EXHIBIT 10.24A
Pages where confidential
treatment has been requested are stamped
“Confidential
Treatment Requested and the
Redacted Material has been separately filed with the
Commission,” and places
where information has been
redacted have been marked with (***).
COMTEC PROCESSING AND PRODUCTION
SERVICES AGREEMENT
This PROCESSING AND
PRODUCTION SERVICES AGREEMENT ( “Agreement” ),
is made and entered into effective this 18 th day of June 2003
(“Effective Date”), by and between ComTec
Incorporated (“ComTec”). located at 6 Just Road
Fairfield, NJ, 07004-3408 and Time Warner Cable Inc., a Delaware
corporation (“TWC”), located at 290 Harbor Drive,
Stamford, CT 06902-6732.
NOW, THEREFORE,
in consideration of mutual covenants
and agreements contained herein, the parties agree to as
follows:
1. D EFINITIONS . As
used herein, the following terms shall have the meanings set forth
below:
“Affiliate” shall mean AOL Time Warner Inc., Time Warner
Entertainment-Advance/Newhouse Partnership. TWT Cable, Inc., Time
Warner Cable Capital, L.P., Time Warner Entertainment Company,
L.P., and/or Time Warner Inc., or any successor-in-interest of any
of the foregoing, or any entity that is majority-owned by TWC
and/or one or more of the foregoing entities (TWC and each of the
foregoing entities, a “TW Company” ), or any
corporation, partnership, limited liability company or other entity
which is managed in whole or in significant part by any TW Company
or through managers designated by any TW Company.
“Affiliate
Addendum” shall
mean an addendum, in substantially the form attached hereto as
Exhibit A , executed by an Affiliate or by TWC on behalf of
such Affiliate.
“Average Monthly
Amount” shall mean
all amounts paid by all Clients (excluding postage amounts and
shipping charges) to ComTec during the eight month period preceding
any claim that arises (including amounts paid by Clients under the
Prior Agreements where this Agreement has not been in effect for
eight months at the time that a claim arises) divided by
8.
“Clients”
shall mean TWC and each Affiliate
that is bound by an Affiliate Addendum.
“Control”
(including the terms
“controlling,” “controlled by” and
“under common control with”) shall mean, in relation to
any business entity, the ownership directly or indirectly of fifty
percent (50%) or more of the outstanding voting securities or
capital stock of such business entity, or any other comparable
equity or ownership interest with respect to a business entity
other than a corporation, or the possession, either directly or
indirectly, of the legal power to direct or cause the direction of
the general management of the entity in question, whether through
the ownership of voting equity interests, by contract, or
otherwise.
“Initial
Clients” shall mean
the following Affiliates of TWC which shall each become bound by an
Affiliate Addendum as of the Effective Date: Kansas City Cable
Partners, L.P.; Staten Island Cable, LLC; and Time Warner
Entertainment-Advance/Newhouse Partnership, Albany Division; Time
Warner Entertainment-Advance/Newhouse Partnership, Austin Division;
Time Warner Entertainment-Advance/Newhouse Partnership. Charlotte
Division; Time Warner Entertainment-Advance/Newhouse Partnership,
Greensboro Division; TWC, Maine Division; Time Warner Entertainment
Company, L.P., Memphis Division; TWC, Minneapolis Division; Time
Warner Entertainment Company, L.P., Shreveport Division; Time
Warner Entertainment – Advance/Newhouse Partnership, Syracuse
Division; Time Warner Entertainment-Advance/Newhouse Partnership,
Waco Division; and, Time Warner Entertainment-Advance/Newhouse
Partnership, Eastern Carolina Division.
“Products”
shall mean any software or other
products licensed or otherwise provided by ComTec to Clients under
this Agreement, including but not limited to those described on
Exhibit B hereto and/or as listed on Exhibit C
hereto.
“Services”
shall mean the processing, print and
mail and other services provided by ComTec under this Agreement,
including but not limited to those described on Exhibit B
hereto and/or as listed on Exhibit C hereto.
