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EXHIBIT 10.8
ROADWAY EXPRESS, INC.
AFFILIATED COMPUTER SERVICES, INC.
DATA PROCESSING AND INFORMATION TECHNOLOGY AGREEMENT
This Data Processing Services Agreement
(this "Agreement") is made and entered
into as of September 11, 1998 (the
"Effective Date") by and between Roadway
Express, Inc., a Delaware corporation with
its corporate offices in Akron, Ohio
(hereinafter called "Roadway"), and
Affiliated Computer Services, Inc. a
Delaware corporation with its corporate
offices in Dallas, Texas ("ACS").
RECITALS
A. Roadway provides nationwide, long-haul,
less than truckload freight and
related transportation services. Roadway
desires to enter into an agreement with
a vendor of information technology,
processing, support and management services
to perform information technology
outsourcing services for Roadway.
B. ACS is experienced and expert in data
processing and information technology
services, including the systems and
environments employed and being implemented
by Roadway. ACS desires to establish a
contract to provide such services to
Roadway in an economical, efficient and
competent manner.
C. Roadway and ACS agree that the primary
objective of this document is to
establish a framework which will be the
basis for a structured approach for ACS
to provide information systems services
necessary to outsource the functions
described below, including without
limitation, in SCHEDULE 2.1. This document,
without limitation:
1. Describes the services that will be
provided and the related service levels;
including a defined reporting structure for
reviewing the actual service levels
achieved by ACS.
2. Provides a flexible ACS organization to
deliver services.
3. Defines a controlled and structured
process which allows changes and
continuous improvements to service levels
and the overall scope of service.
4. Defines the formal communication
interfaces between ACS and Roadway.
5. Provides the rules, processes, and
responsibilities of both ACS and Roadway
relating to the services.
D. ACS desires to provide reliable, high
quality services at a cost to Roadway
which is predictable and is consistent with
competitive market prices for such
services. The cost of services to Roadway
should reflect improvements over time
in productivity by reason of new tools,
methods and technology in the providing
of these types of services.
NOW, THEREFORE, in consideration of the
mutual promises and other good and
valuable consideration, the sufficiency of
which is hereby acknowledged, the
parties agree as follows:
GENERAL TERMS AND CONDITIONS
SECTION 1. DEFINITIONS.
1.1 CERTAIN DEFINED TERMS. As used in the
Agreement, the following terms shall
have the meanings set forth below.
(a) "ACS-Provided Software" means the
software which ACS owns or licenses or
agrees to acquire in its own name and
utilize during the Term for the purpose of
providing the Services. ACS-Provided
Software is
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described or identified on SCHEDULES 2.10.1
and 2.10.3. The parties agree to add
and delete items from the listing of
ACS-Provided Software as ACS changes the
software used subject to the applicable
provisions of this Agreement.
(b) "Administered Contracts" means the
contracts and agreements that ACS will
have the responsibility of (i) managing and
(ii) verifying the accuracy of
invoices related to such contracts and
agreements. Administered Contracts as of
the Effective Date are identified on
SCHEDULES 2.10.4a and 2.10.5.
(c) "Affiliate" means, for any person or
entity, any other person or entity
that, directly or indirectly controls, is
controlled by, or is under common
control with, such person or entity.
(d) "Base Price" means the resource-based
prices excluding Pass-Through Costs
and Pass-Through Plus Costs, payable for
each Period (pro-rated for partial
Periods) for Services, as described on
SCHEDULE 6.1. The Base Price includes the
charges shown in SCHEDULE 6.1 as "One-Time
Charges."
(e) "Commencement Date" means the date ACS
actually begins to perform Services.
(f) "Cutover Date" means the date that data
processing, support and management
services are transitioned to ACS's
Pittsburgh, Pennsylvania facility.
(g) "Pass-Through Costs" means,
collectively, costs and expenses that will be
paid by ACS and passed through without
increase or mark-up for reimbursement by
Roadway which costs must be expressly
approved in this Agreement or subsequently
approved by Roadway to be treated as
Pass-Through Costs. Pass-Through Costs are
payable in addition to the Base Price.
