EXHIBIT 10.37
Portions of this Exhibit marked with an "*" have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), made as of the 8th day of
June, 2001, between VoiceStream Wireless Corporation, a Delaware corporation
with a principal place of business at 12920 SE 38th Street, Bellevue, WA 98006
("VSTR") and STARTEK USA, INC., a Colorado corporation with a principal place of
business at 100 Garfield Street, Denver, CO 80206 ("STARTEK").
STATEMENT OF WORK - This Agreement authorizes StarTek to provide the Work
described below and in Exhibit A entitled "STATEMENT OF WORK" (attached hereto
and hereby made a part of this Agreement).
TERM - The term of this Agreement shall be one (1) year commencing June 8, 2001
and shall automatically renew for additional one (1) year terms unless written
notification of cancellation is provided by either party to the other party at
least * prior to the termination of the then current term. Notwithstanding the
above, either party may terminate this Agreement by providing written
notification of termination to the other party at least * prior to such
termination.
PRICING SCHEDULE
This PRICING SCHEDULE shows the amounts to be paid to StarTek in United
States currency for the various Work to be performed hereunder from a
Canadian location following authorization, receipt and acceptance by
VSTR as follows:
*
ACCEPTED:
STARTEK USA, INC. VOICESTREAM WIRELESS CORPORATION
/s/ E. Preston Sumner, Jr. /s/ Julie Pollard
- ----------------------------------------- -----------------------------------
Signature Signature
E. Preston Sumner, Jr. Julie Pollard
Executive Vice President Senior Vice President
- ----------------------------------------- -----------------------------------
Name and Title Name and Title
June 15, 2001 June 18, 2001
- ----------------------------------------- -----------------------------------
Date Date
EXHIBIT A
STATEMENT OF WORK
This Statement of Work is incorporated into that certain Services Agreement
dated June 8, 2001 (the "Agreement") by this reference. Defined terms used in
this Statement of Work shall have the meanings provided in the Agreement, unless
expressly defined herein.
On behalf of VSTR, StarTek will provide certain services relating to inbound
activation and Advanced Activation calls.
A. GENERAL
Commencing July 29, 2001, StarTek will handle inbound activation calls
for VSTR (the "Services"). StarTek shall establish a dedicated program
(StarTek VSTR representatives shall handle only VSTR calls) to perform
the Services.
B. HOURS OF OPERATION
Except as otherwise set forth herein, the hours of operation for the
Inbound Activation's and Advanced Activations will be * to *, *.
C. CALL VOLUME AND FORECASTING
StarTek will provide inbound customer care utilizing full time
equivalents ("FTEs") in accordance with Section M of this Statement of
Work. An FTE is defined as * Customer Contact Employee (CCE) hours per
day.
VSTR will regularly prepare, with assistance from StarTek, the following
forecast for each call type to support the proper planning of the
infrastructure required to support the Activations Programs: An initial
forecast * before the * for which the forecast is made.
A * call volume forecast by * to be used by StarTek to determine * call
volume and the number of CCE per * required to handle the volume at the
designated service level will be delivered at least * plus required
training time before the * for which the forecast is made, or sooner as
available. This forecast will be referred to as the "Call Volume
Forecast." As part of the support structure, StarTek will provide a
senior call management-planning specialist who will, among other things,
assist VSTR in the development of Call Volume Forecasts.
VSTR and StarTek shall mutually agree upon and participate in the
preparation of other call volume forecasts, as required, for the
successful performance of the Programs. These may include, without
limitation, * forecasts.
StarTek shall recruit, train, and staff the appropriate number of CCEs
to handle the Call Volume Forecast volumes (calls offered), *, at the
DMOQ Service Level designated in Section L. below.
The forecasts referred to above shall in no way represent a commitment
from VSTR to provide volumes to StarTek, except as described in
following paragraph.
Should the delivered minutes received by StarTek fall below * of the
Call Volume Forecast provided by VSTR for a given month, VSTR will pay
actual CCE minutes handled during such period or * of the forecasted
minutes, whichever is greater.