Pages where confidential
treatment has been requested are stamped
“Confidential
Treatment Requested and the
Redacted Material has been separately filed with the
Commission,” and places
where information has been
redacted have been marked with (***).
2. T ERM .
This Agreement shall commence as of the Effective Date and shall
continue for so long as any Affiliate Addendum (whether executed as
of the Effective Date or thereafter) is in effect
(“Term”) . The term of each Affiliate Addendum
shall be as set forth in such Affiliate Addendum
(“Affiliate Addendum Term”) ; provided, however,
that no Affiliate Addendum may provide for the automatic renewal of
such Affiliate Addendum, but rather, any such renewal must be
agreed to in writing in an amendment to such Affiliate Addendum
signed by both ComTec and the applicable Affiliate. As of the
Effective Date, all agreements previously executed with any of the
Initial Clients (“Prior Agreements”) shall
terminate and be of no further force or effect; provided, however,
that notwithstanding any other provision of this Agreement, any
products, materials or services provided to a Client under a Prior
Agreement but not listed in Exhibits B or C shall continue
to be provided to such Client during the Affiliate Addendum Term
for such Client for the price set forth in the Prior Agreement
(subject to ComTec’s obligations under Section 9 below
to offer each Client most favored customer pricing) but the general
terms and conditions of this Agreement shall hereafter apply to the
provision of such materials, Services or Products to such Client by
ComTec.
3. S ERVICES AND P RODUCTS .
(a) ComTec shall provide the
Services and Products to Clients for the prices set forth on
Exhibit C hereto (“Pricing Schedule”) .
ComTec may annually raise, based on the Consumer Price Index, the
price of the SPC (as defined on the Pricing Schedule) set forth on
the Pricing Schedule with respect to a particular Client only if,
and to the extent, specifically described in such Client’s
Affiliate Addendum. Any Affiliate may, by notice to ComTec from
time to time, add or remove cable systems with respect to which it
will receive Services and Products under its Affiliate Addendum.
TWC shall not be liable for any obligations of its Affiliates that
are Clients hereunder and no Affiliate that is a Client hereunder
shall be liable for the obligations of TWC or any other Client
hereunder. Clients understand and agree that ComTec may perform the
Services and license or provide the Products to third parties. Each
Affiliate that is a Client hereunder shall use ComTec as such
Affiliate’s sole and exclusive provider of services for the
printing and mailing, through the United States Postal Service
(“USPS”) , of its subscribers’ monthly
bill statements: provided, however, that such obligation shall not
apply with respect to any cable system acquired by such Affiliate
for the term (which shall not include any optional renewals) of any
existing agreement with a different print and mail vendor
applicable to such cable system. Notwithstanding the foregoing,
under no circumstances shall such obligation be deemed to apply to
the generation or viewing of images of subscriber bill statements
or to electronic presentment or payment of subscriber bill
statements (collectively, “Electronic Billing” )
and ComTec understands and agrees that Clients may purchase or
receive services from third parties, and license or receive
products from third parties, that are similar to the Services and
Products with respect to Electronic Billing. For the avoidance of
doubt, TWC shall not be subject to any exclusivity obligation
hereunder and ComTec acknowledges that TWC has and/or may in the
future enter into agreements with other print and mail vendors for
the purchase or receipt of services and products that ate similar
to the Services and Products.
(b) A Client may modify
specifications for a particular Service by furnishing revised
specifications in writing to ComTec, which completely replace the
previous specifications. If such a modification would result in
significant out-of-pocket costs for ComTec to perform the required
Service, as so modified by such Client, then (i) ComTec shall
promptly notify Client of such increased costs and shall set forth
in writing and in reasonable detail the basis for calculating any
such increase in cost, and (ii) ComTec and such Client shall
negotiate in good faith to determine a reasonable price increase
for the performance of such Service pursuant to such modified
specification. If ComTec and such Client cannot reach mutual
agreement on the price relating to such modification, then ComTec
shall not proceed with performance of such Service pursuant to such
modified specification.