SCHEDULE 6.1 identifies and limits the
categories of costs that will be treated as
Pass-Though Costs. If a cost is
incurred by ACS for the benefit of Roadway
and others, then the Pass-Through
Cost shall be Roadway's pro-rata share of
such cost, computed on a reasonable
and equitable basis.
(h) "Pass-Through Plus Costs" means,
collectively, costs and expenses that will
be paid by ACS and passed through, with an
additional administration fee, for
reimbursement by Roadway which costs and
fee must be expressly approved in this
Agreement or subsequently approved by
Roadway to be treated as Pass-Through Plus
Costs. Pass-Through Plus Costs are payable
in addition to the Base Price.
SCHEDULE 6.1 identifies and limits the
categories of costs that will be treated
as Pass-Through Plus Costs.
(i) "Period" means one of Roadway's
thirteen (13) four (4)-week accounting
periods occurring in each calendar
year.
(j) "Roadway-Provided Software" means any
and all software which Roadway owns or
licenses in its name or agrees to provide
and make available to ACS for
operation at the ACS data center or another
ACS facility for use by ACS to
provide the Services. Roadway-Provided
Software includes Third-Party Software
licensed by Roadway. Current Third-Party
Software included in the
Roadway-Provided Software is listed and
identified in SCHEDULES 2.10.2, 2.10.4
and 2.10.4a.
(k) "Service Level Agreements" means the
service level specifications or
descriptions, the performance standards and
the measurement procedures set forth
in SCHEDULE 2.4 and summarized in SCHEDULE
2.5.
(l) "Services" means, collectively, all of
the data processing and related
information technology services and
resources to be provided by ACS to Roadway
pursuant to this Agreement, including, but
not limited to, those Services
described on SCHEDULE 2.1.
(m) "Third-Party Software" means any
software owned by a third-party and
licensed to Roadway or ACS, as the case may
be.
(n) "Year 2000 Compliant" means that the
product is designed to be used prior
to, during, and after the calendar year
2000 AD, and that the product will
operate before, during, and after such time
period without
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error relating to date data, specifically
including any error relating to, or
the product of, date data which represents
or references different centuries or
more than one century. "Year 2000
Compliant" further means:
(i) The product will not abnormally end or
provide invalid or incorrect results
as a result of date data, specifically
including date data which represents or
references different centuries or more than
one century;
(ii) The product has been designed to
ensure year 2000 compatibility, including,
but not limited to, date data century
recognition, calculations which
accommodate same century and multi-century
formulas and date values, and date
data interface values that reflect the
century; and
(iii) The product provides for correct
processing of Leap Years. (Leap Years
shall mean the year during which an extra
day is added in February (February
29). Leap Year occurs in all years
divisible by 400 or evenly divisible by 4 and
not evenly divisible by 100. For example,
1996 is a Leap Year since it is
divisible by 4 and not evenly divisible by
100. 2000 is a Leap Year since it is
divisible by 400.)
1.2 OTHER DEFINITIONS. Other capitalized
defined terms used in this Agreement
are defined in the text in the context in
which they are used.
SECTION 2. SERVICES
2.1 Services.
(a) In accordance with the charges, terms
and conditions contained in these
General Terms and Conditions (the "General
Terms and Conditions") and in the
Schedules attached hereto ("Schedules")
(collectively, the General Terms and
Conditions and the Schedules are referred
to as this "Agreement"), as in effect
from time to time, ACS shall furnish data
processing services and other
information technology services and
resources to Roadway. The Services to be
performed by ACS are described in this
Agreement, on SCHEDULES 2.1 AND 2.4.
(b) ACS shall furnish initial transition
services to commence Processing, and
services to migrate to its Pittsburgh data
center ("Cutover"), including,
without limitation, the services described
on SCHEDULE 2.1. The fees for these
services are included in the One-Time
Charges and the Pass-Through Costs under
SECTION 6.1 AND SCHEDULE 6.1.
2.2 SERVICE LEVELS. ACS will perform the
Services at or within the Service Level
Agreements for the Base Price provided in
SECTION 6.1.
2.3 ADDITIONAL SERVICES. ACS agrees to
provide other Services not described
herein (but only if ACS provides such
Services to any existing customer of ACS),
as needed by Roadway, from time to time
upon the written request of Roadway.