StarTek shall develop * call volume forecasts based on the Call Volume
Forecast provided by VSTR. This process is known as Interval
Forecasting. StarTek shall schedule the appropriate number of CCE in *
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intervals in accordance with its Interval Forecasting and historical
call volume patterns. This process is known as Interval Scheduling.
StarTek will provide its Interval Forecasting and Interval Scheduling
plans to VSTR within * after receiving the Call Volume Forecast from
VSTR. These documented plans will illustrate how StarTek plans to meet
the DMOQ Service Level. The documented plans will include the number of
required CCEs to meet the DMOQ Service Level, the number of scheduled
CCEs, and the * Service Level commitments. StarTek will provide notice
to VSTR of any discrepancies between VSTR's Call Volume Forecasting and
StarTek's Interval Forecasting for discussion, agreement and correction.
If VSTR revises its Call Volume Forecast after its * training time
submission point by *, StarTek will provide, within *, a Revised
Interval Forecast and Revised Interval Schedule plans. These documented
plans will illustrate the impact of the Call Volume Forecast changes.
The documented plans will include the number of required CCEs to meet
the DMOQ Service Level, the number of scheduled CCEs, and the revised *
Service Level commitments. VSTR shall have the right to review and
change the revised Interval Forecast and Interval Schedule plans. If
such revised Interval Forecast and Interval Schedule plans materially
impact StarTek's staffing requirements, StarTek shall be given adequate
notice necessary for StarTek to train additional staff.
VSTR and StarTek will cooperatively manage intraday schedule adjustments
to manage actual call volumes.
In any case, StarTek revenue and DMOQ calculation will be based on the
"Call Volume Forecast" delivered * training time prior to the beginning
of the month.
D. CALL RESOLUTION TIME
Call Resolution Time ("CRT") is defined as the sum of average talk time,
hold time while on a call and after call work.
StarTek agrees that, at no time on a * basis, shall its CRT exceed
VSTR's CRT, or, as applicable, the Forecasted AHT (which for the * shall
not exceed the CRT experienced by VSTR's previous vendor for the *),
requirements set forth in the service level objectives StarTek is
supporting by the percentage listed below (d.1.). Should StarTek's AHT
exceed VSTR' AHT or Forecasted AHT contractual requirements by more than
the percentage listed below (d.1), StarTek shall use or, as applicable,
the Forecasted AHT for the * to calculate the amount billed. Subject to
adequate notice and VSTR's payment for any additional staff training
requirements, VSTR may alter the Program and call types supported by
StarTek. VSTR will modify StarTek AHT objectives, to match actual call
types supported if different from call types supported in VSTR internal
centers. StarTek will make every commercially reasonable effort to
achieve a * CRT.
*
VSTR will modify the * CRT objective if the systems provided by VSTR
negatively impact CRT based on the applicable VSTR degradation
experienced at VSTR internal centers.
E. TRAINING
CCEs will be trained on the VSTR standard new hire training curriculum.
Training for the Program shall be in accordance with the VSTR New Hire
Training Curriculum which was designed by VSTR and will be provided to
StarTek. Upon * written notice to StarTek, VSTR may change the VSTR New
Hire Training Curriculum and the hours required for delivery. Prior to
completion of training, VSTR will deliver all applicable application
id's. Sharing of application ID's is prohibited under VSTR policy.
Startek will establish procedures to ensure that ID's are not shared.
Any CCE who violates this policy will be removed from the VSTR account.
All costs and expenses for training and training materials for new FTEs
and any initial and program extension training, or changes or
modifications to the program or continuation training that exceeds *
specialist shall be borne by VSTR. New FTE's are defined as FTE's
required in excess of the previous
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month's FTE requirement, based upon the Call Volume Forecast. VSTR shall
not compensate StarTek for any CCE who does not complete the training.
Training needs to be approved by VSTR, in advance, in writing.
All costs associated with attrition training, including, but not limited
to, new trainers and any associated materials, shall be borne by
StarTek.
If StarTek is not meeting the quality standards set forth in Section L.
below and VSTR reasonably requires that more training be provided to the
StarTek representatives, StarTek will bear the cost of the additional
training. Additional training shall be initiated as soon as possible,
but not later than * from the date VSTR's requests such additional
training.