4. S ERVICE L EVEL A GREEMENT . ****************
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Pages where confidential
treatment has been requested are stamped
“Confidential
Treatment Requested and the
Redacted Material has been separately filed with the
Commission,” and places
where information has been
redacted have been marked with (***).
5. D ATA S UBMISSION . Data
from each Client is to be prepared for ComTec in the agreed format
and transmitted to the designated ComTec Output Center no later
than ******************************* *********. If the data is
erroneous or is not prepared in the agreed format, or it a Client
furnishes media which is in unsatisfactory condition for
processing, then ComTec shall immediately notify the applicable
Client of the problem. If such Client requests that ComTec research
or resolve the problem, then a fee equal to the hourly rate for
error resolution set forth on the Pricing Schedule may be assessed
on the part of ComTee to research or resolve the data or format
problem *********’*************************************.**
***********************************. Each Client is responsible for
maintaining proper backup of source material sent to ComTec until
ComTec has returned the original media to such Client.
6. P OSTAGE . All
postage service monies are to be provided in advance monthly from
each Client. This money shall be used exclusively for the postage
costs of such Client and may not be used to satisfy any other
unpaid amounts of such Client under this Agreement. ComTec reserves
the right to hold any and all mail of a Client if such
Client’s postage deposit account does not contain sufficient
funds to pay for the actual postage costs to be incurred by ComTec
in performing the Services in any month.
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7. I NVOICING A ND P AYMENT . All
Clients shall be aggregated for purposes of determining the
applicable fee rate pursuant to the Pricing Schedule (where any
such fees fluctuate based on volume); but once such rate(s) have
been determined, ComTec shall invoice each Client separately for
the fees relating solely to Products and Services provided to such
Client. Invoices will be rendered weekly by ComTec to each Client
and payment for all invoiced amounts (other than any amount
disputed by a Client in good faith) shall be due net ***** from the
date of the invoice. Undisputed amounts not paid by a Client
within* * * * * of the date of invoice shall be charged a rate of
interest equal to * *************** With respect to disputed
amounts, once the billing dispute is resolved, payment shall be
made by the applicable Client within ******* following such
resolution. All payments shall be sent to the following address of
ComTec: ComTec, Incorporated, 6 Just Road, Fairfield, NJ,
07004-3408.
8. T AXES . All
applicable taxes, fees, levies, imposts, duties, withholding or
other taxes, exclusive of those relating to ComTec’s net
income (including any interest and penalty thereon) arising from
the provision of the Services to a Client are to be paid by such
Client. Each Client will indemnify and hold harmless ComTec from
and against any liability for such taxes, fees, levies, imposts,
duties, withholding or other taxes, exclusive of those relating to
ComTec’s net income (including any interest and penalty
thereon) arising from the provision of the Services to such
Client.
9.
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Pages where confidential
treatment has been requested are stamped
“Confidential
Treatment Requested and the
Redacted Material has been separately filed with the
Commission,” and places
where information has been
redacted have been marked with (***).
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10. A CCOUNT M ANAGEMENT . ComTec agrees to maintain dedicated account
management for Clients and to use its best efforts to minimize the
turnover of Clients’ account managers. ComTec shall send
weekly status reports covering and outlining account information
and a description of projects for (a) all Clients to TWC, and
(b) for a particular Client to such Client. Upon a Client’s
request, ComTec will hold quarterly on site account reviews with
each Client. The purpose of these reviews shall be to maintain open
lines of communications between Clients and ComTec as well as to
share technical information between Clients. ComTec shall hold
monthly conference calls for all Clients (collectively,
“User Group Meetings” ) in order to discuss
topics of relevance to Clients and solicit Clients’ input in
order to improve ComTec’s level of service provided to
Clients including, without limitation, bill design and redesign
issues, successful database driven upsell/advertising campaigns on
bill statements, future intelligent messaging campaigns, retention
strategies, use of planet codes, use of imaging solutions, other
marketing, customer service, information technology, and billing
and finance issues of Clients. All User Group meetings shall be
hosted by ComTec at ComTec’s sole expense.
