Master Services Agreement between PeopleSupport, Inc. and Vonage Holdings Corp. (April 9, 2004)
PeopleSupport, Inc. and Vonage Holdings Corp. entered into this agreement on April 9, 2004, for PeopleSupport to provide contact center and related support services to Vonage. The agreement outlines the scope of services, pricing, payment terms, and procedures for adding or changing services. It sets an initial one-year term with automatic renewals unless either party gives notice. The agreement also details conditions for termination, including early termination rights and payment obligations. Both parties have ongoing responsibilities, including confidentiality and payment, that survive the end of the agreement.
PeopleSupport, Inc. | Vonage Holdings Corp. | |
1100 Glendon Avenue, Suite 1250 | 2147 Route 27 | |
Los Angeles, CA 90024 | Edison, NJ 08817 | |
Hereinafter referred to as PeopleSupport | Hereinafter referred to as Client |
1. | SERVICES | |
A. | Description. PeopleSupport will provide to Client the services set forth herein and in Exhibit A attached hereto (Services) out of one or more of its contact centers. If and as specified in the Statement of Work (SOW) attached hereto as Exhibit A, the Services will include the provision of equipment, software, telecommunication lines and other facilities specified as well as the training and human support specified in the SOW. In support of the Services, Client will provide the items specified as its responsibilities herein, and in the SOW. | |
B. | Additional SOWs and Change Orders. The parties may mutually agree on additional SOWs, which will reference the terms and conditions of this Agreement and will become effective upon mutual execution thereof. During the performance of the Services, Client may request in writing, and PeopleSupport may agree, to make material changes in this Agreement, or in the Services, and/or to add services which are not described in a SOW. In addition, changes to the Services may be necessary due to changes in the Clients volume, pattern, or types of its services and/or products, and/or changes to the Client Provided Technology (defined in Section 4D). Such additional or materially changed services (Additional Services) will be subject to a written, mutually agreed-upon change order to an SOW (Change Order), including applicable pricing and terms. Upon the mutual execution of any such Change Order, the Services will be deemed to include such Additional Services. Unless and until the parties mutually execute such Change Order, only the terms of this Agreement and the applicable SOW will apply. The parties agree that an authorized representative of Client may indicate its acceptance of Change Orders either in accordance with the Notices provision of this Agreement or by facsimile signature, each of which shall be subject to countersignature by an authorized representative of PeopleSupport. | |
2. | TERM AND TERMINATION | |
A. | Term. The initial term of this Agreement (the Term) will commence on the Effective Date and will extend for one (1) year from the date the Services are deemed operational (e.g first live date of Service). The Agreement, including Exhibit A, will automatically renew for successive *** year terms unless either Party provides written notice of its intent not to renew at least *** before the expiration of the initial Term or at least *** before the expiration of any subsequent renewal Term, or unless terminated earlier as otherwise provided herein or in Exhibit A. The term of additional SOW(s) will be as set forth in such SOW(s) | |
B. | Effect of Termination. Except as otherwise provided herein, in the event either Party terminates an SOW for an Event of Default pursuant to Section 8, unless the termination expressly applies to all other SOWs or to the operation of the Agreement as a whole, such termination as to one SOW will not constitute termination with respect to any other SOW(s) or the Agreement. | |
C. | Minimum Payments. In the event that PeopleSupport terminates one or more SOWs due to Clients Event of Default pursuant to Section 8, or if Client terminates one or more SOWs in violation of this Agreement or of the applicable SOW, Client will pay to PeopleSupport ***, as specified herein or in the applicable SOW. | |
D. | Termination Within First Thirty Days. Notwithstanding anything to the contrary in this Agreement or in any SOW, Client may, at any time on or before the thirtieth (30th) day after the initial minimum number of *** FTE employees are fully trained, out of nesting and begin performing services pursuant to the initial SOW hereunder, terminate this Agreement or any SOW for convenience and upon *** days written notice provided that in the event of such termination for convenience, Client shall pay to PeopleSupport, as PeopleSupports *** remedy for such termination, the sum of *** plus charges for those Services listed of Appendix A of SOW #1 rendered through the effective date of termination calculated in accordance with the prices set forth on that Appendix irrespective of any minimum commitment, which shall be payable within ten (10) business days after the effective date of such termination. |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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E. | Survival. Any and all obligations under this Agreement, including any SOW then in effect which, by their nature should reasonably survive the termination or expiration of this Agreement or such SOW, will so survive, including, but not limited to, Clients payment obligations, and the obligations of both Parties arising from the confidentiality and non-solicitation provisions of this Agreement. | |
3. | PRICING AND PAYMENT | |
A. | Prices and Invoicing. Client agrees to pay PeopleSupport for the Services according to the prices set forth below and in any mutually agreed SOW or Change Orders. Amounts payable are subject to the adjustment(s) by PeopleSupport or Client as specified in the SOW or Change Orders, with respect to each SOW. Client agrees to pre-pay to PeopleSupport the ***, as specified in an SOW ***, on or before the *** day of each calendar month (Minimum Monthly Fee), notwithstanding the volume of Services actually provided in a month. The Minimum Monthly Fee is not subject to any discounts. If the first or last month of the Term is a partial month, the Minimum Monthly Fee for such month may be prorated based on a thirty (30) day month. At the end of each calendar month, PeopleSupport will invoice Client for Services actually rendered in such month, reflecting a credit for the Minimum Monthly Fee pre-payment. All amounts payable, as set forth on each invoice, will be itemized by the applicable Service and by the units set forth in the applicable SOW or Change Order, in sufficient detail to make clear to Client how such amounts were calculated. Payments are due within *** following date of invoice. Billing per FTE committed by Client will be on a forty hours week basis. | |