F. ESCALATION PROCEDURES
StarTek shall utilize VSTR-provided escalation processes, as provided in
online job aides, to handle calls beyond the CCE scope of training or
for management support of a customer issue. This process will ensure
that each call that cannot be handled by the CCE is then handled by the
lead representative and up to the manager before being transferred to
VSTR for resolution. If a customer requires management support, a CCE
shall transfer the call to a manager and stay with the call to
completion.
VSTR shall update all on-line job aides that define the escalation
procedures for the Program when any changes are made.
G. TELECOMMUNICATIONS
VSTR shall route and deliver calls via the VSTR Network to StarTek.
Telecommunications costs to deliver calls and data network to StarTek's
Canada location *. If any call delivered to StarTek is outside the scope
of this Statement of Work or requires further assistance, StarTek shall
"warm transfer" the call following procedures as defined in the VSTR
online job aides. A "warm transfer" occurs when the original CCE
receiving the call transfers to another CCE and introduces the calling
party to the new CCE. VSTR will pay for outbound telecommunications
costs associated with this Statement of Work on a pass-through basis.
StarTek will establish procedures to assure that calls are "warm
transferred" only when appropriate. If VSTR determines that calls are
inappropriately being "warm transferred", StarTek will work with VSTR to
ensure that the warm transfer procedures are followed or shall modify
such procedures if necessary.
H. CUSTOMER CARE SYSTEMS
StarTek shall be responsible for all the costs associated with
workstations equipped to run the most recent version of the eCRM-SYSTEM,
including, but not limited to, purchase, maintenance, and upgrades and
the wiring of all components to the desktop computers, to support the
Services StarTek is hereby granted a perpetual license for the term of
this Agreement to use the eCRM-SYSTEM for purposes of performing its
obligations under this Agreement. The system requirements for the
eCRM-SYSTEM are set forth on Schedule ____ attached hereto. StarTek
shall also provide the building, telecommunications switch for the
Interactive Voice Response (IVR) system, remote monitoring application
and associated toll free number, Universal Power Supply (UPS), desktop
computers, office supplies, and dedicated workspaces in each call
center. VSTR shall be responsible for all costs and shall own all
equipment associated with workstation infrastructure (including, but not
limited to, the network (T1's), servers, routers, hubs, Data Service
Units (DSUs), and network information servers. VSTR shall also be
responsible for software required to support the eCRM-SYSTEM. VSTR will
be responsible for the eCRM, Knowledge Database, and Call Tracking
systems required to support the Work performed under this Agreement.
I. SYSTEMS USE AND DOWNTIME
Information given to callers or collected by CCEs will be directly taken
from and/or input into VSTR' systems. In the event that VSTR's systems
go down, StarTek shall capture call information on the downtime forms
provided by VSTR. StarTek agrees that it shall then input information
from these
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downtime forms once the system is restored. The quality metrics (error
rate) shall apply to the completion of all forms. Periods of time during
the day in which occupancy is lowest will be utilized to perform this
function. Turnaround commitment to enter downtime forms into VSTR's
systems will be * from the time when VSTR' systems are restored. If call
volume does not allow for * turnaround due to call volume meeting at
least * of the forecasted volume, another * input period shall be
granted. Downtime forms will be destroyed or sent to VSTR, as directed
by VSTR, *. StarTek will assign a special Aspect ACD tracking code to
designate when specified representatives are entering downtime form
information into System. VSTR agrees to pay StarTek the agreed upon
hourly rate for entering downtime information as stated in the Pricing
Schedule in the Agreement.
J. OVERTIME
If StarTek reasonably believes that the daily call volume will vary from
the Call Volume Forecast by more than *, StarTek will recruit trained
CCEs to work overtime to support the call handling. If the Call Volume
Forecast is within * and StarTek does not staff the Program in order to
meet the Service Level DMOQ, and, as a result, StarTek must recruit CCEs
to work overtime to cover the shortage, then StarTek shall be
responsible for any overtime expenses. Any overtime must be authorized
by VSTR, in advance. VSTR will pay the overtime rate for all approved
overtime.