11. C ONFIDENTIAL I NFORMATION .
(a) Clients, on the one hand, and
ComTec, on the other hand, will treat as confidential all of the
following information received by such party hereunder (the
“Receiving Party” ) that is provided by the
other party hereto (the “Disclosing Party” ):
any information or data that is (i) fixed in a tangible medium
(including any electronic medium) and furnished by the Disclosing
Party to the Receiving Party under this Agreement and marked as the
confidential or proprietary information of the Disclosing Party; or
(ii) which, if disclosed orally, is identified by the
Disclosing Party at the time as being confidential or proprietary
and is confirmed by the Disclosing Party as being Confidential
Information in writing within ****** **** after its initial
disclosure. In addition, ComTec acknowledges that all information
and data relating to the residential or commercial subscribers (
“Subscribers” ) of a Client, in whatever form
provided, shall constitute Confidential Information of such Client.
Further, the terms and conditions of this Agreement shall
constitute Confidential Information of each party hereto which
neither party may disclose without the other party’s prior
written consent. The Receiving Party will make the same effort to
safeguard the Confidential Information of the Disclosing Party as
it does in protecting its own proprietary data but in no event less
than reasonable care. All data and other information provided to
ComTec by a Client shall remain the exclusive property of such
Client. The Receiving Party will not disclose or make available the
Confidential Information supplied by the Disclosing Party to anyone
other than its employees who have a need to know the information in
connection with this Agreement. The Receiving Party shall use the
Confidential Information of the Disclosing Party only for the
purpose of fulfilling its obligations under this
Agreement.
(b) The Receiving Party shall be
relieved of the obligations of Section 1l(a) with respect to
information it can establish through credible evidence:
(i) was in the public domain at the time it was disclosed or
has become in the public domain through no fault of the Receiving
Party; (ii) was known to the Receiving Party, without
restriction, at the time of disclosure as shown by the files of the
Receiving Party in existence at the time of disclosure;
(iii) was independently developed by the Receiving Party
without any use of the Disclosing Party’s confidential
information and by employees or other agents of the Receiving Party
who have not had access to any of the Disclosing Party’s
confidential information; or (iv) became known to the
Receiving Party, without restriction, from a source other than the
Disclosing Party (which source was not bound by confidentiality
restrictions) without breach of this Agreement
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Pages where confidential
treatment has been requested are stamped
“Confidential
Treatment Requested and the
Redacted Material has been separately filed with the
Commission,” and places
where information has been
redacted have been marked with (***).
by the Receiving Party and otherwise not in
violation of the Disclosing Party’s rights. In furtherance of
ComTec’s obligations hereunder and without limiting the
foregoing, ComTec agrees that, with respect to any materials that
contain personally identifiable information of a Client’s
Subscribers that ComTec discards or disposes of under this
Agreement, ComTec shall properly shred any such materials in order
to avoid a disclosure of such Confidential Information of such
Client.
(c) If the Receiving Party is
required by any law, rule or regulation of any governmental
authority or by order of any court of competent jurisdiction to
disclose Confidential Information of the Disclosing Party, the
Receiving Party may disclose such Confidential Information to such
governmental authority or court to the extent so required,
provided, that, the Receiving Party shall: (i) give reasonable
notice to the Disclosing Party in advance of such disclosure;
(ii) seek confidential treatment of such information from the
entity to which the disclosure is made; and (iii) limit
disclosure of the Disclosing Party’s Confidential Information
to that required to be disclosed.
(d) Upon the termination,
cancellation or expiration of this Agreement for any reason or upon
the reasonable request of the Disclosing Party, all Confidential
Information of the Disclosing Party, together with any copies
thereof, shall be returned to the Disclosing P
