SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 6-K REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13A-16 OR 15D-16 OF THE SECURITIES EXCHANGE ACT OF 1934 For the month of October, 2004 Commission File Number 1-14840 AMDOCS LIMITED Suite 5, Tower Hill House Le Bordage St. Peter Port, Island of Guernsey, GY1 3QT Channel Islands Amdocs, Inc. 1390 Timberlake Manor Parkway, Chesterfield, Missouri 63017 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: FORM 20-F X FORM 40-F ------- ----- Indicate by check mark whether the registrant by furnishing the information contained in this form is also thereby furnishing the information to the Commission pursuant to rule 12g3-2(b) under the Securities Exchange Act of 1934: YES NO X ----- -----
The Registrant is filing this Current Report on Form 6-K for the purpose of filing with the Securities and Exchange Commission (the "SEC") the Further Amended and Restated Master Outsourcing Services Agreement, between Bell Canada and Certen Inc., a wholly owned subsidiary of the Registrant, dated as of July 1, 2003 (the "Agreement"). The Agreement is attached to this Form 6-K as Exhibit 99.1. This Form 6-K shall be incorporated by reference into the Registration Statements on Form F-3 (File Nos. 333-114079 and 333-114344) and any other Registration Statement filed by the Registrant which by its terms automatically incorporates the Registrant's filings and submissions with the SEC under Sections 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934. 2
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. AMDOCS LIMITED /s/ Thomas G. O'Brien ------------------------------- Thomas G. O'Brien Treasurer and Secretary Authorized U.S. Representative Date: October 1, 2004 3
EXHIBIT INDEX EXHIBIT NO. DESCRIPTION - ----------- ----------- 99.1+ Further Amended and Restated Master Outsourcing Services Agreement, between Bell Canada and Certen Inc., dated as of July 1, 2003. + Confidential treatment requested as to certain portions, which portions have been filed separately with the Securities and Exchange Commission.
Confidential Treatment omitted and filed separately with the Exhibit 99.1 Securities and Exchange Commission. Asterisks denote omissions. FINAL EXECUTION VERSION FURTHER AMENDED AND RESTATED MASTER OUTSOURCING SERVICES AGREEMENT JULY 1, 2003 BETWEEN: BELL CANADA - AND - CERTEN INC.
TABLE OF CONTENTS PAGE SECTION 1. DEFINITIONS AND INTERPRETATION................................................................ 2 1.1 Definitions................................................................................... 2 1.2 Exhibits...................................................................................... 10 SECTION 2. GOALS AND OBJECTIVES AND ROLE OF BELL......................................................... 11 a. Transfer on Effective Date.................................................................... 11 b. Services and Service Levels for Legacy Systems Generally...................................... 11 c. Modernization Generally....................................................................... 11 d. Billing Laboratory............................................................................ 12 e. Results of Modernization...................................................................... 12 f. Realization of Cost Savings and Efficiencies.................................................. 12 g. Improvements to Quality and Cost Effectiveness................................................ 12 h. Use of Internet Technology.................................................................... 12 i. Role of Bell - Post Amendment Effective Date - Generally...................................... 12 j. Scope of Services Generally................................................................... 12 2.2 Bell to Represent BCH Companies............................................................... 13 2.3 Bell Responsible and Liable for [**].......................................................... 13 2.4 Divestiture of BCH Company.................................................................... 13 2.5 Provision of Services by Certen............................................................... 13 a. Billing Operations Services................................................................... 13 b. Customer Care Operations Services............................................................. 13 c. Ongoing Support Services...................................................................... 14 d. Other Operations Services..................................................................... 14 e. Road Map Development Support Services......................................................... 14 f. Certen Development Support Services........................................................... 14 2.6 Additional Obligations of Certen.............................................................. 14 SECTION 3. TERM.......................................................................................... 15 3.1 Initial Term and Possible Extension........................................................... 15 SECTION 4. REQUIRED CONSENTS............................................................................. 15 4.1 BCH Companies to Obtain Required Consents..................................................... 15 4.2 Bell to Indemnify Certen for Failure to Obtain Required Consent............................... 16 -i-
TABLE OF CONTENTS (CONTINUED) PAGE 4.3 Contracts of BCH Companies Assigned to Certen................................................. 16 a. Assumption of Certain BCH Company Contracts................................................... 16 b. Bell to Provide Assistance.................................................................... 16 c. Changes to Assigned Contracts................................................................. 16 4.4 Corporate Contracts of BCH Companies.......................................................... 17 a. Access to BCH Corporate Contracts............................................................. 17 b. Benefits to be Provided to Certen as of the Amendment Effective Date.......................... 17 c. Bell to Assist Certen to Replace Contracts.................................................... 17 d. Certen May Terminate Rights Under Corporate Contracts......................................... 18 4.5 Services to be Provided by BCH Companies to Certen............................................ 18 4.6 Certen May Terminate Assigned Contracts....................................................... 18 4.7 Bell Obligation to Reimburse Certen........................................................... 19 4.8 Indemnity for Pre-Effective Date Events....................................................... 19 4.9 Completion of Exhibits........................................................................ 19 SECTION 5. TRANSFER OF LEGACY SYSTEMS AND PROVISION OF SERVICES.......................................... 19 5.1 Transfer of Legacy Systems.................................................................... 19 5.2 [**] Software................................................................................. 19 5.3 Oversight Functions to be Performed by Bell................................................... 20 5.4 Certen to Provide Services to BCH Companies................................................... 20 5.5 Service Levels - Legacy Systems............................................................... 20 5.6 Service Levels - Modernized Systems........................................................... 21 5.7 Restrictions on Changes to Hardware Platform.................................................. 21 5.8 Data Backup Storage Services.................................................................. 22 5.9 Third Party Development Support Services...................................................... 22 5.10 Disaster Recovery Services.................................................................... 22 5.12 Certen to Cooperate with Other Service Providers.............................................. 23 a. Certen to Cooperate with Other Service Providers.............................................. 23 b. [**] Agreement................................................................................ 23 c. [**] Agreements............................................................................... 23 -ii-
TABLE OF CONTENTS (CONTINUED) PAGE d. Orders to [**] or [**]........................................................................ 24 e. Effect of Breach of Agreements................................................................ 25 f. Modification of Certain Corporate Contracts................................................... 25 g. Disclosure of [**] and [**] Agreements........................................................ 25 5.13 Use of Internet Technology.................................................................... 25 5.14 Service Delivery [**]......................................................................... 25 5.15 Continuing Role of [**] Systems............................................................... 26 5.16 Continuing Arrangements with [**] Systems..................................................... 26 5.17 Viruses....................................................................................... 26 5.18 Roles and Responsibilities.................................................................... 26 5.19 Remittance Agreements......................................................................... 26 SECTION 6. [**] AND [**]................................................................................. 29 6.1 Certen as [**] Supplier....................................................................... 29 6.2 New Services.................................................................................. 30 6.3 Promotion of Services......................................................................... 30 SECTION 7. SERVICE LEVELS GUARANTEES..................................................................... 30 7.1 Service Levels................................................................................ 30 7.2 Service Level Improvements.................................................................... 30 7.3 Critical Service Level KVMs................................................................... 30 7.4 Service Level Penalties, Rebates and Bonuses.................................................. 31 7.5 Intent of Section............................................................................. 31 7.6 Failure to Meet Critical Service Level KVMs................................................... 31 7.7 Service Levels - Bell Customer Contracts...................................................... 31 7.8 Compliance with Credit and Collection Policies................................................ 31 7.9 Grace Period.................................................................................. 31 SECTION 8. QUALITY OF SERVICES GUARANTEE................................................................. 32 8.1 Right of BCH Companies to Assess, Inspect and Monitor......................................... 32 8.2 Complaints Regarding Quality of Services...................................................... 32 8.3 Certen to Manage Quality...................................................................... 32 8.4 Contractors and Subcontractors................................................................ 32 -iii-
TABLE OF CONTENTS (CONTINUED) PAGE 8.5 Right to Terminate............................................................................ 32 SECTION 9. [**] FOR MODERNIZATION SYSTEMS AND PRICING.................................................... 32 9.1 Surveys to be Conducted....................................................................... 32 9.2 [**] Process.................................................................................. 32 9.3 Costs to be Shared............................................................................ 33 9.4 Certen to Implement Results................................................................... 33 9.5 Legacy Systems................................................................................ 33 9.6 [**].......................................................................................... 33 9.7 [**].......................................................................................... 33 SECTION 10. FEES AND CREDITS.............................................................................. 33 10.1 Fees.......................................................................................... 33 10.2 Volumes for [**] and [**]..................................................................... 34 10.3 Fee Adjustments............................................................................... 34 10.4 Discounts..................................................................................... 34 10.5 Taxes......................................................................................... 34 10.6 Unit Plan..................................................................................... 35 10.7 [**].......................................................................................... 35 10.8 Expiration of Unit Plan....................................................................... 35 10.9 [**] Pricing.................................................................................. 35 10.10 [**] Revenues................................................................................. 36 SECTION 11. DEVELOPMENT WORK QUALIFYING FOR SR&ED CREDITS................................................. 36 SECTION 12. INVOICING AND PAYMENT......................................................................... 37 12.1 Invoices...................................................................................... 37 12.2 Form.......................................................................................... 38 12.3 Procedures.................................................................................... 38 12.4 Transfer Taxes................................................................................ 38 SECTION 13. INTELLECTUAL PROPERTY RIGHTS.................................................................. 40 13.1 As in MLSA.................................................................................... 40 13.2 Survival...................................................................................... 40 SECTION 14. REPRESENTATIONS AND WARRANTIES................................................................ 40 -iv-
TABLE OF CONTENTS (CONTINUED) PAGE 14.1 Of Certen..................................................................................... 40 14.2 Of Bell....................................................................................... 41 14.3 Survival of Representations and Warranties.................................................... 42 SECTION 15. NOTICES....................................................................................... 43 SECTION 16. CONFIDENTIAL INFORMATION...................................................................... 44 SECTION 17. INDEMNITY..................................................................................... 47 17.1 Mutual Indemnities............................................................................ 47 17.2 Indemnification Obligations of Certen......................................................... 47 17.3 Indemnification Obligations of Bell........................................................... 48 a. Intellectual Property......................................................................... 48 b. Failure to Obtain Required Consents........................................................... 48 c. Pre-Effective Date Duties..................................................................... 48 d. Failure to Comply with PIPEDA................................................................. 48 SECTION 18. DISPUTE RESOLUTION............................................................................ 48 18.1 Resolution by Negotiation..................................................................... 48 18.2 Arbitration................................................................................... 49 SECTION 19. INSURANCE..................................................................................... 50 SECTION 20. RELATIONSHIP/INDEPENDENT CONTRACTOR........................................................... 51 SECTION 21. TERMINATION................................................................................... 52 21.1 Convenience - Generally....................................................................... 52 21.2 Material Breach............................................................................... 53 21.3 Transition-Out................................................................................ 54 21.4 Insolvency.................................................................................... 54 21.5 Change in Control of Certen................................................................... 54 21.6 Termination for a Force Majeure Event......................................................... 54 21.7 Obligation to Pay for Services Rendered Prior to Termination.................................. 55 21.8 Termination not in Lieu of Other Remedies..................................................... 55 21.9 Return of Confidential Information............................................................ 55 SECTION 22. ORDERLY TRANSITION-OUT ON TERMINATION OR EXPIRY............................................... 55 SECTION 23. AUDIT, SECURITY............................................................................... 56 -v-
TABLE OF CONTENTS (CONTINUED) PAGE 23.1 Review Security Measures...................................................................... 56 23.2 Books and Records............................................................................. 56 23.3 a. Annual Audit Plan.......................................................................... 56 b. Audit Rights.................................................................................. 57 c. Certen to Provide Reasonable Assistance....................................................... 58 23.4 Security Procedures........................................................................... 58 23.5 PIPEDA........................................................................................ 59 SECTION 24. NON-SOLICITATION.............................................................................. 59 SECTION 25. LIMITATION OF LIABILITY....................................................................... 59 SECTION 26. FORCE MAJEURE................................................................................. 61 26.1 Force Majeure................................................................................. 61 26.2 Disaster Recovery Services; Reference to Exhibit I............................................ 63 SECTION 27. ASSIGNMENT/SUBCONTRACTING..................................................................... 63 27.1 Assignment.................................................................................... 63 27.2 Subcontracting................................................................................ 64 SECTION 28. COMPLIANCE WITH LAWS.......................................................................... 64 SECTION 29. PUBLICITY AND IDENTIFICATION.................................................................. 65 SECTION 30. AMENDMENT/CHANGES............................................................................. 65 SECTION 31. WAIVER........................................................................................ 65 SECTION 32. SEVERABILITY.................................................................................. 65 SECTION 33. SURVIVAL OF OBLIGATIONS....................................................................... 65 SECTION 34. CHOICE OF LAW AND CHOICE OF FORUM............................................................. 66 SECTION 35. DESIGNATED REPRESENTATIVES AND GOVERNANCE PROCESS............................................. 66 SECTION 36. RELEASES VOID................................................................................. 66 SECTION 37. CHANGE ORDER PROCESS.......................................................................... 67 SECTION 38. MISCELLANEOUS................................................................................. 67 38.1 Entire Agreement.............................................................................. 67 38.2 Accounting Terms.............................................................................. 67 38.3 Currency...................................................................................... 67 38.4 No Conflict................................................................................... 67 -vi-
TABLE OF CONTENTS (CONTINUED) PAGE 38.5 Further Assurances............................................................................ 67 38.6 Counterparts.................................................................................. 67 38.7 [**].......................................................................................... 67 38.8 Interpretation................................................................................ 68 38.9 Time of Essence............................................................................... 68 38.10 Financial Responsibility...................................................................... 68 -vii-
2 FURTHER AMENDED AND RESTATED MASTER OUTSOURCING SERVICES AGREEMENT This Further Amended and Restated Master Outsourcing Services Agreement (the "AGREEMENT"), dated as of July 1, 2003, is entered into by and between BELL CANADA, a company incorporated pursuant to the laws of Canada ("BELL CANADA") and CERTEN INC. ("CERTEN"), a company incorporated pursuant to the laws of Canada. RECITALS WHEREAS prior to the Effective Date the BCH Companies (defined below) operated information systems and performed related services pertaining to their billing, payment process and customer care functions; AND WHEREAS on the Effective Date the BCH Companies transferred and/or assigned certain personnel, equipment and contracts employed to perform such functions to Certen, and Certen assumed such personnel, equipment, contracts and functions, subject to the terms and conditions of the Original MOSA (as amended and restated by the Amended MOSA) and the Asset Transfer Agreement; AND WHEREAS in order to increase the effectiveness of the outsourcing and development arrangements between Bell Canada and Certen, the Parties now desire to amend and restate the Amended MOSA to provide for the following: (i) the performance by Bell Canada, commencing on the Amendment Effective Date, of certain Oversight Functions (defined below); (ii) other amendments as specifically set out herein to enable the BCH Companies to meet their business needs, including ensuring the successful modernization and operation of the systems referred to in the first recital above; and (iii) the extension of the term of the Amended MOSA for a period of three years; AND WHEREAS Certen will, in accordance with the terms of this Agreement, continue to take the necessary measures to become a provider of information systems and information technology services in the realm of billing production, payment process and customer care systems and related services comparable to leading providers of similar services on a worldwide basis; AND WHEREAS the BCH Companies desire to receive and Certen has agreed to provide the Services (as hereinafter defined) upon terms and conditions set out in this Agreement; AND WHEREAS pursuant to the Share Purchase Agreement, an Affiliate of Amdocs, did acquire Bell Canada's interest in Certen; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the Parties agree as follows:
3 SECTION 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS. In this Agreement and the Exhibits hereto, unless specifically stated otherwise: "2003 ROAD MAP" means (a) the statement of work together with the associated schedule and budget for the Project known as "NMI Mobility" as set forth in Exhibit D hereto; and (b) the work to be undertaken for the proposed Project known as "SI Bell Canada", which work is outlined in Exhibit D, together with the associated schedule and budget for such work as set forth in Exhibit D, and (c) Projects marked as completed, as set forth in Exhibit D; "AFFILIATE" means, with respect to any Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such Person or one or more of the other Affiliates of that Person (or a combination thereof). For purposes of this definition, a Person shall control another Person if the first Person (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other Person, or (ii) has the ability to elect a majority of the directors of the other Person. For purposes of this definition, "Person" does not include an individual, Bell's Affiliates shall be deemed to include all BCE Inc.'s Affiliates and Certen's Affiliates shall be deemed to include all Affiliates of Amdocs Limited; "AGREEMENT" means this Agreement together with the Exhibits attached hereto, all as may be subsequently amended or restated from time to time; "AMDOCS" means Amdocs Software Systems Ltd.; "AMENDED MOSA" means the Amended and Restated Master Outsourcing Services Agreement made between Bell Canada and Certen as of April 26, 2001; "AMENDED ROAD MAP" means the document entitled "Road Map for Modernization" which is attached as Exhibit D to the Amended MOSA, including all annexes attached thereto; "AMENDMENT EFFECTIVE DATE" means July 1, 2003; "APPLICATIONS SOFTWARE" means software programs in any format which perform specific functions or applications, including user related data processing functions, for the BCH Companies or their customers, together with supporting documentation and materials; "ARBITRATION AWARD" has the meaning ascribed thereto in Section 18.2 of this Agreement; "ARBITRATOR" has the meaning ascribed thereto in Section 18.2; "ASSET TRANSFER AGREEMENT" means the asset transfer agreement dated January 26, 2001 between Certen and Bell Canada;
4 "AUDIT DEFICIENCIES" has the meaning ascribed thereto in Section 5.11; "AUDIT PLAN" has the meaning ascribed thereto in Section 23.3a; "BCH COMPANIES" means, individually and collectively, Bell Canada and Bell Mobility; "BCH [**] OBLIGATIONS" has the meaning ascribed thereto in Section 5.12c; "BELL" means Bell Canada acting in the capacity and role, with respect to this Agreement, specified in greater detail in Section 2.2 below. For greater certainty, "Bell" includes Bell Sympatico and the Enterprise Division, unless specifically stated otherwise; "BELL SYMPATICO" OR "SYMPATICO" means that business unit within Bell which carries on the Sympatico Internet service provider business as formerly operated by Bell ActiMedia Inc. as of the Effective Date and with respect to which Bell Actimedia Inc. transferred to Bell such Internet service provider business on June 1, 2001; "BELL NEXXIA" means the former business unit within Bell Canada which carried on the business which BCE Nexxia Inc. and its operating subsidiaries carried on until April 1, 2003, the date upon which BCE Nexxia Inc. amalgamated with Bell Canada (Bell Nexxia has since been superseded by the Enterprise Division); "BELL-[**] SERVICES" has the meaning ascribed thereto in Section 5.12c below; "BELL CUSTOMER CONTRACTS" means the contracts listed in Exhibit M3 between the BCH Companies and a customer thereof which contracts are either assigned or subcontracted to Certen, as specified in Exhibit M3; "BELL MOBILITY" means Bell Mobility Inc. and its operating subsidiaries receiving the Services hereunder; "BELL MOBILITY-[**] SERVICES" has the meaning ascribed thereto in Section 5.12c below; "BELL'S [**] FEES" has the meaning ascribed thereto in Section 5.12c below; "BILLING OPERATIONS SERVICES" has the meaning ascribed thereto in Section 2.5 of this Agreement; "BUSINESS CASE" has the meaning ascribed thereto in Exhibit B to this Agreement; "BUSINESS DAY" means any day except: (i) a statutory holiday in Ontario or Quebec; and (ii) a Saturday or a Sunday; "[**]" has the meaning ascribed thereto in Exhibit A; "CERTEN DEVELOPMENT SUPPORT SERVICES" has the meaning ascribed thereto in Section 2.5; "[**]" means [**];
5 "[**]" means the portions of the following agreements attached as Exhibits X1 and X2, respectively: (i) [**] (the "[**]"), dated [**]; and (ii) [**] (the "[**]"), dated [**]; "CGL" has the meaning ascribed thereto in Section 19.1b of this Agreement; "CHANGE IN CONTROL" means a change in ownership or control of a Person which results in a new entity either (i) owning beneficially or of record, more than fifty percent (50%) of the voting securities of such Person, or (ii) having the ability to elect a majority of the directors of such Person; "CHANGE ORDER PROCESS" has the meaning ascribed thereto in Exhibit G; "CHANGE PROPOSAL" has the meaning ascribed thereto in Exhibit G; "CHANGE REQUEST" has the meaning ascribed thereto in Exhibit G; "CLAIMS" has the meaning ascribed thereto in Section 17.1 of this Agreement; "CLOSING DATE" means the closing date for the sale of the shares of Certen from Bell Canada to an Affiliate of Amdocs pursuant to the Share Purchase Agreement; "CODE" has the meaning ascribed thereto in Section 13.1 of this Agreement; "CONFIDENTIAL INFORMATION" means any information, disclosed by one Party (in the case of Bell, including all BCH Companies and in the case of Certen including Certen, Amdocs and Amdocs' Affiliates) (the "DISCLOSING PARTY") to another Party (in the case of Bell including all BCH Companies and in the case of Certen including Certen, Amdocs and Amdocs' Affiliates) (the "RECEIVING PARTY") orally (provided that the Disclosing Parties identifies the oral disclosure as confidential), in writing, electronically or in any tangible form, concerning the business and affairs of a Disclosing Party, irrespective of the form or medium of communication. Confidential Information shall include, without limitation, Databases, ideas, formulas, compositions, inventors' notes, discoveries and improvements, know-how, manufacturing and production processes and techniques, and research and development information (whether or not patentable), invention disclosures, unpatented blueprints, drawings, specifications, designs, plans, proposals and technical data, business and marketing plans and customer lists and information, as well as all notes, analysis, computations, studies, and other material prepared by a Disclosing Party or its representative, containing, in whole or in part, confidential information of the other Disclosing Party; "COOPERATE" shall mean, whenever used herein with reference to a Party's obligations, an obligation of such Party to use every reasonable commercial effort, but shall not be interpreted to require such Party to enter into any agreement or undertaking to pay or otherwise confer anything of material value to or for the benefit of a third party, to guarantee an obligation, to make whole or hold harmless a third party or to take any other action which would have a material adverse effect on the business of such Party;
