<PAGE>
INFORMATION TECHNOLOGY SERVICES AGREEMENT
between
EMW ENERGY SERVICES CORP.
and
INTERNATIONAL BUSINESS MACHINES CORPORATION
Dated May 12, 2000
*** Confidential treatment has been requested for the portions of this
agreement marked by asterisks. Omitted material for which confidential
treatment has been requested has been filed separately with the
Securities and Exchange Commission.
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND CONSTRUCTION....................................................................1
1.01 DEFINITIONS.....................................................................................1
1.02 INCORPORATION AND REFERENCES...................................................................10
1.03 HEADINGS.......................................................................................11
1.04 INTERPRETATION OF DOCUMENTS....................................................................11
ARTICLE 2 TERM...........................................................................................11
2.01 INITIAL TERM...................................................................................11
2.02 RENEWAL AND EXTENSION..........................................................................11
ARTICLE 3 SERVICES, ETC..................................................................................11
3.01 DESIGNATED SERVICES............................................................................11
3.02 IMPROVED TECHNOLOGY............................................................................12
3.03 GOVERNMENTAL APPROVALS.........................................................................12
3.04 EXCLUSIVITY, INSOURCING AND RESOURCING.........................................................12
3.06 REPORTS........................................................................................13
ARTICLE 4 SI SERVICES AND START-UP SERVICES..............................................................13
4.01 START-UP SERVICES..............................................................................13
4.02 FULL FUNCTIONAL SERVICES.......................................................................14
4.03 SI SERVICES, GENERALLY.........................................................................15
4.04 STEADY STATE SERVICES..........................................................................15
ARTICLE 5 NEW SERVICES...................................................................................15
5.01 NEW SERVICES...................................................................................15
5.02 THIRD PARTY SERVICES...........................................................................16
ARTICLE 6 EMW RESPONSIBILITIES...........................................................................16
6.01 EMW CONTRACT EXECUTIVE.........................................................................16
6.02 USE OF EMW FACILITIES..........................................................................16
ARTICLE 7 SERVICE LEVELS.................................................................................17
7.01 DESIGNATED SERVICE LEVELS......................................................................17
7.02 NEW SERVICE LEVELS.............................................................................17
7.03 ADJUSTMENT OF SERVICE LEVELS...................................................................17
7.04 ROOT-CAUSE ANALYSIS............................................................................17
7.05 MEASUREMENT AND MONITORING TOOLS...............................................................18
7.08 SERVICE LEVEL CREDITS AND SERVICE LEVEL INCENTIVES.............................................18
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ARTICLE 8 EMW SATISFACTION AND BENCHMARKING..............................................................13
8.01 INITIAL CUSTOMER SATISFACTION SURVEY...........................................................13
8.02 CUSTOMER SATISFACTION SURVEY...................................................................13
8.03 BENCHMARKING OVERVIEW..........................................................................19
8.04 BENCHMARKING PROCESS...........................................................................19
8.05 BENCHMARK RESULTS REVIEW PERIOD AND ADJUSTMENTS................................................20
ARTICLE 9 SERVICE LOCATIONS..............................................................................20
9.01 SERVICE LOCATIONS..............................................................................20
9.02 SAFETY AND SECURITY PROCEDURES.................................................................21
9.03 DATA SECURITY..................................................................................21
9.04 SECURITY RELATING TO COMPETITORS...............................................................21
ARTICLE 10 IBM STAFF......................................................................................21
10.01 IBM CONTRACT EXECUTIVE.........................................................................21
10.02 KEY PERSONNEL..................................................................................21
10.03 PROJECT STAFF..................................................................................22
10.04 SUBCONTRACTORS.................................................................................22
10.05 CONDUCT OF IBM PERSONNEL.......................................................................23
10.06 NON-COMPETITION................................................................................23
ARTICLE 11 MANAGEMENT AND CONTROL.........................................................................23
11.01 CHANGE CONTROL PROCEDURES......................................................................23
11.02 PROCEDURES MANUAL..............................................................................24
11.03 CHANGE CONTROL PROCEDURES......................................................................24
ARTICLE 12 PROPRIETARY RIGHTS.............................................................................24
12.01 IBM SOFTWARE, TOOLS AND APIS...................................................................24
12.02 DEVELOPED DATA.................................................................................26
ARTICLE 13 DATA...........................................................................................26
13.01 OWNERSHIP OF EMW DATA..........................................................................26
13.03 RETURN OF DATA.................................................................................26
ARTICLE 14 CONSENTS.......................................................................................27
ARTICLE 15 CONTINUED PROVISION OF SERVICES................................................................27
15.01 BACKUP AND REDUNDANCY PLAN.....................................................................27
15.02 FORCE MAJEURE..................................................................................27
15.03 ALTERNATE SOURCE...............................................................................27
15.04 ALLOCATION OF RESOURCES........................................................................28
ARTICLE 16 PAYMENTS AND INVOICING.........................................................................28
16.01 DESIGNATED FEES................................................................................28
16.02 INVOICES FOR CERTAIN DESIGNATED FEES...........................................................28
16.04 TIME OF PAYMENT................................................................................28
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16.05 DETAILED INVOICES..............................................................................28
16.06 FEE DISPUTE....................................................................................28
16.07 ADJUSTMENTS TO FEES............................................................................29
16.08 EXPENSES.......................................................................................29
16.09 CRITICAL MILESTONES............................................................................29
16.10 PAYMENTS BY IBM................................................................................30
ARTICLE 17 TAXES..........................................................................................30
ARTICLE 18 AUDITS.........................................................................................31
18.01 AUDIT RIGHTS...................................................................................31
18.02 RECORD RETENTION...............................................................................32
ARTICLE 19 CONFIDENTIALITY................................................................................32
19.01 GENERAL OBLIGATIONS............................................................................32
19.02 EXCLUSIONS.....................................................................................33
19.03 RESIDUAL INFORMATION...........................................................................33
19.04 UNAUTHORIZED ACTS..............................................................................34
ARTICLE 20 REPRESENTATIONS AND WARRANTIES.................................................................34
20.01 BY EMW.........................................................................................34
20.02 BY IBM.........................................................................................35
20.03 DISCLAIMER.....................................................................................36
ARTICLE 21 ADDITIONAL COVENANTS...........................................................................36
21.01 BY EMW.........................................................................................36
21.02 BY IBM.........................................................................................36
ARTICLE 22 DISPUTE RESOLUTION.............................................................................38
22.01 OVERVIEW.......................................................................................38
22.02 CONTINUITY OF PERFORMANCE......................................................................39
22.03 EXPEDITED DISPUTE RESOLUTION...................................................................39
ARTICLE 23 TERMINATION....................................................................................39
23.01 TERMINATION FOR CONVENIENCE....................................................................39
23.02 TERMINATION FOR CHANGE IN CONTROL OF IBM.......................................................39
23.03 TERMINATION FOR CAUSE..........................................................................39
23.04 TERMINATION FOR FAILURE TO PROVIDE SERVICES....................................................40
23.05 OTHER TERMINATIONS.............................................................................40
ARTICLE 24 TERMINATION FEES...............................................................................40
24.01 CALCULATION OF TERMINATION FEES................................................................40
24.02 PARTIAL TERMINATION FEE ADJUSTMENT.............................................................40
24.03 TERMINATION FEES...............................................................................40
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ARTICLE 25 TERMINATION ASSISTANCE.........................................................................40
25.01 TERMINATION ASSISTANCE SERVICES................................................................40
25.02 EXIT RIGHTS....................................................................................41
ARTICLE 26 INDEMNITIES....................................................................................42
26.01 INDEMNITY BY EMW...............................................................................42
26.02 INDEMNITY BY IBM...............................................................................43
26.03 INDEMNIFICATION PROCEDURES.....................................................................43
ARTICLE 27 DAMAGES........................................................................................44
27.01 DIRECT DAMAGES.................................................................................44
27.02 CONSEQUENTIAL DAMAGES..........................................................................45
27.03 EXCLUSIONS.....................................................................................45
27.04 INJUNCTIVE RELIEF..............................................................................45
ARTICLE 28 INSURANCE......................................................................................46
28.01 INSURANCE......................................................................................46
28.02 INSURANCE DOCUMENTATION........................................................................46
28.03 RISK OF LOSS...................................................................................46
ARTICLE 29 MISCELLANEOUS PROVISIONS.......................................................................46
29.01 ASSIGNMENT.....................................................................................46
29.02 NOTICES........................................................................................47
29.03 COUNTERPARTS...................................................................................49
29.04 RELATIONSHIP...................................................................................49
29.05 CONSENTS, APPROVALS AND REQUESTS...............................................................49
29.06 SEVERABILITY...................................................................................49
29.07 WAIVERS........................................................................................49
29.08 REMEDIES CUMULATIVE............................................................................49
29.09 ENTIRE AGREEMENT...............................................................................49
29.10 AMENDMENTS.....................................................................................49
29.11 SURVIVAL.......................................................................................49
29.12 THIRD PARTY BENEFICIARIES......................................................................50
29.13 GOVERNING LAW..................................................................................50
29.14 SOLE AND EXCLUSIVE VENUE.......................................................................50
29.15 COVENANT OF FURTHER ASSURANCES.................................................................50
29.16 NEGOTIATED TERMS...............................................................................50
29.17 EXPORT.........................................................................................51
29.18 CONFLICT OF INTEREST...........................................................................51
29.19 PUBLICITY......................................................................................51
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TABLE OF EXHIBITS
Exhibit 1 Statement of Work
Exhibit 2 Specified Software and License Terms
Exhibit 3 Designated IBM Service Locations
Exhibit 4 Fees, CPI Adjustments and Termination Fees
Exhibit 5 Service Levels
Exhibit 6 Operational Planning Process
Exhibit 7 IBM Key Personnel
Exhibit 8 Change Control Procedures
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This INFORMATION TECHNOLOGY SERVICES AGREEMENT, dated May 12,
2000, is between EMW ENERGY SERVICES CORP. ("EMW") and INTERNATIONAL BUSINESS
MACHINES CORPORATION ("IBM").
W I T N E S S E T H:
WHEREAS, EMW and IBM have entered into Letter Agreements dated
February 25, 2000 and April 13, 2000 (the "INTERIM AGREEMENTS") setting forth
the preliminary terms and conditions applicable to the system to be developed by
IBM for customer acquisition, customer care, customer management and revenue
management services with respect to EMW's current or prospective residential or
small commercial retail energy consumers;
WHEREAS, EMW and IBM have engaged in extensive negotiations
and discussions that have culminated in the formation of the definitive
relationship described in this Agreement; and
WHEREAS, IBM desires to provide to EMW, and EMW desires to
obtain from IBM, the services described in this Agreement on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the agreements set
forth below, EMW and IBM agree as follows:
ARTICLE 1 DEFINITIONS AND CONSTRUCTION
1.01 DEFINITIONS. The following defined terms used in this
Agreement shall have the meanings specified below:
"ACQUIRED CUSTOMER" shall have the meaning set forth in
SECTION 3.05.
"ADDITIONAL DESIGNATED IBM SERVICE LOCATION(S)" shall mean any
location other than a Designated IBM Service Location from which IBM or
IBM Agents provide the Services.
"AGREEMENT" shall mean this Information Technology Services
Agreement by and between EMW and IBM, as amended by the Parties from
time to time.
"API" shall mean Application Program Interfaces.
"AUDIT" shall have the meaning set forth in SECTION 18.01.
"BENCHMARK PROCESS" means the objective measurement and
comparison process (using baselines and industry standards) consistent
with this Agreement and mutually agreed upon by EMW and IBM.
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"BENCHMARK RESULTS" means the Benchmarker's written report of
the results of the Benchmark Process, including any appropriate
supporting documentation.
"BENCHMARK REVIEW PERIOD" means the 30 day period following
EMW's and IBM's receipt of the Benchmark Results during which EMW and
IBM will review such Benchmark Results.
"BENCHMARKER" means the firm or individual EMW and IBM jointly
select to conduct the Benchmark Process as set forth in SECTION 8.03.
"CHANGE(S)" shall mean any change to the Services, the
Software used to provide the Services or the Machines used to provide
the Services that would have a material adverse effect on EMW's
business operations or the cost to EMW of the Services.
"CHANGE CONTROL PROCEDURES" shall mean the procedures set
forth in EXHIBIT 8.
"CHANGE IN CONTROL" shall mean the (1) consolidation or merger
of a Party with or into any entity, (2) sale, transfer or other
disposition of all or substantially all of the assets of a Party or (3)
acquisition by any entity, or group of entities acting in concert, of
beneficial ownership of 50 percent or more of the outstanding voting
securities of a Party, or (4) sale, transfer or other disposition of
all or substantially all of the assets of IBM Global Services; provided
however, that a Change in Control shall not include transactions with
affiliates.
"COMMENCEMENT DATE" shall mean the date the day after the
completion of the Start-up Services.
"COMPARATORS" shall have the meaning set forth in SECTION
8.04.
"CONFIDENTIALITY AGREEMENT" shall mean (1) any valid and
binding written confidentiality or non-disclosure agreement or (2)
other agreement containing valid and binding provisions regarding
confidentiality.
"CONFIDENTIAL INFORMATION" shall mean (1) the terms of this
Agreement and (2) information provided by the Discloser to the
Recipient that:
a. is marked confidential;
b. if disclosed orally or not marked confidential, is identified
prior to disclosure as Confidential Information or is
confirmed as Confidential Information in a signed writing
promptly thereafter; or
c. contains the Discloser's customer lists, customer information,
account information, pricing, information regarding business
planning and business operations, and administrative,
financial, or marketing activities, whether disclosed orally
or in writing; provided the Discloser treats such information
as confidential.
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"CONSENTS" shall mean all licenses, consents, authorizations
and approvals that are necessary to allow IBM and IBM Agents to (1) use
any IBM Software and Tools, (2) use any assets owned or leased by IBM,
(3) use any third party services retained by IBM to provide the
Services during the Term and the Termination Assistance Period, (4)
transfer to EMW the IBM Third Party Software after the expiration or
termination of this Agreement, or (5) assign to EMW the rights IBM and
or IBM Agents assign to EMW pursuant to this Agreement.
"CONTRACT EXECUTIVES" shall mean the IBM Contract Executive
and the EMW Contract Executive.
"CONTRACT YEAR" shall mean each 12-month period commencing, in
the case of the first Contract Year, on the Effective Date and
thereafter upon the completion of the immediately preceding Contract
Year.
"CRITICAL SERVICES" shall have the meaning set forth in
Exhibit 5.
"CUSTOMER SATISFACTION SURVEY" shall have the meaning set
forth in SECTION 8.02.
"DATA SAFEGUARDS" shall have the meaning set forth in SECTION
9.03.
"DEFAULT CURE PERIOD" shall have the meaning set forth in
SECTION 23.03.
"DEFAULT NOTICE" shall have the meaning set forth in SECTION
23.03.
"DEFENSE" shall have the meaning set forth in SECTION 26.03.
"DESIGNATED FEES" shall mean the the SI Services Fees and the
Steady State Fees set forth in EXHIBIT 4.
"DESIGNATED SERVICE LEVELS" shall mean the service levels and
standards for the performance of the Designated Services as described
in EXHIBIT 5.
"DESIGNATED IBM SERVICE LOCATION(S)" shall mean the IBM
service locations set forth in EXHIBIT 3.
"DESIGNATED SERVICES" shall have the meaning set forth in
SECTION 3.01.
"DEVELOPED DATA" shall mean the following "outputs" produced
by the Services:
-------------------------------------- -----------------------------------------
CATEGORY "OUTPUTS"
-------------------------------------- -----------------------------------------
Revenue Management Customer Data
Fulfillment Data; Usage History and
Clearinghouse Data
-------------------------------------- -----------------------------------------
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Customer Acquisition / Care Scripts; Enrollment Data; Service Level
Data and Customer Satisfaction Data
-------------------------------------- -----------------------------------------
Business Intelligence Marketing Data; Product Sales Data;
Campaign Data and Data Analysis
-------------------------------------- -----------------------------------------
Knowledge Management Automated Response Data, FAQs and Data
Analysis
-------------------------------------- -----------------------------------------
Revenue Management and Customer All data in master customer database
Acquisition / Care
-------------------------------------- -----------------------------------------
Defined terms used in this definition of "Developed Data" shall have the
meanings specified below:
"Customer Data" shall mean data relating to account, premise, services provided,
rate plan and billing information at the customer level.
"Fulfillment Data" shall mean data relating to the linkage with the fulfillment
provider for non-commodity products and the linkage with the commodity
distribution partners.
"Usage History Data" shall mean data relating to tracking usage by period to
support usage trending and forecasting, which provides the basis for rebilling
and high bill analysis.
"Clearinghouse Data" shall mean data relating to the linkage with market
participants, including the status of service enrollment, turn on / turn off,
and revenue settlement.
"Scripts" shall mean the customer service representative customer contact
scripts.
"Enrollment Data" shall mean the data relating to and establishing the customer
relationship, including marketing channel, campaign information and product
and/or service information.
"Service Level Data" shall mean the data relating to measurements of Service
Level performance, including call arrival rates, call patterning and pickup rate
information.
"Customer Satisfaction Data" shall mean the data relating to and/or comprised of
various forms of surveys and feedback loops to measure customer satisfaction.
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"Marketing Data" shall mean the data relating to and/or comprised of target
market information, segmentation and response measurement for market analysis.
"Product Sales Data" shall mean data relating to what products and services are
being sold and who is buying them.
"Campaign Data" shall mean data relating to campaigns, media, and other
measurements to analysis campaign effectiveness.
"Automated Response Data" shall mean data relating to and/or comprised of e-mail
questions and inquiries received from customers and potential customers.
"FAQ" shall mean data relating to and/or comprised of questions submitted via
the internet by EMW's customers and the corresponding answers provided by EMW.
"Data Analysis" shall mean data which is the combination of all of the
information warehouse data to create the central data mart.
--------------------------------------------------------------------------------
"DISCLOSER" shall mean any party that discloses Confidential
Information.
"DISPUTE RESOLUTION PROCESS" shall have the meaning set forth
in SECTION 22.01.
"EFFECTIVE DATE" shall mean May 12, 2000.
"EMW THIRD PARTY PRODUCTS" shall have the meaning set forth
SECTION 21.01.
"EMW AGENTS" shall mean the agents, contractors,
subcontractors and representatives of EMW, other than IBM and IBM
Agents.
"EMW COMPETITOR" shall mean any entity that is, or that the
applicable IBM employee(s) has knowledge intends to become, an
unregulated energy service provider of electricity and natural gas to
residential and small commercial customers in the domestic United
States. For purposes of the foregoing, "applicable IBM employee(s)"
means (a) for purposes of SECTION 4.03, the IBM employee(s) referring
to or accessing or controlling the ability of others to refer to or
access, the applicable written information, files or documentation
described therein and (b) for purposes of Section 10.06, the IBM Key
Personnel, the members of the Project Staff described in Section
10.06(2) and the IBM employees responsible for assigning such Key
Personnel and members of the Project Staff.
"EMW CONTRACT EXECUTIVE" shall have the meaning set forth in
SECTION 6.01.
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"EMW DATA" shall mean all Developed Data and all data (1)
submitted to IBM or IBM Agents by or on behalf of EMW or (2) obtained,
or produced by IBM or IBM Agents in performance of the Services
(excluding IBM Data to the extent contained therein), including, with
respect to (1) and (2) above, data relating to EMW's: customers,
employees, technology, operations, facilities, consumer markets,
products, capacities, systems, procedures, security practices,
research, development, business affairs and finances, ideas, concepts,
innovations, inventions, designs, business methodologies, improvements,
trade secrets, copyrightable subject matter, patents and other
intellectual property and proprietary information.
"END DATE" shall have the meaning set forth in the definition
of Termination Assistance Period.
"END-USERS" shall mean users of the Services, as specified by
EMW.
"ENERGY CONSUMERS" shall have the meaning set forth in SECTION
7.06.
"EXTENSION PERIOD" shall have the meaning set forth in SECTION
2.02.
"FEES" shall mean the Designated Fees, all fees in connection
with New Services, and any other amounts specified as payable by EMW to
IBM pursuant to this Agreement.
"FIXED FEES" shall have the meaning set forth in EXHIBIT 4.
"FORCE MAJEURE EVENT" shall have the meaning set forth in
SECTION 15.02.
"FULL FUNCTIONAL SCHEDULE" shall mean the schedule for the
implementation of the Full Functional Services, as agreed by the
Parties prior to the commencement of the Steady State Services.
"FULL FUNCTIONAL SERVICES" shall have the meaning set forth in
EXHIBIT 1.A.
"GOVERNMENTAL APPROVAL(S)" shall mean any license, consent,
permit, approval or authorization of any person or entity, or any
notice to any person or entity, the granting of which is required by
applicable law, rule or regulation, including Regulatory Requirements,
for the consummation of the transactions contemplated by this
Agreement.
"IBM AGENTS" shall mean the agents, contractors,
subcontractors and representatives of IBM.
"IBM DATA" shall mean all data submitted to EMW or EMW Agents
by or on behalf of IBM under this Agreement and relating to IBM's:
customers, employees, technology, operations, facilities, consumer
markets, products, capabilities, systems, procedures, security
practices, research, development, business affairs and finances, ideas,
concepts, innovations, inventions, designs, business methodologies,
improvements, trade secrets, copyrightable subject matter, patents and
other intellectual property and proprietary information.
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"IBM CONTRACT EXECUTIVE" shall have the meaning set forth in
SECTION 10.01.
"IBM KEY PERSONNEL" shall mean the IBM Contract Executive and
such other individuals specified in EXHIBIT 7, collectively, and their
replacements.
"IBM MACHINES" shall mean those Machines leased or owned by
IBM and IBM Agents that are used by IBM and IBM Agents to provide the
Services.
"IBM PROPRIETARY SOFTWARE" shall mean the Software owned or
developed by or on behalf of IBM that is used in connection with the
Services.
"IBM PROPRIETARY TOOLS" shall mean the Tools owned or
developed by or on behalf of IBM that is used in connection with the
Services.
"IBM SERVICE LOCATION" shall mean, collectively, the
Designated IBM Service Locations and the Additional Designated IBM
Service Locations.
"IBM SOFTWARE" shall mean the IBM Proprietary Software and the
IBM Third Party Software, collectively.
"IBM THIRD PARTY SOFTWARE" shall mean the Software licensed or
leased by IBM from a third party that is used in connection with the
Services.
"IBM THIRD PARTY TOOLS" shall mean the Tools licensed or
leased by IBM from a third party that is used in connection with the
Services.
"IBM TOOLS" shall mean the IBM Proprietary Tools and the IBM
Third Party Tools, collectively.
"IMPROVED TECHNOLOGY" shall mean any new developments in
Software and Machines that could reasonably be expected to have an
impact on EMW's business, to the extent known and made available within
or by IBM.
"INITIAL AGREEMENT EXPIRATION DATE" shall mean May 11, 2010.
"INITIAL CUSTOMER SATISFACTION SURVEY" shall have the meaning
set forth in SECTION 8.01.
"INITIAL TERM" shall have the meaning set forth in SECTION
2.01.
"INTERIM AGREEMENTS" shall have the meaning set forth in the
first recital.
"LOSSES" shall mean any and all damages, fines, penalties,
deficiencies, losses, liabilities (including settlements and judgments)
and expenses (including interest, court costs, reasonable fees and
expenses of attorneys, accountants and other experts or other
reasonable expenses of litigation or other proceedings or of any claim,
default or assessment).
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"MACHINES" shall mean computers and related equipment,
including central processing units and other processors, controllers,
modems, communications and telecommunications equipment (voice, and
data), cables, storage devices, printers, terminals, other peripherals
and input and output devices, and other tangible mechanical and
electronic equipment intended for the processing, input, output,
storage, manipulation, communication, transmission and retrieval of
information and data.
"NEW SERVICE(S)" shall mean any service that is outside the
scope of the Designated Services.
"NEW SERVICE LEVEL(S)" shall mean any service level
established by IBM and EMW in connection with a New Service, which upon
establishment by the Parties shall be deemed incorporated into EXHIBIT
5.
"NONPERFORMING PARTY" shall have the meaning set forth in
SECTION 15.02.
"PARTIES" shall mean EMW and IBM, collectively.
"PARTY" shall mean either EMW or IBM, as the case may be.
"PASS-THROUGH EXPENSES" shall mean the expenses payable by EMW
pursuant to SECTION 16.08, as more fully described in EXHIBIT 4.
"PROCEDURES MANUAL" shall have the meaning set forth in
SECTION 11.02.
"PROJECT STAFF" shall mean the IBM personnel and
subcontractors who provide the Services in accordance with this
Agreement.
"RECIPIENT" shall mean any Party which receives or otherwise
becomes aware of Confidential Information.
"REGULATORY REQUIREMENTS" shall mean the laws, rules and
regulations on a Federal, state and local level to which either party
is required to submit or voluntarily submits from time to time.
"RELATED DOCUMENTATION" shall mean, with respect to Software
and Tools, all materials, documentation, specifications, technical
manuals, user manuals, flow diagrams, file descriptions and other
written information that describes the function and use of such
Software or Tools, as applicable.
"RESIDUAL INFORMATION" shall have the meaning set forth in
SECTION 19.03.
"SAFETY AND SECURITY PROCEDURES" shall mean IBM's safety and
security procedures, as the same may be modified by IBM from time to
time.
"SERVICES" shall mean the Designated Services and the New
Services, collectively.
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"SERVICE CATEGORY" shall mean the Designated Services provided
in respect of the following two categories: (a) customer
acquisition/customer care, and (b) revenue management, all as further
described in EXHIBIT 1.
"SERVICE LEVELS" shall mean the Designated Service Levels and
the New Service Levels, collectively.
"SERVICE LEVEL CREDITS" shall mean the service level credits
set forth in EXHIBIT 5.
"SOFTWARE" shall mean the object code versions of any
applications programs, operating system software, computer software
languages, utilities, other computer programs and Related
Documentation, in whatever form or media, including the tangible media
upon which such applications programs, operating system software,
computer software languages, utilities, other computer programs and
Related Documentation are recorded or printed, together with all
corrections, improvements, updates and releases thereof.
"SI SERVICES FEES" shall have the meaning set forth in EXHIBIT
4.
"SI SERVICES" shall mean, collectively, the Start-up Services
and the Full Functional Services.
"START-UP SCHEDULE" shall mean the schedule for implementation
of Start-up Services, as set forth in EXHIBIT 1.A.
"START-UP SERVICES" shall have the meaning set forth in
EXHIBIT 1.A.
"STEADY STATE FEES" shall mean, collectively, the Fixed Fees
and the Variable Fees.
"STEADY STATE SCHEDULE" shall mean the schedule for the
implementation of the Steady State Services, as agreed by the parties
prior to the commencement of such Services.
"STEADY STATE SERVICES" shall have the meaning set forth in
EXHIBIT 1.B.
"TERM" shall mean the Initial Term and any renewal or
extension of the Initial Term in accordance with this Agreement.
"TERMINATION ASSISTANCE PERIOD" shall mean a period of time
designated by EMW, during which IBM shall provide the Termination
Assistance Services in accordance with this Agreement, commencing upon
the earlier of the date (1) of which EMW notifies IBM, following the
date on which either Party has provided the other Party with a notice
of termination in accordance with this Agreement and (2) six months
prior to the expiration or termination of this Agreement (the
"TERMINATION NOTICE DATE") and continuing for up to six months after
the expiration or termination of this Agreement (the "END DATE");
provided, however, that upon 90 days notice to IBM prior to the End
Date, EMW may (a) extend such End Date for up to six months or (b)
change such End Date to an earlier date.
"TERMINATION ASSISTANCE SERVICES" shall mean (1) the Services
(and any replacements thereof or substitutions therefor), to the extent
EMW requests such Services
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during the Termination Assistance Period; (2) IBM's cooperation with
EMW or another service provider designated by EMW in the transfer of
the Services to EMW or such other service provider in order to
facilitate the transfer of the Services to EMW or such other service
provider, including capacity planning, consulting services, facilities
planning, telecommunications planning, Software configuration,
reviewing all system Software with EMW or such other service provider,
uploading production databases, providing parallel processing testing
and providing Machines, where practicable.
"TERMINATION FEES" shall have the meaning set forth in SECTION
24.01.
"TERMINATION NOTICE DATE" shall have the meaning set forth in
the definition of Termination Assistance Period.
"TOOLS" shall mean any Software development and performance
testing tools, know-how, methodologies, processes, technologies or
algorithms and Related Documentation used by IBM in providing the
Services.
"TRIGGER EVENT" shall mean EMW's determination that there has
been a material change in EMW's business (including, E.G., divestitures
or acquisitions).
"USE" shall mean the right to access, execute, display, and
configure, but with respect to IBM Third Party Software only to the
extent permitted by the applicable IBM Third Party Software license.
"VARIABLE FEES" shall have the meaning set forth in EXHIBIT 4.
"WORK PRODUCT" shall mean any literary works created under
this Agreement, including manuals, training materials and
documentation, but excluding Software.
1.02 INCORPORATION AND REFERENCES. In this Agreement and
the Exhibits to this Agreement:
(1) the Exhibits to this Agreement are hereby
incorporated into and deemed part of this Agreement
and all references to this Agreement shall include
the Exhibits to this Agreement;
(2) references to an Exhibit, Section or Article shall be
to such Exhibit to, or Section or Article of, this
Agreement unless otherwise provided;
(3) references to any Law shall mean references to such
Law in changed or supplemented form or to a newly
adopted Law replacing a previous Law; and
(4) references to and mentions of the word "including" or
the phrase "E.G." shall mean "including, without
limitation."
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1.03 HEADINGS. The Article and Section headings, Table
of Contents and Table of Exhibits are for reference and convenience only and
shall not be considered in the interpretation of this Agreement.
1.04 INTERPRETATION OF DOCUMENTS. Except as otherwise
expressly set forth in the body of this Agreement or in any of the Exhibits,
in the event of a conflict between the provisions in the body of the this
Agreement and the Exhibits, the provisions in the body of this Agreement shall
prevail.
ARTICLE 2 TERM.
2.01 INITIAL TERM. The initial term of this Agreement
shall commence on the Effective Date and continue until 24:00 (Central
Daylight Time) on the last day of the Initial Agreement Expiration Date, or
such earlier date upon which this Agreement may be terminated in accordance
with its terms (the "INITIAL TERM").
2.02 RENEWAL AND EXTENSION. Unless this Agreement is
terminated earlier in accordance with its terms, each Party shall notify the
other at least 12 months prior to the Initial Agreement Expiration Date as to
whether such Party desires to renew this Agreement. If EMW fails to provide
IBM with any notice or provides IBM with notice that it does not desire to
renew this Agreement, this Agreement shall expire on the Initial Agreement
Expiration Date. If EMW provides IBM with notice that it desires to renew this
Agreement and the Parties have not agreed on the terms and conditions
applicable to the renewal of this Agreement three months prior to the Initial
Agreement Expiration Date, then EMW shall have the option to extend the term
of this Agreement, and upon EMW's exercise of such option this Agreement shall
be so extended for a period of up to six months from the Initial Agreement
Expiration Date (the "EXTENSION PERIOD") at the charges, terms and conditions
in effect as of the Initial Agreement Expiration Date. If during the Extension
Period the Parties are unable to reach agreement on the terms and conditions
applicable to the renewal of this Agreement, this Agreement shall expire at
the end of the Extension Period.
ARTICLE 3 SERVICES, ETC.
3.01 DESIGNATED SERVICES. Commencing as of the Effective
Date and continuing throughout the Term and the Termination Assistance Period,
IBM shall be responsible for providing to EMW:
(1) the Start-up Services, the Steady State Services and
the Full Functional Services; and
(2) any services, functions or responsibilities not
specifically described in this Agreement, but which
are inherent subtasks required for the proper
performance and delivery of the services described in
clause (1) of this Section and not otherwise
specifically excluded or identified in this Agreement
as a EMW responsibility (clauses (1) and (2) of this
Section, collectively, the "DESIGNATED SERVICES").
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Subject to Section 3.04, IBM shall increase or decrease the amount of the
Services according to EMW's business volumes and in accordance with this
Agreement. The Parties agree that all services provided by IBM to EMW under
the Interim Agreements shall for all purposes be considered Designated
Services provided under this Agreement. The Parties shall act in accordance
with Exhibit 6 with regard to forecasting and planning for Steady State
Services.
3.02 IMPROVED TECHNOLOGY. In providing technology and
the Services to EMW, IBM shall (1) jointly with a EMW's designee and in
accordance with the Procedures Manual, identify the least cost/highest benefit
methods to implement technology changes and proven methodologies and, upon
EMW's approval, implement technology changes and proven methodologies, (2) at
EMW's request, inform EMW about the Improved Technology for EMW's evaluation
in connection with the Services and (3) at EMW's request, meet with EMW once
during every 60 day period in accordance with the Procedures Manual to inform
EMW of any new technology relating to the Services which IBM is developing or
of which IBM is otherwise aware that could reasonably be expected to have an
impact on EMW's business.
3.03 GOVERNMENTAL APPROVALS Each Party shall obtain and
maintain all respective Governmental Approvals necessary to fulfill its
obligations under this Agreement. Upon either Party's request, the other Party
shall cooperate in obtaining any such Governmental Approvals to the extent
reasonably possible.
3.04 EXCLUSIVITY, INSOURCING AND RESOURCING
(1) During the Initial Term, IBM shall be the exclusive
provider of (a) the SI Services and (b) the Steady
State Services (excluding outbound customer
acquisition services) with respect to all goods and
services EMW provides to residential and small
commercial customers.
(2) IBM and EMW agree that if a third party provider of
goods or services to EMW requires that certain Steady
State Services that would otherwise be exclusive to
IBM under this Section be handled by or through a
firm other than IBM, IBM and EMW shall discuss such
provider's requirements. If, after EMW uses
reasonable efforts to have such provider waive or
remove such requirements, such provider refuses to do
so on commercially reasonable grounds, IBM shall
waive the exclusivity obligations set forth herein,
but only to the extent necessary to accommodate the
requirements of such provider. If such a waiver is
granted, EMW and IBM agree that they shall enter into
good faith negotiations to address financial
shortfalls to IBM under this Agreement, if any, to
the extent caused by such provider's requirements;
provided, however, if IBM has received cumulative
Steady State Fees from EMW in the minimum amounts
calculated as set forth below (each, a "Revenue
Minimum") by the dates determined as set forth below
(each, a "Minimum Revenue Date"), then during the
calendar quarter after the applicable Minimum Revenue
Date IBM shall not be entitled to recover any
financial shortfalls as a result of any agreements
entered into with a third party provider as to which
a waiver has previously been given by IBM.
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<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
REVENUE MINIMUM MINIMUM REVENUE DATE
(millions)
----------------------------------------------------------------------------------------------
<S> <C>
*** October 1, 2001
----------------------------------------------------------------------------------------------
An amount equal to the total of the preceding The first day of each succeeding
Revenue Minimum amounts plus *** calendar quarter
----------------------------------------------------------------------------------------------
</TABLE>
(3) IBM's exclusivity under Section 3.04(1) shall
terminate at such time as IBM shall have received
$1.5 billion in cumulative revenue from EMW for the
provision of the Services. At such time, and upon at
least 60 days' notice to IBM, EMW may insource or
obtain from a third party all, or any portion, of the
Services. In the event EMW insources or obtains from
a third party all, or any portion, of the Services,
IBM shall cooperate in good faith with EMW and any
such third party, to the extent reasonably required
by EMW.
3.05 ACQUISITIONS. Notwithstanding anything to the
contrary contained in this Agreement, if EMW acquires any entity (whether by
stock or assets), EMW shall not be obligated to obtain any Services from IBM
in respect of such acquisition, provided however, that EMW shall in good faith
use commercially reasonable efforts to obtain the Steady State Services
referred to in SECTION 3.04 in respect of the residential and small commercial
customers acquired in such acquisition (such customers being referred to as
"ACQUIRED CUSTOMERS"). If EMW decides to obtain such Steady State Services for
Acquired Customers, then (1) EMW shall provide IBM with the information that
IBM requires in order to begin providing such Steady State Services to such
Acquired Customers, (2) IBM shall notify EMW of all incremental costs that IBM
will incur in order to be able to provide such Steady State Services in
respect of such Acquired Customers (which incremental costs shall be
reasonable), (3) upon EMW's agreement to pay such reasonable incremental
costs, which shall not be unreasonably withheld, IBM shall promptly undertake
to commence the provision of such Steady State Services, which shall
thereafter be deemed "Designated Services" for all purposes of this Agreement.
3.06 REPORTS. In accordance with and at the times
specified in EXHIBIT 1.B, IBM shall provide to EMW, in a form reasonably
acceptable to EMW, the reports set forth in EXHIBIT 1.B. In addition, in
accordance with the Procedures Manual the Parties shall determine what other
reports are necessary or otherwise beneficial to EMW under this Agreement or
in the operation of its business.
ARTICLE 4 SI SERVICES AND STEADY STATE SERVICES.
4.01 START-UP SERVICES.
(1) IBM shall perform all functions and services
necessary to complete the Start-up Services as
described in the Statement of Work on August 1, 2000.
IBM shall designate an individual who shall be
responsible for managing and implementing the
Start-up Services. Until the completion of the
Start-up
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Services, such individual shall review with the EMW
Contract Executive the status of the Start-up
Services for which that individual is responsible as
often as may be reasonably requested by the EMW
Contract Executive.
(2) Upon notice from EMW that EMW desires IBM to extend
the Start-up Schedule, or if the Start-up Schedule is
extended as a result of delays caused by EMW or EMW
Agents or as a result of EMW's Regulatory
Requirements, IBM shall extend the Start-up Schedule
for the applicable period of time and EMW shall pay
IBM the Fees associated with extending the Start-up
Schedule.
(3) In the event the Start-up Schedule is extended as a
result of delays caused by IBM or IBM Agents, (a) EMW
shall continue to pay the Designated Fees, subject to
EMW's refund and credit rights in accordance with
this Agreement and (b) IBM shall pay to EMW the
amount of liquidated damages described in SECTION
16.09(1) for each day's extension of the Start-up
Schedule.
(4) In the event either Party incurs costs in connection
with the extension of the Start-up Schedule for which
the other Party is responsible under this Agreement,
the Party incurring the costs shall be obligated to
use all commercially reasonable efforts to minimize
such costs.
4.02 FULL FUNCTIONAL SERVICES.
(1) IBM shall perform all functions and services
necessary to commence providing the Full Functional
Services as described in the Statement of Work within
10 months after the completion of the Start-up
Services. IBM shall designate an individual who shall
be responsible for managing and implementing the Full
Functional Services. Until the completion of the Full
Functional Services, such individual shall review
with the EMW Contract Executive the status of the
Full Functional Services for which that individual is
responsible as often as may be reasonably requested
by the EMW Contract Executive.
(2) Upon notice from EMW that EMW desires IBM to extend
the Full Functional Schedule, or if the Full
Functional Schedule is extended as a result of delays
caused by EMW or EMW Agents or as a result of EMW's
Regulatory Requirements, IBM shall extend the Full
Functional Schedule for the applicable period of time
and EMW shall pay IBM the Fees associated with
extending the Full Functional Schedule.
(3) In the event the Full Functional Schedule is extended
as a result of delays caused by IBM or IBM Agents,
(a) EMW shall continue to pay the Designated Fees,
subject to EMW's refund and credit rights in
accordance with this Agreement and (b) IBM shall pay
to EMW the amount of liquidated damages described in
SECTION 16.09(3) for each day's extension of the Full
Functional Schedule.
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(4) In the event either Party incurs costs in connection
with the extension of the Full Functional Schedule
for which the other Party is responsible under this
Agreement, the Party incurring the costs shall be
obligated to use all commercially reasonable efforts
to minimize such costs.
4.03 SI SERVICES, GENERALLY.
IBM agrees, that in proposing to or performing for EMW
Competitors services that are substantially similar to the SI Services, IBM
will not, until *** after *** refer to or access, or allow any other entity
or person to refer to or access, any written information, files or
documentation that (1) were specifically created in IBM's performance of the
SI Services and (2) describe the method of implementation of the unique
system architecture provided to EMW in performance of the SI Services;
provided, however IBM may refer to or access, or allow any other entity or
person to refer to or access, such written information, files and
documentation for purposes of performing any services for customers that are
not EMW Competitors; and provided further that as to EMW Competitors (1) the
foregoing restrictions on IBM's ability to refer to or access, or permit a
another entity or person to refer to or access, such written information,
files and documentation shall not prevent IBM from (a) fulfilling any
proposals made (but only to the extent set forth in the proposal and only if
IBM is selected to provide services as a result of such proposal) or (b)
complying with contractually binding commitments (but only to the extent IBM
has no discretion in refusing to perform) entered into, in each case prior to
the date a third party may become an EMW Competitor, and (2) IBM may, subject
to SECTION 10.06, propose or perform services that are substantially similar
to the SI Services so long as the proposal or services are created without
reference or access, or allow any other entity or person to refer to or
access, to such written information, files or documentation. In addition, IBM
shall not disclose or disseminate to any third party, except to the extent
previously disclosed or disseminated by EMW, the fact the EMW utilizes or
employs any specific system integration software configuration or other
technical solution created for EMW by IBM in performance of the SI Services.
4.04 STEADY STATE SERVICES.
(1) IBM shall perform all functions and services
necessary to commence providing the Steady State
Services as described in the Statement of Work on the
Commencement Date. IBM shall designate an individual
who shall be responsible for managing and
implementing the Steady State Services. Until the
commencement of the Steady State Services, such
individual shall review with the EMW Contract
Executive the status of the Steady State Services for
which that individual is responsible as often as may
be reasonably requested by the EMW Contract
Executive.
(2) Upon notice from EMW that EMW desires IBM to extend
the Steady State Schedule, or if the Steady State
Schedule is extended as a result of delays caused by
EMW or EMW Agents or as a result of EMW's Regulatory
Requirements, IBM shall extend the Steady State
Schedule for the applicable period of time and EMW
shall pay IBM the Fees associated with extending the
Steady State Schedule.
(3) In the event the Steady State Schedule is extended as
a result of delays caused by IBM or IBM Agents, (a)
EMW shall continue to pay the Designated Fees,
subject to EMW's refund and credit rights in
accordance with this Agreement and (b) IBM shall pay
to EMW the amount of liquidated damages described in
SECTION 16.09(2) for each day's extension of the
Steady State Schedule.
(4) In the event either Party incurs costs in connection
with the extension of the Steady State Schedule for
which the other Party is responsible under this
Agreement, the Party incurring the costs shall be
obligated to use all commercially reasonable efforts
to minimize such costs.
ARTICLE 5 NEW SERVICES.
5.01 NEW SERVICES. EMW may from time to time during the
Term request that IBM perform a New Service. Upon receipt of such a request
from EMW, IBM shall provide EMW with:
(1) a description of the work IBM anticipates performing
in connection with such New Service;
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(2) a schedule for commencing and, if applicable,
completing such New Service;
(3) IBM's prospective charges for such New Service;
(4) when appropriate, a description of any new Software
or Machines to be provided by IBM in connection with
such New Service;
(5) when appropriate, the Software and Machines and
run-time requirements necessary to develop and
operate any new Software;
(6) when appropriate a description of the human resources
necessary to develop and operate the product or
provide the New Service;
(7) when appropriate, a list of any existing Software or
Machines included in or to be used in connection with
such New Service; and
(8) when appropriate, acceptance test criteria and
procedures for any new Software or any products,
packages or services.
IBM shall not begin performing any New Service until EMW has
provided IBM with authorization to perform the New Service from the EMW
Contract Executive. If EMW agrees to have IBM perform such New Services, IBM
and EMW will prepare and sign an amendment to this Agreement for such New
Services.
5.02 THIRD PARTY SERVICES. NOTWITHSTANDING ANY REQUEST
MADE TO IBM BY EMW PURSUANT TO SECTION 5.01 OR ANY OTHER
PROVISION IN THIS AGREEMENT, EMW SHALL HAVE THE RIGHT TO
CONTRACT WITH A THIRD PARTY TO PERFORM ANY NEW SERVICE. UPON
EMW'S REQUEST, IBM SHALL ASSIST EMW IN IDENTIFYING QUALIFIED
THIRD PARTY SUPPLIERS TO PROVIDE NEW SERVICES. IN THE EVENT
EMW CONTRACTS WITH A THIRD PARTY TO PERFORM ANY NEW SERVICE,
IBM SHALL COOPERATE IN GOOD FAITH WITH EMW AND ANY SUCH THIRD
PARTY, TO THE EXTENT REASONABLY REQUIRED BY EMW.
ARTICLE 6 EMW RESPONSIBILITIES.
6.01 EMW CONTRACT EXECUTIVE. Prior to or on the
Effective Date, EMW shall appoint an individual (the "EMW CONTRACT EXECUTIVE")
who shall serve as the primary EMW representative under this Agreement. The
EMW Contract Executive shall have the responsibilities set forth in the
Procedures Manual.
6.02 USE OF EMW FACILITIES.
(1) EMW will provide IBM, at no charge to IBM, with the
use of space, equipment, and support at EMW's
headquarters reasonably necessary for the IBM project
office; provided that such IBM project office staff
shall not exceed 10 people unless agreed to by the
Parties. This use of space shall include all heat,
light, power, air conditioning and other similar
utilities,
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reasonable office space, furniture, secure storage
space, office supplies, telephone service, office
support services (including security and janitorial),
coordination of facility access security
requirements, and administrative support. In
addition, EMW will provide IBM with full and safe
access to such facilities; and the same or similar
access to EMW's workplace services, such as parking
and cafeteria facilities, if any, as EMW provides to
its employees and subcontractors.
(2) EMW will use reasonable efforts to provide the IBM
Contract Executive, at no charge to IBM, with the
same or similar private office space, if any, as EMW
provides to its senior executives.
(3) If EMW relocates its headquarters, EMW will:
a. provide IBM with space and support in the
new location that is comparable to the space
and support provided in the previous
location;
b. reimburse IBM for any reasonable one time
expenses incurred as a result of the
relocation; and
c. if the relocation impacts IBM's ability to
meet the Service Levels, relieve IBM from
the affected Service Levels until the
relocation is complete and the Service
Levels are appropriately adjusted, if
applicable.
ARTICLE 7 SERVICE LEVELS.
7.01 DESIGNATED SERVICE LEVELS. IBM shall perform the
Designated Services in accordance with the Designated Service Levels. The
Service Level Credits and the Earnback Credits referred to in SECTION 7.08
shall become effective in accordance with EXHIBIT 5.
7.02 NEW SERVICE LEVELS. IBM shall provide the New
Services at least at the New Service Levels applicable to such New Services.
