Terms Defined in the Agreement

EXHIBIT 10(iv)

 

TABLE OF CONTENTS

 

 

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ii

 

iii

AMENDED AND RESTATED

 

INTERCOMPANY SYSTEMS/NETWORK SERVICES AGREEMENT

 

This Amended and Restated Intercompany Systems/Network Services Agreement (the “Agreement”) is between NDCHealth Corporation (formerly known as National Data Corporation), a Delaware corporation (“NDC” or “Provider”), and Global Payments Inc., a Georgia corporation (“Global” or “Recipient”) (Global and NDC are each referred to as a “Party” and both are referred to as the “Parties”), which was originally dated and made effective as of January 31, 2001 (the “Effective Date”), was subsequently and repeatedly amended to extend its original term, and is hereby amended and restated as of June 1, 2003.

 

Background

 

Prior to the Effective Date, NDC had two primary areas of business, the processing of electronic payments and related information transactions (the “eCommerce Business”) and the processing of Healthcare provider claims and related transactions among health care providers and health care insurers as well as providing Healthcare data base information, (the “Health Business”)

 

The Board of Directors of NDC has determined that it is in the best interests of NDC and its shareholders for NDC to transfer and assign to Global the capital stock of National Data Payment Systems, Inc., Global Payment Holding Company, NDC Holdings (UK) Ltd., Merchant Services U.S.A. and their respective subsidiaries (the “NDC Global Subsidiaries”) that hold all of the assets and liabilities that currently constitute NDC’s Global business and a 0.85% general partnership interest in GPS Holding Limited Partnership as a contribution to the capital of Global and to receive in exchange therefor shares of Global common stock, and to thereafter make a distribution (the “Distribution”) on a date (the “Distribution Date”) to the holders of NDC common stock of all of the outstanding shares of Global common stock at the rate of eight-tenths (0.8) of a share of Global common stock for every one share of NDC common stock outstanding pursuant to a Distribution Agreement, dated as of the date hereof, between NDC and Global (the “Distribution Agreement”). The Parties intend that the transactions described in the Distribution Agreement will be effective at the Effective Time (as that term is defined in the Distribution Agreement). Upon the Effective Time, NDC’s business will be the Health Business, and Global’s business will be the eCommerce Business.

 

Although the transactions provided for in the Distribution Agreement and the Ancillary Agreements (as that term is defined in the Distribution Agreement) will provide for the separation of NDC and Global into separate and distinct entities and the substantial separation of their operations, and although the Parties had, prior to the Effective Date, begun (and in some cases, completed) the separation of certain computer system and network system functions, other computer systems and network activities presently shared by the Parties, such as the network of interrelated Tandem computers and related devices and systems (the “Tandem System”), and the telecommunication contracts and related devices and systems (the “Telecom System”) that serve

 

both the Health Business and the eCommerce Business should not be separated as of the Effective Date for economic reasons for both companies.

 

Accordingly, the Parties deem it to be appropriate and in their best interests in connection with the Distribution that NDC shall provide to Global certain services upon the terms and conditions of this Agreement for the period provided for herein and that Global will pay NDC for such services as set forth herein.

 

Terms and Conditions

 

N OW , T HEREFORE , in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

 

Article 1 D EFINITIONS AND R ULES OF C ONSTRUCTION

 

Section 1.1 Terms Defined in the Agreement

 

An index of terms defined in the body of the Agreement is attached hereto as Exhibit 1.01- Index of Terms Defined in the Agreement.

 

Section 1.2 Rules of Construction

 

In this Agreement, unless the context requires otherwise, the singular shall include the plural and vice versa. The words “including,” “includes” or “included,” shall be deemed to be followed by the words “without limitation.”

 

Article 2 P ROVISION OF S ERVICES

 

(a) “Services” means the services described (i) in Addendum I—Telecom Services (the “Telecom Services,” which term refers to both the Telecom Carrier Contract Services described therein (the “Telecom Carrier Contracts Services”) and the Telecom Support Services described therein (the “Telecom Support Services”)); (ii) in Addendum II—Tandem Services (the “Tandem Services”); and (iii) in Addendum IV-Ad Hoc Services (the “Ad Hoc Services”).