6 "CRITICAL SERVICE LEVEL KVMS" has the meaning ascribed thereto in Exhibit C-1 and C-2; "CUSTOMER CARE OPERATIONS SERVICES" has the meaning ascribed thereto in Section 2.5 of this Agreement; "DATABASES" means all required collections of data in any media or format regardless of technology used to produce it provided by the BCH Companies to Certen from time to time to allow Certen to deliver the Services; "DECLARATION OF CESSATION" has the meaning set forth in 26.1c.; "DEVELOP" or "DEVELOPED" has the meaning ascribed thereto in Section 13 of this Agreement; "DEVELOPMENT SUPPORT SERVICES" means the services to be performed by Certen in respect of any Development Work as listed in Exhibit O-1 (Roles and Responsibility - Delivery); "DEVELOPMENT WORK" means any change to the Systems or the Services other than in the course of providing the Operations Services or the Support Services, resulting from the Change Order Process; "DISPUTE" has the meaning ascribed thereto in Section 18.1 of this Agreement; "E&O" has the meaning ascribed thereto in Section 19.1 of this Agreement; "E-BILL" means a Service to be provided by Certen to enable customers of the BCH Companies, who were not already receiving bills electronically, to receive their bills electronically, rather than on paper, and by doing so saving Certen the bill printing, postage and other costs and efforts; the E-Bill calculation in Annex 1 to Exhibit B does not include Bell Sympatico customers that received bills electronically prior to the Effective Date which number the Parties agree is [**] annually; "EFFECTIVE DATE" means January 26, 2001; "ELIGIBLE CONSOLIDATED BILLS" has the meaning ascribed thereto in Exhibit B; "ENTERPRISE DIVISION" has the meaning ascribed thereto in Exhibit B; "EXECUTIVE PRIME" has the meaning ascribed thereto in Exhibit F; "FEES" means any fees to be paid under this Agreement including the fees outlined in Exhibit B "Fees"; "FORCE MAJEURE EVENT" has the meaning ascribed thereto in Section 26.1 below of this Agreement; "GRACE PERIOD" has the meaning ascribed thereto in Exhibit C-1 and Exhibit C-2;
7 "GUARANTEE EVENT" occurs if (i) all or a substantially all of the assets of Amdocs Limited are in any way transferred to another Person and such other Person has not assumed all of the obligations of Amdocs Limited under the Guarantee between Bell Canada and Amdocs Limited dated as of July 1, 2003, in violation of Section 14(2) of such guarantee and (ii) Certen ceases to provide the Services. "HARDWARE" means all information and communications technology machinery and computer equipment, together with all associated components, connecting equipment, network, peripherals, media, firmware and other embedded software and instructions; "[**]" means [**]; "[**]" means [**]; "IDENTIFICATION" has the meaning ascribed thereto in Section 29.1 below of this Agreement; "INDEMNIFIED PARTIES" has the meaning ascribed thereto in Section 17.1 below of this Agreement; "INDEMNIFIER" has the meaning ascribed thereto in Section 17.1 below of this Agreement; "INITIAL TERM" has the meaning ascribed thereto in Section 3.1 of this Agreement; "IN-SCOPE OPERATIONS" means all functions and responsibilities that are included within the scope of Exhibit A and which are to be performed by Certen in delivering the Services; "INTELLECTUAL PROPERTY" means anything that is or may be protected by any Intellectual Property Right such as, but not limited to works (including computer programs), performances, discoveries, inventions, trade-marks (including trade names and service marks), industrial designs, mask work and integrated circuit topographies, whether or not they may also be protected, at any given time, by rights in Confidential Information; "INTELLECTUAL PROPERTY RIGHT" shall mean any right that is or may be granted or recognized under any Canadian or foreign legislation regarding patents, trade-marks, trade names, service marks, industrial designs, mask work, integrated circuit topography, confidential information including Confidential Information and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing; "ITA" has the meaning ascribed thereto in Section 11 of this Agreement; "LATE FACTOR" has the meaning ascribed thereto in Section 12.3b of this Agreement;
8 "LEGACY SYSTEMS" means those Systems owned and/or used by the BCH Companies immediately prior to the Effective Date to provide the Services and operated by Certen, as such Systems may be updated, modified or replaced from time to time in accordance with this Agreement; "LINES OF BUSINESS" has the meaning ascribed thereto in Exhibit A to this Agreement; "LOSSES" shall mean all losses, liabilities, damages and claims (including taxes), and all costs and expenses related thereto (including any and all reasonable attorney fees and costs of investigation, litigation, settlement, judgment, interests and penalties), subject to and in accordance with Section 25 (Limitation of Liability) below; "MASTER LICENSE AND SERVICES AGREEMENT" OR "MLSA" means the Master License and Services Agreement dated as of July 1, 2003 among Bell Canada, Amdocs and Certen; "MODERNIZATION" means the performance of the activities necessary to implement the Modernized Systems; "MODERNIZED SYSTEMS" means the Systems, other than the Legacy Systems, used to provide the Services, as enhanced and modernized in accordance with the 2003 Road Map; "NEW SERVICES" shall mean billing operations services, associated ongoing support services, customer care operations services, associated development support services and associated or related services that are not included within the scope of the Services; "NOTICE OF ARBITRATION" has the meaning ascribed thereto in Section 18.2 of this Agreement; "ONGOING SUPPORT SERVICES" has the meaning ascribed thereto in Section 2.5 of this Agreement; "OPERATIONS PROCEDURES MANUAL" means the manual to be prepared by Certen and approved by each of the BCH Companies, as applicable, setting out the operations procedures to be followed by Certen in connection with the provision of the Services; "OPERATIONS SERVICES" means the Billing Operations Services, the Customer Care Operations Services, the Ongoing Support Services and the Other Operations Services; "ORIGINAL MOSA" means the Master Outsourcing Services Agreement made between Bell Canada and Certen as of January 26, 2001; "ORIGINAL ROAD MAP" means the document entitled "Road Map for Modernization" which is attached as Exhibit D to the Original MOSA, including all annexes attached thereto; "OTHER OPERATIONS SERVICES" has the meaning ascribed thereto in Section 2.5 of this Agreement;
9 "OVERSIGHT FUNCTIONS" means those activities, functions and responsibilities listed under the heading "Bell" in Exhibits O-1 and O-2; "PARTY" means either Certen or Bell Canada as applicable, and "PARTIES" means Certen and Bell Canada; "PENALTY REBATE" has the meaning ascribed thereto in Section 7.4 of this Agreement; "PERSON" means an individual, partnership, limited liability company, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, or other entity or a government or any agency, department or instrumentality thereof; "PRICE PER UNIT" means the Fee which shall be payable to Certen under this Agreement for each Unit billed hereunder. The Price Per Unit shall be calculated in the manner provided for in Section 3.1(a) of Exhibit B, subject to adjustment as provided for in Section 10.3 of this Agreement and Section 4.1 of Exhibit B; "PROJECT" means a statement of work containing a defined set of activities with its associated schedule and budget that has a pre-defined commencement date and completion date; "REMITTANCE AGREEMENTS" means the following agreements as the same may be amended or restated from time to time: (a) Remittance Processing Services Agreement between Bell Canada and [**] January 31, 1997; (b) Remittance Processing Services Agreement between Bell Canada and [**] dated May 1, 1999; (c) Remittance Processing Services Agreement between Bell Canada and [**] dated May 1, 1999; (d) Remittance Processing Services Agreement between Bell Canada and [**] dated May 1, 1999; (e) Remittance Processing Services Agreement between Bell Canada and [**] dated May 1, 1999; (f) Remittance Processing Services Agreement between Bell Canada and [**] dated May 1, 1999; and (g) Remittance Processing Services Agreement between Bell Canada and [**] dated November, 2001;
10 "REQUIRED CONSENTS" shall mean any consents or approvals, including regulatory approvals, required , as at the Effective Date, for the licensing or transfer of the right to use applicable space, equipment, software, third party services or the transfer of any facilities to Certen, and the assumption of the obligations related thereto by Certen. A list of the Required Consents is set forth in Exhibit R; "ROAD MAP DEVELOPMENT SUPPORT SERVICES" has the meaning ascribed thereto in Section 2.5; "SERVICES" has the meaning ascribed thereto in Section 2.5 of this Agreement; "SERVICE LEVELS" means the performance measures and service levels set out in Exhibit C-1 and Exhibit C-2 of this Agreement and includes Critical Service Level KVMs; "SHARE PURCHASE AGREEMENT" means the share purchase agreement dated as of May 28, 2003 between Bell Canada and an Affiliate of Amdocs; "SOFTWARE" means, collectively, all System Software and all Applications Software relating to the Services; "SR&ED" has the meaning ascribed thereto in Section 11; "[**]" means [**], a unit that is used to [**] used under the [**] Agreement; "SUPPLEMENTAL OBLIGATION" has the meaning ascribed thereto in Section 5.5 of this Agreement; "SUPPORT SERVICES" means, collectively, the Road Map Development Support Services and the Certen Development Support Services; "SYMPATICO PROJECT" means any work performed by Amdocs for the modernization of Bell Sympatico which received the Services under the letter of agreement dated April 9, 2000 among Amdocs and Bell; "SYSTEMS" means the Hardware, Software and telecommunications lines and equipment, all of which are used in connection with the delivery of the Services, as they exist from time to time and any changes to the foregoing Systems; "SYSTEM SOFTWARE" means the software programs which are generally known as operating software, utilities or system software that are used in conjunction with the Hardware to perform tasks basic to the functioning of a computer and which are required to operate the Applications Software, together with supporting documentation and materials; "TELECOM SERVICES" has the meaning ascribed thereto in Exhibit B; "TERM" has the meaning ascribed thereto in Section 3.1;
11 "TERMINATION ASSISTANCE" has the meaning ascribed thereto in Exhibit J to this Agreement; "TERMINATION MANAGEMENT" has the meaning ascribed thereto in Exhibit J to this Agreement; "TERRITORY" means Canada as it exists on the date hereof and any further possessions or territories thereof; "THIRD PARTY DEVELOPMENT SUPPORT SERVICES" means Development Support Services provided by Certen in connection with any Development Work performed by [**] and for greater certainty [**] the Road Map Development Support Services and the Certen Development Support Services; "TRANSFER TAXES" has the meaning ascribed thereto in Section 10.5; "TRANSITION AGREEMENT" means the Transition Agreement dated as of May 28, 2003 between Certen and Bell Canada, and attached hereto as Exhibit V; "TRANSITION-OUT PERIOD" has the meaning ascribed thereto in Exhibit J; "TRANSITION-OUT WORK PLAN" has the meaning ascribed thereto in Exhibit J; "UNIT" has the meaning ascribed thereto in Exhibit B; "UNIT PLAN" has the meaning ascribed thereto in Section 10.6; and "USE" means (i) any act which, if committed without the proper authorization of an Intellectual Property Right, would constitute an infringement of such Intellectual Property Right, and includes for greater certainty, modification, personalization, customization, development or enhancement and (ii) the use or disclosure of confidential information, subject to the confidentiality provisions of this Agreement. 1.2 EXHIBITS. Subject to Section 4.9 below, the following Exhibits annexed hereto, are incorporated in this Agreement by reference and are deemed to be part hereof, and any references to this Agreement shall mean this Agreement including such Exhibits: Exhibit A - Demarcation Points and Service Definitions Exhibit B - Fees Exhibit C-1 - Service Levels and Reporting Requirements (Legacy Systems) Exhibit C-2 - Service Levels and Reporting Requirements (Modernized Systems) Exhibit D - 2003 Road Map for Modernization Exhibit F - Governance Process Exhibit G - Change Order Process Exhibit I - Disaster Recovery Planning and Services Exhibit J - Transition-Out Plan Exhibit K - Security, Access and Interface Exhibit L1 - List of Corporate Contracts
12 Exhibit L2 - List of services to be Provided by the BCH Companies to Certen Exhibit M1 - List of Contracts Assigned to Certen Exhibit M2 - List of Contracts Assigned to Certen but Managed by [**] Exhibit M3 - Bell Customer Contracts Exhibit O-1 - Roles and Responsibilities (Delivery) Exhibit O-2 - Roles and Responsibilities (Production) Exhibit P1 - Certen Non-Disclosure Agreement (for non-competitors) Exhibit P2 - Certen Non-Disclosure Agreement (for competitors) Exhibit Q1 - Bell Non-Disclosure Agreement (for non-competitors) Exhibit Q2 - Bell Non-Disclosure Agreement (for competitors) Exhibit R - Required Consents as of the Effective Date Exhibit V Transition Agreement Exhibit W Audit Deficiencies Exhibit X1 [**] Exhibit X2 [**] Exhibit X3 [**] SECTION 2. GOALS AND OBJECTIVES AND ROLE OF BELL 2.1 The Parties have entered into this Agreement on the basis of the following goals and objectives, subject to the provisions of this Agreement: a. Transfer on Effective Date. As of the Effective Date, the BCH Companies at their cost and expense transferred to Certen (i) all Systems, assets, documents and materials relating to the Legacy Systems, which were the same or substantially the same Systems, assets, documents and materials relating to the Legacy Systems, as applicable, used by the BCH Companies immediately prior to the Effective Date, and that were materially required and relevant in order for Certen to provide the Services and perform its other obligations under this Agreement with respect to the Legacy Systems; provided, however, that if any Required Consents not obtained by Bell prevented full compliance with the foregoing, Section 4 below shall apply and (ii) the human resources required for Certen to continue to provide with respect to the Legacy Systems the Services which were provided immediately prior to the Effective Date. b. Services and Service Levels for Legacy Systems Generally. Except as otherwise expressly provided in this Agreement (including any Exhibit hereto), Certen shall, from and after the Effective Date, provide all the Services and meet the Service Levels and all other obligations with respect to such Services and Service Levels with respect to the Legacy Systems, [**] manner as the services, service levels, and other obligations, as applicable, [**] by the BCH Companies [**] to the Effective Date. c. Modernization Generally. Certen shall, as contemplated under this Agreement and the Master License and Services Agreement, continue to work with Amdocs to develop and provide to the BCH Companies the Modernized Systems, the
13 whole in accordance with the 2003 Road Map including any timelines set forth therein, and the BCH Companies shall continue to take the necessary steps to implement the Modernization in accordance with the 2003 Road Map. The BCH Companies may not cease the performance of their obligations relating to the implementation of the 2003 Road Map until the budget for the 2003 Road Map as set forth in Exhibit D has been fully utilized. d. Billing Laboratory. As part of the Modernization process, Certen will establish, if Bell so requests, a permanent "billing laboratory" to provide "best in class" Service Levels and to test enhanced billing solutions, capabilities and associated software, thereby enabling the greatest customization of billing solutions for the BCH Companies. e. Results of Modernization. As a result of Modernization, Certen will improve the then [**] provided to the BCH Companies and enhance access by the BCH Companies to leading information technology industry and processes. f. Realization of Cost Savings and Efficiencies. Following the Modernization, Certen will enable the BCH Companies to more rapidly achieve ongoing cost savings and efficiencies to be realized together with enhanced capabilities in accordance with this Agreement. The BCH Companies will Cooperate with Certen to assist Certen in achieving efficiencies, where applicable. g. Improvements to Quality and Cost Effectiveness. Following the Modernization, Certen will improve the quality and cost effectiveness of the Services provided to the BCH Companies by Certen. h. Use of Internet Technology. Certen will interface and communicate with the BCH Companies using Internet technology, such as e-mail, in line with the BCH Companies' "web enabled" general goal and objective. i. Role of Bell - Post Amendment Effective Date - Generally. From and after the Amendment Effective Date, the Parties intend that Bell shall be responsible for (i) overall project management; (ii) overall business and technical architecture; (iii) the business analyst function related to ensuring that the BCH Companies' requirements for the Systems are met; (iv) user acceptance testing and business unit acceptance testing, and (v) oversight of management of billing operations, all as set forth under the heading "Bell" in Exhibit O-1 and Exhibit O-2. j. Scope of Services Generally. The Parties acknowledge that the relationship memorialized by this Agreement is dynamic in nature and that such relationship will change, as the operating and business environment of the BCH Companies shall also change, and that it is impossible to define with absolute specificity the scope of the Services that will be provided by Certen during the Term of this Agreement. The Parties therefore agree that the scope of the Services with respect to the Legacy Systems shall at all relevant times be consistent with Section 2.1a, 2.1b and 2.1i above, and that the scope of the Services with respect to the Systems
14 after Modernization shall at all relevant times be consistent with Sections 2.1c to 2.1i, inclusive. 2.2 BELL TO REPRESENT BCH COMPANIES. The Parties recognize and agree that the BCH Companies shall receive the Services from Certen in accordance with the terms and conditions of this Agreement. It is further agreed that Bell Canada, as Party to this Agreement, shall be the interface between Certen and the BCH Companies (i.e., acting on Bell Canada's own behalf and for the other BCH Company). Notwithstanding anything else to the contrary in this Agreement, Bell Mobility shall have no right to make any Claim hereunder against Certen, except through Bell, including but not limited to, any Claim as third party beneficiary, provided however, that any Claim that Bell Mobility may have hereunder shall be deemed to be a Claim of Bell. 2.3 BELL RESPONSIBLE AND LIABLE FOR [**]. In addition, Bell hereby undertakes throughout the Term and any extension thereof, as well as during any Transition-Out Period, to perform, and be liable for any breach or non-performance of, the obligations, representations, warranties, and indemnities [**] under this Agreement. This Section 2.3 shall survive termination or expiration of this Agreement, in accordance with the provisions of Section 33.1. 2.4 DIVESTITURE OF BCH COMPANY. In the event that Bell considers the divestiture of any one of the BCH Companies, Bell shall, on a reasonable commercial efforts basis, request that the potential purchaser of the divested entity respect the [**] and [**] provisions set forth in Section 6 below; provided, however, that the foregoing shall not in any way relieve Bell or derogate from Bell's undertakings under this Agreement including, but not limited to, the obligations set forth in Section 6 below. Notwithstanding the foregoing, if Bell divests a BCH Company (or effects any reorganization) or a business unit (or any part thereof) or a Line of Business of a BCH Company to an Affiliate of Bell, Bell shall remain bound by the [**] and [**] provisions set forth in Section 6 below with respect to such BCH Company, business unit (or any part thereof) or Line of Business. Bell will take all necessary action to ensure that such Affiliate complies with all the terms of this Agreement with respect to such BCH Company, business unit (or any part thereof) or Line of Business. 2.5 PROVISION OF SERVICES BY CERTEN. Certen shall, pursuant to and in accordance with the provisions of this Agreement, provide the following to the BCH Companies: a. Billing Operations Services. The billing operations services described in Exhibit A, delivered in accordance with Exhibits O-1 and O-2, as applicable (the "BILLING OPERATIONS SERVICES") as such services are amended from time to time in accordance with the Change Order Process; b. Customer Care Operations Services. The customer care operations services described in Exhibit A, delivered in accordance with Exhibits O-1 and O-2, as applicable (the "CUSTOMER CARE OPERATIONS SERVICES"), as such services are amended from time to time in accordance with the Change Order Process;
15 c. Ongoing Support Services. The ongoing maintenance, upgrades, updates and support of the Systems (excluding any upgrades and updates to provide additional functionality) and other ongoing support services all as described in Exhibit A, delivered in accordance with Exhibits O-1 and O-2, as applicable (the "ONGOING SUPPORT SERVICES") as such services are amended from time to time in accordance with the Change Order Process; d. Other Operations Services. The (i) disaster recovery services described in Section 5.10; (ii) the development, implementation and administration of the policies and procedures, including the reporting, governance, auditing and other procedures required in this Agreement, such as the development of an Operations Procedures Manual within such time as to be agreed by the Parties, not more than [**] from the Amendment Effective Date; (iii) the security obligations of Certen set forth in Section 23.4 and Exhibit K; (iv) services performed by Certen pursuant to Section 5.5b; and (v) and all other services described or referred to in Exhibit A, in each case as such services are amended from time to time in accordance with the Change Order Process (the "OTHER OPERATIONS SERVICES"); e. Road Map Development Support Services. Development Support Services in connection with the development, integration and implementation of features and/or changes to Services contemplated by the 2003 Road Map, as such services are amended from time to time in accordance with the Change Order Process (the "ROAD MAP DEVELOPMENT SUPPORT SERVICES"); and f. Certen Development Support Services. Development Support Services in connection with any Development Work performed by Certen or any of its Affiliates, other than the Road Map Development Support Services, which Development Support Services are funded through the Ensemble Customization Credit as set forth in Exhibit B (the "CERTEN DEVELOPMENT SUPPORT SERVICES"). In this Agreement, the Billing Operations Services, the Customer Care Operations Services, the Ongoing Support Services and the Other Operations Services shall be collectively referred to as the "OPERATIONS SERVICES", and the Road Map Development Support Services and the Certen Development Support Services shall be collectively referred to as the "SUPPORT SERVICES". The Operations Services, the Support Services together with New Services (once rendered by Certen after compliance with the Change Order Process) shall be collectively referred to as the "SERVICES". For the avoidance of doubt, the "SERVICES" do not include Termination Assistance or Termination Management provided during the Transition-Out Period. 2.6 ADDITIONAL OBLIGATIONS OF CERTEN. In addition to providing the Services, Certen shall, pursuant to and in accordance with the provisions of this Agreement: a. perform, in conjunction with Amdocs, the Modernization as contemplated by the 2003 Road Map in accordance with Exhibit D; b. fund and support, as provided for in Exhibit B: (i) the development of enhancements of and/or improvements to the Legacy Systems by providing Bell
16 with monthly credits to support the performance of such work; (ii) the development of enhancements and/or improvements to the Modernized Systems by providing Amdocs and Bell with credits to support the performance of such work, all subject to the Master License and Services Agreement; and (iii) the performance by Bell of architectural design, planning and user and business unit acceptance testing by providing Bell with monthly credits to support the performance of such work; and c. perform Third Party Development Support Services as provided for in Section 5.9. SECTION 3. TERM 3.1 INITIAL TERM AND POSSIBLE EXTENSION. The term of this Agreement commenced as of the Effective Date and, unless earlier terminated in accordance with the provisions hereof, shall continue in effect until December 31, 2010 (the "INITIAL TERM"). For greater certainty the Initial Term began at 12:01 am (Toronto time) on January 26, 2001 and shall end at 11:59 pm (Toronto time) on December 31, 2010. During the period beginning on the Effective Date and ending at 11:59 pm (Toronto time) on the day preceding the Amendment Effective Date the provision of the Services and the relationship of the Parties was governed by the Amended MOSA and from and after 12:01 am (Toronto time) on the Amendment Effective Date the provision of the Services and the relationship of the Parties shall be governed by this Agreement. Bell on behalf of all of the BCH Companies, may, prior to December 31, 2010, provide to Certen a [**] written notice indicating that Bell intends (subject to the negotiation of satisfactory Fees and other terms and conditions for the continuing provision of the Services) to extend this Agreement at the end of the Initial Term for an additional three (3) year extension period (the Initial Term together with such three (3) year extension period (if such is agreed to by Bell), being hereinafter collectively referred to as the "TERM"). SECTION 4. REQUIRED CONSENTS Unless otherwise mutually agreed between the Parties, the responsibility for Required Consents shall be as follows: 4.1 BCH COMPANIES TO OBTAIN REQUIRED CONSENTS. The BCH Companies will obtain the Required Consents which have not previously been obtained prior to the Effective Date and will have responsibility for all communications seeking the Required Consents. Unless otherwise mutually agreed, [**] responsibility for any payments required to obtain the Required Consents. If any Required Consent was not or is not obtained with respect to any lease, license, service or other agreement (or if the Required Consent so obtained by Bell contains additional terms or conditions, which in Certen's good faith opinion would have an adverse affect on its business), then [**] any such lease, license, service, or other agreements and the rights thereunder in trust for the benefit of Certen and promptly so notify Certen, and unless and until that Required Consent is obtained, the BCH Companies shall promptly provide, with Cooperation from Certen, an alternative arrangement [**] for
17 transferring to Certen, as of the Effective Date, the same or substantially the same benefits, space, amenities, utilities, functionalities, usefulness, levels of service and obligations, as applicable, under the lease, license, service or other agreement for which the Required Consent was not obtained. Without limiting Certen's other remedies under this Agreement, in the event that the failure to obtain any Required Consent results in the failure of Certen to comply with any of its obligations under this Agreement, then Certen shall be excused from such obligations. 4.2 BELL TO INDEMNIFY CERTEN FOR FAILURE TO OBTAIN REQUIRED CONSENT. With respect to any Losses arising from any failure to obtain any Required Consent, Bell shall indemnify and hold harmless Certen pursuant to Section 17.3b hereof. However, if Bell expressly and specifically notifies Certen in advance and in writing of the BCH Companies' failure to obtain a certain Required Consent, and Certen knowingly and willfully uses any applicable space, equipment, software or third party services dependent on such unobtained Required Consent, Bell shall not be obligated to indemnify or hold Certen harmless from any third party claim to the extent such claim is directly related to such use. 4.3 CONTRACTS OF BCH COMPANIES ASSIGNED TO CERTEN. a. Assumption of Certain BCH Company Contracts. Subject to Section 5.1 of this Agreement, Certen agrees to assume all rights and obligations of the BCH Companies arising from the assignment hereunder of leases, software licenses, maintenance and equipment acquisition contracts, Bell Customer Contracts, including any other contracts solely related to the Services, to Certen on or after the Effective Date. A number of such assigned leases, licenses and contract are listed in Exhibits M1, M2, and M3. In the case of the contracts listed in Exhibit M2, such contracts shall continue to be [**] and be subject to the applicable terms and conditions of the [**] Agreements. b. Bell to Provide Assistance. In the event that the Change in Control of Certen as of the Amendment Effective Date results in a termination of a contract which was assigned to Certen (as described in Section 4.3a above), or a modification thereto which has a material adverse affect on Certen, Bell undertakes to make good faith efforts, through its existing relationship with the applicable lessor, supplier or vendor, to assist Certen in its negotiation to remain a party to such agreement on the same or substantially the same terms as those in effect prior to the Amendment Effective Date. c. Changes to Assigned Contracts. Certen shall make reasonable efforts to provide Bell with written notice prior to Certen's termination or material modification of any such assigned third party contracts. In addition, Certen shall indemnify and reimburse Bell for any claims, charges or penalties incurred by the BCH Companies with respect to such assigned third party contracts to the extent such claims, charges or penalties (excluding losses of volume discount benefiting Bell) are caused by Certen and do not arise out of any event, act or omission taking place prior to the Effective Date.