7.03 ADJUSTMENT OF SERVICE LEVELS. In accordance with
EXHIBIT 5, EMW shall be entitled to adjust or introduce new Designated Service
Levels. The Parties shall develop a process, to be documented in the
Procedures Manual, to (a) review and, if applicable, adjust the Service Levels
and (b) determine, if applicable, any New Service Levels, in each case once
each contract year and upon the occurrence of a Trigger Event.
7.04 ROOT-CAUSE ANALYSIS. Upon IBM's failure to provide
the Services in accordance with the applicable Service Levels, IBM shall, as
soon as reasonably practicable and unless otherwise agreed to by EMW, (1)
perform a root-cause analysis to identify the cause of such failure, (2)
provide EMW with a report detailing the cause of, and procedure for
correcting, such failure as applicable and (3) implement such procedure where
the cause is within IBM's responsibility and control.
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7.05 MEASUREMENT AND MONITORING TOOLS. The parties shall
develop and document a relevant set of metrics to measure IBM's performance of
the Services against the applicable Service Levels. The parties shall adjust
metric targets periodically with the expectation of continued improvements in
performance by IBM as described in SECTION 7.07 and as set forth in EXHIBIT 5.
7.07 CONTINUOUS IMPROVEMENT. IBM acknowledges that the
quality of certain of the Services provided can and will be improved during
the Term and agrees that the Service Levels for such Services will be enhanced
periodically in recognition of the anticipated improvement in service quality.
IBM will improve the quality of the Services provided in such areas to meet or
exceed any enhanced Service Levels.
7.08 SERVICE LEVEL CREDITS AND EARNBACK CREDITS. In the
event of a failure to provide the Services in accordance with the applicable
Service Levels, IBM shall incur the Service Level Credits identified in and
according to the procedures and schedule set forth in EXHIBIT 5. In the event
of a provision of the Services in accordance with the applicable Earnback
Credits, IBM shall receive the Earnback Credits identified in and according to
the procedures and schedule set forth in EXHIBIT 5. ***
ARTICLE 8 EMW SATISFACTION AND BENCHMARKING.
8.01 INITIAL CUSTOMER SATISFACTION SURVEY. During the 90
day period after the Effective Date, IBM shall submit to EMW, for EMW's
approval, the identity of the unaffiliated third party that shall conduct an
initial customer satisfaction survey. Upon EMW's approval of such third party,
IBM, at IBM's cost and expense, shall engage such third party to conduct an
initial customer satisfaction survey, commencing on January 1, 2001, as
approved by EMW for affected End-Users and senior management of EMW, in each
case as specified by EMW (the "INITIAL CUSTOMER SATISFACTION SURVEY"). The
Initial Customer Satisfaction Survey shall be (1) of the content and scope set
forth in the Procedures Manual, (2) administered in accordance with the
procedures set forth in the Procedures Manual and (3) subject to EMW's
approval.
8.02 CUSTOMER SATISFACTION SURVEY.
(1) At least once every Contract Year during the Term,
IBM shall, upon EMW's request, engage an unaffiliated
third party approved by EMW to conduct a customer
satisfaction survey in respect of those aspects of
the Services designated by EMW (the "CUSTOMER
SATISFACTION SURVEY"). The Customer Satisfaction
Survey, shall, at a minimum, cover a representative
sampling of End-Users and senior management of EMW,
in each case as specified by EMW. The timing,
content, scope and method of the Customer
Satisfaction Survey shall be consistent with the
Initial Customer Satisfaction Survey and subject to
EMW's approval. IBM agrees that (a) increased
measured customer satisfaction shall be a key
performance incentive for the compensation of the IBM
Key Personnel and (b) customer satisfaction shall be
measured as a service level pursuant to EXHIBIT 5.
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(2) In the event that EMW disputes the results of the
Customer Satisfaction Survey, EMW may invoke the
Dispute Resolution Process.
8.03 BENCHMARKING OVERVIEW. The Benchmark Process may be
initiated upon EMW's request received by IBM upon at least 30 days prior
notice and no earlier than the second anniversary following the Effective Date
and thereafter not more often than once every two Contract Years. IBM and EMW
shall share the Benchmarker's fees and expenses. EMW and IBM shall agree on
the Benchmarker, taking into consideration the skill, experience,
responsiveness, objectivity, fees and expenses of qualified firms or
individuals. EMW and IBM shall promptly agree to a replacement Benchmarker in
the event the Benchmarker is not available or EMW and IBM agree to replace
such Benchmarker.
8.04 BENCHMARKING PROCESS. EMW, IBM and the Benchmarker
shall conduct the Benchmark Process according to the following methodology.
(1) There will be a representative, statistical sampling
of a sufficient number of receivers of the quality
and quantity of services comparable to the Services
(the "COMPARATORS").
(2) The Benchmarker will compare the Service Levels
provided in this Agreement with the Comparators'
service levels, where such comparison is meaningful
and objective.
(3) The Benchmarker's data used in the Benchmark Process
will be reasonably current and in any event based on
services provided to the Comparators no more than 12
months prior to the dates on which the Services were
provided to EMW.
(4) EMW and IBM shall agree to the comparison methodology
and any appropriate adjustments because of
differences between the services provided to the
Comparators and the Services provided to EMW.
(5) During the 30 day period after the Benchmarker
completes the Benchmark Process data gathering, but
before the Benchmarker has concluded the Benchmark
Process analysis, EMW and IBM shall have an
opportunity to verify that the Benchmark Process
conformed to the agreed to methodology.
(6) EMW and IBM agree to cooperate reasonably with the
Benchmarker in the Benchmark Process.
(7) IBM and EMW agree that all information provided to or
obtained from the Benchmarker will be provided to
both IBM and EMW, unless otherwise agreed.
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8.05 BENCHMARK RESULTS REVIEW PERIOD AND ADJUSTMENTS.
(1) The Benchmarker shall provide the initial data,
analysis, and findings, including any supporting
documentation, to IBM and EMW as appropriate
throughout the Benchmark Process. The Benchmark
Results should be prepared promptly, but no later
than 90 days from selection of the Benchmarker.
(2) Upon completion of the Benchmark Process, EMW and IBM
shall review the Benchmark Results during the
Benchmark Review Period. EMW and IBM agree to discuss
in good faith any appropriate adjustments, either a
decrease to the Fees or an increase to the Service
Levels, based on such Benchmark Results. If EMW plans
to review fewer than all of the Service Categories,
IBM may require that all Service Categories be
included in the Benchmark Process, by giving notice
to EMW within 15 days after the date of EMW's notice
of EMW's intent to commence the Benchmark Process.
(3) If the Benchmark Results demonstrate that the Fees,
taken as a whole, for any Service Category are more
than 10 percent higher than the average of the
Benchmark Results for such Service Category, then the
Parties shall negotiate equitable adjustments to the
Designated Fees for such Service Category. If the
Benchmark Results demonstrate that the Service Levels
for any Service Category, taken as a whole, are
materially lower than the average of the Benchmark
Results for such Service Category, then the Parties
shall negotiate equitable adjustments to the Service
Levels for such Service Category. If the Parties are
unable to reach agreement on any such adjustments
within 90 days after the delivery of the Benchmark
Results, then EMW may, by giving notice to IBM
specifying a termination date which shall be no less
than 90 days and no more than 180 days after the date
of such notice, terminate the applicable Service
Category by paying IBM the applicable Termination
Fees set forth in EXHIBIT 4. EMW will pay such
Termination Fees to IBM no later than the termination
date selected by EMW.
ARTICLE 9 SERVICE LOCATIONS.
9.01 SERVICE LOCATIONS. The Services shall be provided
(1) from the Designated IBM Service Locations and (2) from the Additional
Designated IBM Service Locations. Unless approved by EMW in advance, any
incremental expenses incurred by EMW as a result of a relocation to, or use
of, an Additional Designated IBM Service Location shall, at EMW's sole
discretion, be paid by IBM or reimbursed to EMW by IBM. Neither IBM nor IBM
Agents shall provide or market services to a third party from EMW's
headquarters or any other EMW facility without EMW's consent, to be given in
EMW's sole discretion. IBM shall not utilize Additional Designated IBM Service
Locations outside the United States without EMW's prior approval.
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9.02 SAFETY AND SECURITY PROCEDURES. IBM will follow the
Safety and Security Procedures at the IBM Service Locations. IBM shall revise
such procedures from time to time, as appropriate, to reflect improvement in
such procedures generally recognized in the industry.
9.03 DATA SECURITY. IBM shall establish and maintain
safeguards against the destruction, loss or alteration of the EMW Data in the
possession of IBM (the "DATA SAFEGUARDS") that shall be no less rigorous than
those data security policies set forth in the Safety and Security Procedures.
IBM shall revise and maintain the Data Safeguards at EMW's request. In the
event IBM intends to implement a change to the Data Safeguards (including
pursuant to EMW's request), IBM shall notify EMW and, upon EMW's approval,
implement such change. If pursuant to EMW's request, any such change may be
deemed to be a New Service. In the event IBM or IBM Agents discovers or is
notified of a breach or potential breach of security relating to the EMW Data,
IBM shall immediately (1) notify the EMW Contract Executive of such breach or
potential breach and (2) if the applicable EMW Data was in the possession of
IBM or IBM Agents at the time of such breach or potential breach, IBM shall
(a) investigate and cure the breach or potential breach and (b) provide EMW
with assurance satisfactory to EMW that such breach or potential breach will
not recur. IBM and EMW are each responsible for complying with their
respective obligations under the applicable data protection laws governing EMW
Data. Subject to the audit rights set forth in ARTICLE 18, nothing in this
Section requires IBM to provide EMW access to IBM's, its affiliates', or any
of their subcontractors' premises or systems, or to information relating to
IBM's, its affiliates', or their subcontractors' other customers.
9.04 SECURITY RELATING TO COMPETITORS. If (1) IBM
provides the Services to EMW from an IBM Service Location where it also
provides similar services to a third party or third parties and (2) any part
of the business of IBM or any such third party is now or in the future
competitive with EMW's business, then IBM shall develop a process, subject to
EMW's review, to restrict access in any such shared environment to EMW's
Confidential Information so that IBM's employees or IBM Agents providing
services to such competitive business do not have access to EMW's Confidential
Information.
ARTICLE 10 IBM STAFF.
10.01 IBM CONTRACT EXECUTIVE. Prior to or on the
Effective Date, IBM shall appoint an individual (the "IBM CONTRACT EXECUTIVE")
who from the Effective Date shall serve, on a full-time basis, as the primary
IBM representative under this Agreement. IBM's appointment of any IBM Contract
Executive shall be subject to EMW's prior approval. The IBM Contract Executive
shall have the responsibilities set forth in the Procedures Manual, which
shall include (1) overall responsibility for managing and coordinating the
performance of IBM's obligations under this Agreement and (2) authorization to
act for and on behalf of IBM with respect to all matters relating to this
Agreement.
10.02 KEY PERSONNEL. With respect to the IBM Key
Personnel set forth in EXHIBIT 7, the Parties agree as follows:
(1) Each IBM Key Personnel shall be dedicated to the EMW
account on a full-time basis.
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(2) Before assigning an individual to any IBM Key
Personnel position, whether as an initial assignment
or as a replacement, IBM shall (a) notify EMW of the
proposed assignment, (b) introduce the individual to
appropriate representatives of EMW, (c) provide EMW
with a resume and any other information regarding the
individual that may be reasonably requested by EMW
and (d) obtain EMW's approval for such assignment.
IBM shall only assign an individual to any IBM Key
Personnel position who is approved by EMW.
(3) IBM shall not replace or reassign the IBM Key
Personnel specifically identified in EXHIBIT 7 for 18
months from the Effective Date (or for replacements,
the date of their appointment as an IBM Key
Personnel) unless EMW consents to such reassignment
or replacement or such IBM Key Personnel (a)
voluntarily resigns from IBM, (b) is dismissed by IBM
for misconduct (E.G., fraud, drug abuse, theft), (c)
fails to perform his or her duties and
responsibilities pursuant to this Agreement or (d)
dies or is unable to work due to his or her
disability.
(4) IBM shall maintain backup procedures and conduct the
replacement procedures for the IBM Key Personnel in
such a manner so as to assure an orderly succession
for any IBM Key Personnel who is replaced. Upon
request, after a determination that any IBM Key
Personnel will be replaced, IBM shall make such
procedures available to EMW.
IBM and EMW will each be responsible for the management,
direction, control, supervision, and compensation of
its own employees.
10.03 PROJECT STAFF. IBM shall appoint individuals with
suitable training and skills to perform the Services to the Project Staff. IBM
shall provide EMW with a list of all IBM employees located at the EMW
facilities dedicated full-time to the Project Staff at the end of every 90 day
period after the Effective Date, including a list of all additions or
deletions to the Project Staff and the total number of individuals comprising
the Project Staff. Except as otherwise approved by EMW (in its sole
discretion), those IBM personnel located on EMW's premises may only provide
services on such premises which support EMW's operations. IBM shall notify EMW
as soon as possible after dismissing or reassigning any member of the Project
Staff whose normal work location is at an EMW facility.
10.04 SUBCONTRACTORS. Prior to entering into any
subcontract under which IBM is reasonably expected to pay to the subcontractor
more than $1,000,000 per year, IBM shall notify EMW of the proposed
subcontract and shall obtain EMW's timely approval of such subcontract, which
approval shall not be unreasonably withheld. IBM shall not materially amend,
modify or supplement any such approved subcontract without EMW's consent,
which shall not be unreasonably withheld. In addition:
(1) No subcontracting shall release IBM from its
responsibility for its obligations under this
Agreement. IBM shall be responsible for the work and
activities of each of its subcontractors, including
compliance with the
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terms of this Agreement. IBM shall be fully
responsible for all payments to its subcontractors.
(2) IBM shall promptly pay for all services, materials,
equipment and labor used by IBM in providing the
Services and shall keep the EMW premises free of all
liens.
(3) IBM shall require all IBM Agents to adhere to IBM's
or EMW's, as applicable, standards, policies and
procedures.
10.05 CONDUCT OF IBM PERSONNEL. While at the EMW
facilities, IBM and IBM Agents shall (1) comply with the requests, standard
rules and regulations of EMW regarding safety and health, personal and
professional conduct generally applicable to such EMW facilities of which EMW
has provided IBM notice and (2) otherwise conduct themselves in a businesslike
manner. IBM shall cause the Project Staff to maintain and enforce the
confidentiality provisions of this Agreement. In the event that EMW determines
that a particular member of the Project Staff is not conducting himself or
herself in accordance with this Section, EMW may notify IBM of such conduct.
Upon receipt of such notice, IBM shall promptly (a) investigate the matter and
take appropriate action which may include (i) removing the applicable person
from the Project Staff and providing EMW with prompt notice of such removal
and (ii) replacing the applicable person with a similarly qualified individual
or (b) take other appropriate disciplinary action to prevent a recurrence. In
the event there are repeat violations of these provisions by a particular
member of the Project Staff, IBM shall promptly remove the individual from the
Project Staff as set forth above.
10.06 NON-COMPETITION. (1) IBM shall not assign any IBM
Key Personnel to the account of any EMW Competitor without EMW's prior consent
(a) while such IBM Key Personnel, are assigned to the EMW account and (b) for
a period of six months following the date that such IBM Key Personnel, as the
case may be, are removed from, or cease to provide services in connection
with, the EMW account; the foregoing shall not require IBM to remove any such
IBM Key Personnel from the account of an entity that becomes an EMW Competitor
after such IBM Key Personnel was assigned to the entity's account.
(2) The members of the Project Staff (excluding IBM
subcontractors) responsible for delivery of discrete systems integration work
product or modules as part of the Start-up Services or the Full Functional
Services shall not be assigned to EMW Competitors to provide similar services
for a period of six months after delivery and acceptance of such work product
or module into production (not to be unreasonably delayed by EMW); the
foregoing shall not require IBM to remove any such member of the Project Staff
from the account of an entity that becomes an EMW Competitor after such member
of the Project Staff was assigned to the entity's account.
ARTICLE 11 MANAGEMENT AND CONTROL.
11.01 CHANGE CONTROL PROCEDURES. EMW and IBM shall act in
accordance with the Change Control Procedures set forth in Exhibit 8. Within
30 days of the Effective Date, or earlier as determined by EMW, the EMW
Contract Executive and the IBM Contract Executive shall
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appoint an appropriate number, as determined by the Parties, of
representatives to serve on a steering committee.
11.02 PROCEDURES MANUAL. Within 90 days after the
Effective Date, IBM shall deliver to EMW for EMW's review and input, a draft
management procedures manual (which will include provisions related to
governance). EMW shall provide IBM with any comments or input within 20 days.
Within 150 days after the Effective Date, IBM shall deliver to EMW, in the
form and scope agreed upon by EMW and IBM, a finalized management procedures
manual (the "PROCEDURES MANUAL"), which will be based upon the high-level
outline set forth in Section 3.0(d) of EXHIBIT 1.B. IBM shall periodically
prepare and provide to EMW for EMW's review and comment updates to such
Procedures Manual to reflect any changes in the procedures described therein
within a reasonable time after such changes are made.
11.03 CHANGE CONTROL PROCEDURES.
(1) Except for Changes made by IBM on an emergency basis,
IBM will:
a. obtain EMW's approval before making any
unplanned Changes;
b. schedule Change activities with the goal of
minimizing unreasonable interruptions to
EMW's business operations; and
c. prepare a monthly schedule of planned and
ongoing Changes.
(2) With respect to Changes that were made by IBM on an
emergency basis or for which IBM was not required to
obtain EMW's approval as set forth in this Section,
IBM will provide EMW with documentation of such
Changes within 5 business days after such Change was
made.
ARTICLE 12 PROPRIETARY RIGHTS.
12.01 IBM SOFTWARE, TOOLS AND APIs
(1) During the Term and Termination Assistance Period,
IBM hereby grants to EMW solely for use in connection with the Services, a
license to use, in accordance with the commercial license for that software
being used to provide the Services, (a) the IBM Proprietary Software, (b) the
commercial IBM Proprietary Tools, (c) the commercial IBM APIs, and (d) to the
extent permissible under the applicable third party agreements and in
accordance therewith, (i) the IBM Third Party Software, (ii) the IBM Third
Party Tools and (iii) the third party APIs.
(2) As of the date of expiration or termination of this
Agreement, or, at EMW's request, after EMW has satisfied its obligations under
Section 3.04, IBM shall either transfer, assign or otherwise provide EMW a
license to use, in accordance with the applicable commercial license
agreements, and to permit a third party to use, all solely for the benefit of
EMW, (a) the IBM Proprietary Software, (b) the commercial IBM Proprietary
Tools, (c) the commercial IBM APIs and (d) to the extent permissible under the
applicable third party agreements, (i) the IBM Third Party Software, (ii) the
IBM Third Party Tools and (iii) the commercial third party APIs; provided,
however that with regard to such Software, Tools and APIs, such licenses shall
be
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coextensive to IBM's licenses in providing the Services and shall be to the
then existing configurations. Thereafter, EMW shall be responsible for the
monthly license fees and any applicable maintenance fees, if any, which (x) in
the case of IBM Proprietary Software, commercial IBM Proprietary Tools and
commercial IBM APIs, shall be at the then prevailing rates that IBM charges
other similarly situated customers, and (y) in the case of IBM Third Party
Software, IBM Third Party Tools or third party APIs, at the then prevailing
rates and terms of the third party. Any and all license rights for a third
party service provider that EMW may select shall flow from EMW's license with
respect to IBM Third Party Software, IBM Third Party Tool or third party API
(or other licensing arrangement as EMW may choose) and shall not be dependent
upon or associated with IBM's license with respect to such IBM Third Party
Software, IBM Third Party Tool or third party API. With respect to IBM
Proprietary Software, IBM will waive any transfer fees.
(3) Other than the Software and Tools (except for
non-commercial IBM Proprietary Tools) listed in EXHIBIT 2, IBM shall obtain
EMW's approval prior to using any IBM Third Party Software, IBM Third Party
Tools or non-commercial IBM Proprietary Software to provide the Services that,
upon expiration or termination of this Agreement, or, at EMW's request, after
EMW has satisfied its obligations under Section 3.04, (a) IBM will not be able
to sublicense, transfer or otherwise provide the license as described in
SECTION 13.02(2) to EMW at no cost to EMW, (b) the applicable licensor has not
agreed to license directly to EMW,(c) the license does not allow for third
party service provider use or (d) requires the payment of access or transfer
fees for third party service provider use. If EMW does not provide IBM
approval to use such IBM Third Party Software or IBM Third Party Tools or
non-commercial IBM Proprietary Software, EMW may, at its option, (y) request
IBM to identify a commercially functional alternative or (z) attempt to
negotiate terms for EMW with respect to the issues listed in (a), (b), (c) or
(d) above, as may be applicable. If EMW requests IBM to use such commercial
alternative, IBM will advise EMW of any additional costs that will be incurred
as a result of implementing the alternative, as well as any impact to SLAs,
performance, time schedules, risks associated with the change, and the like,
and if EMW requests IBM to use such commercial alternative, the Parties will
amend the Agreement accordingly. Upon EMW's request, IBM shall provide EMW
with a list of all IBM Software being used to provide the Services as of the
date of such request.
(4) With respect to any non-commercial IBM Proprietary
Tool, upon expiration or termination of the Agreement, or, at EMW's request,
after EMW has satisfied its obligations under SECTION 3.04, at no cost or
expense to EMW, IBM shall, at EMW's request identify a tool that is
functionally equivalent to such non-commercial IBM Proprietary Tool, to the
extent IBM is able to identify such a tool. With respect to any non-commercial
IBM Software, upon expiration or termination of the Agreement, or, at EMW's
request, after EMW has satisfied its obligations under SECTION 3.04, at no
cost or expense to EMW, IBM shall, at EMW's request, identify Software that is
functionally equivalent to such non-commercial IBM Proprietary Software, to
the extent IBM is able to identify such Software. If IBM is unable to identify
a commercial alternative and EMW will require the functionality of the
non-commercial IBM Proprietary Software in order for EMW to continue to
provide all or a portion of the Services to itself or to have a third party
continue to provide all or a portion of the Services, the Parties shall
negotiate a mutually acceptable license for such purpose.
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(5) With respect to non-commercial IBM API extensions
(which include low level APIs) developed for EMW and other Deliverable
Materials identified in EXHIBIT 1.A (Statement of Work - Start-up Services and
Full Functional Services), IBM hereby grants to EMW a world-wide, irrevocable,
fully paid-up, non-exclusive license to use, modify, create derivative works
(and sublicense to others to use, modify, create derivative works) solely for
the benefit of EMW.
12.02 DEVELOPED DATA. All Developed Data shall be owned
by EMW. EMW shall have all right, title and interest, including worldwide
ownership of copyright and patent rights in and to all Developed Data. IBM
hereby irrevocably assigns, transfers and conveys, and shall cause IBM Agents
to assign, transfer and convey, to EMW, without further consideration all of
its and their right, title and interest in and to such Developed Data,
including all rights of patent, copyright, trade secret or other proprietary
rights therein. IBM acknowledges, and shall cause IBM Agents to acknowledge,
that EMW and the successors and permitted assigns of EMW shall have the right
to obtain and hold in their own name any intellectual property rights in and
to such Developed Data. IBM agrees to execute, and shall cause IBM Agents to
execute, any documents or take any other actions as may reasonably be
necessary, or as EMW may reasonably request, to perfect EMW's ownership of any
such Developed Data.
ARTICLE 13 DATA.
13.01 OWNERSHIP OF EMW DATA. All EMW Data is, or will be,
and shall remain the property of EMW. Without EMW's approval (in its sole
discretion), the EMW Data shall not be, (1) used by IBM or IBM Agents other
than in connection with providing the Services, (2) sold, assigned or leased,
(3) disclosed or otherwise provided to third parties by IBM or IBM Agents,
except (a) as necessary to perform the Services or (b) pursuant to any
applicable law or by order of any court or government agency or (3)
commercially exploited by or on behalf of IBM or IBM Agents. IBM shall,
pursuant to this Agreement, assign, transfer and convey, and shall cause IBM
Agents to assign, transfer and convey, to EMW without further consideration
all of its and their right, title and interest in and to the EMW Data. Upon
EMW's request, and at EMW's expense, IBM shall execute and deliver, and shall
cause IBM Agents to execute and deliver, any financing statements or other
documents that may be necessary or desirable under any Federal, state or local
law, rule or regulation to preserve, or enable EMW to enforce, its rights with
respect to EMW Data.
13.02 CORRECTION OF ERRORS. To the extent caused by IBM
or IBM Agents, IBM shall promptly correct material errors or inaccuracies in
the EMW Data and the reports delivered to EMW under this Agreement, and any
other errors or inaccuracies in the EMW Data or such reports upon reasonable
notice by EMW; provided however, that IBM will not be responsible for any
errors or corruption of data or security thereof during public
telecommunication transmission. At EMW's request and expense, IBM shall
promptly correct any other errors or inaccuracies in the EMW Data or such
reports.
13.03 RETURN OF DATA. Upon request by EMW at any time
during the Termor the Termination Assistance Period , and upon reasonable
notice, IBM shall (1) promptly return to EMW, in the format and on the media
reasonably requested by EMW, all or any part of the EMW Data and (2) upon
expiration or termination of this Agreement, erase or destroy all or any part
of the EMW Data in IBM's possession, in each case to the extent so requested
by EMW. Any archival tapes containing EMW Data shall be used by IBM and IBM
Agents solely for back-up purposes.
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ARTICLE 14 CONSENTS.
All Consents shall be obtained and maintained by IBM with
EMW's cooperation. IBM shall pay any costs of obtaining and maintaining the
Consents, except for any Consents necessary to allow the transfer to EMW of
the IBM Third Party Software after the expiration or termination of this
Agreement or at EMW's request after EMW has satisfied its obligations under
Section 3.04. However, EMW will be responsible for obtaining, maintaining and
paying for any Consents necessary to assign or transfer any third party
contracts from EMW to IBM in connection with any New Services.
ARTICLE 15 CONTINUED PROVISION OF SERVICES.
15.01 BACKUP AND REDUNDANCY PLAN. Although a disaster
recovery plan is not included in the scope of the Agreement, IBM has standard
backup and redundancy plans in place, which IBM shall implement as needed.
Upon EMW's request, IBM shall provide applicable information about such plans.
15.02 FORCE MAJEURE. Neither IBM nor EMW shall be liable
for any default or delay in the performance of their respective obligations,
to the extent that such default or delay:
(1) is caused, directly or indirectly, by an event beyond
the reasonable control of IBM or EMW, whichever is
the Party unable to perform (the "NONPERFORMING
PARTY"), such as fire; flood; earthquake; elements of
nature; acts of war; terrorism; riots civil
disorders; rebellions or revolutions; strikes,
lockouts or labor difficulties by persons other than
employees and subcontractors of the Nonperforming
Party; and
(2) could not have been prevented by commercially
reasonable precautions, alternative sources,
workaround plans or other means (each, a "FORCE
MAJEURE EVENT").
The Nonperforming Party shall be excused from any further performance of the
obligations affected by such Force Majeure Event for as long as such Force
Majeure Event continues and the Nonperforming Party continues to use
commercially reasonable efforts to recommence performance. The Nonperforming
Party shall immediately notify the other Party under this Agreement by
telephone (to be confirmed in writing within five days of the inception of
such default or delay) and describe at a reasonable level of detail the
circumstances causing such Force Majeure Event.
15.03 ALTERNATE SOURCE. If a Force Majeure Event
substantially prevents, hinders, or delays IBM's performance of the Critical
Services necessary for the operation of EMW's business, then EMW at its option
may procure such Services from an alternate provider until IBM is able to
provide the Services. IBM will reimburse EMW for any reasonable payments to
such alternate provider for such services, for the lesser of 180 days or the
remainder of the Term or Termination Assistance Period; provided however, that
if such Force Majeure Event continues for more than 60 consecutive days, EMW,
at its option, may terminate this Agreement by providing IBM with a notice of
termination. This Section does not affect IBM's obligation to provide disaster
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recovery services, if any, to the extent set forth in the Agreement, provided
that such Force Majeure Event does not also prevent IBM from providing such
disaster recovery services. During the Force Majeure Event, EMW will continue
to pay IBM's charges for the Services.
15.04 ALLOCATION OF RESOURCES. Whenever a Force Majeure
Event or a disaster causes IBM to allocate limited resources between or among
IBM's customers, subject to considerations of national security and public
health and safety, in no event shall IBM redeploy or reassign any IBM Key
Personnel to another account and IBM shall not treat EMW less favorably than
IBM's other customers in similar situations.
ARTICLE 16 PAYMENTS AND INVOICING.
16.01 DESIGNATED FEES. In consideration of IBM providing
the Designated Services, EMW shall pay to IBM the Designated Fees. Except as
expressly set forth in this Agreement, there shall be no charge or fees
payable by EMW in respect of IBM's performance of its obligations pursuant to
this Agreement.
16.02 INVOICES FOR CERTAIN DESIGNATED FEES. For Fixed
Fees and for the Variable Fees with respect to "revenue management" as
indicated in the Variable Fee table set forth in Section A-1 to EXHIBIT 4,
within 10 days after the first day of the month in which such Services are to
be provided, IBM shall invoice EMW for such Services performed and to be
performed in accordance with this Agreement during that month and EMW shall
pay such Fees by the end of such month. All other Designated Fees for each
month during the Term or the Termination Assistance Period shall be due and
payable to IBM within 30 days of the later of (1) the end of the month in
which IBM provided the Services and (2) the date that EMW receives IBM's
invoice.
16.03 INTENTIONALLY OMITTED.
16.04 TIME OF PAYMENT. Any sum due IBM pursuant to this
Agreement for which the time of payment is not otherwise specified shall be
due and payable 30 days after receipt by EMW of an invoice from IBM. Any sum
not received by IBM within five days after the due date set forth in this
Agreement, shall bear interest at a rate per day equal to the lesser of (1)
the result of ((2 divided by 30) divided by 100), per day and (2) the maximum
amount permissible by law.
16.05 DETAILED INVOICES. IBM shall provide invoices with
varying degrees of detail (e.g., per End-User, department, project, site), as
mutually agreed by the parties.
16.06 FEE DISPUTE. With regard to any Fees that EMW
disputes in good faith, EMW may withhold payment of an amount of such disputed
Fees equal to no more than 10% of the monthly Designated Fees. If the amount
in dispute exceeds such withheld amount, EMW may pay into an interest bearing
escrow account an additional amount of the disputed Fees equal to no more than
10% of the monthly Designated Fees. In no event shall the total amount
withheld and escrowed exceed 20% of the last six months of Designated Fees.
EMW shall pay to IBM, under protest, all disputed amounts in excess of these
limits. If the Parties are not able to resolve the dispute informally within
30 days, they will follow the Dispute Resolution Process.
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16.07 ADJUSTMENTS TO FEES. At the end of every month, IBM
shall review the amount of the Steady State Services used by EMW during the
preceding month. In the event EMW's use of such Steady State Services (1)
increased above the amount of Steady State Fees set forth in the prior month's
invoice, EMW shall pay to IBM an amount equal to the Steady State Fees for
such increase as set forth in EXHIBIT 4 or (2) decreased below the amount of
Steady State Fees set forth in the prior month's invoice, IBM shall credit EMW
an amount equal to the Steady State Fees for such decrease as set forth in
EXHIBIT 4. Except as set forth in EXHIBIT 4 or as otherwise specified in this
Agreement, there shall be no periodic adjustments to the Fees.
16.08 EXPENSES. EMW shall be responsible for payment of
the Pass-Through Expenses that are set forth on EXHIBIT 4, that are initially
either invoiced to IBM or delivered to IBM on EMW's behalf. If the parties
agree that a particular Pass-Through Expense is to be paid directly by EMW,
IBM will send to EMW the original third party invoice together with a
statement that the charges are valid and should be paid by EMW. Otherwise, IBM
will review the invoices to determine if the charges are proper and, before
paying the invoice, will give EMW reasonable opportunity to review the
charges. Any Pass-Through Expenses are to be handled and paid without any
mark-up or IBM fees. Except as expressly set forth in this Agreement, all
other expenses relating to the Services are included in the Fees and shall not
be reimbursed by EMW.
16.09 CRITICAL MILESTONES.
(1) If IBM fails to complete the Start-up Services by August 1, 2000 and
such delay was not caused by EMW, then IBM shall pay to EMW an amount
of liquidated damages equal to $25,000.00 for each day's delay in
completing the Start-up Services. In the event such delay exceeds 45
days, then EMW may, by giving notice to IBM, terminate this
Agreement as of the termination date specified in the notice. Such
right of termination is without prejudice to EMW's right to
terminate pursuant to SECTION 23.03, provided however that any
damages recovered shall be reduced by the amount of any liquidated
damages paid under this SECTION 16.09(1).
(2) If IBM fails to commence the Steady State Services by the Commencement
Date and such delay was not caused by EMW, then IBM shall pay to EMW an
amount of liquidated damages equal to $25,000.00 for each day's delay
in completing the Steady State Services. In the event that such delay
exceeds 45 days, then EMW may, by giving notice to IBM, terminate this
Agreement as of the termination date specified in the notice. Such
right of termination is without prejudice to EMW's right to terminate
pursuant to SECTION 23.03, provided however that any damages recovered
shall be reduced by the amount of any liquidated damages paid under
this SECTION 16.09(2).
(3) If IBM fails to complete the Full Functional Services within ten months
after the completion of the Start-Up Services, and such delay was not
caused by EMW, then IBM shall pay to EMW an amount of liquidated
damages equal to $10,000.00 for each day's delay in completing the Full
Functional Services. In the event such delay exceeds 45 days, then EMW
may, by giving notice to IBM, terminate this Agreement as of the
termination date specified in the notice. Such right of termination is
without prejudice to EMW's right to terminate pursuant to SECTION
23.03, provided however that any damages recovered shall be reduced by
the amount of any liquidated damages paid under this SECTION 16.09(3).
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16.10 PAYMENTS BY IBM. IBM shall pay any undisputed
amounts due and owing to EMW pursuant to this Agreement by either paying such
amount to EMW within 30 days of the invoice date or by providing EMW with a
credit against the Fees on the next invoice to EMW under this Agreement.
ARTICLE 17 TAXES.
(1) EMW shall pay all:
a. applicable transaction taxes (such as sales
(including sales tax on services), use,
gross receipts, excise, value-added, and
other transaction-based taxes), duties,
levies, and fees imposed on the Fees;
b. personal property, sales, value-added, and
use taxes on EMW's personal property;
c. telecommunication taxes for network lines
and services; and
d. taxes, assessments, and other levies on
EMW's owned, leased, rented, or purchased
real property.
(2) IBM shall pay all:
a. personal property, sales, value-added, and
use taxes on IBM's personal property; and
b. taxes, assessments, and other levies on
IBM's owned, leased, rented, or purchased
real property.
(3) IBM's invoices shall state applicable taxes owed by
EMW, if any, by tax jurisdiction.
(4) EMW and IBM shall cooperate to segregate the Fees
into the following separate payment streams: (a)
those for taxable Services; (b) those for nontaxable
Services; (c) those for which a sales, use or other
similar tax has already been paid; and (d) those for
which IBM functions merely as a paying agent for EMW
in receiving goods, supplies or services (including
leasing and licensing arrangements) that otherwise
are nontaxable or have previously been subject to
tax. In addition, each of EMW and IBM shall
reasonably cooperate with the other to more
accurately determine a Party's tax liability and to
minimize such liability (including with respect to
any new taxes), to the extent legally permissible.
Each of EMW and IBM shall provide and make available
to the other any resale certificates, information
regarding out-of-state sales or use of equipment,
materials or services, and any other exemption
certificates or information requested by a Party.
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(5) IBM shall, within a reasonable period, notify EMW of
any claim for taxes asserted by applicable taxing
authorities for which EMW is responsible hereunder.
IBM shall assign such claim to EMW, to the extent
such claim is assignable under applicable law. If
such claim is not assignable, EMW may request that
IBM challenge the imposition of any such tax and/or
seek a refund of any such tax. The Parties shall
discuss EMW's basis for such request and any concerns
IBM may have with respect to such request (based on
the merit of such request), and if IBM agrees to
challenge such tax and/or seek a refund as requested,
EMW shall reimburse IBM for IBM's reasonable legal
fees and expenses related to such challenge or
pursuit of a refund. EMW shall be entitled to any tax
refunds or rebates relating to any such taxes paid by
EMW.
ARTICLE 18 AUDITS.
18.01 AUDIT RIGHTS. IBM shall provide EMW and its
auditors with commercially reasonable assistance in meeting its audit
requirements as set forth in this Section.
(1) IBM shall provide access to routinely prepared
records and reports to enable EMW to conduct
appropriate audits (each, an "AUDIT") of IBM's
operations relating to the performance of Services.
The Audits will be limited to verifying that:
a. the Fees are accurate and in accordance with
this Agreement;
b. IBM is exercising reasonable care to control
the resources provided by EMW, such as heat,
light, and utilities used in providing the
Services;
c. the Services are being provided in
accordance with this Agreement (including
the Service Levels);
d. IBM is complying with the Safety and
Security Procedures; and
e. EMW is in compliance with EMW's Regulatory
Requirements.
(2) Audits shall:
a. apply only to the previous 24 months'
activities;
b. occur no more than once each calendar year,
unless required to meet EMW's Regulatory
Requirements;
c. not be permitted if it interferes with IBM's
ability to perform the Services in
accordance with the Service Levels, unless
EMW relieves IBM from meeting the applicable
Service Levels;
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d. be conducted expeditiously, efficiently, and
at reasonable business hours; and
e. be conducted upon reasonable prior notice,
which normally will be at least 30 days, but
may be less if IBM and EMW agree in the
Procedures Manual that certain Audits, such
as physical security Audits, may be
conducted upon shorter notice.
(3) EMW and its auditors will not have access to IBM's or
its affiliates' locations or proprietary data or to
IBM's customer locations or proprietary data,
provided that EMW may have access to appropriate
portions of IBM's locations used primarily to perform
the Services, to the extent reasonably necessary to
perform the Audits.
(4) EMW may request that a mutually agreeable third party
auditor perform the Audit, at EMW's expense on a
noncontingent basis, provided such third party
auditor executes a Confidentiality Agreement
reasonably acceptable to IBM.
(5) A request for IBM to provide assistance with an Audit
will be considered a request for New Services if such
Audit assistance requires the use of different or
additional resources beyond that which IBM uses to
provide the Services in accordance with the Service
Levels, such as audit software or additional
employees or subcontractors.
(6) If an Audit demonstrates that IBM's invoices for the
Services for the audited period were not correct, and
IBM and EMW agree with such Audit, IBM shall promptly
credit EMW for the amount of any paid overcharges, or
EMW shall promptly pay IBM for the amount of any
undercharges.
18.02 RECORD RETENTION. Except to the extent otherwise
required by EMW's Regulatory Requirements, of which EMW has provided IBM
notice, IBM shall retain records and supporting documentation sufficient to
document the Services and the Fees paid or payable by EMW under this Agreement
in accordance with IBM's then-current record retention procedures, copies of
which will be provided from time to time by IBM upon EMW's request.
ARTICLE 19 CONFIDENTIALITY.
19.01 GENERAL OBLIGATIONS. All Confidential Information
relating to or obtained from EMW or IBM shall be held in confidence by the
Recipient with the same care and discretion to avoid disclosure, publication,
or dissemination as the Recipient uses with its own similar information that
it does not wish to disclose, publish, or disseminate and the Recipient shall
use the Discloser's Confidential Information for the purpose for which it was
disclosed or otherwise for the benefit of the Discloser. Except as otherwise
set forth in this Agreement, neither EMW nor IBM shall disclose, publish,
release, transfer or otherwise make available Confidential Information of, or
obtained from, the other in any form to, or for the use or benefit of, any
person or entity without the Discloser's consent. Each of EMW and IBM shall,
however, be permitted to disclose relevant
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aspects of the other's Confidential Information to (1) its officers,
directors, agents, professional advisors, contractors (including the
Benchmarker), subcontractors, employees and to the officers, directors,
agents, professional advisors, contractors, subcontractors and employees of
its affiliates, to the extent that such disclosure is not restricted under
this Agreement, any Consents or any Governmental Approvals but only to the
extent that such disclosure is reasonably necessary for the performance of its
duties and obligations, or preservation of its rights, remedies or privileges
under this Agreement, (2) its independent public accountants to the extent
necessary or desirable under applicable laws, rules or regulations and (3)
third parties in connection with a Party exercising or preserving its rights,
remedies or privileges under this Agreement; provided, however, that in each
such case the Recipient shall execute a reasonable agreement to ensure that
Confidential Information of the Discloser is not disclosed or duplicated in
contravention of the provisions of this Agreement by such officers, directors,
agents, professional advisors, contractors, subcontractors, employees or third
parties. This Agreement shall not restrict any disclosure pursuant to any
applicable law or by order of any court or government agency; provided that
the Recipient shall (1) give prompt notice (and in any event prior to any
disclosure) to the Discloser of such order, (2) cooperate with the Discloser
in resisting such disclosure or seeking suitable protections prior to such
disclosure and (3) disclose only such Confidential Information as the
Recipient is compelled to disclose. Notwithstanding anything to the contrary
contained in this Agreement, the terms and conditions of this SECTION 19.01,
including in respect of any Confidentiality Agreement between EMW and IBM,
shall survive for a period of 2 years after the termination or expiration of
this Agreement.
19.02 EXCLUSIONS.
(1) Notwithstanding anything to the contrary contained in
this Agreement, the Recipient may disclose, publish,
disseminate, and use the Discloser's Confidential
Information that is:
a. already in its possession without obligation
of confidentiality;
b. developed independently;
c. obtained from a source other than the
Discloser without obligation of
confidentiality;
d. publicly available when received, or
thereafter becomes publicly available
through no fault of the Recipient; or
e. disclosed by the Discloser to another entity
without obligation of confidentiality.
19.03 RESIDUAL INFORMATION. Notwithstanding anything to
the contrary contained in this Agreement, the Recipient may disclose, publish,
disseminate, and use the ideas, concepts, know-how, and techniques that are
related to (1) information technology in the case of IBM as Recipient or (2)
energy marketing, distribution and sale in the case of EMW as Recipient, in
both cases retained in the unaided memories of individuals and not
intentionally memorized, even if contained in the Discloser's Confidential
Information or developed, provided, or accessed by IBM or EMW, individually or
jointly, under this Agreement (collectively, the "RESIDUAL INFORMATION"),
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except to the extent such disclosure, publication, dissemination, or use
infringes the other's patent rights, copyrights, trade marks, service marks,
and domain names. Nothing contained in this Section gives the Recipient the
right to disclose, publish, or disseminate the source of Residual Information,
the Discloser's financial, statistical, or personnel data, or the Discloser's
business plans, other than as set forth in SECTION 19.01 or SECTION 19.02.
19.04 UNAUTHORIZED ACTS. Without limiting either Party's
rights, each Party shall:
(1) promptly notify the other Party of any unauthorized
possession, use or knowledge, or attempt thereof, of
the other Party's Confidential Information by any
person or entity that becomes known to such Party's
employees who are aware of the relationship between
EMW and IBM set forth in this Agreement;
(2) promptly furnish to the other Party full details of
the unauthorized possession, use or knowledge, or
attempt thereof, and assist the other Party in
investigating or preventing the recurrence of any
unauthorized possession, use or knowledge, or attempt
thereof, of Confidential Information;
(3) cooperate with the other Party in any litigation and
investigation against third parties deemed necessary
by the other Party to protect its proprietary rights;
and
(4) promptly use its commercially reasonable efforts to
prevent a recurrence of any such unauthorized
possession, use or knowledge, or attempt thereof, of
Confidential Information.
Each Party shall bear the cost it incurs as a result of compliance with this
SECTION 19.04.
ARTICLE 20 REPRESENTATIONS AND WARRANTIES.
20.01 BY EMW. EMW represents and warrants that:
(1) EMW is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware;
(2) EMW has all requisite corporate power and authority
to execute, deliver and perform its obligations under
this Agreement;
(3) EMW is duly licensed, authorized or qualified to do
business and is in good standing in every
jurisdiction in which a license, authorization or
qualification is required for the ownership or
leasing of its assets or the transaction of business
of the character transacted by it, except where the
failure to be so licensed, authorized or qualified
would not have a material adverse effect on EMW's
ability to fulfill its obligations under this
Agreement;
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(4) The execution, delivery and performance of this
Agreement has been duly authorized by EMW;
(5) EMW is in compliance with all applicable Federal,
state, local or other laws and regulations applicable
to EMW and has obtained all applicable permits and
business licenses required of EMW in connection with
its obligations under this Agreement;
(6) There is no outstanding litigation, arbitrated matter
or other dispute to which EMW is a party which, if
decided unfavorably to EMW, would reasonably be
expected to have a potential or actual material
adverse effect on EMW's or IBM's ability to fulfill
its respective obligations under this Agreement;
(7) EMW does not have any commitments to third parties
that conflict with EMW's obligations to IBM in this
Agreement; and
(8) EMW has not breached the terms of any Confidentiality
Agreement entered into with IBM prior to the
Effective Date.
20.02 BY IBM. IBM represents and warrants that:
(1) IBM is a corporation duly organized, validly existing
and in good standing under the laws of the State of
New York;
(2) IBM has all requisite corporate power and authority
to execute, deliver and perform its obligations under
this Agreement;
(3) IBM is duly licensed, authorized or qualified to do
business and is in good standing in every
jurisdiction in which a license, authorization or
qualification is required for the ownership or
leasing of its assets or the transaction of business
of the character transacted by it, except where the
failure to be so licensed, authorized or qualified
would not have a material adverse effect on IBM's
ability to fulfill its obligations under this
Agreement;
(4) The execution, delivery and performance of this
Agreement has been duly authorized by IBM;
(5) IBM is in compliance with all applicable Federal,
state, local or other laws and regulations applicable
to IBM and has obtained all applicable permits and
business licenses required of IBM in connection with
its obligations under this Agreement;
(6) There is no outstanding litigation, arbitrated matter
or other dispute to which IBM is a party which, if
decided unfavorably to IBM, would reasonably be
expected to have a potential or actual material
adverse effect on EMW's or IBM's ability to fulfill
its respective obligations under this Agreement;
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(7) IBM has not breached the terms of any Confidentiality
Agreement entered into with EMW prior to the
Effective Date; and
(8) IBM does not have any commitments to third parties
that conflict with IBM's obligations to EMW in this
Agreement.
20.03 DISCLAIMER. EXCEPT AS SPECIFIED IN SECTION 20.01
AND SECTION 20.02, NEITHER EMW NOR IBM MAKES ANY OTHER WARRANTIES WITH RESPECT
TO THE SERVICES OR THE SYSTEMS AND EACH EXPLICITLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE.