 

(b) Starting on the Effective Date and continuing during the Term, Provider shall provide the Services to, and perform the Services for, Recipient, subject to the terms and conditions of this Agreement and subject to Recipient’s right to discontinue any of the Services in its sole discretion, provided however that any such discontinuation will not have an effect on the fixed fee set forth in Article 4.

 

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(c) There may be functions, responsibilities, activities and tasks not specifically described in this Agreement which are required for the proper performance and provision of the Services and are an inherent part of, or a necessary sub-part included within, the Services. If such functions, responsibilities, activities and tasks are determined to be required for the proper performance and provision of the Services, or are an inherent part, or a necessary sub-part included within, the Services, such functions, responsibilities, activities and tasks shall be deemed to be implied by and included within the scope of the Services, to the same extent and in the same manner as if specifically described in this Agreement. Each such determination shall be made by agreement of the Parties or resolved pursuant to the dispute resolution provisions of Article 15 hereof.

 

(d) During the Term, each Party may exercise control over some portion(s) of the facilities to be used to provide and perform the Services for Recipient. Each Party shall provide the other Party and its employees agents and representatives reasonable access to such portion(s) of the facilities as necessary or appropriate for the performance, delivery and use of the Services and for the operation, maintenance, upgrade, support and use of any other hardware, software and other resources owned or leased by either Party and located in the facilities.

 

Article 3 N ATURE OF E NGAGEMENT

 

Intentionally omitted.

 

Article 4 F EES

 

(a) From June 1, 2003 until October 31, 2003, Recipient shall pay Provider $468,080 per month for all of the Services provided hereunder (except for the Telecom Carrier Contract Services and shall specifically include any and all Ad Hoc Services). From November 1, 2003 until the Toronto Termination Date (as defined below), Recipient shall pay Provider $393,840 per month for all of the Services provided hereunder (except for the Telecom Carrier Contract Services and except for Ad Hoc Services as provided in Section (d) below). From the Toronto Termination Date until September 30, 2005, Recipient shall pay Provider $350,418 per month for all of the Services provided hereunder (except for the Telecom Carrier Contract Services and except for Ad Hoc Services as provided in Section (d) below). The “Toronto Termination Date” shall be the date that Recipient no longer utilizes the Tandem Services currently being provided to such office. The foregoing includes 5000 man hours of technical assistance free of charge, which man-hours may be used by Recipient, in its discretion, either for Ad Hoc Services or for Transition Services (“5000 Free Hours”).

 

(b) In the event Recipient continues to utilize the Tandem Services beyond September 30, 2005, in accordance with Section 7.2 or 7.8 of this Agreement, Recipient shall reimburse Provider a percentage of the Tandem depreciation, hardware/software maintenance costs, license fees, operations and technical support manpower costs, supplies, and data center facilities costs, based on their portion of usage of the Tandem System and excluding all

 

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overhead, but in no event shall such costs exceed $292,000 per month prorated accordingly. Each monthly or partial month invoice shall contain sufficient back-up documentation for Recipient to evaluate the costs being passed through to it.

 

(c) For the Telecom Carrier Contract Services, Recipient will reimburse Provider for minutes, line charges, fees, maintenance, equipment, and related telecom carrier charges based on either explicit usage (i.e. such charges are for services provided exclusively to Recipient and identified as such in the carrier billing) or on an allocated cost basis in those cases where the carrier services is shared by the Parties under an arrangement with consolidated billing. The allocation will be based on proportionate usage as reasonably determined by the parties. The costs invoiced to Recipient will be on a pass-through basis only with no prorated share of overhead costs added.

 

(d) For the Ad Hoc Services, Recipient will reimburse Provider in accordance with Addendum IV. Recipient shall, at its option, either deduct the man-hours from the 5000 Free Hours, pay such invoice, or any combination thereof.

 

(e) Except as specifically set forth in this Agreement, Provider shall have no right to charge Recipient for any other fees, expenses, charges, or costs of any nature whatsoever.