B. | Reimbursement for Expenses. Subject to Clients prior written approval of the incurrence and amount of such expenses or charges, Client will reimburse PeopleSupport for: a) all reasonable and actual travel and related living expenses incurred by PeopleSupport related to the Services, in accordance with PeopleSupports standard travel guidelines, provided that such reimbursement will be solely for travel expressly requested by Client and only to the extent that such travel was not reasonably foreseeable as necessary in carrying out PeopleSupports responsibilities under an SOW or Change Order at the time such SOW or Change Order was agreed to; b) if and as expressly specified in Exhibit A and/or an applicable SOW or Change Order, any telecommunications, installation, maintenance and recurring charges for equipment and facilities acquired for the provision of the Services to Client and used solely for that purpose that are not Client-Provided Technology as defined below, and c) any other expenses or charges expressly specified in an applicable SOW or Change Order or otherwise authorized in writing by Client. | |
C. | Electronic Invoicing and Wire Transfer Payment. Client acknowledges that invoices from PeopleSupport will be sent electronically, and Client agrees to make all payments to PeopleSupport via wire transfer. Payments of amounts due will be wired via the U.S. Federal Reserve System to: |
D. | Effect of Non-Payment. In the event any amounts due are not paid within *** after they are due, such amounts will accrue late charges at the lesser of the rate of *** per month or the highest rate allowed by applicable law, from the due date. Payments subsequently received from Client will be first applied to such late charges, then to amounts past due, and then to current amounts due. | |
E. | Taxes. Client will be solely responsible for, and will pay, any use, excise, sales or privilege taxes, duties, value added taxes, fees, assessments or similar liabilities however denominated which may now or hereafter be levied on the provision by PeopleSupport of Services, software, equipment, materials or other property (tangible or intangible) provided under this Agreement, chargeable to or against PeopleSupport by any applicable government authority. PeopleSupport will separately invoice any such taxes of which it is aware on its invoice. Should PeopleSupport be required to pay or should PeopleSupport pay these taxes, fees, assessments or similar liabilities, Client will promptly reimburse PeopleSupport for such payments upon receipt of invoice. The foregoing will not apply to any taxes based upon the net income, employment or property of PeopleSupport or franchise or similar fees paid by PeopleSupport for the privilege of doing business in any jurisdiction. | |
F. | Right to Dispute Invoices. Client will not withhold any undisputed portion of any amounts payable hereunder but may withhold disputed amounts upon written notice of a dispute. Unless Client provides PeopleSupport with notice in writing of a dispute regarding the amounts due hereunder within *** after Clients receipt of the invoice on which such amounts appear, including the basis for such dispute, the invoice will be deemed approved by Client and the right to dispute any such amounts invoiced will be deemed waived. Unless PeopleSupport invoices Client for Services or other charges within *** after such Services are rendered or such other charges are incurred, all such Services and/or other charges will be deemed waived and Client will have no obligation to pay them. | |
4. | CLIENT OBLIGATIONS FOR INFORMATION AND TECHNOLOGY | |
In order for PeopleSupport to provide the Services, Client agrees to provide the following to PeopleSupport, as and when reasonably requested by PeopleSupport: | ||
A. | Volume, Pattern and Handling Forecasts. Client will provide good faith, volume, pattern and handling time forecasts as and to the extent specified in the applicable SOW; provided that PeopleSupports sole remedy for erroneous forecasts shall be as set forth in the applicable SOW. All such forecasts will be |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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deemed Clients confidential information subject to PeopleSupports obligations as set forth in Section 7. PeopleSupport shall reasonably determine the number of persons that are required to be trained in light of such forecasts, and will not be required to have prior approval from Client to hire and/or train them, though PeopleSupport will make every reasonable effort to communicate any planned training with Client, and Client shall have no obligation with respect thereto except as expressly specified in an applicable SOW. | ||
B. | Forecasts for Special Promotions and Advertising. Client will provide notice of and forecasts related to all media promotions (including, but not limited to, radio, television, direct mail, Internet and other media) within a reasonable amount of time before the start of the promotion, so that PeopleSupport can make appropriate staffing or other adjustments and so that the parties may agree on appropriate Change Order(s), if necessary. All such notice and forecasts will be deemed Clients confidential information subject to PeopleSupports obligations as set forth in Section 7. | |
C. | Product Literature and Related Materials. Client will provide all information, sales and product literature (including updates and/or modifications), and if applicable, samples and any other materials related to Clients services and/or products, which are reasonably necessary for PeopleSupport to provide the Services. PeopleSupport may copy all such information, sales and product literature and other materials solely for purposes of providing Services. | |
D. | Client-Provided Technology. If and to the extent specified in Exhibit A, Client will provide any necessary hardware, software, telecommunication systems and similar materials (collectively, the Client Provided Technology), and the right to use such Client Provided Technology, solely in order to perform the Services, including as specified in Exhibit A: |