ARTICLE 21 ADDITIONAL COVENANTS.
21.01 BY EMW. EMW covenants and agrees that during the
Term and the Termination Assistance Period, EMW shall comply in all material
respects with all applicable Federal, state, local or other laws and
regulations applicable to EMW and, except as otherwise provided in this
Agreement, shall obtain and maintain all applicable permits and business
licenses required of EMW in connection with its obligations under this
Agreement. If EMW provides IBM with any products (including Software and
Machines) for use by IBM in providing the Services ("EMW THIRD PARTY
PRODUCTS"), EMW shall pass through to IBM all intellectual property
infringement indemnities it receives from third parties for such EMW Third
Party Products , to the extent it is able to do so. If (1) IBM or its
affiliates, and their respective employees, officers and directors suffer,
incur or sustain any Losses or become subject to any Losses resulting from,
arising out of or relating to any third party claim that any EMW Third Party
Product infringes such party's patent, copyright, trade mark, service mark,
trade secret, domain name or any similar proprietary rights and (2) EMW is not
able to pass through to IBM an intellectual property indemnity in respect of
such EMW Third Party Product, then at IBM's request EMW shall (a) enforce
EMW's indemnification rights, if any, against the applicable third party in
respect of the applicable infringement claim for the benefit of IBM and, if
applicable, EMW and (b) with respect to any sum recovered by EMW (including
through settlement), pay to IBM a portion of such sum equal to IBM's
proportional Losses resulting from such infringement claim as compared to
EMW's proportional Losses resulting from such infringement claim.
21.02 BY IBM. IBM covenants and agrees that during the
Term and the Termination Assistance Period:
(1) IBM shall comply in all material respects with all
applicable Federal, state, local or other laws and
regulations applicable to IBM and shall obtain and
maintain all applicable permits and business licenses
required of IBM in connection with its obligations
under this Agreement;
(2) IBM shall (a) use commercially reasonable efforts to
avoid the introduction of viruses into the Software
or Machines operated by IBM and IBM Agents to provide
the Services; (b) not, without the prior consent of
EMW, intentionally insert into the IBM Software any
code (such as locks) for the
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purpose of disabling the IBM Software; (c) inform EMW
of any such disabling code which it becomes aware is
contained in IBM Software; and (d) not invoke any
such disabling code without EMW's consent;
(3) If IBM uses any third party products (including
Software and Machines) in providing the Services
("IBM THIRD PARTY PRODUCTS"), IBM shall pass through
to EMW all intellectual property infringement
indemnities it receives from third parties for such
IBM Third Party Products, to the extent it is able to
do so. If (1) EMW or its affiliates, and their
respective employees, officers and directors suffer,
incur or sustain any Losses or become subject to any
Losses resulting from, arising out of or relating to
any third party claim that any IBM Third Party
Product infringes such party's patent, copyright,
trade mark, service mark, trade secret, domain name
or any similar proprietary rights and (2) IBM is not
able to pass through to EMW an intellectual property
indemnity in respect of such IBM Third Party Product,
then at EMW's request IBM shall (a) enforce IBM's
indemnification rights, if any, against the
applicable third party in respect of the applicable
infringement claim for the benefit of EMW and, if
applicable, IBM and (b) with respect to any sum
recovered by IBM (including through settlement), pay
to EMW a portion of such sum equal to EMW's
proportional Losses resulting from such infringement
claim as compared to IBM's proportional Losses
resulting from such infringement claim.
(4) That none of the Deliverable Materials,
non-commercial IBM Proprietary Software,
non-commercial IBM Proprietary Tools, or
non-commercial IBM-logoed Machines infringe a third
party's patent, copyright, trade mark, service mark,
trade secret, domain names or similar proprietary
rights. If any such Deliverable Material,
non-commercial IBM Proprietary Software,
non-commercial IBM Proprietary Tool, or
non-commercial IBM-logoed Machine is, or in IBM's
opinion is likely to be held to be infringing, IBM
shall at its expense and option either (a) procure
the right for EMW to continue using it, (b) replace
it with a non-infringing equivalent, (c) modify it to
make it non-infringing or (d) if none of these
alternatives are reasonably available, direct the
return of such Deliverable Materials, non-commercial
IBM Proprietary Software, non-commercial IBM
Proprietary Tool, or non-commercial IBM logoed
Machine and refund to EMW the fees paid for it. These
remedies, in addition to EMW right to exercise it
remedies under SECTION 27.01(3), constitute EMW's
sole and exclusive remedies and IBM's entire
liability with respect to a breach of this paragraph
(4). Notwithstanding any to the contrary in this
paragraph (4), IBM shall have no obligation under
this paragraph (4) if the claim of infringement is
caused by (i) EMW's misuse or modification of the
Software, Tools or Deliverable Materials, (ii) EMW's
failure to use corrections or enhancements made
available by IBM, (iii) EMW's use of such Software,
Tools or Deliverable Materials in combination with
any product or material not owned or provided by IBM
or (iv) specifications, designs or requirements
provided by EWM or EMW Agents.
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ARTICLE 22 DISPUTE RESOLUTION.
22.01 OVERVIEW. If EMW and IBM have a dispute regarding
this Agreement, EMW and IBM shall follow the dispute resolution process
described in this Section (the "DISPUTE RESOLUTION PROCESS"):
(1) Procedure
a. A dispute under this Agreement initially
will be referred to the Contract Executives.
b. If the Contract Executives are unable to
resolve the dispute within 10 business days
of their receipt of the referral to the
Contract Executives, the dispute will be
referred to the VP of Operations for EMW and
the VP of IBM Global Services responsible
for EMW's account for their review and
resolution.
(2) EMW and IBM shall exercise reasonable, good faith
efforts to resolve the dispute throughout the Dispute
Resolution Process.
(3) IBM and EMW may not initiate formal proceedings
(except for injunctive relief) for the resolution of
such dispute until the earlier of:
a. the joint written conclusion of the Contract
Executives that acceptable resolution
through continued negotiation is unlikely;
b. 60 days after the initial referral to such
Contract Executives was made; or
c. 60 days before the limitations period
governing any such cause of action relating
to such dispute would expire.
(4) IBM and EMW:
a. agree that written and oral offers of
settlement, and written and oral statements
made in furtherance of offers of settlement,
in each case made in the course of the
Dispute Resolution Process, shall be
Confidential Information, shall not be
offered into evidence, disclosed, or used
for any purpose other than the Dispute
Resolution Process, and shall not constitute
an admission or waiver of rights;
b. specifically agree, together with their
attorneys, Agents and representatives, that
any and all documents, statements or other
evidence which are in the possession of the
Parties, their attorneys, auditors, Agents
and/or representatives, prior to the
commencement of the Dispute Resolution
Process, or which are obtained, at any time,
outside of the Dispute Resolution Process
shall not be excluded by the immediately
preceding clause (a); and
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c. shall promptly return to the other, upon
request, any such written statements or
offers of settlement, including all copies
thereof.
22.02 CONTINUITY OF PERFORMANCE. Except where clearly
prevented by the nature of the dispute or in the event of EMW's breach of its
payment obligations, IBM and EMW agree to continue performing their respective
obligations under this Agreement while a dispute is being resolved.
22.03 EXPEDITED DISPUTE RESOLUTION. Notwithstanding
anything to the contrary contained in this Agreement, in the event of a
dispute relating to or arising out of a Default Notice, the Dispute Resolution
Process must be commenced and completed within the applicable Default Cure
Period.
ARTICLE 23 TERMINATION.
23.01 TERMINATION FOR CONVENIENCE.
(1) EMW may elect to terminate this Agreement for its
convenience, in whole or by Service Category, by
providing IBM with a notice stating EMW's election to
terminate this Agreement for its convenience and the
effective date of such termination. The effective
date of such termination shall be (a) no earlier than
24 months from the Effective Date, (b) no earlier
than six months, and no later than 12 months, after
IBM's receipt of such notice and (c) no earlier than
EMW's payment of the applicable Termination Fees set
forth in EXHIBIT 4.
(2) Notwithstanding anything to the contrary contained in
this Agreement, EMW shall have the right to terminate
this Agreement for its convenience, in whole or by
Service Category, without payment of any Termination
Fees at such time as IBM shall have received $1.5
billion in cumulative revenue from EMW for the
provision of Services.
23.02 TERMINATION FOR CHANGE IN CONTROL OF IBM. In the
event of a Change in Control of IBM, EMW may terminate this Agreement, by
giving IBM notice of the termination at least 180 days prior to the
termination date specified in the notice and no later than 180 days after the
Change in Control, and upon payment of the applicable Termination Fees set
forth in EXHIBIT 4.
23.03 TERMINATION FOR CAUSE.
(1) If IBM defaults in the performance of any of its
material obligations (or repeatedly defaults in the
performance of any of its other obligations and the
effect thereof could reasonably be considered
material) under this Agreement, and does not cure
such default within 45 days of receipt (the "DEFAULT
CURE PERIOD") of a notice of default (the "DEFAULT
NOTICE"), then EMW may, by giving notice to IBM,
terminate this Agreement, in whole or in part, as of
the termination date specified in the notice, which
shall not be later than 180 days following the date
of such notice. If the nature of any nonmonetary
breach is such that it would be unreasonable to
expect a cure
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within 45 days, an additional 15 days will be
allowed. This termination right is independent of,
and without prejudice to, any other termination
rights EMW may have in this Agreement.
(2) If EMW defaults in the payment of any amounts due
under this Agreement or materially breaches ARTICLE
12, SECTION 19.01 or SECTION 19.03 of this Agreement
and does not cure a monetary default within 10 days,
or a non-monetary default within 45 days of receipt
of a notice of default, then IBM may, by notice to
EMW, terminate this Agreement, in whole, as of the
date specified in the notice. If the nature of any
nonmonetary breach is such that it would be
unreasonable to expect a cure within 45 days, an
additional 15 days will be allowed.
23.04 INTENTIONALLY OMITTED.
23.05 OTHER TERMINATIONS. In addition to the provisions
of this Article, this Agreement may be terminated as provided in SECTION 8.05,
SECTION 15.02 and SECTION 16.09.
ARTICLE 24 TERMINATION FEES.
24.01 CALCULATION OF TERMINATION FEES. Set forth in
EXHIBIT 4 are the termination fees (the "TERMINATION FEES") that would be
payable to IBM if this Agreement is terminated by EMW pursuant to SECTION
8.05, SECTION 23.01(1) or SECTION 23.02 effective as of the end of any month
during the remaining Contract Years during the Term.
24.02 PARTIAL TERMINATION FEE ADJUSTMENT. If EMW
terminates a Service Category pursuant to this Agreement, then the Designated
Fees shall be reduced in accordance with EXHIBIT 4.
24.03 TERMINATION FEES. Except as otherwise specifically
set forth in SECTION 8.05, SECTIONS 23.01(1) and SECTION 23.02, no Termination
Fees shall be payable by EMW in connection with the termination of this
Agreement; provided however that EMW shall continue to be responsible for Fees
for Services rendered.
ARTICLE 25 TERMINATION ASSISTANCE.
25.01 TERMINATION ASSISTANCE SERVICES.
(1) IBM shall, upon EMW's request from time to time after
a determination is made by EMW that there will be a
termination or expiration of this Agreement, provide
the Termination Assistance Services. The quality and
level of performance during the Termination
Assistance Period shall not be degraded. After the
expiration of the Termination Assistance Period, IBM
shall (a) answer questions from EMW regarding the
Services on an "as needed" basis at IBM's then
standard billing rates and (b) deliver to EMW
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any remaining EMW-owned reports and documentation
still in IBM's possession.
(2) Upon the occurrence of either the (a) delivery to IBM
by EMW of a notice to terminate the entire Agreement
or (b) expiration of this Agreement, IBM shall not
terminate, reassign or otherwise remove (other than
for cause) the specified IBM Key Personnel without
EMW's reasonable prior approval for up to 180 days
after the date of such notice or within 180 days of
the date of such expiration. At EMW's request during
such period in respect of each then-current member of
the Project Staff, IBM shall, to the extent not
prohibited by applicable laws, rules or regulations
allow EMW and its designees to meet with, solicit and
hire such then-current member of the Project Staff.
(3) To the extent IBM can perform any requested
Termination Assistance Services using its
then-existing resources dedicated to providing the
Services under this Agreement, the Termination
Assistance Services will be billed to EMW as
Designated Fees.
(4) If the Termination Assistance Services will require
the use of different or additional services or
resources beyond that which IBM is then using to
provide the Services, the Termination Assistance
Services will be invoiced at IBM's then standard
rates.
(5) IBM will provide the Termination Assistance Services
for up to 12 months after the effective date of the
expiration or termination of this Agreement.
(6) IBM will provide Termination Assistance Services only
to the extent such Termination Assistance Services
will not unreasonably interfere with IBM's ability to
perform the Services, unless EMW gives IBM
corresponding relief of IBM's obligations.
(7) If IBM terminates this Agreement for EMW's material
breach, IBM will provide EMW with Termination
Assistance Services only if EMW pays the estimated
Fees for such Termination Assistance Services in
advance.
25.02 EXIT RIGHTS. Upon the later of (1) the expiration
or termination of this Agreement and (2) the last day of the Termination
Assistance Period:
a. Upon EMW's request, with respect to the IBM
Third Party Software that IBM has licensed
or purchased and is using solely to provide
the Services as of the End Date, IBM shall
transfer, assign or sublicense such IBM
Third Party Software to EMW or its designee.
EMW shall be responsible for any access,
transfer or maintenance fees.
b. IBM shall deliver to EMW a copy of all of
the Work Product, in the form in use as of
the End Date.
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c. Upon EMW's request, with respect to any
agreements for maintenance, disaster
recovery services or other necessary third
party services being used by IBM or IBM
Agents to provide the Services as of the End
Date, IBM shall, and shall cause IBM Agents
to transfer or assign such agreements to EMW
or its designee, on terms and conditions
acceptable to all applicable parties.
d. Upon EMW's request, IBM shall sell to EMW or
its designee the IBM Machines owned by IBM
and being used by IBM or IBM Agents to
perform the Services as of the End Date,
free and clear of all liens, security
interests or other encumbrances at the book
value. Upon EMW's request and with respect
to IBM Machines leased by IBM and being used
by IBM or IBM Agents to perform the Services
as of the End Date, IBM shall assign, to the
extent permissible under the applicable
lease agreements, the applicable lease
agreement to EMW.
ARTICLE 26 INDEMNITIES.
26.01 INDEMNITY BY EMW. EMW shall indemnify IBM from, and
defend and hold IBM and its affiliates, and their respective employees,
officers, and directors harmless from and against any Losses suffered,
incurred or sustained by IBM or to which IBM becomes subject, resulting from,
arising out of or relating to any third party claim:
(1) Relating to (a) a violation of Federal, state, local
or other laws or regulations for the protection of
persons or members of a protected class or category
of persons by EMW, including unlawful discrimination
and (b) work-related injury (except as may be covered
by EMW's workers' compensation plan) or death, in
each case caused by EMW.
(2) Relating to any amounts, including taxes, interest
and penalties, assessed against IBM which are the
obligation of EMW under this Agreement.
(3) Relating to personal injury (including death) or real
or tangible personal property loss or damage
resulting from EMW's acts or omissions.
(4) That any specifications, designs or requirements
provided by EMW infringes such third party's patent,
copyright, trade mark, service mark, trade secret,
domain names or any similar proprietary rights.
(5) Based on an environmental claim arising out of this
Agreement or as a result of the Services performed at
EMW facilities, except to the extent that IBM has
caused the environmental damage giving rise to such
claim.
(6) By an EMW customer arising from services or systems
provided by EMW or EMW Agents to such EMW customer.
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(7) Relating to EMW's failure to obtain, maintain or
comply with its Governmental Approvals.
(8) Relating to a violation by EMW or EMW Agents of the
license terms set forth in EXHIBIT 2A.
26.02 INDEMNITY BY IBM. IBM shall indemnify EMW from, and
defend and hold EMW and its affiliates, and their respective employees,
officers, and directors harmless from and against any Losses suffered,
incurred or sustained by EMW or to which EMW becomes subject, resulting from,
arising out of or relating to any third party claim:
(1) Relating to (a) a violation of Federal, state, local
or other laws or regulations for the protection of
persons or members of a protected class or category
of persons by IBM, including unlawful discrimination
and (b) work-related injury (except as may be covered
by IBM's workers' compensation plan) or death, in
each case caused by IBM.
(2) Relating to any amounts, including taxes, interest
and penalties, assessed against EMW which are the
obligation of IBM under this Agreement.
(3) Relating to personal injury (including death) or real
or tangible personal property loss or damage
resulting from IBM's acts or omissions.
(4) That any commercial IBM Proprietary Software or
commercial IBM Proprietary Tool or commercial
IBM-logoed Machine, infringe such third party's
patent, copyright, trade mark, service mark, trade
secret, domain names or any similar proprietary
rights; provided however, that IBM shall have no
obligation under this paragraph (4) if the claim of
infringement is caused by (i) EMW's misuse or
modification of the Software, Tools or Deliverable
Materials, (ii) EMW's failure to use corrections or
enhancements made available by IBM, (iii) EMW's use
of such Software, Tools or Deliverable Materials in
combination with any product or material not owned or
provided by IBM or (iv) specifications, designs or
requirements provided by EWM or EMW Agents.
(5) Based on an environmental claim arising out of this
Agreement or as a result of the Services performed at
the IBM Service Locations, except to the extent that
EMW has caused the environmental damage giving rise
to such claim.
(6) By an IBM customer arising from services or systems
provided by IBM or IBM Agents to such IBM customer.
(7) Relating to IBM's failure to obtain, maintain or
comply with the Consents and its Governmental
Approvals.
26.03 INDEMNIFICATION PROCEDURES. The indemnifying
party's obligations under this Section are subject to the indemnified party
following the procedures set forth in this SECTION 26.03.
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(1) The indemnified party will promptly notify the
indemnifying party of a claim covered by ARTICLE 26.
(2) The indemnifying party will be entitled to take sole
control of the defense and investigation of the claim
(the "DEFENSE") at its own expense, and to use
attorneys of its choice, by providing prompt notice
to the indemnified party. The indemnifying party will
not be liable to the indemnified party for any
defense costs incurred after such notice, except for
defense costs incurred at the indemnifying party's
request.
(3) If the indemnifying party takes sole control of the
Defense, then the indemnified party (a) will
cooperate in all reasonable respects with the
indemnifying party and its attorneys in the Defense
of such claim at the expense of the indemnifying
party and (b) may reasonably participate at its own
expense, through its attorneys or otherwise, in such
Defense.
(4) If the indemnifying party does not take sole control
of the Defense of a claim as provided in this
subsection, then:
a. the indemnifying party may participate in
such Defense, at its sole cost and expense;
and
b. the indemnified party will have the right to
defend the claim in such manner as it may
deem appropriate; and
c. the indemnifying party will pay the
indemnified party's defense costs.
(5) All settlements of claims subject to indemnification
under this Section will:
a. be entered into only with the consent of the
indemnified party, which consent will not be
unreasonably withheld; and
b. include an appropriate Confidentiality
Agreement prohibiting disclosure of the
terms of such settlement.
ARTICLE 27 DAMAGES.
27.01 DIRECT DAMAGES.
(1) Each of the Parties shall be liable to the other for
any direct damages arising out of or relating to its
performance or failure to perform under this
Agreement in respect of the Start-up Services;
provided, however, that the liability of a Party,
whether based on an action or claim in contract,
equity, negligence, tort or otherwise, for all
events, acts or omissions shall not exceed in the
aggregate an amount equal to the aggregate SI
Services Fees with respect to the Start-up Services.
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(2) Each of the Parties shall be liable to the other for
any direct damages arising out of or relating to its
performance or failure to perform under this
Agreement in respect of the Full Functional Services;
provided, however, that the liability of a Party,
whether based on an action or claim in contract,
equity, negligence, tort or otherwise, for all
events, acts or omissions shall not exceed in the
aggregate an amount equal to the aggregate SI
Services Fees with respect to Full Functional
Services.
(3) Each of the Parties shall be liable to the other for
any direct damages arising out of or relating to its
performance or failure to perform under this
Agreement in respect of the Steady State Services and
with regard to IBM's breach of SECTION 21.02(4);
provided, however, that the liability of a Party,
whether based on an action or claim in contract,
equity, negligence, tort or otherwise, for all
events, acts or omissions shall not exceed in the
aggregate an amount equal to the sum of 12 months
of the Steady State Fees, plus an additional three
months of Steady State Fees in the event of gross
negligence and willful misconduct (except with
regard to IBM's breach of SECTION 21.02(4)).
27.02 CONSEQUENTIAL DAMAGES. In no event will IBM, EMW,
or their respective affiliates, employees, officers, and directors have any
liability under this Agreement, regardless of the basis on which IBM or EMW is
entitled to claim damages (including breach, negligence, misrepresentation, or
other contract or tort claim), for any special, incidental, punitive, or
indirect damages, or for any economic consequential damages (including lost
profits or savings), even if foreseeable or even if EMW or IBM has been
advised of the possibility of such damages.
27.03 EXCLUSIONS. The limitation of liability in SECTION
27.01 and the exculpation of liability in SECTION 27.02 do not apply to:
(1) EMW's failure to pay any amounts owing to IBM under
this Agreement (including amounts owing for Services
rendered) or IBM's failure to provide Service Level
Credits as provided under this Agreement;
(2) any damages for bodily injury (including death) and
damage to real property and tangible personal
property;
(3) damages associated with either Party's infringement
or violation of the intellectual property rights of
the other Party or the other Party's affiliates;
(4) breaches of the Parties' confidentiality obligations
contained in SECTION 19.01 AND SECTION 19.03;
(5) third-party claims subject to indemnification under
SECTION 26.01 or SECTION 26.02; or
(6) IBM's breach of its obligations in SECTION 13.01 or
SECTION 13.03.
27.04 INJUNCTIVE RELIEF. Both Parties acknowledge and
agree that in the event of any breach of SECTION 3.01, SECTION 4.03, SECTION
10.06, ARTICLE 12, SECTION 13.01, SECTION 13.03, SECTION 16.01, SECTION 16.02,
SECTION 16.04, SECTION 16.07, SECTION 16.08, SECTION 19.01, SECTION
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19.03, SECTION 22.02, SECTION 25.01 or SECTION 25.02, the other Party may
immediately pursue it remedies without regard to the Dispute Resolution
Process.
ARTICLE 28 INSURANCE.
28.01 INSURANCE. During the Term and the Termination
Assistance Period, IBM shall obtain and maintain at its own expense, and
require IBM Agents to obtain and maintain at their own expense or IBM's
expense, insurance of the type and in the amounts set forth below:
(1) statutory workers' compensation in accordance with
all Federal, state and local statutory requirements;
(2) employer's liability insurance in an amount not less
than $1,000,000 per occurrence, covering bodily
injury by accident or disease, including death;
(3) commercial general liability (including contractual
liability insurance) in an amount not less than
$1,000,000; and
(4) comprehensive automobile liability covering all
vehicles that IBM owns, hires or leases in an amount
not less than $1,000,000 (combined single limit for
bodily injury and property damage).
IBM shall be permitted to self-insure provided that it has a
Standard & Poor's issuer credit rating of A- or better.
28.02 INSURANCE DOCUMENTATION. IBM will provide
documentation of insurance upon EMW's reasonable request.
28.03 RISK OF LOSS. IBM IS RESPONSIBLE FOR THE RISK OF
LOSS OF, OR DAMAGE TO, ANY PROPERTY OF EMW AT A DESIGNATED IBM SERVICE
LOCATION OR AN ADDITIONAL DESIGNATED IBM SERVICE LOCATION, EXCEPT TO THE
EXTENT THAT SUCH LOSS OR DAMAGE WAS CAUSED BY THE ACTS OR OMISSIONS OF EMW OR
AN EMW AGENT. EMW IS RESPONSIBLE FOR THE RISK OF LOSS OF, OR DAMAGE TO, ANY
PROPERTY OF IBM AT AN EMW FACILITY, EXCEPT TO THE EXTENT THAT SUCH LOSS OR
DAMAGE WAS CAUSED BY THE ACTS OR OMISSIONS OF IBM OR AN IBM AGENT.
ARTICLE 29 MISCELLANEOUS PROVISIONS.
29.01 ASSIGNMENT. IBM may not delegate its obligations,
and EMW may not assign its rights or delegate its obligations, under this
Agreement, without the prior consent of the other, except that IBM may
delegate its obligations and EMW may assign its rights or delegate its
obligations to their respective affiliates, provided:
(1) such affiliate accepts such assignment and assumes
such obligations, in writing;
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(2) EMW or IBM, respectively, remains fully liable for
and is not relieved from the full performance of its
obligations; and
(3) EMW and IBM provide the other with notice, together
with a copy of the signed assignment, delegation, and
assumption agreement, within three business days of
such assignment, delegation, or both.
IBM may assign its rights to receive Fees under this Agreement without notice
to or consent of EMW. IBM's and EMW's respective permitted successors and
assigns will be bound by this Agreement; provided however, that a Change in
Control of EMW shall not be deemed an assignment under this Section and shall
not require any consent by IBM. Any attempted assignment or delegation of all
or any part of this Agreement that does not comply with this Section is void.
29.02 NOTICES. Except as otherwise specified in this
Agreement, all notices, requests, Consents, approvals, agreements,
authorizations, acknowledgements, waivers and other communications required or
permitted under this Agreement shall be in writing and shall be deemed given
when received, as evidenced by a return receipt if sent by certified mail or
delivered by hand to the address specified below:
In the case of EMW:
EMW ENERGY SERVICES CORP.
600 Jefferson Avenue
Suite 600
Houston, TX 77002
Attention: Chief Executive Officer
With a copy to General Counsel office:
EMW ENERGY SERVICES CORP.
General Counsel
600 Jefferson Avenue
Suite 600
Houston, TX 77002
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In the case of IBM:
IBM Project Office
EMW Energy Services Corp.
600 Jefferson Avenue
Suite 600
Houston, TX 77002
Attention: Mr. Robert Moisan, Project Executive
With a copy to Associate General Counsel:
IBM Global Services
Mail Drop 4209
Route 100
Somers, NY 10589
Either Party may change its address or telecopy number for notification
purposes by giving the other Party 10 days' notice of the new address and the
date upon which it will become effective.
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29.03 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which taken together shall constitute one single agreement between the Parties.
29.04 RELATIONSHIP. The Parties intend to create an
independent contractor relationship and nothing contained in this Agreement
shall be construed to make either EMW or IBM partners, joint venturers,
principals, agents or employees of the other. No officer, director, employee,
agent, affiliate or contractor retained by IBM to perform work on EMW's behalf
under this Agreement shall be deemed to be an employee, agent or contractor of
EMW. Neither Party shall have any right, power or authority, express or
implied, to bind the other, except with respect to EMW's customers, and only
as specifically authorized by EMW for IBM to perform the Customer Care and
Customer Acquisition Services described in EXHIBIT 1.B.
29.05 CONSENTS, APPROVALS AND REQUESTS. Except as
specifically set forth in this Agreement, all Consents and approvals to be
given by either Party under this Agreement shall not be unreasonably withheld
or delayed and each Party shall make only reasonable requests under this
Agreement.
29.06 SEVERABILITY. If any provision of this Agreement is
held by a court of competent jurisdiction to be contrary to Law, then the
remaining provisions of this Agreement, if capable of substantial performance,
shall remain in full force and effect.
29.07 WAIVERS. No delay or omission by either Party to
exercise any right or power it has under this Agreement shall impair or be
construed as a waiver of such right or power. A waiver by any Party of any
breach or covenant shall not be construed to be a waiver of any succeeding
breach or any other covenant. All waivers must be signed by the Party waiving
its rights.
29.08 REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to either Party is intended to be exclusive of any
other right or remedy, and each and every right and remedy shall be cumulative
and in addition to any other right or remedy under this Agreement, or under
applicable law, whether now or hereafter existing.
29.09 ENTIRE AGREEMENT. This Agreement and the Exhibits
to this Agreement represent the entire agreement between the Parties with
respect to its subject matter, and there are no other representations,
understandings or agreements between the Parties relative to such subject
matter.
29.10 AMENDMENTS. No amendment to, or change, waiver or
discharge of, any provision of this Agreement shall be valid unless in writing
and signed by, in the case of EMW, the EMW Contract Manager, and in the case
of IBM, the IBM Contract Manager.
29.11 SURVIVAL. The terms of ARTICLE 12, SECTION 13.01,
SECTION 13.03, ARTICLE 19, ARTICLE 25, ARTICLE 26, ARTICLE 27, SECTION 29.12,
SECTION 29.13, SECTION 29.14, SECTION 29.15, SECTION 29.16 and SECTION 29.19
shall survive the expiration or termination of this Agreement.
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29.12 THIRD PARTY BENEFICIARIES. Each Party intends that
this Agreement shall not benefit, or create any right or cause of action in or
on behalf of, any person or entity other than the Parties.
29.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO THE CONFLICTS OF LAWS.
29.14 SOLE AND EXCLUSIVE VENUE. Each Party irrevocably
agrees that any legal action, suit or proceeding brought by it in any way
arising out of this Agreement must be brought solely and exclusively in the
United States District Court for the Southern District of New York or in the
state courts of the State of New York and irrevocably accepts and submits to
the sole and exclusive jurisdiction of each of the aforesaid courts in
personam, generally and unconditionally with respect to any action, suit or
proceeding brought by it or against it by the other Party; provided, however,
that this Section shall not prevent a Party against whom any legal action,
suit or proceeding is brought by the other Party in the state courts of the
State of New York from seeking to remove such legal action, suit or
proceeding, pursuant to applicable Federal Law, to the district court of the
United States for the district and division embracing the place where the
action is pending in the state courts of the State of New York, and in the
event an action is so removed each Party irrevocably accepts and submits to
the jurisdiction of the aforesaid district court. EMW hereby irrevocably
consents to the service of process from any of the aforesaid courts by mailing
copies thereof by registered or certified mail, postage prepaid, to EMW at its
address designated pursuant to SECTION 29.02, with such service of process to
become effective 30 days after such mailing. IBM hereby irrevocably consents
to the service of process from any of the aforesaid courts by mailing copies
thereof by registered or certified mail, postage prepaid, to IBM at:
The IBM Assistant General Counsel and Secretary
Service of Process
Attention: Liane Rigano, Mail Drop 301
New Orchard Road
Armonk, New York 10504
or such other address as IBM may notify EMW in writing from
time to time, and in any event with copies to the addresses designated by IBM
in SECTION 29.02, with such service of process to become effective 30 days
after such mailing. Each Party hereto further expressly waives any right to a
trial by jury in any proceeding directly or indirectly arising under this
Agreement.
29.15 COVENANT OF FURTHER ASSURANCES. EMW and IBM
covenant and agree that, subsequent to the execution and delivery of this
Agreement and, without any additional consideration, each of EMW and IBM shall
execute and deliver any further legal instruments and perform any acts that
are or may become necessary to effectuate the purposes of this Agreement.
29.16 NEGOTIATED TERMS. The Parties agree that the terms
and conditions of this Agreement are the result of negotiations between the
Parties and that this Agreement shall not be
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construed in favor of or against any Party by reason of the extent to which
any Party or its professional advisors participated in the preparation of this
Agreement.
29.17 EXPORT. EMW and IBM shall not knowingly export or
re-export any personal computer system, part, technical data or sub-elements
under this Agreement, directly or indirectly, to any destinations prohibited
by the United States Government. The term "technical data" in this context,
means such data as is defined as technical data by applicable United States
export regulations.
29.18 CONFLICT OF INTEREST. IBM shall not pay any
salaries, commissions, fees or make any payments or rebates to any employee of
EMW, or to any designee of such employee, or favor any employee of EMW, or any
designee of such employee, with gifts or entertainment of significant cost or
value or with services or goods sold at less than full market value. IBM
agrees that its obligation to EMW under this Section shall also be binding
upon IBM Agents. IBM further agrees to insert the provisions of this Section
in each contract with a IBM Agent.
29.19 PUBLICITY. Each Party shall (1) submit to the other
all advertising, written sales promotions, press releases and other publicity
matters relating to this Agreement in which the other Party's name or mark is
mentioned or which contains language from which the connection of said name or
mark may be inferred or implied and (2) not publish or use such advertising,
sales promotions, press releases or publicity matters without the other
Party's consent, in each case except as otherwise required pursuant to
applicable law.
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29.20 GEOGRAPHY SCOPE.
Except as a result of EMW's approval under SECTION 9.01 with respect to
Additional Designated Service Locations outside of the United States, the
Party's rights and obligations arising out of this Agreement are valid only in
the United States and Puerto Rico.
* * * *
IN WITNESS WHEREOF, each of EMW and IBM has caused this
Agreement to be signed and delivered by its duly authorized representative.
EMW ENERGY SERVICES CORP.
By: /s/ H. Eugene Lockhart
-----------------------------------
Name: H. Eugene Lockhart
Title: President and Chief
Executive Officer
INTERNATIONAL BUSINESS
MACHINES CORPORATION
By: /s/ Thomas M. Cotney, Jr.
-----------------------------------
Name: Thomas M. Cotney, Jr.
Title: Vice President,
IBM Global Services
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Exhibit 1A
Statement of Work -
Start up Services
Full Functional Services
Table of Contents
<TABLE>
<S> <C> <C>
1. INTRODUCTION...........................................................1
2. STATEMENT OF WORK......................................................2
2.1. Project Scope...................................................2
2.2. Key Assumptions.................................................4
2.2.1. GENERAL ASSUMPTIONS......................................4
2.2.2. CUSTOMER RELATIONSHIP MANAGEMENT ASSUMPTIONS.............4
2.2.3. REVENUE MANAGEMENT ASSUMPTIONS...........................6
2.2.4. BUSINESS INTELLIGENCE ASSUMPTIONS........................6
2.2.5. KNOWLEDGE MANAGEMENT ASSUMPTIONS.........................6
2.2.6. E-BUSINESS ASSUMPTIONS...................................7
2.3. IBM Responsibilities............................................8
2.3.1. ESTABLISH AND RUN A PROJECT OFFICE.......................8
2.3.2. START UP SERVICES.......................................10
2.3.3. FULL FUNCTIONAL SERVICES................................44
2.4. EMW Responsibilities...........................................64
2.4.1. EMW CONTRACT EXECUTIVE..................................64
2.4.2. GENERAL EMW RESPONSIBILITIES............................64
2.5. Deliverable Materials..........................................64
2.6. Completion Criteria............................................70
2.7. Estimated Schedule.............................................70
APPENDIX A - DETAILED GO LIVE REQUIREMENTS...................................71
APPENDIX B DELIVERABLE REVIEW AND SIGN-OFF PROCEDURE.........................98
</TABLE>
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Exhibit 1A SI SOW
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1. INTRODUCTION
IBM has proposed a phased approach to implementing the proposed solution.
The "Start up Services" phase (reference section 2.3.2 for detail) is
aimed at fulfilling the requirements for the commodity and non-commodity
business by leveraging and integrating a combination of existing solution
components and meeting the functionality described in the shaded portions
of Appendix A.
The "Full Functional Services" phase (reference section 2.3.3 for detail)
is aimed at extending the Start up Services functionality to enable EMW
to pursue energy related retail opportunities within the residential
market for both commodity and related non-commodity products and services
and meeting the functionality described in the shaded and unshaded
portions of Appendix A.
The Software solution ("EMW System") produced by IBM from the Start-up
Services and the Full Functional Services shall be capable of scaling up
to and supporting 10,000,000 customers.
The associated "Steady State Services" are addressed separately in Part
1B of this Exhibit.
"Start-up Services Completion Date" shall mean August 1, 2000. "Full
Functional Completion Date" shall mean June 1, 2001.
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Exhibit 1A SI SOW
<PAGE>
2. STATEMENT OF WORK
This Statement of Work (SOW) defines the scope of work to be accomplished
by IBM under the terms and conditions of the Information Technology
Services Agreement (Agreement) between EMW Energy Services, Inc. (EMW)
and IBM. The tasks to be performed by IBM are defined and an estimated
schedule is provided. In addition, the responsibilities of EMW are
listed.
Changes to this Statement of Work will be processed in accordance with
the procedure described in Change Control Procedure in Exhibit 8 and the
Procedures Manual. The investigation and the implementation of changes
may result in modifications to the estimated schedule, Designated Fees,
and/or other terms of the Agreement.
The following are incorporated in and made part of this Statement of
Work:
- Appendix A - Detailed Go Live Requirements
- Appendix B - Deliverable Review and Sign Off Procedure
2.1. PROJECT SCOPE
This SOW addresses EMW's Customer Acquisition, Customer Care, and Revenue
Management requirements for development and implementation.
IBM will provide services in two phases: Start up Services and Full
Functional Services. As part of thethe Start up Services, IBM will
establish and run a project office and provide the initial product
releases for Customer Relationship Management, Revenue Management,
Business Intelligence, Knowledge Management, e-business, and Business
Infrastructure by leveraging a combination of existing solutions
components. The Start up Services shall be completed by the Start-up
Services Completion Date. As part of the Full Functional Services
additional functionality will be added to the Start up Services versions
of the products to allow EMW to pursue energy related retail
opportunities within the residential market as set forth in. The Full
Functional Services are to be completed by the date which is 10 months
after the completion of the Start-up Services.
- CUSTOMER RELATIONSHIP MANAGEMENT Start up Services objective is to
build an operational customer acquisition and customer care contact
center able to handle inbound customer care and new customer
acquisition calls and web inquiries, as well as conduct outbound
telemarketing for commodity and non-commodity based offerings. The
Full Functional Services objective is to be consistent with the EMW
strategy for commodity and related non-commodity based offerings
building on the foundation begun with Start up Services. The scope
of work for the Full Functional Services phase will include:
- Strategy requirements identification, and validation
affecting the necessary enablers (Process, Organization,
Facilities, Information Access (data) and Technology)
- Definition, design, development and deployment of the
required enablers
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Exhibit 1A SI SOW
<PAGE>
- Completing integration with other identified Access Points;
WEB, e-mail, FAX and Physical Delivery as appropriate.
- REVENUE MANAGEMENT services will be based around the Banner,
Bluegill CWA, and VeriTRAN applications. These applications will be
enhanced as a result of requirements gathered from EMW and to
achieve the functionality set forth in Appendix A. Interfaces to
Utility Distribution Companies to be determined in Start up Services
will be developed.
- BUSINESS INTELLIGENCE services will identify opportunities within
the Customer Acquisition, Customer Care, and Revenue Management
business process flows and incorporate them in Business Intelligence
activities. An operational data store will be designed and
implemented which will allow for real-time synchronization of
applications across outbound and inbound channels. A data warehouse
will be designed and implemented which will allow for historical
decision support analytics, data mining and trend analysis of
customers and market data across outbound and inbound channels.
- KNOWLEDGE MANAGEMENT services will include the implementation of an
e-care and knowledge management system. The e-care system will be
comprised of the following assets: automated e-mail and web-forms
(ERMS), and virtual web chat (WebGenie) capabilities based on text
processing machine learning "artificial intelligence" (AI)
technology from Watson Laboratories (IBM Mail Analyzer). The
knowledge management system will provide customer personalization,
profiling and tracking. This work encompasses the development and
management of a support-knowledge base, and it will be integrated
with ERMS, WebGenie and Clarify. The knowledge management
infrastructure can also be leveraged by EMW Business Intelligence
applications.
- e-BUSINESS Start up Services incorporate the key components required
to integrate the EMW provided solution for a web-based front-end
with the IBM provided back-end integration applications for Customer
Acquisition, Customer Care, and Revenue Management. These services
involve gathering requirements, defining process flows (as related
to Prospect Inquiry) and developing a solution outline to analyze
and establish the interfaces for the web to the back-end
applications. The Full Functional Services scope for e-business
integrates the personalization efforts, messaging, knowledge
management and Data Warehousing.
- BUSINESS INFRASTRUCTURE services provide the systems integration
design and implementation for the Customer Acquisition, Customer
Care, and Revenue Management components in addition to the
architecture, standards and guidelines, common repositories,
performance models, and interfaces.
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Exhibit 1A SI SOW
<PAGE>
2.2. KEY ASSUMPTIONS
IBM's estimates to perform the Statement of Work, are based on the
following key assumptions. Deviations that arise during the proposed
project will be managed through the procedure described in the Project
Change Control Procedure section of the Procedures Manual.
2.2.1. GENERAL ASSUMPTIONS
- The EMW Contract Executive will schedule and ensure participation of
all EMW Subject Matter Experts and technical personnel for any
reasonably planned interviews and work sessions.
- Work will be performed at IBM and EMW facilities.
- IBM will reevaluate estimates at the end of the Start up Services
phase and re-estimate remaining project activities and provide
Project Change Requests (PCRs) as required.
- EMW will participate collaboratively to evolve and finalize the
details of the Start up Services and Full Functional Services
deliverables.
- IBM approach, SI Methods, and tools will be used in the execution
of Start up Services and Full Functional Services.
- IBM will staff the its project team with appropriate IBM and
subcontractor resources.
- EMW data is current and comprehensive including: business/customer
service strategy, customer value information, business processes
and business rules.
- System Integration for EMW's business partners or other third party
non-commodity product/service providers is not provided under this
SOW. API's for such interfaces to the IBM provided solutions will be
provided and established as standards for interfacing to such
entities.
- Website technical implementation and integration services, as well
as Website User Interface, are either being procured by EMW under a
separate agreement, or as recommended by IBM as a PCR to this
agreement.
2.2.2. CUSTOMER RELATIONSHIP MANAGEMENT ASSUMPTIONS
2.2.2.1. CUSTOMER CONTACT CENTER ASSUMPTIONS
- There will be 1 Customer Contact Center in production mode by the
completion of Start-up Services.
- The initial Customer Contact Center will have a Lucent G3 switch and
will support the following number of agents:
- After 12 months - 0 to 281
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Exhibit 1A SI SOW
<PAGE>
- After 24 months - 421.
- The initial Customer Contact Center work will be sited at the IBM
Service Delivery Center (SDC) in Charlotte, North Carolina. Any
additional call centers will be located at other IBM locations as
required in accordance with the Agreement.
2.2.2.2. CUSTOMER ACQUISITION ASSUMPTIONS
- Customer Acquisition business model including processes, input &
output data flows, cycle times and functional support is complete
and will be available to IBM from EMW on the Start-up Services
Completion Date.
- EMW marketing strategy is complete and will be available to IBM on
May 10, 2000.
- EMW sales campaign strategy is complete and available.
- EMW plans to achieve the marketing strategy for all product and
service offerings are complete and will be made available to IBM on
the Start-up Services Completion Date.
- EMW sales campaign process requirements are identified.
- EMW sales campaign process maps and data flows for all campaign
types are complete.
- Commodity customer sizing methods/detail for stated contract volumes
will be available to IBM on the Start-up Services Completion Date.
- EMW's initial new products and rates matrices will be established
by EMW.
- Industry regulation requirements are known, documented and
available through EMW to IBM.
- Third party information providers have been identified and
linkages are understood.
- EMW pricing structure, constraints and business rules are
identified and defined.
- Customer data sources and requirements are identified and defined.
- Customer Acquisition and Customer Care process matrix parameters
are identified and defined.
2.2.2.3. CUSTOMER CARE
- Up sell, cross sell products and services matrices are developed
by market segment and are available at the start.
- Order management model is defined containing sufficient customer
profiling data ensuring 100% fulfillment of customer needs.
- Knowledge management model is defined enabling continual
understanding of customer wants needs and desires.
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IBM Confidential May 12, 2000 Page - 5 -
Exhibit 1A SI SOW
<PAGE>
2.2.2.4. OTHER CRM ASSUMPTIONS
- Access point integration and linkage requirements will be identified
and defined for process and technology.
- Operational, functional and technical requirements are defined and
will determine the online and Customer Contact Center Customer
Acquisition and Customer Care scenarios.
- Third party Fulfillment Processes and Integration Points will be
defined and documented.
2.2.3. REVENUE MANAGEMENT ASSUMPTIONS
- The completeness of the process flows and use cases will be
dependent on the timeliness and completeness of the business
requirements provided by EMW.
- EMW will provide the personnel required to provide IBM with the
business requirements necessary to ensure the completeness and
accuracy of the process flows and use cases for the Revenue
Management Requirements Task.
2.2.4. BUSINESS INTELLIGENCE ASSUMPTIONS
- There will be a process in place for IBM and EMW to coordinate
changes in architecture and design and that there will be timely
communication of these changes to all groups.
- Marketing information from the EMW team will be made available to
the IBM team.
2.2.5. KNOWLEDGE MANAGEMENT ASSUMPTIONS
- EMW business requirements will be provided as input to this project
and confirmed during Requirements Definition.
- IBM will be provided access to EMW personnel familiar with the
business requirements, and systems being accessed for this
engagement.
- [IBM will define a common methodology, architecture, protocols,
standards and guidelines, performance model, and interfaces
(Application Programming Interfaces - APIs). These APIs will be
followed by IBM and EMW's other vendors and partners, although
certain exceptions may be made by EMW to accommodate other partner
requirements for interfacing. These will be handled on an exception
basis.
- The following system features and functions are not included in the
scope of work, but can be provided, as required and available, under
a PCR:
- Customer/call center agent live chat capabilities (Lotus
Sametime integration).
- Operational integration with the upcoming Universal
Queue/Contact Manager telephony integration middleware server
(UQ/UCM).
- Integration of Knowledge Management systems with EMW
associated business partner's systems.
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IBM Confidential May 12, 2000 Page - 6 -
Exhibit 1A SI SOW
<PAGE>
- "Requirements Definition" analysis will be performed at the start of
each phase to complete definition of business requirements,
architecture specifications, design specification and review of cost
estimates completed in the early stages of this project.
- It is assumed that EMW will provide any available industry specific
knowledge base and FAQ data for EMW knowledge base initial content.
This data should encompass any sources of industry specific and,
ideally, location (geography) and market specific knowledge base(s)
that can be leveraged as a baseline for common problems, resolutions
and FAQ's.
- If data is not made available for knowledge base initial content,
IBM will work jointly with EMW to develop a basic knowledge base
taxonomy and typical inquiry and resolution text corpus for initial
resolution and FAQ data.
2.2.5.1. BUSINESS DOMAIN ASSUMPTIONS
- Customer contact management model is defined, enabling personalized
level of customer service regardless of point of contact.
- Knowledge management model is defined based on market segments,
enabling continual understanding of customer wants, needs and
desires.
