any BLUEFLY information and applications
from the remainder of the CALLTECH environment.
Section 5.2.1 Data Connectivity
BLUEFLY assumes all expenses related to the transmission of data
between CALLTECH and BLUEFLY, including provision of required hardware (if any),
point-to-point circuitry, and the bearing of network costs associated with the
volume of Data Traffic. CALLTECH will provide its Agents with access to the
Internet.
Section 5.3 Training
BLUEFLY will provide one copy of necessary training materials to
CALLTECH on all versions and aspects of Products that are unique or specific to
BLUEFLY's services at no charge to CALLTECH. CALLTECH trainers at CALLTECH's
Facility will provide training for CALLTECH Agents, unless agreed upon
otherwise. Training will be delivered based on a schedule that is mutually
agreeable. One copy of any required software, technical notes and technical
documentation for all aspects of the Products which are unique or specific to
BLUEFLY's services and all updates, upgrades and revisions thereto required to
provide Service will be provided to CALLTECH by BLUEFLY at no charge to
CALLTECH. CALLTECH agrees to use said software and documentation for Service
purposes only. BLUEFLY will provide to CALLTECH one copy of all existing
materials currently used by BLUEFLY to train Agents to support the Products.
CALLTECH agrees to use said materials for training and support purposes for the
Services only. CALLTECH may make such number of copies (and only such number of
copies) of such materials as are necessary for it to provide training to its
Agents to provide Services hereunder. CALLTECH agrees to provide standard
CALLTECH support training to its employees at the facility, which shall include
(at a minimum) training on the standard types of underlying hardware, operating
system and application (e.g., browser) software required or typically used in
conjunction with the Products. BLUEFLY shall have the right to review and
approve the level of proficiency to which the Agents are to be trained by
CALLTECH to facilitate the performance of quality Services, which approval shall
not be unreasonably withheld. Except in an emergency and upon consultation with
BLUEFLY, CALLTECH shall not assign Agents to provide Services hereunder unless
they have received adequate training as approved by BLUEFLY.
Section 5.4 Approval Rights
BLUEFLY shall have the right to approve all Agents and supervisors
providing Services to Bluefly hereunder, as well as the program manager (such
approval not to be unreasonably withheld) and to provide incentives to any such
person in order to reward their performance of the Services. In the event that
BLUEFLY is dissatisfied with the performance of any such person and the parties
are unable to resolve such dissatisfaction to
-4-
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[***]," have been
separately filed with the Securities and Exchange Commission.
BLUEFLY'S reasonable approval, CALLTECH will take steps to replace such person
on a timely basis. BLUEFLY'S initial program manager will be ▇▇▇▇▇ ▇▇▇▇▇▇, and
CALLTECH agrees that, so long as ▇▇. ▇▇▇▇▇▇ remains employed by CALLTECH for
such time, ▇▇. ▇▇▇▇▇▇ shall not be removed from such position without BLUEFLY's
prior consent at any time prior to the first anniversary of the Launch Day.
ARTICLE 6
FEES AND PAYMENT
Section 6.1 Fees for Set-Up and Service
CALLTECH agrees to perform the Services described in this agreement
based upon the pricing detailed on the attached Statement(s) of Work.
Section 6.2 Payments
CALLTECH will provide BLUEFLY with invoices on the sixteenth (16th) of
each month for the Services rendered from the first (1st) through the fifteenth
(15th) of that month and on the first (1st) of each month for the Services
rendered from the sixteenth (16th) through the end of the previous month.
BLUEFLY agrees to pay CALLTECH net thirty (30) days from receipt of invoices, in
US dollars. If BLUEFLY is delinquent in the payment of any invoice, BLUEFLY
shall be obligated to pay interest and/or late charges in a total amount not to
exceed one and one-half percent (1 1/2%) per month on the unpaid balance of any
undisputed portion of the invoice which is unpaid. In the event of a dispute
with regard to a portion of any invoice, the disputed portion may be withheld
until resolution of the dispute but any undisputed portion shall be paid as
provided herein.
Section 6.3 Applicable Sales Taxes; Employee Benefits
The fees payable under this Agreement shall not be construed to include
local, state or federal sales, use or other similar taxes or duties. Each party
is responsible for their own tax liabilities. CALLTECH shall be solely
responsible for the preparation and filing of its Agents' and other employees'
income tax forms and the payment of all of such persons' salaries, employee
benefits and other compensation.
