EXHIBIT 10.4
JUNE 26, 1997
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REVISED
JULY 14,1997
PRESENTED TO
21/ST/ CENTURY
Thank You
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for giving us the opportunity to present
our capabilities to you. This Proposal was
assembled after research and consideration of
how to best meet your stated goals.
In Marketing Services, Inc. believes
we can make a substantial contribution to
your sales and marketing program.
We work hard to determine the best,
most cost-effective way to match our
capabilities with your needs.
We are pleased to present our
recommendations to you today.
ITI Delivers.
GUARANTEED.
ITI marketing Services . 902 North 91st Plaza . Omaha, Nebraska 68114 . Phone
800-562-5000
Contents
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1 Executive Summary
2 Program Overview
3 Critical Success Factors
5 Service Plan
7 Account Management
8 Recruitment & Training
9 Operations
10 Quality Assurance
11 Systems
12 Disaster Recovery
13 Commitment
14 Price Quotation/
Acceptance/Terms
ITI MARKETING SERVICES
The Teleservices Solution
ITI MARKETING SERVICES
The Teleservices Solution
Michael J. Lee
Systems Consultant
July 14, 1997
Richard Wiegand-Moss
Chief Operating Officer
21/st/ CENTURY
350 N. Orleans
Suite 737
Chicago, IL 60654
Dear Richard,
Thank you for your continued interest in ITI Marketing Services, Inc. I am
certain you will find ITI to be a true strategic partner you can rely upon for
telemarketing advice and program consultation in helping you achieve your goals
on this customer care project.
We are pleased to present the attached Revised Proposal for your consideration.
Please review the enclosure at your earliest convenience. Upon approval, sign
both originals, forward one to Amy Schumacher at 902 N. 91/st/ Plaza Omaha, NE
68114, and retain the other for your files. Upon receipt of the signed Proposal
and initial setup fee, we will promptly begin implementation and execution of
your inbound dedicated program.
We are very excited about the customer service opportunity and look forward to a
mutually beneficial relationship. Please contact me with any questions you may
have at (800) 562-5000, or directly at (402) 392-9222. Thank you again for your
consideration.
Sincerely,
ITI MARKETING SERVICES, INC.
Michael J. Lee
ML:acs
enclosures
902 North 91/st/ Plaza Omaha, Nebraska 68114-2467
PHONE 402-393-8000 TOLL-FEE 800-562-5000 FAX 402-393-5814
www.itimarketing.com
EXECUTIVE SUMMARY
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Since our incorporation in 1986, ITI Marketing Services, Inc. (ITI) has grown to
become one of the nation's leading telemarketing service agencies, providing
Inbound, Outbound, Bilingual (Hispanic) and Interactive services to many of the
Fortune 1000 companies.
With over 3,400 Inbound and Outbound workstations and more than 9,000 talented
employees processing over 150 million calls annually, ITI is consistently listed
in the top 10 of the "Top 50 Service Agencies," as listed annually in
Telemarketing and Call Center Solutions magazine.
ITI's market focus is to support customized programs. We are experienced in a
wide range of applications ranging from basic lead generation and order
processing, to dealer/locator, to the implementation of sophisticated, dedicated
programs and customer service support.
ITI is dedicated to not only working for you, but also with you in achieving
your goals. We believe in establishing partner-like relationships with our
clients based upon mutual understanding and communication supported through
shared dedication and trust.
21/st/ Century: Proposal July 14, 1997
Page 1 pub/mikelee/proposals
PROPRIETARY AND CONFIDENTIAL
PROGRAM OVERVIEW
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21/st/ Century has requested ITI to present a comprehensive Proposal for inbound
customer care services. 21/st/ Century is developing a bundled offering with a
cable television service, Internet access, high-speed date transmission, long
distance telephone service, cellular, paging and security services. These
services with be offered to some 300,000 residential houses, and 500,000 hotel
rooms along Chicago's lakefront area. Other areas that might be targeted
include Michigan, Illinois and Indiana.
ITI would utilize the Cable Control Systems (CCS) through CSG Systems, Inc. to
provide the customer care services utilizing ITI Customer Service Sales
Representatives (CSSRs).