Upon receiving Roadway's request for such
Services, ACS will promptly provide
Roadway with a plan or proposal, including
pricing at fair market value (taking
into account advances in technology and
operating efficiencies), as to the
manner in which a requested Service will be
provided. If Roadway requests
Services that ACS does not provide to any
other ACS customer, ACS will contract
with a third party, upon commercially
reasonable terms, to perform such
Services. Such Services will be performed
under ACS's management and control.
ACS may charge Roadway the third party
contract price plus a management fee to
be negotiated in good faith by the parties
for administering such contract.
2.4 SERVICE LEVELS AND SERVICE LEVEL
AGREEMENTS. ACS agrees that it will be
responsible for and will perform all of the
Services hereunder beginning on the
Commencement Date and continuing throughout
the Term. ACS agrees that its
performance of all Services hereunder will
meet and be in accordance with the
applicable Service Level Agreements
contained in SCHEDULE 2.4.
2.5 SERVICE LEVEL REPORTS. ACS will provide
Roadway with Periodic reports
comparing ACS's performance to the Service
Level Agreements contained in
Schedule 2.4. These reports shall be
delivered to
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Roadway with the content (metrics)
identified on Schedule 2.5 to determine
whether ACS's performance meets the
performance required under the Service Level
Agreements. The format of such reports, as
may be amended from time to time, is
to be mutually agreed upon. At all times,
ACS's level of performance shall meet
or exceed outsourcing industry standards
under similar circumstances and the
Service Level Agreements identified in this
Agreement.
2.6 Reviews.
(a) Within three (3) Periods after the
Cutover Date and at least annually
thereafter, Roadway and ACS shall review
the Service Level Agreements and shall
make adjustments to them as appropriate to
reflect improved performance
capabilities associated with advances in
the technology and methods used to
perform the Services. The Parties expect
and understand that the Service Level
Agreements will be improved over time. As
part of this review process, the
Parties shall jointly determine and agree
on additional Service Level
Agreements, and Service Level Credits to be
added to SCHEDULE 9.2 as
appropriate.
(b) Within three (3) Periods after the
Commencement Date and at least annually
thereafter, ACS shall conduct customer
satisfaction surveys and shall make
adjustments to its provisions of the
Services as appropriate to reflect valid
recommendations in such surveys.
2.7 MEASUREMENT AND MONITORING TOOLS. ACS
shall implement the necessary
measurement and monitoring tools and
procedures required to measure and report
ACS performance of the Services against the
applicable Service Level Agreements.
Such measurement and monitoring shall
permit reporting at a level of detail
sufficient to verify compliance with the
Service Level Agreements, and shall be
subject to audit by Roadway. ACS shall
provide Roadway with information and
access to such tools and procedures upon
request, for purposes of verification.
2.8 Continuous Improvement and Best
Practices.
(a) ACS shall: (i) on a continuous basis,
as part of its total quality
management process, identify and document
ways to improve service levels; (ii)
identify and apply proven techniques and
tools from other installations within
its operations (i.e., "Best Practices")
that would benefit Roadway either
operationally or financially; and (iii)
document and pass on cost reductions to
Roadway as the Best Practices are
implemented; provided, that Section
2.8(a)(iii) will not be used to change the
unit price for CPU, DASD or Tape
contained in the Baseline Pricing Matrix in
SCHEDULE 6.1.
(b) MATERIAL COST REDUCTION OPPORTUNITIES.
ACS shall advise the Roadway Contract
Executive of each opportunity to materially
reduce costs that is discovered or
made known to ACS and to assist in
estimating the magnitude thereof. If ACS
proposes an innovative, value-adding,
cost-saving solution outside the scope of
Services, which Roadway has not previously
considered or began to investigate,
that Roadway, in its sole discretion,
elects to implement, then in each of the
three (3) years following such
implementation, ACS shall receive or retain, as
appropriate, an amount equal to twenty-five
percent (25%) of Roadway's actual
net cost reduction proximately caused by
the solution during such year. This
Section 2.8(b) shall apply to net cost
reductions that accrue during the Term
under accrual basis accounting under
Generally Accepted Accounting Principles
consistently applied by Roadway, regardless
of when the avoided costs would have
been incurred.