The recruiting process for overtime shall be deployed as soon as the
circumstance affecting the call volume variance is identified. If
StarTek identifies the item at least * before the occurrence, StarTek
shall use its commercially reasonable efforts to minimize the financial
impact by changing schedules to support the staffing required. StarTek
shall also recruit CCEs to work overtime on a * basis when the intra-day
forecast dictates additional staffing needs to maintain service goals.
Except as provided above, StarTek shall obtain written authorization
from VSTR for any overtime that may be required or incurred for the
performance of the Programs. When written approval from VSTR cannot be
obtained during non-business hours, StarTek may be granted verbal
approval from VSTR. However, the verbal approval must be followed by
written approval from VSTR as soon as *.
K. CHANGE MANAGEMENT
VSTR shall provide StarTek with periodic information that is distributed
through the change process, as defined by VSTR, to enable all CCEs to
remain current on the latest VSTR promotions and features. StarTek is
responsible for distributing this information via appropriate methods to
CCEs, trainers, team leaders, and lead representatives so that change
can be supported in a timely manner. StarTek shall, *, initiate test
calls to verify CCE's understanding of the latest change information and
to ensure acceptable call quality, as defined in Section L. below.
Startek will provide verification of compliance to VSTR.
L. DIRECT MEASURES OF QUALITY (DMOQS)
The DMOQs for each program performed hereunder shall be as follows:
- Service Level:
- Activation Calls: * of the * calls offered shall be
answered within *.
- Days that actual call volume sent to StarTek is above
the Call Volume Forecast by * will not be included in
the * DMOQ calculation for Service Level.
- Call Volume: StarTek shall answer the call volume provided in
the Call Volume Forecast.
Call Quality: According to the results from the call quality observation
process, as described below, the following averages must be achieved by
all CCEs who have completed * of call handling, commencing in * of
handling calls:
=> * of Implementation Schedule (Section M) - * monthly
average
=> * of Implementation Schedule (schedule M) - * monthly
average
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=> * of Implementation Schedule (schedule M) - * monthly
average
=> * of Implementation Schedule (schedule M) - * monthly
average
For the purposes of ensuring Call Quality, StarTek and VSTR shall
measure the CCEs' call quality using the following types of
observations:
1. VSTR observation
2. VSTR/StarTek joint observation
3. StarTek minimum of *
An agreed upon number of VSTR observations and VSTR/StarTek joint
observations shall be performed per StarTek call center per *. The
scores for all of these observations will be totaled and an average *
score shall be calculated. The call quality observation form to be used
in this process shall be provided by VSTR. Results shall be used to
provide * feedback to CCEs and StarTek management. The call quality
scoring criteria used by StarTek will match that used by VSTR. StarTek
will use the same * average % that VSTR uses as their target or the
actual average * quality score for * of VSTR representatives. A minimum
of * monitoring feedback sessions per CCE, per * shall be conducted by
the CCE's direct supervisor.
M. IMPLEMENTATION TIMELINE
VSTR may modify the implementation schedule as necessary to support business
requirements. Any acceleration in the schedule will be mutually agreed upon by
both parties. If the implementation schedule is modified, the target DMOQs for
the first * of operation will be modified accordingly. "NCO" referred to below
means number of calls offered and "NCH" means number of calls handled
*
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If StarTek is not able to provide * scheduled for the week of * StarTek will
incur a * deduction of $* until the * requirement is satisfied. There will be no
further deductions under this clause upon StarTek's achievement of the *. If
Startek handles * of Activation calls and delivers * for the week beginning on *
VSTR will pay StarTek a performance bonus of $*. VoiceStream agrees to provide
to StarTek the following items by the designated date. If any of these
contingencies are not met, any deductions required under this clause shall be
null and void.
- - Training materials for the VoiceStream Activation calls by end of
business *.
- - Data connectivity to Kingston by * using VPN through StarTek's Greeley
facilities with sufficient bandwidth to handle training.
- - Voice connectivity to Kingston by * with sufficient capacity to handle
forecasted calls.
- - Hard drive image for training by *.
- - Minimum of * trainers on location in Kingston from * until * and *
trainers through *.
- - Call pattern data submitted by *.
- - Taped calls by *.