18 4.4 CORPORATE CONTRACTS OF BCH COMPANIES. a. Access to BCH Corporate Contracts. Subject to Section 5.12 below with respect to the [**] Agreement and the [**] Agreement, the Parties acknowledge that the BCH Companies are parties to certain corporate contracts (a number of which with respect to Bell and Bell Mobility are listed in Exhibit L1) that relate to the Services but were not assigned by the BCH Companies to Certen, the scope of such contracts being greater than the scope of this Agreement. The BCH Companies shall exercise any and all rights they may have under such corporate contracts to enable Certen to fully benefit, as of the Amendment Effective Date (or promptly thereafter), from such corporate contracts until December 31, 2007, or such other period with respect to each contract as the Parties may agree ("BENEFIT PERIOD"). For corporate contracts identified in Exhibit L1 as material, at the BCH Companies' sole cost and expense, the BCH Companies agree to negotiate with the applicable third party the possibility for Certen to benefit from any and all such corporate contracts until the end of the Benefit Period. The benefits extended to Certen by Bell hereunder shall only be used in its provision of the Services to Bell under this Agreement. b. Bell to Assist Certen to Replace Contracts. Without limiting Certen's other remedies under this Agreement, in the event that the BCH Companies' failure to enable Certen to fully benefit from such material corporate contracts, as identified in Exhibit L1 (or comparable arrangements as aforesaid) until the end of the Benefit Period, results in the failure of Certen to comply with any of its obligations under this Agreement, then Certen shall be excused from such obligations. In addition, Bell shall [**] enjoyed by Certen under such material corporate contract as at the Amendment Effective Date, despite reasonable efforts made by Bell and Certen to [**] (including, without limitation, initiation fees, increase in license fee costs, or otherwise) until the end of the Benefit Period, but [**]. c. Certen May Terminate Rights Under Corporate Contracts. In order to benefit from any such corporate contracts (or comparable arrangements, as aforesaid), Certen shall respect any contractual obligations that may be imposed by the applicable third party until the end of the Benefit Period. For the avoidance of doubt, Certen shall not be obligated to continue to benefit under such corporate contracts (or alternative arrangements, as applicable), to maintain (or to compensate the BCH Companies for not maintaining) any [**] from which the BCH Companies may benefit as a result of operations of the BCH Companies that are outside the scope of the Agreement. In the event that Certen elects at any time not to continue to benefit under any of such corporate contracts, Certen agrees that it shall be responsible for all liabilities in connection with Certen entering into a new contract. 4.5 SERVICES TO BE PROVIDED BY BCH COMPANIES TO CERTEN. In order to enable Certen to provide the Services, the BCH Companies shall provide as of the Amendment Effective Date and continue to provide to Certen the services listed in Exhibit L2 under the terms
19 and conditions set out in such Exhibit. The BCH Companies shall make such services available to Certen for the Benefit Period, unless otherwise specified in Exhibit L2; provided, however, that Certen shall be entitled to cancel such services, in whole or in part, on reasonable written notice to the BCH Companies, the length of such reasonable notice to be agreed to between the Parties but which shall in no event be greater than the lesser of (a) [**] or (b) the time remaining in the applicable [**] pertaining to the service being terminated by Certen, and provided that Bell reasonably demonstrates to Certen that Bell is committed under the applicable service contract in such a way that a termination could reasonably be expected to have a material adverse commercial effect on the contract or on Bell's relationship with the third party thereunder. Absent such a showing by Bell, the termination notice shall be reasonable, but in no event greater than [**]. In addition, Certen agrees that Bell shall be its [**] supplier of telecommunications services during the Term, subject to agreement on market rates for non-regulated services; regulated services shall be at applicable tariffed rates. 4.6 CERTEN MAY TERMINATE ASSIGNED CONTRACTS. From and after the Effective Date: (a) Certen shall be responsible for paying the lessors, vendors and suppliers listed in Exhibits L1 for the services or other benefits received by Certen thereunder; and (b) Certen shall be responsible for making any required payments and to fulfil its other obligations under the contracts listed in Exhibits M1 and M2. Subject to its obligations to pay applicable penalties, damages, termination or other charges, Certen may cancel, substitute or change the lessors, vendors or suppliers (or terminate the benefits that Certen is receiving) under the third party agreements under Exhibit L1, M1 and M2 as it chooses, in which case, Certen shall continue to perform the Services in the manner required by this Agreement. Certen will make reasonable efforts to provide written notification to the BCH Companies prior to the termination or modification of any such third party agreement (or termination of the benefit that Certen is receiving, as applicable) as well as in the event such termination may have an impact on the operations of the BCH Companies. 4.7 BELL OBLIGATION TO REIMBURSE CERTEN. Subject to Exhibit J, upon termination or expiration of this Agreement, Bell shall reimburse Certen in a timely manner for any payments made by Certen to the lessors, vendors and suppliers (whose leases, licenses or other agreements are transferred back to the BCH Companies in accordance with this Agreement) during the period prior to the effective date of such termination or expiration that would apply for any period subsequent to the termination or expiration date. 4.8 INDEMNITY FOR PRE-EFFECTIVE DATE EVENTS. Bell shall remain solely liable for and shall indemnify Certen against any Claims arising out of any events, acts or omissions which took place prior to the Effective Date with respect to the contracts, leases, licenses and other agreements described in this Section 4. 4.9 COMPLETION OF EXHIBITS. The Parties recognize and agree that certain Exhibits remain incomplete as of the Amendment Effective Date, as expressly set forth in such Exhibits. The Parties will use all reasonable efforts to finalize incomplete Exhibits within the period set forth in such Exhibits for completion. Following the Amendment Effective Date, the Parties reserve the right to perform an inventory of, and validate and update,
20 any information that is reflected in or omitted from the attached Exhibits (in all cases, with the final Exhibit to be agreed in writing by the Parties). SECTION 5. TRANSFER OF LEGACY SYSTEMS AND PROVISION OF SERVICES 5.1 TRANSFER OF LEGACY SYSTEMS. As of the Effective Date, the BCH Companies transferred, at their cost and expense as also specified in the Asset Transfer Agreement all of their right, title, and interest in and to (i) the Systems (including the Legacy Systems) and assets (and the Intellectual Property Rights therein set forth in Exhibits M1, M2 and M3 to the extent of the assigned contracts specified therein, and any other systems, assets, documents, or materials (and the Intellectual Property Rights therein) necessary and relevant for Certen to provide the Services with respect to the BCH Companies' Legacy Systems, which were the same or substantially the same Systems, assets, documents, or materials, as applicable, used by the BCH Companies immediately prior to the Effective Date; provided, however, that if any Required Consents not obtained by the BCH Companies prevent full compliance with the foregoing, Sections 4.1 and 4.2 above shall apply and (ii) the human resources required for Certen to provide the Services with respect to the Legacy Systems, as such existed immediately prior to the Effective Date. Without limiting Certen's other remedies under this Agreement, in the event that the BCH Companies have failed to so deliver such Systems, assets, documents, materials or human resources, in whole or in part, as of the Effective Date, Certen shall be excused from its obligations with respect to the Legacy Systems, to the extent such undelivered Systems, assets, documents, materials or human resources are required to perform such obligations. 5.2 [**] SOFTWARE. Bell granted, as of the Effective Date, to Certen a royalty-free, non-exclusive license (in object and source code) to use the [**] Software, with a right to sub-license, in the Territory (i) for the purpose of the delivery of the Services; and (ii) similar services to third parties, throughout the Term. Certen shall indemnify Bell for any Claim for infringement of Intellectual Property Rights arising out of Certen's use of the [**] Software outside of the Territory. 5.3 OVERSIGHT FUNCTIONS TO BE PERFORMED BY BELL. From and after the Amendment Effective Date, Bell shall assume the performance of the Oversight Functions. 5.4 CERTEN TO PROVIDE SERVICES TO BCH COMPANIES. Bell hereby confirms, as of the Amendment Effective Date, that a substantial majority of the customers of the BCH Companies reside in the Territory. Certen shall continue to provide the Services to the BCH Companies, a substantial majority of the subscribers of which shall continue to be located within the Territory. 5.5 SERVICE LEVELS - LEGACY SYSTEMS. The Services and Service Levels provided by Certen with respect to the Legacy Systems, and all other obligations with respect to such Services and Service Levels, shall be [**] services, service levels, or other such obligation received by the BCH Companies [**], except to the extent expressly provided otherwise in this Agreement (including any Exhibit hereof).
21 a. Accordingly, in the event that the BCH Companies request Certen to perform a service, service level or other obligation with respect to the Legacy Systems (collectively, the "SUPPLEMENTAL OBLIGATION") that: (i) was not performed by/for the BCH Companies immediately prior to the Effective Date; (ii) is not otherwise expressly set forth in this Agreement (including any Exhibit hereof); and (iii) (A) is not a fringe service, which is ancillary or complimentary to Sections 5.5a(i) or 5.5a(ii) above, and (B) the provision of such Supplemental Obligation would have no material financial impact on Certen (provided, however, that even if such Supplemental Obligation would have a material financial impact on Certen, the Parties shall not consider such impact (for purposes of this Section 5.5a) if Certen had notice in writing from the BCH Companies of the performance of such Supplemental Obligation through the disclosure of materials provided by the BCH Companies during the due diligence period prior to the Effective Date), then such request shall be deemed a Change Request. b. Conversely, in the event that the BCH Companies request Certen to perform a Supplemental Obligation that: (i) was performed by/for the BCH Companies immediately prior to the Effective Date, (ii) is otherwise expressly set forth in this Agreement (including any Exhibit hereof); or (iii) is (A) a fringe service, which is ancillary or complimentary to subsections 5.5a or 5.5b above and (B) the provision of the Supplemental Obligation would have no material financial impact on Certen or if Certen had notice of the performance of such Supplemental Obligation through the disclosure of materials provided by the BCH Companies during the due diligence period prior to the Effective Date), then such request shall be performed by Certen as part of the Services (without additional charge). 5.6 SERVICE LEVELS - MODERNIZED SYSTEMS. Initially the Service Levels provided by Certen with respect to the Modernized Systems shall be [**] Systems. The Service Levels for the Modernized Systems shall be subject to upward adjustment after the Amendment Effective Date as agreed to by the Parties. 5.7 RESTRICTIONS ON CHANGES TO HARDWARE PLATFORM.
22 a. Certen or Bell will install at the Installation Site(s) the Platform as required for the installation and proper operation of the Products, in accordance with a detailed configuration to be mutually agreed upon by Certen and Bell and to be specified in the DAD document or as set forth in the Roles and Responsibilities (as such capitalized terms used herein are defined in the Master License and Services Agreement). Certen shall not replace or modify the BCH Companies' Hardware platform unless new Hardware is compatible with the Hardware platform used by the BCH Companies in their other operations. In addition, Certen will purchase new Hardware, Software and network resources, as required pursuant to the 2003 Road Map, and as set forth in the applicable detailed architectural design document in order to successfully complete the Modernization. The BCH Companies acknowledge and agree that Certen plans to utilize a [**] environment of one of the leading [**] suppliers. b. For Systems required to perform the Services, Certen shall maintain Currency for (i) the Licensed Products (as defined in the Master License and Services Agreement) incorporated into the Modernized System, (ii) third party Software used to provide the Services, and (iii) Hardware. In this Agreement, "CURRENCY" or "CURRENT" means that the Software and Hardware versions are [**] the applicable vendor (in the case of the Licensed Products incorporated into the Modernized System, by Certen's (or its Affiliate's) research and development division). Notwithstanding the foregoing, if any Software or Hardware components are not Current as of the Amendment Effective Date, then Certen shall not have any obligation of Currency for such components for the period of [**] from the Amendment Effective Date. Certen will manage the incorporation of upgrades and enhancements in accordance with Certen's business practices which shall be comparable with those of leading suppliers of managed operations services in North America. Certen will consider recommendations from Bell regarding the implementation of updates and enhancements. c. Software other than: (i) Software that is readily commercially available from a Person which is not an Affiliate of Certen; or (ii) Software in respect of which Certen or Amdocs has granted Bell a [**] license pursuant to the MLSA, may only be used to provide the Services in accordance with a Change Proposal pursuant to which Bell is entitled to obtain a [**] license, under the terms provided for in the MLSA, to use such Software. 5.8 DATA BACKUP STORAGE SERVICES. Certen shall be responsible for data backup storage services with respect to the Databases. 5.9 THIRD PARTY DEVELOPMENT SUPPORT SERVICES. If requested by Bell, Certen will perform Third Party Development Support Services, which shall be charged for [**] in accordance with Exhibit B. Bell shall, before obtaining any Development Work (including Software) from a third party for operation on the Systems, consult with Certen concerning the integration of such Development Work on the Systems. Certen has the right to test and approve any Development Work of a third party provider prior to the integration thereof on the Systems. Certen shall cooperate with any third party provider
23 of such Development Work and shall provide any information reasonably required by the third party in connection with the development, testing, configuration or implementation of such Development Work for use on the Systems and shall integrate the third party Development Work for operation on the Systems on the terms set forth herein. Where Bell requires Certen to work with a third party developer, then unless otherwise agreed in writing, Certen will not be responsible for disruption to or negative impact on the provision of the Services by Certen which results from defects in the Development Work provided by such third party developer. Certen shall promptly notify Bell of any defects in the Development Work performed by the third party of which Certen is aware. 5.10 DISASTER RECOVERY SERVICES. Certen shall, as part of the Services, provide disaster recovery services as contemplated by Exhibit I hereto. The Parties agree to share the reasonable and necessary initial setup costs required for the implementation of the DRPs, the ARMs and the BCRPs (as defined in Exhibit I) (e.g., Hardware, Software, facilities, installation, etc.) which the Parties had reasonably expected to have been in place on the Amendment Effective Date as follows: [**]% by Bell and [**]% by Certen. Following the initial setup of the Systems as required to implement such DRPs, ARMs and BCRPs, Certen will bear the costs associated with adapting and maintaining the Systems and such DRPs, ARMs and BCRPs and providing any related Services for the Modernized System during the Term. 5.11 COMPLIANCE REQUIREMENTS DISCOVERED DURING AUDIT. Pursuant to Section 23.3, the Parties acknowledge that certain Services that Certen is required to provide under the Amended MOSA, or is otherwise required by law to provide, may not have been so provided as of the Amendment Effective Date (such deficiencies being those listed in Exhibit W and any deficiencies identified in any audits pursuant to Section 23.3 hereof relating to events which occurred prior to the Amendment Effective Date and which are identified in any audit conducted in accordance with Section 23.3 prior to the Amendment Effective Date or in any audit conducted in accordance with an Audit Plan during the period of [**] months from the Amendment Effective Date (the "AUDIT DEFICIENCIES"). The Parties agree to work together to correct the Audit Deficiencies as cost-efficiently as possible and agree that the necessary costs reasonably incurred, which shall be agreed upon in advance by the Parties, to upgrade the Systems to the extent required to permit Certen to correct the Audit [**] shall be paid as follows: [**]% by Bell and [**]% by Certen. After the Systems have been upgraded as provided above, [**] will bear all of the costs associated with providing the Services and adapting and maintaining the Systems as required to continue to provide such Services thereafter during the Term. 5.12 CERTEN TO COOPERATE WITH OTHER SERVICE PROVIDERS. a. Certen to Cooperate with Other Service Providers. Certen shall reasonably cooperate with other service providers providing services related to the Services, such as but not limited to [**] and [**], subject to Certen's confidentiality requirements (including special arrangements with third party competitors of Amdocs), in accordance with Section 16 below, and subject to Bell's reimbursement of Certen's reasonable costs resulting from such cooperation,
24 which costs for greater certainty shall not include any costs resulting from cooperation with Amdocs or any Affiliate of Amdocs or Certen. b. [**] Agreement. In order to enable Certen to benefit from the provision of [**] services under the [**] Agreement, as such services relate to the Services, the BCH Companies designate Certen as an Authorized User under the [**] Agreement, as defined therein, and Certen accepts such designation. Certen, by accepting such designation, agrees to be bound by all applicable terms and conditions of the [**] Agreement with the exception of [**]. The Parties also agree that fees related to Certen's receipt of [**] services under the [**] Agreement shall be payable by Certen to Bell, and such fees shall be expressed for the [**] in terms of [**], and on [**] for the [**] as per the terms and conditions of the [**] Agreement. Bell acknowledges that its fees to [**] for the full calendar year 2002, for that portion of the [**] services to Bell which relate to the Services were [**] Canadian Dollars (CA$[**]). Certen's projected fees in 2003 are [**] Canadian Dollars (CA$[**]) and the projected price for such [**] is $[**] Canadian Dollars (CA$[**]) per [**]. Notwithstanding the foregoing, if the fees related to Certen's receipt of [**] services materially exceed the fees budgeted in the Business Case to be paid for such services (other than for reasons attributable to the existing pricing regime under the [**] Agreement), the Parties will negotiate in good faith a solution to counter such increased cost. Furthermore Certen agrees to indemnify Bell in the event of any failure by Certen to comply with the applicable terms and conditions of the [**] Agreement ([**] for greater certainty any [**] obligations contained therein). c. [**] Agreements. In order to enable Certen to benefit from the provision of [**] services under the Bell-[**] Agreement and under the Bell-Mobility-[**] Agreement, as such services relate to the Services (the "BELL-[**] SERVICES" and the "BELL MOBILITY-[**] SERVICES", respectively; collectively, the "[**] SERVICES"), Bell designates Certen as [**] under the [**] Agreements, as applicable and as defined therein, and Certen accepts such designation. Bell represents that its fees to [**] for the full calendar year 2002 for that portion of the [**] Services [**] fees to Bell which relate to the Services were [**] Canadian Dollars (CA$[**]) ("BELL'S [**] FEES"). Bell's [**] Fees projected for 2003 are [**] Canadian Dollars (CA$[**]). The Parties agree that the fees related to Certen's receipt of the Bell-[**] Services provided to Certen shall be payable by Certen to Bell and such fees shall be not greater than the fees paid by Bell to [**] for such Services. Notwithstanding the foregoing, in the event that Bell's [**] Fees payable by Certen materially increase, other than for reasons attributable to the existing pricing regime under the Bell-[**] Agreement, the Parties shall negotiate in good faith a mutually acceptable solution to counter such increased cost and the same shall apply, mutatis mutandis, to the fees with respect to the Bell Mobility-[**] Services. Certen shall [**], as [**] under the [**] Agreements, to any right [**] granted by Bell or Bell Mobility to [**] (collectively, "BCH [**] OBLIGATIONS") and to which the BCH Companies are, therefore, subject under the [**] Agreements, but Certen acknowledges that it will receive the Bell-[**] Services and the Bell Mobility [**] Services referred to herein. Furthermore,
25 the BCH Companies [**] to do all things and take all actions which the BCH Companies are entitled to do and take under the [**] Agreements, including liaising directly with [**], in relation to the services of [**] which Certen receives as [**], and Certen accepts such appointment. Certen, by accepting such designation and appointment agrees to be bound by the applicable terms and conditions of the [**] Agreements, but (for the avoidance of doubt) [**] by the BCH [**] Obligations. In addition, Certen shall have the duty to interact directly with [**] in relation to day-to-day matters such as work program content, [**] related to the services Certen shall receive from [**], all as indicated in the [**] Agreements, and to manage its relationship with [**] as it relates to the Services. The BCH Companies shall have the right to reasonably monitor interfaces between Certen and [**]. Certen agrees to indemnify the BCH Companies in the event of any Claim by [**] against the BCH Companies arising out of Certen's material breach of its obligation as [**] under the [**] Agreements. For the avoidance of doubt, Certen [**] Bell in the event of any Claim or Losses arising out of the BCH [**] Obligations or any BCH Company obligations to meet (or benefits to the BCH Companies for meeting) [**] under the [**] Agreements. d. Orders to [**] or [**]. The Parties agree that the BCH Companies shall not issue any order to [**] or [**] (including but not limited to any order issued in connection with the annual work plans with such companies) for which Certen would be liable without the prior written consent of Certen, which consent shall not be unreasonably withheld. e. Effect of Breach of Agreements. If [**] breaches the [**] Agreements or [**] breaches the [**] Agreement, (i) the BCH Companies' remedies with regard to such breach(es) shall be as set forth in such agreements; and (ii) Certen's responsibilities with respect to such breaches shall be limited to its obligations to manage and direct the [**] Agreements, as the BCH Companies' [**], and to act in accordance with the obligations of [**] under both the [**] Agreements and the [**] Agreement and Certen shall have no other liability to the BCH Companies for breaches by [**] of the [**] Agreements or for breaches by [**] of the [**] Agreement. f. Modification of Certain Corporate Contracts. Notwithstanding anything to the contrary, the BCH Companies shall have no right to modify, waive or terminate any rights in any material corporate contracts identified in Exhibit L1 (including but not limited to the [**] Agreement and the [**] Agreements) without Certen's prior written consent therefor, if such extension or modification would have a material adverse affect on the business of Certen. g. [**] and [**] Agreements. Certen acknowledges that [**] the [**] Agreements and the [**] Agreements [**] prior to the entering into of this Agreement. In the event that the BCH Companies have [**] of the [**] Agreements or [**] Agreement and [**] has a [**] on the business of Certen, the BCH Companies shall indemnify and hold Certen harmless against any Losses suffered by it as a result of [**].