ARTICLE 7
TERM OF AGREEMENT
Section 7.1 Term
The initial term of this Agreement shall be 1 (one) year from the
Effective Date. This Agreement will automatically renew for successive one year
terms unless either party cancels this Agreement in writing 90 (ninety) days
prior to the end of the term (a "Notice of Cancellation"). In the event that
CALLTECH elects not to renew this Agreement on its then-current terms prior to
the third anniversary of the Effective Date by providing a Notice of
Cancellation, BLUEFLY shall have the option to renew the Agreement for an
additional one-year term at prices equal to [***] percent ([***]%) of the
then-current rates. BLUEFLY shall exercise such renewal option by providing
CALLTECH with written notice of such exercise within forty-five (45) days of
receipt of the Notice of Cancellation. If BLUEFLY elects not to renew this
Agreement, it is understood and agreed to by the parties that CALLTECH will
continue to provide services to BLUEFLY pursuant to the provisions of this
Agreement through the then-current term, unless otherwise agreed to by both
parties. Sections 6.2, 6.3, 8.1, 8.2 and 8.3, and Article 9, shall survive any
termination of this Agreement.
-5-
Section 7.2 Conditions for Termination Based on Non-Performance
BLUEFLY may terminate this Agreement without payment of any early
termination fee if CALLTECH (a) consistently fails to fulfill the Service Levels
detailed in the Statement(s) of Work or (b) otherwise commits a breach and does
not cure such breach within ten (10) days after written notice from BLUEFLY. Any
claimed default by BLUEFLY which cannot be resolved by negotiation between the
parties shall be referred to binding arbitration as provided elsewhere herein,
and CALLTECH shall not be entitled to terminate this Agreement or suspend
performance on account of any such breach pending outcome of the arbitration.
Section 7.3 Termination for Convenience
BLUEFLY may terminate this Agreement at any time without cause upon at
least ninety (90) days written notice to CALLTECH. In such event, BLUEFLY shall
pay an early termination fee to CALLTECH to compensate CALLTECH for all costs
and expenses actually and reasonably incurred by CALLTECH for personnel and
equipment engaged in providing Services to BLUEFLY at the time of termination
until such resources are either discharged or re-deployed by CALLTECH to
providing similar services for other parties (but in any event for a period not
to exceed 60 days after termination). CALLTECH will promptly and in good faith
attempt to re-deploy such resources as soon after termination as possible so as
to reduce the amount of such early termination fee payable by BLUEFLY to the
extent reasonably possible. In no event shall the total amount of such
termination fee exceed the amount billed to BLUEFLY for the Services provided in
the month immediately preceding the giving of the notice of termination by
BLUEFLY. In the event that Bluefly terminates this Agreement prior to the Launch
Day, the early termination fee shall in no event exceed the Set-Up Fee.
Following the initial one-year term, either party may terminate this
Agreement at any time without cause upon at least one hundred and twenty (120)
days written notice to the other at no penalty.
Section 7.4 Termination for Non-Payment
In the event BLUEFLY has received written notice that it is 15 or more
calendar days delinquent in payment of an undisputed invoice, and BLUEFLY has
failed to cure such payment default within 10 calendar days, CALLTECH may
terminate this agreement 10 calendar days after receipt of such notification of
said delinquency by BLUEFLY if such delinquency has not been cured by such time.
ARTICLE 8
INDEMNITY; LIABILITY AND DISCLAIMERS; INSURANCE
Section 8.1 Indemnification by CALLTECH
Subject to the limitations of liability provisions of this Agreement,
CALLTECH agrees to indemnify and save harmless BLUEFLY from any liabilities,
causes of action, lawsuits, penalties, claims or demands (including the costs,
expenses and reasonable attorneys' fees on account thereof) that may be made:
(1) by anyone for injuries of any kind, including but not limited to personal
injury, death, property damage and theft, resulting from CALLTECH's negligent or
willful acts or omissions or those of persons furnished by CALLTECH, its agents
or subcontractors; (2) resulting from use of CALLTECH's Services furnished
hereunder; (3) resulting from CALLTECH's failure to perform its obligations
hereunder; (4) as a result of CALLTECH'S violation of any federal, state or
local law, rule or regulation; or (5) by any employee or former employee of
CALLTECH or any of its agents or subcontractors for which the CALLTECH's, its
agents' or subcontractors' liability to such employee or former employee would
otherwise be subject to payments under the state Workers' Compensation or
similar laws, or federal, state or local employment laws. CALLTECH, at its own
expense, agrees to defend BLUEFLY, at BLUEFLY's request, against any such
liability, cause of action, lawsuit, penalty, claim, or demand. BLUEFLY agrees
to notify CALLTECH promptly of any written claims or demands against BLUEFLY for
which CALLTECH is responsible hereunder. The foregoing indemnity shall be in
addition to any other indemnity obligations of CALLTECH set forth in this
Agreement.