- Business models provide a clearly documented definition of products
and services, enabling the creation of a knowledge management and
support knowledge base taxonomy (categories), and creation of
typical text body inquiries for training of ERMS and WebGenie
Artificial Intelligence engine.
- Any existing problem resolution/support knowledge base categories,
frequently asked questions and archived inquiries will be made
available for the creation of a baseline problem resolution
knowledge base baseline taxonomy.
2.2.6. e-BUSINESS ASSUMPTIONS
- This SOW does not include the Web Site User Interface Look and Feel,
Content, and Flow, nor does it include the Web Site Technical
Implementation and Integration scope, EMW will procure these
services outside this SOW.
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IBM Confidential May 12, 2000 Page - 7 -
Exhibit 1A SI SOW
<PAGE>
2.3. IBM RESPONSIBILITIES
Under this Statement of Work, IBM will perform the following activities:
2.3.1. ESTABLISH AND RUN A PROJECT OFFICE
IBM will provide Project Office management for the IBM responsibilities
in this Statement of Work. The purpose of this activity is to provide
technical direction and integrated control of IBM project personnel and
to provide a framework for project planning, communications, reporting,
and contractual activity. IBM will perform the following tasks:
- Planning:
- Review the Statement of Work and the contractual
responsibilities of both parties with the EMW Contract
Executive.
- Maintain project communications through the EMW Contract
Executive.
- Coordinate the establishment of the project environment.
- Establish documentation and procedural standards and
descriptions for project deliverables.
- Prepare and maintain an initial high level plan followed by
a detailed project plan.
- Project Tracking and Reporting:
- Measure and evaluate progress against the Project Plan with
the EMW Contract Executive.
- Resolve deviations from the Project Plan with the EMW
Contract Executive.
- Conduct weekly project status meetings.
- Prepare and submit a weekly Status Summary Report with the
EMW Contract Executive for the Steering Committee.
- Administer the Project Change Control Procedure with the
EMW Contract Executive.
- Coordinate and manage the activities of project personnel.
- Review project tasks, schedules, and resources and make
changes or additions as appropriate.
COMPLETION CRITERIA:
This is an ongoing activity and will be complete when the other
activities described in IBM Responsibilities have been completed,
according to their completion criteria or IBM has met the criteria
defined in Section 2.6 "Completion Criteria" of this Statement of Work A
Baseline plan will be completed and delivered no later than May 8, 2000.
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IBM Confidential May 12, 2000 Page - 8 -
Exhibit 1A SI SOW
<PAGE>
DELIVERABLES:
- Weekly Status Summary Reports (not subject to the Deliverable
Review and Sign-off Procedure).
- Bi-weekly project plan update.
- Issues management and milestone management process with weekly
updates, (including action items management).
- Assumptions management process with weekly updates.
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IBM Confidential May 12, 2000 Page - 9 -
Exhibit 1A SI SOW
<PAGE>
2.3.2. START UP SERVICES
As part of the Start up Services, IBM will provide the initial solution
with functionality for Customer Relationship Management, Revenue
Management, Business Intelligence, Knowledge Management, e-business, and
Business Infrastructure by leveraging a combination of existing solutions
components in each case to meet the functionality specified in the shaded
areas of Appendix A. The Start up Services will be completed by the by
the Start-up Completion Date.
IBM will perform the following activities to assist EMW to implement the
above noted project scope:
2.3.2.1. CUSTOMER RELATIONSHIP MANAGEMENT
- CUSTOMER RELATIONSHIP MANAGEMENT Start up Services objective
is to build an operational customer acquisition and customer
care contact center able to handle inbound customer care and
new customer acquisition calls as well as conduct outbound
telemarketing for commodity based offerings.
This activity includes the following specific tasks:
IDENTIFY PLANS FOR PACKAGE CUSTOMIZATION AND FUNCTIONAL DESIGN
IBM will analyze the EMW functional requirements for Start-Up Services
and assess the out-of-box capabilities of the major applications packages
for Customer Acquisition, Customer Care, and Revenue Management Services.
Gaps will be identified and assessed. IBM will subsequently provide
project plans functional design efforts that will address the functional
gaps. Here the focus is upon assessing the Start-up Services required
efforts.
COMPLETION CRITERIA:
- This task will be considered complete when IBM provides the Package
Functional Gap Analysis to the EMW Contract Executive.
DELIVERABLES:
- Package Functional Gap Analysis
DEFINE IMPLEMENTATION PLAN
IBM will provide a project plan for the Implementation of the Clarify CRM
front-end package. This plan will include tasks, schedule, resource
allocations, and hardware/software implementation.
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IBM Confidential May 12, 2000 Page - 10 -
Exhibit 1A SI SOW
<PAGE>
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the
Implementation Plan to the EMW Contract Executive.
DELIVERABLES:
- Detailed Implementation Plan
DEVELOP DETAILED DESIGN OF BUSINESS SCENARIOS AND ASSOCIATED CALL CENTER
MANAGEMENT PROCESSES
IBM will develop detailed business process definitions and flows of
Customer Acquisition and Customer Care business processes. Where these
business processes impact the contact center operations, IBM will develop
associated contact center management processes (e.g. training, closed
loop customer satisfaction, performance, and management practices) and
where appropriate integration definition e.g., WEB e- Mail, Fax and
Physical delivery. To facilitate design development, IBM will perform the
following subtasks:
- Identify existing EMW business objectives that will affect the
validation of the project assumptions.
- Review available EMW documentation pertaining to plans for the
project. This documentation includes strategy, current processes,
organization, business unit functions, product & marketing plans,
reengineering, functional and technical requirements, current system
architecture including applications and infrastructure as well as
future architecture plans.
- Gather and validate pertinent existing project documentation e.g.,
strategy, research, current processes related to Customer Care and
Customer Acquisition.
- Conduct interviews and workshops; Establish and review data
gathering requirements, interview requirements, and deliverables'
format, required deliverables contents and target audiences for the
deliverables.
COMPLETION CRITERIA:
This task will be considered completed when IBM provides the Business
Process Maps and Model to the EMW Contract Executive. These deliverables
are anticipated to be continuing work-in-progress both in the Start-up
Services phase as well as the Full Functional Services phase.
DELIVERABLES:
- Business Process Maps and Models
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IBM Confidential May 12, 2000 Page - 11 -
Exhibit 1A SI SOW
<PAGE>
CTI ASSESSMENT
IBM will perform a CTI Architectural Overview and CTI Assessment
containing IBM's recommendations for the Customer Contact Center hardware
and software environments will be created. The following will be
included:
- Architectural Overview.
- Architectural Overview Diagram (target) - hardware/software.
- Detail IBM work plan.
- Non-functional Requirements.
- Test Plan & Requirements.
- Deployment plan & timeline.
- Define Developmental hardware/software requirements.
- Define Test Lab hardware/software requirements.
- Define Training Facility hardware/software requirements.
- Define Production hardware/software requirements.
- Define integration plans
- CallPath ILB - document load-balancing requirements and specify
parameters.
- CallPath Skills Based Routing (SBR).
- Document/design agent skill sets.
- Document SBR (Skills Based Routing) routing and priorities.
- Document Backup/Recovery requirements.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the CTI
Architectural Overview and CTI Assessment Document to the EMW Contract
Executive.
DELIVERABLES:
- CTI Architectural Overview and CTI Assessment Document
INSTALL AND CONFIGURE TELEPHONY AND CTI HARDWARE/SOFTWARE
- TELEPHONY INFRASTRUCTURE - IBM will coordinate the installation,
configuration and integration of the telephony infrastructure
including:
- Procurement of necessary PBX, ACD, and staffing software
packages defined as part of the solution by IBM.
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IBM Confidential May 12, 2000 Page - 12 -
Exhibit 1A SI SOW
<PAGE>
- Procurement of 800 service and network connectivity as
required. Coordination with vendors for telephony
infrastructure installation and configuration.
- Coordination with telephony vendors to provide infrastructure
to accommodate projected volumes of calls.
- BASE CALLPATH SOFTWARE - IBM will install, configure, and test
CallPath CEO and CallPath Server software on RS/6000's -
Development, Test, and Training, Production (Charlotte
- CALLPATH INTELLIGENT LOAD BALANCING - IBM will install, configure,
and test CallPath Intelligent Load Balancing software on RS/6000's -
Development, Test, Training, Production (Charlotte).
- CALLPATH PREDICTIVE DIALER - IBM will install, configure, and test
CallPath Predictive Dialer software on RS/6000's - Development,
Test, Training, Production (Charlotte).
- CALLPATH SKILLS BASED ROUTING - IBM will install, configure, and
test CallPath Skills Based Routing software on RS/6000's -
Development, Test, Training, Production (Charlotte).
- CALLPATH MICROSOFT VISUAL BASIC INTERFACE OCX - IBM will install,
configure, and test the CallPath Microsoft Visual Basic Interface
OCX software on developmental WIN NT 4.0 workstations.
- WITNESS - IBM will install, configure, and test the Witness
software package.
COMPLETION CRITERIA:
- Telephony Infrastructure: This task will be considered complete
when the required infrastructure is in place and is performing as
required.
- Base CallPath Software: This task will be considered complete when
the CallPath CEO and CallPath Server software is installed and
configured on IBM RS/6000's, communicating with its associated
Lucent G3 switch, and functioning, as tested via a successful
demonstration of IBM's Java SoftPhone from a Windows NT 4.0 client
workstation or the execution of one or more CallPath APIs via the
CSEBAPI utility (included with CallPath).
- CallPath Predictive Dialer: This task will be considered complete
when the CallPath Predictive Dialer software is installed and
configured on RS/6000's, communicating with its associated Lucent G3
switch, and functioning, as tested via a successful demonstration of
predictive dialing of six numbers contained within a test file of
numbers to be dialed.
- CallPath Intelligent Load Balancing: This task will be considered
complete when the CallPath Intelligent Load Balancing software is
installed and configured on RS/6000's, communicating with its
associated Lucent G3 switch(s), and functioning, as demonstrated by
showing one or more calls being appropriately routed to EMW separate
locations, switches, IVRs or ACD Groups.
- CallPath Skills Based Routing: This task will be considered complete
when the CallPath Skills Based Routing software is installed and
configured on RS/6000's, communicating with its associated Lucent G3
switch, and functioning, as tested via successfully routing one or
more calls to an appropriate "agent" extension based upon two (2)
skill sets defined in the CallPath SBR tables.
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IBM Confidential May 12, 2000 Page - 13 -
Exhibit 1A SI SOW
<PAGE>
- CallPath Microsoft Visual Basic Interface OCX: This task will be
considered complete when the CallPath Microsoft Visual Basic
Interface OCX software is installed and configured on developmental
WIN NT 4.0 workstations, communicating with its associated Lucent G3
switch, and functioning, as demonstrated by successfully executing
one or more CallPath APIs through the included CSEBAPI.BAS utility
(which executes CallPath APIs through Microsoft Visual Basic).
- Witness: This task will be considered complete when the Witness
software is installed and configure in the Customer Contact Center,
functioning as demonstrated by provided QA functionality through
monitoring of calls and recording with both local and remote access.
DELIVERABLES:
- None
DESIGN AND IMPLEMENTATION OF IVR IN START-UP SERVICES
IBM will implement IVR capability in the initial Start-up Services. The
IVR envisioned includes the following attributes and capabilities.
- Functions Supported:
- Market Campaign Specific Greetings and Disclosures based on
DNIS
- Market Campaign or Channel Specific Promotional Messages
based on DNIS
- Market Specific Outage Notification based on DNIS
- Long Wait Time Notification
- Alternate Access Methods Prompts (Web & Email)
- Call Back Option (Voice Mail)
- Capabilities:
- Table Driven Call Paths
- Multiple Inputs for Voice Recording
- Route Callers to Voicemail
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the State Table
Requirements Document to the EMW Contract Executive.
DELIVERABLES:
- State Table Requirements Document
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IBM Confidential May 12, 2000 Page - 14 -
Exhibit 1A SI SOW
<PAGE>
INSTALL AND CONFIGURE DIRECTTALK/6000 SOFTWARE
IBM will install, configure, and test DirectTalk/6000 software on the
RS/6000 for Development, Test, Training and Production.
COMPLETION CRITERIA:
This task will be considered complete when the DirectTalk/6000 software
is installed and configured on the IBM RS/6000, communicating with its
associated Lucent G3 switch, and functioning, as tested via a successful
demonstration.
DELIVERABLES:
- None.
DIRECTTALK/6000 STATE TABLE DEVELOPMENT
IBM will create State Tables that will enable the DirectTalk/6000
software to interact with the other applications.
COMPLETION CRITERIA:
This task will be considered complete when the DirectTalk/6000 State
Tables perform their functions as described in a State Table Requirements
Document.
DELIVERABLES:
- None.
SOFTPHONE CUSTOMIZATION
IBM will conduct a review of the Visual Basic SoftPhone (for Lucent G3)
and document requested alterations and/or enhancements. IBM will modify
SoftPhone to support the EMW environment.
COMPLETION CRITERIA:
This task will be considered complete when IBM completes SoftPhone
Integration Testing and Acceptance Testing.
DELIVERABLES:
- None
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IBM Confidential May 12, 2000 Page - 15 -
Exhibit 1A SI SOW
<PAGE>
2.3.2.2. REVENUE MANAGEMENT
REVENUE MANAGEMENT services solution will be based upon the Banner,
Bluegill, CWA, and VeriTRAN applications. These applications will be
enhanced as a result of requirements gathered from EMW. Interfaces to
Utility Distribution Companies to be determined in Start up Services will
be developed.
This activity includes the following specific tasks:
DEFINE THE REVENUE MANAGEMENT APPLICATION AND INTERFACE REQUIREMENTS AND
CHANGES
The Functional Scoping documents outline the changes requested by the EMW
end user or dictated by the project needs to the Banner, CWA, and
VeriTRAN applications. IBM will develop Process Flows that represent the
flow necessary to support EMW's business requirements. IBM will map the
process flows to the Revenue Management applications and Utility
Distribution Companies. This task will require discussions with the EMW
representatives in order to verify that the process flows satisfy the
requirements defined by EMW.
IBM will develop Use Cases in order to provide functional scope
boundaries for the solution and map the function to specific
interactions.
The Use Cases will be used in conjunction with the process flows to
define the functional scope for EMW.
IBM will work with EMW to define the functional changes to be implemented
in the Start up Services phase. The remainder of the functional changes
will be implemented in the Full Functional Services phase.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Process Flows
and Use Cases to the EMW Contract Executive.
DELIVERABLES
- Process Flows
- Process Flow Descriptions
- Use Cases
INSTALL AND MODIFY REVENUE MANAGEMENT APPLICATIONS
IBM will work with the Revenue Management Application software vendors as
required to modify the applications as specified in the DEFINE THE
REVENUE MANAGEMENT APPLICATION AND INTERFACE CHANGES task for the Start
up Services phase. IBM will install and modify the Banner,
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IBM Confidential May 12, 2000 Page - 16 -
Exhibit 1A SI SOW
<PAGE>
CWA, and VeriTRAN applications in the pre-production environment. IBM
will provide for integrated functionality and interfaces to accommodate
credit cards, bank cards, ACH and check lock box providers.
COMPLETION CRITERIA
This task will be considered complete when the modified, pre-production
versions of Banner, CWA, and VeriTRAN has been successfully installed on
the pre-production test environment in preparation for product testing.
DELIVERABLES
- Document on modification of customization to application packages
ESTABLISH THE MARKETPLACE INTERFACES
IBM will develop, test and implement interfaces for up to three UDC
markets and other external entities as specified in the DEFINE THE
REVENUE MANAGEMENT APPLICATION AND INTERFACE REQUIREMENTS AND CHANGES
task for the Start up Services phase to support the full transaction sets
required in these markets for Customer Acquisition, Customer Care, and
Revenue Management Services. These services include interface
coordination with the target UDC or entity, including communication,
updates or modifications to the interface.
COMPLETION CRITERIA
This task will be considered complete when IBM has successfully
demonstrated that the communications between the solution and the UDCs
are occurring.
DELIVERABLES
- Test results
CREATE TEST PLAN
The test plan provides the strategy for which IBM plans to test the
changes defined by the DEFINE THE REVENUE MANAGEMENT APPLICATION AND
INTERFACE REQUIREMENTS AND CHANGES task for the Banner, CWA, and VeriTRAN
applications.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the completed
Test Plan to the EMW Contract Executive.
DELIVERABLES
- Test Plan
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IBM Confidential May 12, 2000 Page - 17 -
Exhibit 1A SI SOW
<PAGE>
PERFORM PRODUCT TESTING ON THE REVENUE MANAGEMENT APPLICATIONS AND
INTERFACES
Based upon Use Cases developed earlier, in this task IBM will develop
test cases and conduct product and interface testing on the Revenue
Management Applications. Successful execution of these tests will confirm
the Revenue Management applications functional and interface changes and
allow delivery to the customer for user acceptance test and/or promotion
to production.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Test Cases
and the Test Execution Results indicating successful completion of the
test cases to the EMW Contract Executive.
DELIVERABLES
- Test Cases
- Test Execution Results
APPLICATION DEPLOYMENT
IBM will work with EMW during their User Acceptance Test to resolve
problems found and then promote the applications to the production
environment.
COMPLETION CRITERIA
This task will be considered complete when the EMW User Acceptance Test
has completed successfully and the final tested applications and
interfaces have been promoted to the production environment.
DELIVERABLES
- None.
2.3.2.3. BUSINESS INTELLIGENCE
BUSINESS INTELLIGENCE services will identify opportunities within the
Customer Acquisition, Customer Care, and Revenue Management business
process flows and incorporate them in Business Intelligence activities.
An operational data store will be designed and implemented which will
allow for real-time synchronization of applications across outbound and
inbound channels.. The focus in Start-up Services phase is to establish
the data gathering infrastructure necessary to support the deployment of
the full Business Intelligence functionality in the Full Function phase.
This activity includes the following specific tasks:
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IBM Confidential May 12, 2000 Page - 18 -
Exhibit 1A SI SOW
<PAGE>
BUSINESS INTELLIGENCE PROCESS REQUIREMENTS
The purpose of this task is to identify and review opportunities within
the Customer Acquisition, Customer Care, and Revenue Management business
process flows to incorporate Business Intelligence activities. Business
Intelligence processes allow targeted insights into decisions for such
things as acquisition, retention, cross-sell, personalized customer
experience, and customer profitability.
IBM will perform the following subtask to develop a Business Intelligence
sub process model:
- Review major processes within Customer Acquisition, Customer Care,
and Revenue Management.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the BI Sub
Process Model to the EMW Contract Executive.
DELIVERABLES
- BI Sub Process Model- Documented BI sub processes within the major
business processes in Customer Acquisition, Customer Care, and
Revenue Management.
OPERATIONAL DATA STORE DATA MODEL
The purpose of this task is to develop a detailed physical operational
data structure that allows real time synchronization of all EMW data.
IBM will perform the following subtasks to develop the detailed logical
data model:
- Develop detailed operational data store logical data model.
- Develop detailed operational data store physical data model.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Logical and
Physical Data Store/Data Model to the EMW Contract Executive.
DELIVERABLES
- Logical and Physical Data Store/Data Model- Documented detailed
logical and physical operational data store data model required to
support real time synchronization of Customer Care, order management
and Revenue Management applications across all outbound and inbound
channels.
- Business rules data store
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IBM Confidential May 12, 2000 Page - 19 -
Exhibit 1A SI SOW
<PAGE>
OPERATIONAL DATA STORE DATA ARCHITECTURE DEVELOPMENT
The purpose of this task is to define and describe the architectural
components (building blocks) of the Operational Data Store.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Data
Architecture Document to the EMW Contract Executive.
DELIVERABLES
- Data Architecture Document containing ODS component models.
OPERATIONAL TECHNICAL INFRASTRUCTURE DEVELOPMENT
The purpose of this task is to specify the technical infrastructure to
provide the extensions and enhancements to support the operational
environment.
IBM will perform the following subtasks to develop and test the Technical
Infrastructure to support the operational environment:
- Perform Technical Infrastructure Design for:
- Operational Data Store
- Data Warehouse
- Analytic Applications(Mining and OLAP)
- Middleware products(MQ series,XML)
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Technical
Infrastructure Document to the EMW Contract Executive.
DELIVERABLES
- Technical Infrastructure Document containing physical component
models.
OPERATIONAL DATA STORE PROCESS DESIGN
The purpose of this task is to design, build and unit test the business
processes and technical processes to populate the operational data store.
IBM will perform the following subtasks to develop and test the processes
to populate the Operational Data Store (ODS):
- Develop data acquisition and update specifications.
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IBM Confidential May 12, 2000 Page - 20 -
Exhibit 1A SI SOW
<PAGE>
- Develop data retention rules.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Operational
Data Store and Process Design Documents to the EMW Contract Executive.
DELIVERABLES
- Operational Data Store Document containing ODS database
descriptions.
- Process Design Document containing program specifications for
extract, transform, load (ETL) processes.
- Data Integrity Rules & processes
OPERATIONAL DATA STORE IMPLEMENTATION PLANNING
The purpose of this task is to produce an implementation plan for the
operational environment.
IBM will perform the following activities and associated tasks to produce
a plan for the implementation of the environment:
- Create ODS Implementation Plan.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the ODS
Implementation Plan to the EMW Contract Executive.
DELIVERABLES
- ODS Implementation Plan
OPERATIONAL DATA STORE POPULATION API DEFINITION
The purpose of this task is to design and build specifications for proper
operational data store access and usage.
IBM will perform, the following subtasks to develop and test the
processes to populate the database:
- Design API Specifications.
- Design API Test Specifications.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the API
Specifications Document to the EMW Contract Executive.
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IBM Confidential May 12, 2000 Page - 21 -
Exhibit 1A SI SOW
<PAGE>
DELIVERABLES
- API Specifications Document containing the programming
specifications for the development of modules within the Operational
Applications (e.g., Clarify, SCT Banner) to populate data into the
Operational Data Store.
OPERATIONAL DATA STORE TEST PLANNING
The purpose of this task is to produce a comprehensive test plan
identifying test environments, test tools and estimated schedules.
IBM will perform the following subtask to produce a plan for testing the
environment:
- Create ODS Test Plan.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the ODS Test Plan
to the EMW Contract Executive.
DELIVERABLES
- ODS Test Plan containing test setup and outcome specifications for
each ODS interface point.
OPERATIONAL DATA STORE ENVIRONMENT TESTING
The purpose of this task is to set up a test environment and to perform
system and user testing.
IBM will perform the following subtasks to set-up a test environment and
to undertake system and user testing in accordance with the approved
Solution Validation Plan: Confirm Solution Generation.
- Initiate Solution Validation.
- Set-up Testing Environment.
- Perform System Test.
- Perform User Acceptance Test including testing of API's
- Confirm Solution Validation.
COMPLETION CRITERIA
This task will be considered complete when IBM has conducted the System
Test and User Acceptance Test.
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IBM Confidential May 12, 2000 Page - 22 -
Exhibit 1A SI SOW
<PAGE>
DELIVERABLES
- None
PRODUCTION OPERATIONAL DATA STORE IMPLEMENTATION
The purpose of this task is to set up the production environment, deploy
the support organization, and implement the tested environment into
production.
IBM will perform the following subtasks to set-up the production
environment, deploy the support organization, and cut-over to production
in accordance with the approved ODS Implementation Plan: Initiate
Deployment.
- Set-up Production Environment.
- Deploy Client Support.
- Cut-over to Production.
- Confirm Deployment.
COMPLETION CRITERIA
This task will be considered complete when the tested environment has
been implemented into production.
DELIVERABLES
- None
APPLICATION INTERFACE DOCUMENTATION DEVELOPMENT
The purpose of this step is to design and build specifications for the
data requirements for inter-application interfaces. These specifications
are to be provided to the API coding team for implementation.
IBM will perform, the following activities and their associated tasks to
develop the documentation required as input to the design and
construction of the inter-application APIs:
- Inventory of the inter-application interface
- Design API data specifications.
DELIVERABLE MATERIALS
IBM will provide EMW with the following deliverable materials:
- Application Interface Inventory Document - Documented inventory of
the Application Interfaces with source and target systems and the
latency requirements for each interface.
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Exhibit 1A SI SOW
<PAGE>
- API Data Interface Documents - Documented API data specifications
for each source and target interface in the Application Inventory
Document
COMPLETION CRITERIA
This task will be considered complete when IBM provides Metadata
Repository Implementation Document and Plan to the EMW Contract
Executive.
METADATA REPOSITORY STRATEGY DOCUMENT
The purpose of this task is to provide EMW with a comprehensive strategy
for Metadata Repository with detailed explanation of what a metadata
repository is, how it is used and the benefits of having one.
IBM will perform the following subtasks to develop Metadata Strategy
Document:
- Review and collection of IBM Intellectual Capital and industry
best practices.
COMPLETION CRITERIA
This task will be considered complete when IBM provides Metadata
Repository Strategy Document to the EMW Contract Executive.
DELIVERABLES
- Metadata Repository Strategy Document - Documented approach and plan
for defining and justifying a Metadata Repository. Document will
describe the content and benefits of implementing a Metadata
Repository.
METADATA REPOSITORY IMPLEMENTATION DOCUMENT AND PLAN
The purpose of this task is to provide EMW with a detailed tactical plan
and a project plan for implementing the Metadata Strategy.
IBM will perform the following subtasks to develop Metadata
Implementation Document and Plan:
- Develop a tactical plan based on the Metadata Strategy Document.
- Develop a project plan with activities and tasks with resources.
COMPLETION CRITERIA
This task will be considered complete when IBM provides Metadata
Repository Implementation Document and Plan to the EMW Contract
Executive.
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Exhibit 1A SI SOW
<PAGE>
DELIVERABLES
- Metadata Repository Implementation Document - Documented approach
and plan for tactical implementation of a metadata repository.
- Metadata Repository Implementation Project Plan
MARKETING WORKSHOP
The purpose of this task is to facilitate quick and effective validation
of data and processes necessary to support both product push and customer
pull marketing business models. This workshop includes campaign
management and customer-specific targeted marketing processes. IBM will
uncover the data requirements for EMW to be successful in its marketing
efforts. The result of this workshop provides the implementation team
with the necessary direction for designing and building customer
acquisition models; customer retention and cross-sell models;
personalization needs and methods; customer, product and business process
profitability analyses; and campaign management response tracking.
The marketing workshop will incorporate our knowledge of targeted,
multi-channel, customer-specific marketing processes; IBM's consulting
expertise in direct and database marketing; and campaign management
intellectual capital. This workshop will be broken into the following
sections based on EMW's customer relationship initiatives:
- Develop an understanding of EMW's multi-channel marketing strategy
and its relationship to the eBI methodology.
- Identify EMW's direct and targeted marketing high-level functional
requirements for campaign management.
- Establish efficient and cost effective means of meeting the
functional requirements.
- Establish a base line of the marketing information and performance
metrics necessary to support customer relationship marketing related
to acquisition, retention, cross-sell and experience-enhancing
processes across the direct mail, call center and web channels.
- Determine desired profitability analyses.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Summary of
Findings Document to the EMW Contract Executive.
DELIVERABLES
- Summary of Findings Document- Within the context of CRM, the Summary
of Finding Document contains minutes of the workshop and a
prioritized, by business impact, list issues that arise in the
workshop.
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IBM Confidential May 12, 2000 Page - 25 -
Exhibit 1A SI SOW
<PAGE>
CAMPAIGN MANAGEMENT SOLUTION DEFINITION
The purpose of this task is to establish definitions and required
functions of multi-channel Campaign Management (CM) both for inbound and
outbound for EMW. This activity is an amalgam of Business Intelligence,
knowledge management, and e-business processes. The business value of
this method is an integrative, multiple channel - web, call center,
direct mail - approach which provides a unitized view of the customer.
From the results of the Marketing workshop, IBM will provide high level
direction and definition for the campaign management solution:
- Design processes and data necessary to support EMW's campaign
management needs.
- Determine "best fit" technology solution.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Solution
Definition Document to the EMW Contract Executive.
DELIVERABLES
- Solution Definition Document- Within the context of CM, the
Solutions Definition Document contains the recommendations,
descriptions, business impact and values, and dependencies and
interactions with other initiatives within the project. This
document will continue to evolve and be further refined in second
phase, Full Function Services.
WEB METRICS ANALYSIS TOOLS EVALUATION AND SELECTION]
The purpose of this task is to evaluate and select the appropriate web
metrics tool for analysis of the EMW website. This analysis will be done
initially during the Start-up Services phase and will be further refined
and finalized during the Full Functional Services phase.
IBM will perform the following subtasks to select a web metrics tool for
EMW:
- Evaluate the web metrics tools available in the marketplace.
- Evaluate the needs and requirements of the EMW users.
- Select an appropriate web metrics tool based on user requirements,
functionality and scalability of tool, hardware and software
requirements, fit within the existing EMW environment, ability to
incorporate into the future analysis functions of EMW, and the
status and stability of the company owning the product.
- Provide recommendations for the customizing needs for the selected
tool.
- Provide interface requirements to Website User Interface and
Website Technical Implementation and Integration vendor(s).
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Exhibit 1A SI SOW
<PAGE>
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Tool
Evaluation Document to the EMW Contract Executive.
DELIVERABLES
- Tool Evaluation Document
FULL FUNCTIONAL REFINEMENT RECOMMENDATIONS
The objective of this task is to refine and enhance EMW's multi-channel
customer-centric solution. The Business Intelligence team will perform a
formal review of the Start-up Services deliverables as outlined in this
Statement of Work. The team will conduct design reviews and walk-throughs
with EMW to validate that the solution will satisfy the defined service
level requirements and to confirm that the solution will be adequate to
support defined system requirements.
IBM will perform the following subtasks to determine EMW's opportunity
areas and to assemble the Solution Recommendation Document:
- Assemble Solution Recommendation Document.
- Present Solution Recommendation and confirm EMW commitment.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Solution
Recommendation Document to the EMW Contract Executive.
DELIVERABLES
- Solution Recommendation Document- contains recommendations on
specific, prioritized activities that EMW could undertake to
increase revenue, decrease costs, or enhance the customer
experience.
2.3.2.4. KNOWLEDGE MANAGEMENT
KNOWLEDGE MANAGEMENT services will include the implementation of an
e-care and knowledge management system. During the Start-up Services, the
primary focus in Knowledge Management area is to establish the design
integration with the balance of the overall solution and to establish
basic infrastructure, particularly data capture and data base aspects.
The e-care system (deployed in Full Functional Services) will be
comprised of the following assets: automated e-mail and web-forms (ERMS),
and virtual web chat (WebGenie) capabilities based on text processing
machine learning "artificial intelligence" (AI) technology from Watson
Laboratories (IBM Mail Analyzer). The knowledge management system will
provide customer web customization, personalization, profiling and
tracking. It encompasses the development and management of a
support-
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Exhibit 1A SI SOW
<PAGE>
knowledge base, and it will be integrated with ERMS, WebGenie and
Clarify. The knowledge management infrastructure can also be leveraged by
EMW Business Intelligence applications
This activity includes the following specific tasks:
CUSTOMER ACQUISITION, CUSTOMER CARE, AND REVENUE MANAGEMENT: WEB
ORDERING, STATUS, INFORMATION BACKEND INTEGRATION
An element of the EMW Web Channel solution (provided separately by EMW)
is the browser based thin client presentation component. The plan is for
a combination of Clarify and SCT to provide the identified capabilities
(some will be deferred to the Full Functional Services phase) to
interface to and support web-based registering and ordering, checking
status, and retrieving information. The scope of this task is to (a)
examine and validate the additional interface requirements, and (b)
architect, design, develop, and deploy the interfaces with the
appropriate backend systems.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
specified below to the EMW Contract Executive.
DELIVERABLES
- Knowledge Management Architecture Specification Document
- Detail Design Document
- Usability Test Plan
- Unit Tested Source Code
- Deployment Plan
- System Test Report
- User Acceptance Test Report
- Updated Transformation Management Plan
CUSTOMER CARE, CUSTOMER ACQUISITION, REVENUE MANAGEMENT: MESSAGING
The proposed Customer Contact Center for Customer Care Services requires
a messaging infrastructure to be established to support the CSR's in the
execution of their tasks. This task provides the required services for
messaging capabilities using Lotus Notes. It is assumed that all
messaging related services required for Start up Services are provided by
the standard capabilities of Notes.
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Exhibit 1A SI SOW
<PAGE>
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
specified below to the EMW Contract Executive.
DELIVERABLES
- Messaging Architecture Specification Document
- Detail Design Document
- Usability Test Plan
- Deployment Plan
- Transformation Management Plan
CUSTOMER CARE, CUSTOMER ACQUISITION, REVENUE MANAGEMENT: KNOWLEDGEBASE
An element of the EMW Web, voice, and e-mail Channel solution is Customer
Profiling. In the Start up Services phase, the in-scope activities focus
on knowledge collection that will be used in the Full Functional phase
for Campaign management (in conjunction with Business Intelligence
Solutions), e-care (Lotus), Personalization, Direct Marketing, and
Pricing (potentially). Knowledge search and retrieval capabilities are
out of scope for the Start up Services phase with the exception of basic
retrieval for testing purposes. The emphasis in Start-up Services is on
preparation to deploy a knowledge base repository. The scope of this task
is to (a) examine and validate the knowledge store and business rules
requirements, and (b) architect, design, develop, and deploy the
knowledge base. Based on business requirements validation and associated
time constraints, the scope of this task will include the implementation
of an operational system providing the following functionalities:
- Ability to automatically and continuously gather info from
internal sources i.e. continuously update a common knowledge base
so that the latest resolutions are available.
- Ability to display text search results by highest occurrence.
- Ability to search based on:
- Word stems, Key words, subject
- Synonyms, proper names, alphabetically
- Ability to capture customer questions to track most FAQ's, e.g.
enter customer question associated with a category (product or
service).
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
specified below to the EMW Contract Executive.
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Exhibit 1A SI SOW
<PAGE>
DELIVERABLES
- Knowledge Base Architecture Specification Document
- Technical Prototypes
2.3.2.5. e-BUSINESS
e-BUSINESS Start up Services incorporate the key components required to
interface EMW's solution for a web-based front-end into the IBM provided
back-end applications. In Start-up Services, these tasks involve
gathering Requirements, defining processes flows (as related to Prospect
Inquiry) and developing a solution outline to analyze and establish the
interfaces for the web solution to the back-end applications including
customer sign-up, customer care, bill presentment and payment
functionality. Later, Full Functional Services scope for e-business
delivers the personalization efforts, messaging, knowledge management,
and Data Warehousing.
This SOW does not include the Web Site User Interface Look and Feel,
Content, and Flow, nor does it include the Web Site technical
implementation and integration scope. EMW will procure these services
outside this SOW.
This activity includes the following specific tasks:
e-BUSINESS PROJECT APPROACH AND PLAN
This task confirms project scope, and identifies and assesses any risks
and/or issues to the project schedule and requirements. In addition, a
detailed project plan will be established, which will assign project
resources to specific work efforts. IBM subtasks include the following:
- Confirm e-business project scope.
- Conduct methodology adoption workshop.
- Further refine e-business project plan.
- Develop top-down project resource requirements.
COMPLETION CRITERIA
This task will be considered complete when the Top-Down Project Resource
Requirements have been developed along with the balance of the overall
integrated plan, including schedules, tasks, resource, and milestone
deliverables.
DELIVERABLES
- The project plan
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Exhibit 1A SI SOW
<PAGE>
SOLUTION REQUIREMENTS
This task outlines the requirements for the system and verifies that all
future decisions reflect the business priorities. IBM subtasks include
the following:
- Develop User Profiles.
- Develop/Refine Business Process Models and Maps.
- Define and Categorize Requirements.
COMPLETION CRITERIA
This task will be considered complete when IBM has provided the Business
Process Models and Maps and the Functional /Non-functional Requirements
to the EMW Contract Executive.
DELIVERABLES
- Business Process Models and Maps
- Functional/Non-functional Requirements
-
e-BUSINESS ARCHITECTURE MODEL
This task defines an e-business architecture model for the proposed
system and verifies that the architectural solution can meet business
requirements, including non-functional requirements. Also, the integrated
view of architecture for the overall solution will be maintained while
the e-business architecture is detailed.
The model also enables assessment of viability and risks in implementing
and deploying the system, and enables realistic estimation of effort and
costs. IBM subtasks include the following:
- Develop Architectural Overview.
- Survey Available Assets.
- Develop High Level Component Model.
- Develop Common Data Model
- Design API's for interfacing IBM provided back-end solutions and
infrastructure to EMW provided Website Solutions.
COMPLETION CRITERIA
This task will be considered complete when IBM has delivered the System
Context Diagram, Architectural Overview Diagram, Component Model, API
Specifications and the Non-Functional Requirements to the EMW Contract
Executive.
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Exhibit 1A SI SOW
<PAGE>
DELIVERABLES
- System Context Diagram
- Architectural Overview Diagram
- Component Model
- API (to Website) Specifications Document
- Non-Functional Requirements
SOLUTION DEPLOYMENT
This task facilitates a shared understanding of the appropriate
deployment process for the remaining tasks, and provides context and
rationale for the estimate. IBM subtasks include the following:
- Develop Release Plan.
- Develop Initial Deployment Plan.
- Define Configuration Management Procedures.
- Analyze business flows.
- Create use cases.
- Test cases
COMPLETION CRITERIA
This task will be considered complete when the Initial Deployment Plan
has been delivered to the EMW Contract Executive.
DELIVERABLES
- Initial Deployment Plan
DATA MODELING
This task analyzes the data model integration and the Web-site interface
with the Customer Information Systems (CIS), Revenue Management Systems
(RM), and the data store (ODS). It also reviews and analyzes conceptual
relationships between CIS, RM and ODS and confirms API
definition/specifications to support the interface between the EMW
Website and the IBM delivered systems.
COMPLETION CRITERIA
This task will be considered complete when the integration touch points
have been identified.
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Exhibit 1A SI SOW
<PAGE>
DELIVERABLES
- Expanded physical/logical data modules
- Business rules data store
CONDUCT SYSTEM TESTS
This task executes e-business system testing against the specified and
developed interfaces. It is designed to exercise the application
functions and verify proper execution of the application with other
application interfaces, verify that the system is functionally correct
and operationally sound, and perform additional testing in regards to
transaction flow, stress / volume, and regression testing.
This testing will require coordination and cooperation with EMW Website
vendor(s).
Subtasks include the following:
- Prepare Environment for System Testing.
- Validate API Interfaces.
- Execute System Tests.
- Evaluate Build Cycle Results.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Test Report
to the EMW Contract Executive.
DELIVERABLES
- Test Report
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Exhibit 1A SI SOW
<PAGE>
2.3.2.6. BUSINESS INFRASTRUCTURE
BUSINESS INFRASTRUCTURE services provide the overall systems integration
design and implementation for the customer acquisition, customer care,
and revenue management components in addition to the architecture,
standards and guidelines, common repositories, performance models, and
interfaces. This area of activity will be undertaken early in the project
start-up and at an overall team level in order to facilitate an
integrated approach to requirements definition, business process
confirmation, architecture, and common data model as well as the
development of an integrated solution as individual teams accomplish
their package implementation/integration tasks.
This activity includes the following specific tasks:
REQUIREMENTS GATHERING TASKS
DATA GATHERING
IBM will undertake the data sessions with selected EMW executives, other
personnel as appropriate, the extended project team and focus groups with
customers (as needed). The purpose is to gather new or changed
information as a basis for developing business driven requirements.
Data gathering will include the following as appropriate but is not
limited to:
- EMW initial background data.
- Pertinent and relevant research data (marketing, sales, service,
technology etc.).
- Determine the information provision capability of EMW.
- Business strategy and other major initiatives with impact
probability.
- Identify required data for assumption analysis.
COMPLETION CRITERIA:
This task will be considered complete when IBM has gathered the relevant
information for Start up Services.
DELIVERABLES:
- None.
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Exhibit 1A SI SOW
<PAGE>
REQUIREMENTS DEFINITION/VALIDATION
IBM will identify, decompose, compare, and validate data pertinent to all
assumptions including business scenario requirements for the assessment
of the Customer Acquisition and Customer Care components (commodity
products/services) of the EMW initiative.
Analysis subtasks for the business scenarios will include but are not
limited to the following:
- Data synthesis.
- "Go-Live" Requirements identification/validation.
- Business Process Mapping.
- Gap review and prioritization.
- Conclusion composition.
- Solution compilation.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the Business
Process Maps to the EMW Contract Executive.
DELIVERABLES:
- Business Process Maps
IDENTIFY FUNCTIONAL GAPS
IBM will provide a document describing how the selected CRM package and
contact center tools support the execution of the defined business
processes. The analysis highlights the gaps where business processes are
not fully supported.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the Functional
Gap Analysis Document to the EMW Contract Executive.
DELIVERABLES:
- Functional Gap Analysis Document
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Exhibit 1A SI SOW
<PAGE>
ARCHITECTURE DEFINITION TASKS
DEVELOP ARCHITECTURE OVERVIEW AND IDENTIFY MAJOR SOLUTION COMPONENTS
IBM will develop a schematic diagram that represents functional
components and IT building blocks of the "to-be" IT system. The depiction
will include an overview of the main conceptual elements and the
relationships present in the architecture. Elements will include:
- Start up Services integration points for simple, medium, and
complex systems.
This architecture design will be refined and updated over time as work
progresses and experience dictates.
COMPLETION CRITERIA:
This task will be considered complete when IBM has provided the
Architectural Overview Diagram to the EMW Contract Executive.
DELIVERABLES:
- Architectural Overview Diagram
DEFINE EXTERNAL INTERFACES
IBM will provide a summary of the interfaces to external systems as
identified in the Requirements Gathering process. External systems
related to the following integration points will defined for Quick Start
Integration Points.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the External
Interfaces Summary Document to the EMW Contract Executive.
DELIVERABLES:
- External Interfaces Summary Document
DEVELOP INTEGRATION ARCHITECTURE FRAMEWORK FOR DATA AND APPLICATION
INTERFACES
The proposed solution for EMW encompasses COTS (Commercial-off-the-Shelf)
packages and assets that span the Customer Acquisition, Customer Care,
and Revenue Management Services. The IAF provides the glue (systems
integration design) for these components in addition to the architecture,
standards and guidelines, common repositories, performance model, and
interfaces. The input to the architecture will include the application,
infrastructure, user interface,
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IBM Confidential May 12, 2000 Page - 36 -
Exhibit 1A SI SOW
<PAGE>
information, and environment architectures of the packages. The output
will be the framework as described above that may be used by the
component teams to effectively integrate their components.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the deliverables
as defined below to the EMW Contract Executive.
DELIVERABLES
- Validated System Requirements Specification Document
- Integration Architecture Specification Document
BUILD/TEST TASKS
INITIATE DEVELOPMENT AND TEST THE PACKAGES
The objective of this task is to develop the work plan and procedures,
assign the necessary resources and assets, orient the project team, and
review the requirements of the project for the purposes of developing and
testing the Clarify, Banner and other application packages.
COMPLETION CRITERIA:
This task will be considered complete when the development and test
package initiation subtasks have been completed.
DELIVERABLES:
- Test Report Summaries
CONDUCT IT DESIGN AND DEPLOYMENT PLAN
The objective of this task is to develop the architecture for the
development, test and training labs. Key Non-functional requirements and
acceptance criteria (documented as use cases) are also defined. In
addition the processes and procedures and testing, training and
deployment approaches are defined.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
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Exhibit 1A SI SOW
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DELIVERABLES:
- Development IT Infrastructure Document
- Test IT Infrastructure Document
- Training IT Infrastructure Document
- Non-functional Requirements
- Technology Deployment Plan
- Test Plan
- Use Cases
- Training Plan
BUILD THE TEST LAB
During this task the necessary test server, network, workstation and
telephony hardware and software will be installed and tested.
COMPLETION CRITERIA:
This task will be considered complete when the server, network,
workstation and telephony hardware and software for the test environment
are installed and tested.
DELIVERABLES:
- None
TEST THE INFRASTRUCTURE
During this task the necessary development server, network, workstation
and telephony hardware and software will be installed and tested.
COMPLETION CRITERIA:
This task will be considered complete when the server, network,
workstation and telephony hardware and software for the development
environment are installed and tested.
DELIVERABLES:
- None
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Exhibit 1A SI SOW
<PAGE>
CONFIGURE THE PACKAGES
The objective of this task is to install and configure the Clarify, SCT
Banner, and other application packages as required for the development,
test and training environments.
COMPLETION CRITERIA:
This activity will be considered complete when the applications are
installed and configured for the development, test and training
environments.
DELIVERABLES:
- Call Scripts loaded in Clarify
- Call Guides loaded in Clarify
SOLUTION INTEGRATION AND BUSINESS PROCESS MAPS
IBM will integrate, as appropriate, the detailed business process output
of the Customer Acquisition and Customer Care business scenarios with the
Customer Acquisition / Customer Care contact center management processes,
contact center technology-build out project and Web-build out project.
Specific solution integration points to be addressed include:
START UP SERVICES FOCUS:
- Application packages configured
- Application packages interfaces established
- Overall Data Model established and integrated across all solutions
- Confirm architectural design and scaleability
- Confirm integration of solution and Business Process enablement
COMPLETION CRITERIA:
This task will be considered complete when technology and
business/management process integration is demonstrated.
DELIVERABLES:
- None
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Exhibit 1A SI SOW
<PAGE>
SOLUTION PROTOTYPE/PILOT IMPLEMENTATION
IBM will prototype/pilot selected business scenarios as appropriate.
Prototypes and pilots will include but are not limited to the interaction
of business process/contact center management processes and technology
with Web technology and business scenario application. (e.g. establishing
new service for a new customer on-line and in the contact center).
COMPLETION CRITERIA:
This task will be considered complete when IBM provides revised Business
Process Maps to the EMW Contract Executive.
DELIVERABLES:
- Business Process Maps
PERFORM INTEGRATION TESTS
The objective of this task is to verify that components of the
infrastructure (hardware and software) operate as described in the use
cases.
COMPLETION CRITERIA:
This task will be considered complete when integration tests have been
completed and IBM provides the Integration Test Report to the EMW
Contract Executive.
DELIVERABLES:
- Integration Test Report
PERFORM SYSTEM TESTS
The objective of this task is to validate the architecture and components
end-to-end. The following tasks will be performed:
- Verify logical combinations of scenarios are functioning in
accordance with the use cases.
- Verify the system can recover from common error conditions.
- Verify the system security features meet security requirements of
the system.
COMPLETION CRITERIA:
This task will be considered complete when the system testing is
completed and IBM provides the System Test Report to the EMW Contract
Executive.