26 5.13 USE OF INTERNET TECHNOLOGY. Certen shall make reasonable efforts to interface and communicate with the BCH Companies using Internet technology, such as e-mail, as the primary technology platform for such interfacing and communication, where applicable, e.g., for the processing and payment of invoices between the Parties. 5.14 SERVICE DELIVERY [**]. Without derogating from any other rights of Certen hereunder, Certen shall have the option to (a) [**] the system administration, operational control, bill review and audit functions for the Legacy Systems to [**], and (b) [**] the data center (including data center operations and billing operations) in respect of the Systems using "ENSEMBLE" technology (including system administration and operational control) to [**], in each case provided that: (i) there is no disruption, delay or degradation to the Services provided by Certen except to the extent that Certen has given reasonable notice to Bell in advance of any disruption and has taken all necessary or desirable steps to minimize disruption to the Services, (ii) Service Levels are maintained, (iii) disaster recovery services are fully available throughout the Term, including the period of the [**], (iv) there will be no impact on the compliance by Certen and the BCH Companies with the Personal Information Protection and Electronic Documents Act (Canada) or material violation of any other law or regulation by which any of the BCH Companies is bound, (v) there is no increased cost or expense, either direct or indirect, to Bell, including without limitation increased Transfer Taxes, unless Certen reimburses Bell for such amounts; and (vi) any such [**] does not cause any of the BCH Companies to be in breach of any corporate contract listed on Exhibit L-1 or of any other corporate contract of one or more of the BCH Companies, which Certen is managing for the BCH Companies or is providing services as a subcontractor. Bell agrees to Cooperate with Certen at Certen's expense in the performance of activities and implementation of procedures necessary to accomplish any such [**]. For the avoidance of doubt, if Certen so [**] any of such functions to [**], Certen shall continue to be obligated to invoice Bell for the Services in accordance with Section 12.1 of this Agreement. 5.15 CONTINUING ROLE OF [**] SYSTEMS. Subject to Certen's rights under Section 5.14, it is agreed that after the Amendment Effective Date, [**]will continue to [**] in the Billing Operations Services and associated Ongoing Support Services performed in respect of the [**] Systems as they did immediately prior to such date and that it is in the best interests of Bell and Certen to have these parties continue to perform functions and deliver services after the Amendment Effective Date [**] that they did prior to such date, in connection with the Services provided under this Agreement. Prior to making any change to these arrangements, Certen shall, given the broader possible impacts of such decisions on Bell, review the proposed change with Bell. Certen shall not, except as contemplated in Sections 4, 5 and 21, make any proposed change unless Bell has provided its prior written consent in respect thereof, which prior written consent shall not be withheld if such a change would be in the best interests of both Bell and Certen, in accordance with the terms of this Agreement. The Parties agree to preserve the original spirit of this Agreement as it relates to [**] in the context of the Services in respect of the [**] Systems. 5.16 CONTINUING ARRANGEMENTS WITH [**] SYSTEMS. Subject to Certen's rights under Section 5.14, commitments made by Certen as of and since the Effective Date in respect
27 of [**] will continue to be honoured by Certen after the Amendment Effective Date in connection with the Billing Operations Services performed in respect of the Systems utilizing [**] technology. Prior to making any change to these arrangements, Certen shall, given the broader possible impacts of such decisions on Bell, review and coordinate the proposed change with Bell. 5.17 VIRUSES. Certen shall use all reasonable efforts to avoid viruses in accordance with Exhibit K. 5.18 ROLES AND RESPONSIBILITIES. Each of the Parties shall perform the roles and responsibilities assigned to it in Exhibits O-1 and O-2. 5.19 REMITTANCE AGREEMENTS. Bell is a party to the Remittance Agreements which the Parties acknowledge are Bell Corporate Contracts. However, the provisions set forth in this Agreement relating to corporate contracts shall be superseded by the following with respect to the Remittance Agreements: a. With the prior written consent of Certen not to be unreasonably withheld, Bell shall have the right, at its option (exercised reasonably based on its conclusions with respect to (i) tax implications, (ii) impact on Bell or other Bell entities based on the scope of any Remittance Agreement being greater than the scope of the Services) to either (i) assign the Remittance Agreements or any one of them to Certen (an "ASSIGNMENT"), or (ii) provide Certen with the benefits of the Remittance Agreements or any one of them and appoint Certen as its agent (the "AGENCY APPOINTMENT"), in each case for the sole purpose of dealing with all matters arising under such Remittance Agreements to the extent they are part of the In-Scope Operations other than the payment of fees and commissions thereunder (for which Bell shall be responsible as set forth herein). As of the Effective Date, Bell has agreed to appoint Certen as its agent under all Remittance Agreements. b. In the case of an Assignment, Certen will assume and perform all obligations of Bell under the relevant Remittance Agreements to the extent they are part of the In-Scope Operations (other than obligations relating to the payment of fees and commissions) and will indemnify and save the BCH Companies harmless from any Losses suffered by them arising from Certen's failure to perform such obligations. c. In the case of an Agency Appointment, Certen shall act as agent for Bell with respect to all actions required to be taken by Bell under the Remittance Agreements to the extent they are part of the In-Scope Operations (other than with respect to the payment of fees and commissions) and Certen shall indemnify and save the BCH Companies harmless of and from any Losses suffered by the BCH Companies arising from a failure by Certen to perform such obligations of Bell under the Remittance Agreements to the extent such Losses (excluding Losses of any volume discounts benefiting Bell, if applicable) are caused by Certen and do not arise from an event, act or omission occurring prior to the Effective Date.
28 d. Certen agrees that it will not amend, modify or waive any rights or obligations in the Remittance Agreements, whether in its capacity as primary obligor or agent, without Bell's prior written consent if such amendment, modification or waiver could result in an increase in fees or commissions thereunder or would otherwise affect Bell. In no case shall any Remittance Agreement be extended, terminated or replaced without the prior written consent of Bell. In addition, in the case of an Agency Appointment, Bell shall have the option to negotiate, renew, replace or extend the Remittance Agreements directly or to delegate that power to Certen, in the latter case negotiation by Certen to be performed at its own cost. Certen shall also provide at no cost to Bell such assistance as Bell may reasonably request in connection with any such negotiations, renewal or extension. To the extent any modification in any Remittance Agreement or new Remittance Agreement expands Certen's responsibilities under the In-Scope Operations, such expansion shall be subject to the Change Order Process. e. In the case of an Agency Appointment, Bell shall pay the amount of the invoice directly to the third party service provider under the applicable Remittance Agreement (the "THIRD PARTY"). f. In the case of an Assignment, the Parties shall make all reasonable efforts to arrange for invoices to be sent by the Third Party directly to Bell and for Bell to continue paying the amount of the invoice directly to the Third Party. In the event that the Parties mutually agree that it is not feasible for invoices to be sent directly from the Third Party to Bell, Certen shall forward each invoice received from the Third Party to Bell within a reasonable time of receipt thereof and Bell shall pay the amount of the invoice to Certen, which shall in turn, pay the Third Party. g. Bell will indemnify Certen for any Losses incurred by it as a result of the failure of Bell to pay such fees and commissions; provided, that where, in accordance with subsection e or f above, Certen is required but has failed to forward the invoice to Bell within the agreed time or pay such invoices where it has received the invoice amount from Bell and has agreed to remit same to the Third Party, Certen shall indemnify the BCH Companies for any Losses incurred by the BCH Companies arising from such failure. h. For greater certainty, the Parties acknowledge and agree that Bell and the BCH Companies shall have no obligations or liabilities in respect of fees and commissions attributable to third party customers of Certen. Before a Third Party charges Certen fees and commissions attributable to third party customers, Certen shall require such Third Party to invoice Certen separately so that the invoices provided to Bell include only those fees and commissions properly attributable to Bell and the BCH Companies. i. If Certen comes into possession or control of any cheques or other negotiable instruments payable to Bell or any of Bell's Affiliates, whether in connection with any Remittance Agreement or otherwise, Certen shall hold in trust for Bell the funds represented thereby and forward such funds as Bell may from time to time
29 direct. When processing any cheques or other negotiable instruments for Bell, Certen shall use its best efforts to ensure that such cheques are not lost, stolen or destroyed by any means whatsoever and Certen shall not withhold or delay the processing of any cheque or negotiable instrument payable to Bell that comes into its possession or control whether in connection with any dispute or otherwise. Bell shall have the right to require at any time that all cheques or other negotiable instruments payable to Bell or any of Bell's Affiliates be sent or delivered by third parties directly to Bell. SECTION 6. [**] AND [**] 6.1 CERTEN AS [**] SUPPLIER. Bell agrees that throughout the Term of this Agreement Certen shall be its [**] supplier: a. with respect to Bell [**] Bell [**], of all Customer Care Operations Services and associated Ongoing Support Services and of all Billing Operations Services and associated Ongoing Support Services in each case within the scope of Exhibit A, for all Lines of Business; and b. with respect to Bell [**] other than Bell [**], of all Billing Operations Services and associated Ongoing Support Services within the scope of Exhibit A, for all Lines of Business. c. Without derogating from any other rights of Certen, the Billing Operations Services will comprise throughout the Term, the [**] of the BCH Companies and their subsidiaries. d. Bell shall [**] Certen's services to Bell's Affiliates, including, but not limited to the following: (i) Bell will support Certen's efforts to market and sell services to such companies on reasonable notice by giving endorsements of such services, provided that such endorsements can be given in good faith, and hosting a reasonable number of site visits and demonstrations of such services at Bell's sites. (ii) Bell will introduce Certen to appropriate management and purchasing personnel at such Affiliates, reasonably facilitate meetings between Certen and such personnel, and attend such meetings as agreed. (iii) Within [**] of the end of each calendar year, a responsible financial officer of Bell will certify to Certen in writing that the bills prepared by Certen under this Agreement comprise a [**] of the BCH Companies and their subsidiaries within such calendar year. Such certification will include sufficient detail for Certen to verify the accuracy of the certification. If requested by Certen, Bell's independent auditor will also certify the correctness of such information, at Certen's expense. At Certen's option, if in any calendar year, the bills prepared by Certen under
30 this Agreement do not comprise the [**] of the BCH Companies and their subsidiaries, then in the following calendar year, the [**] Right under the Master License and Services Agreement will be [**]% of all Products and Services with respect to [**] to be performed in such following calendar year (as such terms are defined under the Master License and Services Agreement); provided that if Certen exercises this option, this shall be Certen's [**] for Bell's breach of Section 6.1c. 6.2 NEW SERVICES. The Parties further agree that in the event of New Services (which for greater certainty shall not include the Services to which Section 6.1a or 6.1b applies, or the services to which the Master License and Services Agreement applies), [**] shall be provided with the [**] to respond to and [**] on any request for [**] (both formal and informal requests) issued by any of the BCH Companies for such New Services. The BCH Companies will [**] to Certen [**] of [**] and provide Certen with the opportunity to [**], unless, in the BCH Companies' good faith discretion, such [**] to submit a [**] or [**] of the BCH Companies' [**]. Subject to the foregoing, the BCH Companies shall have the good faith discretion to determine which [**], among all of the [**], is the [**] to the BCH Companies. In addition, the Parties acknowledge and agree that certain New Services may have to be rendered by third party service suppliers that have, on the Effective Date, certain contractual rights with the BCH Companies for the performance of certain services, to the exclusion of Certen. However, throughout the Term, the BCH Companies shall [**], which are inconsistent with the rights granted to Certen under this Section. Any New Services which Bell requests Certen to provide shall, at Bell's option, (a) be included in this Agreement pursuant to terms and conditions to be negotiated pursuant to the Change Order Process, in which case such New Services shall be deemed to be Services for the purposes of this Agreement except with respect to the application of Section 6.1 of this Agreement, or (b) be provided pursuant to other agreements, the terms and conditions of which shall be negotiated by the Parties. 6.3 PROMOTION OF SERVICES. In the event that any of Bell's Affiliates wish to obtain the services of Certen, such Affiliates and Certen will negotiate the terms and conditions of the applicable Project, which terms and conditions shall be similar to the terms and conditions applicable to the Parties hereunder. SECTION 7. SERVICE LEVELS GUARANTEES 7.1 SERVICE LEVELS. Subject to Sections 5.5 and 5.6, Certen will provide the Services in accordance with or in excess of the Service Levels set forth in Exhibit C-1 and Exhibit C-2. 7.2 SERVICE LEVEL IMPROVEMENTS. Where feasible and as part of Certen's general business strategy with respect to all of its customers, Certen will develop an ongoing quality improvement process in its provision of outsourcing services. In addition, it is intended by the Parties that on completion of the Modernization, and allowing for a stabilization period for the Modernized System (the length of which period is subject to the approval of the Parties), the Service Levels [**].
31 7.3 CRITICAL SERVICE LEVEL KVMS. Certen will report on its compliance with the Critical Service Level KVMs on a [**] basis, in accordance with Exhibit C-1 and Exhibit C-2. In the event that a given Critical Service Level KVM is not met at any time, Certen will apply the necessary resources to analyze and resolve the problem in accordance with Exhibit C-1 and Exhibit C-2. Certen will provide a follow-up report to the applicable BCH Company in the month following the non-compliance, detailing the source of the problem. The report shall include the measures Certen is taking to resolve the problem. 7.4 SERVICE LEVEL PENALTIES, REBATES AND BONUSES. The Parties agree that each of the BCH Companies may, in Bell's sole discretion, apply the applicable penalties and receive the applicable penalty rebates, to the extent provided in Exhibit C-1 and Exhibit C-2 ("PENALTY REBATE") from Certen in the event the actual performance of a Service provided by Certen fails to meet any one or more of the Service Levels, and that the applicable BCH Company shall apply and Certen will receive bonuses in the event the actual performance of a Service provided by Certen exceeds any one or more of the Service Levels, subject to and in accordance with Exhibit C-1 and Exhibit C-2. Notwithstanding the foregoing, Bell hereby [**] its right to receive Penalty Rebates until further written notice to Certen, and Certen hereby [**] its right to receive bonuses until such written notice is delivered to Certen. 7.5 INTENT OF SECTION. The intent of this Section is to ensure that a process is in place for Certen to track and promptly correct any performance deviation in respect of the Services. 7.6 FAILURE TO MEET CRITICAL SERVICE LEVEL KVMS. Subject to the waivers in Section 7.4, during the Term of this Agreement, the failure to meet Critical Service Level KVMs shall entitle the applicable BCH Company to: (i) receive the applicable Penalty Rebate, and (ii) such other remedies, in each case as expressly set forth in Exhibit C-1 and Exhibit C-2; provided, however, that any Penalty Rebate received by the applicable BCH Company under Exhibit C-1 and Exhibit C-2 shall be deducted from any other award, grant or receipt of damages or compensation arising from Certen's failure to meet the Critical Service Level KVMs, subject to the limitations set forth in Exhibit C-1 and Exhibit C-2. 7.7 SERVICE LEVELS - BELL CUSTOMER CONTRACTS. Subject to the terms and conditions of Exhibit C-1 and Exhibit C-2, Certen will meet the required performance levels and service levels in all Bell Customer Contracts (including [**]) provided such contracts were provided to Certen as of the Amendment Effective Date. The BCH Companies shall not assign to Certen their legal obligations pursuant to any agreement under which they are required to provide billing services to another provider of telecommunication services (including, without limitation, any agreements relating to settlement or termination of telecommunication traffic and any agreement with the [**]). Without limiting the foregoing, Certen shall be Bell's subcontractor with respect to the contracts listed in Exhibit M3 that specify that Certen will be the subcontractor. 7.8 COMPLIANCE WITH CREDIT AND COLLECTION POLICIES. Certen agrees to comply with Bell's credit and collection policies, at Bell's request, as amended from time to time (the "CREDIT AND COLLECTION POLICY"), subject to the Change Order Process.
32 7.9 GRACE PERIOD. The Service Levels will not be applicable prior to and during the Grace Periods set forth in Exhibit C-1 and Exhibit C-2. SECTION 8. QUALITY OF SERVICES GUARANTEE 8.1 RIGHT OF BCH COMPANIES TO ASSESS, INSPECT AND MONITOR. The BCH Companies may conduct ongoing assessments and reasonable inspections during normal business hours not more than twice per year (unless an emergency situation requires more), on reasonable prior written notice to Certen, of the Services being performed under this Agreement (including under Exhibit C-1 and Exhibit C-2 hereof). The BCH Companies shall be permitted to monitor the Services during the Term during normal business hours at any time on reasonable prior written notice to Certen and without charge to the BCH Companies. 8.2 COMPLAINTS REGARDING QUALITY OF SERVICES. In the event that the BCH Companies make a written complaint regarding the quality of the Services being performed at a level which is lower than that which was provided [**] to the Effective Date, and which quality of Service is not specifically covered or captured in Exhibit C-1 and Exhibit C-2, but which is intended by the Parties to be an obligation of Certen, Certen shall, if requested by the BCH Companies, acting reasonably, [**] provide the BCH Companies with a written report, within [**] Days, stating the cause (if then known) of the deficiency and, if applicable, stating the steps to be taken (or that have been taken) to correct the deficiency and prevent a recurrence. 8.3 CERTEN TO MANAGE QUALITY. Quality will be managed by Certen, as part of Certen's general business strategy with respect to all of its customers, to improve and adapt to the needs of the BCH Companies. 8.4 CONTRACTORS AND SUBCONTRACTORS. Certen agrees and shall ensure that its contracts entered into with its approved contractors and their subcontractors and assignees shall provide that the Service Levels and the other terms and conditions set forth in this Agreement and the Exhibits hereto shall apply, if applicable, to such approved contractors and their subcontractors or assignees in the performance of the Services. 8.5 RIGHT TO TERMINATE. Nothing in this Section derogates from Bell's ability to terminate this Agreement pursuant to the relevant provisions contained herein, including Exhibit C-1 and Exhibit C-2. SECTION 9. [**] FOR MODERNIZATION SYSTEMS AND PRICING 9.1 SURVEYS TO BE CONDUCTED. The Parties agree to conduct [**] surveys, solely with respect to the [**] Systems, during the [**] years of the Term of this Agreement. The purpose of such [**] surveys is to periodically compare the [**] against [**] provided in the market place at large as to ensure that the [**] provided by Certen to the BCH Companies are at least [**] than [**] or "[**]". 9.2 [**] PROCESS. The [**] process will be carried out for the [**] outlined in Exhibit C-1 and Exhibit C-2, [**] with [**], operations volumes, technologies (for customer care and billing systems) and [**]. [**] of the third party expert to conduct such [**] surveys will
33 be agreed upon by the Parties, and if the Parties are not able to agree within [**] on such [**], the BCH Companies' independent external auditors shall select the [**] to conduct such [**] and the methodology of such [**]. The [**] which conducts the [**] shall determine the performance levels equal to "[**]" for the purposes of the [**]. 9.3 COSTS TO BE SHARED. All costs incurred to conduct such benchmarking study will be shared by Bell and Certen on a [**] basis. 9.4 CERTEN TO IMPLEMENT RESULTS. Results of the [**] that lead to meeting "[**]" Service Levels and to improving the value of the Service Levels (if applicable) for the BCH Companies, will be implemented by Certen. Hence, Certen will provide the BCH Companies, within [**] completion, with an action plan and schedule to implement the survey results with respect to the Service Levels for the BCH Companies' approval. Notwithstanding any provision to the contrary contained herein, all [**] related to the implementation of such action plan as a result of the [**] described in this section shall be the sole responsibility of Certen. 9.5 LEGACY SYSTEMS. Notwithstanding anything in the Agreement to the contrary, the Legacy Systems operations will not be measured in the [**] process. 9.6 [**]. The parties recognize and agree that the [**] during the [**] year of the Term (referenced in Section 9.1 above) may also include, at the [**] of the BCH Companies, surveys with respect to [**] for the BCH Companies' own informational purposes. For the avoidance of doubt, the results of such [**] shall have [**] on this Agreement or on the Parties and are solely for the BCH Companies' benefit to assist them in making their own business decisions. 9.7 [**]. The parties recognize and agree that a [**]of [**] and performance shall be conducted by an [**] during the [**] year of the Term, in accordance with Section 3.2 of Exhibit B to establish the [**] for the [**] year of the Term and to assist Bell in determining whether to extend the Term in accordance with Section 3.1. SECTION 10. FEES AND CREDITS 10.1 FEES. In consideration for the Services rendered hereunder by Certen, Bell shall pay the Base Fees (as such term is defined in Exhibit B) in accordance with Exhibit B. As set forth in Exhibit A and Exhibit B, the Parties acknowledge that the Base Fees include amounts intended to [**]. For the avoidance of doubt, charges for New Services are not included in the Base Fees and shall be charged on [**], fixed fee basis or as otherwise agreed by the Parties. 10.2 VOLUMES FOR [**] AND [**]. The targeted volumes for [**] and [**] for each year of this Agreement are identified in Exhibit B. The Parties agree to review the actual volume against the targeted volume for [**] and [**] to determine [**], if any, which are to be passed on to Bell, in accordance with Exhibit B. 10.3 FEE ADJUSTMENTS. The Parties agree that the Fees indicated in Exhibit B shall be adjusted annually by an index blend comprised according to the cost structure, in effect
34 as follows: (i) [**]% based on the Average Hourly Earnings for [**] as published by the Bureau of Labour Statistics, U.S. Department of Labour; (ii) [**]% based on annual changes in the Canadian Consumer Price Index as established by Statistics Canada; (iii) [**]% based on changes to the cost of the unit of Canadian [**] applied most frequently to the [**] prepared by Certen for the BCH Companies; and (iv) [**]% based on the changes to the cost per [**]. However, if the market conditions will justify a larger increase (or a decrease), and only if agreed to by both Parties (with consent not to be unreasonably withheld), the increase (or decrease) of said rates, fees and charges may be larger (or smaller). In addition, the Parties agree that if any or all of the BCH Companies undergo a reorganization, such as a combination, split, or spinoff which does not affect the ultimate ownership of the BCH Companies or business units thereof, the Fees payable under this Section 10 shall be calculated following such reorganization in the same manner that the applicable Fees were calculated prior to such reorganization. 10.4 DISCOUNTS. Certen shall issue discounts to Bell for amounts due from Certen to Bell in accordance with the terms set forth in Sections 9 and 10 of Exhibit B. Such discounts shall be applied against the Fees invoiced to Bell as provided under Exhibit B. 10.5 TAXES. a. The Fees referred to in Section 10.1 and described in Exhibit B do not include any amount that is or is on account of applicable federal or provincial taxes, imposts, levies, charges, fees and similar charges (including any interest and penalties thereon), including, without limitation, goods and services, harmonized sales, Quebec sales, retail sales, social services and any other sales, use, value added, business transfer, land transfer and similar taxes, imposts, levies and charges, and excise tax, customs and excise duties and similar imposts, levies, fees and charges ("TRANSFER TAXES"). For greater certainty, Transfer Taxes do not include any federal, provincial, municipal or local income, capital or withholding taxes. b. Certen declares that it is registered under Part IX of the Excise Tax Act (Canada) (commonly referred to as the GST/HST legislation) and under the An Act Respecting Quebec Sales Tax (commonly referred to as the QST Legislation) and that its registration numbers are as follows: GST/HST Registration number: [**], QST Registration number: [**]. c. Bell declares that it is registered under Part IX of the GST/HST Legislation and the QST Legislation and that its registration numbers are as follows: GST/HST Registration number: [**]; QST Registration: [**]. d. The Parties acknowledge that, on the date of this Agreement, no amounts are required to be withheld in respect of taxes under the laws and regulations administered by the Canadian taxing authorities from Fees and other charges payable hereunder to Certen. e. Certen represents, warrants and covenants that Certen is and at all times will be a resident of Canada for the purposes of the Income Tax Act (Canada) and, in its dealings with the BCH Companies, will act as principal and not as agent for a
35 non-Canadian resident entity. As between Certen and Bell and except as provided in this Section, Certen shall be solely responsible for the payment of all income and other taxes assessed or levied against Certen, any approved subcontractor or agent or their respective employees and other representatives. 10.6 UNIT PLAN. The BCH Companies have submitted to Certen, for the initial [**] years of the Term, an annual [**] of Units at the Price Per Unit, all as set forth in Section 5 of Exhibit B (the "UNIT Plan"). 10.7 [**]. The Unit Plan for each individual year of the initial [**] years of the Term, shall (i) be monitored by Certen, and the latter shall report to the BCH Companies on the Units processed by Certen in such year; and (ii) the Parties will settle any [**] by the BCH Companies exceeding CA$[**] as a result of a variation between the [**] and the [**] processed by Certen during such year. Such adjustments [**], plus any adjustments applicable under Section 10.3 above, shall be invoiced separately by Certen and will be paid by the BCH Companies within [**] of such invoice being issued. 10.8 EXPIRATION OF UNIT PLAN. After the expiration of the initial [**] years of the Term and for each year thereafter during the Term, Certen will report on the Units processed in such year and shall invoice the BCH Companies in accordance with the Base Fees (as set forth in Exhibit B) and this Section 10. 10.9 [**] PRICING. The Fees contained in Exhibit B to this Agreement are the [**] that Certen offers any other customer in the Territory for comparable services to those provided under this Agreement and for comparable volumes. In the event that during the Term of this Agreement, Certen actually offers [**] to any other customer in the Territory for services of the comparable type and volume as those provided under this Agreement, Certen shall make [**] available to the BCH Companies, and this Agreement shall be modified prospectively to reflect such [**]. Among the factors that shall be taken into consideration when making these comparisons are the scope and nature of the commitments with respect to the [**] and [**] elements of the particular transaction, including but not limited to, the extent and duration of the customer's commitment to order and pay for the various services; the nature of the services provided, [**], as well as other related terms and conditions affecting the benefits and risks inherent in each transaction. 10.10 [**] REVENUES. In the event the revenue generated by Certen from Services rendered to current and future Affiliates of BCE Inc. under the Agreement is [**] percent ([**]%) or [**] than the revenue contemplated in the [**] on an annual basis for any given [**] (the "[**] REVENUES"), the Parties agree to the following: If the [**] exceeds the [**] identified in the [**] from such Services with respect to the applicable [**] by [**] percent ([**]%) (the "[**] PORTION"), Bell shall be entitled to [**] hereunder in an [**]. The determination of [**] shall utilize the same assumptions underlying the [**] and the hourly rates as set forth in Exhibit C of the MLSA. Any [**] under this Section remaining at the end of the Term shall be [**] to Bell.