-6-
Section 8.2 Indemnification by BLUEFLY
Provided that CALLTECH cooperates with BLUEFLY, at BLUEFLY's expense,
in defending or settling such action, BLUEFLY agrees to indemnify and hold
CALLTECH harmless from any loss, liability, damages or costs based on the
operations of any Products or any infringement by the Products of any patent or
proprietary right of a third party. CALLTECH agrees to notify BLUEFLY promptly
of any written claims or demands against CALLTECH for which BLUEFLY is
responsible hereunder. BLUEFLY shall have no liability for, and CALLTECH shall
indemnify and hold BLUEFLY harmless from and against any claim based upon
CALLTECH's conduct, if such infringement, cause of action or other damage would
have been avoided but for that conduct
Section 8.3 Warranty; Limitation of Liability
Except as provided in this Agreement, CALLTECH shall have no
liability to BLUEFLY with respect to the Services provided under this Agreement.
CALLTECH warrants to BLUEFLY that the Services furnished under this Agreement
will be furnished in a professional and workmanlike manner, in substantial
conformance with the terms and conditions set forth in this Agreement. The
limitations of this section shall not apply to: (i) any damage or loss to
BLUEFLY arising from any misappropriation of BLUEFLY's confidential information
in breach of this Agreement, or (ii) damages resulting from personal injury or
death or damage to tangible real or personal property caused by CALLTECH or
resulting from CALLTECH's negligence.
Section 8.4 Insurance
CALLTECH currently maintains at its sole cost and expense, worker's
compensation insurance as required by applicable law, general liability
insurance with limits of not less than $1,000,000 bodily injury per occurrence
(including death) and $500,000 property damage per occurrence. In addition,
CALLTECH currently maintains automobile liability insurance with a limit of not
less than $1,000,000 bodily injury (including death) per occurrence. CALLTECH
currently maintains Contractual Liability coverage to cover liability assumed
under this Agreement. At all times under this Agreement CALLTECH shall maintain
appropriate insurance coverages (at least equal to that set forth above) or that
which is required by law for a business of like kind. CALLTECH agrees that
BLUEFLY will not be responsible for workers compensation claims or workers
compensation losses incurred by CALLTECH employees.
ARTICLE 9
GENERAL PROVISIONS
Section 9.1 Confidentiality
9.1.1. CALLTECH will not, directly or indirectly, use, publish, or
disclose, or authorize anyone to use, publish or disclose to any person or
entity, without prior written consent of an executive officer of BLUEFLY, any
Confidential Information (as such term is defined herein) provided to CALLTECH
in connection with this Agreement, except as permitted by paragraph 9.1.2 below.
As used herein, "Confidential Information" means information which is
confidential and proprietary in nature including, but not limited to, computer
software and hardware, customer lists, customer telephone numbers, addresses and
other customer information, supplier lists, employee lists, identification of
services and product lines and geographical sales concentrations, identification
of key management personnel and other personnel and financial information.
CALLTECH will cause each Agent and supervisor providing Services under this
Agreement to sign a copy of BLUEFLY's standard form non-disclosure and
assignment of inventions agreement.