N. REPORTS
StarTek agrees that it shall provide VSTR with standard call count
reports, performance reports, and station manager detail reports on a *
basis *. The reports shall contain detail on StarTek's performance of
services, including, but not limited to, the following:
-total number of calls handled
-number of calls answered within * seconds
-number of calls answered within * seconds
-number of calls abandoned
-number of calls blocked
-average handle time
-average call quality score
StarTek agrees that it shall also provide VSTR with reports on a * basis
of the following:
-the deleted SYSTEM I.D.s for all employees who have left the
company and/or Program
-the number of CCEs at the beginning of the *
-the number of CCEs at the end of the *
StarTek shall provide report cards reflecting measurements of the DMOQs
and all of the above metrics *. VSTR and StarTek shall mutually agree
upon any other reports.
O. MONITORING
VSTR shall have the right, to the extent permitted by law and at no
additional expense, to monitor at any time (either on-site or remotely)
customer contact calls to ensure compliance with performance,
operational and quality control standards.
P. HOLIDAYS
StarTek shall observe the following holiday schedule for managers,
trainers, service specialists and CCEs. VSTR shall compensate StarTek
for holiday rates as identified in the PRICING SCHEDULE set forth in the
Agreement.
New Year's Day
Victoria Day
Canada Day
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Labour Day
Thanksgiving Day
Christmas
Q. STAFFING REQUIREMENTS
StarTek agrees that all managers shall be full-time StarTek employees.
StarTek will use commercially reasonable efforts to ensure that each
person assigned to a function has the necessary functional and
VSTR-related training to successfully perform the function. In addition,
before a function is performed by an individual assigned to that
function, StarTek shall verify that the necessary skills have been
attained through the use of certification of skills program. StarTek
shall also ensure that all persons who interact with the customers
maintain their VSTR-related skills through quarterly certification
process. In support of this process, StarTek will do the following:
- Team leaders/supervisors shall go on-line to support
customer calls each * for at least * to maintain their
skills. The remainder of their time shall be used to
support CCE development, and to otherwise assist StarTek
employees to perform the Services.
- Instructional analysts shall go on-line to support
customer calls each * to maintain their skills.
- Managers, lead representatives, team leaders/supervisors
and trainers must be full-time employees of StarTek and
must have completed VSTR National Standard Curriculum
Training.
- Managers will monitor a minimum of * per CCE *.
R. RIGHT OF AUDIT.
STARTEK shall keep complete and accurate in all material respects
records and documentation to substantiate the amounts claimed in any
invoice, which records shall be made available to VSTR for audit as set
forth below. During StarTek's normal business hours and upon * prior
written notice, STARTEK shall make its records available for audit by
VSTR or any authorized representative of VSTR during the term of this
Agreement and * after completion of the Work or earlier termination of
this Agreement, whichever occurs first.
S. STAFFING
StarTek represents and warrants it will furnish qualified candidates to
perform the Work contained herein.
Should VSTR reasonably request StarTek to remove any personnel working
under this Agreement StarTek shall comply with such request, *. (Unless
such request is in violation of any applicable law.)
T. BUSINESS CONTINUITY
Prior to the launch of the Services, StarTek will develop and provide to
VSTR a comprehensive business continuity plan to mitigate risk factors
associated with the provision of the services covered by this Agreement.
This plan will outline how StarTek will maintain the operational
capability to resume business operations within * when circumstances
cause an unexpected interruption in service delivery, including the
facilities, equipment, procedures, and strategy employed by StarTek to
quickly and safely re-establish service to its VSTR customers. Given the
critical nature of the activation call type encompassed by this
agreement, StarTek's plan will provide for continued operation through a
back-up facility and/or equipment.
U. TERMINATION FOR BREACH
Except as otherwise provided herein, if a party breaches a material
provision of this Agreement and does not cure the breach within * days
after written notice by the non-breaching party, the non-breaching party
may immediately terminate this Agreement.