i) | Software and hardware specific to Client (as defined in Exhibit A), including legacy systems, terminal emulation and required applications not already part of PeopleSupports infrastructure; | ||
ii) | Maintenance for the Client-Provided Technology; and | ||
iii) | All training materials and any additional training reasonably required by PeopleSupport and approved by Client with respect to new or revised Client-Provided Technology. |
Client will be responsible for the installation of the Client-Provided Technology and for the maintenance and repair of, and any changes, updates and upgrades to the Client-Provided Technology. Client agrees to provide to PeopleSupport upon request copies of any licenses or other legal requirements applicable to the Client-Provided Technology, and PeopleSupport agrees to comply with all such licenses and other legal requirements. In the event it becomes necessary as specified in any SOW or Change Order for Client to provide any additional Client-Provided Technology, including increasing the scope of use of any licensed software, Client will obtain and provide to PeopleSupport such additional Client-Provided Technology. | ||
E. | Information Necessary for the Performance of Services. The information provided by Client to PeopleSupport, as required hereunder, including necessary instructions for communications with Clients prospective customers and/or customers, will be accurate to the best of Clients knowledge and belief. Client will respond promptly and accurately to all reasonable requests for such information made by PeopleSupport, and provide relevant new data and regular updates of changes to data previously provided. PeopleSupport personnel will not make any representations to any person that are inconsistent with the information provided by Client, and PeopleSupport will be solely responsible for any misrepresentations made by its personnel to the extent such misrepresentations are not contained in information provided by Client. Without limiting the generality of the foregoing, Client agrees to provide necessary login identification and passwords for any of its applications to be used by PeopleSupport as specified in an applicable SOW or Change Order, within no more than two (2) business days following PeopleSupports request. In addition, Client shall provide PeopleSupport with reasonable access to any of its systems, software and files provided to PeopleSupport and/or installed at PeopleSupports facilities. PeopleSupport shall be entitled to rely upon written information or instructions received from authorized Client personnel, including those sent electronically via email. | |
5. | JOINT OBLIGATIONS OF THE PARTIES | |
A. | Contact Person. Each Party will designate a single point of contact with the authority to discuss and resolve day-to-day issues and the relations between the Parties relating to the Services, such as the provision of information, reports, and the Client-Provided Technology. Such contact person may be changed upon written notice to the other Party. | |
B. | Compliance with Law and Agreements. Each of the Parties will perform its obligations under this Agreement in compliance with all applicable laws, ordinances and regulations, and will obtain and maintain in full force and effect, any permits, licenses, consents, approvals and authorizations necessary for the performance of its obligations hereunder. To the extent that Client is responsible for the provision of information regarding its prospective customers and/or customers, and the provision of scripts or other instructions to be followed by PeopleSupport, Client will be responsible for confirming that such lists and/or instructions comply with applicable law and that, by following Clients instructions, PeopleSupport is not violating any law or regulation, and is not subject to any obligation to any third party. PeopleSupport will be responsible for ensuring that its personnel follow all instructions from authorized Customer personnel. To the extent that either Party requires the license or other consent of a third party to provide software, data, materials, or other items to the other Party hereunder, the Party providing such items shall have and maintain any such consent, in substance and form reasonably acceptable to the other Party, and shall provide evidence of such consent to the other Party, upon request. |
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C. | Further Documents and Cooperation. Each Party will execute such other documents, and provide such cooperation as the other Party reasonably requests, in order to give full effect to the provisions related to this Agreement, including, but not limited to, the provisions of this Agreement related to the ownership of rights. | |
D. | Timeliness of Compliance. Any delay by a Party in the performance of its obligations will extend the time for performance by the other Party of such of the other Partys obligations that are affected by such delay by an amount of time reasonably required to compensate for such delay. | |
6. | OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS | |
A. | Pre-Existing and Independently Developed Works. Each Party will retain all rights in any software, ideas, concepts, know-how, processes, development tools, techniques or any other proprietary material or information that it owned or developed prior to the date of this Agreement, or acquires or develops after the date of this Agreement without use or incorporation of the intellectual property of the other Party. | |
B. | Clients Ownership Rights. As between PeopleSupport and Client, Client will own all Client-Provided Technology and customer data provided and/or collected pursuant to the performance of Services. During the term of this Agreement and/or the applicable SOW, Client grants to PeopleSupport a non-exclusive license and right to use such Client-Provided Technology and customer data, solely for purposes of the performance of Services. PeopleSupport will not reproduce or distribute the Client-Provided Technology, or copy it to any server or location for reproduction or distribution, for any other purpose whatsoever. People Support may not reverse engineer, decompile or disassemble the Client-Provided Technology. Subject to any third party rights or restrictions and the other provisions of this Section, Client will own any deliverables that are specified to be owned by Client in the applicable SOW, which: (i) are custom developed specifically for Client, and (ii) are paid for by Client. PeopleSupport will deliver such Client-owned deliverables, and return all Client-Provided Technology, to Client upon expiration or termination of this Agreement or the applicable SOW. | |