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Exhibit 1A SI SOW
<PAGE>
DELIVERABLES:
- System Test Report
PERFORM USER ACCEPTANCE TEST
The objective of this task is to perform user acceptance testing and
performance testing based on the use cases and performance requirements
determined during the Requirements Definition task and obtain EMW sign
off for the implementation of the integrated applications. EMW
participation as the User will be required here.
COMPLETION CRITERIA:
This task will be considered complete when user acceptance testing is
completed and IBM provides the User Acceptance Test Report to the EMW
Contract Executive.
DELIVERABLES:
- User Acceptance Test Report
CUTOVER TO PRODUCTION ENVIRONMENT
During this task the integrated system is cut over to the production
environment.
COMPLETION CRITERIA:
This task will be considered complete when the integrated system is
installed in the production environment.
DELIVERABLES:
- None
TRAINING TASKS
BUILD AND INSTALL THE CSR TRAINING FACILITY
During this task the necessary server, network, workstation and telephony
hardware and software will be installed and tested for the CSR training
environment.
COMPLETION CRITERIA:
This task will be considered complete when the server, network,
workstation and telephony hardware and software for the training
environment are installed.
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Exhibit 1A SI SOW
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DELIVERABLES:
- None
DELIVER CSR AND SUPPORT TRAINING MATERIALS
During this task end-user and support personnel training is developed and
delivered. Training plans are also reviewed and revised as needed and
training schedules are developed.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the CSR and
System Administrator Training Materials to the EMW Contract Executive.
DELIVERABLES:
- CSR Training Materials
- System Administrator Training Materials
EDUCATION AND TRAINING
The Education and Training plan will be developed jointly and in
coordination with EMW. It provides a plan for the development of the
material to be used in the training of the CSRs. The Education and
Training Plan also provides recommendations for the roll out plan for the
end user training, including the training of the instructors, the classes
and the updating of the training material, if necessary. The roll out
plan will be developed jointly and in coordination with EMW, and will
take into consideration the different locations to be used for training
delivery, and the logistics surrounding the classes. The roll out plan
for the end user education and training delivery will be developed
jointly and in coordination with EMW organization.
The plan for the development of end user material contains the following:
- Terminology to be used in the training material.
- A list of training topics to be covered and their initial sequence
in training modules.
- The delivery method includes group, personal, and CBT training
methods.
- A list of materials to be developed.
- Media specifications for training materials.
- Standards to be used for the different types of training material.
- Identification of development resources.
- Identification of plans for documentation.
- The number of attendees each training module, and how many times
each module should run.
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Exhibit 1A SI SOW
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- An identification of who the instructors are for each training
module.
- Dates and locations for the TTT (Train-the-Trainer) classes.
- Scheduling of the CSR training.
- Publication of training materials.
- Version control of training manuals
- Conduct training sessions.
COMPLETION CRITERIA:
This task will be considered complete when IBM provides the Training Plan
to the EMW Contract Executive and the initial CSR training program is
completed.
DELIVERABLES:
- Training Plan
- Training sessions
2.3.2.7. REQUIREMENTS START-UP SERVICES CHECKPOINT
CONDUCT REQUIREMENTS CHECKPOINT
The purpose of this task is to perform a checkpoint analysis of the
Start-up Services solution The requirements and information gathered from
the Start up Services activity will be reviewed comparing these to the
delivered Start-up solution. This analysis will be validated by both the
IBM and EMW Contract Executives. Immediately after the review interval, a
review meeting will be held to discuss and resolve any issues where the
delivered solution and requirements are not fully in sync.
Additionally, EMW requirements will be reviewed for changes and
clarifications based upon the work done in the Start-up Services and
based upon changing/evolving EMW business plans and strategies.
Using these assessments, prioritization of tasks and objectives for the
Full Functional Services phase will be established and will be used in
the planning efforts for the next phase.
DELIVERABLES:
- Steady State Solution Assessment and Recommended Phase 2 Priorities
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IBM Confidential May 12, 2000 Page - 43 -
Exhibit 1A SI SOW
<PAGE>
2.3.3. FULL FUNCTIONAL SERVICES
During the Full Functional Services phase additional functionality will
be added to the Start up Services solutions in order to fulfill all of
the functionality requirements of Appendix A. The Full Functional
Services phase is targeted to be complete ten months after the Start-up
Services are complete.
IBM will perform the following activities to assist EMW to implement the
above noted project scope as indicated below. Given that the first step
in this phase is to review and reset the anticipated plan for the Full
Functional Services, the write-up below will emphasize those areas which
focus on the incremental functionality being provided in this phase
rather than repeating the entire solution, a portion of which was to have
been delivered in Start-up Services phase. For reference, the
functionality indicated in Appendix A represents the overall functional
requirements for the overall solution at the end of the Full Functional
phase.
2.3.3.1. CONDUCT REQUIREMENTS CHECKPOINT
The purpose of this task is to re-verify that the Full Functional Service
requirements for the system are fully agreed to between IBM and EMW.
The requirements and information gathered during the Start-up Services
Assessment effort will be reviewed and validated by both the IBM and EMW
Contract Executives. Immediately after the review interval, a review
meeting will be held to discuss and resolve any issues. The EMW Contract
Executive will be requested to approve any requirements changes and
clarifications in writing, within a three-day interval after the review
meeting. At the conclusion of this activity, the IBM project team will
re-validate the project development estimates, schedules and charges.
Changes to the estimates, schedule, and charges will be communicated to
the EMW Contract Executive and processed through the Project Change
Control Procedure. Specific sub-tasks are:
1. Hold requirements review meeting with the EMW Contract Executive.
2. Log requirements changes.
3. Establish the project effort, schedule and costs.
4. Develop plan for completing Full Function Services requirements.
DELIVERABLES:
- Revised Full Functional Services Plan
2.3.3.2. CUSTOMER RELATIONSHIP MANAGEMENT
The CRM solutions and functions will be reviewed and refined based upon
experience in the Start-up Services effort. Areas such as CTI, IVR, and
others will be re-evaluated at this time. Appropriate plans will be
developed and reviewed with EMW Contract Executive.
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IBM Confidential May 12, 2000 Page - 44 -
Exhibit 1A SI SOW
<PAGE>
2.3.3.3. REVENUE MANAGEMENT
MODIFY AND CUSTOMIZE REVENUE MANAGEMENT APPLICATIONS
IBM will work with the Revenue Management Application software vendors to
modify the applications as specified in the DEFINE THE REVENUE MANAGEMENT
APPLICATION AND INTERFACE REQUIREMENTS AND CHANGES for the Full
Functional Services phase. IBM will install and customize the Banner,
CWA, and VeriTRAN applications in the pre-production environment.
COMPLETION CRITERIA
This task will be considered complete when the modified, pre-production
versions of Banner, CWA, and VeriTRAN has been successfully installed on
the pre-production test environment in preparation for product testing.
DELIVERABLES
- None
CUSTOMIZE THE UTILITY DISTRIBUTION COMPANY (UDC) INTERFACES
IBM will develop, test and implement interfaces for additional UDC
markets and other external entities as specified in the DEFINE THE
REVENUE MANAGEMENT APPLICATION AND INTERFACE REQUIREMENTS AND CHANGES
task for the Full Functional Services phase. These services include
interface coordination with the target UDC or entity, including
communication, updates or modifications to the interface. Emphasis in
this phase will be upon developing a rules based approach to adding
markets in order to streamline process as EMW expands across the US
during its market entry over the first few years and beyond.
The interfaces will be tested per the existing (updated) test plan.
COMPLETION CRITERIA
This task will be considered complete when IBM has successfully
demonstrated that the communications between the solution and the UDCs
are occurring and that the rules based up-dating for new markets is in
place and functional Testing will be completed when the Test Plan
including Test Cases is provided to the EMW Contract Executive along with
the Test Execution Results.
DELIVERABLES
- Test Plan
- Test Cases
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IBM Confidential May 12, 2000 Page - 45 -
Exhibit 1A SI SOW
<PAGE>
- Test Execution Results
APPLICATION DEPLOYMENT
IBM will work with EMW during their User Acceptance Test to resolve
problems found. Once these have been resolved and retested, IBM will
promote the applications to the production environment per plan.
COMPLETION CRITERIA
This task will be considered complete when the EMW User Acceptance Test
has completed successfully and the final tested applications and
interfaces have been promoted to the production environment.
DELIVERABLES
- None.
DEVELOP APPLICATION DOCUMENTS
IBM will update the application documents for constructing training
materials for the Revenue Management applications. These include modified
User /Administration Guides and materials necessary to facilitate the
development of training materials.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the updated User
/Administration Guides and Training Documentation to the EMW Contract
Executive.
DELIVERABLES
- User/Administration Guides
- Training Documentation
2.3.3.4. BUSINESS INTELLIGENCE (BI)
In the Full Functional phase, considerable Business Intelligence
functionality will be deployed leveraging the infrastructure,
architecture, and initial deployments in the first phase. These
incremental capabilities are highlighted below:
BUSINESS INTELLIGENCE ANALYTICAL PROCESS REQUIREMENTS DESIGN
The purpose of this task is to identify and design the analytical
processes to support business processes in order management, customer
care, and revenue management. IBM will integrate the
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IBM Confidential May 12, 2000 Page - 46 -
Exhibit 1A SI SOW
<PAGE>
findings from the marketing workshop. The supporting analytic
processes provide insights and recommendations regarding customer
acquisition, customer retention, and product cross-sell decisions.
During the Start-up Services phase this design work will be primarily
focused upon integrating the Business Intelligence considerations and
design with the overall solution designs. The design here will be
established in first phase and further enhanced in the Full Functional
phase.
IBM will perform the following subtasks to define analytical process
requirements:
- Identify BI processes within order management, customer care, and
revenue management requiring pervasive numerical analytics to
support decision-making.
- Identify high level model type (i.e. statistical, forecasting, or
optimization) for each of the identified BI processes within
customer care, order management, and revenue management.
- Determine the variables, parameters, estimations, and other input
data for modeling efforts.
- Create an initial functional specification for each of the models.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Analytical
Process Requirements Document to the EMW Contract Executive.
DELIVERABLES
- Analytical Process Requirements Document- The Analytical Process
Requirements Document is a high-level description of each
recommended modeling activity, required inputs, expected outputs and
business benefits that could accrue to EMW if the specific
recommendation is developed and implemented.
ENTERPRISE-WIDE CUSTOMER AND PRODUCT COST MODEL
The purpose of this task is to identify, design and create the
operational costing methodology required to support customer, product and
line of business costing. For example, we should develop the means to
determine the cost of a given customer or segment of customers; the costs
associate with delivering a specific product; and the total delivered
costs associated with some specific business activity. This step is
equivalent to creating customer level activity-based costing for EMW.
IBM will perform the following subtasks to define analytical process
requirements:
- Determine the required level of granularity for product and
customer costing.
- Determine the input data required for modeling efforts.
- Create an initial functional specification for the EMW customer
and product cost models.
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IBM Confidential May 12, 2000 Page - 47 -
Exhibit 1A SI SOW
<PAGE>
COMPLETION CRITERIA
This task will be considered complete when IBM provides the EMW Customer
and Product Cost Models to the EMW Contract Executive.
DELIVERABLES
- EMW Customer and Product Cost Models
E-BUSINESS INTELLIGENCE (eBI) EXTREME PERSONALIZATION DESIGN
The purpose of this task is to leverage the findings in the Business
Intelligence Sub Processes, e-business web site map design, Lotus'
e-profiling technology, and the web analytics to create and refine the
eBI extreme personalization solution. Based on IBM's Horizontal
Marketing-TM- (Patent Pending) Methods and Applications, this solution
will make customer contact decisions based upon descriptive customer
information predictive analytics, web click streams, marketing campaigns
and business constraints. This is intended to enhance the customer
experience and the corporate productivity of the web site and the call
center.
IBM will perform the following subtasks to create a conceptual design
that includes:
- Definition of eBI extreme personalization solution.
- Establishment of base-line metrics to measure eBI effectiveness.
- Estimation of number of potential automated decisions.
- Assisting EMW in e-business Web Page Form Templates.
- Developing business rules that recommend usage of Call Center
script templates.
- Reviewing Web Site technical protocols and APIs.
- Prepare Conceptual design for business user description.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the eBI
Conceptual Design Document to the EMW Contract Executive.
DELIVERABLES
- eBI Conceptual Design Document - The Conceptual Design Document
contains recommendations on specific, prioritized activities that
EMW could undertake to increase revenue, decrease costs or enhance
the customer experience. Each recommended activity will be described
in detail, analyzed for the risk/return tradeoff, estimated for
out-of-pocket and recurring cost, impact of decision timings, and
highlighted for dependencies with other initiatives or
recommendations.
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IBM Confidential May 12, 2000 Page - 48 -
Exhibit 1A SI SOW
<PAGE>
eBI EXTREME PERSONALIZATION PROTOTYPE
The purpose of this task is to prototype the eBI extreme personalization
solution for end-user validation.
Based upon the extreme personalization conceptual design, IBM will
perform the following subtasks:
- Fabricate ClickStream test data.
- Develop a small sampling of customer behavior data.
- Develop sample product campaign offerings based on input from
Marketing Workshop.
- Develop up to five different Web Form Templates and validate against
EMW's "Customer Experience" strategy.
- Develop prototype from EMW test web site for EMW validation.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the eBI Prototype
and Web Forms to the EMW Contract Executive.
DELIVERABLES
- eBI Prototype in JAVA on a EMW Windows NT machine
- Up to five HTML Web Forms which will support dynamic content based
on customer profile.
BASIC BUSINESS INTELLIGENCE OLAP REPORTING
The purpose of this task is to give executives and business end-users
access to decision support reporting. IBM will initially target a
Balanced Score Card delivery of the executive level reports.
IBM will perform the following subtasks to set-up and develop up to
fifteen OLAP reports for executive and business user needs. These reports
can cover such dimensions as Customer Type, Product, Time, Location and
Channel (Web and Call Center).
- Design and Develop OLAP reports to support decision making.
- Identify high level reporting process model.
- Develop first draft of EIS Web Interface.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the OLAP Report
Listing and Function Document to the EMW Contract Executive.
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IBM Confidential May 12, 2000 Page - 49 -
Exhibit 1A SI SOW
<PAGE>
DELIVERABLES
- OLAP Report Listing and Function Document contains a report
template and description of the value of the report.
DATA WAREHOUSE MODEL
The purpose of this task is to develop a detailed logical and physical
data warehouse structure that allows historical decision support
analysis, data mining and trend analysis of customer, product, and market
data across outbound and inbound channels.
IBM will perform the following subtasks to develop the detailed logical
data model:
- Develop detailed data warehouse logical data model
- Develop detailed data warehouse physical data model
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Detailed
Logical and Physical Data Warehouse Model to the EMW Contract Executive.
DELIVERABLES
- Detailed Logical and Physical Data Warehouse Model
DATA WAREHOUSE DATA POPULATION PROCESS DESIGN
The purpose of this task is to build and unit test the business processes
and technical processes to populate the data warehouse.
IBM will assist EMW in performing the following subtasks to develop and
test the processes to populate the data warehouse:
- Develop data acquisition and update specifications.
- Develop data retention rules.
- Document Data Warehouse Archival/Retrieval Process.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Data
Warehouse Population Process Design Document to the EMW Contract
Executive.
DELIVERABLES
- Data Warehouse Population Process Design Document- contains
programming specifications for the extract/transformation/load (ETL)
processes that populate the Data Warehouse.
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IBM Confidential May 12, 2000 Page - 50 -
Exhibit 1A SI SOW
<PAGE>
DATA WAREHOUSE DATA ARCHITECTURE DEVELOPMENT
The purpose of this task is to define and describe the architectural
components (building blocks) of the Data Warehouse Data Store.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Data
Warehouse Data Architecture to the EMW Contract Executive.
DELIVERABLES
- Data Warehouse Data Architecture- contains Data Warehouse
component models
DATA WAREHOUSE QUALITY ASSESSMENT DATA SOURCES
The objective of this task is to assess the quality of the data to be
used in the production environment. We will ascertain the errors in the
operational data and develop a plan to correct these errors.
- Analyze data as it pertains to Customer Aquisition, Customer Care
and Revenue Management information from the selected source systems
to determine such factors as:
- Completeness.
- Correctness.
- Periods of data available.
- Causes for data quality problems.
- Identification of how to correct the problems.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Data Quality
Assessment Document to the EMW Contract Executive.
DELIVERABLES
- Data Quality Assessment Document- contains the findings for the
analysis performed in this task..
DATA WAREHOUSE TEST PLANNING
The purpose of this task is to produce comprehensive test plan
identifying test environments, test tools and estimated schedules.
IBM will perform the following subtasks to produce a plan for testing the
environment:
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IBM Confidential May 12, 2000 Page - 51 -
Exhibit 1A SI SOW
<PAGE>
- Create Data Warehouse Validation Plan.
- Conduct Data Warehouse Data Validation.
- Conduct Data Warehouse Data Movement Validation.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Data
Warehouse Test Plan and Expected Results Document to the EMW Contract
Executive.
DELIVERABLES
- Data Warehouse Test Plan and Expected Results Document- A Detailed
Test Plan is created for each level of testing identified as
necessary based on project life cycle testing requirements. Each
testing level represents a known level of physical integration and
quality of the system solution under development. Each plan
identifies the scope of testing for that level, functions/features
to be tested, the testing tasks to be performed, the personnel
responsible for each task, and the business and technical risks that
can be addressed through that level of testing.
DATA WAREHOUSE ENVIRONMENT TESTING
The purpose of this task is to set up a test environment and to perform
system and user testing.
IBM will assist EMW in performing the following subtasks to set-up a test
environment and to undertake system and user testing in accordance with
the approved Solution Validation Plan: Confirm Solution Generation.
- Initiate Solution Validation.
- Set-up Testing Environment.
- Perform System Test of each BI application.
- Perform User Acceptance Test.
- Confirm Solution Validation.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Data
Warehouse Environment User Test Report to the EMW Contract Executive.
DELIVERABLES
- Data Warehouse Environment User Test Report - A Detailed Test Plan
is created for each level of testing identified as necessary based
on project life cycle testing requirements. Each testing level
represents a known level of physical integration and quality of the
system
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IBM Confidential May 12, 2000 Page - 52 -
Exhibit 1A SI SOW
<PAGE>
solution under development. Each plan identifies the scope of
testing for that level, functions/features to be tested, the testing
tasks to be performed, the personnel responsible for each task, and
the business and technical risks that can be addressed through that
level of testing.
OPERATIONAL DATA MINING TESTING
The purpose of this task is to set up a test the UDB Miner and
Operational Mining environment and to perform system and user testing.
IBM will assist EMW in performing the following subtasks to set-up a test
environment and to undertake system and user testing in accordance with
the approved Solution Validation Plan: Confirm Solution Generation.
- Initiate Solution Validation.
- Set-up Testing Environment.
- Perform System Test of each BI application.
- Perform Model Creation, Check-in and Execution of Production Models.
- Perform User Acceptance Test.
- Confirm Solution Validation.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Operational
Data Mining Test Report to the EMW Contract Executive.
DELIVERABLES
- Operational Data Mining Test Report- A Detailed Test Plan is created
for each level of testing identified as necessary based on project
life cycle testing requirements. Each testing level represents a
known level of physical integration and quality of the system
solution under development. Each plan identifies the scope of
testing for that level, functions/features to be tested, the testing
tasks to be performed, the personnel responsible for each task, and
the business and technical risks that can be addressed through that
level of testing.
PRODUCTION DATA WAREHOUSE IMPLEMENTATION
The purpose of this task is to set up the production environment, deploy
the support organization, and implement the tested environment into
production.
IBM will assist EMW in performing the following subtasks to set-up the
production environment, deploy the support organization, and cut-over to
production in accordance with the approved Solution Deployment Plan:
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IBM Confidential May 12, 2000 Page - 53 -
Exhibit 1A SI SOW
<PAGE>
- Initiate Deployment.
- Set-up Production Environment.
- Deploy Client Support.
- Cut-over to Production.
- Confirm Deployment.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Production
Data Warehouse Implementation Report to the EMW Contract Executive.
DELIVERABLES
- Production Data Warehouse Implementation Report- A check list of the
architectural components that are deployed and tested.
EBI EXTREME PERSONALIZATION TESTING
The purpose of this task is to test the eBI extreme personalization
solution for end-user validation.
IBM will perform the following subtasks to set-up and operate analytical
processes:
- Develop test use cases.
- Develop processes to transition from the test prototype to the
production environment.
- Volume test and validate.
- Suspect, prospect, and customer segment test dynamic offers.
- Document necessary changes.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the eBI Solution
Test Report to the EMW Contract Executive.
DELIVERABLES
- eBI Solution Test Report - A Detailed Test Report is created for
each level of testing identified as necessary based on project life
cycle testing requirements. Each testing level represents a known
level of physical integration and quality of the system solution
under development. Each plan identifies the scope of testing for
that level, functions/features to be tested, the testing tasks to be
performed, the personnel responsible for each task, and the business
and technical risks that can be addressed through that level of
testing.
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IBM Confidential May 12, 2000 Page - 54 -
Exhibit 1A SI SOW
<PAGE>
EBI EXTREME PERSONALIZATION PRODUCTION IMPLEMENTATION
The purpose of this task is to implement the eBI extreme personalization
solution.
IBM will perform the following subtask to set-up and operate the extreme
personalization solution:
- Deploy the Extreme personalization solution.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the eBI Solution
Deployment Results to the EMW Contract Executive.
DELIVERABLES
- eBI Solution Deployment Results - A document describing the
results of the components deployed
ADVANCED BUSINESS INTELLIGENCE OLAP REPORTING
The purpose of this task is to give business end-users and super-users
access to trend analysis data, customer segment data, customer
transaction data, product data, and geography data.
IBM will perform the following subtasks to set-up and develop the
relational OLAP or Multi-Dimensional OLAP report and chart templates
covering the dimensions of Customer Type, Product, Time, Location and
Channel (Web and Contact Center).
- Refine and develop additional OLAP reports to support decision
making.
- Modify (if necessary) the high level reporting process model
created in Start-up.
- Integration of web metrics and call center metrics with customer
data.
- Develop enhancements of the reporting Web Interface.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the OLAP Report
Listing and Function Document to the EMW Contract Executive.
DELIVERABLES
- OLAP Report Listing and Function Document contains a report
template and description of the value of the report.
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IBM Confidential May 12, 2000 Page - 55 -
Exhibit 1A SI SOW
<PAGE>
2.3.3.5. KNOWLEDGE MANAGEMENT
CUSTOMER ACQUISITION, CUSTOMER CARE, AND REVENUE MANAGEMENT: WEB
ORDERING, STATUS, INFORMATION
The plan is for a combination of Clarify and SCT to provide the
identified capabilities (to interface to and support web-based
registering and ordering, checking status, and retrieving information.
This effort will focus upon updating previous first phase efforts.. Note
that this task is a Full Functional extension of in task in Start up
Services. The only difference will be the scope of integration.
COMPLETION CRITERIA
This task will be considered complete when IBM provides updates and
modifications to the deliverables specified below to the EMW Contract
Executive.
DELIVERABLES
- Presentation Architecture Specification Document
- Look and Feel Prototype
- Detail Design Document
- Usability Test Plan
- Unit Tested Source Code
- Deployment Plan
- User Acceptance Test Report
- Updated Transformation Management Plan
ELECTRONIC RESPONSE MANAGEMENT SYSTEM (ERMS)
An element of the EMW Customer Care solution is the Electronic Response
Management System (ERMS). ERMS is an e-care component that increases the
efficiency of the Customer Contact Center, by providing an
automated/semi-automated asynchronous electronic response to the requests
that come via e-mail and/or voice channels. It will sit between the
channels and the Clarify product. Core ERMS components include Rulebase,
Mail Text Analyzer, Response Generator, Skill-based router, Confidence
Manager, Queue Manager, AI Engine, and Request Forwarder. The core
capabilities are as follows: ERMS uses a leading edge rule-induction
machine-learning AI engine (Watson Labs' Corepoint Mail Analyzer ) to
assign incoming inquiries (Electronic Records - ERs) to predetermined
categories and/or associated FAQs. The scope of this task is to (a)
examine and validate the automated / semi-automated synchronous
electronic response requirements, and (b) architect, design, develop and
deploy the ERMS. Careful assessment of ERMS' fulfillment of EMW's
requirements will be undertaken. Should a
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IBM Confidential May 12, 2000 Page - 56 -
Exhibit 1A SI SOW
<PAGE>
gap occur, an evaluation of alternative packages will be made to confirm
best fit to EMW's requirements.
COMPLETION CRITERIA
This task will be considered complete when IBM provides updates and
modifications to the deliverables specified below to the EMW Contract
Executive.
DELIVERABLES
- Systems Architecture Specification Document
- Interface Specifications to Website (for EMW's vendors to utilize).
- Technical Prototypes
CUSTOMER ACQUISITION, CUSTOMER CARE, AND REVENUE MANAGEMENT: KNOWLEDGE
MANAGEMENT
Knowledge Management (KM) spans the areas of (1) Collaboration, (2)
Document / Records / Content Management, (3) Distributed Learning, (4)
Business Intelligence (BI), and (5) Expert Networks. The scope for this
task is restricted to the first three in defined infrastructure for BI.
The scope of this task is to (a) examine and validate the knowledge
management requirements, and (b) architect, design, develop, and deploy
the knowledge management system.
The collaboration services provided (in addition to messaging that falls
under the Messaging Task in the Start up Services) are Communities of
practice (using Lotus products such as QuickPlace) and certain aspects of
contact management. Content management capabilities will be provided for
the web channel. This will also include Taxonomy generation and Extended
Search in addition to various Knowledge Portal services such as
personalization, customization, profiling, including subscription and
entitlement.
COMPLETION CRITERIA
This task will be considered complete when IBM provides updates and
modifications to the deliverables specified below to the EMW Contract
Executive.
DELIVERABLES
- Validated System Requirements Specification Document
- Systems Architecture Specification Document
- Technical Prototypes
- Detail Design Document
- Test Plan
- Unit Tested Source Code
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IBM Confidential May 12, 2000 Page - 57 -
Exhibit 1A SI SOW
<PAGE>
- Test Report
- Deployment Plan
- User Acceptance Test Report
- Updated Transformation Management Plan
CUSTOMER CARE: WEBGENIE
During this task IBM will (a) examine and validate the Virtual web chat
requirements, and (b) architect, design, develop, and deploy WebGenie.
Core components include the Text Analyzer, Conversation Environment,
Response store, and the Lightweight Document Matcher.
COMPLETION CRITERIA
This task will be considered complete when IBM provides updates and
modifications to the deliverables specified below to the EMW Contract
Executive.
DELIVERABLES
- Systems Architecture Specification Document
- Technical Prototypes
- Detail Design Document
- Test Plan
- Unit Tested Source Code
- Test Report
- Deployment Plan
- User Acceptance Test Report
- Updated Transformation Management Plan
2.3.3.6. E-BUSINESS
PERSONALIZED CONTENT MANAGEMENT (PCM) REQUIREMENT ANALYSIS AND SCOPE
DEFINITION
During this task IBM will:
- Define PCM goals and purpose as extension and execution of Content
Management.
- Identify high-level functions, rules based assets, and data
requirements necessary to support PCM functionality.
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IBM Confidential May 12, 2000 Page - 58 -
Exhibit 1A SI SOW
<PAGE>
- Define planned technical infrastructure/systems and hardware
requirements.
- Review and analyze marketing, advertising, branding, and product
development environments, business rules and business processes.
- Define business rules to manage application of content
personalization on Web site.
COMPLETION CRITERIA
- This task will be considered complete when IBM provide the
deliverables listed below to the EMW Contract Executive.
DELIVERABLES
- PCM Process Goals and Objectives
- PCM Rules Based Engine Implementation Recommendation Report.
- PCM Physical Infrastructure Design
- PCM Business Rules Recommendations
PERSONALIZE CONTENT MANAGEMENT IMPLEMENTATION
During this task IBM will:
- Create PCM Acceptance Criteria and obtain EMW signoff.
- Deploy Rules Based Engine in Web space.
- Create Rules templates for CM including access rules, permissions,
task identification, resource assignments, and task scheduling. Test
in conjunction with CM.
- Test Setup Procedures for PCM.
- Test Total PCM system.
- Document PCM implementation processes for eventual turnover to EMW.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- Operational Documentation:
- Working Rules Based Engine for WebSphere Server (provided by
EMW Website Technical Implementation vendor) capable of
applying rules PCM
- PCM Rule Engine Templates based on CM
- PCM Operational and Design documentation.
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IBM Confidential May 12, 2000 Page - 59 -
Exhibit 1A SI SOW
<PAGE>
- Test Report:
- Report on PCM Acceptance Criteria
- Report on Setup Procedures Test Report.
- Report on Total PCM System test.
WORKFLOW SUPPORT (WFS) REQUIREMENT ANALYSIS AND SCOPE DEFINITION
During this task IBM will:
- Define WFS goals and purpose as component of CM and PCM.
- Define additional EMW WFS target processes.
- Identify high-level functions, collaborative teaming assets, and
data requirements necessary to support WFS functionality.
- Define planned technical infrastructure/systems and hardware
requirements.
- Define business rules to manage WFS application on EMW site.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- WFS Process Goals and Objectives
- WFS Rules Based Engine Implementation Recommendation Report
- WFS Physical Infrastructure Design
- WFS Business Rules Recommendations
WORKFLOW SUPPORT (WFS) IMPLEMENTATION
During this task IBM will:
- Create WFS Acceptance Criteria and obtain EMW signoff.
- Deploy WFS prototypes in selected EMW work process space.
- Create prototype templates for WFS including access rules,
permissions, task identification, chaining, pass-off, escalation,
and task scheduling.
- Test Total WFS system.
- Document WFS process for eventual turnover to EMW.
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IBM Confidential May 12, 2000 Page - 60 -
Exhibit 1A SI SOW
<PAGE>
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- Operational Documentation:
- WFS Operational documentation
- Working Rules for WFS
- Prototype WFS templates for Target processes
- Test Report:
- Report on WFS Acceptance Criteria
- Report on Total WFS System test.
MESSAGING, ALERTS, AND NOTIFICATIONS (MAN) REQUIREMENT ANALYSIS AND SCOPE
DEFINITION
During this task IBM will:
- Define MAN goals and purpose as component of CRM, Web, Out-Bound
e-mail.
- Define additional EMW MAN target processes.
- Define initial content types, sources, and content.
- Identify high-level functions, messaging assets, and data
requirements necessary to support MAN functionality.
- Define planned technical infrastructure/systems and hardware
requirements.
- Define business rules to manage MAN application on EMW site.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- MAN Process Goals and Objectives
- MAN Initial Content Index
- MAN Messaging Implementation Recommendation Report
- MAN Physical Infrastructure Design
- MAN Business Rules Recommendations
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IBM Confidential May 12, 2000 Page - 61 -
Exhibit 1A SI SOW
<PAGE>
MESSAGING, ALERTS, AND NOTIFICATIONS MESSAGING, ALERTS, AND NOTIFICATIONS
(MAN) IMPLEMENTATION
During this task IBM will:
- Create MAN Acceptance Criteria and obtain EMW signoff.
- Deploy MAN prototypes in selected EMW workspace.
- Create MAN initialization, tracking, logging, and access rules.
- Prototype MAN in Personalized Content (PCM) implementation.
- Test Total MAN system.
- Document MAN process for eventual turnover to EMW.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- Prototype MAN implementation in PCM
- Operational Documentation:
- MAN Operational documentation
- Working Rules for MAN
- Test Report:
- Report on MAN Acceptance Criteria
- Report on Total MAN System test.
KNOWLEDGE MANAGEMENT (KM) REQUIREMENT ANALYSIS AND SCOPE DEFINITION
During this task IBM will:
- Define KM goals and purpose as component of containing and
delivering site wide information in support of selected processes.
- Define selected processes.
- Identify high-level functions, messaging assets, and data
requirements necessary to support KM functionality.
- Define planned technical infrastructure/systems and hardware
requirements.
- Define business rules to manage KM application on EMW site.
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 62 -
Exhibit 1A SI SOW
<PAGE>
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- KM Process Goals and Objectives
- KM Rules Based Engine Implementation Recommendation Report
- KM Physical Infrastructure Design
- KM Business Rules Recommendations
KM IMPLEMENTATION
During this task IBM will:
- Create KM Acceptance Criteria and obtain EMW signoff.
- Deploy KM prototypes in selected EMW work process space.
- Create KM initialization, tracking, logging, and access rules.
- Document MAN process for eventual turnover to EMW.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- Report on KM Acceptance Criteria
- Prototype KM implementation in selected processes
- KM Operational documentation
DATABASE WAREHOUSE (DW) REQUIREMENT ANALYSIS AND SCOPE DEFINITION
During this task IBM will:
- Define DW goals and purpose as component of containing and
delivering site wide information in support of historical
operational, performance, and transaction analysis.
- Define selected content sources, deliver mechanisms, aging criteria,
storage format, access rules, source rules, data requirements, and
other operational attributes.
- Define planned technical infrastructure/systems and hardware
requirements.
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 63 -
Exhibit 1A SI SOW
<PAGE>
- Define business rules to manage DW application on EMW site.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- DW Process Goals and Purpose
- DW Content Source and Management Report
- DW Physical Infrastructure Design
- DW Business Rules Recommendations
DW IMPLEMENTATION
During this task IBM will:
- Create DW Acceptance Criteria and obtain EMW signoff.
- Deploy DW with initial target content.
- Create DW initialization, tracking, logging, and access rules.
- Document DW process for eventual turnover to EMW.
COMPLETION CRITERIA
This task will be considered complete when IBM provides the deliverables
listed below to the EMW Contract Executive.
DELIVERABLES
- DW Operational Documentation
- DW Acceptance Criteria Report
CONDUCT SYSTEM TESTS
This task executes system testing against the developed interfaces. It is
designed to exercise the application functions and verify proper
execution of the application with other application interfaces, verify
that the system is functionally correct and operationally sound, and
perform additional testing in regards to transaction flow, stress/
volume, and regression testing.
Subtasks include the following:
- Prepare Environment for System Testing.
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 64 -
Exhibit 1A SI SOW
<PAGE>
- Validate API Interfaces.
- Execute System Tests.
- Evaluate Build Cycle Results.
- Undertake System Stress Testing
COMPLETION CRITERIA
This task will be considered complete when IBM provides the Test Report
to the EMW Contract Executive.
DELIVERABLES
- Test Report
2.3.3.7. BUSINESS INFRASTRUCTURE
The Business Infrastructure will be scaled to meet requirements of added
functionality added during this phase, as well as for growth in EMW
customer and transaction volumes.
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 65 -
Exhibit 1A SI SOW
<PAGE>
2.4. EMW RESPONSIBILITIES
The successful completion of the proposed effort depends on the full
commitment and participation of EMW management and personnel.
The responsibilities listed in this section are in addition to those
responsibilities specified in the Agreement, and are to be provided at no
charge to IBM. IBM's performance is predicated upon the following
responsibilities being fulfilled by EMW.
2.4.1. EMW CONTRACT EXECUTIVE
The EMW Contract Executive's responsibilities include the following:
- Serve as the interface between IBM and all EMW departments
participating in the Project.
- Review Project Change Control along with the IBM Contract Executive.
- Attend project meetings as agreed by the Parties.
- Obtain and provide information, data, decisions and approvals within
two working days of IBM's request unless EMW and IBM agree (which
may be oral) to a different response time.
- Resolve deviations from the estimated schedule that may have been
caused by EMW.
- Help resolve project issues and escalate issues within EMW in
accordance with the Dispute Resolution process.
- Schedule and secure attendance of all required EMW personnel as
reasonably required for interviews, meetings and work sessions.
- Provide access to relevant EMW information and documents required
for the project.
- Make final approval of solution and technical architectures.
2.4.2. GENERAL EMW RESPONSIBILITIES
- EMW will provide reasonably required EMW Subject Matter Experts and
EMW Business Owners who can provide knowledge of EMW systems and
processes and will work with the IBM team as required.
2.5. DELIVERABLE MATERIALS
The following documents and itemswill be delivered to EMW under this
Statement of Work.]
- Analytical Process Requirements Document
- API (to Website) Specifications Document
- Architectural Overview Diagram
- BI Sub Process Model
- Business Process Maps
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 66 -
Exhibit 1A SI SOW
<PAGE>
- Business Process Model
- Business Rules Data Store
- Call Scripts loaded in Clarify
- Call Guides loaded in Clarify
- CM Process Flows
- Component Model
- CTI Architectural Overview Document
- CTI Assessment Document
- Data Architecture Document
- Data Model
- Data Quality Assessment Document
- Data Warehouse Data Architecture
- Data Warehouse Environment
- Data Warehouse Population Process Design Document
- Data Warehouse Test Plan
- Deployment Plan
- Detail Design Document
- Detailed Design Document
- Detailed Logical and Physical Data Warehouse Model
- Development IT Infrastructure Document
- DW Business Rules Recommendations
- DW Content Source and Management Report
- DW Physical Infrastructure Design
- DW Process Goals and Purpose
- eBI Conceptual Design Document
- eBI Prototype in JAVA on a EMW Windows NT machine
- eBI Solution Deployment Results
- eBI Solution Test Report
- CSR Training Materials
- Expected Results Document
- External Interfaces Summary Document
- Functional Gap Analysis Document
- Functional/Non-functional Requirements
- High Level Implementation Plan
- HTML Web Forms
- Initial Deployment Plan
- Integration Architecture Specification Document
- Integration Test Report
- KM Business Rules Recommendations
- KM Operational documentation
- KM Physical Infrastructure Design
- KM Process Goals and Objectives
- KM Rules Based Engine Implementation Recommendation Report
- Knowledge Base Architecture Specification Document
- Knowledge Management Architecture Specification Document
- Logical and Physical Data Store/Data Model
- Look and Feel Prototype
- MAN Business Rules Recommendations
- MAN Initial Content Index
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 67 -
Exhibit 1A SI SOW
<PAGE>
- MAN Messaging Implementation Recommendation Report
- MAN Physical Infrastructure Design
- MAN Process Goals and Objectives
- Messaging Architecture Specification Document
- Non-Functional Requirements
- ODS Implementation Plan
- ODS Test Plan
- OLAP Report Listing and Function Document
- Operational Data Mining Test Report
- Operational Data Store Document
- Operational Documentation
- Package Functional Gap Analysis
- PCM Business Rules Recommendations
- PCM Physical Infrastructure Design
- PCM Process Goals and Objectives
- PCM Rules Based Engine Implementation Recommendation Report.
- Presentation Architecture Specification Document
- Presentation Architecture Specification Document
- Process Design Document
- Process Flow Descriptions
- Process Flows
- Production Data Warehouse Implementation Report
- Prototype KM implementation in selected processes
- Prototype MAN implementation in PCM
- Report on KM Acceptance Criteria
- EMW Customer and Product Cost Models
- Revised Project Estimates
- Solution Definition Document
- Solution Recommendation Document
- Stakeholder Interviews Results
- State Table Requirements Document
- Summary of Findings Document
- System Administrator Training Materials
- System Context Diagram
- System Test Report
- Systems Architecture Specification Document
- Systems Architecture Specification Document
- Technical Infrastructure Document
- Technical Prototypes
- Technology Deployment Plan
- Test Cases
- Test Execution Results
- Test IT Infrastructure Document
- Test Plan
- Test Report
- Tool Evaluation Document
- Training Documentation
- Training IT Infrastructure Document
- Training Plan
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 68 -
Exhibit 1A SI SOW
<PAGE>
- Transformation Management Plan
- Unit Tested Source Code
- HTML Web Forms
- Updated Transformation Management Plan
- Usability Test Plan
- Use Cases
- User /Administration Guides
- User Acceptance Test Report
- Validated System Requirements Specification Document
- Weekly Status Summary Reports
- WFS Business Rules Recommendations
- WFS Physical Infrastructure Design
- WFS Process Goals and Objectives
- WFS Rules Based Engine Implementation Recommendation Report
-------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 69 -
Exhibit 1A SI SOW
<PAGE>
--------------------------------------------------------------------------------
2.6. COMPLETION CRITERIA
IBM shall have fulfilled its obligations under this Statement of Work
when any of the following first occurs:
- IBM completes the tasks described in the "IBM Responsibilities"
section in accordance with their completion criteria, including
delivery of the items listed in the "Deliverable Materials" section
of this Statement of Work and the system produced by IBM meets the
requirements set forth in Appendix A.
- This Statement of Work is terminated in accordance with the
provisions of the Agreement.
- System is in production and functioning and able to service
customers as expected and in accordance with the functionality
requirements contained in Appendix A.
2.7. ESTIMATED SCHEDULE
The services in this Statement of Work are estimated to be performed over
a period of approximately 14 months from March, 2000 through May, 2001.
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 70 -
Exhibit 1A SI SOW
<PAGE>
--------------------------------------------------------------------------------
APPENDIX A - DETAILED GO LIVE REQUIREMENTS
The detailed requirements for Start-up Services and Full Functional Services
were agreed to by EMW and IBM and documented in the report "NewBiz Detailed Go
Live Requirements"dated February 2, 2000 and published February 7 2000. IBM's
ability to deliver these requirements was used as a basis for selecting IBM.
These requirements formed the primary measure of whether the Services
identified in this statement of work succeed in providing the functionality
required by EMW.
Since February 7, 2000 and during contract negotiations, EMW has requested the
following additions to these requirements, either by accelerating Full
Functional requirements into Start-up scope or by enhancing these
requirements. IBM, as indicated in this Appendix, is willing to respond to
EMW's requests and has noted such requirements as "Additional Required
Functionality" in the explanation column; however, should IBM be unable to
deliver the Additional Required Functionalities, then the Start-up Schedule
only with respect to such Additional Required Functionalities will be extended
as appropriate and any such delays only with respect to such Additional
Required Functionalities will not incur liquidated damages as described in
Section 16.09.(1) of the Agreement.
The explanation column contains any clarification comments made by IBM,
including notation where requirements may not be complete prior to August 1,
2000. The absence of an explanation indicates agreement to the requirement
listed.
Subject to the foregoing, the shaded requirements are required for Start up
Services. The remaining requirements are required for Full Functional Services.
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER ACQUISITION FUNCTIONAL REQUIREMENTS
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Ability to manage and update pre-qualified customer data from a 3rd
party (list management) to target offers
-------------------------------------------------------------------------------------------------------------------------------
2. Ability to incorporate data to identify & support channel/campaign Additional Required Functionality
management (e.g. how many customers, what products/services were
purchased/offered and when). This could occur via traditional
means or the web
-------------------------------------------------------------------------------------------------------------------------------
3. Ability to use IVR functionality. Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
4. Ability to use Predictive Dialer functionality Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
5. Ability to integrate telemarketing and telesales data Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
6. Ability to perform real time updating & reporting of campaign data Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
7. Ability to report on key metrics of new customer sales and setup Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
8. Ability to track number of opportunities generated Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
9. Ability to utilize workflow techniques to manage and track acquisition
process
-------------------------------------------------------------------------------------------------------------------------------
10. Ability to inform agents of new products and services and
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 71 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER ACQUISITION FUNCTIONAL REQUIREMENTS
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
changes to existing campaigns in a real time manner
-------------------------------------------------------------------------------------------------------------------------------
11. Ability to generate standard and custom reports Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
12. Ability to track actual opportunity revenue created
-------------------------------------------------------------------------------------------------------------------------------
13. Ability to support intelligent scripting based on campaigns and
responses for the entire selling process
-------------------------------------------------------------------------------------------------------------------------------
14. Ability to set up item pricing structure for a campaign including
discounts, shipping and handling costs, and taxes
-------------------------------------------------------------------------------------------------------------------------------
15. Ability to setup & update multiple campaign detail information, e.g.
edit dates of campaign, scripting, discounts, and shipping and handling
costs during the campaign
-------------------------------------------------------------------------------------------------------------------------------
16. Ability to present data from the same databases used for inbound Additional Required Functionality Customer Care
-------------------------------------------------------------------------------------------------------------------------------
17. Ability to present data using the same presentation tools as inbound
Customer Care
-------------------------------------------------------------------------------------------------------------------------------
18. Ability to perform all Customer Care sales functionality such as
targeting specific products and services based on a customer profile
and campaign success reporting
-------------------------------------------------------------------------------------------------------------------------------
19. Ability to perform all Customer Care order management
functionality such as service plan changes and product order
updates.