9.1.2. Confidential Information shall not include any information
which (i) at the time of disclosure to CALLTECH is generally available to and
known by the public (other than as a result of a disclosure made directly or
indirectly in violation of this Agreement), (ii) becomes publicly available in
the future (other that as a result of a disclosure made directly of indirectly
in violation of this Agreement), (iii) was available to CALLTECH or its
employees or agents on a nonconfidential basis from a source other than BLUEFLY
(provided that such source is not or was not bound to maintain the
confidentiality of such information), or (iv) has been independently acquired or
-7-
developed by CALLTECH without violating any of its obligations under this
Agreement. In the event that CALLTECH or any of its employees or agents become
legally compelled (by deposition, interrogatory, request of document, subpoena,
civil investigative demand or similar process) to disclose any of the
Confidential Information of BLUEFLY, CALLTECH or person from whom such
information is being sought shall provide BLUEFLY with prompt prior written
notice of such requirement so that it may seek a protective order or other
appropriate remedy and/or waive compliance with the terms of this letter. In the
event that such protective order or other remedy is not obtained, or BLUEFLY
waives compliance with the provisions hereof, the party required to provide such
information agrees to furnish only such portion of the Confidential Information,
which is legally required to be furnished.
9.1.3. CALLTECH agrees that the terms of this Section 9.1 are
reasonable and necessary to protect BLUEFLY's business interests and that
BLUEFLY would suffer irreparable harm from a violation of this Section 9.1.
Thus, in addition to any other rights or remedies, all of which shall be deemed
cumulative, BLUEFLY shall be entitled to obtain injunctive relief to enforce the
terms of this Section 9.1., and shall not be required to arbitrate any request
for such injunctive relief.
Section 9.2 Intellectual Property
9.2.1 CALLTECH agrees to disclose and furnish promptly to BLUEFLY
any and all technical information, computer or other apparatus programs,
inventions, specifications, drawings, records, documentation, works of
authorship or other creative works, ideas, knowledge or data, written, oral or
otherwise expressed, first made or created for and paid for by BLUEFLY under
this Agreement (hereinafter "Work Product"). The Work Product specifically
includes, without limitation, any scripts, lists of frequently asked questions
and responses thereto, etc., prepared and utilized by CALLTECH specifically in
connection with the provision of the Services to BLUEFLY.
9.2.2 Subject to the provisions of this Section 9.2.2, CALLTECH
agrees to assign and does hereby assign to BLUEFLY all right, title and interest
in and to any Work Product. To the extent such Work Product qualifies as a "work
made for hire," it shall be deemed to be such. Notwithstanding the foregoing,
(i) CALLTECH retains for itself a perpetual, nonexclusive, royalty-free,
unrestricted right and license to any structure, architectures, ideas and
concepts subsisting in such Work Product, and (ii) CALLTECH shall be free to
independently develop software and other works similar to any works developed by
the performance of the Services under this Agreement, whether by other employees
of CALLTECH, in collaboration with third parties, or for other customers.
9.2.3 CALLTECH agrees to take all reasonable steps, at BLUEFLY's
expense, to assist BLUEFLY in the perfection of the rights assigned hereunder.
Section 9.3 Severability; Waiver
If any of the provisions of this Agreement are declared to be invalid,
such provisions shall be severed from this Agreement and the surviving
provisions shall remain in full force and effect. No failure or delay by either
party in exercising any right, power or privilege hereunder will operate as a
waiver or preclude further exercise thereof.
Section 9.4 Force Majeure; Disaster Recovery
Each party shall be released from and shall have no liability for any
failure beyond its reasonable control, including, but not limited to, acts of
God, terrorist actions, labor troubles, strikes, lockouts, severe weather, delay
or default of utilities or communications companies or accidents.
Notwithstanding the forgoing, if as a result of a condition described in this
section CALLTECH fails to perform the services required of it hereunder for more
than 7 days, BLUEFLY shall have the right to immediately terminate this
Agreement without payment of any early termination fee.
-8-
Section 9.5 Authorized Representatives
CALLTECH shall designate and maintain at all times hereunder a project
manager to serve as a single point of contact for BLUEFLY to assist in the
resolution of all technical, operational and implementation-related matters.
CALLTECH shall endeavor not to change such project manager without BLUEFLY's
approval, and in any event shall notify BLUEFLY of any such changes. In
addition, each party shall, at all times, designate one representative who shall
be authorized to take any and all action and/or grant any approvals required in
the course of performance of this Agreement. Such representations shall be fully
authorized to act for and bind such party including the approval of amendments
to this Agreement. Until written notice to the contrary, the authorized
representatives of the parties are as follows:
For BLUEFLY: For CALLTECH:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Operating Officer and President
Chief Financial Officer
Bluefly, Inc. CALLTECH Communications, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Section 9.6 Notices
Any notices or other communications required or permitted under this
Agreement shall be in writing and shall be delivered in person or sent by
certified mail, return receipt requested, addressed as set forth below:
For BLUEFLY: For CALLTECH:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Operating Officer and President
Chief Financial Officer
Bluefly, Inc. CALLTECH Communications, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.7 Representations
Except as noted herein, no employee, agent or representative of either
party will have the authority to bind the other party to any representation,
oral or written, or any warranty concerning this Agreement, the Services or the
performance of the Services.