If actual call volumes do not meet or exceed minimum projections, both 21/st/
Century and ITI will in good faith discuss future program development's and
direction of ongoing customer service work.
FOR ITI TO BE PREPARED FOR YOUR PROGRAM LAUNCH, YOUR START DATE IS DEPENDENT
UPON RECEIPT OF ALL REQUIRED INFORMATION THREE WEEKS IN ADVANCE OF THE START
DATE. Required information includes, but is not limited to: finalized input
and output requirements, file formats, transmission protocols and
specifications, magnetic media specifications, data editing/formatting rules,
scripts, answers, responses, reporting requirements including samples or drafts
of reports, test files (reference databases), volume projections and media and
development schedules.
21/st/ Century: Proposal July 14, 1997
Page 2 pub/mikelee/proposals
PROPRIETARY AND CONFIDENTIAL
CRITICAL SUCCESS FACTORS
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At ITI, we believe the results of your telemarketing initiative are contingent
upon focused, consistent attention to the following critical success factors.
ITI is dedicated to addressing these fundamentals which will be integrated as
part of an overall service plan:
Call Quality ITI requires all CSSRs conduct themselves in a professional,
competent, and courteous manner to portray a sense of
integrity. Every call must create a favorable impression and a
seamless service plan.
ITI is committed to the uncompromising quality of our CSSR
staff. A Quality Assurance Plan, which includes service
standards, will be developed for your program. Those components
include: call monitoring, accuracy, script adherence, test
calling and on-the-floor observation, coaching and counseling.
Data Accuracy ITI believes it is imperative that the data collected on your
and Reporting program be and Reporting be accurately recorded and reported.
ITI consistently monitors the information gathered for accuracy
and incorporates a verification system for all data collected.
ITI has the technical expertise to report and transmit data in
a wide variety of formats and within the timeframes required.
Volume Capacity ITI has experience with programs that produce wide volume
fluctuations and constantly monitors programs to determine
needs for realignment of volume coverage. ITI will work closely
with you to develop anticipated call volume coverage
requirements and create alternative staffing plans for timely
implementation as required.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
Critical Success Factors - continued...
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Account Management ITI assigns an Account Team consisting of a Sales Executive,
Team Account Manager, Quality Assurance Manager, Systems Manager,
Operations Manager and Training Coordinator to each program.
These members hold the responsibility for analyzing business
plans and developing detailed agendas for implementation and
on-going maintenance. Additionally, an Account Executive
from the Vice Presidential level or higher is assigned to
serve and provide valuable insight.
Cost Effectiveness ITI believes a superior service plan is able to balance
costs and the quality of service. ITI has years of
experience in handling a wide variety of programs. Our goal
is to provide you with cost-effective services and, whenever
possible, recommend ways to reduce costs while still
maintaining the level of service our clients require.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
SERVICE PLAN - INBOUND
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ITI will provide the following inbound services to support the 21/st/ Century
program:
Service Availability Inbound call handling services are available 24 hours a
day, 7 days a week. On a monthly average, we manage to an
80 percent service level of all calls within our Shared
Group.
Toll-Free Number ITI will assign exclusive toll-free numbers if necessary
Assignment for the entire length of the program. Clients may also
elect to transfer their preferred numbers to ITI for the
entire length of the promotion.
Customized Greeting Your specifically preferred greeting is delivered on
programs utilizing exclusive toll-free numbers.
Script Design Working in conjunction with you and your organization, ITI
will develop automated call scripting. Script revisions
may be made as needed to introduce new products or
services, or to improve the efficiency or effectiveness of
the call. Program-specific resource materials can also be
made available for on-line reference.
Training A Training Supervisor will be assigned to coordinate the
introduction of the program as well as the CSG/CCS System
Training. This individual develops both the implementation
training material and enhancement training as required.
All representatives will be required to pass a product
knowledge examination prior to handling your calls.
Quality Assurance A comprehensive Quality Assurance Plan, including program
standards, will be implemented. Components of this plan
typically include call monitoring, accuracy, script
adherence, test calling and on-the-floor observations.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
SERVICE PLAN - INBOUND - CONTINUED...
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Reporting Detailed call summary reports, including incomplete call
summaries, are available on a daily basis. In our Shared
Services Group, client specific reporting relative to the
number of calls which are busied or other ACD reporting is
not available. ACD reports will be e-mailed on a daily basis
with a month end report sent two business days after the end
of the month.