2.9 SUBCONTRACTORS. ACS may not delegate to
subcontractors the performance of
any major Service hereunder without the
prior written approval of Roadway.
Otherwise, ACS may engage subcontractors as
it deems appropriate to assist ACS
in furnishing the Services; provided, that,
ACS shall in all cases remain liable
hereunder for the performance of its
obligations in this Agreement.
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2.10 SOFTWARE.
(a) At the Commencement Date, ACS shall
utilize the Roadway-Provided Software in
use at the Effective Date by Roadway,
including, without limitation, that which
is described on SCHEDULES 2.10.2, 2.10.4
AND 2.10.4a, to provide the Services.
(b) SCHEDULES 2.10.1, 2.10.2, 2.10.3,
2.10.4 AND 2.10.4a describe the software
that is Roadway-Provided Software and
ACS-Provided Software, but may not include
an exhaustive listing.
(c) The parties agree to amend SCHEDULES
2.10.1, 2.10.2, 2.10.3, 2.10.4 AND
2.10.4a from time to time to add or delete
items included in Roadway-Provided
Software and ACS-Provided Software, and to
reflect other changes in the software
utilized by ACS to provide the Services
hereunder. ACS may not change
Roadway-Provided Software without Roadway
consent. If other software changes
will (i) increase the charges payable by
Roadway, (ii) increase Roadway's costs,
(iii) adversely impact the Services or (iv)
effect the rights that Roadway may
have negotiated with a vendor, ACS must
receive Roadway's consent before making
such change.
(d) SCHEDULE 2.10.5 lists the Administered
Contracts that ACS will manage at no
additional cost to Roadway. In addition,
SCHEDULE 2.10.5 lists (i) the party
responsible for payments due under the
agreements listed therein, (ii) if ACS is
to secure the agreement and (iii) the party
that has the responsibility to audit
the invoices related to such agreements.
Roadway may elect to add or delete
Administered Contracts, and the parties
agree to amend SCHEDULE 2.10.5 from time
to time to add or delete items.
(e) ACS will maintain and make available to
Roadway comprehensive information
(including copies of agreements with
vendors other than confidential terms and
conditions) regarding all software and
Administered Contracts, from time to
time.
2.11 EQUIPMENT.
(a) ACS will supply all equipment necessary
to perform the Services except those
categories of equipment listed on SCHEDULE
2.11. Although ACS may procure,
manage and operate it, the party owning or
leasing an item of equipment will
continue to bear the financial
responsibility for that equipment.
(b) ACS will procure for Roadway, and ACS
will own or lease, all equipment
purchased by ACS pursuant to the One-Time
Charges shown on the Baseline Pricing
Matrix in SCHEDULE 6.1 at the Effective
Date. At any time during the Term or
upon termination or expiration of this
Agreement and after Roadway has paid the
One-Time Charges, upon Roadway's written
request, ACS will transfer title, free
and clear of all liens, charges or
encumbrances, to any such equipment (as
replaced or supplemented) to Roadway for no
additional consideration. However,
if such equipment is located at an ACS
facility, ACS will have the option of
either (i) transferring title as set forth
above, (ii) transferring title to an
agreed upon comparable piece of equipment
or (iii) paying Roadway the fair
market value of such equipment.
(c) ACS will be responsible for acquiring,
obtaining and keeping current
maintenance for equipment that is necessary
to provide the Services.
(d) If ACS and Roadway determine that new
equipment (other than mainframe
equipment) is necessary to perform the
Services, Roadway will have the option to
obtain the equipment or to require ACS to
obtain the equipment. If Roadway
obtains such equipment, ACS shall support
and maintain such equipment under the
terms of and with pricing consistent with
this Agreement. If ACS is required to
obtain the equipment, ACS will provide to
Roadway detailed cost data including,
but not limited to, the actual cost of the
equipment, including on-going
maintenance costs and lease financing
arrangements, if any, the amount of the
cost of such equipment that will be charged
to Roadway for each Period going
forward, the price at which Roadway may
acquire such equipment if Roadway were
to exercise its right to purchase such
equipment at the termination of this
Agreement. and the amount of any additional
termination fees if Roadway does not
wish to purchase such equipment upon
termination of this Agreement.