 

Article 5 A CKNOWLEDGMENT OF U NIQUE R ELATIONSHIP

 

The Parties acknowledge and agree that the relationship established by this Agreement, which has been established as a result of the fact that, prior to the Distribution Date, the Services were provided to the Health Business and the eCommerce Business from a unified system, is unique. The Parties further acknowledge and agree that, after the Distribution Date, (i) the Tandem Services will be provided to Recipient by Provider using the same integrated, networked computer system that provides similar services to Provider’s business; and (ii) the Telecom Carrier Contract Services obtained for Recipient are and will be managed and supervised as part of similar services obtained for Provider’s business using the same integrated, networked system for as long as Recipient requests such Services. Finally, the Parties acknowledge and agree that the Services are not being provided by Provider in order to make a profit.

 

Article 6 I NVOICES AND P AYMENTS

 

Section 6.1 Invoices

 

On November 28, 2003, Recipient shall wire transfer Provider $11,890,785 which includes: $1,653,562 which represents full and final payment for all sums due under this Agreement for the time period from June 1, 2003 until October 31, 2003; $1,027,756 which represents full payment of a telecom bill that has been the subject of a dispute between the Parties; $151,049 due for rent for the Atlanta headquarters through October 31, 2003; and $9,058,320 for the pre-payment of all amounts due hereunder for all Services (except for the Telecom Carrier Contract Services

 

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and the Ad Hoc Services) from November 1, 2003 until September 30, 2005.,Such amount assumes that the Toronto Termination Date will occur on September 30, 2005. . Once Recipient has finished its planning and has a scheduled Toronto Termination Date, Provider shall reimburse Recipient $1447 for each day from the scheduled Toronto Termination Date until September 30, 2005. In the event the Toronto Termination Date occurs before the scheduled Toronto Termination Date, Provider shall reimburse Recipient $1447 for each day from the scheduled Toronto Termination Date until the actual Toronto Termination Date. In the event the Toronto Termination Date occurs after the scheduled Toronto Termination Date, Recipient shall pay Provider $1447 for each day commencing the day after the scheduled Toronto Termination Date until the actual Toronto Termination Date. The Recipient shall have the right to offset any amount owed to it by Provider in accordance with the foregoing against any amount owed by Recipient to Provider under this Agreement or under any other agreement between the Parties.

 

Provider will provide Recipient monthly invoices which shall list with respect to the period covered by such invoice the costs allocated to it in connection with the Telecom Carrier Contract Services together with the invoice from the applicable carrier and back-up documentation sufficient for Recipient to evaluate how Provider has allocated the costs amongst the Parties.

 

Provider will provide monthly invoices which shall list with respect to the period covered by such invoice the Ad Hoc Services (which the parties mutually agree are Ad Hoc Services). Such invoice shall include by project detailed information concerning the tasks performed, people involved, and number of man hours spent. The descriptions provided should be specific enough to allow a person unfamiliar with the project to determine what function is being performed and the necessity of the function to the progress of the project. The parties will mutually agree upon a format for such invoices.

 

Provider will use commercially reasonable efforts to provide Recipient with an invoice by the third business day of the month following the month in which the Services were rendered.

 

Recipient must notify Provider of any objection within thirty (30) days after its receipt of the invoice and the relevant back-up documentation, and must provide reasonable details as to specific charges to which Recipient objects, and the basis for such objection if it intends to withhold payment pursuant to Section 6.2. Failure to notify Recipient of a dispute or failure to withhold a disputed payment shall have no effect on the rights of the parties set forth in Section 16.1 and 16.2.

 

Section 6.2 Payment

 

Recipient agrees to pay Provider all amounts charged to it in accordance with this Agreement by wire transfer to a bank account designated by Provider electronically within ten (10) business days of the time of Recipient’s receipt of an invoice prepared in accordance with Section 6.1 hereof. Any payments for overcharges or undercharges required under Section 16.1 or 16.2 shall be made within ten (10) days of discovery of such overcharge or undercharge and shall also be made by wire transfer to a bank account designated by Recipient or Provider, as the case may be.