C. | PeopleSupport Ownership Rights. PeopleSupport retains all right, title and interest in and to all software development tools, know-how, methodologies, processes, technologies and/or algorithms used in performing the Services which are based on trade secrets or proprietary information of PeopleSupport or are otherwise owned or licensed by PeopleSupport. Insofar as PeopleSupport is in the business of creating innovations in its industry, PeopleSupport will be free to use any ideas, concepts, know-how and other intellectual property which are developed or created solely by PeopleSupport in the course of performing the Services, provided that PeopleSupport will not be permitted to incorporate any Client-Provided Technology or other Client intellectual property therein or to create any derivative works of Client-Provided Technology or other Client intellectual property. PeopleSupport will retain ownership of any PeopleSupport-owned intellectual property rights as incorporated into software or tools that are used in producing any deliverables, even if such ideas, concepts, know-how or other intellectual property is used or embedded in such deliverables, provided that Client is hereby granted a royalty-free, nonexclusive license to .such intellectual property rights to the extent incorporated into any such deliverables. Client will not reproduce or distribute the PeopleSupport intellectual property, or copy it to any server or location for reproduction or distribution, for any purpose other than to make use of such deliverables or otherwise in connection with its receipt of Services and the performance of its obligations under this Agreement. Client may not reverse engineer, decompile or disassemble the PeopleSupport intellectual property. | |
D. | Permitted Use of Marks. Each Party warrants and represents that it has full right, title and interest in and to all trade names, trademarks, service marks, symbols and other proprietary marks (Marks) which it provides to the other Party, if any, for use related to the Services, and that any Marks provided by a Party will not infringe the marks of any third party. As necessary for the performance of the Services, the providing Party grants to the other Party the non-exclusive right to reasonably utilize the Marks solely in connection with the performance of the obligations of the parties hereunder, including, but not limited to, internally on signs or posters (e.g., to identify Clients part of a facility, if applicable, or for internal promotions), in PeopleSupport newsletters, closed-circuit television and training. Any specific use by PeopleSupport of Clients Marks shall be subject to Clients written approval, which may be granted or withheld by Client in its sole discretion, and PeopleSupport will adhere to any written guidelines for the use of Clients Marks that may be promulgated by Client from time to time. Each Party agrees to use the other Partys Marks only for the agreed-upon purposes. Upon reasonable request, the providing Party will provide to the receiving Party, camera and/or video ready art, and/or digital tiff, eps or bitmap files of the providing Partys Marks. | |
7. | CONFIDENTIALITY | |
A. | Confidentiality. Each Party, including such Partys employees, agrees to keep confidential the other Partys confidential and proprietary information and not use it for any purpose other than to perform its obligations under this Agreement. Each Party agrees that the following will be deemed to have been received in confidence and will be used only for purposes of this Agreement: (i) all information communicated to it by the other and identified as confidential, whether before or after the Effective Date, (ii) all information identified as confidential to which it has access in connection with the Services, whether before or after the Effective Date, (iii) all information, whether or not so identified, that a reasonable businessperson would understand to be confidential by reason of its nature or content; and (iv) the terms of this Agreement and the Parties rights and obligations hereunder. Each Party agrees to use the same means as it uses to protect its own confidential information, but in no event less than reasonable care, to prevent the disclosure and to protect the confidentiality of the confidential information of the other Party. No such information will be disclosed to third parties by the recipient Party without the prior written consent of the disclosing Party; provided, however, that each recipient Party may disclose confidential information of the |
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B. | Exceptions. Notwithstanding the other provisions of this Section, neither Party will be prevented from disclosing the confidential information of the other Party (i) which, at the time of disclosure, was in the public domain, (ii) which was lawfully disclosed on a non-confidential basis by a third party who is not bound by a confidentiality agreement with the other Party, (iii) which is disclosed with the other Partys prior written approval, or (iv) in response to valid legal process, whether issued by a court or administrative or regulatory body or for purposes of legal or regulatory compliance. If confidential information of a Party is required to be disclosed by the other Party pursuant to a requirement of a legal process or for purposes of legal or regulatory compliance, the Party required to disclose the confidential information, to the extent possible, will provide the other Party with timely prior notice of such requirement and will coordinate with such other Party, at such other Partys expense, in an effort to limit the nature and scope of such required disclosure, where appropriate. Upon the expiration or termination of this Agreement for any reason, all such confidential information (and all copies thereof) owned by the disclosing Party will be returned to the disclosing Party or will be destroyed, except that any archival copies may be retained, subject to the continuation of the confidentiality obligations hereunder. | |
8. | EVENTS OF DEFAULT | |
Subject to any applicable notice and cure provisions, the following are Events of Default under this Agreement, and give rise to the remedies set forth herein: | ||