-------------------------------------------------------------------------------------------------------------------------------
20. Ability to perform all Customer Care customer management/customer
contact functionality such as call tracking and customer profile
updates
-------------------------------------------------------------------------------------------------------------------------------
21. Ability to support outbound telemarketing Additional Required Functionality
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 72 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
Web Customer Care Requirements Boxes 3.1-3.7
-------------------------------------------------------------------------------------------------------------------------------
1. Ability to display current customer profile, order, account, and
service information on the web
-------------------------------------------------------------------------------------------------------------------------------
2. Ability to receive customer changes from the web site and Supported by SCT CWA.
automatically update the customer profile, order, or account with
the new information in real or near real time
-------------------------------------------------------------------------------------------------------------------------------
3. Ability to automatically create a record of an existing customer's web
site visit and associate it with the customer profile
-------------------------------------------------------------------------------------------------------------------------------
4. Ability to automatically create a new customer profile, service, or
order in the Customer Care system based on a service or product purchase
on the web site
-------------------------------------------------------------------------------------------------------------------------------
Workflow/Workflow Management Boxes 3.1-3.7
-------------------------------------------------------------------------------------------------------------------------------
1. Ability to support technology enforced workflow - i.e. automatically
notify a supervisor to contact a customer based on business rules
-------------------------------------------------------------------------------------------------------------------------------
2. Ability to support customer escalations (capture, track, and report
resolution)
-------------------------------------------------------------------------------------------------------------------------------
3. Ability to support triggers based on events (for example, a caller
requesting a certain type of product or service would trigger display
of an additional offer)
-------------------------------------------------------------------------------------------------------------------------------
4. Ability to support triggers based on timers (for example, automatically
generate a follow-up reminder)
-------------------------------------------------------------------------------------------------------------------------------
Sales Management Boxes 3.1, 3.4-3.7
-------------------------------------------------------------------------------------------------------------------------------
1. Ability to view all sales opportunities by customer
-------------------------------------------------------------------------------------------------------------------------------
2. Ability to prompt the agent with the name of the campaign based on
Automated Call Distribution (ACD) and Dialed Number Identification
(DNIS) capability
-------------------------------------------------------------------------------------------------------------------------------
3. Ability to capture the data required for a credit check and an on-line
real time (OLRT) interface to a 3rd party credit check application and
receive an immediate credit score
-------------------------------------------------------------------------------------------------------------------------------
4. Ability to source credit scores from multiple credit check companies
-------------------------------------------------------------------------------------------------------------------------------
5. Ability to capture key credit check result data on the customer record
per legal requirements
-------------------------------------------------------------------------------------------------------------------------------
6. Ability to electronically gain authorization from a credit card
verification organization
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 73 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
7. Ability to support intelligent scripting based on campaigns and Scripting is required for "Go Live", but full
responses for the entire selling process "intelligent" scripting for all processes is not
required until later phases
-------------------------------------------------------------------------------------------------------------------------------
8. Ability to offer different services based on a credit rating No different services offered, but the ability to
offer different payment methods (i.e. pre-pay,
credit card) based on credit rating is required
-------------------------------------------------------------------------------------------------------------------------------
9. Ability to record a history of all sales actions for each customer
-------------------------------------------------------------------------------------------------------------------------------
10. Ability to identify the source and marketing tracking code for each
opportunity
-------------------------------------------------------------------------------------------------------------------------------
11. Ability to track average revenue per sale
-------------------------------------------------------------------------------------------------------------------------------
12. Ability to track and report agent sales and commissions Sales can be tracked by agent using the Banner
application audit trail
-------------------------------------------------------------------------------------------------------------------------------
13. Ability to assign a campaign number to the order to track detailed sales
statistics per campaign
-------------------------------------------------------------------------------------------------------------------------------
14. Ability to view customer cancellation history including order number,
description, date of cancellation, and reason
-------------------------------------------------------------------------------------------------------------------------------
15. Ability to enter a reason code and description for cancellations
-------------------------------------------------------------------------------------------------------------------------------
16. Ability to customize scripts and screen flow based on enrollment in
loyalty programs
-------------------------------------------------------------------------------------------------------------------------------
17. Ability to use scripting to recommend alternative items or back order
items if a requested item is sold out
-------------------------------------------------------------------------------------------------------------------------------
18. Ability to recommend an alternative item at a discounted rate, e.g.
customer received incorrect size and item is sold out
-------------------------------------------------------------------------------------------------------------------------------
19. Ability to issue credit if item is out of stock by applying credit to
credit card, issue refund check, or apply the credit to the next bill
-------------------------------------------------------------------------------------------------------------------------------
20. Ability to capture vendor information in cases where item is This can be recorded in the Service Order notes
damaged or defective
-------------------------------------------------------------------------------------------------------------------------------
21. Ability to provide a list of possible return actions, e.g. list box
displaying return actions based on item condition, customer return
history
-------------------------------------------------------------------------------------------------------------------------------
22. Ability to view customer return history
-------------------------------------------------------------------------------------------------------------------------------
23. Ability to recommend alternative item at discounted rate
-------------------------------------------------------------------------------------------------------------------------------
24. Ability to capture vendor information
-------------------------------------------------------------------------------------------------------------------------------
25. Ability to search for item by item number, item description, item
category and item show time and date
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 74 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
26. Ability to evaluate sales effectiveness (Per service, Per product)
-------------------------------------------------------------------------------------------------------------------------------
27. Ability to produce campaign productivity analysis reports
-------------------------------------------------------------------------------------------------------------------------------
28. Ability to compare historical campaign analysis with a current campaign
-------------------------------------------------------------------------------------------------------------------------------
29. Ability to flag a new customer account in order to capture first time
buyer characteristics
-------------------------------------------------------------------------------------------------------------------------------
30. Ability to measure average purchase amount through various channels
-------------------------------------------------------------------------------------------------------------------------------
31. Ability to measure customer response rate by channel
-------------------------------------------------------------------------------------------------------------------------------
32. Ability to measure customer retention rate by channel and overall
-------------------------------------------------------------------------------------------------------------------------------
33. Ability to measure prospect to customer conversion rate
-------------------------------------------------------------------------------------------------------------------------------
34. Ability to calculate cross-selling and/or up-selling ratios
-------------------------------------------------------------------------------------------------------------------------------
35. Ability to define features of a new sales channel such as how a product
is being marketed, who is the defined as the targeted customer base and
set up a means to track marketing performance metrics for the product,
e.g. provide analytical reports showing the product sold (amount and
dollars) and buyers over a specific amount of time, customer retention,
etc
-------------------------------------------------------------------------------------------------------------------------------
36. Ability to measure customer acquisition and retention rate by channel
-------------------------------------------------------------------------------------------------------------------------------
37. Ability to configure or establish business rules, application logic,
user functionality, system interfaces, and process flows to support a
new sales channel
-------------------------------------------------------------------------------------------------------------------------------
38. Ability to inactivate a sales channel
-------------------------------------------------------------------------------------------------------------------------------
Customer/Contact Management Boxes 3.1, 3.3, 3.5
-------------------------------------------------------------------------------------------------------------------------------
1. Ability to categorize contact types (e.g. new service, complaint)
-------------------------------------------------------------------------------------------------------------------------------
2. Ability to view a list of possible actions to handle customer Scripting is required for "Go Live", but full
inquiries, e.g. provide agent a list of possible scenarios and by "intelligent" scripting for all processes is not
selecting the current scenario, detail scripting or helpful hints required until later phases
are provided
-------------------------------------------------------------------------------------------------------------------------------
3. Ability to download and upload customer records, sales opportunities,
service issues, literature, contacts, and product information
-------------------------------------------------------------------------------------------------------------------------------
4. Ability to track the version of terms and conditions a customer
agreed to
-------------------------------------------------------------------------------------------------------------------------------
5. Ability to provide online access to terms and conditions to a
regulatory authority
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 75 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
6. Ability to assign attributes to a customer or entity
-------------------------------------------------------------------------------------------------------------------------------
7. Ability to create customer profiles and tie them to customer accounts
-------------------------------------------------------------------------------------------------------------------------------
8. Ability to store an e-mail address for each customer
-------------------------------------------------------------------------------------------------------------------------------
9. Ability to store an Internet address (e.g., WWW URL) for each customer
-------------------------------------------------------------------------------------------------------------------------------
10. Ability to assign a unique customer identification code
-------------------------------------------------------------------------------------------------------------------------------
11. Ability to electronically route customer data to a UDC or third party Referring to the direct access service request
process
-------------------------------------------------------------------------------------------------------------------------------
12. Ability to capture tax exempt data for a customer There is a field to capture this.
-------------------------------------------------------------------------------------------------------------------------------
13. Ability to associate user-defined customer type and subtype for each
customer
-------------------------------------------------------------------------------------------------------------------------------
14. Ability to store up to 3 lines of address information in addition to
city, state/province, country, and ten digit postal-zip code
-------------------------------------------------------------------------------------------------------------------------------
15. Ability to store multiple addresses per customer (mailing address,
billing address, service address, etc.)
-------------------------------------------------------------------------------------------------------------------------------
16. Ability to link each customer to an external customer identification,
such as an accounting customer number
-------------------------------------------------------------------------------------------------------------------------------
17. Ability to link each customer to a parent customer or part of an
organization if they are a member
-------------------------------------------------------------------------------------------------------------------------------
18. Ability to confirm account transactions electronically (email, fax E-mail required, direct mail required (where
or other) state regulations require confirmation). FAX
capability NOT required
-------------------------------------------------------------------------------------------------------------------------------
19. Ability to automatically assign the customer to a service territory
-------------------------------------------------------------------------------------------------------------------------------
20. Ability to automatically time and date-stamp records of customer
contact: phone calls, e-mails, etc.
-------------------------------------------------------------------------------------------------------------------------------
21. Ability to enter extensive notes and associate them with actions
-------------------------------------------------------------------------------------------------------------------------------
22. Ability to track individuals not associated with a customer and
optionally later link them to a customer record
-------------------------------------------------------------------------------------------------------------------------------
23. Ability to create and edit customer preferences or defaults such as
preferred shipping method and payment method
-------------------------------------------------------------------------------------------------------------------------------
24. Ability to maintain different account hierarchies (i.e. multiple
individuals/customers on a single account)
-------------------------------------------------------------------------------------------------------------------------------
25. Ability to capture customer comments and feedback
-------------------------------------------------------------------------------------------------------------------------------
26. Ability to track history for all e-mail and other written
correspondence
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 76 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
27. Ability to update all customer account information
-------------------------------------------------------------------------------------------------------------------------------
28. Ability to flag accounts (notify agent to make a specific offer, notify
agent that the customer is overdue, etc.)
-------------------------------------------------------------------------------------------------------------------------------
29. Ability to verify a customer (with a pin code)
-------------------------------------------------------------------------------------------------------------------------------
30. Ability to display the calling customer's history, credit score, etc.
derived using Automatic Number Identification (ANI)
-------------------------------------------------------------------------------------------------------------------------------
31. Ability for a sales agent to transfer a call synopsis to a The ability to transfer calls and data within
customer service representative (i.e. a customer receiving the Customer Contact Center or Center(s) i.e.
an outbound sales call has a service question) for handling escalated calls, is required
-------------------------------------------------------------------------------------------------------------------------------
32. Ability to view past transaction information such as order date,
order #, description, order returned, amount paid, chargeback occurred,
and customer comments
-------------------------------------------------------------------------------------------------------------------------------
33. Ability to enroll customer into a loyalty program based on total
contribution and/or longevity, e.g. frequent customer program
-------------------------------------------------------------------------------------------------------------------------------
34. Ability to provide up-sell and cross-sell intelligent logic, e.g.
up-sell or cross-sell items/services specific to a customer profile
or category
-------------------------------------------------------------------------------------------------------------------------------
35. Ability to capture customers who accept promotional offers, e.g.
automatically apply promo if accepted
-------------------------------------------------------------------------------------------------------------------------------
36. Ability to capture and manage multiple credit card information Banner provides this functionality in Start-up
Services. Clarify will assume this data in
Start-up Services follow up.
-------------------------------------------------------------------------------------------------------------------------------
37. Ability to add/edit customer personal information such as first
and last name, e-mail, address, date of birth, address, credit card,
etc.
-------------------------------------------------------------------------------------------------------------------------------
38. Ability to validate the customer before editing customer information,
e.g. use of an account pin number or scripting to verify customer
address
-------------------------------------------------------------------------------------------------------------------------------
39. Ability to retrieve a customer account by searching by account
identification number, last name, address, phone, credit card number,
etc.
-------------------------------------------------------------------------------------------------------------------------------
40. Ability to notify the customer of an outstanding account balance, e.g.
pop up message box
-------------------------------------------------------------------------------------------------------------------------------
41. Ability to classify a customer account as active, inactive, etc.
-------------------------------------------------------------------------------------------------------------------------------
42. Ability to deactivate a customer account and enter a reason and time
frame
-------------------------------------------------------------------------------------------------------------------------------
43. Ability to automatically generate confirmation of customer account
changes by sending customer an email, fax, or letter
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 77 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
44. Ability to block a customer account due to a bad address, bad check,
or other fraud related reason
-------------------------------------------------------------------------------------------------------------------------------
45. Ability to unblock a customer account, e.g. remove bad check flag,
remove "bad" address flag
-------------------------------------------------------------------------------------------------------------------------------
46. Ability to maintain an audit trail of customer account changes
including agent identification, date, and reason
-------------------------------------------------------------------------------------------------------------------------------
47. Ability to enter a bank routing number, transit #, name, and address
for customers making payment by automatic transfer
-------------------------------------------------------------------------------------------------------------------------------
Order Management (Commodity, Non-Commodity or Merchandise
Orders) Box 3.3
-------------------------------------------------------------------------------------------------------------------------------
1. Ability to generate a unique order number
-------------------------------------------------------------------------------------------------------------------------------
2. Ability to retrieve an order status This is provided by VeriTran for Commodity
orders, and by the service order component of
Banner for non-commodity items
-------------------------------------------------------------------------------------------------------------------------------
3. Ability to cancel an order based on business rules - i.e. the ability
to cancel open orders at the order level and line item level if they
have not yet been fulfilled by the distribution center or a 3 day
window for new commodity customers
-------------------------------------------------------------------------------------------------------------------------------
4. Ability to edit an order based on business rules
-------------------------------------------------------------------------------------------------------------------------------
5. Ability to issue credit where calculations are incorrect
-------------------------------------------------------------------------------------------------------------------------------
6. The ability to compute taxes on a local and state specific basis Will leverage process already in place for
commodity
-------------------------------------------------------------------------------------------------------------------------------
7. Ability to support multi-lingual scripting
-------------------------------------------------------------------------------------------------------------------------------
8. Ability to check real time item availability
-------------------------------------------------------------------------------------------------------------------------------
9. Ability to issue an exchange and re-order the same item
-------------------------------------------------------------------------------------------------------------------------------
10. Ability to provide a list of possible reasons for the exchange and enter
customer comments
-------------------------------------------------------------------------------------------------------------------------------
11. Ability to oversell items and track order history
-------------------------------------------------------------------------------------------------------------------------------
12. Ability to retrieve a customer's preferred method of payment
-------------------------------------------------------------------------------------------------------------------------------
13. Ability to change or select the payment method
-------------------------------------------------------------------------------------------------------------------------------
14. Ability to compute total charges on an order?(item cost, shipping and
handling (S&H), taxes)
-------------------------------------------------------------------------------------------------------------------------------
15. Ability to apply discounts based on business rules
-------------------------------------------------------------------------------------------------------------------------------
16. Ability to apply a percent off discount based on business rules
-------------------------------------------------------------------------------------------------------------------------------
17. Ability to apply credits to an order based on business rules
-------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 78 -
Exhibit 1A SI SOW
<PAGE>
-------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
-------------------------------------------------------------------------------------------------------------------------------
18. Ability to retrieve the customer's default shipping address
-------------------------------------------------------------------------------------------------------------------------------
19. Ability to change the shipping address for an order
-------------------------------------------------------------------------------------------------------------------------------
20. Ability to retrieve detailed warehouse manifest information such as Requires integration to unknown systems. We can
calculated expected receipt date provide by product expected ship date.
-------------------------------------------------------------------------------------------------------------------------------
21. Ability to retrieve detailed package location of orders shipped by third
parties or distribution centers, e.g. provide a link to third party Web
page and locate the customer's order
-------------------------------------------------------------------------------------------------------------------------------
22. Ability to issue a trace on customer orders being shipped or returned
-------------------------------------------------------------------------------------------------------------------------------
23. Ability to change shipping method if order has not been fulfilled by
distribution center ("open" orders)
-------------------------------------------------------------------------------------------------------------------------------
24. Ability to automatically generate ship confirmation and send via email,
fax, or letter with order #, quantity, ship address, expected ship date
and receipt date
-------------------------------------------------------------------------------------------------------------------------------
25. Ability to assign customers "loyalty points" based upon purchases
-------------------------------------------------------------------------------------------------------------------------------
26. Ability to be configured to automatically generate a follow-up letter
based upon order type and order status
-------------------------------------------------------------------------------------------------------------------------------
27. Ability to process returns and exchanges
-------------------------------------------------------------------------------------------------------------------------------
28. Ability to enter time frames for bill to and ship to address
information
-------------------------------------------------------------------------------------------------------------------------------
29. Ability to support digitized product images
-------------------------------------------------------------------------------------------------------------------------------
30. Ability to add multiple item numbers to an order, e.g. open a shopping
chart
-------------------------------------------------------------------------------------------------------------------------------
31. Ability to retrieve detailed item/service information such as Graphical display is not in Start-up Services
viewing a graphical display of the item and detailed item/service
descriptions
-------------------------------------------------------------------------------------------------------------------------------
32. Ability to search for an item or service by campaign
-------------------------------------------------------------------------------------------------------------------------------
33. Ability to reserve multiple quantities of an item
-------------------------------------------------------------------------------------------------------------------------------
34. Ability to retrieve real time inventory information such as quantity
sold and quantity available - please explain how
-------------------------------------------------------------------------------------------------------------------------------
35. Ability to restrict purchases based on customer geographic location,
e.g. message box "Residential service not yet available for a VA or DC
resident"
-------------------------------------------------------------------------------------------------------------------------------
36. Ability to default to a continuity schedule depending on the item, e.g.
default to auto ship dates (every 30, 60 or 90), item quantity, and
amount of payment
-------------------------------------------------------------------------------------------------------------------------------
37. Ability to view installment plan schedules for each line item
---------------------------------------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 79 -
Exhibit 1A SI SOW
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
----------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
including number of payments, amount each payment and date due
----------------------------------------------------------------------------------------------------------------------------------
38. Ability to personalize order, e.g. enter a message to appear on the
order summary
----------------------------------------------------------------------------------------------------------------------------------
39. Ability to apply coupon discount to an order or line item by entering
the coupon number and automatically defaulting to the discount
(percentage or dollar amount)
----------------------------------------------------------------------------------------------------------------------------------
40. Ability to enter ad-hoc charges and credits This is required in the context of empowering
CSRs to modify commodity charges and credit
accounts based on business rules
----------------------------------------------------------------------------------------------------------------------------------
41. Ability to validate coupon based on specific restrictions such as customer
identification number, method of payment, item category and general
restrictions such as expiration date, invalid coupon number
----------------------------------------------------------------------------------------------------------------------------------
42. Ability to apply discounts to an order or individual line item
----------------------------------------------------------------------------------------------------------------------------------
43. Ability to enter reasons for applying credits to an account
----------------------------------------------------------------------------------------------------------------------------------
44. Ability to view the order price breakdown, e.g. view item cost Yes, but
multiple currency not required including tax and shipping, view price
breakdown in multiple currencies
----------------------------------------------------------------------------------------------------------------------------------
45. Ability to default to the last method of payment used by the customer,
e.g. credit card, check
----------------------------------------------------------------------------------------------------------------------------------
46. Ability to split the method of payment across multiple line items
----------------------------------------------------------------------------------------------------------------------------------
47. Ability to establish item specific payment restrictions, e.g. payable
with credit card only
----------------------------------------------------------------------------------------------------------------------------------
48. Ability to qualify customers for different payment plans:
deposit/pre-paid, installment, quarterly billing, etc.
----------------------------------------------------------------------------------------------------------------------------------
49. Ability to separate payments into installments based on the item being
sold and view a schedule including amount of payment, date due and
number of installments ("FlexPay" option)
----------------------------------------------------------------------------------------------------------------------------------
50. Ability to edit the auto pay schedule for continuity items
----------------------------------------------------------------------------------------------------------------------------------
51. Ability to settle payment at an item level or order level Banner allows the customer to direct the
application of his payment when paying via the
CSR. For payments received via mail, Banner
allows you to configure the payment application
rules
----------------------------------------------------------------------------------------------------------------------------------
Knowledge Management
----------------------------------------------------------------------------------------------------------------------------------
1. Ability to automatically and continuously gather info from
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 80 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
CUSTOMER CARE
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
internal sources i.e. continuously update a common knowledge
base so that the latest resolutions are available
----------------------------------------------------------------------------------------------------------------------------------
2. Ability to catalog and retrieve competitive, product, and Our understanding is that EMW will provide a
marketing information list of competitive information that can be
referenced by the CSR during sales and support
call. This information will be integrated in
the CSR scripting.
----------------------------------------------------------------------------------------------------------------------------------
3. Ability to display text search results by highest occurrence
----------------------------------------------------------------------------------------------------------------------------------
4. Ability to search based on:
----------------------------------------------------------------------------------------------------------------------------------
Word stems
----------------------------------------------------------------------------------------------------------------------------------
Synonyms
----------------------------------------------------------------------------------------------------------------------------------
Fuzzy searching
----------------------------------------------------------------------------------------------------------------------------------
5. Ability to capture customer questions in order to track most FAQ's,
e.g. enter customer question associated with a product or service
----------------------------------------------------------------------------------------------------------------------------------
Customer Satisfaction
----------------------------------------------------------------------------------------------------------------------------------
1. Ability to conduct customer surveys using branch scripting
----------------------------------------------------------------------------------------------------------------------------------
2. Ability to conduct automated customer surveys either for a random For "Go Live", required through the Web Site
customer group or targeted customer group via IVR or Web only (no IVR).
----------------------------------------------------------------------------------------------------------------------------------
Correspondence Fulfillment Box 3.2
----------------------------------------------------------------------------------------------------------------------------------
1. Capability for ink jet and laser jet printing and addressing
----------------------------------------------------------------------------------------------------------------------------------
2. Ability to receive customer information electronically
----------------------------------------------------------------------------------------------------------------------------------
3. Ability to perform custom literature kit assembly (if required) This is handled by CSR's manually in Start-up
Services
----------------------------------------------------------------------------------------------------------------------------------
4. Ability to perform mail request processing " "
----------------------------------------------------------------------------------------------------------------------------------
5. Ability to automatically retrieve detailed product or service " "
information and automatically fulfill literature requests via mail
----------------------------------------------------------------------------------------------------------------------------------
6. Ability to automatically retrieve detailed product or service " "
information and automatically fulfill literature requests via FAX
----------------------------------------------------------------------------------------------------------------------------------
7. Ability to automatically retrieve detailed product or service " "
information and automatically fulfill literature requests via e-mail
including automated sorting and merging capabilities
----------------------------------------------------------------------------------------------------------------------------------
8. Ability to manage mail returns, inaccuracies, and provide reporting of " "
such activities
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 81 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
USAGE MANAGEMENT FUNCTIONAL REQUIREMENTS
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
1. Ability to capture (via EDI exchange) usage history data about the
customer from the previous provider where available
----------------------------------------------------------------------------------------------------------------------------------
2. Ability to transmit (via EDI exchange) the usage history data of a
departing customer to the new provider or to UDC (depending on the
market rules)
----------------------------------------------------------------------------------------------------------------------------------
3. Ability to receive (via EDI exchange), validate, and store the usage
history data from UDC/LDC and NON-commodity service providers (if
applicable)
----------------------------------------------------------------------------------------------------------------------------------
4. Ability to receive (via EDI exchange) meter set-up and reference data
to validate and correctly process usage data
----------------------------------------------------------------------------------------------------------------------------------
5. Ability to resolve usage history data issues (such as unknown account,
history not received, invalid data) with UDC/LDC/Non-commodity service
providers
----------------------------------------------------------------------------------------------------------------------------------
6. Ability to provide commodity usage history data to load forecasting
applications of commodity/risk management
----------------------------------------------------------------------------------------------------------------------------------
7. Ability to provide usage history and current usage data to customer
intelligence to support customer segmentation, profiling and service
----------------------------------------------------------------------------------------------------------------------------------
8. Ability to provide usage data for value added informational Additional Required Functionality
features such as charts graphs and graphs on bill.
----------------------------------------------------------------------------------------------------------------------------------
9. Ability to install electricity meters at customer premises in
accordance with Meter Service Providers (MSP) rules and regulations
----------------------------------------------------------------------------------------------------------------------------------
10. Ability to track and report meter installation statistics
----------------------------------------------------------------------------------------------------------------------------------
11. Ability to track meter attributes
----------------------------------------------------------------------------------------------------------------------------------
12. Ability to receive meter installation data with UDC as per rules and
regulations
----------------------------------------------------------------------------------------------------------------------------------
13. Ability to track one or more meter per account
----------------------------------------------------------------------------------------------------------------------------------
14. Ability to read interval meters remotely (telephone, wireless) on daily
schedule
----------------------------------------------------------------------------------------------------------------------------------
15. Ability to read interval meters remoter (telephone, wireless) on
monthly schedule
----------------------------------------------------------------------------------------------------------------------------------
16. Ability to record usage & demand in intervals of no less than one hour
----------------------------------------------------------------------------------------------------------------------------------
17. Ability to perform usage validation per rules and regulations
----------------------------------------------------------------------------------------------------------------------------------
18. Ability to post validated usage to counterparties (such as UDC)
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 82 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
USAGE MANAGEMENT FUNCTIONAL REQUIREMENTS
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
per rules and regulations
----------------------------------------------------------------------------------------------------------------------------------
19. Ability to detect metering anomalies and dispatch MSP for repair if
needed
----------------------------------------------------------------------------------------------------------------------------------
20. Ability to replace/repair meter and communicate meter data to UDC per
rules and regulations
----------------------------------------------------------------------------------------------------------------------------------
21. Ability to track meter diagnostics by device type and by specific
device
----------------------------------------------------------------------------------------------------------------------------------
22. Ability to remove meter at the time of service termination as per rules
and regulations
----------------------------------------------------------------------------------------------------------------------------------
23. Ability to perform basic validation of UDC metered usage data. E.g.
- Date overlap
- Date gaps
- Usage out of tolerance compared to history
----------------------------------------------------------------------------------------------------------------------------------
24. Ability to resolve current usage data issues with UDC/LDC/Non-commodity
service providers
----------------------------------------------------------------------------------------------------------------------------------
25. Ability to provide current usage data to billing applications for
validation and bill calculation using the supported billing methods
----------------------------------------------------------------------------------------------------------------------------------
26. Ability to ensure the receipt of complete usage data for each period to
process billing cycles with minimum exceptions
----------------------------------------------------------------------------------------------------------------------------------
27. Ability to identify and alert the UDC/LDC/Non-commodity service
providers of their meter reading errors and exceptions
----------------------------------------------------------------------------------------------------------------------------------
28. Ability to provide commodity usage data for physical settlement
processing of commodities
----------------------------------------------------------------------------------------------------------------------------------
29. Ability to provide usage history data to billing presentation
applications
----------------------------------------------------------------------------------------------------------------------------------
30. Ability to make the usage data available for online information
service features support on the Web site
----------------------------------------------------------------------------------------------------------------------------------
31. Ability to obtain usage data of consumers who are not current customers
where permitted by regulation and where defined market data exchange
mechanisms exist
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 83 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
BILLING FUNCTIONAL REQUIREMENTS
(ENERGY SERVICE PROVIDER (ESP) CONSOLIDATED BILLING ASSUMED
UNLESS OTHERWISE STATED)
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
Commodity Billing - Highlighted requirements enable the likely Go Live
commodity products - Fixed Rate, 10% Off Fixed Tariff, and Green Power
(final product decision pending the new CEO's review of the marketing plan)
----------------------------------------------------------------------------------------------------------------------------------
1. Ability to receive UDC/LDC charges, including applicable taxes on
those charges
----------------------------------------------------------------------------------------------------------------------------------
2. Ability to perform basic validations (known customer/account/rate class)
----------------------------------------------------------------------------------------------------------------------------------
3. Ability to bill multiple commodities on one bill
----------------------------------------------------------------------------------------------------------------------------------
4. Ability to perform advanced validations (billed usage against
measurement data, date overlaps/gaps, tolerance vs. history based on
Rate Class, Account)
----------------------------------------------------------------------------------------------------------------------------------
5. Ability to bill commodity only at fixed rate plus UDC/LDC passthrough
----------------------------------------------------------------------------------------------------------------------------------
6. Ability to include customer charge in the fixed rate commodity only
billing
----------------------------------------------------------------------------------------------------------------------------------
7. Ability to include tiered volume changes (at least 3 tiers) in fixed
rate commodity only billing
----------------------------------------------------------------------------------------------------------------------------------
8. Ability to bill commodity only at index rate plus UDC passthrough
----------------------------------------------------------------------------------------------------------------------------------
9. Ability to include customer charges in the index rate commodity only
billing
----------------------------------------------------------------------------------------------------------------------------------
10. Ability to bill delivered commodity at fixed rate without passing
through UDC/LDC charges
----------------------------------------------------------------------------------------------------------------------------------
11. Ability to show UDC/LDC charges as details in fixed rate delivered
commodity bill and use them to derive tax on ESP charges with tax
neutrality
----------------------------------------------------------------------------------------------------------------------------------
12. Ability to include customer charges in fixed rate delivered commodity
bill
----------------------------------------------------------------------------------------------------------------------------------
13. Ability to include tiered volume charges (at least 3 tiers) in fixed
rate delivered commodity bill
----------------------------------------------------------------------------------------------------------------------------------
14. Ability to bill delivered commodity at index rate plus UDC passthrough
----------------------------------------------------------------------------------------------------------------------------------
15. Ability to include customer charge in the index rate delivered
commodity billing
----------------------------------------------------------------------------------------------------------------------------------
16. Ability to bill delivered commodity at fixed dollar amount
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 84 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
BILLING FUNCTIONAL REQUIREMENTS
(ENERGY SERVICE PROVIDER (ESP) CONSOLIDATED BILLING ASSUMED
UNLESS OTHERWISE STATED)
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
17. Ability to track a baseline volume amount associated with fixed dollar
delivered commodity
----------------------------------------------------------------------------------------------------------------------------------
18. Ability to bill fixed rate delivered commodity for difference between
actual and baseline usage (fixed dollar) on a periodic basis (annual or
termination)
----------------------------------------------------------------------------------------------------------------------------------
19. Ability to bill customer based on frozen utility tariff
----------------------------------------------------------------------------------------------------------------------------------
20. Ability to apply discounts to frozen-utility-tariff-based customer bill
----------------------------------------------------------------------------------------------------------------------------------
21. Ability to bill customer based on floating utility tariff
----------------------------------------------------------------------------------------------------------------------------------
22. Ability to apply discounts to floating-utility-tariff-based customer
bill
----------------------------------------------------------------------------------------------------------------------------------
23. Ability to track and resolve situations where UDC/LDC charges are
expected, but not were received
----------------------------------------------------------------------------------------------------------------------------------
24. Ability to resolve data issues with UDC/LDC
----------------------------------------------------------------------------------------------------------------------------------
25. Ability to provide reports on issues and status
----------------------------------------------------------------------------------------------------------------------------------
26. Ability to provide validated usage charges to Accounts Payable for UDC/LDC
settlement
----------------------------------------------------------------------------------------------------------------------------------
27. Ability to calculate and record ESP charges
----------------------------------------------------------------------------------------------------------------------------------
28. Ability to receive, validate and store market based indices and apply
them to bill calculation
----------------------------------------------------------------------------------------------------------------------------------
29. Ability to calculate and record applicable tax on ESP charges
----------------------------------------------------------------------------------------------------------------------------------
30. Ability to calculate all ESP charges on a tax-neutral basis
----------------------------------------------------------------------------------------------------------------------------------
31. Ability to pass-through UDC/LDC taxes and calculate ESP taxes by backing
into basis on delivered commodity (customer quoted combined price for
Transmission, Distribution and Commodity)
----------------------------------------------------------------------------------------------------------------------------------
32. Ability to ensure customers who are tax exempt are not assessed taxes
----------------------------------------------------------------------------------------------------------------------------------
33. Ability to calculate ESP charges when volumes are restated in prior
month based on then applicable product and price, and record a net
adjustment to the current month's bill.
----------------------------------------------------------------------------------------------------------------------------------
34. Ability to calculate ESP charges when price was incorrect and is
restated in prior month and record a net adjustment to the current
month's bill.
----------------------------------------------------------------------------------------------------------------------------------
35. Ability to reverse bill and new bill for volume or price adjustments
----------------------------------------------------------------------------------------------------------------------------------
36. Ability to validate UDC/LDC billed usage against measured usage for
that period captured in Usage Data Management
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 85 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
BILLING FUNCTIONAL REQUIREMENTS
(ENERGY SERVICE PROVIDER (ESP) CONSOLIDATED BILLING ASSUMED
UNLESS OTHERWISE STATED)
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
37. Ability to calculate amount due for each commodity based on ESP and UDC
charges with prior period adjustments
----------------------------------------------------------------------------------------------------------------------------------
38. Ability to provide amount due and charge detail to the bill
consolidation function
----------------------------------------------------------------------------------------------------------------------------------
39. Ability to provide summary data by product/other segments to Financial
Reporting
----------------------------------------------------------------------------------------------------------------------------------
40. Ability to provide data to support tax reporting and tax audit
----------------------------------------------------------------------------------------------------------------------------------
41. Ability to calculate credits/adjustments that are product specific
----------------------------------------------------------------------------------------------------------------------------------
42. Ability to ensure late fee rules are enforced (per state)
----------------------------------------------------------------------------------------------------------------------------------
43. Ability to pass-though in-line messages from UDC/LDC, EMW or other
partners
----------------------------------------------------------------------------------------------------------------------------------
44. Ability to charge an early termination fee
----------------------------------------------------------------------------------------------------------------------------------
45. Ability to charge for leased goods on the commodity bill (such as
electricity meter)
----------------------------------------------------------------------------------------------------------------------------------
46. Ability to charge for purchased goods on the commodity bill (such as
meters)
----------------------------------------------------------------------------------------------------------------------------------
47. Ability to apply recurring charge for metering related services on the
commodity bill (such as meter reading services, meter warranty services,
etc.)
----------------------------------------------------------------------------------------------------------------------------------
48. Ability to apply one-time charge for metering related services on the
commodity bill (such as meter replacement at customer expense)
----------------------------------------------------------------------------------------------------------------------------------
49. Ability to bill customer for each commodity under a different rate plan
----------------------------------------------------------------------------------------------------------------------------------
50. Ability to calculate bill based on cross-product pricing
----------------------------------------------------------------------------------------------------------------------------------
51. Ability to calculate incentives (shopping credit, frequent flyer miles, Web
$, etc.) tied to usage/bill amount
----------------------------------------------------------------------------------------------------------------------------------
52. Ability to check the `reasonableness' of charges against historic charges
----------------------------------------------------------------------------------------------------------------------------------
53. Ability to display comparative bill calculations - other ESP, Additional
Required Functionality Utilities, EMW standard rates and special
cost-savings plans
----------------------------------------------------------------------------------------------------------------------------------
54. Ability to flag abnormalities/fluctuations in the bill amount on the
bill
----------------------------------------------------------------------------------------------------------------------------------
55. Ability to do budget billing with annual true up
----------------------------------------------------------------------------------------------------------------------------------
56. Ability to do budget billing with flat dollar billing
----------------------------------------------------------------------------------------------------------------------------------
57. Ability to show the product name (e.g. Regular vs. Green pricing
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 86 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
BILLING FUNCTIONAL REQUIREMENTS
(ENERGY SERVICE PROVIDER (ESP) CONSOLIDATED BILLING ASSUMED
UNLESS OTHERWISE STATED)
EXPLANATION
----------------------------------------------------------------------------------------------------------------------------------
approach) on the bill
----------------------------------------------------------------------------------------------------------------------------------
58. Ability to bill customer only for the ESP charges and taxes (Dual
Billing model)
----------------------------------------------------------------------------------------------------------------------------------
59. Ability to provide ESP charges & taxes to 3rd party bill consolidators
such as UDC/LDC and `Thin aggregator' partners (UDC or 3rd Party
Consolidated Billing model)
----------------------------------------------------------------------------------------------------------------------------------
60. Ability to provide an ESP consolidated bill
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 87 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
NON-COMMODITY BILLING
----------------------------------------------------------------------------------------------------------------------------------
1. Ability to receive data from EMW operations or third party TO CALCULATE
CHARGES (for variable charge services based upon periodic `usage')
----------------------------------------------------------------------------------------------------------------------------------
2. Ability to be a `Thin aggregator' of billing and customer service to 3rd
party by including the determinants (usage or time periods) and 3rd party
calculated charges/taxes to pass through
----------------------------------------------------------------------------------------------------------------------------------
3. Ability to provide basic validation on data received (CUSTOMER/ACCOUNT
KNOWN, service established, reasonable usage based on history)
----------------------------------------------------------------------------------------------------------------------------------
4. Ability to flag situations where third party data expected but not
received
----------------------------------------------------------------------------------------------------------------------------------
5. Ability to provide data to Accounts Payable for 3rd party settlements
----------------------------------------------------------------------------------------------------------------------------------
6. Ability to resolve data issues with third party vendors
----------------------------------------------------------------------------------------------------------------------------------
7. Ability to provide reports on issues and status A limited set of reports will be provided
----------------------------------------------------------------------------------------------------------------------------------
8. Ability to calculate and record service charges based on determinants
(variable usage/price) and pass-through charges
----------------------------------------------------------------------------------------------------------------------------------
9. Ability to calculate charges based upon customer billing cycle (For
fixed charge services)
----------------------------------------------------------------------------------------------------------------------------------
10. Ability to calculate and record applicable tax on service charges
----------------------------------------------------------------------------------------------------------------------------------
11. Ability to provide data by product or other segments to Financial We can report by rate code, service type etc.
Reporting
----------------------------------------------------------------------------------------------------------------------------------
12. Ability to record adjustments and use them in the bill calculation Adjustments are reflected in the current bill.
----------------------------------------------------------------------------------------------------------------------------------
13. Ability to provide data for tax audit and tax reporting Report and pass through Tax information to your
G/L
----------------------------------------------------------------------------------------------------------------------------------
14. Ability to pass-though in-line messages Limited inline messaging (255 chars) per account
with an additional 255 chars available for
broadcast messages. Additionally the bill print
center can handle inserts.
----------------------------------------------------------------------------------------------------------------------------------
15. Ability to charge an early termination fee
----------------------------------------------------------------------------------------------------------------------------------
16. Ability to calculate a bill based on cross-product pricing
----------------------------------------------------------------------------------------------------------------------------------
17. Ability to calculate incentives (shopping credit, frequent flyer miles,
Web $, etc.) tied to usage/bill amount
----------------------------------------------------------------------------------------------------------------------------------
18. Ability to check the `reasonableness' of current charges against historic
charges
----------------------------------------------------------------------------------------------------------------------------------
19. Ability to display comparative bill calculations - other ESP, Utilities,
EMW standard rates and special cost-saving plans
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 88 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
20. Ability to flag abnormalities/fluctuations in the bill amount
----------------------------------------------------------------------------------------------------------------------------------
21. Ability to do budget billing with annual true up
----------------------------------------------------------------------------------------------------------------------------------
22. Ability to resell 3rd party merchandise as a "Merchant Aggregator' at
EMW price
----------------------------------------------------------------------------------------------------------------------------------
23. Ability to bill the customer for 3rd party merchandise using credit
card, bank debit or consolidated billing (on terms)
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 89 -
Exhibit 1A SI SOW
<PAGE>
<TABLE>
----------------------------------------------------------------------------- --------------------------------------------------
<S> <C>
Bill Consolidation
----------------------------------------------------------------------------- --------------------------------------------------
1. Ability to calculate consolidated current amount due, date due, and
invoice number based upon the customer's billing cycle with EMW
----------------------------------------------------------------------------- --------------------------------------------------
2. Ability to obtain current account balance and transactions since last
bill (payments, adjustments) from accounts receivable (A/R) system
----------------------------------------------------------------------------- --------------------------------------------------
3. Ability to show the total amount due with a summary charges by
commodity and NON-commodity services/products
----------------------------------------------------------------------------- --------------------------------------------------
4. Ability to show detail charges by commodity and NON-commodity
services/products to support total amount due
----------------------------------------------------------------------------- --------------------------------------------------
5. Ability to interface required data to A/R (customer, account, due date,
current amount due, and invoice number)
----------------------------------------------------------------------------- --------------------------------------------------
6. Ability to interface required data for initiation of payment Banner allows for recurring payments from
processing for credit card or automated debit. In such cases, credit card or automated debit. Billing advice
ability required to designate bill as `billing advice only' notice can be included with inline messaging
by account.
----------------------------------------------------------------------------- --------------------------------------------------
7. Ability to send a bill to receive payment if a customer does not have
prearranged payment method
----------------------------------------------------------------------------- --------------------------------------------------
8. Ability to send a non-invoice billing advice if a customer has a
prearranged automatic payment plan.
----------------------------------------------------------------------------- --------------------------------------------------
9. Ability to interface required data to physical or electronic bill
presentation based on customer billing method
----------------------------------------------------------------------------- --------------------------------------------------
10. Ability to support customer option to have the bill sent to a billing
address instead of their service address
----------------------------------------------------------------------------- --------------------------------------------------
11. Ability to apply discounts and incentives (e.g. Web invoice, referrals
credit) to a consolidated bill
----------------------------------------------------------------------------- --------------------------------------------------
12. Ability to group services into one or more consolidated bill to the
customer
----------------------------------------------------------------------------- --------------------------------------------------
13. Ability to customize messaging for cross-sell or up-sell
----------------------------------------------------------------------------- --------------------------------------------------
14. Ability to collect and group data for chart/graphs for Bill Additional Required Functionality
presentation
----------------------------------------------------------------------------- --------------------------------------------------
15. Ability to provide detailed data to accounts receivable (e.g. invoice
number, amount, date due, etc.)
----------------------------------------------------------------------------- --------------------------------------------------
16. Ability to provide data required for lockbox processing (indexed to zip
code)
----------------------------------------------------------------------------- --------------------------------------------------
17. Ability to provide data to support channel/alliance management (e.g.
how many customers, their monthly usage, their bill amounts, retention)
----------------------------------------------------------------------------- --------------------------------------------------
18. Daily status reports on bills processed per day, number of bills sent to
print shop, the dollar amount on processed bills sub-totaled
----------------------------------------------------------------------------- --------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 90 -
Exhibit 1A SI SOW
<PAGE>
by utility charge, commodity charge and total
----------------------------------------------------------------------------- --------------------------------------------------
19. Management reports: Bill processing, adjustment processing, invoice
accuracy, etc.
----------------------------------------------------------------------------- --------------------------------------------------
20. Ability to provide data for detailed financial analysis (e.g. amount
due, discounts, etc.)
----------------------------------------------------------------------------- --------------------------------------------------
21. Ability to download data to an ad-hoc reporting tool
----------------------------------------------------------------------------- --------------------------------------------------
22. Ability to include rebates to return the deposits held after a period
of time
----------------------------------------------------------------------------- --------------------------------------------------
23. Ability to support budget or levelized payments
----------------------------------------------------------------------------- --------------------------------------------------
24. Ability to allow the user to choose a billing cycle based on the day of
the month with system parameters that ensure adequate distribution
across bill cycles
----------------------------------------------------------------------------- --------------------------------------------------
25. Ability to support multi-language in bill presentation
----------------------------------------------------------------------------- --------------------------------------------------
26. Ability to support multi-currency - Canada and Mexico
----------------------------------------------------------------------------- --------------------------------------------------
27. Ability to notify customer of a bill via e-mail with a link to the EMW
Electronic Bill Presentation & Payment Web site
----------------------------------------------------------------------------- --------------------------------------------------
28. Ability to include an additional fee for the consolidated billing
option
----------------------------------------------------------------------------- --------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 91 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------- --------------------------------------------------
Electronic Bill Presentation & Payment
----------------------------------------------------------------------------- --------------------------------------------------
1. Ability to present an electronic bill via the Web site
----------------------------------------------------------------------------- --------------------------------------------------
2. Ability to transmit bill data to a third party bill consolidator if
required
----------------------------------------------------------------------------- --------------------------------------------------
3. Ability to include data from the UDC/LDC/3rd Party (such as a bill
stuffer) via a link to the 3rd party site or .pdf format
----------------------------------------------------------------------------- --------------------------------------------------
4. Ability to provide marketing/advertising offer information (via EMW
site or 3rd party site)
----------------------------------------------------------------------------- --------------------------------------------------
5. Ability to capture credit card data for a one time payment (assuming
that it has already been setup)
----------------------------------------------------------------------------- --------------------------------------------------
6. Ability to capture direct debit data for a one time payment (assuming
that it has already been setup)
----------------------------------------------------------------------------- --------------------------------------------------
7. Ability to provide lockbox information for customers wishing to mail
payments
----------------------------------------------------------------------------- --------------------------------------------------
8. Ability to display historical bills for 13 months
----------------------------------------------------------------------------- --------------------------------------------------
9. Ability to show an account activity summary
----------------------------------------------------------------------------- --------------------------------------------------
10. Ability to use an online help tool for bill explanation
----------------------------------------------------------------------------- --------------------------------------------------
11. Ability to send e-mails and instant chat messages for billing questions No instant chat in Quick-Start.
----------------------------------------------------------------------------- --------------------------------------------------
12. Ability for the customer to request a call back at a specific time
range and phone number
----------------------------------------------------------------------------- --------------------------------------------------
13. Ability to display bills in formats that are printable
----------------------------------------------------------------------------- --------------------------------------------------
14. Ability to display bills in formats that are downloadable (in
comma-separated, fixed length, etc)
----------------------------------------------------------------------------- --------------------------------------------------
15. Ability for the customer to customize the look and feel of the bill
----------------------------------------------------------------------------- --------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 92 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------- --------------------------------------------------
Physical Bill Presentation & Payment
----------------------------------------------------------------------------- --------------------------------------------------
1. Ability to print consolidated bill per EMW format
----------------------------------------------------------------------------- --------------------------------------------------
2. Ability to print multiple bill formats based on municipality and state
----------------------------------------------------------------------------- --------------------------------------------------
3. Ability to include UDC/LDC/3rd Party inserts as required
----------------------------------------------------------------------------- --------------------------------------------------
4. Ability to include marketing/advertising inserts as required by EMW
----------------------------------------------------------------------------- --------------------------------------------------
5. Ability to return electronic bill image for customer service
----------------------------------------------------------------------------- --------------------------------------------------
6. Ability to use US Mail, first class postage
----------------------------------------------------------------------------- --------------------------------------------------
7. Ability to provide bill re-print capability
----------------------------------------------------------------------------- --------------------------------------------------
8. Ability to charge the customer for bill re-prints
----------------------------------------------------------------------------- --------------------------------------------------
9. Ability to create and present charts and graphs of billing trends (e.g.
cumulative 13 month usage)
----------------------------------------------------------------------------- --------------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 93 -
Exhibit 1A SI SOW
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------- --------------------------------------------------
REMITTANCE PROCESSING AND COLLECTIONS FUNCTIONAL REQUIREMENTS
EXPLANATION
----------------------------------------------------------------------------- --------------------------------------------------
<S> <C>
Accounts Receivable
----------------------------------------------------------------------------- --------------------------------------------------
1. Ability to accept lockbox output and tie payments to an account and
invoice
----------------------------------------------------------------------------- --------------------------------------------------
2. Ability to accept automatic bank draft (ACH) data and tie payments to
an account and invoice
----------------------------------------------------------------------------- --------------------------------------------------
3. Ability to process credit card and check card payments and tie payments
to an account and invoice
----------------------------------------------------------------------------- --------------------------------------------------
4. Ability to process payment exceptions
----------------------------------------------------------------------------- --------------------------------------------------
5. Ability to record processed payments against accounts and recalculate
account balances (based on EMW cash application rules for partial or
overpayment)
----------------------------------------------------------------------------- --------------------------------------------------
6. Ability to apply policy for entry to collections program
----------------------------------------------------------------------------- --------------------------------------------------
7. Ability to generate traditional A/R Reporting (Aging, Days in A/R) to
provide details to collections
----------------------------------------------------------------------------- --------------------------------------------------
8. Ability to generate summary level A/R reports for EMW
----------------------------------------------------------------------------- --------------------------------------------------
9. Ability to apply policy for disconnect and provide data to Customer
Management for approval
----------------------------------------------------------------------------- --------------------------------------------------
10. Ability to provide A/R summary and detail reporting
----------------------------------------------------------------------------- --------------------------------------------------
11. Ability to provide general ledger (GL) reporting such as cash and
revenue
----------------------------------------------------------------------------- --------------------------------------------------
12. Ability to assess and process late payment fees
----------------------------------------------------------------------------- --------------------------------------------------
13. Ability to support and process contested charges
----------------------------------------------------------------------------- --------------------------------------------------
14. Ability to receive the payments from UDC (in the case of UDC
Consolidated Billing) and allocate the cash as per EMW policy
----------------------------------------------------------------------------- --------------------------------------------------
15. Ability to track A/R from 3rd party consolidator/aggregators
----------------------------------------------------------------------------- --------------------------------------------------
16. Ability to receive payments from 3rd party consolidators/aggregators
----------------------------------------------------------------------------- --------------------------------------------------
17. Ability to receive payments from customers of EMW `Thin Aggregator'
clients
----------------------------------------------------------------------------- --------------------------------------------------
18. Ability to receive service fee from EMW `Thin Aggregator' clients
----------------------------------------------------------------------------- --------------------------------------------------
19. Ability to account for invoice revenue by type of charge - pass-thru,
tax, service (Cash Accounting)
----------------------------------------------------------------------------- --------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 94 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------- --------------------------------------------------
Collections
----------------------------------------------------------------------------- --------------------------------------------------
1. Ability to accept traditional detailed A/R reports such as aging and
past due accounts to prepare for applying the EMW collection policy
----------------------------------------------------------------------------- --------------------------------------------------
2. Ability to record processed collected payment against accounts and
recalculate account balance
----------------------------------------------------------------------------- --------------------------------------------------
3. Ability to generate collection letters based on the EMW collection
policy
----------------------------------------------------------------------------- --------------------------------------------------
4. Ability to generate call lists based on the EMW collection policy
----------------------------------------------------------------------------- --------------------------------------------------
5. Ability to contact overdue customers and record results of the customer
contacts
----------------------------------------------------------------------------- --------------------------------------------------
6. Ability to receive payments from customers
----------------------------------------------------------------------------- --------------------------------------------------
7. Ability to create payment plans, if necessary, for a customer and track
plan through to A/R
----------------------------------------------------------------------------- --------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 95 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------- --------------------------------------------------
Accounts Payable
----------------------------------------------------------------------------- --------------------------------------------------
1. Ability to provide data to drive periodic payments to UDCs
----------------------------------------------------------------------------- --------------------------------------------------
2. Ability to provide data to drive periodic payments to other 3rd party
providers
----------------------------------------------------------------------------- --------------------------------------------------
3. Ability to generate one-time payment requests
----------------------------------------------------------------------------- --------------------------------------------------
4. Ability to generate periodic payment requests Will pass the data to your Financial system for
it to service
----------------------------------------------------------------------------- --------------------------------------------------
5. Ability to obtain approval from EMW to make payments to UDC/LDC Same as above.
and 3rd parties
----------------------------------------------------------------------------- --------------------------------------------------
6. Ability to make payments to UDC/LDC and 3rd parties.
----------------------------------------------------------------------------- --------------------------------------------------
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 96 -
Exhibit 1A SI SOW
<PAGE>
----------------------------------------------------------------------------- --------------------------------------------------
Reconciliation
----------------------------------------------------------------------------- --------------------------------------------------
1. Ability to reconcile customer payments (via lock box, credit cards, EFT)
to customer accounts and invoices
----------------------------------------------------------------------------- --------------------------------------------------
2. Ability to communicate and resolve reconciliation errors with the
customer via web or telephone
----------------------------------------------------------------------------- --------------------------------------------------
3. Ability to reconcile customer commodity usage and UDC/LDC settlement
payments (ESP Consolidated billing)
----------------------------------------------------------------------------- --------------------------------------------------
4. Ability to reconcile settlement payments received from UDC/LDC/3rd
party aggregators to ESP charges (UDC or 3rd party consolidated billing)
----------------------------------------------------------------------------- --------------------------------------------------
5. Ability to reconcile customer payments for 3rd party
services and payments to 3rd party services (`Thin
Aggregator' model)
----------------------------------------------------------------------------- --------------------------------------------------
6. Ability to resolve reconciliation errors with other business partners
electronically (using EDI, XML or other techniques)
----------------------------------------------------------------------------- --------------------------------------------------
</TABLE>
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 97 -
Exhibit 1A SI SOW
<PAGE>
APPENDIX B DELIVERABLE REVIEW AND SIGN-OFF PROCEDURE
Each deliverable document, as defined in Appendix A - Deliverable
Guidelines, will be accepted in accordance with the following procedure:
- One (1) printed draft of the deliverable document will be submitted
to the EMW Contract Executive. Each deliverable will contain a list
of contributors.