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V. STARTEK'S WARRANTIES AND COVENANTS
StarTek hereby represents, warrants and covenants as follows:
a. StarTek is financially solvent, able to pay its debts
and possesses sufficient working capital to provide
and complete the Services in accordance with this
Statement of Work.
b. StarTek warrants that it shall not fail to comply with
all applicable registration and licensing requirements
to enable StarTek to perform the Services required
under this Agreement.
c. StarTek has the experience and skills necessary to
perform and provide the services required under this
Agreement. All Services provided by StarTek shall be
performed (i) in a professional manner, commensurate
with that which is customary in the industry, (ii) in
compliance with all applicable federal, state and
local laws, rules, regulations and ordinances and,
(iii) in compliance with VSTR's policies as are set
forth on the date hereof. StarTek's performance of the
Services will not violate any agreement or obligation
between StarTek and any third party.
d. StarTek shall not fail to have all the necessary
rights and licenses to use all software and hardware
provided by it to perform the Services hereunder, and
its performance of the Services and use of all
software and hardware in connection therewith will not
infringe any trade name, trade mark, services,
copyright, patent, trade secret, or other intellectual
property or proprietary right of any third party.
e. Subject to Section BB, the Services will conform to
the requirements of this Statement of Work and will
continue uninterrupted during the term hereof.
f. All information supplied by StarTek shall be accurate
and complete in all material respects.
W. DISCLAIMER OF WARRANTIES
Unless otherwise expressly provided herein, STARTEK MAKES NO WARRANTY TO
VSTR OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY,
COMPLETENESS, OR FITNESS FOR ANY PURPOSE OF ANY SERVICE PROVIDED
HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES BY STARTEK ARE HEREBY EXCLUDED AND DISCLAIMED.
X. INDEMNIFICATION
Each party shall indemnify, defend and hold the other party and its
successors, assigns, agents and employees harmless from and against any
and all third party actions, causes of actions, claims and demands
(collectively "Third Party Claims") and any costs, liabilities, expenses
and damages, including costs and attorneys' fees, arising out of or
relating to any Third Party Claims that, if true, would constitute a
breach of any representation, warranty or obligation of a party set
forth in this Statement of Work or the Agreement.
Y. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS, NOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER ANY PARTY HAS
BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES. IN ADDITION, IN NO
EVENT SHALL EITHER PARTY'S LIABILITY FOR DAMAGES UNDER THE AGREEMENT AND
THIS STATEMENT OF WORK, REGARDLESS OF THE FORM OF ACTION, EXCEED $*.
AA. INVOICES AND PAYMENT
All invoices for payment shall be submitted regularly but not less than
* to VSTR for payment. The parties shall agree on an initial format for
invoices. In the event VSTR requires a change to the initial format it
will
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so notify StarTek upon * written notice. The initial format for each
invoice shall include the number of employees performing the Services,
the hours and minutes worked, service levels and billing rates. All
invoices shall be supported by appropriate documentation and per minute
charges shall be validated by switch reports. In the event that VSTR
requires additional information it will provide Startek with * prior
written notice of its request for such additional information.
VSTR shall pay all properly formatted and documented undisputed invoices
within * of receipt.
Subject to VSTR's prior written approval, VSTR shall reimburse StarTek
for all necessary and reasonable travel expenses related to the
performance of the Services, including meals, lodging transportation,
car rental and incidental expenses. All such expenses shall be supported
by documentation, and shall be in accordance with VSTR's guidelines.
Any undisputed amounts not paid within * of VSTR's receipt shall bear
interest at the rate of * per *, but will not exceed the maximum amount
allowed by law. Payment of interest shall be StarTek's sole remedy for
any claimed breach by VSTR of its payment obligations hereunder; until
any undisputed amount remains unpaid * from receipt of original invoice
by VSTR.
VSTR agrees to review each invoice promptly and to notify StarTek of any
billing dispute within * of receipt of the invoice. If VSTR does not
report a dispute within * following VSTR's receipt of an invoice, VSTR
shall have waived its right to withhold payment while the invoice is
being disputed. VSTR further agrees to pay any sales, gross receipts,
use, excise, access, bypass or other local, state and federal taxes and
charges, however designated (excluding taxes on StarTek net income), in
connection with the provision, sale, or use of the Services provided
hereunder.
.