A. | Failure to Pay Amounts When Due. Clients failure to pay amounts payable hereunder when due shall constitute an Event of Default. Client shall have ten (10) days after receipt of written notice to cure any such payment default. The foregoing notwithstanding, PeopleSupport shall have the right to suspend Services, without the provision of further written notice, if Client fails to cure such payment default within such ten (10) day period. | |
B. | Failure of a Party to Perform Its Material Obligations. A Partys failure to substantially perform any other material obligation under this Agreement, including any SOW, will constitute an Event of Default. In the event that a Party fails to remedy such an Event of Default within thirty (30) days after receipt of written notice thereof, the non-defaulting Party may suspend or terminate the affected SOW, provided that, if such Event of Default cannot practicably be cured within such thirty 30-day period and is susceptible to a cure, then the defaulting Party will not be considered in default if it commences to cure within the initial thirty (30)-day period and in good faith diligently and continuously proceeds to cure the default. | |
C. | Bankruptcy and Similar Proceedings. The following are additional Events of Default, requiring no written notice or cure period, and the non-defaulting Party may terminate this Agreement immediately in the event of any of them: |
i) | The commencement of any involuntary proceeding in bankruptcy or insolvency under federal or state law or the appointment of a receiver or an assignee for the benefit of creditors for a substantial portion of a Partys assets which is not dismissed or terminated within sixty (60) days after its initiation; or | ||
ii) | The commencement of any voluntary proceeding in bankruptcy or insolvency under federal or state law, or the voluntary appointment of a receiver or an assignee for the benefit of creditors; or | ||
iii) | A Party ceases to do business in the normal course, or is unable to pay its debts when they become due. |
9. | LIMITED WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY |
A. | Limited Warranty. PeopleSupport agrees to perform the Services with a reasonable degree of care, skill and competence, and in accordance with any and all performance objectives established by the Parties in any SOW. PeopleSupports sole liability, and Clients sole remedy under this limited warranty, will be as follows: (i) PeopleSupport will re-perform any non-conforming Services within after receipt of notice from Client as to such non-conformance; and (ii) in the event of *** or more months of such non-conformances under *** of the SOW within *** month period (except where the applicable service level is measured on *** basis, in which case the standard for termination is *** in any rolling *** period), Client may terminate the affected SOW(s) or this Agreement without liability upon *** written notice to PeopleSupport. Client will monitor Services in order to determine whether PeopleSupport has met its warranty obligation hereunder. In the event Client does not provide notice to PeopleSupport of such non-conformance within ninety (90) days after performance of Services, such Services will be deemed finally accepted by Client. |
B. | DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES ARE PROVIDED AS IS, AND PEOPLESUPPORT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. PEOPLESUPPORT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR COMPLETELY SECURE, DESPITE THE REASONABLE PRECAUTIONS SET FORTH IN THE APPLICABLE SOW. |
C. | LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING UNDER OR |
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10. | INDEMNIFICATION |
A. | Mutual Indemnification for Certain Third Party Claims. Each Party (Indemnifying Party) agrees to indemnify, defend and hold harmless the other Party, including its affiliates, and its and their respective shareholders, partners, members, directors, officers, attorneys, representatives, employees, and agents, and its and their successors and permitted assigns (collectively Indemnified Parties) from any and all third party suits and claims for losses and threatened losses, including any criminal, administrative, or investigative action or proceeding, arising from or in connection with, or based on allegations (i) arising out of or based on the Indemnifying Partys breach of the obligations under Section 5(B) (Compliance with Law); (ii) relating to the death or bodily injury of any person caused by the tortious conduct of the indemnifying Party; (iii) the damage, loss or destruction or any real or tangible personal property caused by the tortious conduct of the Indemnifying Party; or (vi) asserting infringement of any third party intellectual property right by any patent, copyright, trademark, service mark, trade name, trade secret or similar proprietary rights regarding intellectual property (or license, access or use rights therein) provided by the Indemnifying Party to the Indemnified Party under this Agreement including but not limited to those items provided under Section 4(D) (Client-Provided Technology) and/or Section 4(E) (Information Necessary for Performance of Services). People Support will, in addition, indemnify, defend and hold harmless Client for any misrepresentations made by PeopleSupport personnel to the extent such misrepresentations are not contained in or reasonably derived from information provided by Client. |
B. | Indemnification Procedure. Each Partys obligation to indemnify the other Party pursuant to this provision will apply only to the extent that the Party seeking indemnification: (i) promptly after receipt of notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative action or proceeding involving a claim in respect of which any of the Indemnified Parties will seek indemnification, notifies the Indemnifying Party of such claim in writing; (ii) allows the Indemnifying Party to control, and fully cooperates with the Indemnifying Party in the defense of any such claim; and (iii) does not enter into any settlement or compromise in respect of such claim without the Indemnifying Partys prior written consent. Failure to so notify the Indemnifying Party of a claim will not relieve the Indemnifying Party of its obligations under this Agreement except to the extent that it can demonstrate that it was prejudiced by such failure. |
11. | ADDITIONAL PROVISIONS |