- It is the EMW Contract Executive's responsibility to make and
distribute additional copies to any other reviewers.
- Within two (2) business days the EMW Contract Executive will either
accept the deliverable or provide the IBM Contract Executive a
written list of requested changes. If no response from the EMW
Contract Executive is received within two (2) business days. Then
the deliverable shall be deemed accepted.
- IF a written list of requested changes is received within two (2)
business days, the IBM Contract Executive will make the appropriate
revisions and will, within two (2) business days, re-submit the
updated final version to the EMW Contract Executive. When IBM has
completed the agreed upon changes, the document will be deemed
accepted.
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page - 98 -
Exhibit 1A SI SOW
<PAGE>
Exhibit 1.B
Statement of Work
Steady State Services
1.0 INTRODUCTION
This Exhibit 1.B describes the Services, duties and responsibilities of IBM and
EMW related to IBM's provision of the Steady State Services. IBM will provide
the Steady State Services in accordance with the Agreement (including the
descriptions contained in this Exhibit 1.B, the Service Levels specified in
Exhibit 5 and the Procedures Manual). The terms and conditions of the
Information Technology Services Agreement between IBM and EMW of this date shall
apply, unless specifically referred to as superceded herein, to the scope and
deliverables to be provided under this Statement of Work ("SOW"). Changes to any
of the Steady State Services set forth in this Exhibit 1.B will be handled in
accordance with the Change Control Procedures in Exhibit 8.
2.0 DEFINITIONS
All capitalized terms used and not defined in this Exhibit 1 shall have the
meaning defined in the Agreement and the Exhibits.
a) "Abandoned Call" means that a caller reached the ACD queue, but hangs up
before reaching an CSR.
b) "After Contact Work (ACW)" means the work that CSRs or Senior CSRs perform
that is necessitated by and immediately follows an inbound or outbound
transaction or precedes an outbound transaction. ACW may include entering
data, filling out forms and making outbound contacts necessary to complete
the transaction. While performing this work, the CSR or Senior CSR is
unavailable to make or receive another contact.
c) "CSR Available Time" means the total time that a CSR or CSR group is
available to handle contacts for a given time period. Refers to how much
time CSRs were available to respond to Contacts during their shifts,
including the time spent handling Contacts, ACW time, and the time spent
waiting for Contacts to arrive also called Availability.
d) "CSR Minute" shall have the meaning defined in Exhibit 4.
e) "CSRs" means person(s) employed by or subcontracted by IBM to provide the
Customer Acquisition, Customer Care.
f) "Automatic Call Distributor (ACD)" means the specialized programmable
telephone system that automatically answers calls, queues calls,
distributes calls to CSRs, plays delay announcements to callers and
provides real-time and historical reports on these activities.
g) "Contact", which is also called Transaction and Customer Contact, refers to
telephone calls, voice mail messages, electronic mail, web calls and other
types of contacts.
h) "Customer Contact Center" means a Designated IBM Service Location staffed
with CSRs.
i) "Customer Information System" ("CIS") means the system that performs
customer relationship management functions (e.g.,Clarify, and SCT Banner).
j) "UDC Service Transaction " means an electronic transaction which is used to
communicate with each of the UDCs. There are three types of UDC Service
Transactions: (1) a connect UDC Service Transaction used by EMW to inform
an UDC that a customer wants to switch to another utility; (2) a change UDC
Service Transaction which can be initiated by either EMW or an UDC if a
customer changes any information such as name or billing address; and (3) a
disconnect UDC Service
IBM Confidential May 12, 2000 Page 1
Exhibit 1.B Steady State Services
<PAGE>
Transaction which is initiated by either EMW or an UDC to indicate that a
customer is no longer supplied by EMW.
k) "Interactive Voice Response (IVR)" means a software application that
accepts a combination of voice telephone input and touch-tone keypad
selection and provides appropriate responses in the form of voice,
callback, and other media.
l) "Monitoring" means the process of reviewing (listening or reading) to CSRs'
contacts with consumers for the purpose of maintaining quality. Call
monitoring can be silent, where CSRs don't know when they are being
monitored; side by side, where the person monitoring sits next to the CSR
and observes calls; or record and review, where calls are recorded and then
later played back and assessed, either locally or remotely.
m) "Remittance" is defined as the process of receiving payment from a customer
and posting that payment to a EMW bank account and recording the payment on
the customer's account in the CIS.
n) "Script" means the dialogue that a caller hears when calling into the IVR
and the written dialogue that a CSRs will use to respond to inbound calls
and making outbound calls, in each case as approved by EMW.
o) "Utility Distribution Company" ("UDC") means the entities which provide
regulated services for the distribution and delivery of gas and electricity
to customers and serve customers who do not choose direct access.
3.0 PROJECT OFFICE
IBM will maintain a project office under the direction of the IBM Contract
Executive who will provide day-to-day management of the Steady State Services.
The project office will also function as the point of contact for any EMW
questions concerning Steady State Services.
IBM will establish a technical team whose role will be to coordinate all aspects
of the technical operations and support related to the Steady State Services.
Such team will participate in the operations, change management, problem
management and performance review meetings.
The Project Office Steady State Services performed at the Customer Contact
Center will include:
a) Assisting EMW with the documenting of inbound "Customer Acquisition" Script
flow and Script language, including assisting with EMW's advertising
message through customer contact Scripts;
b) Assisting EMW with the coordination of input and output of files and
reports between EMW's Advertising Agency and the Customer Contact Center in
accordance with the Procedures Manual;
c) The development of implementation processes necessary to support "Customer
Acquisition" activities and interfaces at the Customer Contact Center;
d) Creating and maintaining, with input from EMW, various documentation and
reports to include:
1. The Procedures Manual - which will include EMW's business rules and IBM
procedures for operating the Customer Contact Center, bill print, mail and
Remittance, development and maintenance of Scripts, processes to implement
new marketing campaigns, processes associated with each customer access
channel and alliance partner interfaces (telephone, electronic mail, Internet
forms), API's and change and problem management as approved by EMW;
2. Defining report formats, content, time schedules and distribution lists;
3. Documenting outbound fulfillment requirements and processes;
4. Documenting advertising campaign interfaces and processes to support EMW's
advertising objectives;
5. Documenting CSRs training curricula;
6. Defining and documenting quality assurance processes, and
IBM Confidential May 12, 2000 Page 2
Exhibit 1.B Steady State Services
<PAGE>
7. Maintaining version control of documentation.
e) Participating in the Operational Planning and Forecasting Process.
5.0 OPERATIONAL SERVICES
a) INFRASTRUCTURE SUPPORT
IBM will provide and maintain on an going basis the IBM Software and Machines
necessary to provide the Steady State Services in accordance with the Agreement
(including the Service Levels Exhibit), including the:
1. management, operations and maintenance of the network connectivity between
the internet and the Service Locations.
2. performance of application maintenance and support for the IBM Software;
including defect identification and fixes, and installation of those fixes
and updates, on a mutually agreeable schedule provided by the software
vendor; and
3. performance of Machine upgrades and management of Machine modifications,
on a mutually agreeable schedule.
b) CUSTOMER CONTACT CENTER
IBM will train, staff and manage CSRs to perform Customer Acquisition and
Customer Care at the Customer Contact Center in accordance with this Exhibit and
the Procedures Manual.
The Customer Contact Center will be operational during the hours of 7:00 AM to
9:00 PM local time in markets served by EMW seven (7) days a week (holidays will
be agreed to and specified in the Procedures Manual). During all other hours a
caller will hear an IVR recording advising them of the operational hours and
asking them to call back, leave a voicemail message, send an electronic mail
message to a specified address. or refer them to the appropriate Internet web
page. As of the Commencement Date, English will be the only language supported
by the Customer Contact Center. Spanish and other language support in the
Contact Center will be added at a time mutually agreed upon between IBM and EMW.
IBM will manage the Customer Contact Center in order to provide Customer
Acquisition and Customer Care Services, including:
1. Recruit and provide CSRs to accomplish Customer Acquisition and Customer
Care activities;
2. CRSs shall be dedicated to EMW;
3. Train CSRs to answer frequently asked questions and to provide required
Services;
4. Schedule and manage staffing of CSRs to perform activities according to the
hours of operation specified in the contract;
5. Process inbound and outbound Contacts in support of EMW's natural gas and
electric commodity and non-commodity products and services to residential and
small commercial customers. These products and services will be implemented on
or after the Commencement Date after IBM and EMW agree to the relevant service
and supporting processes;
6. Send connect UDC Service Transactions to and from the UDC's for each
acquired residential customer who has passed the credit check process and for
each acquired customer;
7. Obtain third party verification as required by EMW business rules;
8. Collect marketing campaign sourcing information, all UDC Service
Transactions and credit check required fields, product related information,
customer contact/address and disposition information for each new customer
acquired;
9. Process outbound change UDC Service Transactions and disconnect UDC Service
Transactions for customers as required;
IBM Confidential May 12, 2000 Page 3
Exhibit 1.B Steady State Services
<PAGE>
10. Provide the required technology for the Customer Contact Center, including
a telecommunication system and Internet capability daily operations and backup
recovery;
11. Provide an integrated IVR system to deliver promotional and outage
information screen calls and sort customer needs, as well as provide EMW's
disclaimer information and taping/monitoring disclaimers, 24 hours a day seven
days a week. In addition, the IVR system will inform consumers of alternate of
means of accessing EMW, including Website location and electronic mail
addresses, during high call volume periods;
12. Initiate a credit check for each acquired residential customer via a
real-time interface to the credit service agency. The credit service agency will
return a credit score for each customer which will be entered into the CIS
system (a pass/fail score will be defined by EMW and included in the Procedures
Manual); a credit rejection notice will be sent to each of the customers who
fail the credit check;
13. Respond to general inquiry contacts (such as answering questions related to
service, billing upgrades and downgrades, changes in the services delivered by
EMW and reporting emergency situations) and when possible capture source and
basic customer information with escalation as needed per the Procedures Manual;
14. Categorize and follow complaint call handling and escalation processes for
customers as defined by EMW and set forth in the Procedures Manual; and
15. Provide toll free numbers to EMW in support of its Customer Acquisition and
Care efforts as defined by EMW and set forth in the Procedures Manual.
c) BILL GENERATION, PRINT AND MAIL
IBM WILL:
1. Provide,as a Pass Thru charge, all stationary, envelopes and applicable
collateral materials relevant to preparing bill related correspondence to EMW
customers;
2. Produce the bill extract file on the scheduled cycle date(s) (including
appropriate taxes);
3. Provide bill printing and mailing on the scheduled weekly cycle dates(s)
using one bill format consisting of 1 page duplexed;
4. Laser print the bill;
5. Insert the bill, a windowed business reply envelope, UDC mandated
materials and marketing materials into a standard window envelope;
6. Mail the bill;
7. When required, present billing information on web-site via e mail,
electronic bill formats on the EMW website or the agreed upon specifications
of an EMW business partner;
8. Provide handling and correction of returned mail; and
9. When required, bill to appropriate credit card.
d) REMITTANCE
IBM will:
1. Provide daily Remittance processing at an IBM designated location;
2. Collect mail from the designated postal facilities for processing and
deposit;
3. Open and sort mail and its contents;
4. Scan Remittance slips, capturing critical fields of data for daily
accounts receivable updates which will be sent to the CIS as a daily payments
interface on a mutually established schedule;
IBM Confidential May 12, 2000 Page 4
Exhibit 1.B Steady State Services
<PAGE>
5. Prepare and deposit remittances into the EMW designated bank account at
the lock box location on a mutually agreed schedule. Transfer funds to an EMW
designated account on a mutually agreed schedule;
6. Provide detailed information for EMW regarding taxes invoiced to and
received from customers to support EMW's remittance of the appropriate taxes
to the appropriate local jurisdictions; and
7. Provide for reconciliation of customer receivables, UDC settlements,
3rd Party receivables/payables, and EMW receivables.
e) COLLECTIONS
1. IBM will provide, as a Pass Thru charge, all stationary, envelopes and
applicable collateral materials relevant to preparing bill related
correspondence to EMW customers; and
2. IBM will conduct limited collection activities in accordance EMW
requirements as set forth in the Procedures Manual.
f) QUALITY ASSURANCE
IBM will implement "Quality Assurance" (QA) processes within the Customer
Contact Center for Contacts in accordance with the Procedures Manual.
g) MISCELLANEOUS
1. Provide ongoing support of Business Intelligence, Knowledge Management,
and operational business analysis.
2. Provide ongoing web-site hosting services including hardware platforms,
hardware support, and internet access to web-site.
6.0 REPORTS
IBM will provide EMW with reports in a form and frequency as agreed to in the
Procedures Manual during the initial measurement period, and containing the
information set forth below. IBM will provide standard reports from the IVR,
ACD, CRM and CIS System, and web-site.
Provide regularly scheduled weekly and other operational reports where content
and schedule are to be mutually developed by the Parties.
IBM will develop reports from the CIS and the telephony systems used by the
Customer Contact Center. Reports to be produced include:
a) Client Summary Report - total contacts broken down by complete, incomplete
and problem contacts for each of EMW's defined campaign codes;
b) Contact Response Report - number of calls offered, handled, abandoned,
average talk time minutes, average abandon times and service level;
c) Results Summary Report - provides customer contact dispositions for a day
or date range;
d) IBM and EMW will review the standard monthly reports provided as part of
the ACD and CIS products; and
e) IBM will provide a weekly status report identifying Customer Contact Center
related activities accomplishments, issues and next steps.
7.0 EMW RESPONSIBILITIES
EMW WILL:
a) Provide for use within the Customer Contact Center a description and
documentation of all departments of EMW and its relevant affiliates;
IBM Confidential May 12, 2000 Page 5
Exhibit 1.B Steady State Services
<PAGE>
b) Maintain an updated telephone book for all referral departments within EMW
and its relevant affiliates and provide a copy to IBM;
c) Define and maintain the credit management policy required to score any
customers prior to initiating the acquisition process;
d) Participate in the design of, and approval, Scripts, training curriculum,
and reporting;
e) Provide relevant analysis of competitive offers in the field; the necessary
support for this process will be communicated to IBM no later than two days
prior to the start of any relevant training classes;
f) Provide copies of all relevant marketing materials and messages for
inclusion in the training documentation; such materials will be prepared
and produced in at least two days prior to training of CSRs for a program;
EMW will participate in CSRs training programs as requested;
g) Provide all business rules for use by call center program developers and
CSRs; business rules include the processes, methodologies, "dos and
don'ts", and necessary functionality to properly represent EMW over the
telephone or through other contact media. EMW will provide IBM business
rules upon request in a timely manner in accordance with a mutually agreed
timeframe;
h) Provide the design and content of the correspondence and outbound
fulfillment packages to be handled by the Customer Contact Center (such as
welcome packages and welcome/rejection letter formats) on a mutually agreed
schedule;
i) Provide information regarding the submission of connect, change and
disconnect UDC Service Transactions for both the electric and gas commodity
products;
j) Provide required bill formats in advance according to the Procedures
Manual;
k) Include toll free numbers, source codes, and Internet addresses on all
designated direct mail pieces;
l) Provide input into the development of training material used to train CSRs
trainers and the CSRs;
m) Provide the credit service agency's credit scoring services, card
authorization and rending services, third party verification services, and
non-bill related fulfillment services; and
n) Perform its responsibilities in accordance with the Procedures Manual and
the Service Levels.
8.0 Charges
Exhibit 4 describes all of the Designated Fees with respect to the Steady State
Services.
IBM Confidential May 12, 2000 Page 6
Exhibit 1.B Steady State Services
<PAGE>
Exhibit 2
SCT
Banner Customer Information System
CLARIFY
Clarify Front Office Suite
ORACLE
Oracle Database
IBM Confidential May 12, 2000 Page 1
Exhibit 2
<PAGE>
Exhibit 2.A.
Attachments are license agreements which apply to Article 12
SCT Banner (Technical Currency Agreement, Software License and Services
Agreement)
Clarify (Software License and Maintenance Agreement)
BlueGill Technologies (Master Software License Agreement)
Oracle Corporation (Oracle License Agreement)
IBM Corporation:
Corepoint Telephony License Agreement
IBM Confidential May 12, 2000 Page 1
Exhibit 2.A
<PAGE>
Exhibit 3
Designated IBM Service Locations
Charlotte, North Carolina
Southbury, Connecticut
Dallas, Texas
IBM Confidential May 12, 2000 Page 1
Exhibit 3
<PAGE>
EXHIBIT 4
FEES, CPI ADJUSTMENT, AND TERMINATION FEES
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Section Title Page #
------- ----- ------
<S> <C> <C>
1.0 Introduction.....................................................2
2.0 Definitions......................................................2
3.0 Fees.............................................................2
3.1 Generally........................................................2
3.2 SI Services......................................................2
3.3 Software License Fees............................................3
3.4 Steady State Fees................................................3
3.5 Termination Fees.................................................3
4.0 Economic Change Adjustment.......................................4
5.0 Financial Assumptions............................................6
</TABLE>
IBM Confidential May 12, 2000 Page 1 of 10
Exhibit 4
<PAGE>
--------------------------------------------------------------------------------
1.0 INTRODUCTION
a. This Exhibit describes the methodology for calculating the Designated Fees
and Termination Fees. The Fixed Fees, the Variable Fees, the SI Services
Fees, Economic Change Adjustment, and any other charge provisions set forth
in the Agreement shall in the aggregate compensate IBM for its provision of
the Designated Services and the Termination Assistance Services.
b. Attached to this Exhibit is Section A-1, which lists the Fixed Fees, the
Variable Fees, the SI Services Fees and estimate of hours, Economic Change
Adjustment, Termination Fees, volume estimates and other applicable rates.
--------------------------------------------------------------------------------
2.0 DEFINITIONS
All capitalized terms used and not defined in this Exhibit 4 shall have the
meaning defined in the Agreement and the Exhibits.
a. ACTUAL INFLATION has the meaning set forth in Section 4.0 of this Exhibit.
b. BASE YEAR INDEX has the meaning set forth in Section 4.0 of this Exhibit.
c. CPI-U has the meaning set forth in Section 4.0 of this Exhibit.
d. CSR MINUTE means the amount of time a CSR (customer service representative)
is involved in customer Contact, or After Contact Work, including
responding to e-mail and follow-up
e. ECONOMIC CHANGE ADJUSTMENT and ECA have the meaning set forth in Section
4.0 of this Exhibit.
f. FIXED FEES means the fees described in Section 3.4(b) of this Exhibit.
g. SI SERVICES FEES has the meaning set forth in Section 3.2. of this Exhibit.
h. INFLATION SENSITIVITY has the meaning set forth in Section 4.0 of this
Exhibit.
i. SERVICE HOURS means for the Customer Contact Center Monday-Sunday,
7:00AM-9:00PM for all markets served; for the web site Monday-Sunday, 24
hours/day; and for other business services Monday-Friday excluding holidays
9:00AM-5:00PM.
j. SI SERVICES means the Start-up Services and the Full Functional Services,
collectively.
k. SI SOW means the SI Services Statement of Work described in Exhibit 1.
l. STEADY STATE FEES means the Fixed Fees and Variable Fees collectively.
m. TERMINATION FEES means the fees designated as Termination Fees in Section
A-1 to this Exhibit.
n. VARIABLE FEES means the fees described in Section 3.4(a) of this Exhibit.
--------------------------------------------------------------------------------
3.0 FEES
3.1 GENERALLY
a. Unless the Agreement expressly states otherwise, EMW is financially
responsible for all costs and expenses associated with its responsibilities
in the Agreement. The Fixed Fees, Variable Fees, SI Services Fees, and all
other charges expressly stated to be payable by EMW under the Agreement do
not include such costs and expenses.
b. All periodic charges will be computed on a calendar month basis unless the
Agreement expressly states otherwise.
3.2 SI SERVICES May 12, 2000 Page 2 of 10
Exhibit 4
<PAGE>
a. For IBM's performance of the SI Services, EMW will pay IBM for IBM's actual
hours expended weekly by person rounded to the nearest hour (30 minutes or
more will be rounded up to the next highest hour; less than 30 minutes will
be rounded down to the lower hour), in performing such Services multiplied
by the hourly service rates specified in Section A-1 (SI SERVICES FEES).
b. EMW will reimburse IBM for its reasonable expenses incurred in providing
the SI Services, including actual travel and living expenses in accordance
with the IBM travel and living policies, and if applicable, extended
customer engagement tax assistance. Except as otherwise included in the
Steady State Fees, IBM will not charge EMW for any IBM Machines utilized in
providing the Steady State Services.
c. IBM will invoice EMW for SI Services Fees as set forth in Article 16 of the
Agreement. As of the Effective Date, EMW has paid IBM *** in SI Services
Fees.
d. IBM presently estimates the total SI Services Fees for completing the
present scope of the SI SOW to be approximately ***. Given the normal
vicissitudes in implementing services of this nature over a similar time
period, the Parties anticipate that the total of these SI Services Fees may
vary from the original estimate. In the event the total SI Services Fees
for completing the present scope of the SI SOW is greater than *** (being
110% of the current estimate), IBM's fees for SI Services in excess of ***
will be reduced by ***. Alternatively, in the event the total SI Services
Fees for completing the present scope of the SI SOW is less than *** (being
90% of the current estimate), IBM will be entitled to an incentive payment
equal to *** of the difference between *** and the final total SI Services
Fees. The foregoing estimates will be adjusted as needed to accord with any
adjustments to the scope of the SI SOW.
3.3 SOFTWARE LICENSE FEES
IBM will invoice EMW for $10.2 million in respect of the license fees for the
Software products to be utilized in connection with the provision of the
Designated Services, as set forth in Section A-2 of this Exhibit. As of the
Effective Date, EMW has paid IBM *** for such license fees. All other charges
in respect to such license fees are included in the Steady State Fees.
3.4 STEADY STATE FEES
a. Variable Fees
IBM will invoice EMW for the Variable Fees (in accordance with the procedures
for the Steady State Fees in Article 16 of the Agreement), based upon the rates
set forth in Section A-1. The Variable Fees will be determined by the usage of
CSR Minutes, the actual number of customers, and the actual number of markets
entered.
b. Fixed Fees
IBM will invoice EMW for the Fixed Fees (in accordance with the procedures for
the Steady State Fees in Article 16 of the Agreement) at the rates set forth in
Section A-1.
3.5 TERMINATION FEES
a. If EMW terminates the Agreement early for its convenience, as set forth in
Section 23.01(1) (Termination for Convenience) of the Agreement, EMW will
pay IBM the applicable Termination Fees set forth in Section A-1.
b. If EMW terminates the Agreement as a result of the Benchmarking process, as
set forth in Section 8.05 (Benchmarking) of the Agreement, EMW will pay IBM
the applicable Termination Fees set forth in Section A-1 reduced by ***
c. If EMW terminates the Agreement for Change in Control, as set forth in
Section 23.02 (Termination for Change in Control) of the Agreement, EMW
will pay IBM the applicable Termination Fees set forth in Section A-1
reduced by ***.
3.2 SI SERVICES May 12, 2000 Page 3 of 10
Exhibit 4
<PAGE>
d. Within 30 days prior to the effective date of EMW's termination of the
Agreement pursuant to Section 23.01(1), 8.05 or 23.02, IBM will invoice EMW
for the applicable Termination Fees, which will be paid by EMW no later
than the effective date of such termination.
e. The Termination Fees set forth in Section A-1 will be prorated according to
the following formula:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------
TERMINATION FEE
PRORATION FORMULA
----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Prorated = [{(A-B) / 12 months} x C] + B
Termination Fee
----------------------------------------------------------------------------------------------------------------
A = The Termination Fee for the year in which termination is effective.
----------------------------------------------------------------------------------------------------------------
B = The Termination Fee for the year after the year in which termination is effective.
----------------------------------------------------------------------------------------------------------------
C = The number of months remaining during the year in which termination is effective.
-------------------------------------------------------------------------------------------------------------------
</TABLE>
4.0 ECONOMIC CHANGE ADJUSTMENT
a. IBM will calculate and apply an adjustment to the charges based upon
economic changes (an ECONOMIC CHANGE ADJUSTMENT or ECA) as described below
beginning in January 2001. The ECA will be payable on a prospective basis
(for example, the actual inflation for December 2000 will determine the ECA
for the year 2001) on the Steady State Fees and SI Services Fees payable by
EMW. The ECA will be determined as soon as practicable after the end of
each calendar year using the formula below (the ECA FACTOR).
b. IBM will invoice EMW for the ECA, if any, beginning in January 2001 and
monthly thereafter. Provided, however, EMW will not be responsible for the
ECA for the first 35,000 of SI Services hours in the year 2001.
c. EMW and IBM agree to use the December unadjusted Consumer Price Index, as
published in the Summary Data from the Consumer Price Index News Release by
the Bureau of Labor Statistics, US. Department of Labor, For All Urban
Consumers (CPI-U), for purposes of determining actual inflation. In the
event the Bureau of Labor Statistics stops publishing the CPI-U or
substantially changes its content and format, EMW and IBM will substitute
another comparable index published at least annually by a mutually
agreeable source. If the Bureau of Labor Statistics merely redefines the
base year for the CPI-U from 1982-84 to another year, EMW and IBM will
continue to use the CPI-U, but will convert the Base Year Index to the new
base year by using an appropriate conversion formula.
d. Actual Inflation
IBM will calculate the ECA by comparing the change in the year-to-year
CPI-U with the CPI-U for December 1999 (the BASE YEAR INDEX). For each
calendar year of the Term, the actual CPI-U for December before the year
for which the ECA is being calculated (ACTUAL INFLATION) will be compared
to the Base Year Index in Section A-1 (for example, the December 2000 CPI-U
will be used to determine the ECA for the year 2001). If Actual Inflation
is equal to or less than the Base Year Index, then no ECA is due. If,
however, Actual Inflation is greater than the Base Year Index, then IBM
will apply the ECA to the Fixed and Variable Fees due IBM for the year for
which IBM is calculating the ECA.
3.2 SI SERVICES May 12, 2000 Page 4 of 10
Exhibit 4
<PAGE>
e. Inflation Sensitivity
A percentage has been established that reflects the inflationary impact on
IBM's delivery of the Services (INFLATION SENSITIVITY). The Inflation
Sensitivity for the SI Services Fees is 100 percent. All other Fees have an
Inflation Sensitivity of 90%.
f. ECA Factor
The ECA is equal to the ECA Factor times the sum of the Steady State and SI
Services Fees due IBM for each month of the calendar year succeeding the
calendar year during which Actual Inflation is greater than the Base Year
Index. The ECA Factor is calculated as follows:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
ECA Factor
------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ECA Factor = [{(Actual Inflation - Base Year Index) / Base Year Index} x Inflation Sensitivity]
------------------------------------------------------------------------------------------------------------------
Actual = The CPI-U for the December before the calendar year for which the ECA
is being Inflation calculated.
------------------------------------------------------------------------------------------------------------------
Base Year Index = The CPI-U for December 1999.
------------------------------------------------------------------------------------------------------------------
Inflation = The portion of the Fees that are inflation sensitive, 100 % for SI Service Fees and 90%
Sensitivity for the Steady State Fees.
------------------------------------------------------------------------------------------------------------------
</TABLE>
g. ECA Calculation Example
1. The example below shows the calculation of the ECA based on the
following assumptions:
(a) An Effective Date in 2000;
(b) A Base Year Index of the CPI-U for December 1999;
(c) ECA calculation begins in January 2001;
(d) Inflation Sensitivity of 90 percent; and
(e) The following Actual Inflation examples:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------
ECA CALCULATION EXAMPLE
ACTUAL INFLATION EXAMPLES
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
BASE YEAR INDEX 2000 2001 2002 2003 2004
1999 = 163.90
------------------------------------------------------------------------------------
Actual Inflation 168.00 174.35 177.85 185.00 190
------------------------------------------------------------------------------------
</TABLE>
2. Example:
(a) There will be an ECA for calendar years 2001 through 2004 because
the Actual Inflation for the year preceding each year is greater than
the Base Year Index. To determine the ECA moneys due, using this
example, in addition to the other charges for February 2001, assume:
(i) The Fixed Fee for February is $1,000,000, and
(ii) Variable Fees of $50,000 are due for that month.
In this example the ECA would be calculated as follows:
3.2 SI SERVICES May 12, 2000 Page 5 of 10
Exhibit 4
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
ECA CALCULATION EXAMPLE
--------------------------------------------------------------------------------
<S> <C> <C>
ECA = {(Fixed Fee + Variable Fees) x ECA Factor}
--------------------------------------------------------------------------------
ECA = [{($1,000,000 + $50,000) x (174.35 - 163.90) / 163.90} x 0.90]
--------------------------------------------------------------------------------
ECA = $1,050,000 x {(10.45 / 163.90) x 0.90}
--------------------------------------------------------------------------------
ECA = $1,050,000 x (0.0637583 x 0.90)
--------------------------------------------------------------------------------
ECA = $1,050,000 x 0.0573
--------------------------------------------------------------------------------
ECA = $60,165.00
--------------------------------------------------------------------------------
</TABLE>
(b) The ECA for each month of each year in which the ECA is due is
calculated as above substituting the appropriate monthly Fees and the
ECA Factor based upon the actual information.
--------------------------------------------------------------------------------
5.0 FINANCIAL ASSUMPTIONS
a. IBM will provide the Services to EMW during the Service Hours.
b. 1 bill/month/customer.
c. Pass-thru charges will be billed at actual cost for the following: postage,
SI travel and living, credit card fees, credit check fees, collection
agency fees, stationery, envelopes and mailing inserts. However, others may
be added from time to time during the Term by agreement of the Parties.
d. All Services will be provided in the English language unless otherwise
stated in the Agreement.
3.2 SI SERVICES May 12, 2000 Page 6 of 10
Exhibit 4
<PAGE>
SECTION A-1
All items listed on this Section A-1 are expressed in dollars unless otherwise
specified in the Agreement. All years are calendar years beginning on January 1
at 0001 hours Eastern Standard Time and ending on December 31 at 2400 hours
Eastern Standard Time, except for the first year 2000, which is from the
Effective Date through and including December 31, and the last year of the Term,
which commences January 1, 2010 and terminates on the anniversary of the
Effective Date.
STEADY STATE FEES:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
FIXED FEES
------------------------------------------------------------------------------------------------------------------
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Fixed Fees per month* 1000 1000 1000 1000 1000 1000 1000 1000 1000 1000
($ in thousands)
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
</TABLE>
Note: The Fixed Fees will equal $1,000,000 per month, beginning June 1, 2000,
and will continue until the earlier of EMW reaching 1.8 million customers or $10
million per month in Steady State Fees received by IBM.
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
VARIABLE FEES
------------------------------------------------------------------------------------------------------------------
Rates in dollars 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue management: rate per *** *** *** *** *** *** *** *** *** ***
customer/year for traditional
customers (*)
------------------------------------------------------------------------------------------------------------------
Revenue management: rate per *** *** *** *** *** *** *** *** *** ***
customer/year for electronic
bill-only customers (*)
------------------------------------------------------------------------------------------------------------------
Revenue management: rate per *** *** *** *** *** *** *** *** *** ***
month for each new market
entered beginning with the
sixth market (price will vary
based on market complexity).
------------------------------------------------------------------------------------------------------------------
Customer care/acquisition: *** *** *** *** *** *** *** *** *** ***
rate per CSR Minute
------------------------------------------------------------------------------------------------------------------
(*) 1/12 billed monthly per
customer
------------------------------------------------------------------------------------------------------------------
</TABLE>
3.2 SI SERVICES May 12, 2000 Page 7 of 10
Exhibit 4
<PAGE>
TERMINATION FEES
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
TERMINATION FEES
------------------------------------------------------------------------------------------------------------------
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Termination Fees *** *** *** *** *** *** *** *** *** ***
($ in millions)
------------------------------------------------------------------------------------------------------------------
</TABLE>
Note: For purposes of a Termination for Convenience by Service Category,
these Fees will be apportioned 2/3 for customer care/acquisition and 1/3
for revenue management.
SI Services Fees
a. SI Services will be billed at the hourly rates specified below. The amounts
of hours and totals below are estimates.
1. Start-Up Services plus initial Full Functional Services
<TABLE>
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
SKILL CLASS 2000 HOURS 2000 2001 HOURS 2001 TOTALS
HOURLY SERVICE HOURLY
RATES SERVICE RATES
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C>
A 14,210 ***
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
B 18,830 ***
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
C 26,150 ***
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
D 14,130 ***
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
E 3,350 ***
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
***
Sub Total $
------------------- ----------------- ----------------- ----------------- ----------------- -----------------
</TABLE>
2. Balance of Full Functional Services
<TABLE>
------------------- ---------------- ----------------- ------------------ ----------------- -----------------
SKILL CLASS 2000 HOURS 2000 2001 HOURS 2001 TOTALS
HOURLY SERVICE HOURLY SERVICE
RATES RATES
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C>
A 9,240 *** 4,220 ***
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
B 28,400 *** 10,070 ***
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
C 35,950 *** 9,530 ***
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
D 50,020 *** 9,690 ***
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
E 6,630 *** 2,260 ***
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
***
Sub Total $
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
***
TOTAL
------------------- ---------------- ------------------ ----------------- ----------------- -----------------
</TABLE>
3.2 SI SERVICES May 12, 2000 Page 8 of 10
Exhibit 4
<PAGE>
b. The following is a description of some representative skills categories IBM
may provide as SI Services:
1. Skill Class A Project Leadership - Project Executive, Principal,
Executive Consultant.
2. Skill Class B Key Senior Staff - Project Manager, Senior Consultant,
Senior IT Architect, Senior Data Base Administrator, Senior Systems
Analyst.
3. Skill Class C Professional Staff - Consultant, IT Architect, Data Base
Administrator, Systems Analyst, Senior Team Lead, Senior
Programmer/Analyst.
4. Skill Class D Professional Staff - Programmer/Analyst, Team Lead.
5. Skill Class E Junior Staff - Associate Programmer/Analyst, Systems
Tester, Technical Writer.
VOLUME ESTIMATES
The following EMW estimates are provided for planning purposes only and are not
contractually binding and will not affect the Fees or SLAs:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
EMW ESTIMATES OF YEAR END CUSTOMER VOLUMES
------------------------------------------------------------------------------------------------------------------
Year End 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Number of Customers *** *** *** *** *** *** *** *** *** ***
(in thousands)
------------------------------------------------------------------------------------------------------------------
</TABLE>
It is estimated that CSR Minutes will average *** per customer per year.
3.2 SI SERVICES May 12, 2000 Page 9 of 10
Exhibit 4
<PAGE>
SECTION A-2
SI SOW SOFTWARE PRODUCTS:
- Bluegill
- Clarify
- Corepoint Telephony
- Net Commerce
- NT Operating System
- Oracle RDBMS
- SCT Banner
- Tivoli
- Unix Operating System
- Witness
3.2 SI SERVICES May 12, 2000 Page 10 of 10
Exhibit 4
<PAGE>
EXHIBIT 5
SERVICE LEVELS
1 GENERAL PROVISIONS
1.1 GENERAL
This Exhibit sets forth the agreement between the Parties relating to Critical
Services, Key Measurements and Critical Deliverables (as those terms are defined
below), against which IBM's performance will be measured. IBM shall perform the
Services as set forth in the Agreement at or above the Expected Service Levels
(as defined below). IBM shall perform the Services in a cost-effective manner,
using procedures and methods that are expected to result in continuous
improvement in IBM's level of performance throughout the Term.
ATTACHMENT SLA-1 sets forth the initial Key Measurements and Critical Services,
separated into the applicable Service Categories, and the Allocation Percentage
(as defined below) for each such Critical Service. ATTACHMENT SLA-1 also sets
the Critical Deliverables. For any Critical Service or Key Measurement where
there is not an agreed to service measurement as set forth on Attachment SLA-1,
or there is not an agreed to industry standard to be utilized, IBM will measure
and document IBM's actual performance for the first *** in the first Contract
Year and for subsequent Contract Years, IBM will measure and document IBM's
actual performance for ***. The Expected Service Level for such Critical Service
or Key Measurement shall be the average of such service measurements after
eliminating the highest and lowest months' numbers. The Minimum Service Level
for such Critical Service or Key Measurement will the lowest of the service
measurements achieved by IBM during such *** after eliminating the highest and
lowest months' numbers. In all cases, the Parties may mutually agree to adjust
an Expected Service Level or Minimum Service Level to address any anomalous
performance during the measurement period. EMW may, in EMW's reasonable
discretion, add or delete a Critical Service or Key Measurement in accordance
with the procedures set forth in this Exhibit. Pursuant to the Change Request
process set forth in the Agreement, the Parties may mutually agree in writing to
modify an Expected Service Level-or a Minimum Service Level after it is
established pursuant to this Exhibit.
IBM Confidential May 12, 2000 Page 1
Exhibit 5
<PAGE>
1.2 ATTACHMENTS
The following Attachments are referred to in this Exhibit:
- SLA-1 - Service Level Matrix, which details Expected Service Levels and
Minimum Service Levels for the Critical Services and Key Measurements
in each Service Category, the Critical Deliverables, and the allocation
percentages for Critical Services.
- SLA-2 - Service Level Measures, which contains the descriptions and
measurement procedures for Critical Services and Key Measurements.
1.3 REPORTING
Unless otherwise specified in this Exhibit, each Critical Service and Key
Measurement will be measured on a monthly basis ("SERVICE LEVEL REPORT"). IBM
shall provide, as part of IBM's monthly performance reports to EMW, a set of
hard-copy and soft-copy reports to verify IBM's performance and compliance with
the Critical Services, Key Measurements and Critical Deliverables. IBM shall
provide detailed supporting information for each report to EMW in
machine-readable form suitable for use on a personal computer.
1.4 DEFINITIONS
Capitalized terms used in this Exhibit and not defined in this SECTION 1.4 will
have the meaning set forth in the Agreement. In addition, the following terms
will have the meaning set forth below in this SECTION 1.4.
"ALLOCATION PERCENTAGE" means the percentage allocated to a Critical Service.
The sum of all Allocation Percentages will not exceed one hundred percent
(100%).
"AT RISK AMOUNT" means, for any calendar month during the Term and the
Termination Assistance Period, ten percent (10%) of the Fees for the applicable
Service Category paid to IBM for such month.
"CRITICAL DELIVERABLES" means those deliverables performed on a one-time basis
under the Agreement that are identified on ATTACHMENT SLA-1. Critical
Deliverables are not Critical Services.
"CRITICAL SERVICES" means the Services for which a Service Level Credit may be
payable by IBM to EMW in accordance with this Exhibit. Critical Services are
identified on ATTACHMENT SLA-1. Each Critical Service has an Expected Service
Level and a Minimum Service Level associated with it unless otherwise specified
in this Exhibit.
"CRITICAL SERVICE LEVEL WARNING REPORT" is defined in SECTION 1.11 of this
Exhibit.
"EARNBACK CREDITS" is defined in SECTION 1.6 of this Exhibit.
IBM Confidential May 12, 2000 Page 2
Exhibit 5
<PAGE>
"EXPECTED SERVICE LEVEL" means the desired level of performance for a Critical
Service or Key Measurement, as established in accordance with this Exhibit.
"EXPECTED SERVICE LEVEL FAILURE" means each month in any rolling twelve (12)
month period when IBM's level of performance for a particular Critical Service
fails to meet the Expected Service Level (but does not fail to meet the Minimum
Service Level) after IBM has failed to meet the Expected Service Level for that
Critical Service in three (3) or more consecutive months in such rolling twelve
(12) month period or any four (4) or more months in such rolling twelve (12)
month period.
"KEY MEASUREMENTS" means those areas of service level measurement for which no
Service Level Credit is payable, but which are meaningful to EMW's business and
require monthly measurement and reporting by IBM, as identified in ATTACHMENT
SLA-1.
"MINIMUM SERVICE LEVEL" means the level of performance of a Critical Service
below which a Minimum Service Level Failure will be deemed to occur, as
established in accordance with this Exhibit.
"MINIMUM SERVICE LEVEL FAILURE" means with respect to any Critical Service,
IBM's failure during any month to meet the Minimum Service Level for such
Critical Service.
"OVERALLOCATION PERCENTAGE" means ***.
"SERVICE LEVEL CREDITS" is defined in SECTION 1.5(a) of this Exhibit.
"SERVICE LEVEL FAILURE" means a Minimum Service Level Failure or an Expected
Service Level Failure.
"UNRELIEVED SERVICE LEVEL CREDITS" is defined in SECTION 1.6(c) of this Exhibit.
"YEARLY PERFORMANCE AVERAGE" is defined in SECTION 1.6(a) of this Exhibit.
1.5 SERVICE LEVEL CREDITS
(a) CALCULATION. Based upon the Expected Service Levels and Minimum Service
Levels established pursuant to this Exhibit (as modified in accordance
with this Exhibit), IBM shall calculate the credits that IBM shall
apply against the Fees (or, if the Agreement has expired or been
terminated, pay to EMW) in the event of a Service Level Failure
("SERVICE LEVEL CREDITS"). For each Service Level Failure, IBM shall
pay or credit to EMW, subject to the provisions of SECTION 1.6(c), a
IBM Confidential May 12, 2000 Page 3
Exhibit 5
<PAGE>
Service Level Credit that shall be computed in accordance with the following
formula:
SERVICE LEVEL CREDIT = A x B x C
Where:
A = the Allocation Percentage allocated to the Critical
Service with respect to which the Service Level Failure
occurs, as established pursuant to this Exhibit.
B = the At Risk Amount.
C = the Overallocation Percentage.
For example, assume that IBM fails to meet the Minimum Service Level
with respect to a Critical Service, as set forth on ATTACHMENTS SLA 1
AND SLA-2. Assume that IBM's Fees for that Service Category to which
such Critical Service is attributable, for the month in which the
Service Level Failure occurred were $100,000. Assume that the
Allocation Percentage for the Critical Service in which the Service
Level Failure occurred is twenty percent (20%). The Service Level
Credit due to EMW for such Service Level Failure would be computed as
follows:
A = 20% (i.e., the Allocation Percentage for the
particular Critical Service in that Service
Category),
A = $20,000
multiplied by the At Risk Amount
B = 10%
(i.e., ten percent (10%) of $20,000)multiplied by
C = ***
equals
*** (the amount of the Service Level Credit).
(b) MONTHLY SUM. If more than one Service Level Failure occurs in a single
month, the sum of the corresponding Service Level Credits shall be paid
or credited to EMW as set forth in this Exhibit.