 

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If any portion of an amount due to Provider under this Agreement is subject to a dispute between the Parties, Recipient shall nonetheless pay and remit to Provider on the date such amount is due all amounts not disputed in good faith by Recipient.

 

Article 7 T ERM AND T ERMINATION

 

Section 7.1 Initial Term

 

This Agreement, as amended and restated, shall commence on June 1, 2003 and shall expire on September 30, 2005 (the “Initial Term”), unless (i) renewed or extended as provided in Section 7.2 or Section 7.4 hereof or (ii) terminated earlier in accordance with the terms of this Agreement.

 

Section 7.2 Renewal Terms

 

This Agreement may be renewed for one renewal term of six (6) months if, during the Initial Term, Recipient gives written notice of renewal at least 120 days prior to the last day of the Initial Term (the Initial Term and the “Renewal Term” are collectively referred to herein as the “Term”).

 

Section 7.3 Extension of Telecom Carrier Contract Services

 

Intentionally omitted.

 

Section 7.4 Extension in Connection with Termination Assistance

 

If, pursuant to Section 7.8, Recipient requests that Provider provide Termination Assistance Services, then this Agreement shall be extended during the period that Provider provides such Termination Assistance Services.

 

Section 7.5 Termination

 

Recipient may terminate this Agreement if Provider becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or any similar laws of the United States or any state of the United States, or make a general assignment for the benefit of creditors.

 

Section 7.6 Rights Upon Termination

 

At the expiration or earlier termination of this Agreement for any reason (or as reasonably appropriate upon the earlier splitting of the Telecom Carrier Contract Services), however described, the Parties agree as follows:

 

(a) Upon Recipient’s request, Provider agrees to transfer to Recipient that portion of the equipment and hardware used by Provider as of the Effective Date to provide the Services to Recipient, in accordance with the terms of Article 8 below;

 

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(b) Each Party will provide to the other a source code and object code license to any derivative works of Shared Software required to be provided under Section 11.4 below;

 

(c) If Provider is a licensee of any software which is used only for the purpose of providing Services to Recipient, Recipient may elect to take a transfer or an assignment of such license, subject to the terms of such license, and provided that Recipient assumes responsibility for any maintenance or other payments under such Third Party Agreements that arise or become due and payable after the effective date of termination or expiration of the Agreement. In the event of a transfer or assignment pursuant to this Section 7.6(c), Recipient shall also pay any transfer fee or similar charge imposed by the applicable vendor;

 

(d) If Provider is a licensee of any software which is used both for the purpose of providing Services to Recipient and for Provider’s own needs, and Recipient must obtain its own license if it intends to use such software after the effective date of termination or expiration of this Agreement each Party will be responsible for obtaining their respective licenses, but if any one-time fee is imposed by a vendor to grant such license (but not any ongoing fees or royalty payments), such one time fee shall be shared by the Parties equally, and

 

(e) Upon Recipient’s request, Provider will transfer or assign to Recipient or its designee, on mutually acceptable terms and conditions, any Third Party Agreements not otherwise treated in this Article 7.

 

Section 7.7 Cessation of Performance; Payment

 

Upon expiration or termination of this Agreement for any reason, except as provided in Section 7.8, Provider will cease to have any obligation to perform the Services hereunder, and Recipient will pay and remit to Provider all amounts due to Provider hereunder through the date of such expiration or termination.

 

Section 7.8 Termination Assistance Services

 

In connection with the expiration or termination of this Agreement for any reason, Provider will, at the request of Recipient, (i) provide the Tandem Services for up to six (6) months after the expiration or termination of this Agreement and (ii) provide the termination assistance services reasonably requested by recipient prior to the expiration or termination of this Agreement and for up to twelve (12) months thereafter (the “Transition Services”), in each case as reasonably needed by Recipient in order to assist Recipient in the orderly transfer of the Services from Provider to Recipient or to another services provider (collectively, Services under (i) and (ii) above shall constitute the “Termination Assistance Services”).