36 To demonstrate the foregoing, if, in a given [**], the [**] identified in the applicable [**] is [**] percent ([**]%), [**] shall occur only if [**] percent ([**]%) or [**]. For the purposes of this Section, the Parties further agree that [**], and [**] shall be excluded as an Affiliate. Within [**] of the end of each of Certen's fiscal years, Certen shall provide Bell with a report certified by Certen's responsible financial officer setting forth Certen's [**] for the preceding fiscal year and indicating if any amounts are owed by [**] to [**] under this Section. Certen grants to Bell a right of audit, through an independent firm of auditors, who shall enter into a non-disclosure agreement with Certen, to verify the appropriate application of the above-mentioned mechanism. Furthermore, the parties agree that "[**]" for the purpose of this Section shall be measured based on [**] in accordance with the financial statements of Certen for the Services described in this section, less the annual adjustment stated in Section 10.3. Bell's [**] Portion shall be provided by Certen to Bell [**], to occur within the following [**] following Certen's annual report provided to Bell under this Section. 10.11 The Parties agree that Certen shall be entitled to receive additional payments for development work as set forth in Section 3.3 of Exhibit B. SECTION 11. DEVELOPMENT WORK QUALIFYING FOR SR&ED CREDITS. 11.1 It is recognized that the BCH Companies will be entitled to Scientific Research and Experimental Development ("SR&ED") tax credits under the Income Tax Act (Canada) or the equivalent Provincial statutes (the "ITA"), on the eligible development work performed by Certen or contracted by Certen to another party (including Amdocs or any of its Affiliates) and funded by the BCH Companies under this Agreement. For development work performed by Certen or contracted by Certen to another party (including Amdocs or any of its Affiliates) prior to the Closing Date which qualifies as SR&ED and which is funded by the BCH Companies, Certen will take reasonable efforts to provide, [**], a statement of the eligible SR&ED expenditures for such period. Certen agrees, with respect to such development work, to file the necessary agreement and supporting documentation to effect the transfer of SR&ED qualified expenditures pursuant to subsection 127(13) of the ITA. For development work performed by Certen or contracted by Certen to another party (including Amdocs or any of its Affiliates) for the period from the [**] which qualifies as SR&ED and which is funded by the BCH Companies, Certen will take reasonable efforts to provide [**] for such development work, the required assistance needed to determine the amount of the Fees under Section 10 that have been paid for qualifying SR&ED conducted by Certen or contracted by Certen to another party (including Amdocs or any of its Affiliates) for such period. For development work performed by Certen or contracted by Certen to another party (including Amdocs or any of its Affiliates) for periods after [**] which qualifies as SR&ED and which is funded by the BCH Companies, Certen shall provide, [**] from each calendar quarter, the required assistance needed to determine the amount of the Fees
37 under Section 10 that have been paid for qualifying SR&ED conducted by Certen or contracted by Certen to another party (including Amdocs or any of its Affiliates) for each calendar quarter. Certen shall provide (i) such documentation and other information as may reasonably be required to assist the BCH Companies in claiming such tax incentives; and (ii) timely assistance, as may reasonably be mutually determined by Bell and Certen, during and relating to audits by tax authorities with regard to such tax incentives. SECTION 12. INVOICING AND PAYMENT 12.1 INVOICES. Certen shall invoice Bell at the beginning of the month in which the Services, which are the subject of the invoice, are to be provided. The invoice shall state: (i) the estimate of amounts that will be due and payable by Bell (and broken down for each BCH Companies) pursuant to this Agreement for the coming month and (ii) a reconciliation of the actual Fees payable by Bell for Services rendered by Certen during the previous month(s) (versus the estimate made by Certen in the previous month's invoice) and the appropriate adjustments for Penalty Rebates, bonuses or credits in accordance with Section 7, Section 10 and Exhibit B. Each charge submitted on an invoice pursuant to this Agreement shall be paid by Bell (and broken down for each of the BCH Companies) within [**] of receipt. Any amount submitted on any such invoice disputed in good faith by Bell shall be paid according to the true-up procedure described above, and, in any case, not later than [**] after the dispute is resolved or arbitrated in accordance with Section 18. 12.2 FORM. Each invoice submitted pursuant to this Agreement shall be in such form as Bell and Certen shall agree and shall be accompanied by such supporting information as shall be reasonably requested by Bell. 12.3 PROCEDURES. The following further procedures shall apply to invoices issued hereunder: a. any payment to Certen from Bell shall be transmitted by Bell to a designated bank account of Certen by electronic funds transfer, and at Bell's specific request, through Internet based technology; and b. any payment not so forwarded shall be subject to a late payment charge. The late payment charge shall be charged against the portion of the amount not so received or deemed to be received multiplied by the "LATE FACTOR". The Late Factor shall be the equivalent of [**]% per annum, calculated daily, or as otherwise mandated by regulatory or governmental authorities; but in no event shall the applicable Late Factor exceed the maximum rate permitted under applicable usury laws. Any late payment charge shall be separately itemized by Certen in its next invoice and shall be payable by Bell to Certen by the due date for that invoice. 12.4 TRANSFER TAXES. a. The recipient (whether Bell or an Affiliate or Certen, as the case may be, in this section referred to as "RECIPIENT") of any of the transactions contemplated in this Agreement shall be liable and responsible for any all applicable Transfer Taxes
38 with respect thereto. All such applicable Transfer Taxes shall be invoiced by the supplier (whether Bell or an Affiliate or Certen, as the case may be, in this section referred to as "SUPPLIER") to Recipient. Recipient agrees to pay all such applicable Transfer Taxes upon receipt of an invoice or equivalent documentation from Supplier. The Supplier agrees to provide to the Recipient an invoice or equivalent documentation in which the Supplier will separately state the amount of any Transfer Taxes collectable by the Supplier. Recipient shall pay such applicable Transfer Taxes to Supplier, unless the relevant laws permit Recipient to self-assess and/or remit the Transfer Taxes directly to the Transfer Tax authority. Notwithstanding the foregoing, if the relevant laws authorize Recipient to provide to Supplier a purchase exemption certificate or otherwise qualify for exemption from the payment of any Transfer Tax, the Recipient may provide to Supplier a valid purchase exemption certificate or other similar certificate, permit, documentation or information which supports exemption from Transfer Tax and Supplier will not collect Transfer Taxes in connection with the transactions to which the purchase exemption certificate relates in accordance with and subject to the limitations and/or exceptions in the relevant laws. b. Notwithstanding anything in this Section 12.4, where Supplier, acting reasonably, makes a determination that a particular transaction is subject to Transfer Taxes and Recipient disagrees, Supplier shall charge Transfer Taxes and Recipient shall pay such Transfer Taxes upon receipt of an invoice or equivalent documentation from Supplier. The Supplier shall, within a reasonable time after an inquiry by the Recipient, made in good faith, provide the Recipient an explanation concerning any determination of Transfer Tax treatment made by the Supplier pursuant to this paragraph. c. In the event Recipient pays any Transfer Taxes and a determination is subsequently made by the relevant Transfer Tax authority that such Transfer Taxes were (1) not applicable or (2) subject to repayment, reduction, exemption, refund, or rebate, Recipient may submit a written request to Supplier for a repayment, adjustment, or credit. To the extent that any such payment, adjustment or credit may be made by Supplier directly to Recipient pursuant to the relevant laws, Supplier shall make a payment to Recipient or provide an adjustment or credit to Recipient in the manner and as required by the applicable laws. In the event that the relevant laws do not permit Supplier to make payment to Recipient or provide an adjustment or credit to Recipient of the Transfer Taxes, Supplier shall cooperate with Recipient to enable Recipient to claim a credit, reduction, exemption, refund or rebate of the Transfer Taxes under the relevant laws. d. Supplier and Recipient agree to fully cooperate and to provide information to each other to: (a) enable Supplier and Recipient to more accurately determine their respective Transfer Tax liability in respect of the amounts that are payable by the Recipient to the Supplier, and to minimize such liability to the extent legally permissible; (b) without restricting the generality of paragraph (a), Supplier shall: (1) provide to Recipient confirmation of the Supplier's valid Sales and Related
39 Taxes registration numbers when requested by the Recipient, and (2) provide to Recipient copies of any interpretations or rulings, if any, obtained from any Transfer Tax authority to substantiate the Transfer Tax treatment in respect of the amounts payable by Recipient to Supplier, and (3) use best efforts to provide any other information or document which reasonably may be requested by Recipient in respect of the amounts payable by Recipient to Supplier, including but not limited to the information or documents specified in the Input Tax Credit (GST/HST) Information Regulations; e. Supplier and Recipient also agree that in the event any fees or other amounts payable hereunder become subject to Transfer Taxes or are asserted or expected to be asserted to be taxable by any Transfer Tax authority, Supplier and Recipient will take commercially reasonable steps, if warranted, to restructure the provision of those services or other items in a manner acceptable to Recipient and Supplier which would cause those services or other items to be exempt from Transfer Taxes. Recipient shall reimburse and hold Supplier harmless for reasonable legal fees incurred by Supplier to restructure the provision of such services or other items. If the Supplier incurs other operational costs to restructure the provision of such services or other items, the Recipient shall negotiate with the Supplier in good faith to reimburse the Supplier a reasonable amount of such other costs. f. Supplier further agrees to notify Recipient promptly but no more than [**] following the receipt of notification of an audit by a Transfer Tax authority in respect of any amounts payable by the Recipient to the Supplier in the time period after Closing. SECTION 13. INTELLECTUAL PROPERTY RIGHTS 13.1 AS IN MLSA. Pursuant to this Agreement, Certen, its contractors or subcontractors and the BCH Companies' personnel may develop, create, modify or personalize (collectively "DEVELOP" or "DEVELOPED") certain computer programming code, including source and object code ("CODE") and documentation to perform the Services and may Develop other Intellectual Property. The Parties' respective rights in respect of Intellectual Property Developed hereunder shall be as follows: a. Bell shall own all Intellectual Property Rights in and to all Code and documentation resulting from Certen's modifications, additions or changes hereunder to (i) the [**] Software; (ii) any other Software which is proprietary to Bell; and (iii) any other Software which is licensed by Bell to Certen under the MLSA. Certen hereby assigns, and covenants and agrees to assign, to Bell all Intellectual Property Rights in and to such Code and documentation. Bell hereby grants to Certen a [**], worldwide, paid-up license to Use such Intellectual Property Rights internally for the benefit of the BCH Companies to the extent necessary to perform the Services, during the Term. b. Certen shall own all Intellectual Property Rights in and to all Code and documentation resulting from Certen's modifications, additions or changes
40 hereunder to any Software which is licensed by Certen or Amdocs to Bell. under the MLSA. Certen hereby grants to Bell a licence in respect of such Intellectual Property Rights, which licence shall be equivalent in scope to the licence granted by Certen or Amdocs to Bell under the MLSA in respect of the Software which Certen modified, added to or changed in order to Develop such Code and documentation. Notwithstanding anything else to the contrary in this Agreement, the parties acknowledge that, following the Amendment Effective Date, Certen shall continue to be the owner and licensor of all Intellectual Property of which it was an owner or licensor prior to the Amendment Effective Date. 13.2 SURVIVAL. Notwithstanding any other provision of this Agreement, Section 13.1 shall survive termination of this Agreement and continue thereafter. SECTION 14. REPRESENTATIONS AND WARRANTIES 14.1 OF CERTEN. Certen hereby covenants, represents and warrants to the BCH Companies that: a. the execution, delivery and performance by Certen of this Agreement and other documents to which it is a signatory in connection with the matters referred to herein do not require the approval or consent of any other person, entity or government agency and do not and will not result in any material breach of any agreement to which Certen is a party or by which it is bound; b. the execution, delivery and performance by Certen of this Agreement and other documents to which it is a signatory in connection with the matters referred to herein have been duly authorized by all necessary action, and constitute legal, valid and binding obligations of Certen, enforceable against Certen in accordance with their respective terms; c. except with respect to any Systems, assets, documents, materials or items (other than the Sympatico assets developed by Amdocs under the Sympatico Project and third party licenses, which include a warranty and indemnity by the third party licensor against intellectual property infringement) transferred by the BCH Companies to Certen in accordance with this Agreement, including Section 5.1 above, performance by Certen of its obligations under this Agreement will not infringe upon or violate any laws or regulations or any rights of third parties, including, but not limited to, infringement or misappropriation of Intellectual Property Rights, in a manner that has a material adverse effect on the BCH Companies' ability to benefit from such performance; d. Certen is duly organized, validly existing and in good standing under the laws of Canada; and e. Certen is in full compliance with the Personal Information Protection and Electronic Documents Act (Canada).
41 14.2 OF BELL. Bell hereby covenants, represents and warrants to Certen that: a. the execution and delivery by Bell, and the performance by the BCH Companies, of this Agreement and other documents to which Bell is a signatory (excluding the Transition Agreement) in connection with the matters referred to herein do not require the approval or consent of any other person and do not and will not result in any material breach of any agreement to which the BCH Companies are a party or by which it is bound; b. any waivers, consents, or rights [**] (including such right or similar rights under any agreement between the BCH Companies and [**]) have been materially complied with, do not limit or contradict this Agreement, and do not (and will not) adversely affect the rights of, or create new obligations for, Certen, including but not limited to any adverse effect following a Change in Control of Certen; c. the execution, delivery and performance by the BCH Companies of this Agreement and other documents to which it is a signatory (excluding the Transition Agreement) in connection with the matters referred to herein have been duly authorized by all necessary action, and constitute legal, valid and binding obligations of the BCH Companies, enforceable against the BCH Companies in accordance with their respective terms; d. performance by the BCH Companies of their obligations under this Agreement will not infringe upon or violate any laws or regulations or any rights of third parties, including, but not limited to, infringement or misappropriation of Intellectual Property Rights, in a manner that has a material adverse effect on Certen's ability to benefit from such performance; provided that the BCH Companies do not make this representation with respect to the Sympatico assets developed by Amdocs and third party licenses, which include a warranty and indemnity by the third party licensor against intellectual property infringement; e. the BCH Companies are duly organized, validly existing and in good standing under the laws of Canada; f. the rights (including Intellectual Property Rights) to the Systems, assets, documents, and/or materials transferred by the BCH Companies under Section 5.1 are (i) the same or substantially the same rights (including Intellectual Property Rights) to Systems, assets, documents, materials, or services relating to the Legacy Systems, as applicable, used by the BCH Companies immediately prior to the Effective Date; (ii) all that are materially required and relevant in order for Certen to provide the Services and perform its other obligations under this Agreement with respect to the Legacy Systems, and such Systems, assets, documents, materials and services are sufficient to conduct the Services in the manner that is satisfactory to the BCH Companies; and (iii) transferred to Certen free and clear of any Liens (as such term is defined in the Asset Transfer Agreement); and
42 g. the BCH Companies are in full compliance with the Personal Information Protection and Electronic Documents Act (Canada). 14.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. a. The representations and warranties of Certen contained in Section 14.1 shall survive the execution and delivery of this Agreement for a period of [**] years from the date hereof and, notwithstanding the execution and delivery of this Agreement and any inspection or inquiries made by or on behalf of Bell, shall continue in full force and effect for the benefit of Bell, after which time Certen shall be released from all obligations in respect of such representations and warranties except with respect to any Claims asserted by Bell in writing (setting out in reasonable detail the nature of the Claim and the approximate amount of such Claim) before the expiration of such period. b. The representations and warranties of Bell contained in Section 14.2 shall survive the execution and delivery of this Agreement for a period of [**] years from the date hereof and, notwithstanding the execution and delivery of this Agreement and any inspection or inquiries made by or on behalf of Bell, shall continue in full force and effect for the benefit of Certen, after which time Bell shall be released from all obligations in respect of such representations and warranties except with respect to any Claims asserted by Certen in writing (setting out in reasonable detail the nature of the Claim and the appropriate amount thereof) before the expiration of such period. SECTION 15. NOTICES 15.1 Any notice, demand or other communication which under the terms of this Agreement or under any statute must or may be given or made by Certen or the BCH Companies shall be in writing and shall be given or made, all in readable form to the recipient, by hand delivery, telegram, tested telex, confirmed facsimile, electronic mail or similar communication or by certified or registered mail addressed to the respective Parties as follows: If to Certen, to: CERTEN INC. 160 Elgin Street, Suite 1770 Ottawa, Ontario Attention: Chief Executive Officer Telephone: (613) 781-2959 Fax: (613) 781-8965 E-mail: sal.iacono2@certen.ca If to Bell, to:
43 BELL CANADA 483 Bay Street - 6N Toronto, Ontario M5G 2E1 Attention: Eugene Roman, Group President-Systems and Technology Telephone: (416) 581-4744 Fax: (416) 979-3128 E-mail: eugene.roman@bell.ca and to: BELL CANADA 1000 rue de La Gauchetiere ouest Suite 4100 Montreal, Quebec H3B 5H8 Attention: Martine Turcotte, Chief Legal Officer Telephone: (514) 870-4637 Fax: (514) 870-4877 E-mail: martine.turcotte@bell.ca Such notice, demand or communication shall be deemed to have been given or made when delivered in person or when received by confirmed telegram, facsimile, or other similar communication or five (5) Business Days after having been deposited, postage prepaid certified or registered mail in the Canada or US mail, as the case may be. Any notice, demand or communication to a person other than the persons set forth in this Section 15 shall be null and void and shall not be considered sufficient notice to bind the receiving Party. The above addresses may be changed at any time by giving prior written notice as above provided. SECTION 16. CONFIDENTIAL INFORMATION 16.1 Subject to this Section 16, each Party agrees to preserve in confidence and secrecy all Confidential Information of the other Party and will not use same for its own purposes except for the sole purpose of fulfilling its obligations under this Agreement and will not reveal the content or existence of such Confidential Information to Persons not authorized in writing by such other Party to receive the same and will take all reasonable security precautions necessary to prevent unauthorized Persons from obtaining such Confidential Information. The recipient of the Confidential Information agrees to use the same care and discretion to avoid disclosure, publication or dissemination of Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate, and in any event, shall exercise a reasonable degree of care with respect to Confidential Information provided by the other Party. Notwithstanding the foregoing, a Party (the "DISCLOSING PARTY") may disclose such information to any of its approved agents or subcontractors involved in the performance of a Party's obligations
44 under this Agreement, with the prior written consent of the other Party, such consent not to be unreasonably withheld, if such disclosure is necessary to permit the approved agent or subcontractor to perform its duties hereunder, provided that: (i) any disclosure to such agents or subcontractors shall be under terms and conditions set forth in the respective non-disclosure agreements of the Parties, in accordance with Sections 16.15 and 16.16, as applicable, below; and (ii) the Disclosing Party shall take all necessary action to ensure compliance with such terms and conditions by any such agent or subcontractor; and (iii) the Disclosing Party shall assume responsibility for any unauthorized disclosure of Confidential Information by such agent or subcontractor. Notwithstanding the foregoing, a Party may disclose Confidential Information to those employees of its Affiliates who require such Confidential Information for the purposes of this Agreement. Notwithstanding any other revision of this Agreement, this Section 16 shall survive termination of this Agreement and continue thereafter. 16.2 Neither Party shall make, nor permit to be made, whether by photocopy or otherwise, any copies, abstracts or summaries of any of the other Party's Confidential Information except in pursuance of its obligations under this Agreement. 16.3 The obligations in Sections 16.1 and 16.2 shall not apply to: a. Confidential Information that has been published or has otherwise entered the public domain without a breach of this Agreement; b. Confidential Information that is acquired on a non-confidential basis from third parties who did not have an obligation of confidentiality owing to the Party which owns the Confidential Information; c. Confidential Information that was already in the receiving Party's possession or was known to the receiving Party before the date disclosed to them by the Disclosing Party; or d. Confidential Information that is independently developed by the receiving Party without the use of the Confidential Information. The burden of proof in respect of any exception in Section 16.3 shall be upon the Party seeking to rely on the exception. 16.4 It is not a breach of this Agreement to: a. disclose Confidential Information that is required to be disclosed by law, judicial or arbitration process or by governmental authorities so long as the Party proposing to so disclose provides the other Party with reasonable prior notice of such requirement in order to permit the other Party to interpose an objection or seek an appropriate order to prevent or limit disclosure; or b. disclose Confidential Information that is disclosed with the prior written consent of the other Party.