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2.12 PROCEDURES MANUAL. ACS shall provide a
Procedures Manual. The Procedures
Manual shall describe how ACS shall perform
the Services under this Agreement,
the equipment and software being used, and
the documents (e.g., operations
manuals, user guides, specifications) which
provide further details of such
activities. The Procedures Manual shall
describe the activities ACS proposes to
undertake in order to provide the Services,
including where appropriate, those
direction, supervision, monitoring,
staffing, reporting, planning and oversight
activities normally undertaken at
facilities that provide services of the type
ACS shall provide under this Agreement. The
Procedures Manual shall be suitable
for use by Roadway to understand the
Services. The Procedures Manual is for
Roadway's internal use only and will not be
disclosed to third parties without
written authorization from ACS.
2.13 DRAFT PROCEDURES MANUAL. Within ninety
(90) days after the Cutover Date,
ACS shall deliver a draft Procedures Manual
to Roadway, for its comments and
review. ACS shall incorporate reasonable
comments or suggestions of Roadway and
shall finalize the Procedures Manual within
one hundred and twenty (120) days of
the Cutover Date. The final Procedures
Manual shall be subject to the approval
of Roadway. ACS shall periodically update
the Procedures Manual to reflect
changes in the operations or procedures
described therein. Updates of the
Procedures Manual shall be provided to
Roadway for review, comment, and
approval. ACS shall perform the Services in
accordance with the Procedures
Manual. In the event of a conflict between
the provisions of this Agreement and
the Procedures Manual, the provisions of
this Agreement shall control unless the
parties expressly agree otherwise and such
agreement is set forth in the
relevant portion of the Procedures
Manual.
2.14 KEY ACS PERSONNEL. The Key ACS
Personnel shall be the personnel set forth
as such in SCHEDULE 2.14. The ACS Account
Manager shall (i) devote all of his or
her time and effort to managing the
Services, (ii) serve as the single point of
accountability for the Services, and (iii)
have day-to-day authority for
undertaking to ensure Roadway satisfaction.
ACS shall cause each of the Key ACS
Personnel to devote all of his or her time
and effort to provision the Services
under this Agreement. Before assigning an
individual to a position designated as
Key ACS Personnel, whether as an initial
assignment or a subsequent assignment,
ACS shall notify Roadway of the proposed
assignment, shall introduce the
individual to appropriate Roadway
representatives, and shall provide Roadway
with a resume and other information about
the individual reasonably requested by
Roadway. If Roadway in good faith objects
to the proposed assignment, the
Parties shall attempt to resolve Roadway's
concern on a mutually agreeable
basis. If the Parties have not been able to
resolve Roadway's concerns within
five (5) working days, ACS shall not assign
the individual to that position and
shall propose to Roadway the assignment of
another individual of suitable
ability and qualifications. Key ACS
Personnel may not be transferred or
reassigned until a suitable replacement has
been approved by Roadway. ACS will
ensure that during any transition period,
any position designated as Key ACS
Personnel will be fully staffed by a
qualified individual.
2.15 QUALIFICATIONS, RETENTION AND
REPLACEMENT OF ACS PERSONNEL. The personnel
ACS assigns to perform the Services shall
be properly educated, trained and duly
qualified for the Services they are to
perform. Roadway and ACS both agree that
it is in their best interests to keep the
turnover rate of the ACS personnel
performing the Services to a reasonably low
level (the level maintained by
well-managed professional service
organizations). Accordingly, if ACS and
Roadway determine that ACS turnover rate is
excessive as compared to information
processing service organizations in similar
markets, ACS and Roadway shall meet
to discuss the reasons for the turnover
rate. If appropriate, ACS shall submit
to Roadway its proposals (which shall be at
no cost to Roadway) for reducing the
turnover rate to a reasonable level, and
the Parties shall mutually agree on a
program to bring the turnover rate down to
such level. In any event,
notwithstanding transfer or turnover of
personnel, ACS remains obligated to
perform the Services without degradation
and in accordance with this Agreement.