 

If Tandem Services continue to be provided after September 30, 2005, then Recipient shall pay for such services in accordance with Article 4 (b) of this Agreement. Recipient shall not

 

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be obligated to pay Provider for any other Termination Assistance Services except as specifically set forth below.

 

The parties shall use commercially reasonable efforts to work together to establish a “Termination Plan” within ninety (90) days from the date hereof. Provider and Recipient shall designate a mutually agreeable employee of NDC to serve as the “NDC Health Transition Project Manager.” Such person shall be a full time person and shall spend at least one-half of his or her time from November 30, 2003 through the term of this Agreement, as extended during the time Termination Assistance Services are being provided, on Transition Services as designated by Recipient. In the event such individual leaves the employ of Provider prior to the completion of the Termination Plan, the parties shall mutually agree upon a suitable replacement. Once the Termination Plan has been developed and before any Transition Services have been provided, Provider will give Recipient a good faith estimate regarding the number of man hours of technical assistance necessary to provide the Transition Services contemplated by the Termination Plan. Status reports prepared by Provider on a weekly basis shall summarize the man hours spent on Transition Services. Such status reports shall include reasonably detailed information concerning the tasks performed, people involved, and number of man hours spent. The descriptions provided should be specific enough to allow a person unfamiliar with the project to determine what function is being performed and the necessity of the function to the progress of the project. The parties will mutually agree upon a format for such status reports.

 

Recipient shall not be required to pay for any Transition Services unless the Recipient requests that Provider provide more than the 5000 Free Hours (less the number of man hours specifically used by Recipient for Ad Hoc Services as described in Article 4(d)). In such event, the. Recipient shall be required to reimburse the Provider for its actual costs (prorated salary plus benefits) for the excess time and then only if Provider notifies Recipient in writing that it has exceeded the allotted time together with reasonable back-up documentation summarizing the man hours spent on transition assistance and provides a written estimate of the additional time required to perform the Transition Services in advance. The services of the NDC Health Transition Project Manager and all time spent in the planning phases shall be provided free of charge and shall not be charged against the 5000 Free Hours. For greater certainty, the number of man hours spent by Provider and charged against the 5000 Free Hours shall include the number of hours incurred in connection with the disconnection of such equipment and devices but not any hours utilized in reconnecting any portions of the Tandem System, the Telecom System or any Ancillary System necessitated by the disconnection of such equipment and devices. All time spent in connection with the Telecommunication Task Force referred to in Addendum I related to negotiating with communications vendors and planning in connection with the separation and Termination Plan shall be provided free of charge and shall not be charged against the 5000 Free Hours. All overhead and administrative time, including but not limited to, human resources, legal, accounting, finance, treasury, facilities, etc. shall not be charged to Recipient and shall not be charged against the 5000 Free Hours. In addition to the foregoing, in the event there are any actual and out of pocket expenses which Recipient must incur in connection with the Transition Services, provided Recipient has agreed to such expenses in writing in advance, Provider shall reimburse Recipient for one-half of such expenses. The foregoing shall not include the hiring of third party contractors to perform work that could otherwise be done internally unless Recipient specifically agrees in writing in advance.

 

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Section 7.9 Survival of Selected Provisions

 

Notwithstanding the expiration or earlier termination of this Agreement for any reason, however described, the following sections of this Agreement shall survive any such expiration or termination: Article 1, Section 7.4, Section 7.6, Section 7.7, Section 7.8, Article 8, Section 11.2, Section 11.3, Section 11.4, Article 13, Article 14, Article 15, Section 16.1, Section 16.2, Section 16.8, Section 16.10, Section 16.11, Section 16.12, Section 16.13 and Section 16.14. Upon termination or expiration of this Agreement, all rights and obligations of the Parties under this Agreement will immediately cease and terminate (except for the rights and obligations under those Sections specifically designated to survive in this Section 7.9.).