Account Team members assigned to your program will include a Sales
Management Team Executive, Quality Assurance Manager, Account Manager,
Systems Manager, Operations Manager, Training Coordinator
and Senior Account Executive.
Quarterly Business Quality Business Reviews (QBRS) include an analysis of call
Reviews handling, overall performance, and results achieved relative
to goals and objectives. Future objectives and strategies,
as well as service requirements to support them, are also
addressed. These reviews may involve client visits to ITI's
facility, although business reviews conducted via conference
call have been successful as well.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
PENALTIES FOR NON PERFORMANCE
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As long as actual call volume fall within ***% of client supplied projections
and service level requirements are based on ***% of the calls answered within
30 seconds; ITI will reduce price of dedicated staffed station $*** per hour for
every 2.5 seconds we exceed 30 seconds. This will be looked at on a weekly basis
to determine the actual average speed of answer.
If ITI exceeds client's goal of ***% of the customer calling in receiving a busy
signal in the dedicated environment, ITI will deduct $*** per hour for every one
percent over three percent.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
_________________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
ACCOUNT MANAGEMENT
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Upon receipt of a signed contract, your Sales Executive will formally transition
the bulk of the day-to-day communications regarding the account to your Account
Manager. The Account Manager is the primary point of contract and will
coordinate the setup and execution of your account.
Within ITI, the Account Manager interacts with Department Heads to coordinate
the launch of your program. The Account Manager serves as the central point of
contact and your advocate to ensure your goals are being achieved.
The Account Manager will work with you, the client, and our internal departments
to develop and maximize critical performance factors to include, but not be
limited to:
. Develop Scripting
. Test Data
. Performance Objectives
. Analyze and Interpret Results
. Forecast Staffing Needs
. Plan Strategies To Meet Performance Objectives
ITI has a track record of establishing mutually profit-able, long-lasting
relationships with our clientele. We believe our approach to Account Management
and our commitment to partnerships have been the cornerstones to our success.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
RECRUITMENT AND TRAINING
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ITI recruits qualified individuals who not only meet specific standards of
performance and possess the necessary skills, but also people with a dedication
to quality and drive for success. Skills include: sales and communication
abilities, spelling, speech, grammar, reading comprehension, typing and, in some
cases, mathematical aptitude.
All potential CSSRs must initially pass a telephone interview, which determines
voice quality and speech proficiency. The second step involves a group
interview which includes an overview of the position, introduction to ITI, as
well as a script reading by each candidate. Typing, spelling and abbreviation
tests are then administered, and those who qualify move on to a personal
interview-. Through our in-depth recruiting analysis, ITI's clients are assured
high quality call center representation (only 17 percent of those people
interviewed become CSSRS).
ITI is recognized for offering compensation packages which exceed those of any
competitors within the cities in which we operate. Additionally, M offers a
full benefits package, including medical coverage, a 401k Plan and profit
sharing to both full-time and part-time employees. These factors allow ITI to
recruit the most qualified individuals and to retain these valuable employees
longer than our competition. In fact, ITI's turnover is just one quarter of the
industry average. ITI's commitment to providing industry-leading compensation
packages enables us to provide our clients with representatives, as well as
reduced turnover and training costs.
Upon acceptance, CSSRs begin a five to ten day classroom training program.
Initial training involves a corporate orientation and an overview of policies
and procedures with an emphasis on ITI's standards of quality and performance.
Training includes a comprehensive introduction to ITI's clients and their
programs as well as intensive product knowledge education. The class is also
educated, in depth, on our automated system, followed by group and individual
role-play exercises. Product knowledge/system examinations are conducted and
each new employee must pass with a minimum score of 90 percent. As the CSSRs
move from the classroom environment to the call center, they begin on-the-job
training (OJT). During the OJT period, Team Sales Supervisors are assigned to
small, manageable teams of CSSRS. The trainer may also work with each team,
providing one-on-one education through call coaching, demonstration and side-by-
side call monitoring.