In the event that Roadway determines in
good faith that the continued assignment
to the Roadway account of an ACS employee
performing Services hereunder is not
in the best interest of Roadway, then
Roadway shall give ACS written notice to
that effect. After receipt of such notice,
ACS shall have a reasonable period of
time in which to investigate the matters
stated in such notice, discuss its
findings with Roadway and resolve any
problems with such employee. If, following
such period, Roadway requests replacement
of such employee, ACS shall replace
that employee with a person of suitable
ability and qualifications.
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2.16 ROADWAY FACILITIES
(a) OFFICE AND DATA ROOM SPACE.
(i) Throughout the Term, Roadway shall make
available to ACS adequate space in
Roadway's headquarters facility to permit
ACS personnel to perform the Services
in accordance with this Agreement (such
space as it may exist from time to time
being referred to as the "Designated
Space"). ACS personnel who are assigned to
be on-site full time at Roadway's
headquarters facility shall have access to the
Designated Space 24 hours a day, seven days
a week. The Designated Space shall
be separated from the remainder of
Roadway's headquarters facility and shall
have either a separate entrance or an
entrance immediately beyond Roadway's
guard station, as determined by Roadway. In
either case, the location,
configuration and use of such entrance
shall be subject to Roadway's security
requirements. Roadway shall cause the
Designated Space to comply and be
maintained in accordance with all
applicable local, state and federal laws,
including but not limited to the Americans
with Disabilities Act. The manner in
which such compliance and maintenance is
achieved (E.G., the type of fire
suppression system utilized) shall be
determined solely by Roadway. ACS may
establish reasonable security procedures
with respect to the Designated Space,
but Roadway shall have access to the
Designated Space at all times upon
reasonable notice (which may be verbal or
telephonic) to ACS (which notice shall
not be required for performing routine
security checks or maintenance and repair
activities, or in the event of emergency).
ACS agrees that the Designated Space
and the common areas described below are
made available solely as a convenience
to Roadway, and that ACS does not have and
will not assert any tenancy or other
occupancy right whatsoever with respect to
any Designated Space or common areas.
(ii) From the Commencement Date through the
Cutover Date, the Designated Space
shall consist of those portions of
Roadway's AGO West (1077 Gorge Boulevard,
Akron, Ohio) and AGO East (557 East
Tallmadge Avenue, Akron, Ohio) facilities
described or identified on SCHEDULE 2.16,
which ACS initial Designated Space ACS
agrees is adequate. From and after the
Cutover Date, Roadway shall have the
right in its sole discretion, exercisable
from time to time throughout the
remainder of the Term, to change the
Designated Space to another portion or
portions of the AGO West and/or AGO East
facilities upon notice to ACS. ACS
acknowledges that, since as of the Cutover
Date the data processing, support and
management services previously accommodated
within the initial Designated Space
shall be transitioned to ACS' Pittsburgh,
Pennsylvania facility, such
replacement Designated Space identified by
Roadway from time to time following
the Cutover Date shall be smaller than the
initial Designated Space and shall be
of such size as to accommodate only the
Services which are not so transitioned.
At such time as the new Designated Space is
made available for ACS' use, ACS
promptly shall vacate the former Designated
Space. Notwithstanding the
foregoing, at all times the Designated
Space shall be (i) of the same kind and
at the same level and quality as provided
to comparable Roadway employees, and
(ii) adequate to permit ACS personnel to
perform the Services in accordance with
this Agreement.
(iii) ACS shall not make any alterations or
improvements to the Designated Space
without Roadway's prior written consent. In
the event that ACS obtains Roadway's
approval of any such alteration or
improvement, or if ACS elects to relocate any
of its personnel from one portion of the
Designated Space to another portion of
the Designated Space, ACS shall pay for all
of the costs thereof (including
without limitation the costs of set-up and
of relocating or installing voice
data lines), which costs shall not be
reimbursed by Roadway. In the event that
Roadway desires to alter or improve the
Designated Space, or to relocate any of
ACS' personnel from one portion of the
Designated Space to another portion of
the (or to different) Designated Space,
Roadway shall pay for all of the costs
thereof (including without limitation the
costs of set-up and of relocating or
installing voice data lines).