BB. SYSTEM DOWNTIME; FORCE MAJEURE
In the event StarTek determines that system maintenance is necessary,
StarTek will notify VSTR of the need for such maintenance and will
obtain the prior written approval from VoiceStream to schedule such
maintenance. All routine maintenance shall be scheduled during off
system hours. In no event shall interruption for system maintenance
constitute a failure of performance by StarTek if performed in
accordance with this Section BB.
Except for VSTR's obligation to make payments for amounts due, each
party shall be excused from performance hereunder as a result of causes
beyond its reasonable control. Such causes shall include without
limitation acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental regulations imposed after the fact, fire,
communication line failures of third parties, vandalism, power failures,
cables cut by third parties, earthquakes, floods or other similar
catastrophes; failure of the VSTR system or the Internet not related to
StarTek's actions or inactions, any law, order, regulation, direction,
action or request of any governmental entity or court or civil or
military authority having jurisdiction over either of the parties,
national emergencies, insurrections, riots, wars, strikes, lock outs, or
work stoppages. In the event of delays for * or more as a result of a
force majeure, either party may terminate this Statement of Work and the
Agreement by giving written notice to the other party.
Notwithstanding the foregoing or anything in this Statement of Work to
the contrary, StarTek shall take commercially reasonable steps to ensure
that the Services shall continue without interruption due to a StarTek
systems failure during the term of the Agreement by implementing
security features and disaster recovery plans reasonably necessary to
provide the Services with an up-time of * (not including scheduled
maintenance) which shall include the following: appropriate redundant
equipment, software and systems, alternate means of call routing, backup
call allocation, backup generator power and the like.
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CC. OWNERSHIP OF MATERIALS
Each party retains any and all rights to its own previously existing
information, software and/or developments and to its own information,
software and or developments that are created separately from and
independent of its activities under the Agreement. Except as
specifically set forth in this Statement of Work, neither party obtains
rights to information provided by the other solely by its access to or
use of the information in performing its obligations or exercising its
rights hereunder.
As between VSTR and StarTek, VSTR will own exclusively all data
collected as a direct result of the Services provided hereunder. VSTR
covenants that it will use the data collected by StarTek in accordance
with all applicable law, rules and regulations.
Neither party is granted any license in intellectual property that is
owned or developed by the other party.
DD. CONFIDENTIALITY
The parties acknowledge that each may be given access to certain
confidential or secret information and material relating to or owned by
the other, including but not limited to financial information, customer
lists, information pertaining to VSTR or StarTek customers, files and
other information regarding that party's business, organization,
operations, and plans in the course of the performance under the
Agreement. Such information and material shall be the sole and exclusive
property of the provider of such information, and each party agrees that
during the term of the Agreement and for * thereafter, the receiving
party will not disclose such confidential or secret information or
material, or the terms of the Agreement, to any governmental agency,
person, entity, firm, or corporation, or use confidential or secret
information or material except in furtherance of the Agreement, without
the express prior written consent of the other party. This section shall
not apply to any information a) previously known to the receiving party
free of any obligation to keep it confidential, b) that has been or
which becomes publicly known through no wrongful act of the receiving
party, c) which is rightfully received from a third party who is under
no obligation of confidence to either party, d) which is independently
developed by the receiving party without resort to Information what has
been disclosed pursuant to the Agreement or e) is required to be
disclosed in order to comply with applicable laws or administrative
process or any governmental or court order; provided, however that the
party that is subject to such compelled disclosure shall give the other
party prompt prior notice of such compelled disclosure so that the other
party may seek to protect such information. This Section shall survive
termination of the Agreement.
EE. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties.
FF. MODIFICATIONS
This Agreement may be modified only in writing executed by both parties
by a duly authorized representative, which in the case of VSTR shall be
a Vice-President or higher.
GG. ASSIGNMENT
StarTek acknowledges that the Services to be rendered by StarTek are
unique and personal. Accordingly, StarTek may not assign any of
StarTek's rights, including the right to receive payments, or delegate
any of StarTek's duties or obligations under this Agreement without the
prior written consent of VSTR. Notwithstanding the foregoing, nothing in
the Agreement or this Statement of Work shall prevent StarTek from
subcontracting the Services to any subsidiary or affiliate. VSTR may
assign its rights hereunder upon its sole discretion, subject to
StarTek's verification of assignee's ability to fulfill the financial
obligations under this Agreement. This Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of VSTR.