45 16.5 Each Party acknowledges and agrees that, in the event of breach of any provision of Section 16 of this Agreement by it or by its agents or subcontractors, the other Parties may be irreparably harmed and entitled to equitable relief, including injunction, in addition to any right at law to damages in respect of any harm arising from such breach. 16.6 Each Party acknowledges and agrees that no license is hereby granted directly or indirectly under any patent, trade secret, trademark or copyright now held by, or which may be obtained by or which is or may be licensable by the Disclosing Party with respect to Confidential Information. Unless expressly provided herein, this Agreement shall not be construed as granting or conferring any rights by license or otherwise, express or implied, for any invention, discovery or improvement made, conceived or acquired prior to or after the date of this Agreement. 16.7 This Agreement shall be considered Confidential Information for the purposes of this Section 16, except that the Agreement can be disclosed to each Party's bankers, directors, officers, accountants, lawyers, financial analysts and other advisors and consultants, subject to the confidentiality obligations under this Section 16. This Agreement may also be disclosed in confidence to a relevant regulatory agency pursuant to an order or directive to such effect, subject to Section 16.4a above. 16.8 All material subcontracts or material agency contracts together with any other contracts entered into between Certen and third parties material to the provision of the Services shall contain confidentiality provisions, as reasonably requested by the BCH Companies. For the purposes of this Section 16.8, whether a subcontract or agency contract is "material" shall be determined by Bell, with reference not to the monetary value of the relevant subcontract or contract but to the third party's access or potential access to Confidential Information of the BCH Companies and/or by the strategic value of such subcontract or contract to the provision of the Services. 16.9 Each Party agrees to promptly return to the Disclosing Party, upon its request, or certify as destroyed all Confidential Information of the Disclosing Party in whatever form, including all electronic and magnetic copies and notes thereof, regardless of whether such Confidential Information was made or compiled by the receiving Party or furnished by the Disclosing Party. 16.10 Notwithstanding anything herein to the contrary, Certen hereby agrees to maintain as Confidential Information and to cause its agents, employees and subcontractors to do likewise, all information concerning or in any way related to the BCH Companies' customers and all Databases and updates thereto provided by the BCH Companies, regardless of whether same was disclosed to Certen or a third party by the BCH Companies, or directly by customer, in confidence in accordance with the obligations set forth in the Personal Information Protection and Electronic Documents Act (Canada) and Sections 16.3a), (b), (c) and (d) even if, a priori, any of the provisions of subsection 16.3 would apply. 16.11 Certen's possession of the BCH Companies' Confidential Information, through recording, analyzing, copying, collecting, compiling, tabulating or performing similar
46 functions with such Confidential Information does not mean that such Confidential Information is "already lawfully known" to Certen, or "independently developed, produced or generated" by Certen within the meaning of subsection 16.3. 16.12 The BCH Companies' possession of Certen's Confidential Information, through recording, analyzing, copying, collecting, compiling, tabulating or performing similar functions with such Confidential Information does not mean that such Confidential Information is "already lawfully known" to the BCH Companies or "independently developed, produced or generated" by the BCH Companies within the meaning of subsection 16.3. 16.13 Certen shall exclusively use Confidential Information for the purposes of providing the Services as provided for under this Agreement and the BCH Companies shall exclusively use Confidential Information for the purposes of receiving the Services as provided for under this Agreement. 16.14 Certen agrees to conduct an annual review of the BCH Companies' "code of business conduct" including its policy respecting conflicts of interest with its employees, approved agents, or subcontractors involved in the performance of obligations under this Agreement and implement within its operations, also on an annual basis, a code of business conduct similar thereto. 16.15 Any subcontractors, agents, or other third parties of the BCH Companies who have a need to know or may have access to Certen's Confidential Information shall first sign the non-disclosure agreement in the form attached as Exhibit P1; provided that any such subcontractor or third party which works for or on behalf of a competitor of Certen shall first sign the non-disclosure agreement in the form attached as Exhibit P2. 16.16 Any subcontractors, agents, or other third parties of Certen who have a need to know or may have access to the BCH Companies' Confidential Information shall first sign the non-disclosure agreement in the form attached as Exhibit Q1; provided that in respect of any such subcontractor or third party which works for or on behalf of a competitor of the BCH Companies, the prior written consent of Bell must be obtained and the subcontractor or third party must first sign the non-disclosure agreement in the form attached as Exhibit Q2. SECTION 17. INDEMNITY 17.1 MUTUAL INDEMNITIES. Each Party (the "INDEMNIFIER") shall at all times defend, indemnify and hold harmless, both before the expiration or termination of this Agreement and thereafter, the other together with that other Party's respective officers, directors, servants, agents, and employees (together the "INDEMNIFIED PARTIES") from and against any allegations, claims, actions, proceedings, judgements and liabilities, losses, damages, costs and expenses, including reasonable legal fees and expenses (collectively "CLAIMS") incurred by or rendered against any or all of the Indemnified Parties by reason of damage to tangible property and injuries, including death, to all persons, arising from any occurrence caused by any negligent act or omission or willful misconduct of, or breach of
47 any obligation, law or regulation by the Indemnifier, or its agent(s) and subcontractor(s) thereof related to the performance of this Agreement. The aforesaid indemnity shall also apply to any Claim on account of any unauthorized disclosure or use of Confidential Information, whether by Certen or the BCH Companies or any agent or any employee of any of them. 17.2 INDEMNIFICATION OBLIGATIONS OF CERTEN. Certen agrees to indemnify, defend and hold the BCH Companies and their respective officers, directors, employees, agents, successors and assigns harmless from and against any and all Losses incurred by the BCH Companies arising from or in connection with any claims of infringement or misappropriation made against the BCH Companies of any patent, or any copyright, trademark, service mark, trade name, trade secret or similar proprietary rights conferred by contract or by common law or by any law of Canada or any other state, alleged to have occurred because of equipment, systems, products or other resources or items provided to the BCH Companies by Certen; provided, however, that Certen will have no obligation with respect to any Losses to the extent the same arise out of or in connection with (i) the BCH Companies' modifications of a program or a machine or the BCH Companies' combination, operation or use with devices, data or programs not furnished by Certen or its subcontractors; (ii) any Systems, assets, documents, materials or items transferred by the BCH Companies to Certen in accordance with this Agreement, including Section 5.1 above. 17.3 INDEMNIFICATION OBLIGATIONS OF BELL. Bell agrees to indemnify, defend and hold Certen, its officers, directors, employees, agents, successors and assigns harmless, in accordance with the terms and conditions of this Agreement, from and against any and all Losses incurred by Certen, arising from or in connection with: a. Intellectual Property. Any claims of infringement or misappropriation made against Certen of any patent, or any copyright, trademark, service mark, trade name, trade secret or similar proprietary rights conferred by contract or by common law or by any law of Canada, alleged to have occurred because of any Systems, Software, assets, documents, specifications to Develop Code, materials or any other products or other resources or items provided to Certen by the BCH Companies hereunder, including the [**] Software set out in Section 5.2 (other than the Sympatico assets developed by Amdocs and third party licenses, which include a warranty and indemnity by the third party licensor against intellectual property infringement, transferred to Certen in accordance with Section 5.1 above); b. Failure to Obtain Required Consents. Subject to Section 4.2, any failure by the BCH Companies to obtain the Required Consents in accordance with Section 4 above; c. Pre-Effective Date Duties. Subject to Section 4, any duties or obligations, including financial obligations, occurring prior to the Effective Date of the BCH Companies, arising out of or in connection with any third party agreement, or
48 with respect to the carrying out of the services (replaced by the Services) prior to the Effective Date; and d. Failure to Comply with PIPEDA. Any failure by any BCH Company to comply with the requirements of the Personal Information Protection and Electronic Documents Act (Canada). SECTION 18. DISPUTE RESOLUTION 18.1 RESOLUTION BY NEGOTIATION: a. Except as set forth below, Certen and the BCH Companies agree to promptly utilize all reasonable efforts to resolve any controversy, claim or dispute, whether arising during the Term or, with respect to obligations which survive termination or expiration of this Agreement, at any time after the expiration or termination of this Agreement, relating to the interpretation, validity, construction, meaning, performance or effect of this Agreement or the rights or liabilities of the Parties or any matter arising out of or in connection with this Agreement (a "DISPUTE"). b. If a Dispute cannot be resolved by mutual agreement within a [**] period from receipt of written notification by one Party to the other (which notice shall set forth full details of the matter in dispute), either Party may refer the Dispute to resolution by the Executive Prime of Certen as Certen shall decide and the Executive Prime of the BCH Companies (or such other officer of the BCH Companies succeeding to that title), such resolution to occur within a further [**] period of the referral of the matter to these two executives 18.2 ARBITRATION. Subject to Section 3.9.3 of Exhibit C-1 and Section X of Exhibit C-2, any Dispute (other than any Dispute with respect to Section 12.4 of this Agreement) that has not been resolved within the second [**] period described in Section 18.1, shall be submitted for arbitration in accordance with the laws of Ontario then in effect and the provisions contained herein, it being understood that such forum shall have exclusive jurisdiction to deal with such matters. a. The arbitration procedure shall be instituted by any Party by the sending of a written notice to that effect to the other Party setting forth a description of the Dispute and, if appropriate, the provision of this Agreement as to which such matter relates (the "NOTICE OF ARBITRATION"). Any arbitration to be conducted under this Section 18 shall be conducted by a single arbitrator (the "ARBITRATOR") chosen by the Parties to the arbitration within [**] following the Notice of Arbitration. The Arbitrator shall have a minimum of five (5) years experience in the relevant subject matter of the dispute. In the event that the Parties fail to agree upon the appointment of the Arbitrator within the stipulated delay, then the Arbitrator shall be selected and appointed at the request of either Party in accordance with the Arbitration Act (Ontario). The arbitration shall be conducted in the English language.
49 b. As soon as practicable after his/her appointment, the Arbitrator shall convene a meeting or a telephone conference call with the BCH Companies and Certen or their representatives to determine the procedure to be followed in the arbitration. If the Parties cannot agree on the procedure to be followed, the Arbitrator shall, subject to the other provisions of this Section 18, determine his/her own procedure, which may or may not require the submission of written arguments by the Parties or the holding of hearings. In any event, the Parties agree that any arbitration hearing shall take place in the Province of Ontario. c. Both Certen and the BCH Companies shall [**] their respective obligations under this Agreement during any [**], with the exception of the obligations of any Party to [**] hereunder when (and only to the extent that) the subject matter of the arbitration concerns such Party's [**], provided that the Arbitrator may [**] of any provision of this Agreement to which the subject matter of the arbitration relates if he/she deems such [**] necessary in the circumstances for the purposes of giving full effect to this Agreement, including this Section 18. d. The Parties to the arbitration shall be entitled to be represented at any arbitration hearing by legal counsel and to be accompanied by an interpreter. e. Notwithstanding the provisions of this Section 18, if any of the Parties hereto believes that it is entitled to any provisional measure or injunctive relief, such Party shall be entitled to seek such measure or injunctive relief through civil action before any court having jurisdiction. f. The Arbitrator shall be entitled to appoint an expert, if necessary, subject to agreement of the Parties. Any costs or fees charged by experts shall form part of the costs of the arbitration and be paid in the manner hereinafter contemplated. g. The Arbitrator shall endeavour to render his/her decision (the "ARBITRATION AWARD"), within thirty (30) days following the date of commencement of the deliberation, but shall not lose jurisdiction by reason of his/her failure to respect this delay. The Arbitration Award must be made in writing stating the [**] and a copy thereof must be delivered to each Party to the arbitration. The Arbitrator, in the Arbitration Award, shall apportion costs and expenses in the manner he sees fit, taking into consideration the intent of the Parties as set forth in paragraph h. below. h. The intent of the Parties is to have the Party who is [**] and [**] for the time and [**] arbitration to be required to [**] for the [**] thereof in order that each Party has significant [**] incentive to work together to resolve any differences that may arise between them. i. The Arbitration Award shall be final and binding upon the Parties to the arbitration for all purposes and shall preclude, in respect of the subject matter in dispute, any further or other recourse to any Court otherwise having jurisdiction.
50 SECTION 19. INSURANCE 19.1 Certen covenants, represents and warrants that has it taken out and will maintain in force for the duration of the Term insurance policies, on customary, industry standard terms, which cover E&O claims and the other possible claims which may be insured against through the policies listed below: a. Workers' Compensation insurance as prescribed by the law of the provinces or nation in which the Services are performed; b. Comprehensive General Liability ("CGL") insurance including employer's liability for property damage, bodily injury and personal injury, including contractual liability and broad form property damage and non-owned automobile liability coverage; c. Errors & Omissions Liability ("E&O") Insurance including liability for errors, omissions or/and negligent acts arising from the provision of Services under this Agreement; and d. Automobile Liability insurance for owned and leased motor vehicles. 19.2 The CGL, E&O and Automobile Liability insurance policies shall each, either alone or combined with excess liability (umbrella) insurance policies, have an insured limit per claim of $[**]; 19.3 The CGL insurance policy shall designate the BCH Companies as an additional named insured for insured claims to the extent caused by the negligence of Certen, its sub-contractors, agents and employees. The CGL insurance policy shall have a cross-liability and severability of interests clauses. 19.4 Certen shall annually furnish to Bell, insurance certificates evidencing its E&O, CGL, and automobile liability insurance polices, and each policy's insured limit. The certificates shall identify the BCH Companies as additional named insured on the CGL insurance policy to the extent of negligence of Certen, its sub-contractors agents and employees, and record Certen's property insurance policies and their agreement to waive subrogation rights against the BCH Companies. 19.5 The BCH Companies shall be notified in writing at least thirty (30) days prior to cancellation of or any material change in any of the foregoing policies. If any such policy is so cancelled, the BCH Companies may, in its discretion, take out and maintain any such insurance and obtain reimbursement therefor from Certen. 19.6 Notwithstanding the foregoing provisions of this Section 19, the type and level of insurance coverage maintained by Certen as of the Amendment Effective Date shall be deemed to fully satisfy the requirements of this Section for the period of one (1) year from the Amendment Effective Date.
51 SECTION 20. RELATIONSHIP/INDEPENDENT CONTRACTOR 20.1 Certen is an independent contractor and has and hereby retains the right to exercise full control of and supervision over its own performance of the Services under this Agreement, and retains full control over the employment, direction, compensation and discharge of all employees assisting in the performance of such obligations. Neither Certen nor its employees or agents shall be deemed to be the BCH Companies' employees or agents. It is understood that Certen is an independent contractor for all purposes and at all times. Certen is wholly responsible for withholding and payment of all applicable federal, provincial and local income and other payroll taxes with respect to its employees, including contributions from them as required by law. 20.2 Bell may reject any Certen personnel for reasons relating to the substandard performance or inappropriate behavior of such personnel which compromises the performance of the Services by Certen by providing written notice of rejection (for the purposes of this section, the "REJECTION NOTICE") and the reasons therefor in reasonable detail, to Certen. If requested by Bell, Certen shall furnish a suitable replacement with similar qualifications, experience, skill and abilities, as soon as reasonably practicable and subject to Bell's reasonable approval. The following shall apply to such rejection and replacement of Certen's personnel: a. upon Certen's receipt of a Rejection Notice, Certen and Bell will agree upon the time frames for removing the relevant personnel from the relevant project or service; b. in the event the rejected Certen personnel has not commenced to provide Services for Bell prior to Certen's receipt of the Rejection Notice, such personnel shall not commence to provide any such Services; and c. Bell shall pay Certen for the Services provided by such personnel until such personnel are removed from the relevant project or Service, provided that such Services have otherwise been accepted by Bell in accordance with this Agreement. Notwithstanding anything to the contrary herein, Certen will remove any rejected personnel as soon as reasonably practicable following Certen's receipt of the Rejection Notice, in the event that non-removal of such personnel constitutes a significant threat to any Project, the Services or any Persons. 20.3 Nothing in this Agreement shall be construed as establishing a partnership, joint venture or employer-employee or principal and agent relationship (except where otherwise expressly stated) between Certen on the one hand and the BCH Companies on the other hand. Each Party hereto is independent and may not, at any time or in any manner whatsoever, bind or oblige the other except as may be expressly provided for in this Agreement.