ITI maintains the highest standards while hiring and training quality sales
representatives who will master your program, capture the information required
and ensure your company s image is maintained.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
OPERATIONS
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The ITI Inbound Operations Management Team is responsible for managing all
aspects of the Inbound Calling Center. This team consists of a Director of
Operations, Operations Managers, Program Managers, Program Supervisors and Team
Supervisors.
The Director of Operations and Operations Managers are responsible for managing
the call centers on a global basis. They oversee all hiring, training,
performance, quality, call flow and all administrative aspects of the call
center.
Operations Managers, Program Managers, and Program Supervisors are responsible
for managing the day-to-day activities of the CSSRs. The primary objective of
this group is to ensure all personnel are handling each call in accordance with
the agreed-upon client standards and objectives.
To ensure adherence to our client's objectives, ITI provides extensive training
to all Supervisory Personnel. Typically, an ITI Supervisor will have spent at
least six months taking inbound calls prior to being eligible for promotion to
Supervisor. This training affords an ITI Supervisor the ability to have a
greater understanding of the demands of the CSSR position.
The ratio of Supervisory Personnel to CSSRs vary to program requirements, but
will approximate 1 Management Person to 9.4 Representatives. Maintaining ratios
at these levels ensures each client that the individuals taking their calls are
being given the necessary attention to properly execute each phone call.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
QUALITY ASSURANCE
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The key component to ITI's industry-leading level of call quality is our
commitment to a structured quality assurance process which involves
systematically monitoring each CSSR on a daily basis.
During each shift a CSSR works, the ITI Quality Assurance Team monitors a
minimum of two calls per CSSR per shift, to ensure adherence to both internal
and claim specific standards, and to provide each individual feedback for
improvement. This process is executed by both a Quality Assurance
Representative (QAR) and Floor Supervisory Personnel.
In an effort to make this subjective process more objective, ITI extensively
trains each QAR and has developed monitoring sheets which allow for evaluation
on specific elements of each phone call. Once the call has been critiqued, the
QAR quickly communicates with the Floor Supervisor giving feedback about the
call. The Floor Supervisor then provides this feedback to the CSSR during his
or her work shift.
To further ensure call quality, ITI Account Management Personnel frequently
conduct test calls and provide feedback to Operation Personnel.
This multi-faced approach to quality assurance in Inbound Operations has earned
ITI a leadership position within the telemarketing industry.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
SYSTEMS
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ITI -utilizes both a Northern Telecom ACD and a Tandem Himalaya K1000 as inbound
calling processing systems. The Northern Telecom system, with dual common
control, has full ACD capability with Dialed Number Identification Service
(DNIS), as well as Direct Terminal Interface (DTI) capabilities, connecting the
Tandem Himalaya K1000 and the Northern Telecom through an ISDN (two-way)
gateway. This facilitates an automated presentation of the script to the CSSR
screen and may include your customized greeting.
The Tandem Himalaya K1000 is supported by our custom-developed software and
provides our clients with sophisticated scripting and branching capabilities.
The Tandem is a specialized fault-tolerant system which is non-stop and utilizes
redundant mirrored discs, enhancing data protection. The system requires no
daily downtime for maintenance and processing.
Via the Northern Telecom's Call Management System, ITI Inbound Services can
provide many detailed management reports relating to service levels and
statistical call data.
All ITI software programs are developed internally and are proprietary. Our
expertise in specialized, flexible script development has helped to make us an
industry leader.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
DISASTER RECOVERY/BACK-UP SYSTEMS
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ITI understands the critical need to ensure our Inbound Operations are fully
functional at all times. The following steps have been taken to ensure
uninterrupted service to our clients, 24 hours a day, 7 days a week:
. Tandem mainframe system is a fault-tolerant central processing unit
which offers dual processing functionality at all times. We also have
the ability to access the development system for back-up purposes and
for remote processing.
. ITI subscribes to 24-hour maintenance with Tandem and. is connected to
Tandem's National Secure Center, which automatically receives warning
calls from the Tandem processor if trouble is detected. The Northern
Telecom ACD system also has maintenance available 24 hours a day in
addition to an internal alarm system.
. All software is duplicated and all data files are backed up daily with
copies stored onsite and in an off-site controlled warehouse facility
which specializes in records and data back-up storage.