 

Article 8 O WNERSHIP OF C ERTAIN E QUIPMENT

 

(a) During the Term, Provider may purchase one or more items of computer equipment and related devices to be added to the Tandem System, the Telecom System and any other systems used to provide the Services (the “Ancillary Systems”) in order to satisfy the capacity requirements of Recipient as reasonably determined by it pursuant to the capacity planning process described in Addendum VII - Capacity Planning, but only upon Recipient’s prior written consent. All such equipment and devices (the “Added Devices”) shall be owned by Provider. Provider will be responsible for maintaining, supporting and operating the Added Devices, which shall be included in the fixed fee referred in Article 4(a). Notwithstanding the foregoing, in the event there is an Added Device added after November 30, 2003 with Recipient’s written consent and Provider’s costs for maintaining, supporting, and operating such Added Device is incrementally higher than supporting the equipment in place immediately before such addition, then the parties shall enter into good faith discussions regarding a reasonable increase in the fixed fees set forth in Article 4 of this Agreement to cover Provider’s actual costs in connection therewith.

 

(b) For Added Devices added prior to November 30, 2003 and for any Added Devices added after November 30, 2003 without Recipient’s prior written consent, all fees in connection therewith are included in the fixed fees set forth in Article 4(a). If after November 30, 2003, Recipient has given Provider its written consent to add such device and such Added Device is used exclusively by Provider to provide services to Recipient, the Recipient will pay Provider in addition to the fixed fees set forth in Article 4 (a) a monthly fee for such Added Devices equal to (i) (w) the sum of the invoice price for each such Added Device plus any installation costs associated with the integration and implementation of the Added Device into the Tandem System divided by (x) the number of months over which such Added Device is depreciated by Provider for financial accounting purposes (provided that the depreciation method is in accordance with generally accepted accounting principles and is approved by Recipient (which approval shall not be unreasonably withheld)) plus in each month (ii) an amount equal to (y) the monthly rate of interest paid by Provider during the immediately preceding month under its principal credit line multiplied by (z) the remaining undepreciated amount described in clause (i)(w) above as of the first day of the month for which the fee is being calculated.

 

(c) In addition, upon the expiration or termination of this Agreement, Recipient shall get possession and ownership from Provider of the circuits (and the CSU/DSU and dial back-up

 

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equipment associated with such circuits) contained in the Telecom System owned by Provider and used by Provider as of the Effective Date to provide Services to Recipient free of charge. Recipient shall not be responsible to pay Provider for any expenses incurred to transfer ownership and possession of same to Recipient, except as specifically set forth in Section 7.8. The parties shall each pay one-half of the costs of any shipping charges incurred in delivering any such equipment or devices. In addition, upon the expiration or termination of this Agreement, Recipient may acquire possession and ownership from Provider of that portion of the Tandem System, the Telecom System (except as set forth above) and any Ancillary System owned by Provider and used by Provider as of the Effective Date to provide Services to Recipient (including Added Devices described above), or that Provider otherwise agrees to transfer to Recipient, upon payment of an amount equal to the unrecovered/undepreciated capitalized cost of such portion of the Tandem System, the Telecom System and any Ancillary System to be acquired by Recipient remaining on Provider’s balance sheet. Recipient shall not be responsible to pay Provider for any expenses incurred to transfer ownership and possession of same to Recipient, except as specifically set forth in Section 7.8. The parties shall each pay one-half of the costs of any shipping charges incurred in delivering any such equipment or devices. Provider represents, warrants and covenants that any and all computer equipment and related devices transferred to Recipient pursuant to this Article 8 shall be in good working condition as of the date of transfer to Recipient.

 

(d) Provider and Recipient acknowledge and agree that either party may purchase equipment and devices for its exclusive use (the “Exclusive Devices”) that will interconnect with the Tandem System, the Telecom System or Ancillary Systems; provided, however, that the party wishing to interconnect an Exclusive Device must first demonstrate that the interconnection of such Exclusive Device to the Tandem System will not materially and adversely affect the integrity, security, functionality or performance of the Tandem System. The Party adding such Exclusive Device will be responsible for maintaining, supporting and operating it, except as set forth in the next sentence. If the Provider is maintaining, operating, and/or supporting any Exclusive Device on behalf of Recipient on or before November 30, 2003, the Provider shall continue doing so through the term of this Agreement unless requested by Recipient to stop and the fees associated with such maintenance, support, or operation shall be considered to be included in the fixed fees set forth in Article 4 of this Agreement.