(c) MONTHLY LIMIT. In no event shall the amount of Service Level Credits
paid or credited to EMW with respect to all Service Level Failures
occurring in a single month exceed, in total for that month for each
Service Category, the At Risk Amount for such Service Category.
IBM Confidential May 12, 2000 Page 4
Exhibit 5
<PAGE>
(d) CHANGES TO ALLOCATIONS. EMW may make changes to the Allocation
Percentage for one or more Critical Services, at EMW's sole discretion,
by sending notice to IBM at least thirty (30) days prior to the date on
which such new Allocation Percentage is to be effective. EMW may send
such a notice once each calendar quarter.
(e) REPORTING. In each monthly Service Level Report, IBM shall: (i) notify
EMW of any Service Level Credits to which EMW is entitled for that
month; (ii) describe any Service Level Failures which occurred during
that month and (iii) describe any failure to meet Key Measurements
which occurred during that month.
(f) INVOICES. The total amount of Service Level Credits that IBM is
obligated to pay or credit to EMW for any given month (subject to IBM's
earnback rights set forth in SECTION 1.6 below) shall be reflected on
the invoice for that month (e.g., the amount of Service Level Credits
(subject to IBM's earnback rights described in SECTION 1.6) with
respect to Service Level Failures occurring in August will be set forth
in the invoice for the August Fees issued in September). Although
Service Level Credits for each month will be reflected in IBM's monthly
invoice, the credits will be payable or credited to EMW on a Contract
Year basis as set forth in SECTION 1.6(c) below.
1.6 EARNBACK
(a) ANNUAL REPORT. In addition to the standard monthly Service Level
Reports, IBM shall provide to EMW, within thirty (30) days after the
end of each Contract Year, a report setting forth, at a minimum, the
following with respect to each Critical Service during the preceding
Contract Year:
(i) statistics on IBM's average monthly performance for each month
during the preceding Contract Year;
(ii) the twelve (12) month average of IBM's average monthly
performance for that Critical Service during the preceding Contract
Year ("YEARLY PERFORMANCE AVERAGE"); and
(iii) the total amount of Service Level Credits for the preceding
Contract Year for that Critical Service.
(b) YEARLY PERFORMANCE AVERAGE. If, during the preceding Contract Year, IBM
achieved a Yearly Performance Average in a Critical Service that was
equal to or greater than the Expected Service Level in effect for that
Critical Service for that Contract Year, IBM will be entitled to
receive earnback credit ("EARNBACK CREDIT") to offset all Service Level
Credits assessed for that Contract Year for Service Level Failures in
that Critical Service. In no event will: (i) the total amount of
Earnback Credits for any Contract Year exceed the total amount of
Service Level Credits for that Contract Year; or (ii) any Earnback
Credit carry forward to subsequent Contract Years or back to previous
Contract Years. The
IBM Confidential May 12, 2000 Page 5
Exhibit 5
<PAGE>
(c) Earnback Credit which may be used to offset Service Level Credits
assessed for Service Level Failures will be computed in accordance with
the following formula:
EARNBACK CREDIT = A x B x C
Earnback Credit = A x B x C
Where:
A = the Allocation Percentage allocated to the Critical
Service with respect to which the Service Level Failure
occurs, as established pursuant to this Exhibit.
B = the At Risk Amount.
C = the Overallocation Percentage.
For example, assume that IBM's Yearly Performance for a
particular Critical Service exceeds the Expected Service Level
with respect to such Critical Service. Assume that IBM's Fees
for that Service Category to which such Critical Service is
attributable, for the month in which the Service Level Failure
occurred were $100,000. Assume that the Allocation Percentage
for the Critical Service in which the Service Level Failure
occurred is twenty percent (20%). The Earnback Credit due to
would be computed as follows:
A = 20% (i.e., the Allocation Percentage for that
Critical Service in the applicable Service Category),
A = $20,000
multiplied by the At Risk Amount
B = 10%
(i.e., ten percent (10%) of $20,000),
multiplied by
C = ***
equals
*** (the amount of the Earnback Credit).
IBM Confidential May 12, 2000 Page 6
Exhibit 5
<PAGE>
(c) UNRELIEVED SERVICE LEVEL CREDITS. Within thirty (30) days after the end
of each Contract Year, IBM shall provide a report to EMW calculating
the Service Level Credits incurred for such Contract Year net of any
Earnback Credits ("UNRELIEVED SERVICE LEVEL CREDITS") and shall pay or
credit to EMW such Unrelieved Service Level Credits.
(d) MID-YEAR TERMINATION. If the Agreement is terminated prior to the end
of a Contract Year, the foregoing process (including the calculation of
Earnback Credits (if any)) will be undertaken with respect to the
portion of the Contract Year during which the Agreement was in effect.
(e) INTEREST. Service Level Credits that EMW is entitled to receive and
which IBM fails to pay or credit to EMW in accordance with this Section
will bear interest from the date due at the rate set forth in Section
16.04 of the Agreement.
1.7 ADDITIONS AND DELETIONS OF KEY MEASUREMENTS
(a) ADDITIONS. EMW may add one or more Key Measurements by notice to IBM at
least thirty (30) days prior to the date on which such additions to Key
Measurements are to be effective. EMW may not provide such notice more
than once each calendar quarter. EMW shall be responsible for the
actual incremental cost (if any) incurred by IBM to measure such new
Key Measurements. New Key Measurements shall be established in one of
the following ways:
(1) In the first Contract Year of the Term, where at least *** of
service measurements exist for a particular Service, (and in
subsequent Contract Years, where there are at least *** of
service measurements for a particular Service) (a) the
Expected Service Level for such Key Measurements shall be the
average of such service measurements for the measurement
period after eliminating the measurement numbers from the
highest and lowest months of the measurement period and (b)
the Minimum Service Level for such Key Measurements shall be
the lowest of such service measurements for the measurement
period after eliminating the highest and lowest months of the
measurement period; or
(2) Where there are not at least *** of service measurements for a
particular Service in the first Contract Year (or in
subsequent Contract Years, where there are not at least ***
of service measurements for a particular Service) IBM shall
measure and document IBM's actual performance for that Service
for *** in the first Contract Year and for subsequent Contract
Years, for ***. The Expected Service Level for such Key
Measurement shall be the average of such service measurements
after eliminating the service measurements from the
IBM Confidential May 12, 2000 Page 7
Exhibit 5
<PAGE>
highest and lowest months of the measurement period and the Minimum
Service Level for such Key Measurements shall be the lowest of such
service measurements for the measurement period after eliminating the
highest and lowest months of the measurement period.
(b) DELETIONS. EMW may delete one or more Key Measurement by notice to IBM
at least thirty (30) days prior to the date on which such deletions to
Key Measurements are to be effective. EMW may not send such a notice
more than once each calendar quarter.
1.8 ADDITIONS AND DELETIONS OF CRITICAL SERVICES
(a) ADDITIONS. EMW may add one or more Critical Service by notice to IBM at
least thirty (30) days prior to the date on which such additions to
Critical Services are to be effective (subject to any additional time
necessary to complete the measurements described in subsections (1) and
(2) below). EMW may not provide such notice more than once each
calendar quarter. EMW shall be responsible for the actual incremental
cost (if any) incurred by IBM to measure such new Critical Services.
EMW shall, in the case of additions of Critical Services, modify the
Allocation Percentages for one or more Critical Service in accordance
with and subject to the limitations of SECTION 1.5(d) such that the
total Allocation Percentages for all Critical Services equals one
hundred percent (100%). The Expected Service Levels and Minimum Service
Levels for new Critical Services shall be established in one of the
following ways:
(1) In the first Contract Year, where at least *** of service
measurements exist for a particular Service, (and in
subsequent Contract Years , where there are at least *** of
service measurements for a particular Service) (a)the Expected
Service Level for such Critical Service shall be the average
of such service measurements for the measurement period after
eliminating the measurement numbers from the highest and
lowest months of the measurement period and (b) the Minimum
Service Level for such Critical Service shall be the lowest of
such service measurements for the measurement period after
eliminating the highest and lowest months of the measurement
period; or
(2) Where there are not at least *** of service measurements for a
particular Service, in the first year of the Term, (or in
subsequent years of the Term, where there are not at least ***
of service measurements for a particular Service) IBM will
measure and document IBM's actual performance for that Service
for *** in the first Contract Year and for subsequent Contract
Years, for ***. The Expected Service Level for such Critical
Service shall be the average of such service measurements for
the measurement period after eliminating the service
measurements from the highest and lowest months of the
measurement period and the Minimum
IBM Confidential May 12, 2000 Page 8
Exhibit 5
<PAGE>
Service Level for such Critical Service shall be the lowest of
such service measurements for the measurement period after
eliminating the highest and lowest months of the measurement
period.
(b) DELETIONS. EMW may delete one or more Critical Service by notice to IBM
at least thirty (30) days prior to the date on which such deletions to
Critical Services are to be effective. EMW may not provide such notice
more than once each calendar quarter. EMW shall, in the case of
deletions of Critical Services, modify the Allocation Percentages in
accordance with and subject to the limitations of SECTION 1.5(d) for
one or more of the Critical Services such that the total Allocation
Percentages for all Critical Services equals one hundred percent
(100%).
(c) EFFECT ON EARNBACKS. The deletion or modification of a Critical Service
in accordance with the procedures set forth in this Exhibit shall not
affect any Service Level Credits incurred by IBM, any Earnback Credits
which have been earned by IBM which have been earned by IBM, in each
case with respect to that Critical Service prior to the effective date
of the deletion or modification.
1.9 CRITICAL DELIVERABLES
Certain of IBM's obligations under the Agreement shall be one-time obligations
to deliver Critical Deliverables. Critical Deliverables may include credits that
shall be payable by IBM to EMW in the event IBM fails to deliver any such
Critical Deliverables ("DELIVERABLE CREDITS") within the agreed upon time
period. The Critical Deliverables as of the Effective Date are set forth on
ATTACHMENT SLA-1. The Parties may by agreement add additional Critical
Deliverables. Imposition of Deliverable Credits shall not be included in the
calculation related to the At Risk Amount set forth in SECTION 1.5(c) of this
Exhibit. The total amount of Deliverable Credits that IBM is obligated to pay or
credit to EMW for any given month will be reflected on the invoice that contains
Fees for the month during which such Deliverable Credits were incurred by IBM
(e.g., the amount of Deliverable Credits for failure to deliver any Critical
Deliverable(s) in August will be set forth in the invoice for August charges
issued in September). Unlike Service Level Credits, Deliverable Credits shall be
shown in each monthly invoice as an actual credit and will not be subject to any
earnback pursuant to SECTION 1.6 or otherwise.
1.10 CONTINUOUS IMPROVEMENT--CRITICAL SERVICES AND KEY MEASUREMENTS
The Parties shall, on an annual basis, agree upon modifications to the Expected
Service Levels and Minimum Service Levels to reflect continuous improvement,
including any Critical Services or Key Measurements for which IBM's performance
is consistently above the applicable Minimum Service Level or Expected Service
Level then in effect.
IBM Confidential May 12, 2000 Page 9
Exhibit 5
<PAGE>
1.11 IMPROVEMENT PLANS FOR CRITICAL SERVICES
If any measurement of performance with respect to a Minimum Service Level
indicates that IBM's performance is more than ten percent (10%) below such
Minimum Service Level, IBM shall provide to EMW a written report ("CRITICAL
SERVICE LEVEL WARNING REPORT") as well as a plan to meet the Minimum Service
Level. IBM shall promptly implement such plan. IBM shall then provide to EMW
monthly status reports with progress updates until such time as IBM achieves
compliance with the Minimum Service Level. In addition, if IBM fails to meet any
Minimum Service Level for two (2) consecutive months, IBM shall provide to EMW a
written plan for improving IBM's performance so as to meet the Minimum Service
Level within thirty (30) days after IBM's failure to so meet the Minimum Service
Level. IBM shall promptly implement such plan. IBM shall then provide to EMW
monthly status reports with progress updates until such time as IBM achieves
compliance with the Minimum Service Level.
1.12 IMPROVEMENT PLAN FOR KEY MEASUREMENTS
If IBM fails to meet any Key Measurement for three (3) consecutive months, IBM
shall provide to EMW a written plan for improving IBM's performance so as to
satisfy the Key Measurement within thirty (30) days after IBM's failure to
perform the Key Measurement. IBM shall promptly implement such plan. IBM shall
then provide to EMW monthly status reports with progress updates until such time
as IBM achieves compliance with the Key Measurement.
1.13 MEASUREMENT AND MONITORING METHODOLOGIES
The measurement and monitoring methodologies to be used by IBM will be agreed
upon by IBM and EMW within sixty (60) days after the Effective Date. If, after a
measurement and monitoring methodology has been approved, IBM desires to use a
different measurement and monitoring methodology for a Critical Service or Key
Measurement, IBM will provide notice to EMW, in which event the Parties will
reasonably adjust the measurements as necessary to account for any increased or
decreased sensitivity in the new measurement and monitoring methodology;
provided, however, that if the Parties cannot agree on the required adjustment,
IBM will continue to use the measurement and monitoring methodology initially
agreed upon by the Parties. The Parties do not anticipate that changes in the
measurement and monitoring methodologies will result in changes in Service
Levels; rather, the need to collect and accurately reflect performance data
should result in the enhancement of the measurement and monitoring
methodologies.
1.14 EXCEPTIONS TO SERVICE LEVEL FAILURES
A Service Level Failure shall not constitute a Service Level Failure to the
extent it is caused by any of the following:
(a) infringements of third party intellectual property rights by EMW;
IBM Confidential May 12, 2000 Page 10
Exhibit 5
<PAGE>
(b) violations of law by EMW;
(c) Service or resource reductions requested or approved by EMW and agreed
to by the Parties in accordance with the Change Request process set
forth in the Procedure Manual, provided that IBM has previously
notified EMW as part of that process that the implementation of such
request would result in such a Service Level Failure;
(d) Implementation of a disaster recovery plan in response to a disaster;
(e) The applicability of any other provision of the Agreement that provides
for relief from Service Level Credits in accordance with such
provision; or
(f) Any breach of the Agreement by EMW or EMW's Agents.
1.15 EXCLUSIONS FROM AVAILABILITY
Calculation of Service Level Credits shall not include any period of downtime
resulting from scheduled system maintenance (e.g., preventive maintenance or
system upgrades), provided that the schedule for such maintenance has been
agreed upon by the Parties and is scheduled by IBM so as to minimize any impact
on EMW's business, operations and customers. IBM shall maintain availability
during such time periods to the extent practicable. IBM shall perform such
scheduled maintenance outside of EMW's normal business hours.
2 DETAILED PROVISIONS
The detailed provisions relating to Critical Services, Key Measurements and
Critical Deliverables are set forth in the Attachments to this Exhibit.
IBM Confidential May 12, 2000 Page 11
Exhibit 5
<PAGE>
<TABLE>
<CAPTION>
CRITICAL SERVICES - CUSTOMER ACQUISITION AND CUSTOMER CARE
12-May-00
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TOTAL SUPPLIER AT RISK - EXPRESSED IN TERM OF PERCENTAGE OF THE
MONTHLY CHARGE FOR CUSTOMER ACQ. AND CUSTOMER CARE ***
RESCO Pool Percentage Available For Allocation - Expressed as a %
of the "At Risk" amount ***
RESCO Pool Available Unallocated -- Expressed as % of the Pool
not Allocated ***
---------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage TBD% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - SYSTEM AVAILABILITY Comm + mos** Expected Minimum Allocation* Monthly
II.A.1 Percentage of time IVR System available during scheduled uptime 0 *** *** TBD #VALUE!
II.A.1 Percentage of time WebServer System available during scheduled uptime 0 *** *** TBD #VALUE!
II.A.1 Percentage of time email System available during scheduled uptime 0 *** *** TBD #VALUE!
II.A.1 Percentage of time ACD System available during scheduled uptime 0 *** *** TBD #VALUE!
II.A.1 Percentage of time Voice Mail System available during scheduled uptime 0 *** *** TBD #VALUE!
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage TBD% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - SERVICE LEVEL (TO CUSTOMERS) Comm + mos** Expected Minimum Allocation* Monthly
II.B.1 Percentage of calls answered by agent 20 seconds after call placed
into ACD queue. 1 *** *** TBD #VALUE!
II.B.2 Percentage of escalated calls resolved within 4 hours (under IBM
control to resolve) 2 *** *** TBD #VALUE!
II.B.3 Percentage of contacts receiving first contact resolution M *** *** TBD #VALUE!
II.B.4 Percentage of web customers that are sent transaction confirmation
within 15 minutes 2 *** *** TBD #VALUE!
II.B.5 Percentage of acknowledged emails returned within 15 minutes of
customer email receipt 2 *** *** TBD #VALUE!
II.B.6 Percentage of email requests contact response initiated within 4
business hours or consistent with customer request 3 *** *** TBD #VALUE!
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage 0.0% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - CUSTOMER SATISFACTION Comm + mos** Expected Minimum Allocation* Monthly
II.C.1 Efficiency Quality Assurance test score average M TBD TBD 0% #VALUE!
II.C.2 Effectiveness Quality Assurance test score average M TBD TBD 0% #VALUE!
II.C.3 Customer Satisfaction test score average for Customer Care and Billing M TBD TBD 0% #VALUE!
II.C.4 Customer Satisfaction test score average for Acquisition/New Customer M TBD TBD 0% #VALUE!
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage 0.0% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - NOT USED Comm + mos** Expected Minimum Allocation* Monthly
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage 0.0% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - NOT USED Comm + mos** Expected Minimum Allocation* Monthly
</TABLE>
* Service Level Credit Allocation Percentage
** Number of Months after Commencement Date before Supplier is
responsible for Service Level performance, Service Level
Credits due for Service Level Default, or Service Level
Incentives Apply (M - measurement period applies as defined in
Service Levels Exhibit)
####### = TBD
Confidential Information
X5.xls Page 1
<PAGE>
<TABLE>
<CAPTION>
CRITICAL SERVICES - REVENUE MANAGEMENT
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TOTAL SUPPLIER AT RISK - EXPRESSED IN TERM OF PERCENTAGE OF THE MONTHLY
CHARGE FOR REVENUE MANAGEMENT SERVICES ***
RESCO Pool Percentage Available For Allocation - Expressed as a % of the "At
Risk" amount ***
RESCO Pool Available Unallocated -- Expressed as % of the Pool not Allocated ***
---------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage 0.0% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - NOT USED Comm + mos** Expected Minimum Allocation* Monthly
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage 0.0% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - NOT USED Comm + mos** Expected Minimum Allocation* Monthly
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage 0.0% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - NOT USED Comm + mos** Expected Minimum Allocation* Monthly
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage TBD% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - PRODUCT AND SERVICE DELIVERY CYCLE TIME Comm + mos** Expected Minimum Allocation* Monthly
II.D.1 Percentage of bills issued correctly on time (within 72 hours of
receipt of required data) 3 *** *** TBD #VALUE!
II.D.2 Percentage of on-time correct payment application (within 36 hours) 3 *** *** TBD #VALUE!
II.D.3 Customer requests will be addressed and completed within 24 hours
or according to customer request 3 *** *** TBD #VALUE!
II.D.4 Product/Service Fulfillment Cycle Time - from customer order
initiation to REQUEST for product or service fulfillment 2 *** *** TBD #VALUE!
--------------------------------------------------------------------------------------------
Allocation of RESCO Pool Percentage 0.0% % of
--------------------------------------------------------------------------------------------
PERFORMANCE CATEGORY - OTHER Comm + mos** Expected Minimum Allocation* Monthly
II.E.1 Percentage of all customers re-scored according to business rules M TBD TBD 0% #VALUE!
II.E.2 Accounts Receivable Collections - Business Rules Adherance M TBD TBD 0% #VALUE!
</TABLE>
* Service Level Credit Allocation Percentage
** Number of Months after Commencement Date before Supplier is
responsible for Service Level performance, Service Level
Credits due for Service Level Default, or Service Level
Incentives Apply (M - measurement period applies as defined in
Service Levels Exhibit)
####### = TBD
Confidential Information
X5.xls Page 1
<PAGE>
KEY MEASUREMENTS
<TABLE>
<CAPTION>
CUSTOMER ACQUISITION/RESPONSE -- PERFORMANCE CATEGORY Eff + mos** Expected Minimum
<S> <C> <C> <C> <C>
III.A.1 Percentage customers receiving busy signal 0 *** ***
III.A.2 Customer abandonment in the ACD queue 0 *** ***
III.A.3 X% of service activation requests will be routed and accepted by
clearinghouse within 1 hour M
III.A.4 X% of service activation requests will be routed to UDC w/in 4 hours
once accepted by CH M
III.A.5 Clearinghouse will route utility info to ResCo system within 4 hours
or according to business requirements M
III.A.6 Percentage of enrollment completions for web-site signup requests in
less than 8 hours 3 *** ***
III.A.7 Customer complaints per 10,000 customer contacts (IBM issues) M
REVENUE MANAGEMENT -- PERFORMANCE CATEGORY Eff + mos** Expected Minimum
III.B.1 Percent of billing errors caused by 3rd party data resolved within 2 days M
III.B.2 Percent of billing errors not caused by 3rd party data resolved within 24 hours M
III.B.3 X% of payment exceptions must be processed within 24 hours 2 *** ***
SYSTEMS -- PERFORMANCE CATEGORY Eff + mos** Expected Minimum
III.C.1 CSR Screen Refresh time in X second M
III.C.2 Web Site Performance M
III.C.3 % of calls answered by IVR within ten (10) seconds 0 *** ***
</TABLE>
---------------------------------------------------------------------
OPERATIONS REPORTING METRICS
---------------------------------------------------------------------
* Service Level Credit Allocation Percentage
** Number of Months after Commencement Date before Supplier is
responsible for Service Level Performance (M - measurement
period applies as defined in Service Levels Exhibit)
Confidential Information
X5.xls Page 1
<PAGE>
---------------------------------------------------------------------
ATTACHMENT SLA-2
--------------------------------------------------------------------------------
Attachment SLA-2
I. GENERAL PROVISIONS
This document describes the service level measures to be used for the
provision of services in the areas of Customer Acquisition, Customer Care, and
Revenue Management. This document describes the service level measures and how
they are calculated, and Attachment SLA-1 Service Level Matrix details the
metrics.
II. CRITICAL SERVICE LEVELS
A. SYSTEMS AVAILABILITY
1. Percentage of time the customer facing IBM systems are
available, measured by dividing the time the systems are
available during scheduled uptime periods by total
scheduled uptime. Separate metrics to be measured for IVR,
ACD, Voice Mail, Web Server, and E-Mail.]
B. SERVICE LEVEL TO CUSTOMERS
1. Percentage of calls answered by a customer service agent
within the timeframe defined in Attachment SLA-1, measured
in seconds from the time a call is placed into the ACD
queue, i.e., after message "please hold for the next
available agent"(or equivalent message) is played to
customer.
2. Escalated calls resolved within 4 business hours, X% of
the time, measured by the number of calls resolved divided
by the total number of escalated calls under IBM's
control. An escalated call, requiring referral to a third
party, is resolved upon referral to third party.
3. Customers requesting product or service information will
receive first communication resolution X% of the time,
measured by the number of contacts resolved (not escalated
or requiring a callback, for call requests under IBM's
control) divided by the total number of calls answered.
4. Percentage of customers receiving a transaction
confirmation via e-mail sent within X minutes to new
commodity or non-commodity customers acknowledging service
request or product order via the web, measured by the
number of confirmations to properly formatted requests
within X minutes divided by the total number of confirmed
web service requests
5. Percentage of customers contacting EMW via e-mail that
receive an return e-mail acknowledging receipt of request
within X minutes of the receipt of the email. This SLA
will be calculated as the number of customers receiving an
acknowledgment return email within X minutes divided by
the total number of customer request emails received.
6. Percentage of customers contacting EMW via e-mail where
contact response is initiated within 4 business hours of
the receipt of the email or consistent with customer
request. This SLA will be calculated as the number of
customers contacted directly within 4 business hours or
consistent with customer request divided by the total
number of customer request emails received.
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page 1
Exhibit 5 SLA-2
<PAGE>
---------------------------------------------------------------------
ATTACHMENT SLA-2
--------------------------------------------------------------------------------
C. CUSTOMER SATISFACTION
1. At least X% of Quality Assurance Efficiency Scores for
customer care will be X or greater, calculated as the
number of scores greater than X divided by the total
number of quality assurance tests. Measurement will be
determined during first 90 days after go-live. This should
include, but is not limited to CSR data capture, accuracy
of communicating with the customer, and 3rd party
verification compliance.
2. At least X% of Quality Assurance Effectiveness Scores for
customer care will be X or greater, calculated as the
number of scores greater than X divided by the total
number of quality assurance tests. Measurement will be
determined during first 90 days after go-live.
3. At least X% of Customer Satisfaction Scores for customer
care will be X or greater, calculated as the number of
scores greater than X divided by the total number of
customer care satisfaction surveys. Measurement will be
determined during the first 90 days after go-live.
4. At least X% of Customer Satisfaction Scores for new
customer acquisition will be X or greater, calculated as
the number of scores greater than X divided by the total
number of customer acquisition satisfaction surveys.
Measurement will be determined during the first 90 days
after go-live.
D. PRODUCT AND SERVICE DELIVERY AND CYCLE TIME
1. The number of bills correctly issued on time will be
greater than X%. On-time issuing is defined as bills
dropped at US mail office or distributed via internet to
customer X HOURS after Revenue Management Systems receipt
of usage and all required data for non-consolidated bills
or within 72 hours of schedule for consolidated bills.
On-time issuing is calculated by the number of on-time
bills issued correctly within a monthly accounting period
divided by the total number of bills issued for the same
accounting period.
2. On-time payment application is calculated by the number of
payments correctly processed and applied to correct
customer account in CIS system within 36 hours of the
receipt of payment information from LockBox divided by the
total number of payments received that day from the
Lockbox. On-time application must be greater than X%,
defined by dividing the total number of payments applied
by the total number of payments received.
3. Information fulfillment of customer requests will be
successfully addressed and completed within 24 business
hours. This will be calculated by dividing the number of
requests completed within business 24 hours sent in the
correct channel divided by the total number of requests.
This metric is measured for those requests where IBM is
assigned the fulfillment responsibilities. Fulfillment
responsibilities include welcome packets and other
information under control of IBM to distribute, per
business rules.
4. Customer order fulfillment will be initiated via a
properly formatted order request transmitted to the
fulfiller within 4 business hours after order is taken
from customer, or per business rules. This will be
calculated by dividing the number of orders initiated
within 4 hours divided by the total number of orders
initiated.
E. OTHER SERVICE LEVELS
1. At least X% of all active customers will be re-scored for
credit worthiness according to EMW business rules
schedule. This will be measured by dividing the number of
customers re-scored per schedule by the total number of
customers required to be rescored.
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page 2
Exhibit 5 SLA-2
<PAGE>
---------------------------------------------------------------------
ATTACHMENT SLA-2
--------------------------------------------------------------------------------
2. Percentage of customers requiring collection activity
where EMW Business Rules are followed correctly. This will
be measured by dividing the number of correctly followed
customer cases divided by total number of customer cases
requiring collection activity.
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page 3
Exhibit 5 SLA-2
<PAGE>
---------------------------------------------------------------------
ATTACHMENT SLA-2
--------------------------------------------------------------------------------
III. KEY SERVICE LEVELS
A. CUSTOMER ACQUISITION/RESPONSE
1. Percentage of customers receiving a busy signal will be
less than X%, measured by the number of customer calls
which carrier receives "no answer supervision" from
contact center divided by the total number of attempted
calls.
2. The customer support center will not experience an
abandonment in ACD queue that terminates the call prior to
answer by CSR greater than X%, measured by the number of
abandoned calls in the ACD queue divided by the total
number of calls placed into the ACD queue plus calls sent
directly to CSR.
3. Service transaction requests for new commodity customers
will be completed, routed and transmitted to the
Clearinghouse in less than 1 business hours, measured by
the number of activation requests completed in 1 hour's
time or according to the business rules if delayed divided
by the total number of activation requests.
4. Service activation requests will be routed to the UDC
within 4 business hours once accepted by the
Clearinghouse. This service level will be measured by the
number of service activation requests routed within X
hours divided by the total number of service activation
requests.
5. The Clearinghouse will route utility information to the
appropriate EMW system within 4 hours once received from
the UDC, assuming the UDC information is complete and
accurate, measured as a percentage calculated by the
number of requests routed correctly divided by the total
number of requests.
6. Percentage of enrollment completions for web-site signup
requests will be processed in less than 8 hour's time or
according to business rules. This will be measured by
number web-site signups, with complete information
provided, processed in less than 8 hours or according to
business rules divided by total number of web-site
signups.
7. For every 10,000 customer contacts, there will be less
than X customer complaints. This will be based upon the
number of customer complaints on IBM related services.
Complaint definition rules to be developed in first 90
days.
B. REVENUE MANAGEMENT
1. Resolution of Billing errors caused by 3rd party data: X%
will be resolved in 2 days. Measured for that time frame
under IBM control.
2. Resolution of Billing errors not caused by 3rd party
data: X% will be resolved in 24 hours.
3. Payment exceptions will be processed the day received.
Timely payment exception processing is calculated by the
total number of exceptions processed within 24 hours as
received divided by total exceptions received that day.
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page 4
Exhibit 5 SLA-2
<PAGE>
---------------------------------------------------------------------
ATTACHMENT SLA-2
--------------------------------------------------------------------------------
C. SYSTEMS
1. CSR systems screen refresh time will be within 2 seconds
2. Web site performance will be measured. The measurement
criteria will be determined at a later date.
3. At least X% of calls will be answered by the IVR within
ten (10) seconds.
--------------------------------------------------------------------------------
IBM Confidential May 12, 2000 Page 5
Exhibit 5 SLA-2
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
EXHIBIT 6
OPERATIONAL PLANNING PROCESS
PURPOSE OF PROCESS: The purpose of this Operational Planning Process is
twofold:
/ / Assure timely availability of operational resources and functional
capabilities necessary to meet EMW's business requirements and
forecasts.
/ / Provide collaborative approach to minimize cost of operations
while maintaining Service Levels.
IBM CONFIDENTIAL MAY 12, 2000 PAGE 1
REDACTED EXHIBIT 6--IBM AGREEMENT.DOC
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
PARTICIPANTS
/ / EMW and IBM will assign the following individuals to the Operational
Planning Process:
EMW CTO
EMW VP Operations
EMW VP Marketing
IBM Project Executive
IBM Delivery Project Executive
IBM Project Manager
/ / Meeting will be chaired by EMW VP Operations.
/ / This list may be amended.
/ / Each individual must attend in person or via conference call, or
delegate his/her responsibility to an individual attending the
meeting.
PROCESS APPROACH
/ / The Operational Planning Process will follow the steps below:
1. The EMW marketing team will present its updated marketing plans and
business requirements at each meeting, which will be the primary
inputs to the Operational Planning Process. These inputs will
include:
- Market entry plans and schedules for new markets for the
upcoming 90 days, including UDC interface requirements ,new
bill formats, and market rules.
- Updates to the media plan and schedules for the upcoming 90
days including media drops, reach, predicted responses,
predicted conversions, and response patterns.
- New product launch schedules including complete and final
product information, pricing, marketS offered, fulfillment,
billing, and other requirements.
- Updates to existing market, product, pricing, and billing
requirements.
- Updates to business policies and market rules.
- Updates to marketing requirements for customer care and
acquisition.
IBM CONFIDENTIAL MAY 12, 2000 PAGE 2
REDACTED EXHIBIT 6--IBM AGREEMENT.DOC
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
EMW will use all commercially reasonable efforts to adjust its
marketing plan design and execution to minimize all spikes in
customer acquisition demand for Contact Center CSR and functional
capacity.
The Marketing Plan Inputs will be provided to IBM on a timely
basis, but no less often than in accordance with the following
schedule and lead times:
<TABLE>
<CAPTION>
------------------------------------------------------------------------
CAPACITY/CAPABILITY LEAD TIME
------------------------------------------------------------------------
<S> <C>
Contact Center Capacity - CSR's for Customer *** in advance in
Acquisition accordance with the
procedures in this
Exhibit
------------------------------------------------------------------------
New Markets - Operational requirements for *** in advance
new UDC interfaces, regulatory rules, market
rules, and EMW business policies/rules.
------------------------------------------------------------------------
New Products in existing markets *** in advance
------------------------------------------------------------------------
New Billing Formats for complete new bill *** in advance
formats
------------------------------------------------------------------------
New EMW Business Partners and Fulfillment *** in advance
Plans
------------------------------------------------------------------------
New significant, dedicated *** in advance
telecommunications links to EMW Business
Partners
------------------------------------------------------------------------
</TABLE>
EMW and IBM agree to use all commercially reasonable efforts to
improve the lead times above as operational experience is gained
during the steady state operations.
Note: Certain items have minimal lead times. For example,
alterations to a Script, updates to a product price, special
announcements to CSR's, and other minor adjustments will be
implemented immediately subject to agreed upon processes for
review, approvals, and testing necessary for implementation.
2. In each monthly meeting, EMW and IBM will review and update
previous estimates for upcoming monthly forecasts, including
reviewing actual versus forecasts for the previous month. These
reviews will be the basis for improving the forecasting and
planning process, as well as determining the adjustments
described below.
IBM CONFIDENTIAL MAY 12, 2000 PAGE 3
----------------
REDACTED EXHIBIT 6-IBM AGREEMENT.DOC
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
3. Annually, EMW and IBM will review this process and evaluate its
effectiveness in managing the operations. EMW and IBM will
mutually develop and agree to any changes to this process.
ADJUSTMENTS
/ / Definitions:
"ACTUAL INCREMENTAL CUSTOMER ACQUISITION CSR REQUIREMENTS" shall have
the meaning set forth in Section 5.
"ACTUAL INITIAL CUSTOMER CARE CSRS" shall mean the number of Customer
Care CSRs on the CSR Planning Process Commencement Date.
"ACTUAL INITIAL CUSTOMER ACQUISITION CSRS" shall mean the number of
Customer Acquisition CSRs on the CSR Planning Process Commencement
Date.
"ACTUAL MARKETING RESULTS" shall mean, with respect to a Marketing
Plan, the following:
actual targeted customer segments and quantities
actual timing of media drops by market and media
actual customer responses and actual timing for each drop
actual responses coming to Contact Center and to Website
actual busy hour volumes
actual call minutes and actual post-call wrap up time per response
actual conversion rates for responding customers
"ADJUSTED ESTIMATED INCREMENTAL CUSTOMER ACQUISITION CSR REQUIREMENTS"
shall have the meaning set forth in Section 2.
"AFFECTED SERVICE LEVELS" shall mean the following Service Levels:
- percentage of calls answered within 20 seconds
- escalated calls resolved within four hours
- emails responded to within four hours
- and any other Service Levels impacted by the EMW Marketing Plan
activities
"CSR PLANNING PROCESS COMMENCEMENT DATE" shall mean, with respect to a
Marketing Plan, the date 90 days prior to the Measurement Month for
that Marketing Plan; the first such date shall be July 1, 2000.
IBM CONFIDENTIAL MAY 12, 2000 PAGE 4
----------------
REDACTED EXHIBIT 6-IBM AGREEMENT.DOC
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
"CUSTOMER ACQUISITION CSR PREDICTIVE MODEL" shall mean the model that
estimates the number of Customer Acquisition CSRs required in the
Measurement Month to deliver customer acquisition services at the
applicable Service Levels using the Marketing Plan Inputs and other
necessary inputs.
"CUSTOMER CARE CSR PREDICTIVE MODEL" shall mean the model that
estimates the number of Customer Care CSRs required in the Measurement
Month to deliver customer care services at the applicable Service
Levels using the Marketing Plan Inputs and other necessary inputs.
"ESTIMATED INCREMENTAL CUSTOMER ACQUISITION CSR REQUIREMENTS" shall
have the meaning set forth in Section 1 "FINAL ESTIMATED INCREMENTAL
CUSTOMER ACQUISITION CSR REQUIREMENTS" shall have the meaning set forth
in Section 4.
"MARKETING PLAN" shall mean the EMW marketing plan and business
requirements, which may be modified by EMW in its sole discretion, for
the Measurement Month.
"MARKETING PLAN INPUTS" shall mean, with respect to a Marketing Plan,
EMW's forecasted:
Customer acquisition goals and forecasts
Targeted customer segments and quantities
Timing of media drops by market and media
Estimates of customers receiving media message
Estimates of customer responses and timing for each drop
Estimates of responses coming to Contact Center and to Website
Estimates of busy hour volumes
Estimates of call minutes and post-call wrap up time per response
Estimated conversion rates for responding customers
"MEASUREMENT MONTH" the month in which a Market Plan is implemented by
EMW; the first such month shall be October 2000.
"REDEPLOYED CUSTOMER ACQUISITION CSRS" shall have the meaning set
forth in Section 7.
1. With respect to each Marketing Plan, on the CSR Planning Process
Commencement Date, EMW shall provide IBM with the Marketing Plan Inputs and
the Parties shall run the Customer Acquisition CSR Predictive Model and the
Customer Care CSR Predictive Model. The Customer Acquisition CSR Predictive
Model will output the estimated number of Customer Acquisition
IBM CONFIDENTIAL MAY 12, 2000 PAGE 5
----------------
REDACTED EXHIBIT 6-IBM AGREEMENT.DOC
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
CSRs required in the Measurement Month ("ESTIMATED INCREMENTAL CUSTOMER
ACQUISITION CSR REQUIREMENTS").
2. EMW must either accept, increase, or decrease the Estimated Incremental
Customer Acquisition CSR Requirements (such accepted, increased or
decreased number of Customer Acquisition CSRs being referred to as
"ADJUSTED ESTIMATED INCREMENTAL CUSTOMER ACQUISITION CSR REQUIREMENTS"). If
EMW decreases the Adjusted Estimated Incremental CSR to zero, then EMW
shall incur no adjustment charges under this Adjustment Section.
3. *** prior to the Measurement Month, EMW may increase or decrease the
Adjusted Estimated Incremental Customer Acquisition CSR Requirements by up
to *** of the then current number of Adjusted Estimated Incremental
Customer Acquisition CSR Requirements.
4. *** prior to the Measurement Month, EMW may increase or decrease the
Adjusted Estimated Incremental Customer Acquisition CSR Requirements by up
to *** of the then current Adjusted Estimated Incremental Customer
Acquisition CSR Requirements. Such adjusted number of Adjusted Estimated
Incremental CSR Requirements shall be the "FINAL ESTIMATED INCREMENTAL
CUSTOMER ACQUISITION CSR REQUIREMENTS".
5. At the end of the Measurement Month, the Parties shall run the same
Customer Acquisition CSR Predictive Model with the only changes being the
substitution of the Actual Marketing Results for the corresponding
Marketing Plan Inputs. This will produce the actual number of Customer
Acquisition CSRs that would have been required to deliver the customer
acquisition services in the Measurement Month ("ACTUAL INCREMENTAL CUSTOMER
ACQUISITION CSR REQUIREMENTS").
6. If the Actual Incremental Customer Acquisition CSR Requirements are more
than *** of the Final Estimated Incremental CSR Requirements, then EMW
shall incur no additional charges under this Adjustment Clause.
7. If the Actual Incremental Customer Acquisition CSR Requirements are less
than *** of the Final Estimated Incremental CSR Requirements, then (1) IBM
shall use commercially reasonable efforts to redeploy for use in EMW's
other Steady State Services (any such redeployed Customer Acquisition CSRs
are referred to as "REDEPLOYED CUSTOMER ACQUISITION CSRS") the excess CSR
capacity and (2) EMW shall pay IBM a one-time fee for the Measurement Month
equal to:
*** x ((Final Estimated Incremental Customer Acquisition CSR
Requirements - Redeployed Customer Acquisition CSRs as of the
IBM CONFIDENTIAL MAY 12, 2000 PAGE 6
----------------
REDACTED EXHIBIT 6-IBM AGREEMENT.DOC
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
start of the Measurement Month) - Actual Incremental Customer
Acquisition CSR Requirements) x ***.
8. If the Actual Incremental Customer Acquisition CSR Requirements are more
than the sum of *** of the Final Estimated Incremental Customer Acquisition
CSR Requirements plus *** of the Actual Customer Care CSRs during the
Measurement Month, then for the Measurement Month, IBM shall be relieved of
the Affected Service Levels affected by the excess Customer Acquisition CSR
requirements.
EXAMPLE:
ASSUME:
- On the CSR Planning Process Commencement Date, the Estimated
Incremental Customer Acquisition CSR Requirements was ***
Customer Acquisition CSRs
- EMW approVES *** Customer Acquisition CSRs -as the Adjusted
Estimated Incremental CSR RequiremeNTS
- *** prior to the Measurement Month, EMW decreases the Adjusted
Estimated Incremental Customer Acquisition CSR Requirements by
*** to *** CSRs.
- 30 days prior to the Measurement Month, EMW decreases the
Adjusted Estimated Incremental CustomER Acquisition CSR
Requirements by *** to *** CSRs.
- Final Estimated Incremental Customer Acquisition CSR Requirements
ARE *** CSRs.
- The Actual Incremental Customer Acquisition CSR Requirements:
- See below for Case 1 and Case 2
DETERMINES:
Case 1
Actual Incremental Customer Acquisition CSR Requirements = 10 CSRs
Excess Customer Acquisition CSRs = *** of 16.2 CSRs less 10 CSRs =
4.6 CSRs
Redeployed Customer Acquisition CSRs = 0 CSRs
CSR Minute Fee: ***
Calculation of EMW payment for Measurement Month:
*** x ***/min x 60 min/hour x 8 hours/day x 21 days/month x 0.70
utilization
IBM CONFIDENTIAL MAY 12, 2000 PAGE 7
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REDACTED EXHIBIT 6-IBM AGREEMENT.DOC
<PAGE>
EMW PROJECT PROCESS NO. 00X
--------------------------------------------------------------------------------
= $ 42,844.03
Case 2
Actual Incremental Customer Acquisition CSR Requirements= 140 CSRs
Number of Actual Customer Care CSRs During The Measurement Month= 100
CSRs.
140 is greater than the sum of (*** of 16.2) plus (10% of
100); therefore:
- No EMW incremental payment for the Measurement Month
under this Adjustment Section.
- IBM shall be relieved of the Affected Service Levels
affected by the shortfall in CSR capacity.
SCHEDULE
/ / The Operational Planning Process team will meet on the last Thursday
each month. Additional meetings may be scheduled as required due to
changing business requirements.
IBM CONFIDENTIAL MAY 12, 2000 PAGE 8
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REDACTED EXHIBIT 6-IBM AGREEMENT.DOC
<PAGE>
EXHIBIT 7
IBM KEY PERSONNEL
Project Executive - IBM Executive responsible for overall project delivery,
business operations and customer satisfaction.
Deputy Project Executive - IBM senior manager, second in command to Project
Executive for overall project delivery, business operations and customer
satisfaction.
Delivery Project Executive, Contact Center - Manager in charge of Contact Center
Operations. Each Contact Center will have an assigned Delivery PE for that
Contact Center.
Delivery Project Executive, Business Operations - Manager is charge of daily
business operations for business processes including revenue management.
Overall Technical Solutions Manager - Lead technical individual responsible for
the on-going maintenance and development activities for the technical platforms
and solutions, data structures and models, and communications.
Lead Business Intelligence Analyst - Lead analytical and technical contributor
responsible for the development and maintenance of competitive and marketing
intelligence derived from data utilization and analysis.
Lead Knowledge Management Analyst - Lead technical contributor responsible for
the organization, management and utilization of knowledge and information as a
tactical and competitive strategy to enhance the on-going business operation.
IBM Confidential May 12, 2000 Page 1
Exhibit 7
<PAGE>
EXHIBIT 8
CHANGE CONTROL PROCEDURES
1. CHANGE MANAGEMENT PROCESS
Change to any part of the Statement of Work, Service Levels, Agreement and/or
associated Exhibits, policies or procedures will be managed by the Change
Control Board. Events that could require a change include but are not limited to
business planning activities, budget changes, audit or regulatory requirements,
benchmark study results, process improvement team recommendations or changes in
the EMW business. In each case the following process will be followed to approve
changes.
The initiator/sponsor of the change will document that request through a project
change request (PCR) and present it to the Change Control Board for
consideration. The change request document must include at a minimum a detailed
description of the recommended change, the objective and benefits of the change,
the cost to implement the change, any risks associated with making the change,
the impact of the change to other processes, time schedules, agreements,
exhibits, etc. The initiator/sponsor will also provide a high-level
implementation project plan and communication plan for the change.
Within three days of receipt of the PCR with regard to the SI Services and
within 15 days of a receipt of the PCR with regard to the Steady State Services,
the Change Control Board will review the proposed change and approve it for
investigation or rejection. IBM shall make any changes requested by EMW with
regard to the SI Services subject to IBM being compensated at the hourly rate
for services set forth for SI Services in Exhibit 4. If the Change Control Board
denies any other change, the initiator/sponsor will be notified of the reason
for such rejection and the change request will be closed. If the Change Control
Board denies any change with regard to the Steady State Services that IBM is the
exclusive provider pursuant to Section 3.04 of the Agreement, then EMW shall be
entitled to implement such change itself or engage a third party to implement
such change. If the Change Control Board approves the change, the
initiator/sponsor will provide a detailed project plan for implementation
approved by all relevant parties to the Change Control Board. The
initiator/sponsor will assign a project manager to manage the implementation
plan and provide monthly status to the Change Control Board until such time as
the change has been implemented and the request can be closed. Change requests
denied by the designated approving authorities could be escalated by the
initiator/sponsor pursuant to the Dispute Resolution Process set forth in
Article 22 of the Agreement. Approved changes will be incorporated into the
Agreement through amendments.
2. CHANGE CONTROL BOARD
A Change Control Board (the "CHANGE CONTROL BOARD") will review all change
requests, and approve, disapprove, or escalate all requests as required. The
Chairpersons for this team will be the EMW Contract Executive and IBM Contract
Executive. The Chairpersons will assign operational team members to the Change
Control Board as appropriate. The Change Control Board is expected to meet at
least weekly. In the event of a dispute regarding procedural or scheduling
issues, EMW shall make the final determination.
IBM Confidential May 12, 2000 Page 1
Exhibit 8