Section 9.8 Records and Audits
CALLTECH shall maintain complete and accurate records of all amounts
billable to and payments made by BLUEFLY under this Agreement in accordance with
generally accepted accounting practices. CALLTECH shall retain such records for
a period of three (3) years from the date of final payment for Services covered
by this Agreement. CALLTECH agrees to provide reasonable supporting
documentation concerning any disputed amount of invoice to BLUEFLY within thirty
(30) days after BLUEFLY provides written notification of the dispute to
CALLTECH.
-9-
Section 9.9 Governing Law; Arbitration
This Agreement shall be governed by the internal laws of the State of
Delaware, without regard to conflicts of law principles. Any disputes or
controversy, which this Agreement provides to be resolved by arbitration, shall
be settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. Any arbitration initiated by CALLTECH
shall be held in New York, New York, and any arbitration initiated by BLUEFLY
shall be held in Columbus, Ohio.
Section 9.10 Right of Access
CALLTECH shall permit reasonable access for BLUEFLY to its facilities
in connection with work hereunder and no charges shall be made for such visits.
It is agreed that prior notification will be given to CALLTECH when BLUEFLY
desires access. In addition, BLUEFLY shall be provided with access to CALLTECH
systems at all times in order to monitor the handling of Contacts by CALLTECH
Agents.
Section 9.11 Entire Agreement
Each party acknowledges having read this Agreement and agrees to be
bound by its Terms. This Agreement and the Schedules attached hereto contain the
entire agreement between BLUEFLY and CALLTECH with respect to the Services
described herein and supersedes and cancels all previous and contemporaneous
written or oral agreements and any other communications relating to the subject
matter of this Agreement.
Section 9.12 Third Party Beneficiaries
Except as set forth in Section 5.1, each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto and the other persons
executing this Agreement.
Section 9.13 Amendments
This Agreement may not be changed orally, but only by agreement in
writing signed by the parties to be charged thereby.
Section 9.14 No Joint Venture
This Agreement does not constitute a joint venture or a partnership by
the parties, and each party is entering into this Agreement as a principal and
not as an agent of the other.
Section 9.15 Counterparts
This Agreement may be executed in several counterparts and all
counterparts so executed shall constitute one agreement binding on all the
parties hereto, notwithstanding that all the parties are not signatory to the
original or the same counterpart.
Section 9.16 Assignability
This Agreement, and the parties' rights and obligations hereunder, may
not be assigned by either party without the prior written consent of the other,
except in connection with a merger or a sale of all or substantially all of the
assets of the assigning party.
-10-
IN WITNESS WHEREOF, the parties hereto have signed this Master
Agreement effective the date noted below:
Bluefly, Inc. CALLTECH Communications, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ -----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Operating Officer and Chief Title: President
Financial Officer
Date: August 5, 2004 Date: August 5, 2004
-11-
STATEMENT OF WORK #1
THIS STATEMENT OF WORK NO. 1 TO CALLTECH MASTER AGREEMENT FOR OUTSOURCING CALL
CENTER SUPPORT is entered into as of [Date] by and between Bluefly, Inc. (herein
"BLUEFLY"), a Corporation with offices located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and CALLTECH COMMUNICATIONS, LLC, (herein "CALLTECH") with
offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, BLUEFLY and CALLTECH have entered into that certain CallTech
Master Agreement for Outsourcing Call Center Support effective as of August 5,
2004 (the "Master Agreement");
WHEREAS, BLUEFLY and CALLTECH wish to include an additional Statement
of Work to that Master Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises and terms contained in
the Master Agreement and herein below, the value and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
Program Set-Up
Program set-up shall include procurement of hardware and software needed to
fulfill obligations as set forth in Section 2 of this agreement; programming and
configuration of said hardware and software; setting up furniture, hardware, and
wiring needed to fulfill obligations as set forth in Section 2 of the Master
Agreement, training CALLTECH's training staff; and recruiting for all program
staff positions.