A. | Insurance. Prior to the commencement of Services to be performed hereunder and throughout the Term of this Agreement and any SOW, each of the Parties will procure and maintain commercially reasonable policies of liability and errors and omissions insurance, in such forms as are appropriate based on the nature of the Services and the respective obligations of the parties. During the Term of this Agreement, PeopleSupport will maintain, at its sole expense, all appropriate insurance for its employees, including, required workers compensation, disability, and unemployment insurance. In the event the Service includes the offer or sale of products of or for Client, Client will be solely responsible for providing to PeopleSupport evidence of reasonably appropriate product liability insurance, such as a certificate of insurance naming Client and PeopleSupport as additional insured, as provided by the applicable manufacturer, distributor or other seller of such product. |
B. | Non-Solicitation of Employees. During the Term of this Agreement and for a period of *** after the date of termination of this Agreement, neither Party will knowingly, directly or indirectly, solicit any of the other Partys employees who, in any manner, have worked in the provision of any of the Services. The use of general advertisements which do not target certain employees or groups will not be construed to violate this provision. |
C. | Relationship Between the Parties. PeopleSupport is engaged hereunder solely in the capacity as an independent contractor, and no employment, partnership or joint venture relationship is intended to be created hereby. In no event will either Party have the power to bind the other. |
D. | Force Majeure and Other Delays. For purposes of this Agreement, a Force Majeure will mean a cause outside of a Partys reasonable control including, without limitation, acts of God, acts of war, revolution, riots, civil commotion, acts of a public enemy, terrorism, embargo, acts of government in its sovereign capacity, strikes, lockouts, boycotts, fire, earthquakes, floods or other natural disasters. Except for the payment of moneys when due and owing, to the extent that a Party is unable to fulfill, in whole or part, its obligations hereunder, where such inability arises by reason of an event of Force Majeure, or in the event a Party is unable to perform its obligations due to the failure of the other Party to perform |
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E. | Governing Law and Interpretation. This Agreement will be deemed accepted by PeopleSupport in, and governed by and construed in accordance with, the laws of *** without giving effect to its conflicts of law provisions. As references to the term including or such as shall be construed to mean including but not limited to, and shall not be deemed limiting. In any case where consent is to be requested by a Party, such consent shall not be unreasonably withheld or delayed. |
F. | Waivers. Failure to enforce compliance with any term or condition of this Agreement will not constitute a waiver of such term or condition of this Agreement or the right to subsequently enforce such term or condition in the future. |
G. | Severability. In the event that any provision of this Agreement is held or construed be invalid by any arbitrator or court having jurisdiction over disputes related to this Agreement, such provision will, if reasonable to do so, be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law or, if not reasonable to do so, be deemed to be excluded from this Agreement. In any event, all other provisions of this Agreement will remain in full force and effect. |
H. | Notices. Except as specifically provided elsewhere in this Agreement, all notices required or permitted to be given by one Party to the other under this Agreement will be in writing and will be sufficient if made by: (i) personal delivery; (ii) a commercial or overnight delivery service with proof of delivery; or (iii) registered or certified mail, postage prepaid, return receipt requested, to the Parties at the respective addresses set forth above or to such other person or address as the Party to receive the notice has designated by notice to the other Party. Notices shall be deemed given upon receipt or refusal of delivery. |
I. | Press Release. Upon execution of this Agreement, neither Party may issue any press release or other public statement regarding the execution of this Agreement without the prior written approval of the other Party. Client acknowledges that PeopleSupport may refer to Client as a customer in its customer lists for marketing purposes. |
J. | [INTENTIONALLY LEFT BLANK]. |
K. | Entire Agreement and Integration. This Agreement, and the Exhibits and Attachments hereto constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersede all prior agreements, discussions, proposals, representations or warranties, whether written or oral on this subject matter. This Agreement, including any SOWs, may not be modified except in writing signed by a duly authorized representative of the Parties. References to this Agreement shall be construed to include applicable SOWs, whether attached hereto as Exhibit A, or subsequently agreed upon by the parties and referencing this Agreement. |
L. | Arbitration. Any disputes or claims arising out of or from this Agreement shall be finally settled by binding arbitration in ***, in accordance with the then-current rules and procedures of the American Arbitration Association. The arbitration shall be adjudicated by one (1) arbitrator mutually designated by the Parties or appointed by the American Arbitration Association if the parties fail to so designate an arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The Parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any Party or any other relief in excess of the limitations set forth herein. Without limiting the generality of this Section, any Party may seek temporary or preliminary injunctive relief in a court of competent jurisdiction, but any request for permanent injunctive relief shall be resolved by arbitration according to this Section. The arbitrator shall have the authority to issue injunctive relief, including a permanent or final injunction, and such orders may be confirmed as enforceable judgments in a court of competent jurisdiction. The arbitrators award shall adhere to the plain meaning of this Agreement and to applicable law, and shall be supported by written findings of fact and conclusions of law. |
M. | Attorneys Fees. In any dispute arising under this Agreement each Party will bear its own attorneys fees and other expenses associated with the resolution of the dispute; provided, however, that PeopleSupport will be entitled to recover from the Client all reasonable attorneys fees and other reasonable expenses associated with the collection from Client of delinquent undisputed charges. |