. ITI utilizes an Exide UPS (Uninterrupted Power Supply) which is also
on-line with a Cummins diesel generator to supply a consistent flow of
power to all phone stations, as well as to all critical support staff
departments. Should a loss of power occur, standard operating
procedures are supported by the back-up systems for the required
duration. Both back-up systems are tested and maintained on a regular
basis.
21/st/ Century: Proposal July 14, 1997
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PROPRIETARY AND CONFIDENTIAL
COMMITMENT
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The cornerstones of ITI are knowledge, leadership, intensity, dedication and a
commitment to accountability. Our goal is to redefine the standards by which
all direct marketing companies are judged. You can trust that you have our
unconditional commitment to excellence in achieving your goals.
We welcome the opportunity to provide you with the services outlined within this
Proposal, and are confident we are effectively deliver the quality service you
deserve. More importantly, we are certain we can attain this in a cost-
effective manner by utilizing our experiences, our economies of scale, our
commitment to quality and our sales expertise. ITI welcomes the opportunity to
establish a long-term working relationship with 21/st/ Century. Thank you for
your time and consideration.
21/st/ Century: Proposal July 14, 1997
Page 14 pub/mikelee/proposals
PROPRIETARY AND CONFIDENTIAL
ITI MARKETING SERVICES PRICE QUOTATION
INBOUND PRICING - DEDICATED SERVICE GROUP
================================================================================
ITI Price Quotation: This price quotation is valid for 30 days from the date
shown below. Please read the back of this form for terms
and conditions on the services we provide.
/***/
NOTE: Setup will be determined by script complexity, transmission format,
transfer options and transmission protocol.
21/st/ CENTURY DATE ITI MARKETING SERVICES, INC. DATE
/s/ Richard Weigand-Moss /s/ Daniel S. Hicks
- ---------------------------------- ------------------------------------------
Daniel S. Hicks
Vice President, Inbound Account Management
21/st/ Century: Proposal July 14, 1997
Page 15 pub/mikelee/proposals
PROPRIETARY AND CONFIDENTIAL
_____________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
ADDITIONAL TERMS
1. Payment Terms; Conditions.
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(a) Invoices; Finance Charge. Client shall be invoiced weekly in
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accordance with the prices set forth on the front of this agreement. Payment of
invoices is due ten (10) days from the date of invoice. Invoices remaining after
the due date shall be subject to a finance charge of one and one-half percent
(1.5%) per month.
(b) Nonpayment; Withholding Data. If ITI has not received payment of an
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invoice within ten (10) days from the invoice date. ITI may, at its sole and
absolute discretion, with prior notice to Client, (i) withhold all call data in
the possession of ITI at that time, (ii) refuse to furnish same to Client until
said account is brought current, (iii) cancel any and all services being
provided to Client, and (iv) refuse to deliver any and all information in the
possession of ITI until Client's account is brought current.
(c) Price Change. ITI may change the price of its services quoted in this
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Agreement for just cause shown or because of an increase in the service supplied
to or by ITI or because of governmental increases not controlled by ITI, as long
as written notice of the increase is given to Client prior to the change taking
effect.
(d) Drag Calls. Upon termination of this Agreement. Client agrees to
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compensate ITI for any drag calls that may occur at the stated per call rate, as
set forth in the pricing schedule.
(e) Taxes. Client shall pay all service, sales, use and valued-added
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taxes, duties, assessments and any other taxes or fees which may be assessed or
levied by any governmental or regulatory authority with respect to the services
provided by ITI to the Client pursuant to this Agreement.
(f) Credit Approval; Deposits. ITI's acceptance of this Agreement is
-------------------------
subject to satisfactory credit investigation and approval of Client. Upon such
credit approval, Client may be required, in ITI's sole discretion, to place a
security deposit with ITI in an amount to be determined by ITI to guarantee
payment of all obligations owed to ITI hereunder. Upon termination of this
Agreement, ITI will return such deposit to Client after deducting any amounts
payable to or otherwise owed to ITI hereunder.
2. Changes to Project Agreements. ITI and Client further agree that it is
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understood between the parties hereto that due to the nature of this business:
(a) Service Change. Changes made in the scope of service specified in the
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service description after the terms of the same have been agreed to or any
changes made by date changes, media requirements, additions or deletions, may
result in additional charges to Client and will be governed by paragraph 1(c)
above.