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HH. PUBLICITY
Except as required by law, including state and federal securities laws
applicable to StarTek as a public company, StarTek will not disclose the
existence of this Agreement, or make any disclosure to any third party
concerning its business relationship with VSTR, including any press
releases, without the prior written approval of VSTR.
II. GOVERNING LAW
This Agreement shall be governed by and construed according to the laws
of the State of Washington, without regard to the conflict of laws or
choice of law provisions thereof. Venue in any action brought with
respect to this Agreement shall be in King County, Washington, and each
party consents to the jurisdiction of the courts sitting therein.
JJ. ERROR RATE AND FRAUD
Error rate on Activation's shall not exceed *. VSTR error rates will be
computed from data quality reports and VS Reports in the following
areas: Credit Class, Dealer Code, MISDN assignment, Rate Plan and
features and all criteria as specified in the Activation Verification
Database, or similar application approved by VSTR. VSTR and StarTek will
jointly develop or attain an appropriate application for measuring data
quality. StarTek will not be considered in breach for an error rate on
Activation's less than or equal to * for the first * of StarTek handling
calls. Associated financial penalties will be waived for this first *
period. VSTR is responsible for providing StarTek detailed error reports
by occurrence within 4 business days of occurrence. Both parties agree
to create a mutually agreed upon Program Management Report and process,
with a trial period of * and mutual acceptance prior to the
implementation.
All fraud detected by VoiceStream Fraud Management Operations Center
will be researched within * upon receipt of notification. Fraud
management will provide a documented e-mail including dates of
violation, representatives name/SAMSON ID, issue in question and
recommendation for ramification of employee's action. A tracking
spreadsheet will be updated on a weekly basis by designated
representative of StarTek and sent to Fraud management for reconciling.
StarTek will be held liable for any revenue loss due to fraudulent
activity by a StarTek representative. VSTR holds all rights to remove
any representative from the VSTR project.
KK. REPORTING
StarTek shall provide attached customized reports (or mutually
agreed-upon successors) in the time frame specified in Section N.
LL. BREACH OF SERVICE LEVELS BEYOND THE FIRST * OF HANDLING CALLS
In the event that StarTek performs any of the Service Level Objectives
at Level 3 or greater, as specified in Exhibit B, for a consecutive
period of *, StarTek shall be in breach of this Agreement and VSTR may
terminate this Agreement if StarTek fails to cure the breach after five
days notice to cure.
In the event that StarTek performs any of the Service Level Objectives
at Level 1 or 2, as specified in this Exhibit B, for a consecutive *
period or longer, StarTek shall be in breach of this Agreement. StarTek
shall prepare a plan to cure the breach and shall have * in which to
cure the breach. In the event that StarTek fails to cure the breach
within the * period, VSTR may terminate the Agreement for StarTek's
breach.
MM. SERVICE LEVEL ADJUSTMENTS
*
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*
A. The levels of * Adjustment Percentages for each Service Objective shall
be consistent with the levels of StarTek's performance as set forth in
the * Adjustment Thresholds.
The Service Objectives Penalty for each * shall be calculated by adding
the * Adjustment Percentages of the Service Objectives (the "Total
Percentage"). The Total * Agent Call Handling Revenue (defined as items
1, 5-9 of Pricing Schedule), multiplied by the Total Percentage, shall
equal the Service Objectives Penalty for the month. The Total * Agent
Call Handling Revenue shall include both staffed agent hours charges and
agent call handling minute's charges appearing on the invoice for the *
during which StarTek failed to meet the Service Objectives. The Service
Objectives Adjustments shall not include those days where actual call
volume or minutes is more than * greater than call volume or minute
volume Forecasts as described in Exhibit A.
*
The total adjustment based on the above shall not exceed * per * and
will be waived as it applies to Speed of Answer by VSTR for * in which
employment levels required to support the Call Volume Forecast exceeds
by more than * the employment level required to support the Call Volume
Forecast of the previous *.
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