Services/Hours of Operation
Services: In order to accomplish BLUEFLY's purpose, CALLTECH will provide
BLUEFLY with the following services:
Inbound sales and customer service calls and emails. Outbound
calls as specified by Bluefly, such as courtesy notifications
or calls related to resolution of ordering issues.
Tools: CallTech will utilize Bluefly's Blue Martini for order
management, eAssist for e-mail management, Cyber Source for
payment functions and will have access to the
warehousing/fulfillment system utilized by Bluefly's
fulfillment partner.
Reports: Inbound metrics included in CallTech's standard report -
. Calls Offered
. Calls Answered
. Calls Abandoned
. Average Talk Time
. Average Wrap Time (After Call Work)
. Average Handling Time (Talk+Wrap)
. Average Speed of Answer
. Service Level
. Max Hold Time (longest wait in queue)
. Total Inbound Minutes
Outbound metrics included in CallTech's standard report -
. Calls Placed
. Average Preview Time (time spent previewing record before placing call)
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[***]," have been
separately filed with the Securities and Exchange Commission.
. Average Talk Time
. Average Wrap Time (After Call Work)
. Average Handling Time (Talk+Wrap)
. Dials Per Labor Hour
Email metrics -
. Pieces Received
. Pieces Answered
. Pieces Resolved
. Pieces Bounced
. Pieces Remaining
. Service Level
Chat metrics -
. Sessions Offered
. Sessions Answered
. Sessions Abandoned
. Average Session Time
. Average Speed of Answer
. Average Response Time (time between each question/answer during the
sessions)
. Service Level
Labor Metrics -
. Sign-on Duration (total labor hours worked)
. Percent Available (percent of sign-on duration spent waiting for work)
Note: Non-standard report metrics may be subject to a one-time set-up fee, or
to a fee per-report-submission.
Quality Assurance: Quality assurance monitoring will be performed by a
combination of CallTech supervisory and QA staff, at a
frequency no less than once per week for each agent,
with results to be recorded in the CallTech CCMS system.
Service Levels: [***]% of calls will be answered in [***] or less
[***]% of emails will be responded to within [***] and
[***]% within [***]
Hours of Operation: Monday through Friday, 8 a.m. to Midnight Eastern
Standard Time (EST); Saturday/Sunday 10 a.m. to 9 p.m.
EST; Major holidays, 10 a.m. to 6 p.m. EST. Hours of
operation will be extended for the period from November
15 through December 24. The actual hours of operation
for this timeframe will be defined by Bluefly no later
than October 15.
F-2
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[***]," have been
separately filed with the Securities and Exchange Commission.
Pricing for Services performed under Statement of Work #1
Set-Up Fees to fulfill program Set-up
$[***], due upon execution of this Statement of Work
Cost for Services detailed in Schedule A:
Cost per Agent Hour of Actual Handling Time:
Agent labor hours per
week Cost
------------------------ ----------------------
<[***] $[***]/hour
------------------------ ----------------------
[***]-[***] $[***]/hour
------------------------ ----------------------
>[***] $[***]/hour
Cost per Payroll Hour for Supervisors: $[***]/hour
[***] for Program Manager or other members of CALLTECH management
[***] for standard reports set forth above.
Cost per Minute Automated Call (IVR time) using CALLTECH system: $[***]
per minute IVR time
Training cost: $[***] per agent training hour. CALLTECH agrees to train
the telephone representatives that are hired due to attrition
at no cost to BLUEFLY.
Programming: $[***] per hour for post-implementation programming
changes.
Telecommunications: BLUEFLY is responsible for all telephone long
distance, facilities (T1's, etc.) and transfer charges, as detailed in
the Master Agreement Section 5.2.
Long Distance: $[***]/ minute in the event call traffic is carried over
telecommunications lines (trunks) provided by CALLTECH.
Monthly minimum billing: $[***] per full calendar month
F-3
IN WITNESS WHEREOF, the parties hereto have signed this STATEMENT OF WORK # 1,
effective the date noted below:
Bluefly, Inc. CALLTECH Communications, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ -----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Operating Officer and Chief Title: President
Financial Officer
Date: August 5, 2004 Date: August 5, 2004
F-4