(iv) From time to time, whether pursuant to
Section 2.16(a)(ii) above or at the
end or earlier termination of the Term, ACS
shall cause its personnel to vacate
any Designated Space, and shall remove all
of ACS' furniture or equipment
therefrom, promptly upon request by
Roadway, leaving such Designated Space and
any Office Furniture (as defined herein)
furnished by Roadway in at least as
good condition as such Designated Space or
Office Furniture was in when first
made available to ACS, subject to ordinary
wear and tear, the effects of
casualty (other than the intentional acts
of ACS personnel), and any alterations
or improvements made or approved by
Roadway.
(b) DIRECT COSTS. Subject to the other
applicable provisions of this Agreement,
Roadway shall be responsible for the direct
costs and expenses (I.E., rent, real
estate taxes, utilities and other related
expenses, excluding telephone charges)
of the Designated Space. ACS shall provide
its own phone equipment for use
within the Designated Space (to the extent
that the phone equipment being used
by Caliber Technology, Inc. prior to the
Effective Date is insufficient for ACS'
needs). Long-distance and other phone
charges from the Designated Space shall be
the responsibility of ACS and shall not be
reimbursed by Roadway.
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(c) TRAINING AREA: In the event that
Roadway and ACS agree to have ACS provide
training of Roadway personnel, Roadway
shall make available to ACS as part of
the Designated Space an adequate area in
Roadway's headquarters facility to
permit ACS personnel to perform such
training services in accordance with the
agreement between Roadway and ACS. Such
training area shall be subject to all of
the same terms and conditions as are
applicable to the Designated Space under
this Agreement.
(d) COMMON AREAS: ACS' personnel performing
the Services under this Agreement
shall have the right to use, subject to
availability and in common with Roadway
and its employees, agents and invitees, the
conference rooms within Roadway's
Conference Center in the AGO West facility
known as Conference Rooms 201-204,
the cafeteria located in the AGO West
facility (subject to paying the same
prices as are charged therein to Roadway's
employees), the lobbies and hallways
providing access to the Designated Space,
and the restrooms in the building(s)
in which the Designated Space is
located.
(e) OFFICE FURNITURE.
(i) Throughout the Term, Roadway shall make
available to ACS within the
Designated Space adequate work surfaces and
cubicles (the "Office Furniture" to
permit ACS personnel to perform the
Services in accordance with this Agreement.
From the Commencement Date through the
Cutover Date, such Office Furniture shall
consist of those items described or
identified on SCHEDULE 2.16. From and after
the Cutover Date, Roadway shall have the
right in its sole discretion,
exercisable from time to time throughout
the remainder of the Term, to change
the Office Furniture so provided to ACS
upon notice to ACS. ACS acknowledges
that, since as of the Cutover Date the data
processing, support and management
services previously accommodated within the
initial Designated Space shall be
transitioned to ACS' Pittsburgh,
Pennsylvania facility, such replacement Office
Furniture provided by Roadway from time to
time following the Cutover Date may
consist of less than the Office Furniture
initially provided by Roadway and
shall consist only of such items as to
permit ACS personnel to perform the
Services which are not so transitioned. At
such time as any replacement Office
Furniture is made available for ACS' use,
ACS promptly shall surrender the
former Office Furniture. Notwithstanding
the foregoing, at all times the Office
Furniture provided by Roadway to ACS shall
be (i) of the same kind and at the
same level and quality as provided to
comparable Roadway employees, and (ii)
adequate to permit ACS personnel to perform
the Services in accordance with this
Agreement.
(ii) The Office Furniture or equipment
which Roadway may make available for use
by ACS shall be strictly "as is" and
without warranty, whether of
merchantability or fitness for a particular
purpose or otherwise. ACS shall
maintain in good condition and repair all
Office Furniture made available by
Roadway to ACS.
(iii) In order to avoid any confusion over
the ownership of furniture and
equipment, ACS shall prominently affix an
identification label to all items as
to which ACS claims ownership or possession
and which are located within the
Designated Space or elsewhere at Roadway
properties. Upon request by Roadway
from time to time, ACS shall provide
Roadway with a list, including inventory
numbers, of all such items, which list
shall be updated on a regular basis so
that Roadway accurately may identify the
same.
(f) GENERAL: ACS' use of the Designated
Space, the common areas and the Office
Furniture shall be subject to all of the
other provisions of