52 SECTION 21. TERMINATION 21.1 CONVENIENCE - GENERALLY. a. Subject to the other provisions of this Agreement, Bell may terminate this Agreement for convenience upon at least one (1) year prior written notice to Certen. If Bell terminates this Agreement prior to the expiration of the Initial Term, Bell agrees to pay Certen on the effective date of the termination specified in the notice of termination, the termination charge to be calculated in accordance with this Section 21.1, which the Parties agree is Bell's sole and exclusive liability for such termination. Bell shall pay Certen, within ten (10) Business Days from the effective date of termination, (a) the termination charges corresponding to the year in which the notice of termination is provided by Bell, as set forth in the chart below; and (b) any damages, fees, costs, charges, penalties and expenses (collectively, "COSTS") required to be paid by Certen as a result of terminating any third party contracts arising out of the termination for convenience of this Agreement by Bell, subject to Certen's obligation to make reasonable efforts to mitigate such Costs: YEAR IN WHICH NOTICE OF TERMINATION FOR CONVENIENCE IS GIVEN BY BELL Termination Charge ------------- ------------------ 1 CA$[**] 2 CA$[**] 3 CA$[**] 4 CA$[**] 5 CA$[**] 6 CA$[**] 7-9 CA$[**] on the first month of the 7th. Year and decreasing monthly, until the end of this 36-month period, in CA$ [**] increments. The Parties agree that the termination charge listed in the right hand column above is a genuine pre-estimate of damages and does not constitute a [**]. The termination charge is to be paid without deduction or set off on account of mitigation. Certen is under no obligation to mitigate damages represented by the termination charge. This provision shall not derogate from Certen's obligation to mitigate Costs, as set forth above in this Section. If Bell [**] the Initial Term for the [**] period set out in Section 3 above, the parties will [**] any termination for convenience charges applicable during such [**] period. b. Notwithstanding Section 21.1a above, Bell's right to terminate this Agreement for convenience shall not apply for the [**] period following the Amendment
53 Effective Date. For greater certainty, Bell may provide notice of termination to Certen as specified in Section 21.1a during such [**], provided that such termination will not become effective prior to the end of such [**] period. 21.2 MATERIAL BREACH. Upon written notice, either Party may terminate this Agreement, without charge to the terminating Party, in the event of a material breach by the other Party. The Party seeking termination will provide the other Party with prior written notice of such material breach and a [**] opportunity to cure same. If the nature of any non-monetary breach is such that it would be unreasonable to expect a cure within the [**] period, the breaching Party shall be given an additional [**] to cure such breach. In the event that a material breach is not cured within the period specified above after delivery of the notice, the non-breaching Party, after fully complying with the [**] above (subject to Section 3.9.3 of Exhibit C-1 and Section X of Exhibit C-2), may terminate this Agreement, which termination shall be effective, as of a date specified in such notice of termination, but in no event earlier than the expiration of the cure period required by this Section. In addition, Bell retains the right to terminate this Agreement on grounds expressly set forth in Exhibit C-1 and Exhibit C-2. The terminating Party shall have all rights and remedies generally afforded by law or equity, subject to the limitations expressed in this Agreement. 21.3 TRANSITION-OUT. It is the intent of the Parties that at the expiration or termination, for any reason whatsoever, of this Agreement, Certen will Cooperate with the BCH Companies to assist with the orderly transfer of the Services, functions and operations provided by Certen hereunder to another services provider or the BCH Companies themselves, all as set forth in Exhibit J (Transition-Out Planning and Services). 21.4 INSOLVENCY. Without prejudice to any other rights at law or in equity or as otherwise contemplated in this Agreement, any Party shall have the right to terminate this Agreement, by written notice if the other (or, in the case of Certen, any company which directly or indirectly controls it) shall: (a) apply for or consent to the appointment of, or the taking or possession by a receiver, custodian, trustee or liquidator of it or all or a substantial portion of its property, whether pursuant to the laws of Canada or any province therein or of the United States of America or any state thereof or any other jurisdiction; (b) make a general assignment for the benefit of creditors or any assignment in violation of Section 27; or (c) commence a voluntary assignment or has an involuntary assignment or petition commenced against it under the Bankruptcy and Insolvency Act (Canada) or any similar legislation or statutory relief whether pursuant to the laws of Canada or any province therein or of the United States of America or any state thereof or any other jurisdiction. In any such event, the Party exercising the foregoing right to terminate shall promptly notify the other Parties in writing of its intent to terminate this Agreement, and such termination shall be effective upon the date specified in such notice. 21.5 CHANGE IN CONTROL OF CERTEN. Certen shall obtain the prior written consent of Bell to any acquisition, directly or indirectly, by a [**] within the Territory of [**]% or more of the voting securities of Certen. If, without first obtaining the written consent of Bell: (i) a [**] in the Territory acquires, directly or indirectly [**]% or more of the voting securities of Certen, or (ii) Certen is merged or amalgamated with or into any Person that is a [**]
54 in the Territory to form a new Person, then, at any time after the first to occur of such events but not later than [**] after the last to occur of such events, Bell shall have the right to terminate this Agreement, without charge to Bell (including, for greater certainty, any payment under Section 21.1), by delivering to Certen written notice. 21.6 TERMINATION FOR A FORCE MAJEURE EVENT. a. if: (i) a Force Majeure Event has occurred resulting in a cessation of the Services and continues for a period of 30 days or in the case of a labour strike or other material labour disruption, 180 days, and Bell has delivered to Certen a Declaration of Cessation; and (ii) within three days after the delivery of the Declaration of Cessation, Certen has been unable to recommence performance of such Services itself or directly engage an alternate source which has commenced performance of such Services, then Bell may terminate this Agreement by delivering to Certen a termination notice on not less than 24 hours notice at any time prior to or on the effective date of termination specified in the notice. 21.7 OBLIGATION TO PAY FOR SERVICES RENDERED PRIOR TO TERMINATION. In the event of any termination of this Agreement in accordance with the terms hereof, Bell shall pay Certen for Services rendered prior to the actual date of termination (which amount shall be substantiated with proof reasonably satisfactory to Bell); provided, however, that payment of any amounts by Bell shall be subject to rights of [**] and counterclaim and any and all other legal and equitable rights and remedies available to Bell, subject to the limitations expressed in this Agreement. 21.8 TERMINATION NOT IN LIEU OF OTHER REMEDIES. Termination of this Agreement by a Party shall not deprive such Party of any of its rights, remedies or actions against the other party in law or in equity, subject to the limitations expressed in this Agreement. 21.9 RETURN OF CONFIDENTIAL INFORMATION. Within [**] of termination of this Agreement and the end of the Transition-Out Period under the Transition-Out Work Plan each Party will return to the other all Confidential Information of the other Party disclosed for the purposes of or pursuant to this Agreement. SECTION 22. ORDERLY TRANSITION-OUT ON TERMINATION OR EXPIRY 22.1 If this Agreement is terminated or expires for any reason whatsoever then: a. the Transition-Out Plan and related services as contemplated in Exhibit J of this Agreement, shall be implemented;
55 b. Bell shall be responsible for payment for the Services rendered during the Transition-Out Period in accordance with the Transition-Out Plan unless otherwise expressly provided for to the contrary; c. Certen and Bell shall cooperate in good faith to bring about a smooth and orderly transition-out according to the time lines and deadlines agreed to by Certen and by Bell, both acting reasonably; and d. Certen and Bell shall utilize reasonable efforts to minimize the costs associated with the implementation of the Transition-Out Plan. 22.2 Except as otherwise provided for in this Agreement or in Exhibit J, if this Agreement terminates or expires, each of Certen and Bell shall be responsible for [**] incurred as a result of the implementation of the Transition-Out Plan and the termination or expiration of this Agreement. 22.3 Certen agrees that its 2003 annual report shall be prepared in accordance with those accounting principles which are recognized as being accepted in Canada from time to time as set out in the handbook published by the Canadian Institute of Chartered Accountants, consistently applied. 22.4 In order to assist in a smooth and orderly transition-out in accordance with the Transition-Out Plan, Certen shall request from lessors, vendors, suppliers and other third party contractors, that agreements that relate to Certen's provision of the Services be assignable to Bell without the consent of such lessors, vendors, suppliers and other third party contractors. Notwithstanding the foregoing, Certen shall have no liability or responsibility arising from any such agreements that are not assignable to Bell without consent. SECTION 23. AUDIT, SECURITY 23.1 REVIEW SECURITY MEASURES. Notwithstanding any other provision of this Agreement, the BCH Companies shall have the right, upon ten (10) days prior written notice to Certen (unless in the event of an emergency, in which case the BCH Companies corporate security personnel shall have the right, (a) upon twenty-four (24) hours prior written notice to Certen, or (b) in the case of intentional wrongdoing, upon such prior written and/or telephone notice to Certen as is reasonably possible under the circumstances) but without disrupting Certen's operations, and subject to Certen's reasonable access security requirements (as the case may be), to make visits, during normal business hours (except in the event of emergency situations as described above), to any of Certen's premises to inspect the Services being performed and the equipment and materials furnished by Certen in performing the Services solely to review security measures respecting the Services, data respecting the customers of the BCH Companies and/or the Database. If deficiencies are identified by the BCH Companies or the performance is not in compliance with Exhibit K, Certen shall promptly take such action as may be necessary or desirable to bring the performance into compliance, all at Certen's expense. At the BCH Companies' reasonable request, reasonable assistance shall be provided by Certen in identifying, tracking and closing
56 security exposures. Certen's obligations set forth in the Agreement shall not be compromised or otherwise diminished regardless of the action or non-action of the BCH Companies with respect to the aforesaid right of the BCH Companies to visit Certen's premises. The BCH Companies will allow access at all times to its facilities on Certen's premises for the purposes of installation and maintenance of Certen's interfacing facilities. 23.2 BOOKS AND RECORDS. Certen shall keep, in accordance with Canadian generally accepted accounting principles, books, statements, accounts and records pertaining to this Agreement and the Services. Certen shall preserve the books, statements, accounts and records for a period of [**] following the expiration or termination of this Agreement, or any other shorter period if allowed under applicable law. 23.3 a. Annual Audit Plan. The BCH Companies shall propose to Certen, and the Parties shall mutually agree upon, an annual written audit plan (for all the BCH Companies), as same may be amended from time to time by the agreement between the Parties. The proposed annual written audit plan shall be initially provided to Certen at least forty-five (45) days prior to the commencement of each calendar year (the "AUDIT PLAN"). The BCH Companies' initial proposal for the Audit Plan shall specify, among other things, (i) the reasonable audit requirements of the BCH Companies for such year (i.e., reasonable in terms of frequency, duration, timing and scope); (ii) the areas to be audited over the calendar year, provided that no area shall be audited more than [**]; and (iii) the BCH Companies' estimate of the resources required by the BCH Companies in the performance of such audits, and in consultation with Certen the resources required by Certen in the provision of reasonable assistance to the BCH Companies with respect to such audits. b. Audit Rights. All audits conducted by the BCH Companies in accordance with this Section 23.3 shall be at the BCH Companies' cost and expense. Subject to the agreed Audit Plan, the BCH Companies shall have the right, upon request, to appoint an independent auditor or auditors or Bell's internal auditor or auditors, who shall be given access in accordance with the Audit Plan, and subject to each external auditor's signing a reasonable and appropriate confidentiality agreement, to the books, statements, accounts, records, Systems and documentation of Certen relating directly to this Agreement, and Certen employees relating to the performance of the Services by Certen, and the premises where same are located. Such access shall be for the sole purposes of determining compliance with all the terms of this Agreement to verify, among other matters: (i) the accuracy of Certen's charges and invoices to Bell under the Agreement; (ii) the accuracy of any reports that Certen is obligated to provide to Bell hereunder; (iii) that Services are being provided in accordance with this Agreement;
57 (iv) the adequacy and sufficiency of Certen's loss control program in respect of operational risks; (v) the amount of any compensation payments and cost increases pursuant to Section 4 of Exhibit B (Fees) (the audit applicable to this item shall be performed by an independent third party auditor); (vi) compliance with the control and security measures relating to the Systems, the BCH Companies Data, Intellectual Property and the obligations of Certen and its sub-contractors hereunder relating thereto, as specified in Exhibit K; and (vii) the completeness and accuracy of any/all changes to BCH Companies billing data, related Systems, processes and/or applications, including the process for, and management controls over, the introduction of such changes. c. Certen to Provide Reasonable Assistance. Certen shall provide Bell with all reasonable assistance for the matters referred to in this Section 23.3 [**] Bell; provided, however, that if Certen is requested to provide assistance to an extent which is not reasonable or standard, Certen shall so advise Bell and Bell shall have the option of reducing such assistance to a reasonable level which is mutually acceptable to the Parties or of paying Certen [**] such additional efforts. Except as provided in Section 23.3(b)(v), the BCH Companies shall have no right to audit any cost or pricing data, the composition of rates or fees invoiced, records and information pertaining to any other client or Certen's accounting policies or practices. Following the delivery to Certen of an audit or assessment report or security review produced in accordance with Section 22.1 above and this Section 23.3, Certen will take timely corrective action in respect of any deficiencies, identified by the audit or assessment, [**] to the BCH Companies (subject to Section 5.11 of this Agreement), to the extent such deficiencies relate to the delivery of the Services and were substantially caused by Certen. Such action shall be documented in a formal action plan and provide a sufficient level of detail, including as a minimum: - description of the deficiency or finding; - description of the action taken or proposed to be taken to resolve the deficiency or finding; - an implementation schedule with specific completion dates for each action item. All such action plans shall be submitted in writing by Certen to the BCH Companies within a reasonable period from the date of delivery to Certen of the audit or assessment report. Quarterly status reports shall be provided by Certen to the BCH Companies
58 regarding all outstanding deficiencies until such deficiencies are resolved to the satisfaction of BCH Companies, acting reasonably. In respect of critical deliveries, the Parties may agree to more frequent reporting based on severity. Certen shall assist the BCH Companies auditors in their endeavors to obtain assurance that audit or assessment findings have been satisfactorily addressed. In the event of disagreement between Certen and the BCH Companies regarding the need to address audit or assessment findings or the appropriate action necessary to resolve any such findings, such disagreement shall be resolved by arbitration in accordance with the dispute resolution provisions of Section 18 hereof. 23.4 SECURITY PROCEDURES. Certen shall follow and shall ensure that its employees, subcontractors, agents or other representatives follow the security procedures described in Exhibit "K", Security, Access and Interface (subject to contracts with subcontractors in effect prior to the Effective Date and which were transferred to Certen by the BCH Companies, or from which Certen benefits, in accordance with this Agreement), which references the BCH Companies' Security Standard for Computer and Access Control as may be amended, reasonably, from time to time by the mutual written consent of the parties; provided that any material additional costs resulting from such an amendment shall be dealt with in accordance Change Order Process, with any disagreement to be resolved by arbitration in accordance with the dispute resolution provisions of Section 18 hereof. Certen may request the BCH Companies' consent to vary from these standards as may be reasonably required, which consent shall not be unreasonably withheld. The BCH Companies will follow and shall ensure that their employees, subcontractors, agents or other representatives follow Certen's security policy whenever visiting Certen's operations. 23.5 PIPEDA. Each Party, its agents and subcontractors and all employees or other representatives of any of them shall comply with the Personal Information Protection and Electronic Documents Act (Canada). In the event of any change, modification or adoption of a new provision to the said Act from the present version in effect on the date of this Agreement, the BCH Companies shall request that Certen provide an estimate of the reasonable additional costs and expenses that would be incurred by Certen to do same and time required to implement same together with supporting documentation to justify the estimate. The BCH Companies shall then decide whether Certen shall effect same and if the BCH Companies does so decide Certen shall implement same and the BCH Companies shall reimburse Certen's reasonable and pre-approved expenses incurred in so doing. SECTION 24. NON-SOLICITATION 24.1 Unless otherwise agreed by the Parties, (i) during the Term of this Agreement, each Party agrees not to solicit ([**] any of the other Party's employees or their respective subcontractors' employees who are assigned full or part-time to [**], and (ii) during the [**] period commencing on Amendment Effective Date each Party agrees [**] any of the other Party's employees or their respective subcontractors' employees who are assigned full or part-time to [**]. Notwithstanding the foregoing, a Party will not be in breach of
59 Section 24.1(ii) if the employee is [**] and the employee was [**] by a Party without knowledge that the restriction under Section 24.1(ii) is applicable to such employee. SECTION 25. LIMITATION OF LIABILITY 25.1 (A) BOTH PARTIES AGREE THAT CERTEN'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO THE BCH COMPANIES OR ANY THIRD PARTY FOR DAMAGES RELATED TO THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, WILL BE LIMITED TO THOSE DAMAGES ACTUALLY PROVEN AS DIRECTLY ATTRIBUTABLE TO CERTEN, AND WILL IN NO EVENT EXCEED [**] US DOLLARS (US $[**]), LESS THE AMOUNT OF ANY PENALTY REBATES PAID OR PAYABLE TO THE BCH COMPANIES IN ACCORDANCE WITH EXHIBIT C-1 AND EXHIBIT C-2, OVER THE [**] PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE APPLICABLE CAUSE OF ACTION FOR DAMAGES ARISES HEREUNDER. (B) BOTH PARTIES AGREE THAT BELL'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CERTEN OR ANY THIRD PARTY FOR DAMAGES RELATED TO THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, WILL BE LIMITED TO THOSE DAMAGES ACTUALLY PROVEN AS DIRECTLY ATTRIBUTABLE TO THE BCH COMPANIES, AND WILL IN NO EVENT EXCEED [**] US DOLLARS (US $[**]). 25.2 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY (BUT SUBJECT TO THE OTHER LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 25), THE MEASURE OF DAMAGES CLAIMED BY ONE PARTY AGAINST THE OTHER, INCLUDING ANY INDEMNITY LIABILITIES RESULTING FROM THIRD PARTY CLAIMS UNDER SECTION 17, SHALL NOT INCLUDE ANY AMOUNT FOR DIRECT DAMAGES, TO THE EXTENT THE APPLICABLE CLAIM AND THE AMOUNT DUE UNDER SUCH CLAIM IS LESS THAN [**] US DOLLARS (US$[**]). 25.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MEASURE OF DAMAGES CLAIMED BY ONE PARTY AGAINST THE OTHER, INCLUDING ANY INDEMNITY LIABILITIES RESULTING FROM THIRD PARTY CLAIMS UNDER SECTION 17, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 25.4 BELOW, SHALL NOT INCLUDE ANY AMOUNTS FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, ECONOMIC OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS OF PROFIT OR FAILURE TO REALIZE EXPECTED SAVINGS ARISING DIRECTLY OR INDIRECTLY FROM BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR OTHERWISE), NEGLIGENCE, ANY ACT OR OMISSION OF ANY PARTY OR ITS REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, EVEN IF THE AGGRIEVED PARTY HAD BEEN ADVISED OF, HAD KNOWLEDGE OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, AND BY WAY OF EXAMPLE ONLY, CONSEQUENTIAL DAMAGES CLAIMED BY A THIRD PARTY AGAINST ONE OF THE INDEMNIFIED PARTIES IS NOT
60 RECOVERABLE BY AN INDEMNIFIED PARTY AGAINST THE INDEMNIFIER (EXCEPT WHERE CONSEQUENTIAL DAMAGES ARE EXPRESSLY RECOVERABLE AS PROVIDED IN SECTION 25.4 BELOW). 25.4 THE ABOVE MENTIONED LIMITATIONS (IN SECTIONS 25.1, 25.2 AND 25.3) WILL NOT APPLY TO: (I) ANY FAILURE BY BELL TO PAY ANY ACCRUED BUT UNPAID AMOUNTS DUE AND OWING TO CERTEN PURSUANT TO THE TERMS OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE TERMINATION CHARGES DESCRIBED IN SECTION 21.1 ABOVE; (II) LOSSES BY EITHER PARTY FOR BODILY INJURY OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY; AND (III) EITHER PARTY'S OBLIGATIONS TO INDEMNIFY THE OTHER FOR INTELLECTUAL PROPERTY RIGHT INFRINGEMENT AND TAX LIABILITIES; AND (IV) BELL'S BREACH OF THE [**] PROVISIONS OF SECTION 6.1 (FOR WHICH BREACH OF SECTION 6.1, BELL'S LIABILITY WILL BE LIMITED TO AN AMOUNT EQUAL TO THE TERMINATION CHARGES DESCRIBED IN SECTION 21.1 ABOVE). 25.5 CERTEN'S LIABILITY FOR THE FAULTS OF ANY SUBCONTRACTORS OR THEIR SYSTEMS WHOSE CONTRACTS WITH THE BCH COMPANIES WERE EITHER ASSIGNED TO CERTEN OR UNDER WHICH CERTEN BENEFITS (I.E., UNDER THE CORPORATE CONTRACTS LISTED IN EXHIBIT L1) IN ACCORDANCE WITH THIS AGREEMENT AND WITH RESPECT TO THE LEGACY SYSTEMS SHALL BE LIMITED TO CERTEN'S OBLIGATIONS TO PROPERLY MANAGE SUCH CONTRACTS AND SUCH PARTIES IN ACCORDANCE WITH THIS AGREEMENT. IN ADDITION, CERTEN'S INDEMNITY OBLIGATIONS HEREUNDER WITH RESPECT TO BREACHES ARISING UNDER SUCH CONTRACTS SHALL BE LIMITED TO THE EXTENT THAT CERTEN IS INDEMNIFIED AND HELD HARMLESS BY SUCH SUBCONTRACTORS FOR THE APPLICABLE FAULT OR BREACH. SECTION 26. FORCE MAJEURE 26.1 FORCE MAJEURE. a. Neither Party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or the Exhibits hereto to the extent such delay or failure is directly caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, act of God, labour disruption, regulatory or legislative intervention or other similar causes beyond its control and anticipation or foreseeability and without any fault or negligence of the delayed or non-performing Party and provided that the delay or failure to perform could not have been prevented by reasonable precautions and cannot be reasonably circumvented by the non-performing Party through the use of alternate sources, work around plans or other means (including by meeting the obligations for performing disaster recovery services as described in Section 5.10 of this Agreement) (each, a "FORCE MAJEURE EVENT").
61 b. If a Force Majeure Event occurs, the non-performing Party shall be excused from further performance or observance of the obligations so affected for as long as the Force Majeure Event prevails and such Party continues to use all commercially reasonable efforts to recommence performance or observance without delay. Any Party so delayed in its performance shall immediately notify the Party to whom performance is due by telephone (to be confirmed in writing within 24 hours of the inception of such delay) and describe at a reasonable level of detail the circumstances causing such delay. c. The Parties acknowledge and agree that the provision of the Services to Bell under this Agreement is critical to the overall operations and financial performance of Bell and that a substantial interruption of the performance of the Services would materially and adversely affect Bell. Accordingly, if a Force Majeure Event or a Guarantee Event results in the cessation of the Services (other than due to the fault of Bell or a third party), then Bell shall notify Certen in writing stating a claim that a Force Majeure Event or a Guarantee Event has occurred (a "DECLARATION OF CESSATION"), and then the following shall apply: (i) Certen shall immediately begin to use all commercially reasonable efforts to engage an alternate provider (including Bell) to perform such Services or recommence performance of such Services itself. Certen shall continue such efforts until the first of the following to occur: (A) Certen recommences performance of such Services; (B) an alternate provider is engaged by Certen or Bell pursuant to Section 26.1c(ii); or (C) this Agreement is terminated pursuant to Section 21.6. (ii) If, after ten (10) days following the Declaration of Cessation, Certen has not recommenced performance of such Services itself or engaged an alternate provider (including Bell), Certen will, for a five (5) day period allow Bell access to Certen's facilities as necessary for Bell to assist Certen in removing the Force Majeure Event or the Guarantee Event, as applicable. Following such five (5) day period (the "5-Day Period"), if the Services have not recommenced, Bell may undertake to identify an alternate provider from which Certen may be able to procure such Services. If Bell identifies such an alternate source, Bell shall first afford Certen a reasonable opportunity to engage such provider to perform such Services and manage such provider's performance, but if that is not accomplished, and the performance of the Services has not recommenced, then Bell may itself engage such provider to perform such Services (with Certen liable for payment for such Services from such provider for so long as the delay in performance shall continue, provided Bell continues to pay Certen under Section 26.1(c)(iii)), alternatively, Bell may itself perform the Services. In such circumstances that a third party provider is engaged, Bell will first
62 afford Certen a reasonable opportunity to manage such provider performance, but if that is not accomplished, then Bell may itself manage such provider performance. Certen shall reasonably cooperate with such provider and/or Bell, as the case may be, including by providing access to such Systems, Certen personnel, and information as are reasonably necessary for such provider to perform the Services. Notwithstanding the foregoing, if Bell or a third party provider have been unable to recommence the Services within seven (7) days of the end of the 5-Day Period, then Certen, Bell and/or the alternative provider, as the case may be, shall promptly cooperate as necessary to transfer the performance of the Services back to Certen. (iii) Subject to Section 21.6, Bell shall continue to pay amounts due and payable by Bell to Certen hereunder upon the occurrence of any Force Majeure Event or the Guarantee Event, as applicable, but Certen shall not have the right to any additional payments from Bell for costs or expenses incurred by Certen as a result thereof. (iv) Upon discontinuance of the Force Majeure Event or the Guarantee Event, as applicable, unless the Agreement has been terminated by Bell pursuant to Section 21.6, Certen, Bell and/or the alternative provider, as the case may be, shall promptly cooperate as necessary to transfer the performance of the Services back to Certen. 26.2 DISASTER RECOVERY SERVICES; REFERENCE TO EXHIBIT I. This Section does not limit or otherwise affect Certen's obligations to provide disaster recovery services in accordance with Exhibit I; provided, however, that any Force Majeure Event does not also prevent Certen's provision of the Services from the recovery centers. SECTION 27. ASSIGNMENT/SUBCONTRACTING 27.1 ASSIGNMENT. Except as provided in Section 27.2 below, neither Party shall assign any or all of its obligations herein, including the provision of the Services, to any third party unless with the prior written consent of the other Party, which consent may be unreasonably withheld. Any approved assignee shall expressly acknowledge and accept the provisions of this Agreement and the Exhibits hereto and agree that it is bound thereby as if it had been an original party and signatory to this Agreement. a. Certen, upon written notice to Bell, may assign monies due and to become due to Certen under this Agreement provided that Bell shall be entitled to assert against the assignee thereof all rights, claims and defenses of every type which Bell could assert against Certen, whether acquired prior or subsequent to such assignment. b. Bell may assign this Agreement and any of its rights and obligations under this Agreement to any Affiliate of Bell or of BCE Inc., provided that the assignee (i) is not a material competitor of Certen or Amdocs (it being agreed that each of [**] and [**] are competitors of Certen and/or Amdocs; however, the Parties will
63 review and update, from time to time, the applicability of this section to [**] and [**], subject to Certen's prior written consent); (ii) is a successor to the same or substantially the same service business (requiring the rendering of bills) that the BCH Companies have as of the Effective Date; and (iii) executes such documents as Certen may reasonably require to evidence the assumption by the assignee of such obligations under this Agreement. In any such event no such assignment shall relieve the BCH Companies from any liability or obligation arising hereunder. If any assignment permitted under this Section causes any increase in withholding tax liability, then such sums payable to Certen shall be increased by an amount such that following all required deductions, Certen receives the amount equal to the sum it would have received had no such deductions been made. c. Certen may (A) assign this Agreement and any of its rights and obligations under this Agreement to any Affiliate of Certen which is a resident of Canada for the purposes of the Income Tax Act (Canada) or (B) amalgamate with any Affiliate of Certen which is a resident of Canada for the purposes of the Income Tax Act (Canada), provided that the assignee or amalgamating corporation (i) is not a material competitor of the BCH Companies; and (ii) executes such documents as the BCH Companies may reasonably require to evidence the assumption or confirmation by the assignee or amalgamating corporation of such obligations under this Agreement. In any such event no such assignment shall relieve Certen from any liability or obligation arising hereunder. 27.2 SUBCONTRACTING. a. Certen shall not subcontract or otherwise delegate the delivery of any material part of the Services contemplated by this Agreement to any Person without: (a) the prior written consent of the BCH Companies, which consent may be unreasonably withheld; and (b) the execution by such Person of documentation satisfactory to the BCH Companies which protects the rights of the BCH Companies under this Agreement; except that Certen may (without the BCH Companies' consent) subcontract to Amdocs and any of its Affiliates for the performance of any Services or other obligations of Certen under this Agreement. b. The approval by the BCH Companies of any subcontractor or other delegate, shall not relieve Certen of its obligations under this Agreement as primary obligor, subject to Section 24 above. In addition to its other obligations under this Agreement, Certen shall be responsible for the direct supervision, management and control of any approved subcontractors and other delegates and shall ensure that all such approved subcontractors and other delegates comply with the terms of and perform the Services in accordance with this Agreement. Notwithstanding any such contracting or delegating, Certen shall remain solely liable to the BCH Companies for the provision of the Services.