 

Article 9 S ERVICE L EVELS

 

Section 9.1 General

 

The Parties have agreed to a procedures manual (the “Procedures Manual”) that governs the performance of the Services by Provider. Provider agrees that the performance and delivery of the Services will meet or exceed any agreed upon service levels to be set forth in the Procedures Manual, and Recipient agrees that its only remedies for the failure of the performance or delivery of the Services to meet or exceed any agreed upon service levels set forth in the Procedures Manual will be the remedies, if any, set forth in the Procedures Manual.

 

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Section 9.2 Future Service Levels

 

If a service level for a particular Service or aspect of the Services is not set forth in the Procedures Manual, and Recipient requests that one or more service levels be established for a particular aspect of the Services, then Provider, with the assistance of Recipient, shall perform an assessment of the historical service levels as they existed for the twelve (12) month period before the Effective Date for such aspect of the Services, and Provider will propose service levels based on that assessment. When service levels for such aspect of the Services have been accepted in writing by Recipient and Provider, such service levels shall be incorporated into the Procedures Manual, and Provider will thereafter perform in accordance with such new service levels. The Parties intend that any and all service levels will not be less favorable to Recipient during the Term than they are at the initiation of the Services pursuant to this Agreement.

 

Section 9.3 Review and Remedy

 

The Parties will review the extent to which the Services were performed in accordance with the Procedures Manual as part of each Monthly Review (as that term is defined below). If the Services have been performed at a level below any applicable service levels included in the Procedures Manual, each Party may propose one or more remedies if no specific remedy is set forth in the Procedures Manual. These remedies can include modification of the applicable service levels, equipment changes or changes in operational processes. If, after the involvement of the Senior Representatives, the Parties are unable to agree to remedies, either Party may invoke the provisions of Article 15. Notwithstanding the foregoing, in the event that the Parties cannot reach agreement regarding a remedy for a failure to meet applicable service levels after resort to the dispute resolution procedures set forth in Article 15, then the Parties may pursue the remedies, if any, available under the Procedures Manual.

 

Article 10 P ROJECT M ANAGEMENT AND A DMINISTRATION

 

Section 10.1 Senior Representatives; Monthly Reviews

 

Provider and Recipient each shall appoint a senior member of management to represent them with respect to the relationship of the Parties hereunder (each, a “Senior Representative”). The Provider Senior Representative and the Recipient Senior Representative shall meet at least one time each calendar month (the “Monthly Review”) to review Provider’s performance under this Agreement.

 

Section 10.2 Account Managers; Weekly Meetings

 

Provider and Recipient will each appoint an account manager to serve as such Party’s main contact with the other Party for project and request submissions, status reporting, disputes and other issues related to this Agreement (each, an “Account Manager”). The Account Managers shall hold weekly meetings (the “Weekly Meetings”) to discuss performance under this Agreement and all operational and administrative issues relating thereto. The Weekly Meeting will be the formal mechanism for Recipient to submit new Ad Hoc Project requests and discuss on-going Ad Hoc Projects.

 

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Section 10.3 Capacity Planning

 

The Parties will plan for future capacity needs, both with respect to the Tandem System and the Telecom System, as set forth in

 

Section 10.4 Ad Hoc Project Planning

 

The Parties will plan, and Provider shall perform, any and all ad hoc projects needed by Recipient (each, an “Ad Hoc Project”) as set forth in Addendum IV- Ad Hoc Services.

 

Section 10.5 Personnel Decisions

 

(a) Provider will consult with Recipient in each instance prior to transferring, reassigning, terminating, hiring or making other changes in any of the human resources allocated by Provider as of the Effective Date to the performance and delivery of the Services, or, with respect to Ad Hoc Projects, assigned to the performance of an Ad Hoc Project pursuant to Addendum IV hereto. Provider will use commercially reasonable efforts to maintain continuity of the persons performing Services under this Agreement.

 

(b) If Recipient reasonably and in good faith determines that it is not in Recipient’s best interests for any Provider or subcont