N. | Counterparts. This Agreement may be signed in multiple counterparts, each of which will be considered an original, and all of which will be considered one and the same document. This Agreement may be executed by facsimile signature. |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
7
ACCEPTED BY: | ACCEPTED BY: | |
Vonage Holdings Corp. (Client) | PeopleSupport, Inc. (PeopleSupport) | |
*** | By: \s\ Caroline Rook | |
Name: Caroline Rook | ||
Title: CFO | ||
Date: April 15, 2004 |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
8
9
Inbound Voice Support


ver 1.0
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Contact: | *** | |
Director of Sales | ||
Corporate | 1100 Glendon Avenue | |
Address: | Suite 1250 | |
Los Angeles, CA 90024 | ||
Telephone: | *** | |
Mobile | *** | |
Fax: | (310) 824-6299 | |
Email: | ***@PeopleSupport.com |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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1 INTRODUCTION | 4 | |||
2 SOLUTION OVERVIEW | 5 | |||
2.1 Inbound Voice Support Processes | 5 | |||
2.2 Support Escalation Process | 5 | |||
2.3 Performance Objectives | 5 | |||
2.4 Volume Forecasting and Service Level Agreement | 6 | |||
2.5 Adjustment to Forecasts and Ramp-Up Processes | 7 | |||
2.6 PeopleSupport Operational Capacity Planning | 9 | |||
3 TRAINING | 10 | |||
3.1 Training Approach | 10 | |||
3.2 Ongoing Training after Live Date | 10 | |||
3.3 Staffing Profile and Training Timelines | 11 | |||
4 QUALITY ASSURANCE | 13 | |||
4.1 Quality Assurance Review Process | 13 | |||
5 TECHNOLOGY | 14 | |||
5.1 Technology Architecture and Specifications | 14 | |||
5.2 Voice Technology Support | 15 | |||
5.3 Data Connectivity | 16 | |||
5.4 Client Applications | 16 | |||
5.5 Reporting | 17 | |||
5.6 Escalation of Technology issues | 17 | |||
6 TIMELINE, RESOURCES AND ASSUMPTION | 18 | |||
6.1 Client Project Team | 18 | |||
6.2 Assumptions | 19 | |||
6.3 Change Management and Change Control | 19 | |||
APPENDIX A PRICING | 22 | |||
APPENDIX B TECHNICAL ESCALATION PROCEDURES | 25 |
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Voice Operations
Operating Model | Outsourced | |
Solutions and Services | Inbound Voice Support | |
Voice Support: | ||
PeopleSupport Support Hours | *** | |
Voice Support: | ||
1) *** of calls Answered Within *** | ||
2 *** abandonment rate | ||
3) *** scores to meet or *** | ||
4) *** ratio of *** or *** or *** at least *** | ||
Service Level Agreements | 5) *** on peoplesupport *** to *** or *** | |
6) network and technical uptime of *** on an *** basis | ||
7) *** rate not to exceed *** annualy | ||
8) Average *** less than *** | ||
9) *** rate of *** or higher | ||
Client Operating Hours | 24/7 | |
Languages Supported | English | |
Client Application Platforms | Client Provided Web Applications: | |
*** |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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Program | Systems Used | Tasks | Touch Points | |||
CRM | Ø *** | Ø *** | Ø Inbound Voice |
2. *** .
3. *** .
4. *** .
5. *** .
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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| 1) *** of calls Answered Within *** of calls *** | |
| 2) *** abandonment Rate | |
| 3) *** scores to *** or *** and at *** | |
| 4) *** ratio of at least *** and *** at least *** other *** | |
| 5) *** on peoplesupport *** to *** | |
| 6) network and technical uptime of *** measured *** | |
| 7) *** rate not to exceed *** annually | |
| 8) Average *** less than *** | |
| 9) *** rate of *** or higher |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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a) | To facilitate the appropriate collection of human and technical resources to handle a Substantial Volume Increase, Client must provide reasonable notice to PeopleSupport, but in no case less than *** written notice before the start of the Substantial Volume Increase. The proposed Substantial Volume Increase requirements shall be reasonable under the circumstances and the available resources and technical infrastructure. | ||
b) | PeopleSupport will present Client with a Change Order outlining a detailed capacity ramp up plan (Ramp up Plan) for Clients approval. Client must approve the capacity plan and the terms of the Change Order before PeopleSupport commences with the ramp up. | ||
c) | Performance goals shall be as defined in section 2.3 for a ramp-up period. |
* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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* | CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. |
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| Utilize the Client trainers and facility for the Train-the-Trainer session. | |
| Provide instructors with extensive background in customer service, technical support, and sales, as well as stand up classroom training experience. | |
| Provide customer service, sales and communications training, Client product/program training and pre-certification of agents prior to performing support for Client. | |
| Establish a training and QA structure that supports Clients program requirements. | |
| Create a separate training environment that resembles the live Client environment, including individual workstations equipped with Clients applications. |
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¨ *** | ¨ *** | ¨ *** | ||
¨ *** | ¨ *** | ¨ *** |
| *** | |
| *** . | |
| *** | |
| *** | |
| *** | |
| *** |
*** | *** | *** | *** | *** | *** | |||||
*** | *** | *** | *** | *** | *** | |||||
*** | *** | *** | *** | *** | *** | |||||
*** | *** | *** | *** | *** | *** |
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| A Quality Assurance program designed for the Clients program. Program format will be mutually agreed upon. |
| A dedicated Quality Assurance (QA) team who together with an eReps supervisor will conduct QA monitoring. |
| Weekly voice coaching calibrations between PeopleSupport QA/Operations Team and the Client. |
| The frequency of monitoring will be commensurate with individual eRep performance scores. |
| Development of action plan for agents/teams that fall below the Client QA standard. |
| A Best Practices Training manual |
| A program and eRep score card providing metrics and performance against goals |
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***.