(b) Oral Change. ITI shall not be held liable for errors to Client's
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project caused by oral changes, additions or deletions. All oral changes may be
subsequently verified and approved in writing between Client and ITI to be
valid.
3. Warranties; Representations. Client represents and warrants to ITI that:
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(a) Authorization; Compliance with Laws. Client is fully authorized to
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provide the products and/or services being offered to the prospects pursuant to
the solicitations to be made by ITI under this Agreement. Client further
represents and warrants to ITI that all products and/or services and the
offering of all products and/or services to be provided by ____ to the prospects
will fully comply with all applicable federal, state and local laws, _____ and
regulations, including, but not limited to, the Telephone Consumer Protection
Act of 1991, the Telemarketing and Consumer Fraud and Abuse Prevention Act (the
"TCFAPA") and any similar federal and state legislation regarding telephone
marketing.
(b) Scripts; FTC's Rule. Client has provided ITI with all necessary
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information concerning the products and/or services to be marketed pursuant to
this Agreement to enable ITI to assist in the development of telephone marketing
scripts containing the disclosures required by Section 310.3 of the Federal
Trade Commission's Telemarketing Sales Rule (the "Rule") and any other
regulation or law specifically applicable to such products and/or services. All
such information is true and correct and, if applicable, consistent with
representations made by or on behalf of Client in the marketing of such products
and/or services in other media. Client will immediately inform ITI of any
changes in its policies or practices or in the description of such products
and/or services that may require a change in such disclosures. If applicable,
Client further represents and warrants that product labeling, packaging and
instructions comply with applicable law.
(c) Disclosure. Client has disclosed the existence of any decrees, orders
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or consent agreements, and of any pending formal or informal governmental
investigations, regarding the products and/or services that are the subject of
this Agreement or Client's business practices based upon the Rule or any other
consumer protection law and Client will immediately inform ITI of any change in
the status of such matters or the institution of other or further investigations
under such laws as soon as it becomes aware of them.
4. Performance in Accordance with Accepted Standards. ITI shall perform all
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duties and obligations required of it pursuant to this Agreement in accordance
with accepted telemarketing industry standards. ITI represents to Client that
it will comply with all applicable federal, state and local laws, rules and
regulations, including the TCFAPA. Except as set forth in the immediately
preceding sentence, ITI makes no express or implied warranties (whether implied
in fact or in law). ITI has made no affirmations of fact or other
representations to the Client other than those expressly set forth in this
Agreement and Client hereby agrees that it has not relied on any affirmation of
fact or other representation from ITI in entering into this Agreement other than
those expressly set forth in this Agreement.
5. Intellectual Property; Call Data. ITI and Client agree that all software
--------------------------------
programs developed by ITI for Client are owned by ITI and remain the exclusive
property of ITI and shall be retained by ITI at the termination of this
Agreement. ITI and Client further agree that all call data and all customer
information generated by this contract belong to Client, subject to the terms of
this Agreement.
6. Identification; Limitation of Damages
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(a) Indemnification. Subject to the limitations set forth in this
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Agreement, each party (the 'Identifying Party") agrees to indemnify and hold
harmless the other party, its officers, directors, shareholders, employees or
agents (the "Indemnified Party") from any and all liabilities, losses, damages,
claims, suits, judgments, costs and expenses (including reasonable attorneys'
fees and costs of any investigation of action related thereto) ("Losses")
suffered or incurred by the Indemnified Party, its officers, directors,
shareholders, employees or agents, arising out of any error, omission,
misconduct or negligence of the Indemnifying Party. Further, Client shall
indemnify and hold ITI harmless from any Losses arising out of any scripts
and/or support materials provided or approved by Client, and hereby releases ITI
from any Losses in connection herewith.
(b) Consequential; Total Damages. In no event shall ITI be liable to
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Client for any incidental or consequential damages of any kind (including,
without limitation, lost profits) which result from one or more of the
following: (i) a breach by ITI of the terms of this Agreement or of any
agreement implied in law arising by reason of the transactions contemplated by
this Agreement; or (ii) any negligent actions or omissions of ITI. In no event
shall either party be liable to the other for any punitive damages arising by
virtue of any dealings between the parties. In no event shall ITI be liable for
any claims or demands against Client by a third party arising out of, or
connected with the services provided hereunder. ITI's entire liability to Client
for damages (other than consequential and incidental damages and damages arising
by virtue of third-party claims and demands for which ITI has no liability as
provided above) in connection with the services provided to Client, or provided
by Client to its Clients, shall not exceed in the aggregate the total contract
price due ITI under this Agreement.