64 SECTION 28. COMPLIANCE WITH LAWS 28.1 Certen and the BCH Companies shall comply at their own expense with all applicable federal, provincial, local and foreign laws, ordinances, regulations and codes, including identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections in performance under this Agreement. Certen agrees to indemnify the BCH Companies, and Bell agrees to indemnify Certen, for any loss or damage that may be sustained by reason of any failure to do so. In connection with the performance of this Agreement, Bell shall, at Certen's request or expense, take steps reasonably required to facilitate Certen's compliance with this Section and Certen shall, at Bell's request and expense, take steps reasonably required to facilitate Bell's compliance with this Section. 28.2 Without limiting the foregoing obligations, any obligations under this Agreement shall be performed in compliance with all applicable legislation and government agency orders and regulations prohibiting discrimination against any employee or applicant for employment because of race, color, religion, sex, national origin, age or handicap. Where required by law, certificates of compliance shall be provided. SECTION 29. PUBLICITY AND IDENTIFICATION 29.1 Certen shall not, except with the BCH Companies' written consent, engage in promotion or publicity about either Party's participation in this Agreement, the content(s) hereof or the relationships contemplated herein, or, in any circumstance connected herewith, make public use of any Identification of the BCH Companies, or any customer or supplier of any of them. As used herein, "IDENTIFICATION", means any copy or semblance of any trade name, trademark, service mark, insignia, symbol, logo, designation or other product or service Identification of such person, or any evidence of inspection by or for any of them. 29.2 The BCH Companies shall not, except with Certen's written consent, engage in promotion or publicity about Certen's participation in this Agreement, the content(s) hereof or the relationships contemplated herein, or, in any circumstance connected herewith, make public use of any Identification of Certen, or any customer or supplier of any of them. SECTION 30. AMENDMENT/CHANGES 30.1 This Agreement shall not be amended except by written instrument signed by the Parties hereto. SECTION 31. WAIVER 31.1 No indulgence or forbearance by either Party hereunder shall be deemed to constitute a waiver of its right to insist on performance in full and in a timely manner of all terms, covenants or conditions of the other Party hereunder and any such waiver, in order to be binding upon a Party, must be express and in writing and signed by such Party and then
65 such waiver shall be effective only in the specific instance and for the purpose for which it was given. SECTION 32. SEVERABILITY 32.1 If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable this entire Agreement, but rather such provision shall be modified or severed (as the case may be) so as to maintain to the maximum extent possible the benefits of the Parties hereunder and the remaining provisions of this Agreement shall be unaffected thereby. SECTION 33. SURVIVAL OF OBLIGATIONS 33.1 The obligations of the Parties under this Agreement that are stated to or which, by their nature would continue beyond the termination, cancellation or expiration of this Agreement, including, by way of illustration only and not limitation, those in the Sections entitled CONFIDENTIAL INFORMATION, INDEMNITY, AUDIT, LIMITATION OF LIABILITY, INTELLECTUAL PROPERTY RIGHTS, DISPUTE RESOLUTION, ORDERLY TRANSITION-OUT ON TERMINATION OR EXPIRY shall survive termination, cancellation or expiration of this Agreement and continue in full force and effect as provided for herein. SECTION 34. CHOICE OF LAW AND CHOICE OF FORUM 34.1 The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the laws of the Province of Ontario (without regard to its rules on conflicts of laws) and the laws of Canada applicable therein. For the purposes of and solely where court action is expressly permitted under this Agreement, Certen and Bell each submits to the exclusive jurisdiction of the courts of the Province of Ontario. Certen further agrees to submit to the jurisdiction of any court wherein an action is commenced against Bell based on a claim for which Certen has agreed to indemnify the BCH Companies under this Agreement. Bell further agrees to submit to the jurisdiction of any court wherein an action is commenced against Certen based on a claim for which the BCH Companies have agreed to indemnify Certen under this Agreement. SECTION 35. DESIGNATED REPRESENTATIVES AND GOVERNANCE PROCESS a. Each of Certen and Bell will appoint one or more representatives who will (a) be familiar with this Agreement, (b) be responsible for the ongoing management of this Agreement, including billing activities, and (c) act as the primary point of contact for such Party. The representatives appointed by Bell shall be referred to herein as the "BELL DESIGNATED REPRESENTATIVES" and the representatives appointed by Certen shall be referred to herein as the "CERTEN DESIGNATED REPRESENTATIVES". The Bell Designated Representatives and the Certen Designated Representatives shall be identified in separate communication between and acknowledged by the Parties. The Bell Designated Representatives and the Certen Designated Representatives will communicate directly with each
66 other and will be responsible for responding in a timely manner to all requests made by the other. Each of Certen and Bell may designate new or replacement Bell Designated Representatives or Certen Designated Representatives, as the case may be, from time to time by providing written notice to the other of such designation. b. The Parties agree to follow the governance process set forth in Exhibit F in the implementation and administration of this Agreement. SECTION 36. RELEASES VOID Neither Party shall require: (i) waivers or releases of any personal rights or (ii) execution of documents, which conflict with the terms of this Agreement from employees, representatives or customers of the other in connection with visits to its premises and both Parties agree that no such releases, waivers or documents shall be pleaded by them or third persons in any action or proceeding. SECTION 37. CHANGE ORDER PROCESS The Change Order Process specified in Exhibit G shall be used to make changes to the Services, including the addition of any New Services. SECTION 38. MISCELLANEOUS 38.1 ENTIRE AGREEMENT. This Agreement, including all Exhibits attached hereto, as the same are in effect from time to time, constitutes the entire agreement between Certen and Bell with respect to the subject matter hereof, and, with effect from 12:01 am (Toronto time) on the Amendment Effective Date, supersedes and replaces the Amended and Restated Master Outsourcing Services Agreement dated April 26, 2001. Other than as expressly provided herein, both Certen and Bell agree that no prior or contemporaneous oral representations form any part of this Agreement. Additional or different terms inserted in this Agreement by a Party, or deletions thereto, whether by alterations, addenda, or otherwise, shall be of no force and effect, unless expressly consented to by the other Party in writing. 38.2 ACCOUNTING TERMS. All accounting terms not specifically defined herein shall be construed in accordance with Canadian generally accepted accounting principles. 38.3 CURRENCY. All references to currency are deemed to mean lawful money of Canada unless expressed to be in some other currency. 38.4 NO CONFLICT. In the event of a conflict or inconsistency between the terms and conditions of an Exhibit hereto and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall prevail. 38.5 FURTHER ASSURANCES. The Parties shall with reasonable diligence hold all meetings, perform all acts, execute and deliver all documents and instruments, do all things and
67 provide all such further reasonable assurance as may be reasonably necessary or desirable to give effect to the provisions of this Agreement. 38.6 COUNTERPARTS. This Agreement may be executed in two (2) or more counterparts (including counterparts by facsimile), each of which shall be deemed to be an original as against any Party whose signature appears thereon, and all of which together, shall constitute one and the same Agreement. 38.7 [**]. Each of Bell and Certen shall have the right to satisfy any amount from time to time owing by it to the other of them hereunder by way of [**] (subject first to compliance with the dispute resolution procedures set forth in Section 18 above) against any amount from time to time owing by the other of them to it hereunder. 38.8 INTERPRETATION. a. In this Agreement and the Exhibits hereto, the rule of construction that a document is to be construed more strictly against the Party who itself or through its agent prepared it shall not apply as it is agreed that the Parties, together, through themselves and their agents have prepared this Agreement and its Exhibits. The terms "hereof", "hereto", "herein", "hereunder" and similar expressions refer to this Agreement and not to any particular Article, Section, Subsection or Exhibit and include any agreement supplemental hereto. b. The division of this Agreement into Articles, Sections, Subsections and Exhibits and the insertion of recitals and headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. c. In the event that any date on which any action is required to be taken hereunder by any of the Parties is not a Business Day, such action shall be required to be taken not later than on the next succeeding Business Day, unless otherwise provided in this Agreement. d. Wherever in this Agreement the context so requires, the singular number shall include the plural number and vice versa and any gender herein used shall be deemed to include the feminine, masculine or neuter gender. 38.9 TIME OF ESSENCE. Time shall be of the essence in this Agreement. Notwithstanding the foregoing: (a) the remedies for failure to meet timing and/or scheduling obligations shall be only as expressly provided in this Agreement; and (b) the foregoing "time is of the essence" clause shall not be in effect with respect to Exhibit C-1 or Exhibit C-2, which already reflects the agreed time limitations and remedies with respect to the Service Levels. 38.10 FINANCIAL RESPONSIBILITY. Financial responsibility relating to a particular function lies with the Party who has the responsibility of performing that function unless otherwise indicated in this Agreement.
68 IN WITNESS WHEREOF, Certen and Bell have executed this Agreement. CERTEN INC. Per: /s/ Salvatore Iacono c/s ---------------------------------------------- SALVATORE IACONO PRESIDENT & CHIEF EXECUTIVE OFFICER BELL CANADA Per: /s/ Eugene Roman c/s ---------------------------------------------- EUGENE ROMAN GROUP PRESIDENT - SYSTEMS AND TECHNOLOGY
FINAL EXHIBIT A DEMARCATION POINTS AND SERVICE DEFINITIONS 1. PART A - RECITALS 1.1 INTRODUCTION 1.1.1 The purposes of this Exhibit A to the Agreement are as follows: A. to define all demarcation points that identify the services that are within the scope of the Services provided by Certen; B. to describe the Services; C. to define all existing applications that will be the baseline definition of the Services for Certen's operation; and D. to define all functions and responsibilities which are to be performed by Certen in delivering the Services. 1.1.2 This Exhibit A specifies the Services affecting the Legacy Systems, and Modernized Systems, which Services are the same or substantially the same as the customer care and billing services and operations provided internally or received by the BCH Companies (including Bell Sympatico and Bell Nexxia) just prior to the Effective Date. Notwithstanding the foregoing, only the customer care services which Certen agreed to provide to Bell (not including Bell Sympatico and Bell Nexxia) as of the Effective Date form part of the Services hereunder. After the Amendment Effective Date, the Parties shall review this Exhibit A and modify the description of the Services (including the Demarcation Tables in Annex I, as necessary) to the extent it has changed as a result of (i) the transfer of the Oversight Functions to Bell; and (ii) the work performed to date on the Modernization. The Parties shall complete such review and modification by December 31, 2003. After completion of Modernization, the Parties shall further review this Exhibit A and adjust the description of the Services only to the extent it has changed as a result of further Modernization. The Parties acknowledge that Exhibits O-1 and O-2 represent the most current statement of each Party's roles and responsibilities. 1.2 FINALIZING THE EXHIBIT As of the date of signing, this Exhibit A contains incomplete or partial information regarding the Annexes hereto (including the Envelope
-2- Parameters) and the description of the Services as noted in Section 1.1.2 above Accordingly, the Parties will, as soon as practicable after the Amendment Effective Date and in any event prior to December 31, 2003, negotiate in good faith to resolve and complete all missing data items or other information marked by "***" in this Exhibit A and take the steps set out in Section 1.1.2 above. 1.3 DEFINITION OF TERMS Unless otherwise defined herein, capitalized terms used in this Exhibit shall have the meaning ascribed to them in the Agreement. The following terms shall have the following meanings: "[**]" has the meaning set forth in Section 2.1 of Exhibit A. "DEVIATION" means any deviation in the Envelope Parameters described above, being a result of a cause attributable to the Services provided to the BCH Companies; "ENVELOPE PARAMETERS" means the service factors that define the boundaries of the functions, responsibilities and volume of Services to be provided by Certen for the [**] as set out in Exhibit A. Any [**] (as defined below) from these parameters, whether in the event of a [**], a change in any Service and/or an [**] in the [**] or requirements thereof (to the extent provided for within any [**], subject to the guiding principles set out in Section 4), or otherwise, may result in the work being handled within the Change Order Process, which may have an effect on the cost of Services, as set forth in Exhibit B; "LINES OF BUSINESS" means all existing, as of the Amendment Effective Date, lines of business of the BCH Companies, whether retail or wholesale, including, but not limited to, the following lines of business: (1) Wireline; (2) Cellular; (3) Wireless; (4) Long distance; (5) International; (6) Paging; (7) Local; (8) Internet; (9) Toll free; (10) IP; (11) VOIP; (12) PABX extensions; (13) Data services (including, but not limited to, via cable); (14) Custom corporate solutions; (15) Business ISP; (16) Broad band services; (17) 900/976; (18) Terminal equipment; (19) Directory service charges feed; and (20) Pre-paid subscriptions to the foregoing. Any additional Lines of Business that are not referenced above will be agreed between the Parties in accordance with the Change Order Process. "PRICE PER UNIT" has the meaning ascribed thereto in Exhibit B to the Agreement.
-3- "USE CASES" means the sub-processes or sub-services set forth in Annex 2 to Exhibit A, the purpose of which is to assist the Parties to analyze the demarcation lines of the Services (as defined in Annex 1 to Exhibit A). Each Use Case is a subset of a Service describing a sequence of actions that represents a business process. "THIRD PARTY CUSTOMERS" has the meaning set forth in Section 2.2.2 of Exhibit A. 2. PART B - ORGANIZATION 2.1 INTRODUCTION This part of Exhibit A refers to the procedures for Certen's receipt of all relevant information concerning the operational organizations of the BCH Companies, along with the operational organizations of the [**], listed in Section 2.2.2 below ("[**]") and other third party customers of Bell under Bell Customer Contracts, to whom Certen will provide continuing services to satisfy Bell's obligations under the applicable third party contracts with the [**] and such other Third Party Customers of Bell, as set forth in Section 2.2.2 below in accordance with the Agreement. This Part B refers to the procedures for Certen's receipt of all relevant information concerning the operational organizations that will be replaced, or interfaced with, as a result of Certen's In-Scope Operations responsibilities. 2.2 RECIPIENTS OF THE SERVICES 2.2.1 BCH COMPANIES At Certen's request, Bell shall promptly provide all relevant information to Certen concerning applicable Lines of Business of the BCH Companies, the applicable contact person for the BCH Companies, and any other information requested by Certen which is relevant for purposes of Certen's provision of the Services. 2.2.2: THIRD PARTY CUSTOMERS UNDER BELL CUSTOMER CONTRACTS The table below provides the list of all third party customers under the Bell Customer Contracts, comprised of the (i) [**]; and (ii) other third party customers of Bell, as of the Amendment Effective Date, each of which shall receive the Services, to the extent provided by Bell as of the Amendment Effective Date, as described in this Exhibit A (collectively, the "THIRD PARTY CUSTOMERS"). For the avoidance of doubt, the contracts between Bell and the [**] and Bell and the other third party customers of Bell shall not be assigned or otherwise transferred to Certen.
-4- -------------------------------------------------------------------- Contract Acquired Company Name with Services Remarks -------------------------------------------------------------------- [**]: -------------------------------------------------------------------- 1. [**] Bell [**] [**] -------------------------------------------------------------------- 2. [**] Bell [**] [**] -------------------------------------------------------------------- 3. [**] Bell [**] [**] -------------------------------------------------------------------- 4. [**] Bell [**] [**] -------------------------------------------------------------------- OTHER THIRD PARTY CUSTOMERS UNDER BELL CUSTOMER CONTRACTS: -------------------------------------------------------------------- 1. [**] Bell [**] [**] -------------------------------------------------------------------- 2. [**] Bell [**] [**] -------------------------------------------------------------------- 3. [**] Bell [**] [**] -------------------------------------------------------------------- 2.3 OPERATIONAL ORGANIZATION At Certen's request, Bell shall promptly provide all relevant information to Certen concerning the organization structure, as well as descriptive and quantitative information related to the BCH Companies and the Third Party Customers above as may be necessary to provide the Services and subject to applicable confidentiality restrictions on Bell's ability to disclose such information. 2.4 BILLING USERS At Certen's request, Bell shall promptly provide all relevant information to Certen concerning the names, titles and responsibilities of all users in the BCH Companies and the Third Party Customers that will have a direct working relationship with Certen personnel. 2.5 BCH COMPANIES' LINES OF BUSINESS At Certen's request, Bell shall promptly provide detailed information concerning the Lines of Business of each of the BCH Companies and the Third Party Customers under Bell Customer Contracts listed in Section 2.2.2 above as may be necessary to provide the Services and subject to applicable confidentiality restrictions on Bell's ability to disclose such information. 3. PART C - SERVICES 3.1 INTRODUCTION This Section 3.1 describes and refers to the annexes which define all Services to be provided by Certen to the BCH Companies and the Third Party Customers under this Exhibit A. The Parties recognize and agree that all of these Services were being
-5- provided internally or received by the BCH Companies and/or the Third Party Customers immediately prior to the Effective Date. Notwithstanding the foregoing or anything else in the Agreement, the Parties assume that the current [**] with respect to [**] (i.e., [**] Operations Services delivery to Bell) [**] will be [**] on the Amendment Effective Date from those [**] during the year prior to the Amendment Effective Date. [**] made by Certen in accordance with the Agreement prior to the Amendment Effective Date which are part of the [**] will [**] in place and will [**] to be honoured by Certen. Likewise, Bell shall not be required to have Certen perform and Certen will not be required to perform activities that [**] are [**] by Certen (i.e., that are not part of the [**]) provided that this will not excuse Certen from implementing commitments that prior to the Amendment Effective Date under the Agreement are to be implemented only at a date following the Amendment Effective Date. Each of these Services is further broken down, and described, at the levels of Use Cases. Annex 1 to this Exhibit contains the demarcation tables.*** Annex 1A to this Exhibit contains a description of the Ongoing Support Services. Annex 2 to this Exhibit contains Use Cases.*** Annex 3 to this Exhibit contains demarcation forms.*** Annex 4 to this Exhibit contains the Logical Interfaces between (i) Certen and each of the BCH Companies (ii) Certen and Third Party Customers, and (iii) Certen and certain third party vendors, all as were available to the Parties as of the Amendment Effective Date.*** Annex 5 to this Exhibit contains the Envelope Parameters for the Legacy Systems and the Modernized Systems, along with definition and value setting guidelines to guide the Parties in the process of defining and detailing all relevant Envelope Parameters. *** 3.2 SCOPE OF CERTEN'S [**] The Services defined below are the Services for which Certen has [**] under Section 6 of the Agreement: 3.2.1 a. Customer Care Operations Services, Billing Operations Services and associated Ongoing Support Services for [**]
-6- as detailed in Table A1 (Demarcation Matrix) of Annex 1, for all Lines of Business; and b. Billing Operations Services and associated Ongoing Support Services for [**], as detailed in Table A1 (Demarcation Matrix) of Annex 1, for all Lines of Business. 3.2.2 For greater certainty, the Parties recognize and agree that, for purposes of the scope of Certen's [**] set forth in Section 6.1 of the Agreement, the demarcation matrix set forth in Table A1 of Annex 1: (a) shall not be subject to reduction; and (b) shall apply to Certen's provision of the various services enumerated therein, irrespective of the Systems on which such services are delivered (or any modernizations or upgrades of such Systems), including but not limited to, the Legacy Systems, the Modernized Systems, and any other billing and/or customer care Systems, whether acquired, licensed, leased, or otherwise used by the BCH Companies throughout the Term, and irrespective of the Lines of Business which are the subject of such services. 3.2.3 At anytime after the Effective Date, should any service performed by or benefiting the BCH Companies fall within the scope of Section 3.2.1 or 3.2.2, e.g., whether because such service was not previously identified or is required as a result of the acquisition by or use of the BCH Companies of any System or application, such services shall be [**] to be in [**] (subject to Certen's [**] under Section 6.1 of the Agreement), and the BCH Companies shall transfer such services, applications or systems to Certen, including any relevant employees, in accordance with the Change Order Process (as defined in Exhibit G) as applicable, unless the Parties mutually agree in writing that, in the [**] of the BCH Companies and Certen, such services, applications or systems (including any related employees) shall not be transferred to [**] and shall therefore be treated as [**] services for the purpose of this Agreement. 3.2.4 For greater certainty, BCH web site(s) strategy, including look and feel and customer experience
-7- requirements for the billing and customer care customer facing/interfaces, [**] for Certen. The billing and customer care applications (excluding customer care for Wireline but including web presentment/ interfaces where relevant) that link to the BCH web sites [**] for Certen. 4. PART D - ENVELOPE PARAMETERS 4.1 A detailed table with the Envelope Parameters for all the BCH Companies is set forth in Annex 5 to this Exhibit A. The Parties agree to observe and comply with the following "Guiding Principles" in connection with the Envelope Parameters: (a) Envelope Parameter [**] will be reported [**] (b) Baseline values for the Envelope Parameters for the Modernized Systems set out in Annex 5 will be established during the applicable completion period set out in Section 4.2 below (the "COMPLETION PERIOD".); (c) The Parties shall negotiate in good faith to jointly define the Envelope Parameters for the Legacy Systems and the baseline values therefor by [**]. A table setting out agreed Envelope Parameters and baseline values for the Legacy Systems shall be attached hereto as Annex 5A. (d) all Envelope Parameters will be measured in terms of variation from the agreed-to baseline values; (e) The Parties agree that the following parameters are not included in the Envelope Parameter list set forth in Annex 5 to this Exhibit A. However, the Parties agree to measure these parameters on an ongoing basis and discuss the need for these parameters on the first annual review of the Envelope Parameters: (i) [**]; and (ii) "[**]".
-8- 4.2 The Parties shall negotiate in good faith to jointly define, within the applicable Completion Period as set out below, the baseline values for the Envelope Parameters relating to the Modernized Systems. -------------------------------------------------------------- TYPES OF COMPLETION PERIOD ENVELOPE PARAMETER BASELINES ------------------------------------------------------------- A [**] Within [**] of the Amendment Effective Date. ------------------------------------------------------------- B [**] Within [**] of the Amendment Effective Date, or within [**]post-normalization in the case of new applications. ------------------------------------------------------------- C [**] [**] of representative post-normalization data to be available in order to set baseline value; baseline value to be set within [**]of availability. ------------------------------------------------------------- 4.3 In the event that a Deviation in any one or more of the Envelope Parameters shall occur, the impact of such Deviation and other changes shall be assessed as provided for in Section 4.1 of Exhibit B. 4.4 A change in an Envelope Parameter may affect various operational components of Certen, including, but not limited to, the Data Center resources, quality assurance costs, and human resources at various professional levels. 4.5 The Parties acknowledge that changes in the Envelope Parameters may affect various Key Value Measures and service level commitments set forth in Exhibit C-1 and Exhibit C-2 (collectively, "PERFORMANCE MEASURES" or "PMS"). During the Completion Period, the Parties shall negotiate in good faith to link applicable Envelope Parameters listed in Annex 5 to one or more relevant PMs.
-9- 4.6 Detailed tables with the Envelope Parameters for the Modernized Systems and the Legacy Systems applicable to all the BCH Companies and the Third Party Customers shall be set forth in Annex 5 and Annex 5A to this Exhibit A. 4.7 The Envelope Parameter values will be reviewed by the Parties [**] in the [**] period following [**] the Amendment Effective Date, and adjusted to reflect the actual values achieved [**] reviews will be based on [**] of data; however, for the purposes of the first review of Envelope Parameter Values hereunder relating to the Modernized Systems, Bell acknowledges and agrees that the review of the Envelope Parameters will be based on [**] of data. 4.8 Certen will send Bell a monthly report of the raw data collected for the each Envelope Parameter. 4.9 The Parties agree that the following parameters are not included in the Envelope Parameters. However, the Parties agree to measure these parameters on an ongoing basis and discuss the need for these parameters on the first annual review of the Envelope Parameters: a) [**]; and b) [**]. 4.10 The Parties agree that, as processing accounts with many subscribers ("big BANs") consumes more resources than accounts with few subscribers, the Parties will collaborate to balance cycles in order to minimize Certen's cost. 5. PART E - OTHER DEMARCATION POINTS Other demarcation points, as set forth below, shall be mutually developed and agreed by the Parties, at such time as is relevant and applicable. 5.1 Hardware Demarcation Points 5.2 Telecommunications demarcation Points other than demarcation points for the Services. 5.3 Application Demarcation Points
-10- 5.4 Operational Demarcation Points 5.5 Miscellaneous Demarcation Points 6. PART F - RESPONSIBILITIES AND OBLIGATIONS Roles and responsibilities of the Parties with respect to Development Work and Operations Services are set forth in Exhibits O-1 and O-2 of the Agreement, respectively, and are incorporated herein by reference.
-11- ANNEX 1 - DEMARCATION TABLES TABLE A1 - DEMARCATION MATRIX