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PeopleSupport will provide and support the following VDNs and routing requirements to support Client:
Function Name | Toll Free Number | Routing | ||
*** | *** | *** | ||
*** | *** | *** |
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*** | *** | *** | ||||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** | |||
*** | *** | *** | *** |
| Client and PeopleSupport will make appropriate personnel available to each other on a timely basis, including a single point of contact with authority to make decisions, discuss and resolve day-to-day issues, to assist in completing deliverables and for coordinating additional resources and sign-off as required. | ||
| Client and PeopleSupport will assign a technical resource to the project to oversee the connectivity, application access and voice/data network integration projects. |
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| Changes to the technical architecture defined in this SOW |
| Custom report development outside of initial report requirements |
| Telecom programming outside of what is defined in this SOW |
| Significant operation process changes |
| Support for new touchpoints |
| Additional training required |
| PeopleSupport provides *** and call monitoring capability for all of its locations used to provide Services to Client. This monitoring is password protected and can be conducted anytime and from anywhere without the need for prior arrangement with PeopleSupport. Client will be provided with the ability for live call monitoring capability by dialing into PeopleSupports PBXs. PeopleSupport represents and warrants that such call monitoring capability and PeopleSupports provision of it comply with all applicable laws in all material respects and that PeopleSupport has obtained, or will obtain prior to the use of such capability, any requisite consent to such monitoring. |
| PeopleSupport will review all agent and supervisor incentive programs provided by PeopleSupport with client |
| Agents are to be *** to Client, subject to Minimum Monthly Fees payment by Client |
| Client has the right to review and audit once a year all documents and records of PeopleSupport directly related to Services rendered under this agreement or reasonably requested by Client for purposes of determining PeopleSupports meeting of service level |
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| *** . | |
| PeopleSupport will provide the following computer and network systems recovery mechanisms: |
| PeopleSupports standard reports are described in Appendix C attached hereto and are included at no additional charge. The parties will use the Change Order process to modify Appendix C as necessary. |
| At a minimum, the following ratios will be maintained for the clients account *** . |
| PeopleSupport voice equipment utilizes *** technologies. Facilities in the Philippine are equipped with *** . |
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Vonage | ||
*** | ||
Signature | ||
*** | ||
Print Name | ||
Senior Vice President | ||
4/9/04 | ||
Date | ||
PeopleSupport, Inc. | ||
\s\ Caroline Rook | ||
Signature | ||
Caroline Rook | ||
Print Name | ||
CFO | ||
Title | ||
4/15/04 | ||
Date |
Page 21
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SERVICE | PRICE | |
LIVE VOICE SERVICE, Phone | ||
*** | *** | |
*** | *** |
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*** | ||
*** | *** | |
*** | *** | |
*** | *** | |
*** | *** | |
*** | ||
*** | ||
*** |
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*** | ||
*** | ||
*** | ||
*** | *** | |
*** | *** | |
*** | *** | |
*** | ||
*** | *** |
*** | *** | |
*** | *** | |
*** | *** | |
*** | *** | |
*** | *** |
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*** | *** | *** | *** | *** | *** | *** |
*** | *** | *** | *** | *** | *** | *** | ||||||
*** | *** | *** | *** | *** | *** | *** |
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| Hardware malfunctions | ||
| Server uptime | ||
| File System and Space utilization | ||
| CPU utilization | ||
| Memory utilization | ||
| Application Service availability | ||
| Wide-Area network uptime | ||
| Intrusion Detection and logging |
| *** |
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*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** |
*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** |
Ø | If the Source of the Problem is External to PeopleSupport |
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A) | Client shall notify the PeopleSupport Helpdesk immediately upon noticing the outage. | ||
B) | PeopleSupport will troubleshoot the problem as appropriate to determine the impact of the problem to systems and networks under the control of PeopleSupport. If the problem is as a result of systems and facilities outside the control of PeopleSupport, Client shall assign a designated resource to PeopleSupport to address the problem within a mutually agreed upon timeframe. | ||
C) | PeopleSupport shall contact Clients designated support staff to inquire about the problem periodically until the problem is resolved. Clients designated support entity must be listed at the beginning of this document. | ||
D) | Clients designated support staff shall respond to PeopleSupport inquiries with timely updates in 60-minute intervals until the problem is resolved. | ||
E) | In the event of a technical problem with Clients call tracking system, email management system, or any Client system directly used by PeopleSupport eReps, problems may have a direct impact on PeopleSupports ability to meet the agreed upon service levels. In such cases, PeopleSupport reserves the right to waive the agreed upon Service Level measures or customer care as long as the problem remains unresolved by the Client. |
Ø | If the Source of the Problem is Internal to PeopleSupport |
A) | Client shall contact the PeopleSupport Helpdesk to report an exact detail of the problem as soon as Client notices the problem. A PeopleSupport Helpdesk Analyst will receive the call and open a ticket for the problem under an assigned priority. In the event that an Analyst is not reachable, a voice mail or Page may be left for the on-call support analyst at PeopleSupport. The Helpdesk shall return all voice mails and pages within 30 minutes. | ||
B) | PeopleSupport Analysts will troubleshoot the problem as appropriate to determine if the problem is related to systems and networks under the control of PeopleSupport. If the problem is as a result of systems and facilities under the control of PeopleSupport, a designated resource from PeopleSupport will be assigned to address the problem. | ||
C) | PeopleSupport Analyst shall notify Clients designated point of contact immediately upon noticing an outage. | ||
D) | PeopleSupport Analyst shall provide Client with updates in 60-minute intervals until the problem is resolved. | ||
E) | In the event of a major catastrophic impact to Clients operation at PeopleSupport caused by systems under PeopleSupports direct control, PeopleSupport shall exercise the Clients agreed to Disaster Recovery plan to resolve the problem. |
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*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** |
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*** | *** | |
*** | *** | |
*** | *** | |
*** | *** | |
*** | *** | |
*** | *** | |
*** | *** | |
*** | *** |
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*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** | ||
*** | *** | *** |
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