7. Diversion of Employees. During the term of this Agreement and for a period
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of two (2) years following the expiration or termination of this Agreement,
Client will not, directly or indirectly: (a) induce or attempt to influence any
employee of ITI to terminate his or her employment with ITI; (b) employ or
recommend for employment any employee of ITI; or (c) identify for employment any
employee of ITI.
8. Term; Termination.
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(a) Minimum Term. The minimum term of this Agreement shall be one (1)
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year. Client or ITI, has the right to terminate this agreement in writing, if
total number of seats average 49 or less per day, with a ninety (90) day ramp
down period from receipt of termination in writing. If total number of seats
average more than 49 seats per day, Client or ITI will provide a six (6) month
ramp down period. This Agreement will continue thereafter unless either party
hereto notifies the other party of their intention to terminate, in writing, at
least thirty (30) days prior to the termination date.
(b) Termination for Cause. Notwithstanding any other provision in this
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paragraph, either party hereto may terminate this Agreement with ten (10) days
advanced written notice of the termination date to the other party hereto, if:
(1) The other party hereto has falsified information that led to this Agreement:
(2) The other party hereto is found to not be conducting its business in a
proper manner; (3) The other party is unable to pay its debts generally as they
come due or is declared insolvent or bankrupt, is the subject of any proceeding
relating to its liquidation, insolvency or the appointment of a receiver or
similar officer, or makes an assignment for the benefit of all, or substantially
all of its creditors, or enters into an agreement for the composition,
extension, or readjustment of all or substantially all of its obligations.
(c) Termination for Changed Laws. Either Party shall have the right to
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terminate this Agreement, without liability to the other, in the event of any
judicial, regulatory or legislative change rendering performance of this
Agreement impossible, illegal or impractical. Such Party shall provide the
other with written notice of such termination as promptly as possible, but in no
event less than ten (10) days prior to the termination date.
9. Entire Agreement. This Agreement constitutes the complete Agreement between
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ITI and Client and no other verbal representations or written representations
will supersede this Agreement, except that additions and changes properly
documented and authorized and referred to for the purpose of this Agreement as
an amendment will become part of this original Agreement as if fully rewritten
herein.
10. Waiver. The waiver by either Party, or the failure by either Party to
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claim a breach of any provision of this Agreement or to give notice with respect
thereto, shall not be held to be a waiver of any subsequent breach of such
provision or any other provision.
11. Severability. In the event any provision of this Agreement is held to be
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illegal, invalid or unenforceable to any extent, the legality, validity and
enforceability of the remainder of this Agreement shall not be affected thereby
and this Agreement shall continue in fully force and effect as modified and
shall be enforced to the fullest extent permitted by law.
12. Assignment. Neither this Agreement, nor any of the rights, duties or
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obligations hereunder, may be assigned (whether by operation of law or
otherwise) or otherwise delegated by either Party without the prior written
consent of the Non-Assigning Party and any attempted assignment which is not in
conformity herewith shall be voidable at the option of the Non-Assigning Party.
If such an assignment is approved, this Agreement shall be binding upon, and
inure to the benefit of and be enforceable by, the parties hereto and their
respective successors and permitted assigns.
13. Force Majeure. Each party hereto (other than the obligation of Client to
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make payments for any services rendered hereunder) shall be excused from
performing any obligations under this Agreement, in whole or in part, as a
result of delays or interference caused by the other party or by an act of God,
war, labor disputes, strikes, floods, lightning, severe weather, shortage of
materials, failures or fluctuations in electrical power, heat, light, air
conditioning, disruption of a line, service or program by a common carrier or
billing services provider, disruption or malfunction of any data processing or
telecommunications network, facility or equipment, third-party nonperformance,
or other cause beyond a party's reasonable control, and such nonperformance
shall not be a default hereunder or a basis for termination hereof.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the local laws of the State of Nebraska.